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/ i Digitized by Google
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THE 'iJ-5''i
ONTARIO REPORTS, -
VOLUME XIX.
coMTAiimro
REPORTS OF CASES DECIDED IN THE QUEEN'S
BENCH. CHANCERY, AND COMMON
PLEAS DIVISIONS
OF THB
HIGH COURT OF JUSTICE FOR ONTARIO.
WITH ▲ TABLB OF THK KAMES OF CASES ABOUED,
A TABLE OF THE NAMES OF CASES CITED,
AND A DIGEST OF THE PBINOIPAL MATTEBS
EDITOR:
JAMES F. SMITH, Q. C.
o
BEPOBTBRS:
QUEEN'S BENCH DIVISION E. B. BROWN.
CHANCERY DIVISIO N J A. H. F. LEFROY,
(.GEORGE A. BOOMER,
COMMON PLEAS DIVISION GEORGE F. HARM AN,
BARRISTERS- AT- LAW.
TORONTO: i^ ^
ROWSELL & HUTCHISON, |^ t^{^"
KING STREET EAST.
• ? ^
1890. j .f
.Google '
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£NTSBBD'*aooording to the Act of Parliament of Canada, in the year of
our Lord one thousand eight hundred and ninety by the Thb Law
SocDETT ov Uppxk Canada, in the Offioe of the Miniater of Agrical-
tnre.
BOWSKLL AND HUTCHISON, LAW PRINTIRB, KINO 8TBBBT.
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JUDGES
OT
HIGH COURT OF JUSTICE.
DVUVO XHB FIBIOD OF TKB8I RBPOBTS.
QUEEN'S BENCH BIYISION:
Hon. John Douglas Abmoub, 0. J.
'' WHiUAM OlENHOLME FALCONBRmOB, J.
•• WnxiAM Purvis Rochfort Street, J.
CHANCERY DIVISION :
Hon. John Alexander Botd, C.
" William Proudfoot, J.
"* Thomas Ferguson, J.
" Thomas Robertson, J.
COMMON fleas DIVISION:
Hon. Sir Thomas Oalt, Ent., C. J.
** John Edward Rose, J.
' Hugh MacMahon, J.
AUomey-Oeneral :
Hon. Oliver Mowat.
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A TABIuE
OF THS
CASES REPORTED IN THIS VOLUME-
A.
Abell V. Morrison 669
Abraham v. Abraham et al . . 256
Agricultural Ins. Co., Peck v . . 494
Allison, Lawson v 655
Anderson et aL v. Hanna et al. 58
Anderson, Re Long Point Co. v 487
Attorney-General, The, ex reL
Richard Hobbs v. The Niag-
ara Falls Wesley Park and
Clifton Tramway Co 624
B.
Badgerow v. The Qrand Trunk
R W. Co 191
Baker v. Fisher 624
Bann v. Brockville 409
Barber et al. v. McKay et al . . 46
Bateman, Hagarty v 381
Beer v. Strdud 10
Beland v. L'Union St Thomas. 650
Birchall, Queen V 697
Black V. Ontario Wheel Co . . 578
Blackley v. Kenney et al .... 169
Bland v. Rivers 407
Board of License Commissioners
of the County of Dufferin,
The, et al., Leeson y 67
Boyd V. Johnston 598
Brennan v. Brennan et al . . . . 327
Bridges v. The Ontario Rolling
MfllsCo 731
Briggs V. Semmens et al .... 522
British America Assurance Co.,
The, Cockbum et al. v .... 245
Brockville, Bann v 409
Brooke et al. v. Brown 124
Brown, Brooke et al. v 124
Brown, Gardner v 202
Bruyea v. Rose 433
Burke, Girvin v 204
Bush, Re 1
Bussell, Elliott V 413
C.
Cameron v. Walker 312
Canada Life Assurance Co.,
The, The Corporation of the
City of Kingstone v 453
Canada Permanent Building
Society v. Teeter et al . . 156
Canadian Bank of Commerce,
The, V. George Marks et al. 450
Canadian Mutual Aid Associa-
tion, Dodds V 70
Canadian Pacific R W. Co.,
Richardson v 369
Cann v. Enott et ux 422
Cantillon, Regina v 197
Central Bank and Hogg, Re . . 7
Chapman and the City of
London, Re 33
Clarke, Regina v 601
Cockbum et al. v. The British
America Assurance Co 245
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▼1.
CASES BEPOBTED.
[VOL.
Ck>lemaii Brothers, C. P. Beid
& Co. V 93
Corporation of the City of
Eongston, The, v. The Canada
Life Assurance Co 453
Corporation of the City of St.
Thomas etal, The, Howard V 719
Creighton, Regina v 339
Culbard, Grant v 20
Camming et al. v. Landed
Banking and Loan Co • • • . 426
D.
Derby and the Local Board of
Health of South Plantagenet,
Re 51
Dodds V. Canadian Mutual Aid
Association 70
Dowling, Macklin v 441
Dowslay, B^e^na v 622
Duggan V. The London and
Canadian Loan and Agency
Co. etal 272
E.
Edmonds et al. v. Hamilton
Provident and Loan Society. 677
Elliot v. Bussell 413
F.
Freeman v. Freeman 141
Fisher, Baker v 624
G.
Gardner v. Brown 202
George Marks et al., The Can-
adian Bank of Commerce v. 450
Gibbons v. McDonald et al . . 290
Girvin v. Burke 204
Goodfallow, Re Traders Bank
V. Goodfallow 299
Graham and West, Mendelssohn
Piano Co. V 83
Graham et aL v. McEimm . . 475
Grand Trunk E. W. Co., Badge-
row V 191
Grand Trunk R W. Co. et al.,
Sibbaldv 164
Grand Trunk R W. Co. et al.,
Ti-emayne y 164
Grant v. Culbard 20
Groesbeck et al., Hamilton v . . 76
Haddow et al., Kennedy et al. v 240
Hagarty v. Bateman 381
Hamilton Provident and Loan
Co., The, Meyers v 358
Hamilton Provident and Loan
Society, Edmonds et al. v . . 677
Hamilton v. Groesbeck et al . . 76
Hanna et al., Anderson et al. v 58
Hanrahan v. Hanrahan ,
Heney, Wellbanks v 549
Hepburn v. Township of Orf ord
et al 585
Herman Lloyd, George Lloyd,
and Albert Lloyd, Regina v. 352
Hilliard et al., Stothard v 542
Holmes et al., Stretton v .... 286
Howard v. The Corporation of
the City of St. Thomas et al 719
Howarth v. Ealgour 640
Huffiman v. Walterhouse and
Broddy 186
Ingolsby, Re 283
Iron Clay Brick Manufacturing
Co., Re 113
Jamieson, Reynolds v 235
Johnston, Boyd v 598
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XJX.]
CASES REPORTED.
VIL
Kennedy et al. v. Haddow et al 240
Keoney et al., Blackley v , . . . 169
Keyes v. Earkpatrick 572
Kil^ur, Howarth v 640
Kingston, The Corporation of
the City of, v. The Canada
Life Assurance Co 453
Kirkpatrick, Keyes v 572
Knechtel's Case, Re Saugeen
Mutual Fire Ins. Co 417
Knott et ux., Cann v 422
Landed Banking and Loan
Co., Cumming et al. v 426
Lamb v. Toung 104
Lauder, The Toronto Belt Line
R W. Co. V 607
Lawson v. Allison 655
Leeson v. The Board of License
Commissionersof the County
of DuflTerin et al 67
Long Point Co. v. Anderson, Re 487
Lincoln Paper Mills Co., The,
y. The St Catharines and
Niagara Central R. W. Co. . 106
London and Canadian Loan
and Agency Co. et al., Dug-
ganv 272
LTTnion St. Thomas, Belaud v. 650
Lynch, Regina v , . . 664
M.
Macklem v. Macklem et al . . 482
Macklin v. Dowling 441
Magee et al., Martin v 705
Martin, Morris v 564
Martin v. Magee et al 705
Martin v. McMuUen et al 230
Maaon v. The South Norfolk
R W. Co. 132
Menary, Regina v 691
B — ^VOL. XIX. o.R.
Mendelssohn Piano Co. v. Gra-
ham and West 83
Meyers v. The Hamilton Provi-
aent and Loan Co 858
Middlesex, County of, v. Small-
man et al 349
Morris v. Martin 564
Morrison, Abell v 669
Mc.
McCool et al., McCraney et al. v 470
McCraney et al. v. McCool et al. 470
McCreary et al., Shaw et al. v. 39
McDonald et al.. Gibbons v . . . 290
McKay et al.. Barber et al. v . . 46
McEamm, Graham et al. v . . 475
McLean and Walker, Re 161
McMichael v. Wilkie et al . . . . 739
McMuUen et al, Martin v. . . . 230
McPhee V. McPhee et al 603
N.
Niagara Falls Wesley Park and
CUfton Tramway Co., The,
The Attorney-General ex reL
Richard Hobbs V 624
Ontario Coal Co., Western
Assurance Co. v 462
Ontario Natural (3as Co., The,
V. Smart et al., and In re
The Ontario Natural Gas
Co. and the Corporation of
the Township of Gosfield
South 591
Ontario Rolling Mills Co., The,
Bridges V 731
Ontario Wheel Co., Black v . . 578
Orford, Township of, et al.,
Hepburn v 583
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VllL
CASES REPORTED.
[vol.
Paisley v. Wills 303
Parker, In re John Wesley .. 612
Peck V. Agricultural Ins. Co. . 494
Phelps V. The St. Catharines
and Niagara Central B. W.
Co 501
Q.
Queen v. Birchall 697
R.
Regina v. Cantillon 197
Regina v. Creighton 339
Regina v. Clarke 601
Regina v. Dowslay 622
Regina v. Herman Lloyd,
George Lloyd, and Albert
Lloyd 352
Regina v. Lynch 664
Regina v. Menary 691
Regina v. Rowlin 199
Regina v. Smith 714
Regina v. Watson 646
Reid & Co., C. P., v. Coleman
Brothers 93
Reynolds v. Jamieson 235
Richardson v. Canadian Pacific
R. W, Co 369
Rivers, Bland v 407
Rose, Bniyea v 433
Rose V. Township of West
Wawanosh et al 294
Rowlin, Regina v 199
S.
Saugeen Mutual Fire Ins. Co.,
Re— Knechtels Case 417
Scottish American Investment
Co., The, V. Tennant 263
Semmens et al., Briggs v .... 522
Shaw et al. v. McCreary et al. 39
Sherman, In re 315
Sibbald v. Grand Trunk R. W.
Co , et al 164
Smallman et al. v. County of
Middlesex 349
South Norfolk R. W. Co., The,
Mason V 132
Stothart v. Hilliard et al 542
Straughan v. Smith 558
Spratt et al. v. Wilson 28
St. Catharines and Niagara
Central R. W. Co., The,
Phelps v 501
St. Catharines and Nia^ra
Central R. W. Co., The, The
Lincoln Paper Mills Co. v . . 106
Smart et al., The Ontario
Natural Gas Co., v. and In re
The Ontario Natural Gas Co.
and the Corporation of the
Township of Gosfield South. 591
Smith, Regina v 711
Smith, Straughan v 558
Stretton v. Holmes et al .... 286
Stroud, Beer v 10
T.
Teeter et al., Canada Permanent
Building Society v 156
Tennant, The Scottish Ameri-
can Investment Co. v 263
Tomalin, White v 613
Toronto Belt Line R. W. Co.,
The, v. Lauder 607
Township of Orford et al.,
Hepburn v 583
Township of West Wawanosh
et al.. Rose v 294
Traders Bank v. Goodfallow —
ReGoodfallow 299
Tremayne v. Grand Trunk R.
W. Co, etal 164
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XIX.]
CASES REPORTED.
IX.
W.
Walker, Cameron v 212
Walierhouse and Buddy, Huff-
man V 186
Watson, Regina v 646
WeUbanks v. Heney 549
Western Assurance Co. v.
Ontario Coal Co 462
West Wawanosh, Township of,
etal.. Rose v 294
White V. Tomalin 513
Wilkie et al., McMichael v . . 739
Wills, Paisley v 303
Wilson, Spratt et al. v 28
Young, Lamb v 104
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A TABLE
OF THX
CASES CITED IN THIS VOLUME.
A.
NAMxa OF Casfs Citrd. Whxbs Rkfobtxd. Page of VoL
Abernethy V. McPheraon 26 C. P. 616 561
Abrahams v. Agricultural Mutual Aasnr-
anceAss'n 40 U. C. R. 175 498,500
Adams V. AngeU 5 Ch. D. 634 673,674
V. Toronto 12 0. R. 243 296
Aktie Bolacet v. Von Badelszen 3 Times L. R. 517 92
Alexandra Park Co., In re^Hall'b Case L. R. 6 Eq. 512 8,9
Allan V. Bennett i 3 Taont 169 575
v.Pisher 13 C. P. 71 484
Allen V.Smith 12 C. B. N. S. 638 189
V.Walker L. R. 5 Ex. 187 41
Allison, Re 11 Ch. D. 290 216
Allison and Kvans Appeal 11 Morrison's Mining Reports 142. . 593
Allgood V. Merrybent and Darlington R.
W. Co 33Ch. D.671 ..106, 107,108,110,111
Ambrose v. Fraser 14 0. B. 557 746
Ames ▼. The Trustees of the Birkenhead
Docks 20 Beav. 350 506
Amidown v. Osgood 24 Vt 278 100
Andrews, Re 11 P. R. 199 405
Anderson v. Anderson 30 Beav. 209 363
T. Ocean Steamship Co 10 App. Cas. 107 465, 469
Anon T. Gelpcke 5 Hun. 245 574
Appledore, Re 8 Q. B. 149 Ref. d, 35
Aj-fcansas Smelting Co. v. Belden 127 U. S. 379 472,473
Armstrong v. Drew (unreported) 232
Arscott V. Lilly 11 O. R. 16a 615
V. 110. R. 285; 14 A. R, 283 258
Ashbury Railway Carriage and Iron Co.
V. Riche L. R. 7 H. L. 653 631,635,636
Ashby V. Jenner 32 Sol. J. 670 600
Ashton T. McDougall 5 Beav. 56 8
Alter V. Atkinson L. R. 1 P. & D. 665 151, 152
Attorney-General v. Alexander L. R. 10 Ex. 20 454
V. Birbeck 12 Q. B. D. 605 208,210
v. Birmingham and Oxford June-
tonR-W.Co 3McN.&G.463 638
Attorney -General v. Bristol Water Works
Co. 10 Ex. 884 419
V. Cockermouth Local Board. . L. R. 18 Eq. 172 629, 636
V. Ely, Haddenham & Sutton
R. W. Co L. R. 4 Ch. 194 634
Attorney -General v. Great Eastern R. W.
Co 11 Ch. D. 449. . . .626, 631, 632, 635, 636
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xii. GASES CITED. [VOL.
Names of Casks Cited. Whbbb Reportbo. Page of Vol
Attorney-General v. Great Eastern R. W.
Co. 5App. Caa. 473.... 689,631,636,638
Attorney -General v. Great Northern B.
W. Co. IDr. &Sm. 164 ....629, 632, 634, 636
Attorney-General v. Great Western B.
W.Co L.B.7Ch.767 633.636
Attorney-General v. Kwok a Sing L. B. 6 P. C. 197 490
V.Owen 10Ve8.660 130
V. Sheffield Gas Consumers Co 3 DeG. M. & G. 304 627
V. Shrewsbury (Kingsland)
Bridge Co 2 1 Ch. D. 752 627, 629, 633
"AttorneyGeneral V. SuUey 4 H. & N. 769, 6 H. A N. 711.... 466
Austin V. Mead 16 Ch. D. 657 160
V.Story lOGr.306 684
Avamev. Brown 14 Sim. 303 712
Badcock, In re 17 Ch. D. 361 335
Baddeley, Doe d. v. Massey 17 Q. B. 373. . . . 217, 228, 229, 439, 440
Badeley v. ConsoUdated Bank 38 Ch. D. 238 86,89,92
Baird V. Wells W. N. March 1890, p. 65 749
Baker v. Batt 2 Moo. P. C. 317 152
V. Mills 11 O. R. 253 137
Bank of British North America v.
Matthews 8 Gr. 490 260
Bank of Montreal v. Sweeny 12 App. Cas. 617 282, 429, 432
V. Reese 26 Penn St Rep. 143 282
Bank of Missouri v. Matoon 26 Mo. 243 i78
Bank of Toronto v. Fanning 17 Gr. 516 484
Bank of Upper Canada, The, v. Thomas . . 1 1 C. P. 515 178, 179, 181
V. . . 2 E. & A. 502 174
Banks v. Robinson 15 O. R. 618 552, 557
Banqne Jacques Cartier, La v. La Banque
d' Esparque de Montreal 13 App. Cas. Ill 30
Banta v. Garmo 1 Sandf. (U. S. Ch.) 383 673
Barbeau v. St. Catharines and Niagara
Central R. W. Co 15 O. R. 586 609
Barber v. City of Rosebury 11 Allen 318 725
V. Lespiter 7 C. B. N. S. 176 332
Barclay v. Darlington 5 C. P. 432 296
Baretto v. Pirie 26 U. C. R. 468 343
Barker v. Kccles 18 Gr. 440 674
Barkshire v. Grubb 18 Ch. O. 616 537
Barley v. Walford 9 Q. B. D. 197 335
Barlow v. Rhodes 3 Tyr. 280 532
Barry v. Butlin 1 Moo. P. C. 480 152
Bate v. Hooper 5 DeG. M. & G. 344 32
Battishill v. Reed 18 C. B. 696 137, 138
Bayard v. Farmer's Bank 52 Pa. St. 237 429
Bayley v. Great Western R. W. Co 26 Ch. D. 434 537
Bayhss v. Fisher 7 Biog 153 68»
Beaton v. Boomer 2 Ch. Ch. R. 89 30
Beemanv. Knapp 13 Gr. 398 384, 391
Beeston v. Weate 5 E. & B. 996 17
Bell V. MidUnd R. W. Co 10 C. B. N. S. 287 137
V. Turner 47 L. J. Ch. 75 32
Beunison v. Cartwright 5 B, & S, 17 17
Beusley v. Bignold 6 B. & Ad. 335 208
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XIX.]
CASES CITED. xiii.
Nambs of Casis Cited. Whbbb Rxportbd. Page of Vol.
Benson v. Ottawa Agricultural Ins. Co. 42 U. C. R. 282 252
Bosozzi V. Harris 1 F. & F. 92 42
Be88€t,Exp 6Q.B.481 617,619
Bignoll Settlement Trusts, In re L. K. 7 Ch. 223 2, 6
Bulington t. Proirincial Ins. Co 2 A. B. 168 498, 500
V. 3 S. C. R. 182 252
Binkev. Lord Rokeby 2 Swanst 226 . . . 162
Birkley v. Presgrave 1 East. 220 464
Black V. Drouiliard 28 C. P. 107 665
V.White 18U.C.R.362 296
Blackburn v. Gummerson 8 Gr. 334 49
Blades V. Higgs 12 C. B N. S. 501 ; 11 H. L. C. 621. 491
Blake v. Foster 2 Ball A B. 403 225
Blackham V. Pugh 2C.B.611 645
Blackley v. Kenney 16 A. R. 522 169, 172, 174, 183
Blake v. Done 7 H. &N. 465 304
Blaker v. Herts and Essex Water Works
Co 41 Ch. D. 399 504, 505, 506
Blagden v. Bennett 9 O. R. 593 644
Blight V. HartnoU 19Ch. D. 294 368
Blogg V. Johnson L. R. 2 Ch. 225 30
Bond V. Conmee 16 A. R. 419 27
Bondy v. Fox 29 U. C. R. 64 49
Bonner v. Great Western R. W. Co 24 Ch. D. 1 629
Boston Ice Co. v. Potter 123 Mass. 28 472
Bowghton V. Knight L. R. 3 P. & D. 64 154
Boniton v. Bethune 21 Gr. 110, 478 162
Bourne v. Gatliffe 11 C, & F. 45 374
Bowen v. Brecon R. W. Co L. R. 3 Eq. 541 503
V. Canada Southern R. W. Co. . . 14 A. R. 1 610
Bower V. Peate 1 Q. B. D. 321 287
Bowes V. Strathmore 8 Jur. 92 128
Bowyer v. Cook 4 C. B. 236 137
Boyd V. Conklin 46 Mich. 56, 54 Mich. 583 19
V. Petrie L. R. 7 Ch. 385 60
Boyle V. Corporation of Dundas 25 C. P. 420 726
Boys V. Wood 39 U. C. R. 495 227
Bradley v. Farwell 1 Holmes C. C. 433 115
Brandlord v. Freeman 6 Ex. 734 481
Brett V. Clowser. 5 C. P. D. 376 530, 541
Brewer v. Broadwood 22 Ch. D. 105 304, 311, 312
Brewer v. Dew 11 M. & W. 625 689
Bright V. McMurray 1 O. R. 172 60
Bright V. Walker 1 C. M. & R. 211 544
Britain v. Rossiter 11 Q. B. D. 123 331, 332, 335
British Canadian Loan k Investment Co.
and Ray, Re 16 O. R. 15 158, 160
British Waggon Co. v. Lea 5 Q. B. l>. 149 472
Briscoe v. Drought 11 ir. C. L R. (1860) 250. .. . 17, 18, 19
Broadbent v. Ramsbotham 11 Exch. 602 19
Brockelhurst v. Jessop 7 Sim. 438 217
Broderick v. Broderick IP. Wms. 239 651
Brow, Re 29 Ch. D. 889 30
Brower v. Canadian Permanent Building
Association 24 Gr. 509 265, 270
Brown v. Alabaster 37 Ch. D. 507 528, 530, 541
v. McLean 18 O. R. 533. .669, 671, 672, 673, 675, 676
V. London & North Western R.
W. Co 4 B. & S. 326 459
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Xiv. CASES CITED. [vOL.
Names or Casbs Cited. Whkbe Beportbd. Page of Vol.
Brown Tnwta, Re 12 L. T. N. S. 488 402,403
Bruere v. Pemberton 12 Vea. 386 30
Buchanan v. McMnllen 25 6r. 193 675
Bnrbridge v. Manners 3 Camp. 194 324
Bnrdett v. Thoinpaou Reported in note Boaghton v.
Knight, L. R. 3 P. & D. 73. . . . 154
Burns v. Chamberlin 25 Gr. 148 241
V. Corporation of Toronto 42 U. C. R. 560 726
V. MacKay 10 0. R. 167 106, 291, 423
Burroughs, Lynn and Sexton, In re .... 5 Ch. D. 601 162
Burrows v. Lock 10 Ves. 470 333
Bushby v, Dixon 3 B. & C. 307 487
Butler V. Hunter 7 H. & N. 826 287
Byrne v. Norcott 13 Beav. 346 30
C.
Cadell V. Palmer 1 CI. & F. 372 367
CaldweU V. Stadacona Ins. Co 11 S. C. R. 212 498
Camberwell and South London Building
Society V. HoUoway 13 Ch. D. 763 712
Cameron, In re 14 Gr. 612 118
y. Carter 9 O. R. 426 162
V.Kerr 3A. R. 30 174, 175
CampbeU V. Robinson 27 Gr. 634 743,745,746
V. Spottiswood 3 B. & S. 769 477
Canada Landed Credit Co. v. Canada
Agricultural Ins. Co 17 Gr. 418 498
Canada Permanent Loan and Savings Co. ,
The, V. Page 30 C. P. 1 49
Canadian Bimk of Commerce, The, v.
Green 45 U. C. R. 81 173
Canadian Land and Emigration Co. v.
The MunicipaUty of Dysart et aL . . . . 9 O. R. 495 ; 12 A. R. 80. .296, 455, 495
Capps V.Norwich and Spalding R.W. Co. 9 Jur. N. S. 635 108
Carmichael, Re 1 U. C. L. J. N. S. 243 619
v.Slater 9 C. P. 423 296
Carr v. Cooper 1 B. & S. 230 660, 661
Carrodus v. Sharp 20 Beav. 56 443
Carroll v. Perth 10 Gr. 64 296
V. Robertson 15 Gr. 183 60
Carruthers v. Ardagh 20 Gr. 679 176
Carscaden v. Shore 17 C. P. 493 425
Carson v. Sloone 13 L. R. Ir. 139 432
Carter V. Carter 3 K. & J. 617 430
V. Whalley 1 B. A Ad. 11 96, 101, 103
Casbomev. Scirfe 1 Atk. 603 226
Caster v. Corporation of Uxbridge 39 U. C. R. 113 725
Cataraqui Bridge Co. v. Holcomb 21U. C. R. 273 580
Caton V. Rideout 1 MacN. A G. 599 416
CaughiU V. Clark 9 P. R 471 303
Central Bank, Re—Wells & McMurchy's
Case 15 0. R. 611 651
Cesena SulphurCo., The, v. Nicholson. . 1 Ex. D. 428 466
Chamberlain v. Boyd 11 Q. B. D. 407 332
V. Chamberlain ., 1 Ch. Cas. 256 711
V.Clark 28 Gr. 454 ; 1 0. R 136 217,711
Chandler, Re 18 0. R. 106 366
Chapman v. Great Western R. W. Co. . 5 Q. B. D. 278 374, 875
Digitized byVjOOQlC
xdl] gases cited. xy.
Names of Casks Citxd. Whsbb Reported. P^ of Vol.
Charles, Ex p L. R. 13 Eq. ^38 466
Chasemore V. Richards 7 H. L. C. 376 19
Chew V. Holroyd 8 Ex. 249 490
Childs V. Thorley 16 Ch. D. 161 431
Chinneiy v. Evans 10 Jur. N. S. 866 ; 11 H.L.C. 116.. 217
«Cito,"The 7 P. D. 6 464
Clark V. Clayton 2 GiflF. 336 486
V, Harvey 16 O. R. 169 66, 167, 16a
V. Western Assurance Co 26 U. C. R 209 301
Clarke and Union Fire Insurance Co., Re 16 A. R. 161 119
V. Molyneaux 3 Q. B. D. 237 646
Clarksonv. Scott 26 Gr. 33 742
Clavering v. Ellison 7 H. L. C. 707 484
Claxton V. Claxton Ir. R. 7 C. L. (1873) 23 17
Clegg V. Grand Trunk R. W. Co 10 O. R. 708 609
Clement v. Cheeseman 27 Ch. D. 631 150
Coath and Wright, Re 8 C. L. T. 10 60
Cobb V. Dyer 69 Me. 494 675
CoflFee v. Quebec Bank 20 C. P. 117 301
Cohen v. Metropolitan R. W. Co 6 Times L. R. 146 733, 737
Cole V. HaU 12 P. R. 584 ; 13 P. R. 100 268
Cokrove v. Tallman 2 Lansing, (N. Y.) 97 178
Collette V. Goode 7 Ch. D. 842 303
Collins V. Bristol and Exeter R W. Co. . 7 H. L. 194 376, 378
V. Cave 7 H. * N. 225 332
Coleman v. Eastern Counties R. W. Co. 10 Beav. 1 629
Colvin V. McKay 17 0. R. 212 642
Commercial Bank— Corporation of India
and the East, In re— Wilson's Case. . L. R. 8 Eq. 240 8
Commercial Bank v. London Gas Co., Re. 20 U. C. R. 233 66
Commissioners of Sewers, &c., The, v.
Gellatly 3 Ch. D. 610 174
Commonwealth V. Snelling 15 Pick 337 343
Compagnie G^n^rale de Bellegarde, In re
—Campbell's Case 4 Ch. D. 471 117, 123
Connor v. Middagh 16 A. R. 356 296
Consterdine v. Consterdine 31 Beav. 330 429
Contract Corporation, In re— Baker's
Case L. R. 7Ch. 115 8
Conway v. Canadian Pacific R. W. Co. . . 7 0. R. 673 ; 12 A. R. 708 484
Cooke V. Oxley 3 T. R. 653 614
Corbett v. Brown 8 Bing. 33 335
Corby v. Gray 15 0. R. 1 746
Corbyn, Doe d. v. Bramston 3 A. & E. 63 220
Corcoran v. East Surrey Iron Works Co. 5 Times L. R. 103 82, 732
Corham v. Kingston 17 0. R. 432. . . .677, 682, 683, 684, 689
Corporation of Bruce v. McLay 11 A. R. 482 25
Corporation of the City of Brantford,
The V. Ontario Investment Co 15 A. R. 605 464, 455
Corser v. Cartwright L. R. 7 H. L. 731 430
Cosens v. Boenor R. W. Co L. R. 1 Ch. 594 110
Cotton, Doe d. v. Stenlake 12 East. 515 362f
Connhaye, Re L. R. 8 Q. B. 410 616
Coutts V. Acworth L. R. 8 Eq. 558 392
Covington, &c., R. W. Co. v. Bowler . . 9 Bush. 468 115, 116, 118
Cowan V. Dalziel 5 Ct. of Sess. 4th Series 241 42
Coxv. Burbridge 13 C. B. N. S. 439 43
Coxhead V. Richards 2 C. B. 569 645
Coyle V. Great Northern R. W. Co 20 Ir. 0. L. R. 409 733
C — ^VOL. XIX. O.R.
Digitized byVjOOQlC
XVi. CASES CITED. [VOL.
Nami« of Casks Citbd. Wherb Reported. Page of Vol.
Crafter v. Metropolitan R. W. Co L. R. 1 C. P. 300 *. 683
CrewBon v. The Grand Trunk R. W, Co. 27 U. C. R. 68 17
Crichton's Trust, Re 24 L. T. 267 402. 403
Cripp8 V. Judge 13 Q. B. D. 583 . .80, 82, 732, 735. 736
Croft and the Town of Peterborough, Re 17 0. K. 522 410, 411
Cromwell v. Brooklyn Fire Ina. Co .... 44 N. Y. 42 684
V. Hewitt 40 N. Y. R. 491 606
Cronk, &c.. Doe d., v. Smith 7 U. C. R 376 48, 49
Croskery.Re 16 O. R. 207 202,203,569
Croas, In re 27 Beav. 592 128
Croydon Commercial Gas Co., The, v.
: Dickinsonu 1 C. P. D. 707 ; 2 C. P. D. 46. ... 178
Crozier. Re— Parker v. Glower 24 Gr. 637 742
Cruikshank v. Duffin L. R. 13 Eq. 555 431
Crump, Doe d. WoUey v. Norwood 7 Taunt 362 363
Culhane v. Stuart 6 O. R, 97 301
Cummins v. Fletcher 14 Ch. D. 699 266, 269
Curtis V. Lukin 5 Beav. 147 368
D.
Dancey v. Bums 31 C. P. 313 465
Daniel v. Cross 3 Ves. 277 451
Danks v. Dunham Not reported 102
Darby v. The Corporation of Crowland. . 38 U. C. R. 338 17
v. Ouseley 2 H. & N. 1 481
Darling V. Midland R. W. Co 11 P. R. 32 609
Davey v. London and North Western R.
W. Co 12 Q. B. D. 70 733
Davies v. Snead L. R. 5 Q. B. 608 643
V. Stainbank 6 D. M. & G. 679 180, 181
Davis V. Canadian Pacific R. W. Co. . . . 12 A. R. 724 484
V. Hawke 4 Gr. 394 291, 430
V. McWhirter 40 U. C. R. 598 661
Davison v. Elliott 7 E. & B. 229 343
Dawkins v. Lord Paulet L. R. 5 Q. B. 94 642
Dean v. Ontario Cotton Mills Co 14 O. R. 119 80
Debeiiham v. Phillips 3 Times L. R. 512 92
Deeds v. Wallace 8 C. P. 385 438
Decks V. Strutt 5 T. R. 690 711
Defoe, Re 2 0. R, 623 216
Demorest v. MUler 42 U. C. R. 66 384, 394
Dennis v. Husrhes 8 U. C. R. 444 296
Devaynes v. Noble — Clayton's Case 1 Mer. 585 173
Devitt v. Kearney 13 L R. Ir. 45 431
Dickinson v. Callahan 19 Pa. St. 227 472
Dickson v. Dickson 6 0. R. 278 364, 365
Dix V. Burford 19 Beav. 409 711
Dixon v. Farrer 18 Q. B. D. 49 700
Dobbin V. Dobbin 11 O. R. 534 746
I Dobb'sOase 2 East. C. L. 613 717
Dobson V. Blackmore 9 Q. B. 991 137
Doe v. Guy 3 East. 120 711
— V. Sturges 7 Taunt. 217 711
— Baddeley v. Massey 17 Q. B. 373 . . . . 217, 228, 229, 439, 440
— Cotton v. Stenlake 12 East. 515 362
— Gorbyn v. Bramston 3 A. & E. 63 220
— Cronk, &c., V. Smith 7 U. C. R. 376 48, 49
— Jones V. WUUams 5 A. & E. 297 217
Digitized byVjOOQlC
XIX.] CASES CITED. xvii.
Names of Cases Citsd. Wherb Repo&tbd. Page of Vol.
Doe Palmer v. Eyre .17 Q. B. 366 217, 227, 228, 229
— Perry v. Henderson 3 U. C. R. 486 216
Doherty v. Allman 3 App. Gas. 709 629
Dominion Bank v. OUver 17 O. fe. 402 169, 174, 175. 176
Dominion Loan and Investment Co. v.
Kilroy 14 A. R. 468 746
Dominion Savings and Investment Society
of London v. Kittridge 23 Gr. 631 205, 270
Donnelly v. Donnelly 9 O. R. 673 41
Doss y. Doss 14 L. J. N. S. 646 690
DoulJ V. Western Assurance Co 12 S. C. R. 446 252
Dowsett V. Cox 18 U. C. R. 694 440
Doyle V. Henderson, Re 12 P. R. 38 618
Dry V. Davy 10 A. & E. 30 472
Duke of Bedford v. Abercom 1 My. & Cr. 312 129
Duke of Devonshire, The, v. Foot 5 Ir. R. £q. 314 36
Dundas v. Dutens 1 Ves. Jr. 196 332
Dunham v. Kirkpatrick 101 Penn. 36 593, 594
Dunn's Case 1 Lea. C. C. 59 325
Dunne V. Dnnne 3 Sm. & G. 22; 7 D. M. & G. 207. 484
Earl V. De Hart 12 N. 0. Eq. 1 BeasleyCh.(N. J.) 280 17
Earl of Bristol v. Wilsmore 1 B. & C. 614 651
Earl of Jersey v. Guardians, &c., of Meath
Poor Law Union 22 Q. B. D. 555 594
Earl of Rosse v. Wainman 10 Morrison's Mining Reports 398. . 593
Earls V. McAlpine 27 Gr. 161 ; 6 A. R. 145 366
East London R. W. Co. v. Whitechurch L. R. 7 H. L. 81 490
Eastman v. Bank of Montreal 10 0. R. 79 233
Eden v. Ridsdale's Railway Lamp and
Lighting Co 23 Q. B. D. 368 121
Egerton v. Earl Brownlow 4 H. L. C. 1 333
Eland v. Kerr 1 East 395 651, 652, 653
Elliot v.Merryman BamC.82 260
ElUott V. McConnell 21 Gr. 276 291
EUis V. Emmanuel 1 Ex. D. 157 230, 232, 233, 234
Elston ▼. Rose L. R. 4 Q. B. 4 493
Elwes V. Brigg Gas Co 33 Ch. D. 562 594
Emperor of Austria, The, v. Day and
Kossuth 3 DeG. F. & J. 217 627
English and American Bank, Ex p L. R. 4 Ch. 49 232
Ennor v. Barwell 2 GiflF. 410 19
Esdaile v. Stephenson 6 Madd. 366 309
Eransv. Jackson 8 Sim. 217 129
V. Evans 1 Hagg. Con. 118 336
Everitt v. Everitt L. R. 10 Eq. 405 392
Ewart V. Cochrane 4 Macq. 122 528, 536
Ewing V. Wheatley 2 Hagg. Con. [176 337
F.
Fair v. Mclver 16 East 130 651, 652, 653
FarhaU V. Farhall L. R. 7 Eq. 286 431
Faritz,Inre 7 Blatch. 346 613
FarqnharBon v. Morrow 12 C. P. 311 217
Fauldflv. Harper 2 O. R. 405 ; 9 A. R. 537; 11 S. C.
R. 639 60
Digitized byVjOOQlC
xviii. CASES CITED. [VOL.
Naubs of Casks Cited. Whjere Refobted. Page of VoL
Faurev. Electric Accumulator Co., Inro. 40 Ch. D. 141 118
FaviUv. Roberts 60 N. Y. 222 216
Featherstone V. McDoneU 15 0. P. 166 8
Ferguaons Trusts, Re 22 W. R. 762 402, 403
Ferguson V. Kenney 16 A. R. 276. ...169, 172, 174, 176, 186
Ferris r. Ferris 8 Conn. 166 336
Fillingham v. Bromley T. & R. 530 484
Finch V. Gilray 16 O. R. 393 214
Findlay V. Pedan 26 C. P. 483 .* 530
Finlay v. Chimey 20 Q. B. D. 494 334, 335, 337
Fisher v. Keane 11 Ch. D. 353 749
V. Spohn 4C,L.T.446 671,672,673
Fisken v. Brooke 4 A. R. 98 127
Fitch V. Lemon 27 U. C. R. 273 343
Fitzpatrick v. Warring 11 L. R. Ir.35 130
Flamank, In re— Wood v. Cook 40 Ch. D. 461 416, 416
Flandersv. D'Evelyn 4 0. R. 704 401,404, 405
Fletcher V. Rylands L. R. 1 Eq.282; L.R.*3H. L. 330
39, 41, 43
Florence Lands and Public Works Co., In
re 10Ch.D.630 606
Foley V.Canada Permanent, &c., Co... 4 0. R. 38 8
Forbes v. Eden L. R 1 H. L. Sc. 669 749
Ford V. Ager 2 New R. 366 217, 228
Ford V. Metropolitan and District R. W.
Companies 17 Q. B. D. 12 639
Ford V. Tynte 2 J. & H. 150 490
Forest of Dean Coal Mining Co., In re. . 10 Ch. D. 450 114
Forrer v. Nash 35 Beav. 167 304, 311
Forster v. Patterson 17 Ch. D. 132 60
Fountain V. McSween 4 P. R. 240 660
Fox V. Marreth W. & T. L. C. 6thed. vol 1, p. 141, 117
Fraserv. Hood 15 Ct. of Sess. Cases, 4th Series 178. 82
Frowde v. WUUams 66 L. J. Q. B. N. S. 62 92^
Fuller v. Macklem 25 Or. 457 485
Fulton V. Andrew L. R. 7 H. L. 448 151, 153, 155
Fumess v. Caterham R. W. Co 25 Beav. 614 507
v. MitcheU 3 A. R. 612 216
Fumival v. Brooke 49 L. T. N. S. 134. . .658, 660, 662, 663
Gabbett V. Lawder 11 L. R. Ir. 295 116
Gale V. Tindo 1 Vem. 475 333
Gardner v. London, Chatham and Dover
R.W.Co L.R.2Ch.217 506
Gardner V.Walsh 6E.&B.83 208
Gaston v. American Exchange National
Bank 29N.J.Eq.l02 429
Gathercolev. Miall 16M. &W319 477
Geach v. Ingall 14 M. & W. 95 481
George V. Milbanke 9 Ves. 190 291
George and wife v. Skibington L. R. 5 Ex. 1 288
Gerow V. British America Assurance Co. 16 S. C. R. 624 465
Gibbons v. Wilson 17 A. R. 1 42a
Gilbert v. North London R. W. Co 1 Cab. & El. 33 196
V. Sykes 16 East 150 33S
GUbertson v. Fergusson 7 Q. B. D. 662 454^
Gilchrist and Island, Re 11 0. R 637 60,66,157
Digitized byVjOOQlC
XIX.] CASES CITED. xix.
Names or Cases Cited. Where Reported. Page of Vol.
Gillies T. Howe 19 Gr. 32 174, 175
Gilkon V. North Grey R. W. Co 36 U. C, R. 476 287
Gladwell t. Steg^ 8 Soott 60; 6 Bing. N. C. 733. .287, 288
Glannibanta, The 1 P. D. 287, 8 105
Glazier v. RolU 42 Ch. D. 459 174
Glsve ▼. Harding 27 L. J. Ex. 286 533
Glover v. Coleman L. R. 10 C. P. 108 15, 17
Glover V. Walker 5 C. P. 478 .' 438
Goodacre v. Smith L. R. 1 P. & D. 369 151
Goodhue, Re 19 Gr. 366 442, 447
Gordon v. City of Belleville 15 O. R. 26 657
v. Ware Savings Bank 115 Mass. 688 684
Gould V. Coombs 1 C. B. 543 604
Gourlay V. Plimsoll L. R. 8 C. P. 362 343
Graflf V. Evans 8 Q. B. D. 373 208
Grafton v. Cummmga 99 U. S. 100 516
Graham v. Heenan 20 C. P. 340 438
V. Ingleby 1 Ex. 661 208
V. London Insuranoe Co 13 0. R. 132 252
V. Ontario Mutual Insurance Co. 14 O. R. 358 498
V. Stephens 27 Gr. 434 442
Grand Trunk K. W. Co. v. Vogel US. C. R. 612 167, 159
Grant v. Canada Life Assurance Co 29 Gr. 256 60
Gray V. Ingersoll 16 O. R. 194 350
V. Seckham L.R.7Ch.680 ....230,232
Greason V. Keteltas 17 N. Y. 491 128,130
Green v. Howard 21 O. P. 531 . . 684
Greenlaw v. King 3 Beav. 49 118
Grelton v. Haward Taunt. 94 363
Grey V. Pearson 6 H. L. C. 106 257
Grierv. St. Vincent 12 Gr. 330;13Gr,612 296
Griffith V. Pound Weekly Notes 1889, 203 265, 269
Griffiths V. London, kc. Docks Co 12 Q- B. B. 493 ; 13 Q B. B. 259. . 79
T. London and St. Katharine
Docks Co ; 13 Q. B. D. 259 581
Grizde v. Frost 3 P. & F. 622 733
Groom V. West 8 A. & E. 768 651
Grover V. Bullock 5 U, C. R. 297 465
Guardhouse v. Bhwkbum 1 P. & D. 109 161, 152
Guardians of the Callan Union, The, v.
Armstrong 16 L. R. Ir. 35 487
Guilford v. Oxford 9 Conn. 321 336
H.
Hallett's EsUte, In Re Knatchbull v.
Hallett 13Ch.D.696 278
Hamilton's Windsor Iron Works, In re,
£x p. Pitman and Edwards 12 Ch. D. 707 503
Hamilton v. Groesbeck 19 O. R. 76 733, 736
V. McKellar 26 Gr. 110 484
Hammersley V. DeBiel 12 a. A P. 45 331, 336
Hammond v. Barker 61 N. H. 53 671
Hamon v. Falle 4 App. Cas. 247 646
amdy V. Foley 121 Mass. 259 42
Hanson v. Lancashire and Yorkshire R.
W. Co 20W.R.297 196
HarWdga T. Warwick 3Ex.662 644
Havding T. Cardiff 29 Gr. 308 ; 2 0. R. 829 206
Digitized byVjOOQlC
XX. CASES CITED. [VOL.
Namer of Cases Citrd. Whbkb Beportid. Page of VoL
Harman and Uxbridge and Rickmans-
worth R. W. Co., In re 24 Oh. D. 720 442
Harper t. Charlesworth 4 B. & C. 574 433, 436, 437, 438
V. Luffkin 7 B. & S. 387 661
Harris v. Butler 2 M. & W. 639 661
V. Mudie 7 A. R. 414 213
V. Smith 40 U. C. R. 33 628, 630
Harriaon'a Trusts, In re 22 L. J. Chy. N. 8. 69 2
Harrison v. Bush 6 E. & B. 344 644
V. Guest 6DeG. M. & G. 424 ; 8 H. L. C.
481 386
Hart V. McQuesten 22 Gr. 133 674
Hartwell v. Camman 3 Morrison's Mining Reports 229 . . 593
Haskell v. Jones 86 Penn. 173 208, 210
Hastings Mutual Fire Ins. Co. y. Shannon 2 S. C. R. 394 498
Haston v. Edinburgh 14 Ct. of Sess. Cases, 4th Series 621 82
Haydon v. Crawford 3 O. S. 583 484, 486
Hayes v. Ford 2 W. Bl. 698 362
Haynes v. Copeland 18 C P. 150 296
Heath v.Pugh 6 Q. B. D. 346; 7 App. Cas. 236
221, 226, 227, 229, 426
▼. Sansom 4B. &Ad.l72 96
Heaven v. Pender 11 Q. B. D. 603 287, 288
Hedley v. Barlow 4 F. & F. 224 477, 478
Heenan v. Heenan 3 C. L. T. 163 133
Hellman'8Will,Re L. R. 2 Eq. 363 402
Hext V. GiU L. R. 7 Ch. 699 594
Henderson v. Killey 14 O. R. 149 460, 461, 462
V. McLean 8 C. P. 42 437
v.McLenn 16 U. C. R. 633 437
T.White 23 C. P. 78 304
Hendry v. Turner 32 Ch. D. 366 97
Heriot v. London, Chatham and Dover
R. W. Co 16 L. T. N. S. 473 108
Heske v. Samuelson 12 Q. B. D. 30. ... 80, 82, 732, 735, 736
Hickinbotham v. Leach 2 DowL N. S. 272 346
Hicks v. Williams 16 O. R. 228 214, 217
~ jins, Exp lOJur. 838 35
Iv.Hill 6Sim.l36 129
-V. McKinnon 16 U. C. R. 218 546
V. Municipality of Tecumseth 6 C. P. 297 412
V. New River Co 9 R A S. 303 661
Hinchliffe v. Kinnoul 6 Bine. N. C. 1 632
Hitchcock V. Humphrey 6 M. & G. 659 605
Hixon V. City of Lowell 13 Gray 69 725
Hobsonv. Bass L. B. 6 Ch. 792 . . . . 230, 232, 233, 234
Hodgson V. Sidney L. R. 1 Ex. 313 332
Hoggart V. Scott 1 R. & M. 293 309, 310, 311
Holdemess v. Stock Ct. of App. (Sept. 7, 1880) 406
HoUand v. Northwick Highway Board. . 34 L. T. K S. 137 26
Holmes V. Blogg 8 Taunt 36 8
Holmes v. WiESn 10 A. & E. 603 137
Hopkins v. Manufacturers Ins. Co 43 U. C. R. 264 253
Hopwood v. Schofield 2 Moo. & Rob. 34 137
Hood V. Judkins 61 Mich. 680 460
Hooker v. Morrison 28 Gr. 360 217, 227
Hooper v. Accidental Death Ins. Co 6 H. ft N. 646 73
Howard V. Crowther 8 M. & W. 601 661
How V. Hamilton and North Western R.
W.Co 8A.R.336 656,668,659
Digitized byVjOOQlC
XIX.] CASES CITED. Xxi.
Namis of Casks Citkd. Whkbe Rkportkd. Page of Vol.
Howes V. Lee 17 Or. 469 674. 675
Hoyle V. Plattsburgh and Montreal R.
W.Co 64N. Y. 314 115, IIS
Hnbbuck t. Helms 36 W. R. 674 503, 606
HugginsT.Law 14 A. R. 383.30, 400, 403, 404, 405, 406
Hugo V. Williams 14 Eq. 224 362
Huguenin v. Baseley 2 W. A T. L. C. 6th ed. 697 386
Hull, Bamsley and West Riding Junction
R. W. Co., Re 40 Ch. D. 119 603, 604
Humble v. Hunter 12 Q. B. 310 472, 473
Hume V. Cook 16 Gr. 84 384
Huth V. Lamport 16 Q. B. D. 736 468
Hutton V. Rossiter 7 DeG. M. A G. 9 333
V. Wanzer 11 P. R. 302 291
Hyde v. S 12 Mod. 246 42
Hynev. Bum 13 P. R. 17 660
lanson V. Stuart 1 T. R. 748 343, 347
IngersoU v. Carroll, In re 1 O. R. 488 296
Inglis V. Beaty 2 A. R. 463 30
Insurance Co. v. WolflF 06 U. S. 326 263
International Wrecking Co. v. Lobb 11 O. R. 406 464
Irwin V. Young 28 Gr. 611 384
Jackson T. Slipper 19 L. T. N. S. 640 606
James v. Aswell 11 Jur. N. S. 662 560
Jamieson v. Harker 18 U. C. R. 590 440
Jarrett v. Hunter 34 Ch. D. 182 616
Jarvis v. Cook, In re 29 Gr. 303 674
Jenkins v. Hiles 6 Ves. 646 304
Jennings v. Jordan 6 App. Cas. 699 268
Jerry v. Hutchinson L. R. 3 Q. B. 699 660
Jesson V. Wright 2 Bligh. 1 362
Job V. Langton 6 E. & B. 779 466
John Anderson, Re 11 C. P. 1 617,619
Johnson v. Hope 17 A. R. 10, 104, 106, 290, 291, 293,
423, 553, 673
Johnston's Appeal 16 Morrison's Mining Reports, 556, 593
Johnston ▼. Keid 29 Gr. 293 265, 270
Jones, Doe d., v. Williams 6 A. & E. 297 217
Jones V. Berwicke L. R. 6 C. P. 32 343
V. Davies 6 H. & N. 779 218
V. Grand Trunk R. W. Co 16 A. R. 47 666
V. Housatonic R. W. Co 107 Mass. 261 661
V. Kearney 1 D. & W. 166 745
V. Smith 1 Ha 66 279
V.Williams 24 Beav. 62 279,429
Jordon ▼. Adams 9 C. B. N. S. 483 363
Judd V. Fargo 107 Mass. 261 661
▼. Green 46 L. J. Ch. 108 ; 33 L. T. N. S. 597. 291
Jumpson V. Pitchers 13 Sim. 238 216, 217
Digitized byVjOOQlC
2xii. GASES CITEI). [VOL.
N^MSs OF Gases Gitbd. Whxrk Rbpo&tsd. Page of Vol.
Kay V. Crook 3 Sm. & Giff. 407 336
V. Oxley L. R. 10 Q. B. 360 537
Keith V. Quincy Mutual Ina. Co 10AUen228 600
KeUock'B Case L. R. 3 Ch. 783 232, 233
KeUy V. Dunning ...., 39 N. J. Eq. 482 19
Kemp V. Halliday 6 B. & S. 723 465,469
Kennedy v. Freeman 15 A. K. 216 291
V. Oldham 16 0. R. 433 615
V. The Panama, &c., Co L. R. 2 Q. B. 680 615
Keflfer v. Keffer 27 C. P. 267 216
Kermott, Re 1 Chamb. Rep. 263 620
Kerr v. Baroness Clinton L. R. 8 £q. 462 365
Kidglll V. Moor 9 C. B. 364 137
King V. Keatin« 12 Gr. 29 116
King, The, v. The Inhabitants of Abuyat-
with 10 East 367 487
Kingsmill v. MiUer 16 Gr. 171 401, 404
Kinnairde v. TroUope 39 Ch. D. 636 743
Kinsman v. Rouse 17 Ch. D. 104 60
Kitchen v. Palmer 46 L. J. Ch. 611 712
ELite V. London Tramway Co London Times, January 30, 1890. . 737
Knight V. Medora , Re 14 A. R. 112 490
Kramer v. Waymark L. R. 1 Ex. 241 167
Kraus, Ex p 1 B. A C. 268 620
Kraxberyer v. Roiter 60 Am. Rep. 263 239
La Banque Jacques Cartier v. La Baaque
d'Epargne de Montreal 13 App. Gas. Ill 30
Lackington v. Combes 6 Bing. N. C. 71 662
Ladymanv. Grave L. R. 6 Ch. 763 544, 646
Lamb v. Brewster 4 Q. B. D. 220 208
▼. Young 19O.R.104 291,553
Lancey v. Merchants Bank 10 0. R. 169 291
Langley y, Hammond L. R. 3 Ex. 161 630, 537
Lansden t. McCarthy 46 Mo. 106 472
Lauman v. Nichols 16 Iowa 161 178
Laplante v. Scazien 8A.R. 667 484
Last V. London Assurance Corporation . . 10 App. Gas. 438 454
La TaiUeur v. South Eastern R. W. Co. . 3 C. P. D. 18 454
Lavin v. Lavin 27 Gr. 667 384
Law V. Hand-in-Hand Ina. Co 29 C. P. 1 253
Lawless, Ex p 2 P. & B. 620 467
▼. Sullivan 3 S. C. R. 117 467, 458
V. SuUivan 6 App. Gas. 373 ... .453, 464, 466, 457
Laurence v. Pulton 19 Gal. 684 484
Lawrie v. Rathbone 38 U. C. R. 265 490
Leak v. Driffield ; 24 Q. B. D. 98 746
Lee, Re 6 O. R. 683 616
Leech V. Leech 24 U. C. R. 321 48
Leeming V. Lady Murray 13 Ch. D. 123 674
LeMay v. Canadian Pacific R. W. Go. . . 18 O. R. 314 681
Leslie'^s Settlement Trusts, In re 2 Ch. D. 186 128
Lewis, Re 6 P. R. 236 620
Lewis V. Nobbs 8 Ch. D. 691 429
Linton V. Linton 15 Q. B. D. 239 261
Digitized byVjOOQlC
XIX] CASES CITED. xxiii.
Names of Casks Citbd. Whssb Reported. Page of Vol.
Littlev.Poole 9 B. A 0. 192 208
Load F.Green 15 M. & W. 216 651
LoflfosT.Maw 3Giflf.592 331
Logan V. Commeroial Union Ins. Co 13 S. C. R. 270 252, 498
London Mutual Ins. Co. ▼. City of Lon-
don 16 A. R, 629 466,456
Long V. Collier 4 Rusa 267 443
Longmeid v. Holliday 6 Ex. 761 287, 288
Londsdale v. Rigg 11 Ex. 654 ; 1 H. & N. 923 491
Lord V. Stephens 1 Y. & C. (Ex.) 222 162
Lord Braybroke v. luskip 8 Ves. 432 442
Lord Harberton v. Bennett Beatty's Reports (Ir. Ch.) 386 178
Lord Provost and Magistrates of Glas-
cow V. Farie 13 App. Cas, 657 694, 595
Lovell V. Hicks 2 Y. & C. Ex. 472 335
Lumaden's Case L. R. 4 Ch. 31 8
Lycettv. Stafford & Uttoxeter R. W. Co 13 Eq. 261 108, 110
Lyell V. Kennedy 14 App. Cas. 456 487
Lynch v. Knight 9 fl. L. C. 577 332
V. NuMin 1 Q. B. 29 721
Lyon V. Railway Passenger Ass. Co 46 Iowa 631 73
Lysaght v. Edwards 2 Ch. D. 499 134, 135
M.
Macaulay v. MarshaU 20 U. C. R. 278 562
V. Neville & Macaulay 5 P. R. 235 660
Macdonald v. Longbottom 1 Ell. & Ell. 977 518
Macfie V. Hutchinson, Re 12 P. R. 167 65, 493
Maclaren v. Stainton 27 L. J.Ch.442; 4 Jur.N. S.199.. 484
Macnamara v. Dillan L. R. 11 Ir. 29 362
Madden v. Hamilton Forging Co 18 O. R. 55 680
Maddison v. Ailderson 8 App. Cas. 467 331
Magdalen Hospital v. Knotts 4 App. Cas. 324 544
Magor V. Chadwick 11 A. & E. 586 17
Malott V. Mersea 9 O. R. 611 296
Manley V. Field 7 C. B. N. S. 96 660
Mannox v. Greener L. R. 14 Eq. 456 484, 487
Markham v. Stanford 14 C. B. N. S. 376 208
MarVs V. Corporation of Windsor 17 O. R. 719 168, 160
Marsden v. Moore 4 H. &N. 600 307
Mason V. Seney 11 Gr. 447 384
Mather V. Priestman 9Sim.352 310
Maughan v. Casci 5 O. R. 618 530
Maunsell v. White 4 H. L. C. 1039 333, .335
Maw V. TowDshipeof King and Albion. . 8 A. R. 248 657
May V. Standard Assurance Co 5 A. R. 619 498
Mayer v. Nias 1 Ring. 31 1 65 1 , 653
Mayor, &;c., of Liverpool v. Chesley
Water Works Co 2 DeG. M. & G. 862 629
Meenberg v. Great Western R. W. Co. . 14 App. Cas. 179 80
Melliss V. Thiriey Local Board 16Q.B.D.446 208
Mercer, Ex p. 1 7 Q. B. D . 290 423
Merivale r. Carson 20 Q. B. D. 275 477
Merrill v. Inhabitants of Hampden .... 26 Me. 234 726
Merritt v. Niagara Ins. Co 18 U.C.R. 529 262
V. Stephenson 6 Gr. 567;7Gr. 22 266, 270
Mersey Pocks and Harbour Board, The,
T. Lucas 8 App. Cas. 891 456
D — VOL. XIX. O.R
Digitized byVjOOQlC
Xxiv. GAJBES CITED. [YOU
Naubs of Casks Cited. Whisi Rsportsd. Page of VoL
Metcalfe v. Hutchinson 1 Ch. O. 691 366
Meyers v. Wonnacott, Re 33 U. C. R. 611 35
Meyrick V. Laws 9 Ch. 237 484
Michie and Corporation of Toronto, Re. . 11 C. P. 379 412
Mickle V. Bowslaagh (Not reported) 173
Miles V. Dnmford 2 DeG. M. & G. 641 431
MiUerv. MUler 29 Cent. L. J. 162 268, 336
v.Reid 100. R. 419 79
Millville Mutual and Fire Ins. Co. v.
Driscolk IIS.C.R. 183 498
Mills V. Jennings 13 Ch. D. 639 268
Mitchell V. Lancashire and Yorkshire R.
W. Go L. R. 10 Q. B. 266 374
MitcheU v. Richey 13 Or. 445 401, 403, 404
Moffatt V. Rees 15 U. C. R. 531 606
Moir, Re^Wamer v. Moir 25 Ch. D. 605 484
Mollwo, March & Co. v. Court of Wards L. R, 4 P. C. 419 92
Molson's Bank V. Halter 16 A. R. 323 290
Money v. Jordan 21 L. J. Ch. 531 335
Monro v. Taylor 8 Ha. 61. 3 MacN. & G. 713 443
Montacute v Maxwell IP. Wms. 618 332
Montefieri v. Montefieri 1 Wm. BL 362 333, 334
Mooney v. Smith 17 0. R. 644 117
Moore, In re—McAlpine v. Moore 21 Ch. D. 778 1, 2, 5, 6
Moore v. Jackson 16 A. R. 431 744
Moorhouse v. Colvin 16 Beav. 341 335
Mordaunt v. Moncreiffe 43 L. J. P. & M. 49 336
Morgan v. Abergavenny 8 C. B. 768 490, 491
V. Hutchins 6 Times L. R. 214 82, 733, 737
V. Steele L. R. 7 Q. B. 611 332
Morris v. Edgington 3 Taunt. 31 531, 532
Morrison v. Belcher 3 F. & F. 614 477
V. Harmer 3Bing. N. C. 759 ^ 477
V.Robinson 19 Gr. 480 " 174
Mortlock V. BuUer 10 Ves. 316 304
Mostyn v. Lancaster 23 Ch. D. 683 129
Moulton V. Robinson 27 N. H. (7 Foster) 560 484
Muir V. Carter 16 S. C. R. 473 282
Mulliner v. Florence 3 Q. B. D. 484 189
Munnsv. Isle of Wight R. W. Co L. R. 6 Ch. 414 110,111
Mutual Life Assurance v. Langley 32 Ch. D. 460 174
Murphey v. Caralli 3 H. A C. 462 287
Murphy v. Halpin Ir. R. 8 C. L. 127 477
V. Phillips 36 L. J. N. S. 477 678, 580, 682
Murray v. Dawson 17 C. P. 588 585, 588, 689
V. 19C.P.314 17
Mc.
McCaUv. McDonald 13 S. C. R. 247 176
McOlung V. McCracken 3 0. R. 696 515
McConneU v. WUkins 13 A. R. 438 89
McCoy V. Anderson 47 Mich. 502 460
McCrea v. Waterloo Mutual Ins. Co 1 A. R. 218 262
McDonald V. Murray 2 O. R. 573 307, 310
V. 11 A. R. 101 304
McDougalland Lobo, Re 21 U. C. R. 80 56
McEvoy T. Clune 21 Gr. 616 418, 419, 420
V. Waterford Steamship Co. . . . 18 Ir. C. L. R. 159 733
Digitized byVjOOQlC
XIX.] CASES CITED. XXV.
Namss or Gasxs Cited. Whebb Rbpobtbd. Page of Vol.
McGibbon ▼. Northern R. W. Co 14 A. R. 91 681
McGiffen v. Palmer 10 Q. B. D. 6 82
McGilUvray v. MiUen 27 U. C. R. 62 17
McGregor V. La Rnsh 30 U. C. R. 299 216, 217
McGuin V. Fretts 13 O. R. 699 304
Mclntyre ▼. East Williama Ins. Co 18 O. R. 79 253
McKenney v. Amer 8 C. P. 46 48, 49
McKtfraie t. McLean 6 O. R. 428 660
McKonov. Wood 6 C. & P. 1 42, 43,44
McLanren v. Brewer 61 Maine 402 301
▼. Canada Central R. W. Co. . 32 C. P. 324 733
McLeish ▼. Howard 3 A. R. 603 22
McLeUan v. McEinnon 1 O. R. 219 696
McLeod V. Dnimmond 14 Ves. 353, 17 Ves. 162 431
McMillan v. Grand Trunk R. W. Co. ... 16 A. R. 14 376, 378, 379
McMuUen ▼. Raflferty 89 N. Y. R. 456 606
McNabb v. Oppenheimer 11 P. R. 214 618
McQaade v. Dixon 14 Ct of Sess. Cases 4th series, 1039 82
McQueen ▼. Phoenix Insurance Co 4 S. C. R. 660 262
N.
Nagle V. Latour 27 C. P. 137 241
Nanty-Glov. Tamplin 36 L T. N. S. 126 291
Naylor v. Amitt 1 Russ. & My. 601 130
Neville v. Wilkinson 1 Bev. C. C. 643 333
NeweU v. Radford L. R. 3 C. P. 62 614, 618
Newsome v. Coles 2 Campbell 617 97
Newton v. Manning 1 M. N. & G. 362 399
New York Life Insurance Co. V. Styles.. 61 L. T. N. S. 201 464
Nichols V. Watson 23 Gr. 606 742
Nickle V. Doughw 35 U. C. R. 126,37 U. C R. 51 .. 456
Niven ▼. Belknap 2 Johns (N. Y.) 672 216
Nixon, Re 13 P. R. 314 712
Noad V. Provincial Insurance Co 18 U. C. R. 684 252
Northcote, R« 18 O. R. 107 366
Gates V. Supreme Court of Foresters 4 O. R. 636 303
Oberlin v. McGregor 26 C. P. 460 486
O'Bymev. CampbeU 15 O. R. 339 586,688,689
O'Deav. Hickman 18 L. R. Ir. 238 25
Ogden V. Lancashire 15 W. R. 158 560
Ogilvie V. Jea£&e8on , 2 Giff. 353 291
0%[*re V. McCormick 30 U. C. R. 567 544
OUiver v. King 8D. M. & G. 110 .. 183
O'Shea v. CShea 15 P. D. 59 698
Oswego Starch Factory v, Lendrum 67 Iowa 673 661
Outram V. Maude 17Ch.D.391 544
Pack V. Hayward 6 Times L. R. 233 82
Paley v. Gamett 16 Q. B. D. 52 80, 732
Palmer V. Minar 16 N. Y. Sup. Ct. 342 208
Palmer, Deed., V. Eyre 17 Q. B. 366 217,227,228,229
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JCXVi. OASES CITED. [VOL.
Names ot Casks CmtD. Whebb Rkpobtxd. Page of VoL
Panama, &c.. Royal MaU Co., In re .... L. R. 5 Ch. 318 504,505,606
Parfitt V. Lawless L. R. 2 P. & D. 462 156
Parisv.Levy 9 C. B. N. S. 342 477
Parker,Exp. 2 M. D. & D. 511 451
Parker, Re 9 P. R. 332 614
Parker v. Clarke 30 Beav. 64 291
Parkin v. Carruthers 3 Esp. 248 102
Parkinson V. Hanbury 2H. L. Cas. 1 60
Parr, Re 11 P. R. 301 401,405
Parry v, Wright 1 Sim. & Sta. 379 673
Parsons v. Queen Ins. Co 2 O. R. 45 498
V. Queen Ins. Co 43 U. C. R. 271 252.265
V. Standard Ins. Co 43 U. 0. R, 603 ; 4 A. R. 326; 5 S.
C. R.233 255
Paton V. Rogers 6 Madd. 256 304, 308
Patterson \r. Bowes 4 Gr. 170 629
Pearson y. Cox 2 C. P. D. 369 733
V. Spencer 3 B. & S. 761. .526, 527, 628, 530
534, 535, 541
Peck and Corporation of Gait 46U.C.R. 211 596
Pegram V. Dixon 55 L. J. Q. B. 447 82
Pennellv. DeffeU 4D.M.&G.372 278
Pennyman v. McGrogan 18 C. P. 132 366
People V. Harding 53 Mich. 481 343
People's Loan Ac. Co. ▼. Bacon 27 Gr. 294 162
Peoria Sugar Co. v. Canada Fire and
Marine Lis. Co 12 A. R. 418 498
Perry, Doe, v. Henderson 3 U. C. R. 486 216
Peterborough Investment Co. v. Patterson 13 O. R. 142 ; 15 A. R. 751 363
Peto V. The Welland R. W. Co 9Gr. 455 608
Phelp's Settlement Trusts, Re 53 L. T. N. S. 27 6, 6
Pheysey v. Vicary 16 M. & W. 484 532
Phaiips V. Mullins L. R. 7 Ch. 244 392, 393
Pickering's claim L. R. 6 Ch. 525 314
Pilcher v. Rawlins L. R. 7 Ch. 259 430
PiUings Trusts, In re 26 Ch. D. 432 712
Pipon V. Pipon Ambl. 25 399
Pippin V. Sheppard 11 Price 400 288
Poldenv. Bastard L. R. 1 Q. B. 156.. . .627, 528, 630,
637,638
Pooley V. Driver 6 Ch. D. 469 89
V. Harradine 7 E. & B. 431 178, 179, 181
V. Hicks 6 Times L. R. 353 82
Portman v. Patterson 21 U. C. R. 237 490
Postlethwaite v. Parks 3 Burr. 1878 660
Pottruff V. Tweedle Not reported 66
Poulson V. Hirst L. R. 2 C. P. 449 27
Powell V. Baker 13 C. P. 194 291
Praed V. Graham 24 Q. B. D. 63 167
Pratt V. Page 32 Vt. 13 100
V.Stratford 14 O. R. 260 ; 16 A. R. 6 296
Preston v. Foellinger 24 Fed. Rep. 680 100
V. Preston 2 Jur. N. S. 1040 366
Pritchard v. Lang 6 Times L. R. 639 82, 738
Pulsford V. Richards 17 Bear. 87 336
Putman v. The Township of Fife Lake. . 46 Mich. 125 460
Pyer T.Carter IH. &N. 916 634,636
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XIX.] CASES dlED. XXVii.
Naus ov Cases Cina Where Repobted. Page of VoL
Qaeen, The, v. Herf ord 3 £L & EL 115 36,38-
▼. The Judge of the County
Court of Lmcohuhire 20Q.RD.167 493
R.
Babbeth V. Squire 19 Beay. 70 ; 4 D. & J. 406 487
Radcliffe, Re 29 W. R. 420 32
Raev. Geddes 3Ch. Ch. 404 163
V. Geddes 18Gr. 217 712
V. McDonald 13 O. R. 352 290, 291
Rawston v. Taylor 11 Exch. 369 19
Real Estate Investment Co. ▼. Metropoli-
tan Building Society 3 O. R. 476 291
Reddan,Re 120. R. 781 710,712
Redgrave v. Hurd 20 Ch. D. 1 333
Reginav. Andrews 12 O. R. 184 356
V. Baby 12U.C.K346 357
V. Bachelor 15 O. R. 641 490
V. Bateman 1 Coz. 186 322
V. Beemer 16 O. R. 266 698, 700
V.Bell 13 C. L. J. N. S. 200 667,668
V. Bennett 3 O. R. 45 696
v.Booth 12 Cox. C. C. 231 716
V. Bradlaugh 16 Cox. 166 343
V. Brady 12 O. R. 358 198
V. CantiUon 19 O. R. 197 694
V. Charlesworth 9 Cox. 44 343
V. CommiflsionerB of Sewers for
Norfolk 16Q.R549 56,66
V. Dunning 14 O. R. 62 696
V. EUiott 120. R. 624 694
V. Fee 13 0. R. 590 698
V.Ferris 18 O. R. 476 694
v.Flory 17 O. R 716 694
V. Grant 18 O. R. 169 694
v.GraveUe 10 0. R. 736 667
V. Higgins 18 0. R. 148 198. 694
V. Hoggan Times, Nov. 4^ 1880, (Odger's, 2nd
ed.597) 346,348
V. John Mowat 3 C. R 228 23
V. Jones 2 Camp. 131 356
V. Labouchere 14 Cox. 419 343
V.Lake 7 P. R. 216 696
V.Logan 16 O. R. 336 698
V. Lonsdale 4 F. & F. 58 344
V. Lynch 1 2 O. R. 372 602 , 694
V. Mackenzie 6 O. R. 166 667, 668
• v.Magrath 26 U. C. R. 386 716
V. McLean (Not reported) 344,346
V.Mercer 17 U. C. R. 602 666^
V. Martin 5 Q. R D. 34 325
V.Morton 19 C. P. 1 620
v.Moylan 19 U. C. R. 621 348
V.Newman IE. &B. 668 343, 348
V. Organ 11P.R.479 667
v. Patteson 36U.C. R.129 343-
Digitized byVjOOQlC
XXViii. CASES CITED. [VOL.
Names of Casiss Gitkd. Where Reporctd. Page of VoL
Regina v. Prince L. R. 2 C. C. R. 164 716
V. Purchase 1 Car. & M. 617 344
V. Rea » Cox 401 343, 345, 346, 348
V. Ritson L. R. 1 C. C. R. 200 319, 323
V. Roe 16 O. R. 1 602
V. Smith 30 U. C. R. 218 366
V. Spain 18 O. R. 683 667
V. Stubbs 7CoxC.C.48 356
V. Sutton 42 U. C. R. 220 696
V. The Clerk of the Peace of West
Yorkshire 20 L. J. M. C. 18 56
V. The Commissioners of the Port
of Southhampton L. R. 4 H. L. 449 465
V. The Local Government Board. 10 Q. B. D. 309 36
V. Tubbee 1 P. R. 98 620
V. Walker 7 O. R. 186 667, 668
V. Webster 16 O. R. 187 698
V. Wilkinson 42U. C. II. 605 348
V. Wilson 2C. &K. 527 322
V. Wright 14 O. R. 668 199, 200, 201
Reid V. Miller 24 U. C. R. 610 712
Reuss V. Picksley L. R. 1 Ex. 342 514
Rex V. Elwell 2 Ld. Kaym. 1514 696
V. Hevey 1 Leach 229 325
V. HorweU R. & M. C. C. 406 326
V. Inhabitante of Dursly 3 B. & A. 465 419
V. Mason 2 T. R. 581 343
V. Minter Hart 7 C & P. 652 322
V. Story R. & R. C. C. 81 325
V. Vandercombe and Abbott 2 Leach C. C. (4th ed.) 708 717
Eleynolds v. Reynolds 3 Allen 605 336
Rhodes v. Railway Passenger Ins. Co. . . 5 Lansing (N. Y.) 71 73
Richard v. StiUwell 8 O. R. 511 516, 521
Richards v. Warring 1 Keys 576 606
Richardson v. Board of Commissioners of
Toronto, Re 38 U. C. R. 621 412
Richardson v. Jenkin 10 P. R. 294 307
V. Silvester L. R. 9 Q. B. 34 335
Ridgway v. Woodhouse 7 Beav, 437 484
Rigby V. Connol 14 Ch. D. 482 749
Ringland v. Corporation of Toronto 23 C. P. 93 726
Rist V. Faux 4 B. & S. 409 . .668, 660, 561, 662, 663
River SUve Co. v. Sill 120. R. 557 105, 290
Roberta v. Roberts IP. Wms. 66 332
Robertson v. Holland 16 O. R. 532 423
v. Patterson 10 O. K. 267 130
Robins v. Victoria Mutual Ins. Co 31 C. P. 562 ; 6 A. R. 427 498
Robinson v. Robinson 1 Burr 38 ; 2 Ves. Sr 226 362
Robson v. Drummond 2 B. & Ad. 303 472
Roddy V. Fitzgerald 6 H. L. 823 362
Roe d. Thong v. Bedford 4 M. & S. 362 362
Rogers v. Bamum 5 O. R. 261 50
Rolfe v. Flower L. R. 1 P. C. 27 451
Rosenberger v. Grand Trunk R. W. Co. 8 A. R. 482 ; 9 S. C. R. 311 .... 166
Ross v. Stevenson 7 P. R. 126 265, 270
Rossiter v. Miller 3 App. Cas. 1147 520
Rounds V. Corporation of Stratford 26 0. P. 11 667
Royal Canadian Bank, The, v. Payne . . 19 Gr. 180 173, 174, 178
Royal Mail Steam Packet Co. v. English
Bank of Rio de Janeiro 19 Q. B. D. 362 465
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XIX.] OASES CITED. Xxix.
Nahks of Casks Cited. Where Reported. Page of Vol.
Riidd ▼.Bell 13 O. R. 61 79
Rumsey v. North Eastern R. W. Co. . . . 14 C. B. N. S. 641 208
BusseU V. East Anglian R. W. Co 3 M. & G. 125 602, 504
V. Romanes 3 A. R. 635 304
V. Town and County Bank 13 App. Cas. 421 468
Ryckman v. Canada Life Assarance Co. 17 Gr. 660 291
Rylands v. Fletcher L. R. 3 H. L. 330 41
SaUabnry v. Hatcher 2 Y. C. C. 54 310
Samuell v. Howarth 3 Mer. 272 177
Sandford v. McLean 3 Paige 120 673
y. Porter 16 A. R. 566 30
Sari V. Bourdillon 1 C. B. N. S. 188 514
Sawyer v. Casualty Co 8 Law Rec. N. S. (Mass.) 233. ... 73
Saver v. Hatton 1 Cab. & E. 492 733
Scarf V. Jardine 7 App. Cas. 345 97, 99, 462
Schnell v. Tyrrell 7 Sim. 86 484
Schrapnell's Case Findlay on Companies, 210 9
Schuster v. Fletcher 3 Q. B. D. 418 468
SchuylkUl ▼. Moore 2 Wh. 477 695
Scott V. Bentley 1 K. & J. 281 401
V. Burgess . . . . v 19 U. C. R. 28 ; 21 C. P. 398 66
Scroggins v. Scroggins 3 Dev. (N. C.) 535 336
Selkrig v. Davies 2 Rose 97 401
Selmes y. Judge L. R. 6 Q. B. 727 25
Seney v. Porter 12 Gr. 546 742, 746
Shadwell v. Hutchinson 4 C. & P. 333 138
Shanagan y. Shanagan 7 0. R. 209 384
Shannon v. Gore Ins. Co 2 A. R. 396 498
Shaw's Trusts, In re L. R. 12 Eq. 124 129, 130
Shaw V. Fo8t«r L. K. 5 H. L. 321 135
Sheard v. Laird 15 0. R. 533 385
Sheehy v. Lord Muskerry 1 H. L. Cas. 676 128, 129
Sheldon v. Sheldon 22 U. C. R. 621 384
Sheley v. The Corporation of Windsor . . 23 U. C. R. 569 411
Shepherd v. Bristol and Exeter R. W. Co L. R. 3 Ex. 189 376
Shepherdson v. McCuUough 46 U. C. R. 573 530
Siddall V. Gibson 17 U. C. R. 98 490
Sideboth im v. Barrington 4 Beav. 110 304, 310
Sill V. Worswick 1 H. Bl. 690 399
Simpson v. The Ottawa and Prescott R.
W. Co 1 Ch. Ch. 126 507
Skae V. Chapman 21 Gr. 534 60
Skilbeck v. Porter 14 U. C. R. 430 604, 606
Skinner's Trusts, In re 2 W. R, 130 2
Slater v. Canada Central R. W. Co 26 Gr. 363 108. 109
andWells,Re 9 U. C. L. J. 21 668
Slator V. Nolan Ir. R. 11 Eq. 386 394
Slattery v. Dublin, Wicklow, &c., R.W.
Co 3App. Cas. 1165 733
Small V. Eccles 12 Gr. 37 30
Smith V. Baker 6 Times L. R. 618 82
V. Chad wick 20 Ch. D. 44 333
V. Chadwick 9 App. Cas. 187 332. 334
V. City of Londonlns. Co 11 O. R. 38 498
V. City of London Lis. Co 14 A. R. 328 ; 15 S. C. R 69 263
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XXX. CASES CITED. [VOL^
Names or Cases Giteix Where Rsposted. Page of VoL
v.Dinsmoor 119 HI. 666 671,673
V. Drew 25 6r 188 676
V. Fraught 46 U. C. R. 484 965,966
V. Harrison 5 Times L. R, 406 82
V. Kenricke 7 C. B. 566 19
▼. Smith 80. R. 677 ..364,365-
V. The Overseen of SeghiU L, R. 10 Q. B. 422 486
V. The Port Dover, Ac., R. W. Co. 12 A- R. 288 604
V.Toronto 11C.P.200 296
Smyth V. Leavens 3 U. C. R. 411 438-
SoUory v. Leaver L. R. 9 Eq . 26 269
Sorenson v. Smart 9 O. R. 640 669
Southard V. Rexford 6 Cow. (N. Y.) 264 239-
Sparhawk v. Union Passenger R. W. Co. 64 Penn. 401 634
Spicer v. Cooper 1 Q. B. 424 618
Spill V. Maule L. R. 4 Ex. 232 642
Standard Bank v. Durham & Park 14 0. R. 67 102
St. Catharines and Niagara Central R. W.
Co. and Barbeau, Re 16 0. R. 683 608
Stewart V. Eddowerf L. R. 9 C. P. 311 514
Stickney v. Niagara District Ins. Co 23 C. P. 372 498
Stileman v. Campbell 13 Or. 464 403
Stoddart v. WUson 16 O. R. 17 106
Stonehouse V. Enniskillen 32 U. C. R. 662 296
Strauss v. Francis 4 F. & F. 939 481
Sullivan v. Robinson 1 P. & B. 431 467
V. Sullivan 2 Hagg. Con. 238
Svensden V. WalUce 13 Q. B. D. 69 466,467
Sweet V. Piatt 12 O. R. 229 366
Swiney v. The Enniskillen R. W. Co . . . 2 Jr. Rep. C. L. 338 603, 609
Symonds v. Hallett 24 Ch. D. 346 41
Tait, Burch k Co. v. Kenney 16 A. R. 276 185
Tanner v. Sewery 27 C. P. 63 241
Taylor.Re 8 P. R. 207 61
Taylor V. Griswold 2 Greene Ch. R (N. J.) 239, 673
Tennant v. Howatson 13 App. Cas. 489 490
Thomas v. Owen 20 Q. B. D. 231 628, 637
V. Quartermaine 17 Q.B.D. 414 ; 18 Q.B.D. 685. . 79. 736
V. Winchester N. Y. Ct of App. (July, 1882). ... 287
Thompson v. Ross 6 H. &;N. 16 668, 660, 561, 663
V. Torrance 28 Gr. 253 ; 9 A. R. 1 161, 163
V.Wilkes. 6Gr.594 599
V.Stephens 2 Moo. & Rob. 45 478
Thong, Roe d. v. Bedford 4 M. & S. 362 362
Thome V. Williams 13 O. R. 577 133,304
Thomhillv. HaU 2CL&F.22 366
Thurssell v. Handyside 20 Q. B. D. 359 80
TiUv. TiU 15 0. R. 133 41
Timson, Re L. R. 5 Ex. 267 621
TinniBwood v. Pattison 3 C. B. 243 490
Toddv.Dun 15 A. R. 85 642,645
Tokerv. Toker 31 Beav. 629 386, 39a
Tomlinv.Budd L. R. 18 Eo. 368 443
Toogood V. Spyring 1 C. M. & R. 181 645
Torrance v. The Bank of British North
America L. R. 6 P. C. 246 178
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XIXj GASES CITED. XXxi.
Names ow Cases Cited. Where Repobted. Page of Vol.
Totten ▼. Douglas 18 6r. 341 291
Toolminv. Steere 3 Mer. 210 672,674
Town of Portland v. Griffiths 11 a C. R. 333 725, 726
Traill T.Bnll 22 L. J. Oh. 1082 711
Trainor v. Holoombe 7 U. C. R. 648 490
Trotter T. Watson L.R.4G.P.434 134
Tmst and Loan Co., The, ▼. Cnthhert. . 13 Or. 412 671, 676
▼. Drennan.. 16 C. P. 321 683
Tmitees, The, ftc y. Short 13 App. Cas. 793 213
Turner T. Hancock 20 CL D. 303 30
T. Tnmer Amb. 782 . . 269
Tnson T. Evans 12 A. & E. 733 646
Twin lidt Oil Co. T. Marbnrg 91 U. S. 687 116,118
Tylee ▼. The Qneen 7 S. C. R. 683 118
Udyv. Stewart 100. R. 602 167
United States t. Union Pacific R. W. Co. 98 U. S. 669 629
Vallanoe V. Savage 7 BIng. 696 136
Vance v. Commings 13 Gr. 26 676
Vanev.Rigden L. R. 5 Ch. 663 431
Vandecar v. East Oxford 3 A. R. 131 296
Yandenbnrgh v. Spencer L. R. 1 Ex. 316 614, 616, 618
Vara V. Grand Trunk R. W. Co 23 C. P. 143 666
Vealv.Veal 27 Beav. 303 160
Venning V. Steadman 9 S. C. R. 234 25
Vickers v. Hand 26 Beav. 630 162
Victoria Mntnal Fire Ins. Co. ▼. Thomp-
son 32C. P. 476, 9A.R.620 419
Vine V. Sanndera 4 Bins. N. C. 96 42, 46
Vineberg ▼. Grand Trunk R. W. Co 13 A. R. 93 379
W.
Wadev.Keefe 22 L. R. Ir. 164 660
V. Sutton 18C. B. 371 336
Wakefield V. McKay 1 Phillim 134 332, 337
Wakelin v. London and South- Western
R.W.CO 12App.Cas.41 733
Walcot v. Botfield Kay 634, 1 8 Jur. 670 484
Walker V. Hirsch 27 Ch. D. 460 92
V. Rogers 12 C. P. 327 440
Wallv. Bright IJaa A W. 494 134, 136
Wallerv.Loch 7 Q. B. D. 619 643
Walmsley v. Gerard 29 Beav. 321 484
WaUh V.Lonsdale 21 Ch. D. 9 130
Walsh V. Whitley 21 Q. B. D. 371 79,683,733,736
Walters V. The People 18 IlL 199 ; 21 HL 178 484
Walthew ▼. Mavrojani L. R. 6 Ex. 126 466
Walton v.MascaU 13M.&W.462 606
Ward V. The Royal Exchange Shipping
Co. 68 L. T. N. S. 174 603
Warden V. Jones 23 Beav. 487; 2 DeG. &J. 73 .... 632
Water. Regent's Canal Co. 3 DeG. & J. 212 629
B — ^VOL. XIX. 0.K
Digitized byVjOOQlC
XXXii. CASES CITED. [VOL.
Names of Cases Cited. Where Repobted. Page of VoL
Warning v. Ward 7 Ves. 337 745, 60O
Warner, Re 1 U. C. L. J. N. S. 16 619
Warner v. Jacob 20 Ch. D. 220 60
Y. Wellington 3 Drew 523 614, 520
Warnock V. Kloepfer 14 0. R 288 ; 15 A. R. 324 105
Warren v. Warren 1 C. M. & R. 250 641, 642, 645
WatkinB v. Cheek. . . ; 2 Sim. & Stu. 199 431
Waters v. Donnelly 9 0. R. 391 385, 394
Watson V, Dowser 28 Gr. 478 (>73
Watts, In re— Smith v. Watts 22 Ch. D. 5 270
Watts V. Kelson L. R. 6 Ch. 166 530, 537
V. Symes 1 DeG. M. & G. 244 674
Waugh V. Morris L. R 8 Q. B. 202 206
Weaver v. Lloyd 1 C. & P. 296 477
Weblin V. Ballard 17 Q. B. D. 122 736
Webster v, Ha^-L,'a^t 9 0. R. 27 241
Weldon V. Doliathe 14 Q. B. D. 339 41
WeUei, Re 16 O. R 318 366
Wells V. Lindop 14 0. R, 275 642
V.Maxwell 32 Beav. 552 161,163
Werle & Co. v. Colquhoun 20 Q. B. D. 753 454, 455
West V. Corporation of Parkdale 12 App. Cas, 602 133, 137, 139
Western Assurance Co. v. Doull 12 S. C. R. 446 498
Western Bank of Canada v. Greey 12 0. R. 76, 77 137
Western Canada Loan Co., The, v.
Garrison 16 O. R. 81 216
Western Fair Association v. Hutchison, Re 12 P. R 40 65
Westfall V. Hintze 7 Abb. N. Cas. 236 673
Wharton v. Lewis 1 C. & P. 529 335
Wheat V. Kendall 6 New Hamp. 504 178
Wheatley v. Silkstone and Haigh Moor
Coal Co 29 Ch. D. 715 503, 506
Wheeldon v. Burrows 12 Ch. D. 31 638, 540
Wheelhouse v. Darch 28 C. P. 269 287
White, Re 22 Gr. 547 ; 24 Gr. 224 385
White & Co. V. Churchyard 3 Times L. R. 428 92
Whiteley v. Adams 15 C. B. N. S. 392 644
Wiardv. Gable 8 Gr. 458 30
Widdifield v. Simons 1 O. R. 483 384
Wier V. Still 31 Iowa 107 336
Wightman v. Helliwell 13 Gr. 343 30
Wigle V. Merrick 8 C. P. 307 62
Wilbur V. Almy 12 How. 180 429
Wilcocks V, Howell 6 O. R. 360 642
Wilde V. Wilde 20 Gr. 634 426
Wilkes V. Gzowski 13 U. C. R. 308 138
V. Hungerford Market Co 2 Bing. N. C. 281 137, 138
Williams v. Byrnes 1 Moo. P. C. N. S. 154 516, 520
V. Colonial Bank 38 Ch. D. 399 277
V. Jordan 6 Ch. D. 517 614, 616, 520
V. Lake 2 Ell. & EU. 349 520
Wilmot V. Jarvis 12 U. 0. R. 641 680
V. Stalker 2 O. R. 78 616
Wilmott V. Barber 16 Ch. D. 96 214, 217
V. London Celluloid Co 34 Ch. D. 147 503
WiUon V. Kyle 28 Gr. 104 291
V. Richardson 43 U. C. R. 366 241
V. Middlesex 18 U. C. R. 348 296, 298
Wing ▼. Tottenham, &c.,R. W. Co L. R. 8 Ch. 740 108,109
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XrK.] GASES CITED. XXxiii.
Xambs of Casks Citkd. Whirs Rkportxd. Page of Vol.
Winahip v. Hadspeth 10 Ex. 5 544
Wi Stanley, Re 6 O. R, 316 366
\V ston V. Tribe L. R. 9 Eq. 44 392
W V, McAlpine 1 O. R. 234 661
V. Patteson 10 Beav. 541 129, 130
V. Sealy 32 N. Y. 105 216
V. Wood 19 W. R. 1049 41
Woolley, Crump d. v. Norwood 7 Taunt 362 36^
Worthington v. Gimaon 2 El & El. 618 634
Wright V. Hunter 1 L J. 0. S (K.B.) 248 662
V. Leys 8 0. R. 88 291,430
V. Woodgate 2 C. M. & R. 573 644
Wyatt V. The Rosherville Gardens Co. . 2 Times L. R. 282 42
Wylson V. Dunn 34 Ch. D. 677 304, 311, 312
Wyman v. Carter L. R. 12 Eq. 309 443
Wynn v. Williams 5 Ves. 130 260
Y.
Yarmouth v. France 19 Q. B. D. 647 80, 732
Y'eolands Consols, In re— White's Case . . 1 Megone's Co. 's Cases 39; 58 L.T.
N.S.922 8
York & North Midland R. W. Co. v.
Hudson 16 Beav. 48 1 14
Young V. Holmes 1 Str. 70 711
V. Morgan 89 lU. 199 671
V. Wilson 21 Gr. 144, 611 630
Younghusband v. Gisbome 1 DeG. & Sm. 209 26o
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Digitized by VjOOQIC
MEM0BANDX7M.
On the 1st of October, A.D. 1890, Richabd Martin
Meredith, of Osgoode Hall, Barrister-at-Law, was ap-
pointed a Judge of the Supreme Court of Judicature for
Ontario.
On the same day, The Honourable Richard Martin
Meredith was appointed a Justice of the High Court of
Justice for Ontario.
On the same day, The Honourable Bichard Martin
Meredith, was appointed a member of the Chancery
Division of the High Court of Justice of Ontario.
Digitized by VjOOQIC
ERRATA.
Page 113. Line 4 of head lines, for «*R. S. O. ch. 129," read "R. 3. C.
ch. 129."
" 169. Line 16 of head note, for "272," read "276."
** 204. Last line of head note, for "waiver," read ** waive."
'* 409. Last line ol head note, for "refuse," read *< refused."
" 430. Line 13 from top, for "4 Gr. 494," read "4 Gr. 394."
« 484. Line 12 from bottom, for "9 Ch. 237," read "L. R. 9 Ch. 237.*'
" 672. First line of head note, for " A plaintiflf," read "The plaintitt"
Digitized by VjOOQIC
REPORTS OF CASES
Drasm in THK
QUEEN'S BENCH. CHANCERY, AKD COMMON
PLEAS" DIVISIONS.
HIGH COURT OF JUSTICE FOR OKTARIO-
[CHANCERY DIVISION.]
Ke Bush.
E±eevior8 catd adminulraion^Sfmoval of execuior^Trustee Act, 1850.
An execntor cannot be removed from his position, where anything remains
to be done appertaining to his office, even although ttie will provitlesfor
his continuance as a trustee thereunder alter his duties as executor
have ceased, and he has acted as tiu&tee by investing pait of the tiust
moneys.
In re JIvore, Mc Alpine ▼. Moore^ 21 Ch. D. 778, distingmshed.
This was an application by petition hy George McKeand statement
and others interested under the will of Thomas Bush, de-
ceased, for the removal of one Robert Dowd Kennedy, an
executor and trustee under snid will, who had left the
Province of Ontario for parts unknown, and the appoint-
ment of one William J. Robinson in his place and stead.
The testator's estate had all been proi)erly administered
and wound up with the exception of an investment of a
sum of $5,000 on mortgage securities, in the manner and
for the purpose of applying the interest thereof as directed
by the will [.set out in the judgment]. $.3,500 of that
amount bad been so invested, but $1,500 of bank stock
belonging to the testator, had to be realized for the pur-
1 — VOL XIX. O.R
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^ THE ONTARIO REPORTS. [VOU
Stotement. pose of investment in the same manner to complete the
$5,000, and for that purpose the appointment of another
executor and trustee was asked.
The petition was argued on February 5th» 1890, before
Robertson, J.
J. M. Clark, for the petitioner.*
This executor-trustee should be removed. [Robertson,
J. — You cannot remove him as an executor.] No, so I ask
to have him removed as a trustee, as it appears by the
authorities that is all I am entitled to. The will directs
the investment in mortgages of $5,000 and the payment of
ther interest $3,500 of that has been properly invested in
the name of the two executors, of whom Robert Dowd
Kennedy is one and he cannot be found. $1,500 was left
by the testator in bank stock, and it is desired to realize
this and invest it as directed by the will, which cannot be
done without the appointment of a new trustee for the
purpose. [RoBERFSON, J. — ^That $1,500 is personalty, and
is not administered yet] A trustee can be appointed to
perform the duties of an executor : In re Moore, Mc Alpine
V. Moore, 21 Ch. D. 778. The Court has power to appoint
a new trustee, if the trustee is residing abroad : In re Big-
noil SeUlement Trusts, L. R 7 Ch. 223. A trustee and
executor can be removed as a trustee ; In re Skinner's
Trusts,2 W. R 130 ; In re Harrison's Trusts, 22, L. J.,
(Chy.) N. S. 69.
February 8, 1890. RoBEBTSON, J. :—
The late Mr. Thomas Bush, who died in February, 1887,
by his will dated in 1881, appointed Kenneth Dingwall,
Robert Dowd Kennedy, and Thomas Orton, to be the
executors and trustees thereof ; and he directed that his
*Sabstitatioiial service had been niAde by order and no one shewed
caose.— Rbp.
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2IX.J RE BUSH. 3
executors should convert all his estate, real and personal of Judgment.
whatever kind, and wheresoever situate into money, and Robertson, J.
out of the same to pay his debts, testamentary and funeral
expenses ; and inter alia he made the following bequest :
To his daughter Susannah McKeand, duiing her natural
life, and after her death, to her husband, George McKeand,
-during his natural life, should he survive her, the interest
arising from $5,000, which he directed his " trustees" to
invest in mortgages on real estate, during the lives of the
said Susannah McEeand and George McEeand, and the
survivor of them, and to pay the interest thereof to the
said Susannah McKeand during her life, and after her
<leath to the said George McKeand during his natural life,
should he survive her, as and when the same becomes due
.and is paid ; and after their death, the said sum of 35,000
to his daughter Ann Orton ; and if she should predecease
them, then to her children surviving the said Susannah
McEeand and George McKeand in equal shares.
The executor, Kenneth Dingwall and the daughter Sus-
annah McKeand, both predeceased the testator ; and pro-
bate of the will was duly granted to the other executors,
Thomas Oiiion and Robert Dowd Kennedy, who have paid
all the debts, testamentary and funeral expenses, and the
legacies contained in his will, other than the said bequest
of $5,000 ; but in or about the month of January, 1889,
the said Robert Dowd Kennedy departed from the city
of Hamilton to parts unknown and has not since been
heard of, although careful and diligent enquiry to ascer-
tain his whereabouts have been made, and it is believed by
the petitioners, that he has left the Province of Ontario.
Prior to the departure of Kennedy, he and his co-execu-
tor, Orton, invested $3,500 of the said $5,000 in mortgage
on real estate; and the remaining $1,500 is invested in Bank
of Hamilton stock, where it was at the testator's death,
awaiting an investment in a mortgage on real estate, and
which the executor Orton cannot at present invest as
•directed by the will, as it is alleged, owing to his co-execu-
tor having departed as aforesaid.
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4 THE ONTARIO REPOETS. [VOL.
Judgment The foregoing facts were set forth in a petition to this.
Robertaon, J. Court by the said George McKeand and Ann Orton,
Laura Robinson, (n^e Orton) wife of William J. Robinson,
Thomas Orton, the executor, and Henry G. Orton, all
parties interested under the will; and they pray that an
order may be made removing the said Robert Dowd
Kennedy from the executorship and trusteeship, and sub-
stituting for him William J. Robinson, the husband of one
of the petitioners, so that the intention of the said testa-
tor, touching the investment of the said $5,000, may be
fully effected ; and that an order may be made vesting the
mortgage for $3,500 and the lands therein described, and
the moneys secured thereby, and the benefits of all cove-
nants and provisoes therein contained ; and also the said
$1,500 now in bank stock, in the said William J. Robinson
and Thomas Orton, as executors and trustees of the said
will, in the place and stead of the said Robert Dowd
Kennedy, &c.
By order of the Master in Chambers, substitutional
service of this petition was made on S. F. Lazier, Esq., who
was appointed by power of attorney made by the said
Robert Dowd Kennedy before he left Hamilton, to act for
him in all matters concerning or connected with the said
will, and upon the wife of the said Kennedy.
It appears also by the petition that all the debts, funeral
and testamentary expenses of the testator, and all the
legacies (other than the legacy of $5,000) have been paid -
and all matters connected with the estate, other than the
said $5,000, have been wound up and settled, and releases
to the executors of all claims (except the $5,000) have been
duly executed by the parties entitled under the will.
So far, therefore, as the duties appertaining to the
executoi-ship are concerned, it appears that there only
remains to be disposed of under the will, this sum of
$1,500, and if that had been invested &s directed by the
will, the executor would have dropped that character and
become a ti^uatee in the proper sense, and the Court would
then unquestionably have power on a proper case being
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ilX.] RE BUSH. 5
made out to remove him as trustee, and appoint another Judgment,
person in his stead : Lewin on Trusts, 8th ed., p. 673. But Robertaon, J.
where there is anything to be done under the will appoint-
ing, which comes within the province of the executorship,
I know of no authority in this Court to remove him from
office as executor, and to appoint another in his place.
Jn Be Moore, Mc Alpine v. Moore, 21 Ch. D. 778, the
testator had by his will left all his property to his wife
for life, and appointed her his sole executrix ; and had
also left legacies of considerable amount to be paid after
her death, but had not constituted any persons trustees
thereof : Held, upon petition in an administration action
commenced for the purpose, and in the Trustee Act of
1850, that upon the retirement of the widoiv, the Court had
jurisdiction under the Trustee Act, 1850, to appoint in her
place a trustee or trustees to perform the duties incident
to the office of an executor ; but that is not an authority
for granting the prayer of the petition in this matter. There
the widow and sole executrix joined in the petition in
which it was stated that she was desirous of retiring from
such trusteeship. Then there was this peculiarity in the
case. The widow being sole executrix, and the legacies
not being payable until after her death, there was in
fact no one to protect the trust property, or to administer
the trusts in case of her death.
Kay, J., in giving judgment, said " I think the difficulty
is removed by the interpretation clauses of the Trustee
Act, 1850, which defines the words " trusts" ajid " trustees,"
as extending to and including '' the duties incident to the
office of personal representatives of a deceased person ;"
so that although the Court cannot remove an executor, it
can appoint a trustee to perform the duties of an executor,
which, in this case, means to pay the legacies when they
become payable. But in a subsequent case Re Phelps'
Settlement Trusts, 53 L. T. N. S. 27, the same learned
Judge refused to appoint a new trustee or to remove one,
" without his consent first had and obtained, but that was
the case of a trustee and not of an execvior;" although he
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6 THE ONTARIO REPORTS. [VOL.
Jadgment ^VBS very old and infirm, so much so, that his great age had
Robertson, J. impaired his memoiy, and his extreme deafness had ren-
dered it so difficult to communicate with him, that it was
practically impossible for him to transact any business.
In Re Bignold'8 SettleTnent Trusts, L. R. 7 Ch. 223, it
was decided that the Court has power under the 32nd sec.
of the Trustee Act, 1850, to appoint a new trustee, the old-
trustee permanently residing abroad, without hjs consent
And this case was decided previous to In re Phelps, just
referred to, but was not followed in that case, and it was
the case of a trustee also, and not that of an executor.
No case has been cited, nor have I been able to find one-
which applies to the facts and circumstances in this mat-
ter. The nearest approach to it, is In re Moore, Mc Alpine
V. Moore, referred to above, but there is wanting in this the
fact of the consent of the executor, who it is now sought
to remove, and that fact even in the case of a trustee was
considered by the same learned Judge, who granted the
application, in the last mentioned case, to be an insuper-
able barrier in the Phelp's Case.
I have always understood it to be the law that the Court
has no power to remove an executor ; he is the appointee
of the testator, and the Court cannot interfere so long as
he is an executor and there is personal estate to ad-
minister.
Had this executor performed the whole of his duties
quoad executor, and by investing the remaining $1,500 of
the $5,000 directed to be invested in mortgages on real
estate, then his duties as executor would have ceased, and
he would have become a trustee ; and then, if a proper case
could be made out, and the petition had been properly in-
tituled, ** In the matter of the Trustee Act, 1850," which
is not done here, but which I do not allow to influence my
judgment, inasmuch as I would allow an amendment m
that respect, a new trustee might be appointed.
It was requested at the bar, in case I could not remove
the absent executor, that I should remove him as a trustee
in regard to the mortgages taken on the investment of the
Digitized byVjOOQlC
XIX.] RE CENTRAL BAN'K AND HOOO. 7
$3,500 ; but I do not see my way to comply with that Judgment,
request, even had the petition been quite regular and had Robertson, J.
it prayed for that partial relief. On the whole, the prayer
of the petition cannot be granted.
G. A. B.
[CHANCERY DIVISION.]
Re Central Bank and Hogg.
Companj^— Winding-up proceedings — Injant stockholder repudiating liabil-
ity as contributory — Laches — Acquiescence,
The petitioner's father signed her name to a stock subscription book of a
bank, paid the calls, and received the dividend cheques, which were
endorsed by her at her father's request, the moneys being received by
him. The Rank was put into liquidation by winding-up proceedines,
and the order for call against contributories was maide three months
before she came of age.
A year after the liquidation commenced she took proceedings to have her
name removed from the list of contributories : —
Heldy That she was not liable as a contributory and that her name must
be removed from the list.
This was an application by petition of Kate Hogg to statement,
have her name removed from the list of contributories of the
Central Bank of Canada, on theground that shewas aninfant
at the time her name was subscribed for the shares of stock.
It appeared by the evidence that while the petitioner
was under age, her father had signed her name to the stock
sabscription book, paid the calls, and received the dividend
cheques which he had brought to her, and obtained her
endorsement thereon ; she did not receive the proceeds,
and was not aware of any of the winding-up proceedings
or notices of the bank, except one set of papers which
were sent to her, but she did not understand them, and
when she asked her brother about them, he told her not to
tronble about them, and she destroyed them.
The order for call against the contributories v/as made
on 31st October, 1888. The petitioner came of age on
January 31st, 1889, and this application was made on
October 30th, 1889.
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^ THE ONTARIO REPORTS. [VOL.
Argument. The petition was argued on February 19th, 1890, before
Boyd, C.
Hoyles, for the petitioner. The petitioner did not sign
the stock book, and was not aware of her name being so
used. Even if she did endorse the dividend cheques she
only did so at the request of her father, and he received
the money. Such endorsements by her while an infant
did not adopt the contract, nor did they even acquiesce in
it. The petitioner has been prompt in applying, and should
have her name removed from the list of contributories. I
refer to In re Alexandra Park Co. — HarVs Case, L. R. 6
Eq. 512 ; In re Commercial Bank Corporation of India
and the East — Wilson's Case, L. R. 8 Eq. 240 ; Lum^den's
Case, L. R. 4 Ch. 31 ; In re Contract Corporation — Baker's
Case, L. R. 7 Ch. 115. In Foley v. Canada Permanent,
&c,y Co,y 4 O. R. 38, the plaintiff, an infant, made the con-
tract, signed the mortgage and subsequently admitted lia-
bility, and these facts distinguish it from the present case.
Hilton, for the Bank, contra. The petitioner's delay
from January 31, the time of her coming of age until
October 30th, the date of this application, was too long.
She was guilty of laches. Her endorsement of the cheques
was an adoption of the contract which had been signed for
her, she had notice of calls while under age, and all the
liquidator s notices were regularly mailed to her address .
I refer to Foley v. Canada Permanent, <fec., Co., 4 O. R. 38,
and the cases there cited ; Holmes v. Blogg, 8 Taunt
35, where four months' delay was held too long ; Feather-
ston V. McDonell, 15 C. P., at p. 166; Ashton v. Mc-
Dougallyb Beav. 56; In re Yeoland's Consols — Whitens
Case, 1 Megone's Co. Cases, 39, 58 L, T. N. S. 922 ; Simp-
son's Law of Infants, 67.
February 20, 1890. Boyd, C. :—
The principle of law which applies to this case, is thus
laid down in Lindley on Companies, p. 810 : ''If an infant
is a shareholder when the winding-up commences, or if he
Digitized byVjOOQlC
XIX.] RE CENTRAL BANK AND HOGG. 1
is not then precluded from repudiating his shares,he does not Jtulgment.
lose that right by mere delay. ShrapndVs Case, before lioyd, c.
Lord R(imilly in April, 1867, is referred to, where an infant
had applied and paid for shares, had paid calls and received
dividends, but only attained his majority a week before
the company stopped payment. Three months after he
was settled on the list of contributories after due notice,
but he paid no attention to it, and allowed the time for
varying the certificate to expire. A call was afterwards
made on him as contributory, and even then he was
allowed in on payment of costs, and succeeded in getting
himself removed from the list. He had done nothing it is
said after attaining twenty-one, which could be regarded
as an election^to take the shares, and his repudiation was
held not to be too late. The present case is not nearly so
favourable for the bank in the attempt to render the
applicant responsible for the " double liability."
She did not subscribe nor pay anything on the stock.
Though she endorsed dividend cheques, it was while an
infant, and at the direction of her father, who received the
money therefor. She was twenty-one on 31st Januarj^i
1889, after the winding-up proceedings were far advanced.
On 29th October, 1888, the order for call on contributories
was made, but she had no notice of this or of any other
proceeding on the part of the company after she attained
majority till October, 1889, and then she at once repudiated
the claim of the liquidators. I find no authority which
would justify fixing her with liability, and more than one
exculpating her. If any one is liable for these shares, it
was her father or her father s estate, he having died ; but
this question is not now before me, nor do I pretend to do
more than allude to this, as it was mentioned during the
argument. Following Hart's Case, L. R. 6 Eq., 512, 1 dis-
charge the petitioner as contributory, but give no costs to
her. The liquidator's costs will be out of the fund as in
Hart's Case,
G. A. B.
2 — ^VOL. XIX. O.R.
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10 TUK ONTARIO REPORTS. [VOL,
[CHANCERY DIVISION.]
Beer v. Stroud.
WeUers and wcUercaursea— Definition of rcaltreourae — Surface-water.
A watercourse entitled to the protection of the law is constituted if there
18 a sufficient natural and accustomed flow of water to form and main-
tain a distinct and defined channeL It is not essential that the supply
of water should be continuous or from a perennial living source. It is
enouffh if the flow arises periodically from natural causes and reaches a
plainly -defined channel of a permanent character.
suiement This was an appeal from the judgment of Ferguson, J,^
in an action brought by Josiah Beer against Alfred Stroud
for an injunction to restrain defendant from banking up
earth on his land, so as to prevent water running away
from the plaintifTs land in the manner it had always done
before.
The action was tried at Hamilton, on October 25th, 1887,
before Ferguson, J.
Mackelcan, Q. C, and Gauaby, for the plaintiff.
Bell, for the defendant.
The learned Judge delivered the following judgment.
October 27, 1887. Ferguson, J. : —
According to my understanding of what a water-course
is, I think it is proved here that there is a natural water
course in regard to which there exist riparian rights.
There is a pretty^ large area of land a little above the
head of what has been called the ravine that is
nearly level. There was a point further on, in which in a
state of nature there was a pond of water of some depth,,
excepting in very dry seasons ; when the water raised ia
that pond it overflowed its margin on the side next to this
ravine or creek, and formed a run of water down to what
may be called the stream proper.
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XIX.] BEER V. STROUD. 11
[The learned Judge after a reaumS of part of the evidence JudgmeDi
then proceeded as follows] : I find then as a matter of fact perffUBon J
that several rods from the lane running between the
plaintiff's land and that of the defendant, and on the
plaintiffs land, there were by nature defined banks in the
formation of the stream, a stream that had its source,
that is the source of its waters from the drainage of
this level area of land, and the overflow of this pond.
to which I have referred ; and upon the plaintiff 's land
waters were collected and were within defined banks,
several rods from its eastern boundaiy. Then from that
place across the lane, and through the defendant's land
down to the Macklem survey, and finally into the w{kters of
Lake Ontario where these waters went, I think there was
a natural stream. The fact that in their course the waters
passed through a sort of marsh below the lands of the
parties makes no difference. There is a stream or current
all the way, though not running the whole of the year, yet
not limited to times of rain or melting snow, as sought to
be made out. The banks were originally well defined.
It was urged that there was no spring or underground
source of these waters — that it was merely surface water.
I think that makes no difference whatever. The beginning
of a defined stream may be surface water only, there need
not be a spring shown to be from the depth or bowels of
the earth to be the source whence a stream starts. In a
basin the surface water may collect, and a stream may form
running therefrom between defined banks.
This is a stream of that kind, being fed also by the over-
flow of a pond, until a ditch was cut in another direction
draining the pond ; and my opinion is, that it was a
natural water-course, in regard to which there were riparian
rights.
The plaintiff then had a right to have the water pass in
that natural water-course between these banks that are yet
apparent upon the land several feet high, approaching one
another, no regard being had to the mould that has been
thrown up on each side of the artificial ditch. They ap-
proach one another gradually, but tolerably rapidly. They
come together at the bottom, and the evidence shews there
was a water-way cut a foot and a half wide, or thereabouts,
and some six inches deep where these banks met. There
the plaintiff had a right to have the waters pass.
Now the defendant threw earth upon his land, and so
raised it, that there is no doubt the waters at that place
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12
THE ONTARIO REPORTS.
[vol.
Judgment, could not pass away from the plaintiff's land &s they did
Fergusoiij. J. ^^^^ ^^^ place was in its natural condition.
The defendant has obstructed the flow in a natural
water-course, in ray opinion. That obstruction the defen-
dant must remove.
The relative height or the level of the bottom of the
water-course as defined by Mr. Kline, (whose evi«lenee I
thought most reliable) as compared with the height of the
obstruction made by the defendant, is not proved. That
the ground at that place : that the bottom is not now as it
was in a state of nature, I have no doubt. It has been
deepened by some means, by digging, I think, and I do
not know what its original level was, but whatever that
was, it was surely lower than the embankment or filling in
that has been made by the defendant upon his land. He
has obstructed the natural flow.
Then, if the\e were no more, I think the defendant
should be ordered to remove the obstruction that he has
placed there to the depth of this course mentioned by Mr.
Kline, that is, to the level of that where it came to the
defendant's land.
There may have been some considerable inclination in
that course between one side of the lane and the other.
The land falls away upon the defendant's property pretty
rapidly ; but if the plain tifl*'s right depends entirely upon
the natural water-course, the defendant will have to
remove the obstruction to the depth of the bottom of the
natural course, so that there will be no obstruction above
the level of such bottom to the injury of the plaintiff.
It will not do for the defendant to dig a narrow trench
upon his land through the embankment he has made to
that depth, because that would probably not carry oflT the
water to the same surface level at the time of high water
that would have been done if he had not put the obstruc-
tion there.
The plaintiflT is entitled to the full width of the stream,
so that the surface of the water, in time of high water,
will not be higher than it would have been if he (the
defendant) had not put the embankment there; and the
bottom of the stream were at its natural height or level.
The plaintiff" is entitled to have the water-flow from the
southerly side or boundary of his land at no greater height
than it would have don6 if the defendant had not put the
embankment there, and the bottom of the stream were of
the same height as the bottom mentioned by the witness
Kline.
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XI2L] BEER V. STROUD. 1»^
The plaintiff also contends that he has by prescription Judgment.
the right to the use of the stream as it is now, or rather asj^ercnson J
it was immediately before the obstruction complained of.
The natural depth I find not to be as low as the bottom
of the ditch a crass the lane is now, but I cannot say how
much the difference is. I am not given evidence on that
subject.
1 do not see that the plaintiff has established a prescrip-
tive right to the use of the stream at the depth at which it
is. Tliere is evidence of cleaning out, which cleaning out
I think was rather abundant, and being satisfied that the
stream is now lower than it was in a state of nature, and
not being given any evidence of any time when it was dug
out to make it lower, I think it has been made lower by
this so-called ** cleaning out."
The kind of material that appears on either side of the
stream, where the bridge is now, manifestly taken out of
the bottom, and the shape and formation of the banks as
they approach down towards the stream indicate to me
that the natural bottom was not as low as the bottom of
the ditch is now. My view of the matter is, that there has
been a deepening some time or other of the stream across
the lane ; that the natural bottom was nut as low as the
present one.
There is evidence of user by the plaintiff, and those who
preceded him in title of that place as a ditch or stream for
a period much over the twenty years, and I find that there
has been such user ; but the evidence does not reach the
point of showing that the user was during all this period
to the present depth.
The plaintiff has not shown that at any time the bottom
of the natural stream was lowered by him or his predecessors
in title and used thereafter for the purpose of his land for
the necessarj' period. His contention is that it is no lower
than it was by nature, so I cannot find that he has
proved a user for more than twenty years of a stream
there lower (having a bottom lower) than the bottom was
by nature, and that bottom was not so low as the bottom
is now. That is one of the diflScul ties' that I see between
the parties.
The difficulty in any judgment that I can deliver upon
the evidence defining the exact right, if it be a right,
differing from that in respect to the natural stream, is the
diflScnlty of showing just what the defendant must do to
remove the obstruction, because the plaintiff cannot have
Digitized byVjOOQlC
XIX.] BEER V. STROUD. 15
period of more, much more than twenty years next before Ju«lgment.
the commencement of this action, and this much to thop
advantage of the land The plaintifTs case in regard to ®''*"'®*^ •
the stream seems to be sustained in two ways, by his right
as riparian proprietor, and by prescription, but only to the
extent that I have said.
I may here say, perhaps it is my duty to say, that there
were many of the witnesses for the defendant to whose
testimony 1 do not attach any weight. Some of them ,
{after my having seen the place at the request of
both parties) I cannot believe. Others appeared reckless.in
the witness box, and some did not seem to understand the
subject, manifestly thinking that they were right^and justifi-
ed in saying that there was not a water-course there, because
when they saw the place they did not perceive that there
was a furrow dug out by the action of the water, although
there were defined banks closely approaching one another
betw^een which the water ran, or had run. The authorities
referred to by the counsel for the defendant, refer for the
most part, if not solely to cases of surface water as such,
and do not, I think, apply to or govern the present case.
What I have hitherto said has been without any refer-
ence to the statement in the defence that the interruption
of the enjoyment by the plaintiff of the right in question
has been acquiesced in for the period of more than a year
before this action. No doubt more than a year elapsed
after the interruption by the construction of the embank-
ment or " filling in, " as it was called, and before this suit.
In the case of Glover v. Coleman, L. R. 10 C. P. 108, the
question of acquiescence or not in the interruption, was
much discussed. In that case the year had elapsed as in
the present case, the fact was held not to be fatal to the
plaintiflT, and it was considered that it was a question
proper to be left to the jury whether or not there had been
a submission to or acquiescence in the interruption.
In the present case the plaintiff says that until he was
injured, and sustained the damages of which he complains
in the month of February last, he was not aware of
what the defendant had done. He shews that although
the place was near his property, he did not approach the
property by that way, and that his attention was not called
to the fact of what the defendant was doing. I need
not say more respecting the evidence on this subject.
I think it a proper finding to say that there was not notice
of the interruption to the plaintiff until the time the injury
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ooglc
XIX.] BEER V. STROUD. 17
ravine for surface water. Any semblance of a stream has Ai^gament.
been destroyed by the defendant digging for brick clay,
and the water is thus distributed. The evidence does not
show that this digging caused the penning back of the
water. Angell on Water-courses, 6th ed. sec. 108a. There
has been acquiescence for over a year R. S. O. (1877) ch.
108 sec. 37. We refer to Darby v. The Corporation of
Crowland, 38 U. C. R. 338 ; McGillivray v. Millen, 27 U. C.
R. 62 ; Crewaon v. The Grand Trunk R W. Co., lb. €8 ;
Murray v. Dawson, 19 C.^P. 314.
Mackelcan, Q. C, contra. The trial Judge saw the locus in
quo. The plaintiff has the rights of a riparian proprietor,
iuid also by prescription : Glover v. Coleman, L. R. 10 C. P,
108; Earl v. De Hart, 12 N. J. Eq., 1 Beasley Ch. (N. J.)
280; Briscoe v. Ih^ought 11 Ir. C. L. R. (1860) 250;
Claxton V. Claxton, Ir. R. 7 C. L. (1873) p. 23; Angell §
108 & ; Magor v. Chadvnck, 1 1 A. & E. at p. 586 ; Beeston v.
Weate, 5 E. & B. at pp. 996-7 ; Bennison v. CartvMght, 5
B. & S. at p. 17 No change of character affects the legal
right to a water-course.
Osier, Q. C, in reply. The plaintiff's claim is either as
an easement or a riparian proprietor, Angell § 42. It is
claimed here as a natural water-course. It is not an ease-
ment. See also Angell § 108, i and o.
June 11th, 1888. Bo YD, C. :—
The whole of the evidence establishes. that the natural
dr^biage of the plaintiffs land has been always through
the swale or ravine leading down to the defendants land,
and thence by a living stream into Lake Ontario. Some
of the evidence shews that the course of the water has
worn a way for itself with well-defined banks as it neared
the defendant's boundary. The defendant's son spoke of
it as a " gully," and I cannot doubt that the flow of the
rain- and surface-water for the twenty-five or thirty years
spoken of, has left distinctive and continuous traces of its
3 — VOL. XIX. O.K.
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. i8 THE ONTARIO REPORTS. [VOL.
Judgment course, which form a visible landmark from the plaintiff's
3oyd, C. into the defendants property.
Any doubt raised by the evidence on this point would
be dispelled by the finding of the trial Judge who, at the
instance of the defendant, visited the premises, and so
checked the opinions of witnesses by his own observation.
Rain- and surface-water has drained from the high lands
of the plaintiff through this natural outlet during the thir-
teen years of his occupancy till it was interrupted by the
defendant who, for his own purposes, blocked up the
channel, if not entirely at least to such an extent as to
cast back water to the plaintiff's loss. The very fact of
the defendant having left some opening for the water as.
he made his alterations, is very suggestive of the actual
existence of a water-course.
It was open, on the evidence,for the Judge to affirm the ex -
istence of a water-course entitled to the protection of the law.
To this end it is not essential that the supply of water should
be continuous, and from a perennial living source. It is
enough if the flow arises periodically from natural causes and
reaches a plainly-defined channel of a permanent character.
Thus a recognized " course" is obtained, which is originated
and ascertained and perpetuated by the action of the water
itself. For all practical definition, if there is a sufficient
natural and accustomed flow of water to form and main-
tain a distinct and defined channel, that constitutes a
water-course.
In Briscoe v. Itroiigkt, 11 Ir. C. L. at p. 264, Hughes B., is
thus reported : " If it is proved that rain-water forms itself,
from the nature of the locality upon which it descends, into
a visible stream, and as far back as memory can extend,
has pursued a fixed and definite channel for its discharge,
the ' volume ' of the stream may be ' occasional ' and ' tem-
porary; ' but its ' course ' is neither * occasional ' nor * tem-
porary.' I am, therefore, of opinion that, in this case, there
was a water-course," &c
By the civil law it was considered that land on a lower
level owed a natural servitude to that on a higher, in res-
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XIX.] BKEB v. STKOUD. 19
pect of receiving without claim to compensation, the water Jndgment.
naturally flowing down to it : Per Cresswell, J., in Smith v. B^dTcL
Kenricke, 7 C.B. at p. 566. Such is^ I think, also the common
law when the rain- or surface-water has from the trend of
the land formed itself into a defined channel, and so dis-
charges itself through the servient tenement. The occu-
pant below has no right in such a case to interfere with
the natural outlet from the land above by the erection
of obstructions or the filling in of the cheinnel.
This question as to the rights in surface-water after get-
ting into defined channels has been but little considered in
England. The two cases usually cited to shew that surface
water may be interfered with, Broadbent v. Ramsbotham,
11 Exch. 602, and the other case in the same volume at p.
369, Rawston v. Taylor, both relate to surface-water not
flowing in any defined watercourse, as pointed out by Lord
Chelmsford in Chasemore v. Richards, 7 H. L. C. at p. 375.
Ennor v. Barwdl, 2 Giff. 410, is a useful case, decided
contemporaneously with Briscoe v. Drought, supra, and
favouring the view I have now taken.
The greater bulk of later American authority is also in this
direction, and of these cases I may particularly refer to
KeUy V. Dunning, 39 N. J. Eq. 482, (1885) and a well-
considered judgment in Boyd v. Conklin, 54 Mich. 583
(1884) in appeal from 46 Mich. 56.
As to the other points argued there is nothing to shew
that the Judge's conclusion is not well-founded. A good
deal seems to have turned upon the credibility of witnesses,
and it would appear to me to be most unsafe to interfere
upon evidence so conflicting when at the request of both
parties the Judge satisfied himself as to where the truth
lay by ocular inspection of the situs.
The judgment should be affirmed with costs. The result
of it is, as I understand, that the defendant may use his
land as he likes so long as he does not obstruct the flow of
water on the plaintiff's land. It was said that the efiect
of the decision was, to require the defendant to keep the
sides of the ravine open. I do not so read the reasons
Digitized by VjOOQIC
20 THE ONTARIO REPOBTS. [VOL.
Judgment for the judgment, nor do I think the law requires anjr
Boyd, 0. such restriction on the defendant's user of the land.
Robertson, J. — I concur in the views and conclusions
come to by the Chancellor.
G. A. B.
[CHANCERY DIVISION.]
Grant v. Culbard.
Hides — General Inspection Act — ** Anything done under this Act " — R,8.C,
ch. 99, sees. 26, 96, 104 — Action against inspector oj hides — PUading^
— Gtn/tral issue.
In an action against a government inspector of leather and raw hides for
fraudulently grading and branding incorrect weights and qualities
on hides: —
Heldy that ** anything done under this Act," in R.S.C. ch. 99, sec. 26, has^
the same meaning throughout the section, and means '* anything in-
tended to be done under diis Act " ; and the defendant not appearing
to have acted malA fide, or to have intended not to perform his duty
under the Act, was entitled to the protection of this section, though he
had not pleaded the general issue in terms, inasmuch as he had in effect
stated that what he did was done under the Act.
Semble, that full effect may be given to sections 96 and 104 of R. S. C. ch.
99, by holding that up to five per cent, of any deficiency or excess iik
the weight of certain kinds of leather the Inspector is protected against
any action, and as to any excess he is entitled to any defence open to-
him under the Act or otherwise.
Statement. This Was an action brought by J. & T. Grant against
Wm. G. Culbard for damages, under circumstances thus
set out in the statement of claim : —
That the plaintiffs were tanners at Woodstock, and the
defendant, who resides at Brantford, the duly appointed
Government inspector of leather and raw hides for the
city of Brantford, and that it was his duty to inspect all
raw hides on application by the owner or possessor, and to
ascertain the weight, quality, and condition thereof, and
mark the same according to weight and quality : that the
plaintiffs, at several times, purchased hides from F. Ott
& Brothers, of Brantford, to be sold and purchased accord-
ing to the inspection of the defendant: that it was the
Digitized byVjOOQlC
XIX.] GRANT V. CULBARD. 21
defendant's duty to mark and stamp on the hides the net Statement,
weight and quality, and the initials of the inspector and
of the city or town where the inspection was made, and
the figures required by the General Inspection Act, denot-
ing the quality : that the hides so purchased by the
plaintiffs had the brand or stamp of the defendant as such
inspector duly stamped on the same, representing them to
be of certain qualities and weights; that the plaintiffs
purchcised them relying on the correctness as to quality
and weight of the hides as so stamped, and without
making any personal examination : that afterwards they
found them to be of an inferior class and much less value
and weight than was represented by the branding or
marking : that the defendant, with fraudulent intent, and
m neglect of his duty, so wrongly branded the said hides,
and, contrary to his duty, lent his marks and marking
instruments to other persons, whereby the hides were
wrongly marked and branded and the plaintiffs injured,
and, contrary to his duty, gave a wrong certificate of
inspection of the said hides.
By his defence, the defendant alleged that he had
always performed in his oflSice of inspector of hides the
duties imposed upon him by statute, and knew nothing of
any purchase by the plaintiffs from F. Ott & Brothers :
that all raw hides inspected by him had been properly
branded, stamped, and marked : that he was not liable
to the plaintiff as f od a false representation by false brand-
ing, and the paragraphs of the statement of claim in
which this was alleged disclosed no cause of action ; and
he denied all fraud and all charges of neglect and violation
of duty, and denied that he at any time lent his marks
and brands to outside parties, or gave any false certificate
of inspection as alleged.
The action came on for trial, on November 7th, 1889, at
Woodstock, before Rose, J,
Nesbitt and BcM, for the plaintiffs.
Blackstock and Watta, for the defendant.
Digitized by VjOOQIC
22 THE ONTARIO REPORTS. [VOL.
Argument At the close of the plaintiflFs' evidence, Blackstocky for
the defendant, moved for a nonsuit
Blackatock, The action cannot be maintained in this^^
county. It should have been brought to trial at Brantf ord^
and notice of action was requisite. Again, malice should
have been proved, and it is not shewn that the action i»
within the six months: R. S. C, ch. 99, sec. 26. The
defendant owed the plain tiflfs no duty; he inspected for
the vendor. "R. S. C, ch. 99, sec. 16, points out the proper
mode of proceeding.
Neshiti, contra. The defendant is not a public officer.
As to notice of action, I refer to McLeish v. Haivard, 3
A. R. 503 ; but, at any i-ate, want of notice of action has
not been pleaded ; and the defendant should not be allowed
to plead it now, for if he had done so before, we could
have discontinued the present action, and brought a
new one.
January 25th, 1890. Rose. J.:—
Action against an inspector of hides for grading
incorrectly, etc.
The defendant was appointed by the Govemor-in-
Council, pursuant to the provisions of the General Inspec-
tion Act, R. S. C, ch. 99, sec. 2. At least, it was so assumed,
if not proven.
By sec. 7, every inspector is required before acting, to
take an oath of office that he " will faithfully, truly, and
impartially, to the best of 'his' judgment, skill and
understanding, execute and perform the office of an
inspector," etc.
By sec. 12, it is provided that " every inspector shall
before acting as such give security for the due perform-
ance of the duties of his office * * and such bond
shall avail to the Crown and to all persons aggrieved by any
breach of the conditions thereof," etc.
Digitized byVjOOQlC
XIXj GRANT V. CULBARD. 23
For the construction to be put upon this section and Judgment,
the liability upon the bond, see Regi/aa v. John Mowed, 3 roto, J.
C.R 228.
Every inspector is bound to act upon request, under a
penalty of $20 over and above all damages occasioned to
the person complaining by such neglect or refusal —
Sec. 20.
Sec 26 is important. It is as follows : " Every action
brought against any person for anything done under this
Act, or contrary to its provisions, shall be commenced
within six months next after the right to bring such action
accrued, and not afterwards; and the defendant therein
may plead the general issue, and that the same was done
under this Act, and may give this Act and the special
matter in evidence at any trial thereof ; and if it appears
so to have been done, then the judgment shall be for the
defendant ; and if the plaintiff is nonsuited or discon-
tinues his action after the defendant has appeared, or if
judgment is given against the plaintiff, the defendant shall
recover treble costs, and shall have the like remedy for the
same as defendants have in other cases.
It will be observed that the first clause providing for
limitation of time is with reference to " anything done
under this Act or contrary to its provisions," while the
next clause providing for pleading directs that the defen-
dant may plead " that the same was done under this Act ; "
and the next clause provides that " if it appears so to have
been done, then," etc., that is, as I understand it, " if it
appears that it was done under this Act as set f oi^th in the
plea, then/' etc.
This section is peculiar in its provisions. I have not
found anything similar to it, save in 4 & 6 Vic, chs. 88, 89,
being Acts regulating the inspection of beef, pork, flour,
and meal, and consolidated in C. S. C, ch. 48, sec 26.
An examination of these sections may possibly throw
some light upon the proper construction to be placed upon
the section now under consideration.
In 4 & 5 Vic ch. 88, the limitation clause is as to suits
Digitized byVjOOQlC
24j the ontakio reports. [vou
Judgment, in respect to things " done, in pursuance of this Act or
Roee, J. contrary to the directions thereof," when the action was
to be brought within six months ''after the matter or
thing done or omitted to be done." The clause as to
pleading and evidence permits a plea *' that the same was
done in pursuance and by the authority of this Act/' and
by the next clause, " if it appear so to have been done,
then," etc.
In sec. 27 of ch. 89, the same language is used in the
limitation clause, but the clause as to pleading and
evidence provides merely that the defendant " may plead
the general issue and give this Act and the special matter
in evidence at any trial to be had thereon," and then
follows that "if afterwards judgment be given for the
defendant," etc.
Sec. 26 of ch. 48, C. S. C, is similar to sec. 26 of ch. 88, of
the 4 & 5 Vic, both as to the limitation, pleading and evi-
dence clauses, save that in the pleading and evidence clause,
instead of the words *' that the same was done in pursu-
ance and by the authority of this Act," are the words,
** and that the same was done under this Act."
Such provisions apparently permitted a plea of the
general issue and evidence to be given thereunder of the
Act and special matter, and that the same was done under
the Act.
The section in question has in its limitation clause the
words, " within six months next after the right to bring
such action accrued," instead of the words, "after the
matter or thing done or omitted to be done."
And the defendant is permitted to plead " that the same
was done under this Act," and "give this Act and the
special matter in evidence at any trial thereof."
This examination seems to explain the presence of the
words, " or contrary to its provisions," which having regard
to the meaning put by the decisions upon the words,
" done under this Act," seem to me not only unnecessary
but as obscuring the meaning of the section.
It is manifest that if the officer had done the act corn-
Digitized byVjOOQlC
XIX.] GRANT V. CULBARD.
plained of under the Act, that is, under and in accordance
with its provisions, no protection would be necessary, for
upon proving such to have been the fact he must have
jjidgment in his favour.
I may extract a passage from the judgment of Palles, C.B.,
in the Exchequer Division, in O'Dea v. Hickman, 18 L. R.
(Ir.) at p. 238, for reference to which T am indebted to my
learned brother Osier, and which most clearly states the
law. He says: "It is, of course, elementary that the
words, * in pursuance of the Act,* occurring in a section
such as that before us, do not mean * in strict pursuance,*
as, if they did, the act complained of would be lawful and
could not be the foundation of an action. The protection
of notice would on that construction only exist where it
was not required. It was therefore held, early after
enactments of this description became usual, that * in pur-
suance of,' in such a context, meant ' in intended pursuance
of * the statute. It then became a matter of much contro-
versy what acts were or might be ' in intended pursuance
of ' the statute ; and it has, in modern times at least, been
settled that the defendant must honestly and really
(although mistakenly), believe that the act which consti-
tutes the cause of action was in pursuance of the statute,
and such belief should not be a mere, vague, general belief,
involving matter of law only, or mixed matter of law and
fact, but should be a bond fide belief in such a state of
facts as, had it existed, would have justified the act, the
subject of the action."
The judgment was affirmed on appeal: ih, vol. 20,
p. 431. See, also, observations of Blackburn, J., in Selmea
V. Judge, L.R 6 Q.B., at p. 727, quoted by Osler, J.A., in
Corporation of Bi^uce v. McLay, 11 A.R, at p. 482. The
words there were, " under the authority of an Act," etc.
See, also, Venning v. Steadman, 9 S.C.R, at pp. 234-5, per
OWTNNE, J.
Mr. Justice Gwtnne refers to ch. 89 of the Consolidated
Statutes of New Brunswick, which may be read in the
consideration of the section now under discussion. See,
4 VOL. XIX. O.R.
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y_4 •
1
.c/^
XIX.] GRANT V. CULBARD. 27
The defendant has not pleaded the general issue in
terms, but he has in effect stated that what be did was
done under the Act. The pleading is informal, but I do
not think it is misleading, and in view of the observations
made in Bond v. ConmeSy 16 A.S., at p. 419, and cases
there referred to, I think it my duty to allow the defen-
dant to amend by formally pleading the general issue,
and to set up in terms that what he did was done under
the Act.
I have not found it necessary to determine whether the
"Act to protect Justices of the Peace and others from
vexatious actions" applies. It is not formally pleaded,
and so far as an amendment would be necessary to set up
want of notice of action, I do not think I should allow it,
for on the evidence I do not think its service would have
been more than a matter of form, for I do not see how
consistently with the defence any tender of amends could
have been made. Moreover, to allow it now would defeat
the action under the six months' limitation clause which
we have been discussing.
As to the facts, rnala fides must not be presumed, and
on the evidence I am unable to find want of bona fides.
The defendant may have made a mistake or have incor-
rectly graded the hides, as to which I have some difficulty
in forming an opinion, owing to the neglect of the plain-
tiffs to examine the hides] before submitting them to the
process of tanning, even in its initial stages ; but if the
defendant has erred, I think I must find that he did
what he did, honestly believing that he was doing his
duty under the statute. There was no indirect motive
shown. See Poulsom v. Hirst, L. R. 2 C. P. 449.
I do not consider the question raised as to whether, even
if the action is otherwise well brought, any duty has been
shown to have arisen from the defendant towards the
plaintifiTs.
On the whole, I think there must be judgment for the
defendant, dismissing the action with costs, which I
suppose under the statute means treble costs.
A. H. F. L.
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XIX.] SPRATT V. WILSON. 29
The plaintifis, after each had attained the age of twenty- Statement.
one years, brought this action, alleging that the trustees
did not invest the sum of $1,100 as required by the wiU,
and that it had produced much less interest than it would
have done had it been properly invested ; alleging also
that they had requested the defendant to pay over the
$1400 to them, but that he had neglected and refused to do
so, and claiming payment of the sum of $1,100, an inquiry
as to what interest or profit would have been derived if the
fund had been properly invested, and payment of the
difference between the amount which should have been
derived and the amount paid over for the plaintiffs' main-
tenance.
The defendant set up in his statement of defence that
he had, in good faith, and with the approval of Andrew
Spratty the grandfather of the plaintiffs, and their guardian
appointed by a Surrogate Court (their father and mother
being dead), entered into an arrangement for the deposit
of the Sl,100 in the savings bank department of a chartered
bank, and that the fund had been so deposited by the
defendant and Irwin, in his lifetime, and had remained there
at interest ever since. He also said that he was always
wiUing and had offered to pay over the fund and interest
to the plaintiffs, but they would not accept it.
The action came on for trial before Boyd, C, at Hamil-
ton on the 11th March, 1890.
The evidence shewed that the Sl,100 was deposited in
the savings bank department of a chartered bank, at three-
and a half and four per cent, interest, which disposition
of the money had been acquiesced in by the guardian of
the plaintiffs ; and that the question between the parties
was only as to the payment of extra interest, and not as
to the principal or the interest accrued upon the money in
the bank.
The case was argued at the close of the evidence.
Bicknell, for the plaintiffs. The defendant is answer-
able for the interest he should have obtained by investing
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30 THE ONTARIO REPOBTS. [VOL.
Argammt the moneys : 2 W. & T. L, G, 6th ed., 996, 1014-5 ; Bruere
V. Pemberton, 12 Yes. 386 ; Smith on Negligence, 2nd ed,
117-119. R S. O. eh. 110, sec. 29, shews what investments
are permissible. Upon the measure of damages I cite
Wigktman v. Hdliwell, 13 Gr. at p. 343 ; Inglis v. BecUy,
2 A. R 453 ; Wiard v. OaMe, 8 Qr. 458 ; Blogg v. Johnson^
L. R 2 Ch. 225 ; Small v. JScdea, 12 Gr. 37. There was
no acquiescence, because there was no full knowledge of
rights, and the plaintiffs were minors. See Lewin on
Trusts, 8th ed., p. 496. The acquiescence of the guardian
could not operate as against the trusts of the will
H. H. Bobertion, for the defendant. No damages should
be given against the defendant There was no breach of
trust; the trust was to invest as the executors should
think fit There was a discretion to allow the principal to
remain in the bank, and the guardian acquiesced in what
was being done. I refer to Beaton v. Boomer^ 2 Ch. Chamb.
R 89 ; Be Brow, 29 Oh. D. 889. The plaintiffs on coming
of age ratified what was done by the executor : see Hv^-
gins V. Lata, 14 A. R 383. Even if interest is allowed, the
executor should get his costs out of the fund. The breach
of trust, if any, is an innocent one ; the defendant had
filed his petition in the Surrogate Court and offered to
account in the ordinary way. See Lewin on Trusts, 8th
ed., p. 995 ; Turner v. Hancock, 20 Ch. D. 303 ; Sandford
V. Porter, 16 A. R 665.
Bichnell, in reply. I refer on the question of acqui-
escence to La Banque Jacques Cartier v. La Banque
d'Epargne de Montreal, 13 App. Cas. 111. As to the
question of costs ; the defendant was not willing to pay
over unless he got a release. See Lewin on Trusts, 8th ed.,
p. 358 ; Morgan on Costs, pp. 396-8, 405-6, 409 ; Byrne v.
NorcoU, 13 Beav. at p. 346.
March 14, 1890. Boyd, C.:—
The rule is well settled, where moneys are left by testa-
mentary instrument to be invested at the discretion of the
executor or trustee, that he is to invest in such securities
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XIX.] SPRATT V. WILSON. 31
as are sanctioned by the Court. The general discretion so Judgment
given does not warrant investment in personal securities, Boyd, C.
and it would be disregarding fixed standards of decision
to lay it down that such a discretion can be exercised
otherwise than according to law. In this case the executor
(who became a trustee when the portion of the fund
coming to the plaintiffs was apportioned for them) did not
conform to his duty in depositing these funds at three and
a-half or four per cent, in a savings bank. This failure to
act as the law intends he should act exposes him to pay
the legal rate of interest for this money, although he acted
innocently and honestly. There is no misconduct on his
part ; but the question is a dry and hard one, whether he
is to pay the difference in interest between three and a-
half or four per cent, and six per cent. Had the matter
been between adults, the evidence is ample to shew acqui-
escence, and I have had doubts whether the acquiescence
of the statutory guardian of the infants is not enough to
relieve the defendant from making good the extra interest.
It is said that all the facts were not known to the plaintiffs
and their guardian, so as to introduce the doctrine of
acquiescence. But they knew that trust funds for them
were in the keeping of the defendant and that he had de-
posited these funds in a savings bank and that the interest
derived therefrom was remitted from time to time to the
guardian, until they sent a request that the interest should
be allowed to accumulate in the savings bank with the
principal. They all, with the defendant, had common
knowledge in law that this was not a proper investment ;
and all, in fact, were in common ignorance that it was
not perfectly legitimate. But the better opinion is that
the infants cannot acquiesce in a breach of trust ; and the
acquiescence of the guardian, not being for their benefit,
ought not to operate against their right to recover the
amount in dispute for the extra interest. That is in truth
the whole dispute ; because the defendant was prepared to
pay over the principal and the accumulated interest as
deposited in the savings bank.
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32 THE ONTARIO BEPOBTS. [VOL.
JuniTUitiii. The Re^'i.>trar will compute the amount of interest at
b^jyd, t:. fcix per cent, (allowing six months from the time the fund
was in the hands of the defendant as trustee at the lower
rate; down to December of last year, the date the parties
agixed on, giviug credit for all sums paid, and allowing
reasonable commission to the defendant in respect of this
fund.
As the real question was merely about a small amount
of extra interest, if I gave costs to the plaintiffs, it would be
on the lower scale only. I cannot give costs out of the
fund to the defendant, having regard to the decisions in
lie Itadclyffe, 29 W. R. 420, and BeU v. Turner, 47 L. J.
Ch. 75, but following Bate v. Hooper, 5 DeG. M. & G. 344,
I think this is a proper case (however viewed) to relieve
the defendant from paying costs.
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XIX.] RE CHAPMAN AND CORPORATION OF LONDON. 33
[CHANCERY DIVISION.]
Re Chairman and The Corporation of the City of
London.
AND
Rk Chapman and The Water Commissioners op the
City of London, and the Corporation of the
City of London.
Pr(^ibitum— Justices of the Peace— B. S, C, ch, 174, «<*<». SO, I4O— Cor-
poration— *' Ferifon" in J?. 8, C. ch. J, sec, 7, sub-sec, £B.
A writ of prohibition ma^ be issned to a justice of the peace to prohibit
him from exercising a jurisdiction which he does not possess.
The word " person " in R. S. C. ch. 1, sec. 7, snb-sec. 22, inclndes any
corporation "to lAhom the context can apply according to the law of
that part of Canada to which such context extends," but as justices of
the peace have not now and never had jurisdiction by the criminal pro-
cedure to hear charges of a criminal nature preferred agaiust corpora-
tions : SQch word does not include corporations in cases where a justice
of the peace la attempting to exercise such a jurisdiction.
A justice of the peace cannot compel a corporation to appear before him,
nor can he bind them over to appear and answer to an indictment: and
he has no jurisdiction to bind over the prosecutor or person who intends
to present an indictment against them.
This was an application made on behalf of the above Statement.
named corporations for writs of prohibition to be directed
to E. S. Jarvis, Esq., one of her Majesty's justices of the
peace, in and for the county of Middlesex, and to one John
Chapman, of the village of London West, the complainant
in two informations laid by him before the said justice of
the peace, charging the said the water commissioners for the
city of London, and the said the corporation of the city
of London, jointly, with having unlawfully and injuriously
constructed across the river Thames, at a point about four
miles from the said city of London, a certain dam, and the
said dam unlawfully, obstinately and injuriously to have
maintained in such an unlawful and injurious manner
as to create and continue various public nuisances, &c., &c.
Ther« were two cases argued together, and one judgment delivered in
both.— B*F.
6 VOh. XIX. O.R.
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84 THE ONTARIO REPORTS. [VOL.
Statement. And also charging the said, the corporation of the city
of London, with having also unlawfully and injuriously
constructed across the said river, a certain dam, and the
same unlawfully, obstinately and injuriously to have main-
tained, &c., so as to create and continue a great public
nuisance, &c. And the grounds taken were :
(a) That the water commissioners for the city of London
and the corporation of the city of London being, as they
are in fact, both corporate bodies they are not subject to
the provisions of the Criminal Procedare Act respecting
proceedings against persons charged before a justice of the
peace with an indictable offence, nor is there any power
to summon the said corporations before him, nor to compel
their attendance, and that in the absence of the said cor-
porations the said justice had no jurisdiction to proceed
ex parte.
(b) That there is no power for the justice to bind by
recognizance the person presenting the information to
prosecute or give evidence against the accused, unless a
witness or witnesses were examined.
(c) That by the provisions of section 140 of the Criminal
Procedure Act no bill of indictment for a nuisance, which
is that which is charged against the said defendants, can
be presented to or found by a grand jury, unless the
defendants be committed for trial, or the prosecutor or
other person presenting the indictment be bound by
recognizance to prosecute or give evidence against the
accused, or unless the indictment for such offence is pre-
ferred by the direction of the Attorney-General for the
Province.
The motion was argued on March 17, 1890, before
Robertson, J.
J. B, Clarke, Q. C, for the motion. The magistrate has
no jurisdiction to summon a corporation. He cannot
commit them for trial, nor bind them over to appear.
Corporations are not subject to the provisions of " The
Criminal Procedure Act."
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XIX.] RB CHAPMAN AND CORPORATION OF LONDON. 35
Hutchimeon, contra. The magistrate has jurisdiction Argument,
against all persons. " Person" includes corporations : R. S.
C. ch. 1, sec 7, sub-sec. 22. The prosecutor must be bound
over under R. S. G. ch. 174, sec. 140, and the magistrate
did not intend to proceed further than to do that.
Clarke, in reply. The justice could not bind over the
prosecutor unless he could commit or admit to bail. I
refer to The Queen v. Eerfard, 3 El. & El. 115; Re Apple-
dore, 8 Q. E. at 149 Ref. d; Ex parte Higgins, 10 Jur. 838 ;
The Duke of Devonshire v. FooU, 5 It. R. Eq. 314;
Re Meyers v. WonTiacott, 23 U. C. R 611 ; Regina v. The
Local Oovemment Board, 10 Q. B. D. 309, at p. 321 ;
Shortt, on Informations, Mandamus and Prohibition, 426,
432, 482.
March 19, 1890. Robertson, J. : — (After stating the facts
as above.)
The 140th section of the Criminal Procedure Act,
R. S. C. ch. 174, enacts that no bill of indictment for
nuisance, among other offences therein named, *' shall be
presented to or found by any grand jury, unless the
prosecutor or other person presenting such indictment has
been bound by recognizance tp prosecute or give evidence
gainst the person accused of such offence, or unless the
person accused has been committed to or detained in
custody, or has been bound by recognizance * to appear to
answer to an indictment to be preferred against him for
such offence, or unless the indictment for such offence is
preferred by the direction of the Attorney General or
Solicitor-General for the Province, or by the direction or
with the consent of a Court or Judge having jurisdiction
to give such direction or tiy the offence."
By section 2 of the same Act, under the head of " Inter-
pretation," the word or expression " person," has received
no special meaning other than that Conveyed by the word
or expression in its ordinary sense ; but by the general
-" Interpretation Act," 31 Vic. ch. 1 (R. S. C. ch. 1, sec. 7,
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36 THE ONTARIO REPORTS. [voL.
Judgmeiit. sub-sec. 22), the expression "person," includes any body
Robertson, J. corporate and politic, or party, and the heirs, executors,
administrators, or other legal representatives of such person,
to whom the context can apply according to the law of
that pai-t of Canada to which such context extenda"
And it is contended by Mr. Hutchinson, that this brings
these several corporate bodies, within section 140, and that
therefore the justice in these matters has jurisdiction to
summon these corporations before him, and to make en-
quiry, as in ordinary cases in which the Criminal Procedure
Act applies, and whether these corporations appear or not,
before him, he may proceed with the investigation ; and
although he admits he cannot commit, or detain in custody,
or bind them over by recognizance to appear to answer to
an indictment to be preferred against them, or either of
them, for such offence, he contends the said justice may
bind by recognizance, tLe person laying the information,.
&c., to prosecute before the grand juiy, or give evidence
against the accused, of such offence.
It is also admitted by Mr. Hutchinson that until the
Statute, 32 & 33 Vic. ch. 29, sec. 28, was passed a justice
or justices of the peace had no jurisdiction to summon
before him, or them, or to hear any complaint of whatever
nature against a corporate body; but that by necessary
intendment it must now be held that the jurisdiction haa
been increased so as to extend to such corporations.
I have duly considered the questions submitted, and I
am of opinion that there is no force in the contention urged
against prohibition. I cannot see that the law has been
altered in any way so as to give a justice, or justices, of
the peace jurisdiction in any matter which he, or they,
did not have prior to the passing of the statute of 32 &
33 Vic. ch. 29, sec. 28. The reason for amending the pro-
cedure in criminal cases, in the direction now required by
the enactment in question, was to prevent the abase which
had been practiced formerly by persons who were at lil)erty
to prefer a bill of indictment against any other, before a
grand jury, for any crime, without any previous enquiry.
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XIX.] RE CHAPMAN AND CORPORATION OF LONDON. 37
before a justice of the peace, into the truth of the Jndgmeat.
accusation. Robertson, jr.
Before the grand jury, the only evidence heard is that
for the prosecution, and the accused is wholly unrepre-
sented, and it frequently happened that persons entirely
innocent of the charge made, and who had no notice that
any proceedings were about to be instituted against him or
them, found that a grand jury had been induced to find a
true bill against him, and thus injure his character and put
him to great expense and inconvenience in defending him-
self against a groundless accusation : Archbold's Criminal
Pleading and Evidence, 19th ed. p. 5.
As to the Interpretation Act, it must be noted, that the
•expression '* person " is to i^ply to corporate bodies, &c.,
** to whom the context can apply according to the law of
that part of Canada to which such context extends."
Now the pi'ocedure in criminal cases never did give juris-
diction to justices of the peace, to hear charges of a crimi-
nal nature, preferred against corporate bodies. This pro-
cedure was by presentment by the grand jury, and an
indictment following, which, until the passing of the
statute 46 Vic. ch 34 (D) had to be moved up into the civil
side by certiorari in order to compel the defendants to
plead, &C. This is now done away with however by the
last mentioned statute, which ^requires every corporation
against which a bill of indictment for misdemeanor is
found at any Court having criminal jurisdiction, to appear
by attorney in the Court in which such indictment is found
and plead or demur thereto (sec. 1) and the procedure is
provided for by the 2nd, 3rd, 4th, and 5th sees, of that Act.
There is no hardship in the law as it now stands, because
although sec. 140 declares that no bill of indictment shall
be presented to or found by any grand jury unless, &c, as I
have above set forth, yet the section goes on to say, '* unless
the indictment for such offence is preferred by the direction
of the Attorney-General or Solicitor-General, &c., or by the
<lirection or with the consent of a Court, &c.
Now, if this is a proper case to be brought before a
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38 THE ONTARIO REPORTS. [VOL*
Judgment, grand jury, the Attorney-General no doubt will give the
Robertson, J. uecessary direction therefor, or in case the party prosecut-
ing, does not see fit to apply to him, the direction or con-
sent of a Court or Judge having jurisdiction to give such
direction, or to try the offence, can be applied to.
I am clearly of opinion that the Justice has no jurisdic-
tion in this matter ; he cannot compel the corporations, or
either of them, to appe€ur before him ; should he summon
them, they need not obey ; should they not obey, he cannot
issue a warrant to bring them, or either of them before
him : although they and each of them are a corporate
body, yet their "body" caxmot be taken into custody,
and the justice has no power to proceed ex parte. The
accused must be before the Court when the testimony is
given^ and the procedure points out what is to be done
when the accused does appear, &c. Nor can he, the justice,
commit, or detain in custody, nor can he bind over to
appear and answer to an indictment ; that being so, he has
no jurisdiction to bind over the prosecutor, or person who
intends to present the indictment, &c.
Then as to the writ of prohibition ; I think there is no
doubt it can issue to a justice of the peace, to pro-
hibit him from exercising a jurisdiction which he has not.
In The Queen v. Herford, 3 El. & El. at p. 136, Cockbum,
C. J., says : " I wish to add that we entertain no doubt
but that a prohibition may issue to a Court exercising
criminal jurisdiction as well as to a civil Court." The
question here is : has the justice this particular jurisdic-
tion ? For the reasons given by me, I think he has not^
and therefore the writs must go to prohibit him from
further proceeding in the matters of these complaints. I
do not think there should be any order as to costs.
O. A. B.
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XIX.] SHAW V. M'CREARY. 89
[CHANCERY DIVISION.]
Shaw et al, v. McGreakt et al.
Bniband and vf^ft—AmmaU— Liability of %o\fe of owner tf ammoU fwct
naturafor escape from her separaU property^-Negligence,
A bear belonging to one of tbe defendants escaped from premises, the
separate property of his wife, the other defenoant, where it had been
confined by him without objection from her, and attacked and injured
the plaintiff on a public street : —
Held, that the wife having under R. S. 0. ch. 132, sees. 3 and 14, all the
rights of a feme sole in respect of her separate property, might have had
the bear removed therefrom, and not having done so she was liable to
* the plaintiff for the injury complained of.
The principle of Fletcher v. Rylandn, L. R. 1 Ex. 282, L. R. 3 H. L. 330,
ap led.
This was an action brought by John Shaw, an infant, statement
by Matthew Shaw, his father, as his next friend, and
the said Matthew Shaw against John McCreary and
Mary McCreary for damages caused by a bear owned by
John McCreary and kept on the premises of Mary Mc*
Creary, getting out on the public street and attacking and
injuring the plaintiff John Shaw.
The action was tried at the Toronto Winter Assizes on
January 16th, 1889, before Sir Thomas Gait, C. J. C. P., and
a jury.
R. L. Fraser^ for the plaintiffs.
MtLlock, Q. C, for defendant Mary McCreary.
W. N. Miller, Q. C, for defendant John McCreary.
The evidence shewed that the defendants were husband
and -wife, and that the husband had brought the bear to
the premises where she and her husband resided, they
being owned by the wife as her separate estate; that the
bear being so kept there, without objection on the part of '
the wife, had escaped to the street and had attacked and
thrown down and severely bitten the plaintiff John Shaw*
The learned Chief Justice charged the jury after reviewing
the facts, as follows: "Under the circumstances I think the
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40 THE ONTARIO KEPORTS. [VOL.
sutement. defendant McCreary is responsibla The action is brought
against him and his wife on the ground that the wife
owned the property, and Mr. Fraser pressed me very
strongly with the argument that the owner of the property
is responsible for anything that takes place on that
property, at least for allowing a ferocious animal to be on
it. That may be so in ordinary cases, but in my opinion,
considering that the owner of the property in this case and
John McCreary were husband and wife, I do not think
the wife is obliged to disobey the positive injunctions or
wishes of her husband. That leaves it, in my opinion,
that the responsibility rests on him. * * I do not sub-
mit any question to you except with regard to the dam-
ages because the plaintiff is entitled to recover. * *
The Chief Justice dismissed the action as against the
wife.
The jury brought in a verdict in favour of Matthew Shaw
for S200, and in favour of John ^Shaw for S200 against
the defendant John McCreary.
The Chief Justice made the following endorsement on
the record.
" I dismiss the action against Mrs. McCreary with costs,
such costs to be confined to the counsel fee at the trial.'
The jury assess the damages of Matthew Shaw at the sum
of two hundred dollars, and the jury assess the damages of
John Shaw at the sum of two hundred dollars."
From this judgment the plaintiffs appealed to the Divis-
ional Court on the ground that they were entitled to
recover against the wife Mary McCreary, as well as the
husband, and the appeal was argued on February 25th, 1890,
before Boyd, C, and Ferouson, J.
22. L, Fraser for the appeal. The learned trial Judge,
w£us wrong in holding that the wife was not liable for the
damage done by the bear, she having allowed it to be kept
on her premises, from which it escaped. Her husband
could not compel her to permit its being kept there. She
Digitized byVjOOQlC
XIX.] SHAW V. M'CKEARY. 41
had the right to have it sent away and should have exer- ArgntMmt.
cised that right. On the contrary, the evidence shews it
was kept there with her concurrence and that she fed it
there. She could have compelled the husband by injunc-
tion to remove the bear, and if she could, and did not, then
she must be held responsible for any damage which may
result from her neglect. The fact of their living together
•can make no difference ; it does not affect her proprietory
rights or liabilities : R. S. 0. ch. 132, s. 14. The wife's
right of volition cannot be controlled by her husband to
the extent of compelling her to keep animals ferce naturce
on her property. I refer to Wddon v. De Bathe, 14 Q. B.
D. 339 ; Symonds v. Hallett, 24 Cb. D. 346; W ood v. Wood,
19 W. R 104^9) Allen v. WaUcer, L. R. 5 Ex. 187 ; Don-
nelly V. Donnelly, 9 O. R 673 ; TM v. TiU, 15 O. R 133 ;
Everslie on Domestic Relations, 403.
W. N, Miller, Q.C., for Mary McCreary, contra. The
evidence shews that the wife did not object to the presence
of the bear, as the husband was a man of strong will
accustomed to have his own way. The wife is not liable,
because she did not own the bear or have charge of or any
control over it. No case goes so far as to shew that a hus-
band has not the right to live with his wife in her house, and
so doing he has dominion over her : Schouler on Husband
and Wife, § 135 ; Schouler on Domestic Relations, § 75,
The wife has committed no tort and anything she did do,
which was merely permissive, was done under her husband's
dominion and control. As to the keeping of the animal I
refer to Smith on Negligence, Bl. ed. 90; Pollock on Torts,
Bl. ed. 316; Rylanda v. Fletcher, L. R 3 H. L. 330.
Fraaer in reply.
March 8th, 1890. Boyd, C. :—
This case should not have been withdrawn from the
jury as to the liability of the defendant Mary McCreary
to answer for the injury sustained by the plaintiff. The
6 — VOL. XIX. O.R. j>
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42 THE ONTARIO REPORTS. [VOL.
Jnd^ment. learned Chief Justice ruled that as the husband put the
Boyd, 0. hear upon the wife's property whence it broke loose
and did the injury she was not responsible, because it waa
her duty to yield to the wishes of her husband.
Apai*t from the relationship of husband and wife both
defendants would be liable, the one as owner and the other
as keeper or custodian of the wild animal. In one of the
most recent cases I have seen, Huddleston, B., sums up the
law substantially thus: If persons choose to keep wild and
savage animals (such as a bear, a tiger or a lion,) they do
so at their own risk and peril, and if any such animal
cause injury to anybody they would be liable for the
injuries, and this without notice beyond what the law
imports of their savage disposition : Wyatt v. The Rosher^
ville Gardens Co, 2 Times L. R. 282 (February, 1886).
And in a case very much like this where a bear was in
question with an alleged reputation for docility and play-
fulness, Crowder, J., in Beaozzi v. ilarris, 1 "IF. & F. 92,
(1858), ruied that a person keeping an animal of a fierce
nature is bound so to keep it that it shall not commit in-
jury. It does not matter, he said, that the bear appeal's to
be tame and docile, for every one must know that such
animals are of a savage nature, and though that nature
may sleep for a time it may wake up at any time. An
interesting case discussing the liability of owner and
keeper is to be found in Cowan v. Dalziel, 5 Ct. of Sess.
4th, Series 241.
The responsibility of keepers (who are not owners) ia
laid down in a case to which constant reference is made
as authority on this head of law of M'Kone v. Wood, 6
C. & P. 1. It is there said that harbouring the animal
about one's premises or allowing him to be or resort there
is a sufficient keeping to support this form of action*
Apart from any legislation a married woman may be
liable for torts committed by her unless she has been acting
under the coercion of her husband, and the evidence falls
far short of shewing any such state of facts here as to the
husband : Vine v. Saunders, 4 Bing. N. C. 96 ; Hyde v»
S , 12 Mod. 246 ; Handy v. Foley, 121 Mass. 259.
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XIX.] SHAW V. M'CREART. 4S
Now the Ontario Statute R S. O. ch. 132, sees. 3, 14, Judgment
gives a married woman all the rights of a /erne acle in BoydTc.
respect of her separate property as against all the world, *
indnding her husband. The property on which the bear
was kept was the separate estate of the defendant Mary
McCreary, and she had the power to consent to its being
harboured there or to have it removed therefrom. As to
this property she had all the rights of a stranger in this
regard as against her husband. If she wished to escape
the liability which attaches to the keeper of wild animals
her duty was (as said in the case 5 C. & P.) either to have
the bear destroyed or to have it sent away. She chose to
gratify her husband, and commendable as this may be, it
will not and ought not to exculpate her for allowing things
dangerous and mischievous to break from her premises to
the injury of her neighbours and those lawfully using the
public streets. Had she stored water on her land and it
had broken forth to the detriment of others she would be
liable under the principle of Fletcher v. Rylanda, infra,
and the risk undertaken in keeping wild animals has been
put on a similar footing. See per Blackburn, J., in
Fletcher v. Rylands, L. R. 1 Ex. 282, approved in House
of Lords, L. R. 3 H. L. 330.
The result is in my opinion that the case should be sent
down for further trial as to the wife unless consent is now
given to let the present verdict include both, with all costs
of action.
Ferguson, J.: —
It is stated in Addison on Torts that the mere keeping
of an animal of a fierce nature such as a tiger or a bear or
a dog, known to be wont to bite, is unlawful, and there-
fore if any person is bitten or injured by such an animal
an action is maintainable against the person who keeps it*
In the case Cox v. BwrUdge, 13 C. B. N. S., at 439,
Willes, J., says: "The distinction is clear between animals
of a fierce nature, and animals of a mild nature which do
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44 THE ONTARIO REPORTS. [VOL.
Judgment, not ordinarily do mischief like that in question. As to the
Ferguson, J. former, if a man chooses to keep them, he must take care
to keep them under proper control, and, if he fails to do so,
he is taken to know their propensities, and is held answer-
able for any damage that may be done by them before
they escape from him and return to their natural state of
liberty. As to animals that are not naturally of a mis-
chievous disposition, the owner is not responsible for injur-
ies of a personal nature done by them, unless they are
shown to have acquired some vicious or mischievous habit
or propensity, and the owner is shown to have been aware
of the fact. If the animal has such vicious propensity
and the owner knows of it, he is bound to take such care
as he would of an animal which is f erce naturoe, because it
forms an exception to its class."
All the authority that I have seen is in harmony with
this statement of the law, and I think there can be no
reasonable doubt that the owner of the animal in the
present case against whom the verdict is is liable to the
plaintiff in damages for the injuries done to the plaintiff.
M'Kone v. Wood, 5 C. & P. p. 1, was an action against
a party for keeping a vicious dog, in which Lord Tenterden
said: "It is not material whether the defendant was the
owner of the dog or not; if he kept it, that is sufficient;
and the harboring a dog about one's premises, or allow-
ing him to be or resort there, is a sufficient keeping of the
dog to support this form of action. It was the defend-
ant's duty either to have destroyed the dog, or to have sent
him away, as soon as he found that he was mischievous."
It seems clear that the law so stated is as applicable to the
case of an animal of a fierce nature (as in the present case)
as where the animal is not naturally of a mischievous dis-
position but has become an exception to its class in the
way above mentioned, and if so the keeping or harboring
of the animal about one's premises or allowing him to
resort there would be sufficient to render the person so
doing liable as if he were really the owner of the beast
The two defendants are husband and wife. The hus-
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XIX.] SHAW V. M'CKUARY. 45
band was the owner of the. bear who did the mischief, and Judgment.
his liability is scarcely if at all disputed. The premises Ferguson, J.
on which the bear was kept, it is admitted, is the separate
property of the wife, and it is also undisputed that she
was at the time of the injuries to the plaintiff carrying
on a business thereon separate from any business done or
carried on by her husband. This property, according to '
the statutes applicable to the case, she might have, hold and
enjoy free from her husband's control as if she were sole
and unmarried, and it appears that she was in fact enjoy-
ing the property much in this way.
At common law a married woman was liable for her
torts, and so far as I can see the married woman's property
Acts do not make her any less so.
The authorities referred to in the case Vine v, Saunders,
4 Bing. N. C. 96, and the other cases referred to by the
Chancellor seem to shew this, and see Pollock on Torts, pp.
49 and 50.
The case of her being coerced by her husband may be
an exception to this, but there is not evidence sufficient
to shew thkt the female defendant was so coerced in the
present case, and I fail to see why the case as to her
should have been withdrawn from the jury.
I agree in the disposition of the motion made by the
judgment of the Chancellor.
G. A. B.
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46 THE ONTABIO REPORTS. [VOL.
[CHANCERY DIVISION.]
Barber et al. v. McEat et al.
Registry latM^RegistrcUion o/aubsequerU deed^Priority— Proof of valuable
eonsidercUion,
Regiitration of a sabseqnent deed will not £[iv6 priority over another
anregifltered deed from the same grantor, prior in point of time, nnless
a yaluable consideration for the former is proved. Mere production or
gistration of the instrument by the party claiming under it is not
'ficient proof for this purpose.
Statamenl
This was an appeal from the judgment of Falconbridge,
J., in an action of ejectment brought by Frederick W.
Barber and Walter M. Barber, against Mary Ann McKay
and John McKay.
The action had been previously tried before Rose, J.,
and an appeal had to the Divisional Court, as reported in
17 O. R. 562, when a new trial was ordered.
The second trial took place at Milton on 5th November,
1889, before Falconbridge, J., without a juiy, when judg-
ment was reserved but subsequently given for the plaintiffs.
ShUton, for plaintiffs.
Laidlaw, Q. C, for defendant Mary Ann McKay.
D. McGibhon, for defendant John McKay.
The plaintifis were executors of one Joseph Barber, and
claimed through a deed to their testator from one James
Barber, as executor of Margaret Smeltzer, dated February
16th, 1877, but not registered until April 15th, 1887, and
the defendant Mary Ann McKay who, with her children,
was in possession, claimed under a deed from the same
James Barber to her former husband Robert Harwood,*
dated September 19th, 1873, which deed was proved at
this trial but had never been registered.
* Robert Harwood had died intestate in November, 1873, in possession,
leaving his wife Mary Ann and four children in possession, and she had
afterwards married the defendant John McKay. — Rep.
Digitized byVjOOQlC
XIX.] BARBER V. M'KAY. 47
The plaintiffs proved the will of Margaret Smeltzer, Statement,
referred to in 17 O. R. 562, and the deed from James
Barber to Joseph Barber, their testator, and its registrar
tion, but did not give any evidence that it was made for
valuable consideration. The evidence shewed that Har-
iBvood and his wife had gone into possession when the deed
. was made to him, and had remained in possession until he
died in November, 1873, and that the wife and children had
been in possession ever since, with the exception of a year
about 1879 or 1880, when she went away with her second
husband, John McKay, to look for work, when Joseph
Barber collected rent from a tenant, whom he let into pos-
session ; but on her return she immediately resumed pos-
session.
From this judgment the defendant, Mary Ann McKay,
appealed to the Divisional Court, and the appeal was
argued on February 25th, 1890, before Boyd, C, and Fee-
-GUSON, J.
Bain, Q. C, for the appeal. The plaintiffs have not
proved title in their testator. The deed to Harwood
which is now proved, passed the estate in the land to
him. No title passed by the deed to the plaintiffs'
testator, Joseph Barber, and the prior registration of this
latter deed will not prevail against the defendant so as to
-defeat her title under the deed to Harwood, and the pos-
session from 1873 under it. [Boyd, C. : What is the con-
sideration in the deed under which plaintiffs claim ?] $450,
but no proof of its payment was given. The defendants
have title by deed and possession. To give their deed
priority the plsdntiffs must prove that the deed to Har-
wood was voluntary, and the deed to Joseph Barber was
for value. Priority of registration under R. S. O. ch. 114,
sec. 82, cannot avail here as against the po'^sessory
even if there was no notice of the deed to Harwood. The
plaintiffs claim a break of a year in the defendant's pos-
session, but Joseph Barber was a trespasser then for we had
Digitized byVjOOQlC
^ THE ONTARIO REPORTS. [VOL.
Argument, a title by deed and he had none. [Boyd, C. : But if he had
registered his deed would he not have cut defendant out ?]
Not unless he proved value given and want of notice.
Even if registration of his deed could affect the defendant,
she had fourteen years' possession, and can set it up against
the registered instrument. Registration of a subsequent deed
is not sufficient to give priority without proof of valuable
consideration : Doe d. Cronk <kc, v. Smith, 7 U. C. R 376 ;
McKenny v. Amer, 8 C. P. 46 ; Leech v. Leech, 24 U.C.R.
321. [Boyd, C. : Was there any evidence that the first
deed was a part of any scheme ?] No, on the contrary,
Uai*wood got possession with his deed. Even if his deed
was fraudulent and void under R. S. O. ch. 1J4, sec. 76, the
defendant has title by possession.
W. T. Allan, contra. When defendants resumed pos-
session after the break they did not go in under the deed
but as trespassers. [Boyd, C. : Why ?] The plaintifis'
testator's deed was then in existence, and when registered
it related back to its date in 1877. The evidence dis-
proves title by possession. [Boyd, C. : What about the
evidence of a valuable consideration in that deed ?] That
evidence was not given, and as so many of the parties are
now dead, perhaps it could not be given. Valuable con-
sideration must be presumed in favour of the plaintiffs
under R. S. O. ch. 114, sec. 57, and ch. 61, ss. 44 and 46.
Bain, Q.C., in reply.
March 8, 1890. BOYD, C. :—
Where priority is sought under the Registry Act for
a conveyance subsequent in date to one eai*lier in date,
it is essential that proof of valuable consideration should
be given. For this purpose the mere production or regis-
tration of the instrument is not enough and no inference
to this effect can be reasonably drawn from the provisions
referred to by the plaintiff: sec. 57 of the Registrj' Act,
R. S. O. ch. 114, and sees. 44 and 45 of the Evidence
Act R. S. O. ch. 61. In some cases the legislature has
Digitized byVjOOQlC
XIX.] BARBER V. M*KAy. 4^
relaxed this rule, as in the case of defence of purchaser Judgment.
for value R S. O. ch. 100, sec. 36, and in case of a subse- BoydTc.
qnent purchaser ch. 100, sec. 6.
The Caruida Permanent Loan and Savings Company
V. Page, 30 C. P. 1, does not carry the matter beyond the
language of the statute that the duplicate instrument
with certificate of registry was sufficient evidence of its
execution. The deed relied upon by the plaintiff as giving
him priority by virtue of its prior registration is expressed
to be for 8450, and was put in by himself ; had it been
called for and put in by the defendant the plaintiflf might
have invoked Bondy v. Fox, 29 U. C. R. 64, as dispensing
with further proof of value.
But as the case stands it is governed by the law laid
down in early decisions under the Registry Acts, which
are still applicable. Where plaintiflf and defendant each
claimed under deeds from the same quarter, it was held
that the deed prior in date prevailed over a deed prior
in registration, the latter not being proved to be for a
valuable consideration : McKenny v. Amer, 8 C. P. 46.
There is no evidence of value as against a stranger, from
the fact that the deed put in evidence by the plaintifi"
appears to be for $450, and has the usual receipt thereon.
This was laid down in Doe d. Cronk, etc, v. Smith, 7 U. C.
R. 376, a case that has always been followed : Blackburn
V. Oummerson, 8 Gr. at p. 334.
The plaintiff here fails, because relj'ing upon the
registry laws to give priority to the deed under which
he claims he has failed to prove the consideration, and
it is not suggested that the difficulty could be remedied
by opening up the matter for further trial.
The defendant and children were in possession from 1873
till 1879 by virtue of a conveyance to her husband in 1873
from the then owner. Possession was then had ibr about
a year by the holder of a subsequent conveyance from
the same owner made in 1877. 'J'his ended, however, on
the return of the defendant, who resumed possession and
has since lived upon the lot in question.
7 — VOL. XIX. O.R.
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60 THE ONTARIO REPORTS. [VOL.
Judgment. The plaintiffs claim under the deed of 1877, which being
3^,y4^ C. ^^^ ^h^ ^^^ ^^^^ registered in 1887, is said to have
avoided the earlier conveyance, which has never been
registered. It is not needful to consider this aspect of
the case, though a good deal may be said in favour of
the defendants' contention that the late registry did
not give priority to the plaintiff, having regard to the
observations of Sherwood, J., in Rogers v. Bamum, 5
O. S. at p. 261.
But the judgment may rest on the other ground that the
deed as registered is not by the plaintiffs proved to be for
value.
Judgment will be entered accordingly with all costs of
litigation.
Ferguson, J., concurred.
Q. A. B
Mem. — In the head-note of the report of this case, 17 O. R. 5S2, the
words " no notice having been given under K. S. 0. 18S7, ch. 61, sec 38,"
in the fifth and sixth lines, should be struck ouc
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XIX.] RE DERBY AND BOARD OF HEALTH OF PLANTAGENET. 51
[QUEEN'S BENCH DIVISION.]
Re Derby and the Local Board of Health op South
Plantaqenet.
Municipal corporations— PubUc Health Act, /?. S. O. ch. 205, see. 49—
Payment for services of physician— Judgment against local board of
health as a corporation — Order upon treasurer of municipality
Mandamus.
Section 49 of the Public Health Act, R.S.O. ch. 205, provides that ** The
treasurer of the municipality shall forthwith upon demaud pay out of
any moneys of the municipality in his hands the amount of any order
given by the members of the local board, or any two of them, for
services performed under their direction by virtue of this Act. "
A physician recovered judcmeut in a Division Court against a township
local board of health, sued as a corporation, for services performed in a
small-pox epidemic.
It appeared that the physician had been appointed medical health officer
of the municipality by the council, but that before suing the board he
had brought an action against the municipal corporation for his
services, in which he failed.
Upon motion by the physician for a mandamus under sec. 49 to compel
the members of the board to sigu an order upon the treasurer of the
municipality for the amount of the judgment recovered : —
Held, that, although it might be difficult to conclude that a board of
health is constituted a corjjoration by the Act, yet the judgment of the
Division Court practically decided that this board might be sued as such
and, not being in any way impeached, it could not be treated as a
nullity. As there appeared to be no other remedy, the applicant was
entitled to the mandamus.
This was an application by W. J. Derby for an order in Statement,
the nature of a mandamus ordering John Moffatt and
others, described as the members of the local board of
health of the municipal corporation of the township of
South Plantagenet, to grant an order to the applicant on
the treasurer of the township for payment to him of the
«um of $89.10, being the amount of a certain Division
Oourt judgment obtained by the applicant against the local
board o£ health of the township.
The affidavits filed in support of the motion shewed that
at the date of the motion the persons constituting the local
board of health of the township were Narcisse Parent, the
reeve, Alexander McLean, the clerk, who were ex officio
members of the board under R. S. O. ch. 205, sec. 39, sub-
sec 1, and John Moffatt, William Franklin, and Douthe
Digitized byVjOOQlC
52 THE ONTARIO REPORTS. [VOL.
Statement. Sabourin, the members appointed by the township council ;
that the last three named persons were first appointed in
February, 1885, and had been annually re-appointed since ;
that the applicant, W. J. Derby, was a physician who had
been appointed medical health officer of the township by the
township council in April, 1886, but without any special
resolution with regard to salary or remuneration; that
shortly afterwards he had performed the services for which
he claimed to be paid, the principal part of his claim being
a sum of $75 for services rendered to one Reid, while he
was suffering from small-pox ; that he had brought an
action in the Division (yourt against the municipal corpora-
tion to recover the amount from them, and that judgment
had been given against him; that he then brought an
action in the Division Court against Reid and the local
board of health of the township to recover the amount, the
board being sued as a corporation ; that Reid appeared at
the trial of the action, as did also the local board of health,
and that the action was dismissed as against Reid, but was
successful against the local board of health, against whom,
as a corporation, he recovered judgment for $75 and costs ;
that they had no property out of which he could levy the
amount, and that his only means of recovering the amount
of his judgment was by a mandamus compelling the
members of tlie board, or any two of them, to give him an
order on the township treasurer, under the provisions of
sec. 49 of ch. 205, R. S. O.
The only affidavit filed on behalf of the members of the
board was by Alexander McLean, who stated that the
services rendered by Dr. Derby were at the request of the
patient Reid, nnd not otherwise, and that he was well able
to pay the plaintiflTforall such services; that Reid 's family
were isolated by order of the board of health, and a man
placed in charge to prevent outside communicition, and
that this man was paid by the municipality; and that the
municipality denied all liability for the applicant's claim,
and insisted that the applicant was concluded by the
judgment already given in their favour.
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JLIX,] R£ D£RBT AND BOARD OF HEALTH OF PLANTAQENET. ^;
The motion was argued before MacMahon, J., in ArgQinent.
Chambers, on the 14.th May, 1889.
Skepley, for the motion.
Aylesworth, contra.
September 14, 1889. MacMahon, J. — (after stating the
facts.) : —
The simple question is, as the plaintiff has recovered
a judgment against the local board of health, whether he
is entitled to have a mandamus issued commanding the
local board to make an order on the treasurer of the muni-
cipality for the amount of such judgment.
Under sec. 49 of ch. 205, R S. O., the treasurer of the
municipality shall forthwith upon demand pay out of any
moneys of the municipality in his hands the amount of any
order given by the members of the local board, or any two
of , them, for services performed under their direction. So
that the only manner in which payment can be obtained
for services performed is by an order on the township
treasurer.
By sec. 53, when the local board of health has authority
-to direct anything to be done by any person or corporation,
in default of its being done by the person, the local board
may direct that such thing shall be done at the expense of
the person in default, and may recover the expense thereof
with costs by action or distress ; and, in case' of non-pay-
ment thereof, the same shall be recovered in like manner
as municipal taxes.
By sec. 62 all reasonable costs and expenses incurred in
abating a nuisance shall be recovered by the municipal
council or local board of health under ordinary process of
law.
The several proyisions of the Public Health Act to
which I have referred shew that local boards of health are
^empowered to sue.
Digitized by VjOOQIC
54 THE ONTARIO REPORTS. [VOU
Jadgmenr. The judgment stands against the local board, and I
MacMaiii u ^'^st assume that it was recovered against them in conse-
J- quence of services rendered by the plaintiff in his capacity
of medical health officer under the directions of the local
board ; and the only way in which the plaintiff can claim
any benefit from the judgment is by obtaining from the
local board of health an order on the township treasurer for
payment of the same.
The difficulty which presented itself to me was, in con-
sequence of the medical health officer being the appointee
of the municipal council under the 47th section of the
Public Health Act, and the plaintiff having been so
appointed, and having failed in his action against the
authority appointing him, for the very same cause of action
that he was successful in against the board of health,
whether the municipality could be made liable under the
circumstances through the action of the local board of
health.
There is a somewhat similar provision to that contained
in the 49th section of ch. 205, R. S. O., for payment by the
township treasurer on the order of the local board of
health, to be found in the Imperial Act 1 & 2 Vic. ch. 14,
sec. 2. Under the latter Act, where any person is appre-
hended under circumstances denoting a derangement of
mind, it shall be lawful for two justices of the peace
for the said county to ascertain by the best legal
evidence that can be procured, under the circumstances, of
the personal legal disability of such insane person, the
place of the last legal settlement of such person, and to
make an order on the overseers of the parish where they
adjudge him to be settled, for the costs of examining and
conveying him to the asylum, and of his maintenance in
the asylum, and where such place of settlement cannot be
ascertained, such order shall be made on the treasurer of
the county, &c., where such person shall have been appre-^
hended. An appeal is given by section 3 of that Act to-
the overseers of the parish in which the justices shall ad-
judge any such insane person to be settled. But I suppose,
notwithstanding the right of the parish to appeal, that the
Digitized byVjOOQlC
XIX.] RB DEBBT AND BOARD OF HEALTH OF PLANTAGENET. o.j
jastioes could, in the event of their refusal to do so, be Judgment.
compelled by mandamus to make an order on the overseer MacMr^hon
or treasurer of the county for the costs of examining such '^•
person and conveying him to the asylum: iZ^^ina v. The
Clerk of the Peace of West Yorkshire, 20 L. J. M. C. 18.
In Regina v. Commissioners of Sewers for Xorfolky
15 Q. B. 549, it appeared that a bill was introduced
into Parliament for the purpose of more eflfectually drain-
ing a particular level ; the defendants bond fide and with
discretion caused their clerk to take all reasonable and
necessary steps for opposing the bill in Parliament and to
prevent its passing, and thereby a considerable amount of
costs and expenses were incurred and remained due to the
clerk, who had since died. It was held, notwithstanding
the commissioners might not be compellable by mandamus
to oppose such bill, that the legal representatives of the
clerk were entitled to a mandamus directing the commis-
sioners to levy a rate on the land within their jurisdiction
under the 4 & 5 Vic. ch. 45, and to pay off the amount due
for the costs and expenses.
See also Re Western Fair Association v. Hutchinson,
12 P. R. 40 ; Re Macfie v. Hutchison, ib. at pp. 177-9.
The order for the mandamus must go directing the mem-
bers of the board of health for the township of South
Plantagenet, or any two of them, to make an order in favour
of the plaintiff on the township treasurer of the said
township for the payment by him to the plaintiff' of the
sum of $89.55, being the amount of the judgment debt and
costs recovered against the said local board of health.
The plaintiff is, I think, entitled to the costs of the motion.
John Moffatt and the other members of the board named
in the order appealed against this decision, and their appeal
was argued before a Divisional Court (Armour, C. J., and
Street, J.) on the 26th November, 1889.
Ayleswoi'th, for the appellants. A local board of henlth
is not a corporate body. Sec. 49 of the Public Health
Act casts no statutory duty on the appellants to grant the
Digitized byVjOOQlC
56 THE ONTARIO REPORTS. [VOL.
Argument, respondent an order on the municipality. Such a duty is
nowhere cast upon them, unless inferentially. The mem-
bers of such a board may sign an order for their own protec-
tion, to avoid a personal liability, but they are not obliged
to sign. The error of Dr. Derby was in suing a nonentity.
He first sued the township and failed, and then conceived
the idea of taking this proceeding. What he could not
obtain directly he should not be allowed to obtain indirectly*
There is a statutory duty upon school trustees to give
orders upon the municipality, and therefore the cases with
regard to them are of no assistance. The only cases at all
applicable are Re Commercial Bank and London Oas Co.,
20 U.C.R. 233. and Re McDougall and Lobo, 21 U.C.R. 80.
Shepley, for W. J. Derby, the respondent. There is
abundant internal evidence in the statute that a local
board of health may sue and be sued as a body corporate :
sec. 53, and other sections referred to by Mr. Justice
MacMahon. But, however that may be, that was a ques-
tion for the Division CJourt, and it has been determined
in that Court ; there is no appeal ; and prohibition would
not lie. The judgment of the Division Court assists us;
it establishes that the local board of health has a corporate
capacity, and owes the respondent a debt-; it enables us* to
answer rea judicata to my learned friend's argument. We
are directly within Regina v. Gommissio-nera of Sewers
for Norfolk, 15 Q. B. 549, and the other cases cited by the
learned Judge. If the board can do all the things men-
tioned in the statute, they can incur a debt.
Aylesworth, in reply, cited Scott v. Burgess, 19 U. C. R.
28 ; 21 C. P. 398.
March 8, 1890. The judgment of the Court was de-
livered by
Street, J. : —
The appellant has recovered judgment for the amount of
his claim against the local board of health, who were sued
in the Division Court, and who there defended the action
Digitized byVjOOQlC
XIX.] RE DERBY AND BOARD OF HEALTH OF PLANTAGENET. 57
as a corporation. It is argued before us that no such cor- Jn<lginent.
poration is created by the Act, and that therefore there is street, J.
no foundation for this application for a mandamus, no debt
having been proved to be due by the individual members
of the board. We should perhaps have some difficulty in
coming to the conclusion that the local board of health for
each municipality is constituted a corporation by the Act ;
but we find here a judgment by a Court of competent
jurisdiction, not in any way impeached, practically deciding
that this local board of health may be sued as a corpora-
tion. We have no power upon this application to declare
that judgment a nullity ; and if we were now to refuse to
treat it as valid, and refer the appellant back to his action
against the individual members of the board, we should be
refusing him a remedy of any kind for a claim which the
Division Court has held him justly entitled to recover. If
he were to be told that he must sue the individual members
of the board in the Division Court, he would naturally be
met by the objection there that his claim had been already
turned into a judgment against the corporation, and that
he could not recover against the individuals also. We
must, therefore, treat this judgment as sufficiently establish-
ing agrainst the local board of health a debt which they are
bound to pay; and as the only method of enabling the
applicant to recover his debt appears to be by the manda-
mus asked for, we think it should go directing all the
members of the board of health to sign the order asked
for : it will not be necessary that more than two of them
should actually sign it, but all are compellable to do so.
The applicant should have his costs of the motion in the
Divi.donal Court as well as those of the original application.
8 — VOL. XIX. o.R.
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58 THE ONTARIO REPORTS. [VOL.
[CHANCERY DIVISION.]
Anderson et al. v. Hanna et ai-.
Sialute of lAmiUUions — Lands— ffeira-al'law-— Tenant by cuHfjry of equU-
able eatcUe—Bedemption judgment — Mortgage — Power o/mle.
In an action for redemption and possession against a mortgagee by the-
tenant by the curtesy and the heirs of a deceased mortgagor who were
infants when possession was taken by the mortgagee, it appeared that
the right of the tenant by the curtesy had been barred by the statute
as against the mortgagee, but that of the heirs had not : —
Heldf that the heirs were entitled to redeem subject to the right of the
mortgagee and those claiming under him to hold possession during the
life of the tenant by the curtesy whose estate nad by virtue of the
statute become vested in the mortgagee.
Proper judgment where in such circumstances the heirs-at-law take
proceedings for redemption of the lands during the life of the tenant
by the curtesy.
Statement. This was an action for the redemption of certain lands.
The statement of claim set out that the plaintiff, James
Anderson, was the surviving husband of Ellen Anderson,
who died intestate, at Toronto, in the year 1874, and that
the other plaintiffs were the surviving children and heirs-
at-law of the said Ellen Anderson : that at the time of her
death the said Ellen Anderson was seized in fee of or was
otherwise well entitled to an estate of inheritance in
certain lands in the city of Toronto, subject only to a
mortgage, dated the 10th of August, 1874, made by the
plaintifi, James Anderson, to Isaac Abbott, and expressed
to secure S200 and interest : that shortly after the death
of his said wife the plaintiff, James Anderson, who was
entitled to a life estate as tenant by the curtesy in the said
lands, went to live in the United States of America, taking
with him the other plaintiffs, his children, who were then
minors : that the said mortgage, together with the said
mortgaged premises and mortgage debt, was subsequently
assigned by the said Abbott to one Margaret Brown who
assigned the same to one John Clarence Gray, and on or
about the 19th day of January, A.D. 1877, the said John
Clarence Gray, professing to act under the power of sale in
the said mortgage, executed a conveyance of the said land
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XIX.] ANDERSON V. HANNA. 59
and premises to the defendant, Hanna : that the lands had Statement.
subsequently, by sale and mortgage, passed into the hands
of various parties now among the defendants to this action :
that the defendants, or some of thera, during their occu-
pancy of the said premises had committed great waste and
destruction upon the same by pulling down and removing
therefrom a certain dwelling house, and by suffering the
buildings upon the said premises to become greatly dilapi-
dated, and the plaintiffs charged that the said defendants
were liable to the plaintiffs for the said waste and dilapi-
dation ; and that the damages they, the plaintiffs, had
sustained by reason of the said waste and dilapidation of
the said mortgaged premises ought to be charged against
the defendants in taking their accounts as mortgagees in
possession under the said mortgage made by the plaintiff
Anderson, as aforesaid, and that the defendants were also
chargeable with large sums for rents of the said premises
. which they might have received but for their wilful neglect
and default: that the defendants refused to allow the
plaintiffs to redeem, and refused to reconvey the said
mortgaged premises : that they, the plaintiffs, claimed to
be entitled to redeem the said land, and upon payment of
the amount due, if anything, upon the said mortgage made
by the plaintiff, Anderson^ to obtain a reconveyance and
the possession thereof. The plaintiffs therefore claimed to
be let in to redeem the said mortgaged property, and that
an account might be taken, with yearly rests, of rents and
profits of the premises comprised in the said mortgage
made by the plaintiff Anderson, received by the mortgagee,
the said Isaac Abbott, or anyone claiming through or under
him, or by the defendants, or by any other person for his
or their use, or which without his or their wilful neglect
and default might have been so received : that an enquiry
might be made whether the said mortgaged premises had
become depreciated by reason of the waste and dilapidation
aforesaid to any and to what extent, and that what should
appear due to the plaintiffs in respect of such dilapidation
might be set oft' against the amount which might be found
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60 THE ONTARIO REPORTS. [VOL.
Statement, due to the defendants for principal, interest, and costs, and
that the balance, if any, in favour of the plaintiffs, might be
ordered to be paid by the defendants to the plaintiffs.
The defendants, amongst other defences, relied upon the
Statute of Limitations, R. S. O. 1887, chap. 111.
The remaining facts of the case sufficiently appear from
the judgment.
The action came on for trial before Robertson, J., on
April 16th and I7th, 1889, at Toronto.
J, H. Ferguson and O'Brien for the plaintiffs. The
defendants derive title from an assignee of the power
of sale, and Re Gilchrist and Island, 11 O. R. 537, is
decisive. They referred to Faulds v. Harper, 2 O. R. 405,
• 9 A. R. 537, 11 S. C. R. 639.
Reeve, Q. C, and Mills for the defendants Hanna and
Kerr. As to the power of sale not extending to an
assignee, see Re Goath and Wright, 8 C. L. T. 10; Grant v.
Canada Life Assurance Company, 29 Gr. 256; Boyd v.
PetHe, L. R 7 Ch. 385; Warner v. Jacob, 20 Ch. D. 220.
As to the Statute of Limitations, Anderson is barred, and
the children are not entitled until after his death. If the
sale under the power of sale is not upheld, then the Statute
of Limitjitions is a complete defence: R. S. O. 1887, ch.
Ill, sec. 19; Faidds v. Harper, 2 O. R. 405; Kinsman v.
Rouse, 17 Ch. D. 104; Forster v. Patterson, 17 Ch.D. 132;
Bright v. AlcMun^ay, 1 O. R. 172. These defendants are
in as good a position as the mortgagee in possession, and as
to improvements and rents and profits, they are in a better
position: Parkinson v. Hanbury, 2 H. L. Cas. 1; Carroll v.
Robertson, 15 Gr. 183; Skae v. Chapman, 21 Gr. 534;
Fisher on Mortgages, 3rd ed. Vol. 1, p. 492; Coote on
Mortgages, 4th ed. sec. 659.
Ross for the defendants Fitch and the Western Canada
Loan and Saving Company.
Ferguson in reply. Hanna was the assignee of the
mortgage debt, but went into possession as owner claiming
under the deed from the mortgagee, and as the latter was
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XIX.] ANDERSON V. BANNA. 61
never in possession, be is not in a position to say he is a Argument,
mortgagee in possession. I refer also to Re Taylor, 8 P.R.
207, as to the statute not applying. If a party goes
into passession of lands owned by an infant, he holds as
bailiff or tenant of the infant, and the Statute of Limita-
tions does not run.
June 8th, 1889. Robkktson, J. : —
Action commenced on June 22nd, 1888. Ellen Ander-
son, wife of James Anderson, died, seized, subject to a
mortgage, on December 13th, 1874, leaving her surviving,
her husband, the said James Anderson, and their children
as follows:
1. Mason John, since deceased, in his 26th year.
2. Christina Pollock, now 26 years of age.
3. Andrew, now 24 years of age.
4. Charles , now 23 years of age.
5. Eliza Jane , now 19 years of age.
Mason John died intestate and unmarried and without
issue.
James Anderson left Ontario in or about 187G (two
years after his wife s death) and took his four surviving
children with him.
The mortgage fell due on August 10th, 1875, i. e., in one
year from its date, August 10th, 1874. Mrs. Anderson
became entitled to the equity of redemption on August
11th, 1874, and she died before the expiration of the year.
All her children were then under age as follows: (omitting
Mason John) — Christina Pollock, 12 years; Andrew, 10
years; Charles, 9 years; Eliza Jane, 5 j'eaiu
The defendant, Hanna, bought and took possession in
January, 1877. The statute, therefore, did not begin to
run in his favour as against Christina Pollock, until
1884, at which time she came of age, and she would
have five years thereafter to commence her action, that
would be in 1889; and as against Andrew, until 1886, at
which time he came of age, and he would have five years
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•02 THE ONTARIO REPOUTS. [VOL.
Judgment, thereafter to bring an action, so that the action is brought
i^obertson, J. in time by all the heirs, James Anderson, the father, how-
ever, was under no disability, and the statute ran against
him from the time Hanna took possession in January,
1877. So that as against James Anderson the defendant
Hanna has a good title. Anderson's title is a life estate
as tenant by the curtesy. The question then arises
whether the heirs-at-law can redeem and recover possession
before the life estate falls in. In Wigle v. Men^k, 8
C. JP. 307, Draper, C. J., held that persons who have inter-
ests affecting the estate, i. 6., the life estate of the tenant
by the curtesy, will be left in the same condition in point
of benefit, as if no interference or disposition of that
estate by surrender or otherwise had taken place, and
thus a lease made, a rent charge granted, or a judgment
confessed by the tenant for life, will remain in force and
affect the land during the period of the estate which is
surrendered, etc., and therefore, if the defendant Hanna
in this case, has acquired a title by possession, as against
Anderson, the tenant for life, his title continues until the
death of Anderson. In a case where the tenant for life
surrenders or assigns his estat.e to the reversioner,
Preston on Merger, at p. 454, old edition, states the gen-
eral conclusion to be drawn thus: "That the particular
estate becomes merged, yet all the estates derived out of
that estate, and all charges imposed upon the same estate,
and all interests created out of it, by the person who was
at any time the owner thereof, shall have continuance
notwithstanding the merger of the estate on which the
incumbrances were charged or out of which they were
created, in like manner as if the particular estate had
continued." Again the learned Chief Justice Draper
«ays in Wigle v Merrick, 8 C. P. at p. 316 : '*He (Preston)
also gives his opinion in regard to the effect of merger
(Preston on Merger, p* 577) on the Statute of Limi-
tations, to the effect that persons having rights or titles in
respect to the successive estates, cannot cause the effect of
.surrender or merger of the right or title to a particular
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ilX.] ANDERSON V. HANNA. 63
estate so as to accelerate the right of the person who is Jndgment.
•entitled under the reversion or remainder, to pursue his Robertson, J.
remedy and prosecute his right. Such merger, surrender,
or extinguishment would prejudice the person, who under
the Statute of Limitations, had acquired a title as against
the rightful owner of the particular estate, and, referring
to cases where the tenant for the particular estate releases
to the disseisor, he concludes, that when there is a disseisin
of tenant for life, and as a consequence (with the exception
of the King) of a person who has the remainder or rever-
sion, then the release by the tenant for life operates by
way of confirmation of title, by adding the right to the
seisin, and no real action can be maintained by the person
who has the reversion or remainder until the determination
0} the term of enjoyment conferred by the estate for life.
* * * Even without the authority of decided cases,
1 should attach great weight to the opinion of a real
property lawyer of such profound learning as Mr. Preston.
He refers, however, to Co. Lit. 256 6, 275 a. In Co. Lit.
357 6. and 358 b. it is said: 'Having regard to the parties
to the surrender, the estate is absolutely drowned, but
having regard to strangers who were not parties or privies
thereto, lest by a voluntary surrender, they may receive
prejudice touching any right or interest they had before
the surrender, the estate surrendered hath in consideration
of law a continuance/"
The result is that so far as the plaintiff James Ander-
son is concerned, I am of opinion that the Statute of
Limitations has barred his right to recover, and this is
4ipart altogether from the defendants' rights under the title
obtained by Hanna, as purchaser under the power of sale
•contained in the mortgage ; and the defendants being in
possession can set up the life estate of James Anderson,
the fiftther, and the interest acquired by virtue of the
Statute of Limitations under it against the rights of the
other plaintiffs, the reversioners, to recover in this action^
except in so far as they may be entitled to redeem, subject
to the right of the several defendants to hold as against
them so long as the tenancy for ilfe is in existence.
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64 THE ONTAUIO REPORTS. [vOL.
Judgment. The question remaining to be disposed of, then, is whether
KobertBOD, J. the power of sale contained in the mortgage under which
the defendant Hanna purchased, was properly exercised
or so exercised as to preclude the plaintiffs, other than
James Anderson, from redeeming.
The mortgage, it must be borne in mind, was given by
plaintiff James Anderson when he was owner of the fee ;
on the following day he conveyed his equity of redemption
to one Wm. S. Thompson, consideration expressed to be
81,200; on the same day Thompson, in consideration of
a like sum, convo3'ed to Ellen Anderson, wife of James
Anderson, the mortgagor ; afterwards, on December 13th^
1874, Ellen Anderson died intestate, leaving her surviving
her husband and their children, the other plaintiffs, all
infants, her heirs and heiresses-at-law, entitled, as she
was, to the equity of redemption, subject to the life
estate of their father, who became tenant for life, by
the curtsey of England, on the execution of the deed
conveying Thompson's equity of redemption to his
wife Ellen. The proviso contained in the mortgage
is in these words : ** Provided that the said mortgagee
(Isaac Abbott) in default of payment fur one month
may, without any notice in writing, enter upon and
lease or sell the said lands." Before default was made
Abbott duly assigned the mortgage, the money thereby
secured, &c., together with the full benefit of all powers and
of all covenants and provisoes contained therein to one
Margaret Brown, on July Cth, 1875, and on June 8th,
1876, Margaret Brown assigned the same to John C. Gray>
who, on January ICth, 1877, caused the property
therein mentioned to be sold by auction under the power
of sale contained in the mortgage, at which sale the defend-
ant Hanna became the purchaser at the price of B475, and
on the 19th day of the said last mentioned month Gray
conveyed in fee to Hanna. At the date of the sale, and
for several months before, the mortgagor and his infant
children, who had the right as heirs and heircsses-at-law
of their deceased mother to redeem, were out of the country^
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XIX.] ANDERSON V. HANNA. 65
and it is not in evidence that any notice whatever had Judgment,
been given to either Anderson or the said heira or heiresses- Robertson, J.
at-law, or any one of them.
The objection is taken that the power of sale did not
enure to the benefit of the mortgagee's assignee ; that the
mortgage purports to be made "in pursuance of the Act
respecting short forms of mortgages," but in regard to the
form of words used, does not adopt the words prescribed
in column one of schedule D. to the Act, which are as fol-
lows: "Provided that the said mortgagee on default of
payment for months, may on notice, enter on
and lease or sell the said lands." And Re Gilchrist and
Island, 11 O. R. 537, is relied on, that being a case be-
tween the assignee of the mortgagee, and the mortgagor,
as it is here, between the assignee of the mortgagee and
the hell's of the party entitled to the equity of redemption
who stand in the same position as the mortgagor, had he
not conveyed his equity of redemption. My attention, how-
ever, is drawn by counsel for defendants to the case of Clark
V. Harvey, 16 0. R. 159, in which Rose, J., in the Divis-
ional Court dissented from the Chancellor, in Re Gilchrist
and Island, and Jn which Stkeet, J., concurred with the
Chancellor, and to the case of Pottruff v. Tweedle, tried be-
fore me at the last Hamilton Sittings (not reported) in
which I held that it was not necessary to make an entry
by the mortgagee before sale, etc. But Clark v. Hai^^ey,
as well as Potti*uf' v. Tweedle, were between the original
parties to the mortgage. Now, in this case, the question
arises on a power of sale, in which the same words are
used as in Pottruff v. Tweedle, except in that case the
power could be exercised, immediately upon default,
whereas, in this one month is to elapse, and there the
power was exercised by the original mortgagee, whereas
here it has been exercised by an assignee. All the reasons,
therefore, given by the learned Chancellor in Re Gilchrist
and Island, and by Mr. Justice Street in Clark v. Harvey,
apply with equal, if not greater force in this case, the
9 — ^VOfL, XIX. 0.R,
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66 THE ONTARIO REPORTS. [VOL.
Jndgment parties entitled being infants, for holding that the assignee
RoberteoD, J. could not confer a good title upon the purchaser, etc.
The result, therefore, is that the action, so far as the plain-
tiff James Anderson is concerned, is dismissed with costs on
the grounds that the defendants have acquired a title
against him, under and by virtue of their possession, for
more than ten years before this action was commenced,
and that the other plaintiffs are entitled to redeem ; and I
refer it to the Master in Ordinaiy to take the accounts, and
to make enquiry as to whether the mortgaged premises
have become depreciated by reason of the waste and di-
lapidation committed by the defendants and to what ex-
extent, and that whatever may be found due to the plain-
tiffs in respect thereof that the same be set off against
the amount found due to the defendants, eta, but inasmuch
as the plaintiff James Anderson cannot redeem, and the de-
fendants have the right to the possession of the property,
for and during the term of his life, I do not think the
defendants, or either of them, are entitled, in taking such
accoQnts now, to charge for any improvements made by
them or any of thenS, or for the money expended by them
or any of them on the property, unless they agree to waive
their rights acquired against the plaintiff James Anderson,
in which case, they consenting that judgment may be
entered against them and each of them for possession, six
months after the accounts are taken, the plaintiffs redeem-
ing within that time, otherwise the taking of all the
accounts is postponed until after the death of the plaintiff
James Anderson, the life tenant. The costs of the plain-
tiffs other than James Anderson, should be paid by the
defendants up to and inclusive of the trial, the costs of the
reference to be paid by the plaintiffs, other than James
Anderson, unless the defendants consent as aforesaid, in
which case they are to be paid by all the plaintiffs as in an
ordinary case for redemption.
A. H. F. L.
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XrX.] LE£SON V. LICENSE GOMMISSIONERS OF DUFFERIN. 67
[chancery division.]
Lesson v. The Board of License Commissioners of
THE County of Dufferin et al.
Maayiamw — Taverns and shopa— -License commissioners— Notice of cictUm
—J?. 8. 0. ch, 194-
A mandamns will not be granted to compel a board of license commis-
sioners to issne a license to a persoi^ to whom one has been granted, bnt
not issued, by the retiring commissioners, where they have not com-
pleted their functions, their acts having been reversed by their snc-
oessors in office.
A notice of action is necessary in an action for damages against a board
of license commissioners acting under R. S. O. ch. 194.
This was an action brought by W. E. Leeson against theg^^^n,^!^
board of license commissioners of the county of Dufferin
and James £. Duffy and William Ryan, the last two defen-
dants being the holders of the Jast two licenses granted by
the board.
The action was tried at Toron to, on November 22nd, 1889
before Falconbhidge, J., without a jury.
BigdoWy Q. C, and Hughaon, for plaintiff.
Ddameie, Q. C, and Elgin Meyers, for defendants.
The plaintiff had petitioned for a license and his applica-
tion had been approved of by the inspector. He had paid his
money in and a resolution of the board had been passed
granting him a license as No. 7 on their list. The inspector
was instructed to notify him that it was granted, and he
did so, and plaintiff provided a fire escape for his premises
in compliance with a supposed regulation of the board of
commissioners. Two of the commissioners then resigned
before the license was issued, and the new board refused
to issue him a license, and revising the action of the old
board issued licenses to the defendants Duffy and Ryan
instead of the plaintiff and another favoured by the former
board.
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68 THE ONTARIO REPORTS. [VOL.
Statement. The action was brought to set aside and cancel the last
two licenses granted or one of them, as subsequent to the
plaintiff's, and to compel the board to grant him one, and
if it was found that they had put it out of their power to
grant him one then for damages.
Judgment was reserved, and was subsequently delivered
as follows ;
January 20th, 1890. Falconbridge, J. : —
I cannot find any ground on which I think I can, or
ought to, set aside the licenses issued to Duffy and Ryan,
or direct the issue of a license to plaintiff.
The license in question was, amongst others, signed in
blank by the Provincial Secretary, forwarded to the local
officer, and recalled by the Department before issue. Two
of the old board had signed — one of them after his resigna-
tion, and before its acceptance — but no name of a licensee
had been filled in.
No certificate of the commissioner, under sec. 12, sub-
sec. 2 of ch. 194 R. S. O., was ever furnished to the inspector.
The provisions of sub-sec. 13 of sec. 11 have no applica-
tion to the present case, but only to the case of the board
hearing and disposing of formal objections to the granting
of a license.
The commissioners have issued all the licenses the^' are
entitled to issue. Both municipal censuses are probably
bad, and under the Dominion census the number allowed
would be eight, whereas nine have been issued.
In my opinion the plaintiff has failed to establish any
right to invoke the interference of the Court, and the
action must be dismissed with costs.
From this judgment the plaintiff appealed to the Divi-
sional Court, and the appeal was argued on February 28th
andMarchlst,1890,beforeFERGUSON and Robertson, JJ.*
* A long and exhauatiire argument was had by both sides on the merits,
but as the case went off on the point of the necessity for notice of action
it is not necessary to refer to it. — Kef.
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XIX. LEESON v. LICENSE COMMISSIONERS OF DUFFERIN. 69
Marsh, Q. C, for the plaintiff. Aiguawnt.
Delamere, Q. C, for the defendants.
March 1st, 1890. Ferguson, J. : —
This case has been fully and ably argued on both sides.
Since the adjournment 1 have seen and consulted with my
brother, Falconbridge, who tried the action, and I do not
think that any special benefit would be had by reserving
judgment.
The plaintiff's case fails on two grounds :
1. As to the mandamus. That point was not given up
and abandoned, but it was not pressed upon the considera-
tion of the Court. The granting of a mandamus would
be improper, and I think the plaintiff's counsel was quite
right, when he could not see his way clear to that mode of
relief, in virtually admitting the fact.
2. As to the damages. I consider the want of notice before
action is a complete answer. The defendants had jurisdic-
tion in the premises under the statute R. S. O. ch. 194^
and they believed they were bond fide acting under the
provisions of that Act, and so they were entitled to notice
of action. It is sufficient if they really thought they were
acting under some authority. No notice of action having
been given, I must hold that the action fails on that ground,
and in doing so it is not necessary for me to consider any
of the other grounds urged upon our consideration.
Robertson, J. : —
I concur in what has just been said by m)'^ brother,
Ferguson. I consider the board of commissioners are
public officers, and as such entitled to notice of action, and
that notice not having been given the plaintiff's action
fails. This is not a case for a mandamus ; no demand was
made, and no refusal proved.
Judgment ajffirmed, with coats.
G. A. B.
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70 THE ONTARIO REPORTS. [VOL.
[QUEEN'S BENCH DIVISION.]
DoDDS V. Canadian Mutual Aid Association.
Ifuuranee — Lift— Provision for payment in case of "total disability*^ —
CowUrtiction of provision — Evidence.
The plaintiff, who was a fanner, had his life insured by the defendants,
and there was a clause in the policy or certificate of insurance providing
that in case of " total disability " of the insured the insurers would pay
him one-hidf of the amount of the insurance. About two years after
effecting the insurance the plaintiff conveyed his farm to his son, reserve
ing to himself and wife certain benefits, but continued to work upon
the farm for about a year thereafter, when he was attacked by bron-
chitis and asthma.
In an action to recover one-half the amount of the insurance the evidence
shewed that the plaintiff was totally disabled, permanently and for life,
from doing manual labour, and that the diseases from which he suffered
were the proximate and immediate cause of his disability. A medical
witness said that he considered the plaintiff's condition attributable to
a considerable extent to his advanced years, he being about seventy : —
Held, that total disability to work for a living was what was intended to
be insured against, and disability from old age was not excluded,
and the evidence shewed that the plaintiff came within the terms
of the certificate. The arrangement made by the plaintiff with
his son after the certificate was issued could have no effect upon the
prior contract of insurance.
Statement. The plaintiff alleged that the defendants by their cer-
tificate of membership dated the 1st day of April, 1882,.
in consideration of the representations made in this appli-
cation thiBrefor^by the plaintiff and of the sum of $11,
which was then paid, and of the further payment of an
assessment of $1 to be levied by the defendants at the
death of a member of the defendants* association, in
accordance with the rules and regulations of such associa-
tion, insured the life of the plaintiff, who thereupon be-
came a member of the defendants' association, in the
amount of such sum as would equal eighty-five per cent,
of the amount collected of the assessment made for the
payment thereof, but not to exceed $1,100 ; and that the
defendants also by said certificate promised and agreed to
pay the said amount in conformity with the rules and
regulations of the association, to the son of the plaintiff,
Samuel Dodds, $600, and the balance to his wife Catherine
Dodds, within ninety days after due notice and proof of
Digitized byVjOOQlC
I
XIX] DObDS V. CANADIAN MUTUAL AID ASSOCIATION. 7l
the death of the plamtiff ; and in case of total disability Statement.
of the plaintiff they agreed ta pay one-half of the amount
of said insurance of $1,100 to the plaintiff*. That the said
certificate was issued by the defendants and accepted by
the plaintiff* upon certain conditions therein set forth,
which were duly complied with. That long before the
commencement of this action the plaintiff became totally
diAabled, and thereupon became entitled to one-half of the
amount of the insurance above set forth. That the de-
fendants refused to pay that sum or any part thereof. And
he averred performance of all conditions precedent, and
that all things had happened and all times elapsed to en-
title him to recovei^the said sum ; and he claimed the sum
and interest from 30th March, 1889.
The defendants alleged that they were an association
incorporated under chapter 167 of the Revised Statutes of
Ontario, 1877, known as an Act incorporating benevolent,
provident and other societies. They denied that the plaintiff*
after becoming a member of the defendant association be-
came disabled. They also denied that all conditions had
been fulfilled,that all things had happened,and that all times
had elapsed to entitle the plaintiff to the payment of the
sum claimed, and they denied that they were indebted in
any sum whatever to the plaintiff, and that the plaintiff
had any cause of action whatever against the defendants.
Issue.
The cause was tried at the Sittings of this Court at
Orangeville in the autumn of 1889 by Falconbkidge, J.,
without a jury.
The only question in controversy at the trial was
whether there was total disability within the meaning of
the certificate, by which the defendants promised and
agi-eed that *'in case of total disability" they would pay
one-half of the amount of the certificate to the insured.
It appeared that the certificate was issued on the 1st of
April, 1882, and that at that time the plaintiff* was farm-
ing a farm owned by him in the township of Caledon and
was a farmer by occupation; that about two years after
Digitized byVjOOQlC
72 THE ONTARIO REPORTS. [VOL.
Statement, the certificate was issued the plaintiff conveyed his farm,
upon which there was a mortgage of $2,000, to his son, the
latter agreeing to allow him and his wife to continue to
live in the dwelling-house and to have some other privil-
eges; and to pay them $200 a year; that after this he still
continued to work on the farm, and about a 3'ear after he
conveyed the farm to his son he was at4acked by bron-
chitis and asthma, and about two years after he was so
attacked he became unable by reason of these complaints
to do any work on the farm or to do any kind of work ;
and he described the effect any kind of work had upon
him, compelling him immediately to desist from it.
Evidence was given by a medical man that these diseases,
combined with the plaintiff's increasing years, incapaci-
tated him from doing any work on the farm — ^any manual
labour. Evidence was also given by his son and two of
his neighbours that he was wholly unable to work. The
medical director of the defendants stated that the applicant
was a man approaching seventy years of age, and at that age
a man might be expected to shew symptoms of declining
health, and that he considered his condition to be attributed
to a considerable extent to his advanced years ; that he
would not consider that the combination of bronchitis and
asthma would in most cases cause total disability ; that he
would define total disability to be a condition in which a
person is totally unable to do anything by which he could
support himself or his family; he also shewed, as did the
secretary of the defendants, that the defendants issued
certificates such as the one in this case to wealthy persons
who had retired from business.
The learned Judge found for the plaintiff, and directed
judgment to be entered for him for $550, with full costs of
suit.
At the Hilary Sittings, 1890, the defendants moved to
set aside this judgment and to dismiss the action with
costs on the following grounds : (1) That the judgment
was against law and evidence and the weight of evidence.
(2) That the evidence did not shew the plaintiff to be
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XIX.] DODDS V. CANADIAN MUTUAL AID ASSOCIATION. 73
totall}'' disabled within the proper meaning of these words Statement
or within the meaning of the certificate of membership
issued by the defendants to the plaintiff, and the rules^
by-laws, and regulations of the defendant association, and
that therefore the plaintiff was not entitled to recover in
this action. (3) That the plaintiff did not comply with the
by-laws, rules, and regulations of the defendant associa-
tion and did not perform the conditions precedent to his
right of action, in that he did not deliver to the defend-
ants before the action a certificate that he wiis wholly dis-
abled for life,given by two medical examiners duly approved
by the medical director and board of trustees of the
defendant association, as required by their by-laws, rules*
and regulations, and in that the plaintiff was not as a
matter of fact wholly disabled for life prior to the insti-
tution of this action. (4) And upon other grounds dis-
closed in the evidence and proceedings.
February 10, 1890. The motion was argued before a
Divisional Court, composed of Armour, C. J., and Mac-
Mahon, J.
Watson, Q. C, for the defendants.* At the time the
plaintiff was attacked by asthma or bronchitis he was not
-carrying on any trade or business. He was not disabled
from the enjoyments of life, and he was not disabled from
work, because he had retired from work. The plaintiff's
disability, if any, is as much on account of age as disease.
The disability intended must be such as to disable a man
from doing all his work, not only a part of it, and it must'
not arise from age alone. The plaintiff is not disabled
from occupation, because he has no occupation. I refer to
Lyon V. Railway Passenger Ass. Co., 46 Iowa 631; Rhodes
V. Railway Passenger Ins, Go,, 5 Lansing (N. Y.) 71 ; Satnyer
V. Casualty Co., 8 Law Reg. N. S. (Mass.) 233, 235 ; Hooper
V. Accidental Death Ins. Co., 5 H. & N. 546 ; Bliss on
Insurance, 2nd ed., pp. 723-5 ; Porter on Insurance, 2nd
ed. p. 460. None of the authorities refer to the case of a
10 — VOL. xtx. o.R.
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74» THE ONTARIO REPOBTS. [vOL.
Aigomenfe. man who has no occupation. This kind of insurance i»
for indemnity, differing from life insurance, and if a man
lives on his means without occupation, he cannot claim
indemnity.
Elgin Meyers, Q. 0., for the plaintiff. The evidence
shews that the plaintiff did not give up work until obliged
to do so by disease.
March 8, 1890. The judgment of the Court was de-
livered by
Armour, C. J.: —
The words "total disability" used in the certificate are
there used without any limitation whatever, either as to
the duration of the disability, or as to the cause from
which it shall arise, or as to the doing of what there shall
be the disability.
Total disability may be temporary or it may be perma-
nent; it may arise from various causes, such as illness, old age^
or accident ; and there may be total disability to do some
things and not others. Construing, however, the word*
''total disability" used in the certificate to mean permanent
total disability or total disability for life, the evidence
shewed beyond dispute that the plaintiff was totally dis-
abled permanently and for life from doing manual labour.
The evidence also shewed that the diseases from which
the plaintiff suffered were the proximate and immediate-
cause of his total disability.
Increasing years were no doubt tending to bring about
gradually total disability, but the diseases hastened it and
brought it on before its time.
But, as I have shewn, total disability arising from old
age is not excluded by the terms of the certificate from its-
benefits.
Total disability to work for a living would seem to be
what was intended to be insured against by the certificate,
and this was the view taken of it by the medical director
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XIX.] DODDS V. CANADIAN MUTUAL AID ASSOCIATION. 75
of the defendants, and the evidence established that the Judgment.
plaintiff was totally disabled to work for a living. Armour, C.J.
The only employment he could have obtained would
have been to do manual labour, and this he was totally
disabled to perform.
The arrangement which was made after the certificate
was issued, with his son, by which he conveyed his farm to
his son in consideration of certain benefits to be conferred
on him by his son, could have no effect upon the prior con-
tract made by the defendants with him, evidenced by the
certificate.
The objection taken to the formal proofs of total dis-
ability furnished to the defendants, if there is anything
in it, is not available to the defendants under the pleadings.
The motion must be dismissed with costs.
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76 THE ONTARIO REPORTS. [VOL.
[QUEEN'S BENCH DIVISION.]
Hamilton v. Groesbeck et al.
Master ami servant — Injury to worhnan by unguarded saw — Actum for
negligence — *' Movifig," meaning of in sec. 15 of Factories Act, R.S.O.
cK :208~'' Defect," meaning of in sec. 3 of Workman's Compensation
for Injuries Act, B. 8. O. ch. lU-
By sec. 15 of the Factories Act, R. S. O. ch. 208, it is provided that all
belting, shafting, gearing, fly-wheels, drums, and other moving parts
of the machinery shall m guarded :—
Held^ that the word *' moving '' is used in its transitive sense, and signi-
fies " propelling," and that no duty is imposed by the section upon
owners of saw mills to guard the saws which are propelled by the
moving parts of the machmery.
By sec. 3 of the Workmen's Compensation for Injuries Act, R. S. O. ch,
141, where personal injury is caused to a workman by reason of any
defect in the condition of the ways, works, machinery, or plant con-
nected with or used in the business of the employer, the workman
shall have the same right of compensation and remedies against the
employer as if he had not been engaged in his work : —
Held^ that the want of a guard to a saw was not a defect within the
meaning of this provision.
Such a defect must be an inherent defect, a deficiency in something
essential to the proper user of the machine.
And where a workman in a saw mill was injured bv beins thrown against
an unguarded saw, and it was shewn that a guard would have prevented
the injury : —
Held^ that an action for negligence was not maintainable against the
owners at common law, nor by virtue of either of the above mentioned
statutes.
rstatement. The statement of claim set forth (2) that the plaintiff
on the 15th August, 1888, was employed by and in the
service of the defendants, and was at work in their stave
mill cutting and piling up the staves as he cut them in the
said mill ; (3) that on the said 15th August, 1888, it was
the plaintiff's duty to cut staves at a stave saw in the
defendants* mill and pile up the said staves in the said
mill when cut; (4) that owing to the defective condition
of the said saw, in that it was not guarded by any frame
or enclosure so. as to prevent a person from being thrown
upon the saw or coming in contact therewith, as it well
might have been, and as such saws are generally guarded,
and owing to the want of room to pile the staves cut by
the same, and having to pile, at the direction of the defen-
dants, said staves too high without having any proper stay
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ilXj HAillLTON V. GROESBECK. 77"
or framework to prevent the said staves from falling, a Statements
large quantity of such staves piled hy the plaintiff in the
defendants' mill, according to the direction of the defen-
dants, fell upon the plaintiff whilst he was properl}' dis-
charging his said duty and threw him upon the said saw,
which was unguarded ; (5) that the defendants at the time
of and previous to the plaintiff receiving the injury com-
plained of, knew or ought to have known of the unsafe and
defective condition of the said saw, and of the narrowness
of the place where said staves were directed by them to
be piled, and of the want of stays or framework to prevent
the same from falling, and it was altogether owing to their
negligence that the said saw was not put into a safe con-
dition by being properly guarded and a proper place pro-
vided for the piling of said staves ; (6) that had the said
saw been in a proper condition by being properly guarded
the plaintiff would not have come in contact with the same
when he fell or was thrown down; and had a proper
place been supplied for the piling of said staves, the plain-
tiff would not have been thrown upon said saw ; (7) that
the plaintiff was aware that the defendants knew of said
defects ; (8) that in consequence of the premises, the
plaintiff's left arm was sawn off or so injured by the said
saw that he had to have it amputated ; and he was other-
wise injured, and he endured great pain and suffering, and
was put to expense for surgical and other charges, and lost
sums of money which he would otherwise have earned for
wages ; and sustained permanent injuries which would for
life deprive him of his usual means of subsistence.
The statement of defence set forth (2) that the defen-
dants denied that they were guilty of any negligence,
either in the manner of guarding their saw or in the
directions given to the plaintiff as to the piling of the
staves; (3) that the defendants said that the accident
which happened to the plaintiff was caused solely by the
careless and negligent conduct of the plaintiff, and was not
in any other way attributable to the fault of the defen-
dants or either of them.
And thereon issue was joined.
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78 THE ONTARIO REPORTS. [VOL.
sutemflnt The cause was tried by Rose, J., at the sittings of this
Court at Chatham in the Autumn of 1889, with a jury.
The plaintiff, a Ud of seventeen, was employed by the
defendants to work at an equalizing machine in their saw
mill. This machine consisted of a circular saw, nineteen
inches in diameter, run by the motive power of the saw
mill, and set in a frame, which was placed with the saw,
standing east and west, about seven feet from one wall of
the saw mill, and about two feet four inches from the wall
running at right angles to the former wall. This machine
was used for the purpose of sawing staves to a prescribed
length, which work the plaintiff was engaged to perform ;
and as the staves were sawed by the machine he threw
them in a pile behind him to the east of the saw. After
a time it became necessary from the size of the pile to
carry the staves so piled out of the mill to the place in
which they were to be put, and the plaintiff began to do
so ; and his account of what took place was thus given :
" Q. Now tell the jury how you came to meet with this
accident ? A. I was taking the staves out of the mill and
I was in the act of taking a bunch down when they fell
on me. Q. Were they tied up ? A. No, sir ; I was in the
act of taking them down when they started, and I fell
right backwards and the staves on top of me. Q. Where
did you fall ? A. Fell right down between the saw and
the wall. Q. Backwards? A. Yes, sir. Q. Did you
suffer any injury ? A. Yes, sir ; I had my arm cut Q.
The left arm ? A. Yes, sir. Q. Did it come in contact
with the saw ? A. Yes. Q. Shew to the jury how you
fell ? A. I fell right backwards. Q. Were your arms
extended ? A, Yes, sir. I put my arms out to save my-
self. Q. And one arm came against the saw ? A. Yes, sir.
Q. And it was sawn off? A. Yes, sir."
Evidence was given to shew that if there had been a
guard over the saw the plaintiff would not have been
injured, and that saws used for a similar purpose in an-
other mill in the same locality had guards; but it was
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XIX.] HAMILTON V. GttOESBECK. 79
shewn that in the great majority of cases in which saws Statement,
were used for a like purpose no guards were used.
The learned Judge left the following questions to the
jury, which they answered as follows :
1. Was the machine in question defective in not having
a guard ? A. Yes.
2. If so. would the injury have been caused if there had
been a guard ? A. No.
3. Was tbe plaintiff nef^Iigent ? A. No.
Upon these findings the learned Judge gave judgment
for the plaintiff for $250, the damages assessed by the
j^ry-
The defendants moved before the Divisional Court to
set aside the verdict and judgment, and to enter judgment
for the defendants.
November 29, 1889. The motion was argued before
Armour, C. J., and Street, J.
/. 8, Fraaer, for the defendants. The action is placed
on the ground that it was a defect that there was not a
guard on the saw. The jury were not asked to say whether
it was negligent to have the saw unguarded ; they were
«sked if the machine was defective. The jury have nega-
tived contributory negligence, but the evidence is uncon-
tradicted that if the plaintiff had obeyed the directions
given him he would not have been injured. There was
no negligence in the usual sense on the part of the defen-
dants ; leaving the saw unguarded was not negligence, nor
was it a defect within the meaning of the Workmen's Com-
pensation for Injuries Act. I refer to the following cases :
Miller v. Beid, 10 O. R. 419 ; Thomas v. Quarter maine,
17 Q. B. D. 414; 18 Q. B. D. 685 ; WaUi v. Whiteley, 21 Q.
B. D. 371 ; Rvdd v. BeU, 13 O. R at pp. 51, 52; OHffithff
V. London, dtc. Docks Co., 12 Q. B. D. 493 ; 13 Q. B. D. 259.
Aylestuorthy for the plaintiff. The plaintiff is entitled to
succeed either on the ground of a defect in the machinery
under the Workmen's Compensation for Injuries Act, or
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80 THE ONTARIO REPORTS. [VOU
Argument, on the ground of the breach of a duty imposed by the
Factories Act to guard the machinery. The jury have
found that there was a defect, and it was a question of
fact for the jury. I refer to Foley v. Gai^ett, 16 Q. B. D.
52 ; Heske v. Samuelson, 12 Q. B. D. 30 ; Thiniasell v.
Handyaide, 20 Q. B. D. 359 ; Membery v. Great Westaifi
R W, Co., 14 App. Cas. 179 ; Crippa v. Judge, 13 Q. B.
D. 583 ; Yarmouth v. France, 19 Q. B. D. 647 ; Dean v.
Ontamo Cotton Milla Co,, 14 0. R. 119. The maxim volenti
non fit injuria does not apply ; the jury were not asked
whether the phiintiff was volena,
March 8, 1890. The judgment of the Court was de-
livered by
Armour, C. J. : —
It is quite plain that, according to the facts proved in
thiy case, the defendants were not guilty of any negligence
for which the plaintiff could maintain his action agaiust
them at common law for the injury which he sustained,
and unless the defendants were guilty of negligence
causing his injury by reason of the omission by them of
some statutory duty imposed upon them, or unless some'
statutory remedy is given to the plaintiff against the
defendants for such injury, the plaintiff's motion must
fail.
It is accordingly contended that the defendants were
guilty of negligence in omitting to guard the saw, and the
provisions of the Ontario Factories Act, R. S. O. ch. 208,.
are invoked to support this contention.
That Act provides by section 15, that in every factory
(which includes a saw mill), " all belting, shafting, gearings
fly wheels, drums, and other moving parts of the machin-
ery * * shall be, as far as practicable, securely
guarded."
We think, however, that the word " moving" here used,.
is so used in its transitive signification, and as if the word
Digitized byVjOOQlC
IIX.] HAMILTON V. GROESBECK. 81
" propelling" had been used, and that it was not intended to Judgment.
provide that the tools and instruments moved or propelled Armour, C. J.
should be guarded, but only the machinery moving or
propelling them ; and that the words " other moving parts
of the machinery" are referable only to parts of the
machinery used for a like purpose as the belting, shafting,
gearing, fly wheels, and drums.
Upon this construction, therefore, of this provision,
there was no statutory duty imposed upon the defendants
to guard the saw.
It is also contended that the plaintiff has a statutory
remedy for the injury which he sustained by virtue of the
Workmen's Compensation for Injuries Act, R. S. O. ch. 141>
which provides by section 3 that " where personal injuiy
is caused to a workman by reason of any defect in the
condition of the ways, works, machinery, or plant con-
nected with or used in the business of the employer, the
workman shall have the same right of compensation and
remedies against the employer as if the workman had not
been a workman of, nor in the service of the employer, nor
engaged in his work;" it being contended that the want of
a guard to the saw was a defect within the meaning of this
provision.
It would be a very wide construction to put upon this
provision, and one not warranted by the terms of it, to hold
that the want of a guard to the saw was a defect in the
condition of the saw, when such guard was no part of the
saw, nor of the machinery connected therewith, nor at all
necessary for any proper or reasonable fitness of the saw
for the purpose for which it was used.
In some of the cases which I have looked at it is laid
down that the condition of ways, works, machinery, and
plant is defective within the meaning of this provision
when such ways, works, machinery, and plant are not
reasonably fit for the purpose for which they are used.
If such fitness is to be the test by which to determine
whether the condition of the ways, works, machinery, and
plant is defective or not, then the condition of this saw
11 — VOL XIX. O.R.
Digitized byVjOOQlC
82 THE ONTARIO REPORTS. [VOL.
Judgment, ^^as not defective, for it was fit and reasonably so tor the
Armour, C. J. purpose for which it was used.
It seems to me that to make the condition of ways,
works, machinery, and plant defective within the meaning
of this provision, there must be some inherent defect in
them — a deficiency in something essential to their proper
user for the purpose for which they are to be used, and not
a deficiency in something in no way essential to their user,
or for the purpose for which they are to be used.
In my opinion, therefore, the plaintiff must fail, and his
action be dismissed with costs.
I refer, in addition to the cases cited on the argument, to
McOiffin v. Palmer, 10 Q. B. D. 6 ; Heake v. Samudson,
12 Q. B. D. 30 ; Cripps v. Judge, 13 Q. B. D. 583 ; HaMon
v. Edinburgh, 14 Ct. of Sessions Cases, (4th series) 621 ;
McQuade v. Dixon, 14 Ct. of Sessions Cases (4th series),
1039 ; Frobaer v. Hood, 15 Ct. of Sessions Cases (4th series),
178 ; Pegram v. Dixon, 55 L. J. Q. B. 447 ; Corcoran v.
East Surrey, 5 Times L. R. 103; Pa<Jc v. Hay ward,
ib. 233; Pooley v. Hicka, ib. 353; Smith v. Harrison,
ib. 406 ; Smith v. Baker, ib. 518 ; Pritchard v. Lang,
ib. 639.
May 5, 1890. Armour, C.J.iSed vide Morgan v.
Hutching 8, 6 Times L. R. 219, decided since this decision.
Digitized by VjOOQIC
^IX.] MENDELSSOHN PIANO CO. V. GRAHAM AND WEST. 83
[QUEEN'S BENCH DIVISION.]
Mendelssohn Piano Company v. Graham and West.
J^artner^ip-— Agreement for participation in profits — Conttnietion of-^
Belationship of parties — Joint business — Debtor and creditor.
The plaintifia sued G. and W. for the price of goods sold to the firm of
P. W. G. & Co., and the principal question in the action was whether
W. was an actual partner in the tirm ; the evidence failing to shew
that he was an osteusible partner and as such liable to third persons: —
^eidj that the true teet to be applied to ascertain whether a partner-
ship existed was to determine whether there was a joint busmess, or
whether the parties were carrying on business as principals and agents
for each other.
-O. and W. did not intend to create a partnership between them. G. was
carrying on busiaess in the name of P. W. G. & Co. , as a dealer in
manoe and organs, and, being in want of money, applied to W. for a
loan ; he did not ask W. to become his partner, nor did W. suggest it,
but G. proposed to give W. half the profits of his business if wT would
lend him $500.
The money was advanced and the following receipt was given by G. : —
"Toronto, 13th February, 1888.
Heceived from W. the sum of |500 to be used for carrying on the busi-
ness of dealers in pianos and organs, in return for which I hereby agree
to give the said W. one-half of the profits of the said business, after
all expenses have been paid, including the sam' of f 10 a week, which
is to be charged as wages to G., this arrangement to continue until the
1st day of January, 1889, and to be continued thereafter if desired by
Mr. W. The said W. reserving a claim upon instruments in the store
to the value of $500, and he can also at any time demand the baid sum
upon giving one month's notice, in which case this agreement would be
at an end."
W. made a subsequent advance of $500 to G., and on the 14th of April,
1888, a receipt was given fur such advance containing an agreement to
pay "over and above the agreement of the 13th of February, interest
at the rate of eight per cent, per annum."
This receipt was at the request of W. signed " P. W. G. & Co., p P. W.
G. sole partner of said firm " : —
Held, that these documents did not establish that the business was the
joint business of G. and W. or that they were carrying it on as princi-
pals or agents for each other ; but that they did establish that the true
relation was that of debtor and creditor ; and W. was therefore not
liable to the plaintiffs.
This was an action brought by the plaintiffs to recover statement
from the defendants the price of goods sold and delivered
by the plaintiffs to the firm of P. W. Graham & Co., the
plaintiffs alleging that the defendant West was a partner
in the said firm. The defendant West denied that he was
a partner, and said that the only dealings he had with
said Graham, apart from a small grocery account, or with the
Digitized byVjOOQlC
84 THE ONTARIO REPORTS. [vOL.
Statemeot said firm of P. W. Graham & Co., were that during the year
18b8 he loaned the said Graham personally various sums,
of money, amounting in all to about 91,825, for the purpose
of enabling him to continue to carry on the business of
said firm, taking as security for the repayment thereof a
lien or claim upon the musical instruments held by said
firm ; and by way of interest on such advances was to
receive a proportion of the profits of the business; and
that it was at the same time distinctly understood and
agreed that he did not become a partner in the said firm.
The cause was tried by Falconbridge, J., without a jury,
at the Fall Sittings of this Court at Toronto, 1889.
It appeared that the defendant Graham, prior to the
transactions which were claimed to have constituted the
defendant West a partner with him, was carrying on busi-
ness in Toronto under the name of P. W. Graham & Co., and
had been so carrying on business for some time, and to the
knowledge of the plaintiffs ; that the defendant Graham
continued to carry on business during the said transactions
and until some time in October, 1888, when he ceased to
catTy on business. That the defendant We<»t was a grocer
who kept a shop in the Davenport road, and the business
of P. W. Graham & (?o. was carried on by the defendant
Graham in the Arcade, and afterwards in King street in a
store leased by him from the plaintifis. That Graham did
not ask West to go into partnership with him, nor did
West suggest a partnership : that Graham applied to West
for a loan, and West lent him $500,- taking the following
receipt :
" Toronto, 13th February, 1888.
Received from Charles West the sum of five hundred
dollars, to be used for carrying on the business of dealers
in pianos and organs, in return for which I hereby agree
to give the said Charles West one-half of the profits of
said business after all expenses have been paid, including
the sum of ten dollars a week which is to be charged as
wages to P. W. Graham. This arrangement to continue
until the Ist da} of January, f889, and *to be continued
Digitized byVjOOQlC
XIX.] MENDELSSOHN PIANO CO. V. GRAHAM AND WEST. H5
thereafter, if desired by Mr. West. The said Charles West Statement
reserving a claim upon instruments in the store to the
value of five hundred dollars, and he can also at any time
demand the said sum upon giving one month's notice, in
which case this agreement would be at an end.
P. W. GHAHAM."
Afterwards, the following document was signed by both
parties:
" Toronto, 15th February, 1888.
Received from Charles West the sum of five hundred
dollars, to be used for the purpose of carrying on the busi-
ness of dealers in pianos and organs, the profits to be
divided equally between myself and the said Charles West,
the sum of ten dollars per week being allowed P. W.
Oraham as wages.
P. W. Graham."
" I hereby agree to the above terms.
Chas. West."
Graham and West disagreed in their evidence as to
whether this document was signed on the day it bears
date, but they both agreed that it was signed because
Graham wanted to have the agreement with West's signa-
ture to it in his possession, as he had nothing to shew the
agreement. Afterwards Graham applied to West for a
further loan, and the following document was drawn up :
" Toronto, 14th April, 1888.
Received from Charles West, Esq., on loan a note for
five hundred dollars, made by C. £. Kyle of Toronto, pay-
able to J*. A. McLeUan, and indorsed by you, dated 5th
June, 1887, at twelve months, bearing interest at 8 per
cent. We further agree to pay you over and above the
agreement of 13th February, interest at the rate of 8 per
•cent, per annum on the sum of five hundred dollars.
P. W. Graham & Co.
Per P. W. Graham, sole partner of said firm."
All the foregoing documents were drawn by the defen-
dant Graham, who said he signed the last above mentioned
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8(> THE ONTARIO REPORTS. [VOL.
Stotement. document as he did at the request of West, and West said
it was signed in that way to satisfy him because he had
nothing to do with it (meaning the business).
In June and July following West indorsed two notes
for Graham, amounting to (825, and in October Graham
ceased carrying on the business, because, as he said, West
would not continue to indorse for him.
The case was argued at the conclusion of the evidence.
jR. S, NevilUy for the plaintiffs.
CoaUwortK for the defendant West.
December 13, 1889. Falconbridge, J. : —
The case of Badeley v. Consolidated Bank, 38 Ch. D. 238,.
is the one that has gone the furthest to weaken, if not to
destroy, the theory that a participation of profits necessarily
involves a partnership. In the case with which I am to
deal the only writing signed by both parties is a memoran-
dum dated 15th February, 1888. Now in the Badeley Co^e
there is a most elaborate agreement shewing the relation-
ship between the parties to be, not that of partners, conse-
quently not that of principal and agent, but that of debtor
and creditor. And of course there can be no doubt now
that the creditor can be secured by a share of the profits,
although some time ago that was not the law. Now two
other memoranda were put forward, and it was claimed
that one of them, namely, that of the 13th of February,
shewed rather the understanding between the paiiies than
the one bearing date the loth of February. And I am not
sure that, even in the construction of that instrument, the
idea of the partnership is entirely excluded. It is true
that Charles West, who claims to be a creditor in
that document, reserves a claim upon instruments in the
store to the value of S500, and it is provided that he can
also at any time demand such sum upon giving one month's
notice, in which case " this agreement would be at an end."
Now that does not, I apprehend, exactly impose on Graham
a personal liability. It seems to me rather that he is
entitled to draw his money out of the concern. But
Graham says that the agreement which bears date the lotli
February was the original agreement, and on re-examina-
tion he says that the money was adA anced under that
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XIX.] MENDELSSOHN PIANO CO. V. GRAHAM AND WEST. 87
agreement or memorandum. West says in the witness box Judgment
on cross-examination that it truly expresses the agreement F^icoiibridKc
between them. Graham says that West got information j.
about the sales, profits, and expenses, and that he came to
the store two or three times a week, and gave assistance
about unpacking a piano and made inquiries, and so on.
And West says positively there was no distinct agreement
between them that he was not a partner. I do not find
in Graham's evidence any sign of hostility towards the
defendant West at all. I think wherever there is a con-
flict of testimony between West on the one hand and
Graham, or Baird or Barker (the manager and secretary of
the plaintifis) upon the other, that each one of them is
entitled to credence as against West, for one reason at
all events, namely^ that when difficulties arose West
endeavoured to destroy the evidence . which is furnished
by this exhibit I., (the agreement of the 13th February)
in other words he burnt the original. But for the fact
that the present plaintiffs* solicitor happened to pre-
serve a copy, his destruction of the paper would no
doubt have ended in the plaintiff utterly failing to make
out a case.
In the view I take, that there was an actual partner-
ship between Graham and Went, it is unnecessary to
decide the question whether there was any holding out
of West as a partner so as to render him liable as such,
even though a partnership did not in fact exist.
I think the plaintiffs are entitled to judgment.
The defendant West moved to set aside this judgment
and to dismiss the action against him upon the following
grounds: — 1. That the judgment was contrary to law and
evidence and the weight of evidence. 2. The evidence
shewed that the paper writing dated 15th February, 1888,
on which the learned Judge based his judgment, was not
intended to be, and was not in fact, the agreement made
between the parties, but was signed merely fur a collateral
purpose, to evidence the right of the defendant Graham to
wages. 3. The paper writings dated 13th February, I8881
and 14th April, 1888, and the surrounding circumstances
shewed the true agreement between the defendants.
4. The evidence shewed that it was not the intention of
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SS THE ONTARIO REPORTS. [VOL.
Statement, the defendants by their agreements and dealings to become
partners. 5. The evidence shewed that the only relation
established between the defendants was that of debtor and
creditor. 6. The evidence shewed that by the paper
writing of 14th April, 1888, and the whole course of
dealing of the defendants, the defendant Graham would be
estopped from setting up a partnership, and the plaintiffs
are also thereby precluded from setting up such a partner-
ship. 7. There was no evidence of any representations to
the plaintiffs binding on the defendant West, that the
defendants were partners. 8. The evidence shewed that
the representations made to the plaintiffs by the defendant
Graham were inconsistent with the idea of a partnership*
and sufficient to charge them with notice that West was
not in fact a partner of Graham. 9. The evidence shewed
that the line of credit on which the plaintiffs' claim was
based was established in 1887, prior to the existence of the
alleged partnership ; and that the defendant Graham was
then trading under the name of P. W. Graham & Co. ; and
such line of credit was continued without any change being
made at or after the time of the alleged partnership. 10. The
amount claimed by the plaintiffs, $2,031.36, was a greater
sum than in any event should be paid by the defendant
West, and the same should be reduced. 11. The evidence
shewed that it was not the intention of the defendants to
create a partnership ; and as there was no holding out to
the plaintiffs binding on the defendant West, that the
defendants were partners, and the plaintiffs relied entirely
on the defendant Graham, the defendant West should not
be held liable. 12. It appears clearly from the evidence
that the plaintiffs were guilty of negligence in not seeking
proper information as to the alleged partnership ; and if it
should be held that the paper writings, or any of them,
constituted a partnership, the judgment against the
defendant West should be without costs. 13. And on
other grounds.
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XIX.] MENDELSSOHN PIANO CO. V. GRAHA^I AND WEST. 89
February 10, 1890. The motion was argued before a Argument.
Divisional Court composed of Armour, C. J., and Mac-
Mahon, J.
CoatavHfvtli, for the defendant West, supported the
motion, referring to Badeley v. Consolidated Bank, 38 Ch.
D. 238 ; Pooley v. Drivei\ 5 Ch. D. 459, and other cases
«ited in Byles od Bills, 14th ed., p. 52 ; McConneU v-
Wilkins, 13 A. R. 438.
R. S. Neville, for the plaintiffs, shewed cause.
March 8, 1890. The judgment of the Divisional Court
•was delivered by
Armoub, C. J. — (after setting out the facts) : —
There was nothing in the evidence which would, in my
opinion, entitle the plaintiffs to recover against West on
ihe ground that he was an ostensible partner, and there-
fore liable to third persons as a real partner.
It could not be fairly inferred from anything that he
^aid or did that he was a partner with Graham, or that he
was giving it to be understood that he was such partner,
for his whole conduct was consistent with the position
taken bv him that he was a creditor of Graham, and as
such interested in the business wliich Graham was carrying
on, and there was no evidence to shew that any statements
made by Graham to the plaintiffs were at all authorized
by him.
His liability must, therefore, depend upon the real rela-
tion existing between him and Graham.
The true test to be applied in order to ascertain whether
a partnership existed between them or not, is to determine
whether there was a joint business, or whether the parties
were carrying on business as principals and agents for each
other: Badeley v. Consolidated Bank, 38 Ch. D. 238.
Had West the rights of a partner in the business carried
on by Graham ? If he had, then is he also subject to the
liabilities of a partner.
12 VOL. XIX. o.R.
Digitized by VjOOQIC
00 THE ONTARIO REPORTS. [vOL.
Jndgment The evidence, apart from the documents above quoted^
Aimour, G.J. shews clearly, I think, that it was not intended that a
partnership should be created between them, and the
question is whether these document48 prove such an inten^
tion.
It is necessary to state the position these parties, Graham
and West, occupied at the commencement of their dealing.
Graham was then and had for some time before been
carrying on the business of a dealer in pianos and organs
under the name of P. W. Graham & Co., and West was
carrying on the business of a grocer. Graham was in
want of money to carry on his business, and applied to
West to lend him money. Graham did not ask West to
become his partner, nor did West suggest it. Graham
proposed that if West would lend him $500 he would give
him half the profits of the business: the money was accord-
ingly advanced, and the receipt of the 13th February was
given ; and I may here say that my conclusion of fact is-
that this receipt shews the true terms upon which the money
was advanced, and that the document of the 15th February
was given and signed, as both Graham and West swear, in
order that Graham might have in his possession a docu-
ment signed by West shewing the agreement between
them, but that it was only intended to shew the general
terms of the agreement between them, and not the par-
ticular terms of it, which were set out in the receipt of
the 1 3th February, and it was not intended by the docu^
ment of the loth February to at all detract from or modify
the terms of the receipt of the 13th Februarj^ ; and this is
apparent from the receipt being referred to in the docu-
ment of the 14th April as the '* agreement " between them.
It will be unnecessary, therefore, for me further to refer
to the document of the I5th February. The purpose for
which the money was advanced was " to be used for caxry-
ing on the business of dealers in pianos and organs.*'
What do these words mean ? Do they mean " to be used
by us for carrying on the business of dealers in pianos and
organs," or do they mean ** to be used for cariying on the
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XIX.] MENDELSSOHN PIANO CO. V. GRAHAM AND WEST. 91
business ordinarily carried on by dealers in pianos and Judgment,
organs ?" In other words, do they refer to the persons to Armour, C.J.
carry on the business, or to the character of the business
to be carried on ? I think to the latter ; and when we
look at the manner in which the document of the 14th
April is signed, it strengthens this view.
The receipt goes on to say " in return for which," that is,
in return for the use of which, " I hereby agree to give the
said Charles West one-half of the profits of the business after
a)] expenses have been paid, including the sum often dollars
a week, which is to be charged as wages to P. W. Oraham."
If the business was to be the joint business of Graham
and West, and was to be carried on by them jointly, there
would have been no need of this stipulation, for West
would have been entitled in that case, after the expenses
of carrying on the business were paid, to one-half the
profits ; but I think that half the profits thereby made pay-
able to West were not so made payable to West as half
the profits of a joint business carried on by Graham and
West, but as half the profits of the sole business of Graham,
made payable to West in return for the use of the five
hundred dollars advanced by him to Graham; and the fact
that Graham personally agreed to give to West one-half
of the profits of the business points to this conclusion.
The succeeding stipulations in the receipt, that this
an-angement was to continue until the 1st day of January^
1889, and thereafter, if desired by West ; that West was
to have a claim upon the instruments in the store to
the value of five hundred dollars ; and that West could at
any time demand the said »um upon giving one month's
notice, in which case the agreement was to be at an end ;
all indicate thatthejtrue relation existing between Graham
and West was not that of partners, but of debtor and creditor*
This receipt clearly created a personal liability upon
Gmham to pay back the five hundred dollars at any time
after one month's notice, and there are no such stipulations
binding upon Gi*aham as one would expect to find in an
instrument creating a partnership.
When we come to consider, however, the document of
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92 THE ONTAUIO REPORTS. [VOL.
Judgment, the 14th April, and its bearing on this receipt, we find it
Armour, C.J. signed " P. W. Graham & Co., per R W. Graham, sole partner
of said firm," and we find that it was so signed by Graham
at West's request as a distinct declaration by Graham that
he had no partner in the business of P. W. Graham & Co.
I think that the documents above set forth do not
establish that the business carried on under the name of
P. W. Graham & Co. was the joint business of Graham and
West, or that they v^ere carrying it on as principals and
agents for each other ; but that they do establish that
the true relation which existed between Graham and West
was that of debtor and creditor.
I think it clear that West had not the rights of a
partner in this business ; for, if either Graham or West had
brought an action against the other for a declamtion that
they were partners in the said business, and we had to
determine the question upon the evidence before us in this
case, could we, upon such evidence, make a decree in
favour of the one seeking such a declaration ? I think
clearly not. It would lie upon the one asserting the
partnership, as it does upon the plaintiffs in this case, to
establish the partnership ; and he would fail, as these
plaintiffs do, in satisfying us that any partnership existed.
It is unnecessary for me to do more than refer to the
cases by name by which I have been guided in arriving at
my conclusion ; but I desire to say this with regard to
Frovjde v. Williams, 56 L. J. Q. B. N. S. 62, decided by
Denman, J., and Hawkins, J., the latter agreeing with some
hesitation ; that it and Aktie Bolaget v. Von Dadelszen,
also decided by Denman, J., were decided before the
decision in Badeley v. Consolidated Bank.
I refer to Wallce)^ v. Hirach, 27 Ch. D. 460 ; Badeley v.
Consolidated Bank, 38 Ch. D. 238 ; MoU/wo, March, Jk Co.
V. CowH of Wards, L. R. 4 P. C. 419 ; White & Co. v.
Churchyard, 3 Times L. R 428 ; Debenham v. Phillips, 3
Times L. R. 512 ; Aktie Bolaget v. Von Dadelszen, 3 Times
L. R. 517.
The motion will be allowed with costs ; and the action
will be dismissed with costs.
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XIX.] REID V. COLEMAN. 9S
[QUEEN'S BENCH DIVISION.]
C. P. Reid & Co. V. Coleman Brothers.
PariKership—Dissolvtion—Wantofpvblu'. notice— Credit given to firm after
di/isoliition — Xo previous dealings with firm— Liability/ of retiring
partner.
The plaintiffs received from their traveller an order for goods from the
firm of C Bros., hotel-keepers. Before they delivered the goods they
became aware by means of a mercantile agency that a partnership had
existed under the name of C. Bros., and that S. L. C. was one of the
members of it, and they were at the same time informed that the
partnership still existed. They shipped and charged the goods, and
also goods subsequently ordered, to C. Bros. As a matter of fact,
however, the partnership did not exist at the time the first order was
S'ven, S. L. 0. having retired from the business, and the plaintiffs had
id no dealings with the firm while it was in existence. No public
notice was given of the dissolution ; 8. L. C continued to live at the
hotel except when he was absent on his own business ; the lamp with
the name of C. Bros, continued at the door ; the liquor license in the
name of C. Bros, continued to hang in the bar-room ; and letter-paper
with the heading "0. Bros., proprietors" continued to be handed to
customers.
Held, that where a knerwn member of a firm retires from it, and credit
b afterwards ^iven to the firm by a person who has had no previous
dealings with it, but has beconle aware as one of the public that it
existed, and has not become aware of his retirement, the retiring mem-
ber of the firm is liable unless he shews that he has given reasonable pub-
lic notice of his retirement ; and, as such notice was not given here, .S.
Lu C. was liable, not only for the goods first, but for those subsequently,
ordered, no notice of the retirement haviog ever been given.
This was an action brought by the plaintifl's, who were statement.
wholesale cigar and liquor merchants, carrying on busi-
ness at Toronto, to recover from the defendants Thomas G-
Coleman and Sydney L. Coleman, under the name of
Coleman Brothers, $210.26, being the balance of an account
for goods alleged to have been sold and delivered during
the year 1888 by the plaintifl's to them under the name of
Coleman Brothers.
The defendant Thomas G. Coleman was not served with
the writ, and did not defend the action. The defendant
Sydney L. Coleman denied his liability ; he further set up
that he and his brother, Thomas G. Coleman, formerly
carried on business as hotel-keepers at St Mary's, under
the name of Coleman Brothers, but had no dealings with
Digitized byVjOOQlC
S4 THE ONTARIO REPORTS. [VOL.
Statement, the plaintiffs; that their partnership was dissolved in
November, 1887, and due notice of the dissolution given
to all persons entitled to notice ; that prior to the dissolu-
tion the plaintiffs had no knowledge of the firm, or that
Sydney L. Coleman had been a member of it ; that subse-
quent to the dissolution the plaintiffs had certain dealings
with Thomas G. Coleman, who carried on the business on
his own account, but that the defendant Sydney L. Cole-
man had no knowledge of such dealings, and that Thomas
G. Coleman had no authority to pledge his credit.
The plaintiffs joined issue on this defence, and the action
was tried on 23rd November, 1889, at Toronto, before
Ferguson, J., without a jury.
It appeared from the evidence that the defendant Sydney
L. Coleman had at one time carried on business at St.
Mary's on his own account ; that subsequently he and the
defendant Thomas G. Coleman had formed a partnership
under the name of Coleman Bros., to carry on the Windsor
Hotel there ; that this partnership lasted only some six
months, and was then dissolved in the beginning of Novem-
ber, 1887, and that the defendant Thomas G. Coleman con-
tinued to carry on the business in his own name ; that the
father and mother, two sisters, and another brother of the
defendants, all lived at the hotel during the whole period
covered by the transactions in question ; that after the
dissolution the defendant Sydney L. Coleman had his
home at the hotel, but was frequently absent travelling in
another business in which he was engaged, and when at
the hotel occasionally assisted his brother Thomas G.
Coleman in receiving guests; that a large lamp which
hung outside the front door of the hotel had the name
'' Coleman Brothers *' painted upon it, and that this was
not taken down when the partnership was dissolved ; that
some note-paper headed ** Coleman Brothers," and stating
them to be proprietors of the hotel, was supplied to guests
staying at the hotel as late as the end of January, 1888.
The hotel register in use down to August, 1888, was one
having a printed heading stating that A. Hall was the
Digitized byVjOOQlC
XIX.J REID V. COLEMAN. 95
proprietor ; he had formerly kept the hotel ; after Thomas SUtemant
O. Coleman became proprietor Hall's name was sometimes
struck out and sometimes allowed to remain, and when
struck out the name of Thomas G. Coleman was sometimes
inserted in its place, and sometimes not. No public notice
was given of the dissolution of the firm of Coleman Bros.
The plaintiffs had had some dealings with Sydney L.
Coleman before the partnership, but none with the firm
during its actual existence. On 25th January, 1888, the
plaintiffs' traveller was at the hotel and took the first order :
whilst there he was supplied by one of the defendants with
note-paper with the printed headiug " Coleman Brothers,
Proprietors," on it, and wrote to the plaintiffs upon this
paper concerning some other orders he had taken that
day at another place. He entered the order given by
Thomas G. Coleman to him on that occasion in his order
book as from Coleman Bros., and forwarded it in the firm
name to the plaintiffs, who shipped the goods on 2nd
Febniary, 1888, to " Coleman Brothers," and charged the
firm with them in their b(X)k8, having first inquired of and
been informed by one of the mercantile agencies that the
members of the firm of Coleman Brothers were Thomas G.
Coleman and Sydney L. Coleman.
In July the plaintiffs received a draft for $105, which
was not produced. On the 14th of November, 1888, they
drew on Coleman Bros, for $106.76, the amount of the
sales in June. This draft was accepted by "T. G. Coleman,
Coleman Bros.," but was not paid at maturity, and the
plaintiffs again on the 14th of December, 1888, drew upon
Coleman Broa; their draft was accepted in the same way,
but was not paid. No other payment than the $105 was
ever made to the plaintifls, and the defendant Thomas G.
Coleman had left the country and gone to the United
States. The plaintiffs' traveller spoke of certain other
circumstances which, if true, would have tended more
strongly against the defendant Sydney L. Coleman, but
the trial Judge doubted the correctness of his statements
with regard to them.
Digitized byVjOOQlC
9(5 THE ONTARIO REPORTS. [VOL.
Argument. At the close of the evidence the case was argued.
Charles Miliar, for the plaintiffs,
J. if. Clark, for the defendant Sydney L. Coleman.
November 25, 1889. Ferguson, J.: —
It is proved beyond all cavil that the partnership
was dissolved about the 1st of November, 1887. It is
shewn that the plaintiffs never had any dealings with the
firm during its existence, or with Sydney L. Coleman at
all. It is shewn that the plaintiffs did not know at the
time of the dealings that Sydney L. Coleman was or had
been a member of the firm. It is not shewn that there
was any "holding out" that he was a member of the firm
at or previous to the time of the contract sued on. Even
if there were, it was not such that it could have reached
the public in Toronto, where the plaintiffs carried on their
business and lived. It is not shewn that the plaintiffs
directly or indirectly gave the credit to the defendant
Sydney L. Coleman. The continuance of the firm name
upon the sign after the dissolution is not, I think, proved.
The plaintiffs* witnesses seemed to rely upon inference and
something bordering upon imagination, and there is evi-
dence to the contrary. It was not a sign disclosing the
names of partners.
I think the cases Carter v. Whalley, 1 B. & Ad. 11, and
Heath v. Sansora, 4 B. & Ad. 172, both referred to in the
4th ed. of Lindley on Paiinership, pp. 405 and 406, shew that
the plain tifls cannot recover as against the defendant Syd-
ne}' L. Coleman, though there was no notice of the disso-
lution, and the action as against this defendant Sydney L.
Coleman must be dismissed with costs.
Order accordingly.
The plaintiffs moved against this judgment before the
Divisional Court, asking to have judgment entered for
them for the amount claimed, upon the ground that upon
the facts it should have been held that Sydney L. Cole-
Digitized byVjOOQlC
XIX.] KEID V. COLEMAN. 97
man was liable, because he had been a partner in the firm Anfument.
of Coleman Bros., and had given no notice of its dissolu-
tion, and held himself out to the world as a partner after
the dissolution.
December 3, 1889. The motion was argued before the
Divisional Court (Armour, C. J., and Street, J.)
Charles Millar, for the plaintiffs. There should be
notice of the dissolution of a partnership : Hendry v. Tur-
7ier,S2 Ch. D. 355; Lindley on Partnership, 5th ed., pp.
210, 214, 222. If a man is a known partner he must give
notice if he wishes to escape liability : Bates on Partner-
ship, ed. of 1888, sees. 610, 611, 618, 621 ; Wade on Notice,
sees. 491, 502, 513, 530.
J. M. Clark, for the defendant Sydney L. Coleman. The
plaintiffs, not having dealt with the firm before dissolution,
had no right to notice of dissolution: Scarf v. Jardirie,
7 App. Cas. 345; Story on Partnership, 6th ed., pp. 285,
286; Lindley on Partnership, 2nd Am. ed., pp. 213 et seq.
It also appears by the evidence that the plaintiffs did
know of the dissolution. It is quite clear that there was
no holding out of Sydney L. Coleman as a partner. There
-wjis no registration of the partnership nor of the dissolu-
tion. I also rely upon Newsomev. Coles, 2 Campbell 617;
and the cases cited by the trial Judge.
March 8, 1890. The judgment of the Divisional Court
was delivered by
Stbset, J. : —
The learned Judge before whom this action was tried
appears to think that it would be unsafe to rely upon the
memory of the traveller for the plaintiffs, who was the first
witness called on their behalf, and that credit should only
be given to his statements when they are otherwise cor-
Toboratedy and I feel bound to adopt the same view in
13 — VOL. XIX. O.R.
Digitized byVjOOQlC
1)8 THE ONTARIO REPORTS. [VOL.
Judgment dealing with it. It is plain, however, that he went to the
Street, J. Windsor Hotel on the 25th January,! 888, to solicit an order
for goods ; that he entered this order in his own memoran-
dum book as an order from Coleman Brothers ; that he
forwarded it to the plaintiffs as an order from that firm ;
that they sent the goods directed to Coleman Brothers
and charged that firm in their hooks with the price, men-
tioning in their ledger that the firm was composed of
Thos. G. Coleman and Sydney L. Coleman ; and that this
information had been supplied to them before they opened
the account by one of the mercantile agencies to whom
they applied for the purpose. The plaintiffs also produce
a letter written to them by their traveller upon the same
day as that on which he took the first order, dated at St.
Mary's and written on paper with the heading " Windsor
Hotel : Coleman Brothers, Proprietors." The traveller says
that this paper was supplied to him on 25th January by
one of the brothers at the hotel. Upon these fa<!ts, I think
I am compelled to come to the conclusion that the plaintiffs
gave the credit here to the firm of Coleman Brothei-s,
believing it to be in existence, and to be composed of the
two persons whose names were entered in their ledger.
It is not disputed that that firm had been dissolved some
weeks before the first order was given to the plaintiffs'
traveller: and the sole question is whether Sydney L
Coleman, although not a partner at the time, had by doing
something which he ought not to have done, or by omit-
ting to do something which he ought to have done,
justified the plaintiffs in their belief that the firm of
Coleman Brothers still existed, and that he still continued
a member of it.
The fact of the formation of the partnership, although
not registered nor published by advertisement in the news-
papers, was nevertheless made known to the public in
various ways. The license to sell liquor was in the name
of the fii-m, and was hung up in their bar>room, and we
must assume that, in compliance with the Liquor License
Act, it was " constantly and conspicuously exposed" there ;
Digitized byVjOOQlC
XIX.] REID v. COLEMAN. 99
« bank account appears to have been opened in their firm JadgmeDt.
name; a lamp hung outside the hotel, and on this the stre^J
name of Coleman Brothers was painted, and printed letter-
beads with the firm name upon them were prepared and
supplied to guests. The two brothers were there attend-
ing on the guests and managing the business. I cannot
find any statement as to the exact date when the partner-
ship was formed, but as the license was issued to them as
a firm, the firm had in all probability been formed as far
back as the 1st of May, previous to the 1st of November,
1887, when it was dissolved, and had therefore been in
•existence for six months at least before the dissolution.
The acts done must all be taken to have been intended
to apprise the public of the partnership that had been
entered into, and they were in this manner informed that
each of the partners was the accredited agent of the
other for all purposes coming within the scope of the part-
nership business.
Upon the termination of the partnership, it was the
<luty of the retiring partner to take reasonable steps to
inform the public that the implied agency, resulting from
the existence of the partnership, had been terminated,
and until that notice was in some way given, the public
were justified in assuming that it still continued : Scarf v.
Jardine, 7 App. Cas. at pp. 356-7. '* As to persons who
have been previously in the habit of dealing with the firm,
it is requisite that actual notice should be brought home
to the creditor, or at least that the credit should be given
under circumstances from which actual notice may be
inferred :'' Story on Partnership, 6th ed., by Gray, p. 289.
'* But, as to persons who have had no previous dealings
with the firm, and no knowledge who are or have been
paHners therein, a difierent rule may prevail. In such
cases, unless the ostensible partner, who has retired, sufiers
his name still to appear as one of the firm, so as to mislead
the public, (as by its being stated, and still remaining in
the firm name), he will not be liable to mere strangers
who have no knowledge of the persona who compose thefirm^
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100 THE ONTARIO REPORTS. [VOL.
Jad^i;meDt. for the future debts and liabilities of the firm, notwith-
Street, J. Standing his omission to give public notice of his retire-
ment; for it cannot truly be said in such cases that any credit
is given to the retiring partner by such strangers. * * A
fortiori, if public notice has been given of his retirement^
the retiring partner will not be liable to new creditors^
or customers, even if they have never seen such notice, or
had any knowledge or information thereof; since the
retiring partner has done all which can be reasonably
required to give public notice of his withdrawal. What
will amount to due and sufficient notice of the retirement
of a partner is a question of fact, often of no small nicety
and difficulty ; for notice needs not be express ; but it may
be constructive,and be implied from circumstances. A notice
in one of the public and regular newspapers of the city
or county where the partnership business was carried on,,
is the usual mode of giving the information, and may in
ordinary cases be quite sufficient. * * The weight of
authority seems now to be that notice in one of the usual
advertizing gazettes of the place where the business was
carried on, when published in a fair and usual manner, is
of itself notice of the fact to all persons who have not
been previous dealers with the partnership:" Story on
Partnership, 6th ed., by Gray, pp. 285-9. See also
Amidown v. Osgood, 24 Vt. 2^8 ; Pratt v. Page, 32 Vt
13 ; Preston v. Foellinger, 24 Fed. Rep. 680, and the notes
to that case.
In Lindley on Partnership, 2nd Am. ed. at p. 213, the
law is thus stated : " So if a partnership is dissolved, or one
of the known members retires from the firm, urtil the
dissolution or retirement is duly notified the power of
each to bind the rest remains in full force, although
as between the partners themselves a dissolution or a
retirement is a revocation of the authority of each to act
for the others. Thus, if a known partner retires, and no
notice is given, he will be liable to be sued in respect of a
promissory note made since his retirement by his late
partner, even though the plaintif had no dealings witft the
firm before the makvng of the note"
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:IIX.] &EID y. COLEMAN. 101
In the present case the plaintiffs before they delivered JiKlgment
the goods in question became aware, by means of inquiries street, J.
they made of persons whose business it was to collect such
information for those requiring it, that a partnership had
existed under the name of '* Coleman Brothers/' and that
Sydney L. Ck)leman was one of the members of it, and they
were at the same time informed that the partnership still
existed. As a matter of fact it did not exist. On the 1st
November previous to this time, the two brothers had
verbaUy agreed that Sydney L. Coleman should retire from
the partnership, but no public notice whatever was given
of the fact. Sydney L. Coleman says that he told some of
the storekeepers and all of his friends that he had " quit the
firm/' but he still continued to live at the hotel except
when he was absent on his own business ; the lamp with
the fii-m name on it continued at the front door, though for
how long is not stated ; the license in the name of " Coleman
Brothers" continued to hang in the bar-room, and the
letter-paper informing the public that " Coleman Brothers "
were the proprietors continued still to be handed to custom-
•ers. How were the public who had been informed of the for-
mation of the partnership expected to find out that it had
been dissolved ? In Carter v. WhxMey^ 1 B. & Ad. 11, relied
on by the defendant, the defendant Saunders was a member
of a firm called " The Plas Madoc Colliery Co.," but had
retired from it before the giving of the note in question,
without, however, giving public notice of the fact. The
note was given in the name of the firm after he left for a
debt incurred by the continuing partners, and it was held
that he was not liable upon it, there being no proof that
Saunders had ever dealt with the holder of the note as a
partner, or had ever held himself out as one so publicly
as that the plaintiff, the holder of the note, must
have known it. In that case, however, the name of
Saunders did not appear in the firm name at all, and there
WHS no evidence that the holder of the note was aware
that he had been a partner, or gave credit to him when he
discounted it On the other hand, the law is laid down
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102 THE ONTARIO REPORTS. [VOL.-
Judgmeut. more broadly than is necessary for the plaintiff in the
Stnei» J. present case in Parkin v. Can^athera, 3 Esp. 248, by
LeBlanc, J., as follows : " The rule of law is clear, that
where there is a partnership of any number of persons, if*
any change is made in the partnership, and no notice ia
given, any person dealing with the partnership, either
before or after such change, has a right to call upon all the
partners who at iirst composed the firm." But in that case^
the name of the partner who was held chargeable was con-
tinued in the partnership name after his retirement. The
rule I gather from the cases is this : that in case a known*
member of a firm retires from it, and credit is afterwards-
given to the firm by a person who has had no previous-
dealings with it, but has become aware, as one of the
public, that it existed, and has not become aware of his-
retirement, the retiring member is liable for the amount^
unless he shews that he has given reasonable public notice
of his retirement. I think that such notice was not given
here, and that the defendant Sydney L. Coleman is liable.
It is not necessary to decide as to whether or not the
continuance of the firm name upon the lamp and the
other acts relied upon by the plaintiff as shewing that
Sydney L. Coleman permitted his brother to continue to
hold out to the public that the partnership still existed
would have been sufficient to render him liable for debts
subsequently contracted. That is a question which would
have arisen had a notice been given by advertisement but
had not come to the knowledge of the plaintiffs ; and does
not arise here. In Standard Bank v. Dunham and Park^
14 O. R 67, the notes were signed " Dunham & Co.,'* and
Park was sought to be made liable, although the notes were
not signed until after the dissolution of the firm of
Dunham &; Co., of which he had been a member. It was
held that he was not liable because the plaintiffs had no
knowledge during the continuance of the partnership that
he was a member and had do dealings with the firm whilst
he was a member of it. The same result was arrived at
by the Court of Appeal in the unreported case of Banks v.
Digitized byVjOOQlC
XHL] REID v. COLEMAN. lO.i
Dunham, upon the same state of facts with regard to the Judgment.
aame partnership of Dunham & Co. Street, J.
The important point, however, in which those cases are
to be distinguished from the present case, is, that the
name of the partner. Park, who was sought to be made
liable in those cases never appeared in the firm name at all,
nor was he shewn to have been held out to the public as a
partner during the actual life of the partnership. They
were therefore strictly in this respect within* the decision
•if Carter v. Wkalley, 1 B. & Ad. 11, above referred to, and
the language used in them is to be construed with refer-
ence to the facts of the case. In the present case the style
of the firm informed the public that Sydney L. Coleman
was a member of the firm, and credit was given to him by
the plaintifis before he had informed the public that he
had ceased to be a member of it.
With regard to the orders given to the plaintiffs subse-
quent to the first, all of which were shipped and charged
to Coleman Bros., I think the same rule must apply, and
thflt being entitled at the time of the first order to believe*
and believing, that the firm still existed, they continued
entitled to entertain that belief until notice to the con-
trary was given them.
In my opinion, the defendant Sydney L. Coleman should
be declared liable to pay this debt as a member of the firm
of Coleman Bros., who are the defendants here, and judg-
ment should be entered accordingly against the defend-
ants for the amount claimed, with costs according to the
High Court scale.
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104 THE ONTARIO RKPOBTS. [vOL.
[QUEEN'S BENCH DIVISION.]
Lamb v. Young.
Bankruptcy and insolvency — Innolvent debtor — Mortgage to creditor —
Action by assignee ttnder B, 8. 0. ck. ISJ^ to set astdC'-Notice or
knowledge of insolvency.
Held, following Johnson v. Hope, 17 A. R. 10, that an assignee for the
benefit of creditors under R.S.O. eh. 124, suing to set aside as void a
mortgage of ^real estate made by his assignor when in insolvent circam-
stances, to a creditor, must, in order to succeed, establish that the
creditor knew at the time he took the mortgage that the mortgagor was
insolvent and unable to pay his debts in full.
Statement. The plaintiff was assignee under R. S. O. ch. 124 of
one Hough by virtue of an assignment made by Hough to
him on the loth February, 1889 ; and as such brought
this action to set &side a mortgage on his real estate
made by Hough to the defendant on the 22nd October,
1888, to secure the sum of $1,000 and interest, as having
been made when Hough was in insolvent circumstances,
and so being void.
Hough was carrying on a store in the village of Tweed,
and the defendant was a grocer at the village of Trenton,
who had been furnishing him with goods, and to whom
Hough had become indebted for goods to the amount of
$776 when this mortgage was given for $1,000, the defen-
dant agreeing to make up the difference by furnishing
more goods, which he did.
The action was tried at the Chancery Sittings at
Belleville in the Autumn of 1889 before Boyd, C, who
dismissed the action, on the ground that the plaintiff, ou
whom the onus was, had not satisfactorily established that
Hough at the time he maxle the mortgage was in insolvent
circumstances.
The plaintiff moved before the Divisional Court at the
Hilary Sittings, 1890, to set aside this judgment and to
enter judgment for the plaintiff.
February 12, 1890. The motion was argued before
Armoub, C. J., and Falconbridqe, J.
Digitized by VjOOQIC
XIX.] LAMB V. YOUNG. 105
MacKelcan, Q. C, (with him Mewhum), for the plaintiff. Argument.
The evidence shews that the debtor was insolvent when he
made the mortgage. The finding of the learned Chancellor
is wrong, and as it is merely an inference from the evi-
dence, should be reversed : The Glannibanta, 1 P. D. at
pp. 287-8.
Glvie, Q. C, for the defendant. The evidence does not
establish insolvency, and at all events the defendant had
no notice or knowledge of the insolvency : Johnson t.
Hope, 17 A. R. 10; Bums v. Mackay, 10 0. R. 167.
MacKelcan, in reply, referred to Warnock v. Kloepfer,
14 0. R. 288 ; 15 A. R 324; River Stave Go, v. Sill, 12
O. R. 567 ; StoddaH v. Wilson, 16 O. R. 17.
March 8, 1890. Armour, C. J. :—
If we arrived at a different conclusion upon the facts from
that arrived at by the Chancellor, and found that the
debtor Hough at the time he made the mortgage to the
defendant was in insolvent circumstances and unable to
pay his debts in full, the plaintiff would still have to get
over the difficulty that he did not establish that the de-
fendant knew at the time he took the mortgage that
Hough was insolvent and unable to pay his debts in full;
and this it was incumbent on him to do according to the
recent amendment of the Act R. S. 0. ch. 124 made bj' the .
Court of Appeal in Johnson v. Hope.
There was no evidence to shew such knowledge, but all
the evidence on the subject was wholly against it.
The motion must be dismissed with costs.
Falconbridge, J. : —
I agree that under Johnson v. Hope the motion must
be dismissed with costs.
14 — VOL. XIX. 0.R,
Digitized by VjOOQIC
106 THE ONTARIO RBPORTS. [VOL.
[CHAXCERY DIVISION.]
, The Lincoln Papkr Mills Company v. The St.
Catharines and Niagara Central Railway Company,
Railways and BaUway Companiea^DtfauU m payment of compenMtion
numey»—Bigkt» oj land-oumer$ — Injunctum — Order for pottession—
Vendor's lien— Order for tuale^ Remedies.
Held, that where a railway company had failed to pay the balance of com-
pensation awarded to land-owners in accordance with a jadgment
obtained for the same, although it had entered into possession and was-
operating its railway over the lands, the land-owners were entitled to-
an order declaring them to have a vendor's lien on the lands for the
amount, with such provisions as were necessary to realize by mea* s of
a sale ; but they were not entitled to an injunction to restrain the
defendants from operating the railway on the lands, nor to an order for
delivery up of possession.
AUgood V. Merryhent and Darlington R. W. Co., 33 Ch. D. 57U
distinguished.
Statement. This was a motion for an injunction and an order for pos-
session made after judgment obtained in this action, which
was brought by the Lincoln Paper Mills Company against
the above railway company to recover payment of a sum
of $1252.08 and interest from April 5th, 1889, the balance
of compensation due to them from the defendants under
the terms of a certain award made under the Railway Act,
(and in accordance with the terms of an agreement made
between the plaintiffs and the defendants, dated September
27th, 1889,) bearing date January 26th, 1888, in favour of
the plaintiffs, and against the defendants, in regard to
certain lands taken by the defendants for their railway
from the plaintiffs as well as in regard to compensation
due the plaintiffs from the defendants for injuriously
affecting certain other lands of the plaintiffs ; and in default
the plaintiffs prayed that the defendants might be ordered
to yield up and deliver to the plaintiffs peaceable possession,
together with the legal estate of the land so expropriated
by them, and in which their track at the time of action
brought was, and on which track the defendants were
operating their railway.
Digitized byVjOOQlC
XIX.] LINCOLN PAPER MILLS CO. V. ST. CATHARINES R.W. CO. 107
It appeared that the defendants had entered into pos- Statement,
session of the lands so required for their way about Octo-
ber 11th, 1887, under the order of the Court, paying $1200
into the Bank of Commeroe to the joint credit of the par-
ties to this action as provided by R. S. C. eh. 109.
Bj'^ their statement of defence, delivered on October 14th,
1889, the defendants admitted that they were indebted to
the plaintiffs in the sum claimed, and that the plaintiffs
were entitled to judgment for recovery of the said sum of
money, but submitted that they were not entitled to the
alternative relief claimed nor to any other relief than
judgment for the recovery of the amount.
The present motion was made pursuant to leave reserved
in the judgment.
The judgment was in favour of the plaintiffs, and was
for $1408 in addition to the $1200 that was formerly de-
posited by the defendants and was applied on account of
the amount due for compensation.
The award itself, which was made on January 26th, 1888,
was for $1500.
The costs and interest made up the amounts of the $1200
and the $1408.
Of the $1500 awarded, $1000 was for damages, and $500
for value of the land taken.
The motion came on for argument on February 11th,
1S90, before Ferguson, J.
McClive for the plaintiffs. The question between the
parties is as to whether this character of remedy can be
had under all the circumstances : Allgood v. Merrybent
and Darlington R W, Co,, 33 Ch. D. 571.
[Ferguson, J. — I will first hear Mr. Aylesworth, as to
the general aspect of his objections or defence.]
Aylesivorth, Q. C, for the defendants. The defendants
pleaded admitting liability for the money, but saying that
they are not liable to be evicted. Ejectment or injunction
is not the proper relief. This could not possibly have been
ordered by the Chancellor at the hearing. All the plain-
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108 THE ONTARIO REPOUTS. [VOL.
Argnment. tiffs are now entitled to is the declaration of a vendors
lien and the usual remedy for it, the judgment or decree
for sale of the property : Slater v. Canada Central R, W.
Co,, 25 Gr. 363. The lien is the only remedy that can be
had. The English cases all point in the same direction-
What the plaintiffs want is really a rescission of the con.
^ trace, but this they cannot have : Kerr on Injunctions, 3rd
ed. p. 155. There was here a substantial part payment :
Cajyps V. Norwich and Spalding R, W, Co., 9 Jur. N. S.
685. The Allgood Ca^e is a peculiar one. All the cases
down to the year 1880 are collected in the Law Reports
Digest 1865 to 1880, p. 2161, under the heading " Lands
Clauses Act. Vendor s Lien." See also Lycett v. Stafford
and Uttoxeter R. W. Co,, 13 Eq. 261. All that can now be
given is a declaration of lien, an order for payment by a
certain day, and in default of payment a sale of the lands,
and application of the purchase money, and in case of a
deficit, execution against the defendants, or in case of a
surplus, payment of such surplus to the defendants.
McClive, contra. This case differs from the Slater Case,
supra, for there it does not appear that the land would not
bring the money on sale : Wing v. Tottenham, <fec., R, W.
Co,, L. R. 3 Ch. 740; Heriot v. London, Chatham, uivd
Dover R, W. Co., 16 L.T. N. S. 473.
February 11th, 1890. Ferguson, J. :—
The motion, as shewn by the notice of the same, is for
an order declaring that the plaintiffs are entitled to a lien
upon the lands in respect of the balance of the purchjise
money, interest and costs due thereon under the judgment
pronounced on November 30th, last, which is the sum of
$1408, and for an injunction restraining the defendants
from running or causing or permitting to be run on the
lands in question, or any part thereof, any train, engine,
carriage, &c., and from continuing or being in possession of
or using the lands or any part thereof until further order,
and that the plaintiffs may be put into possession, &c. Tlie
Digitized byVjOOQlC
XIX.] LINCOLN PAPER MILLS CO. V. ST. CATHARINES ^.W. CO. 10J>
daim for the injanction and the possession of the lands is Judgment.
grounded upon the default of the defendants in not paying Ferguson, J.
the above mentioned sum b}'^ the time mentioned in the
judgment for the payment of it, or since. If this sum
were paid the present controversy would end. Owing to
the form as well as the spirit of the judgment, I have I
ihink on this motion the same jurisdiction over the subject
matter and the rights of the parties as that possessed by
the learned Judge at the trial of the action. This had to
be conceded by counsel.
Counsel for the defendants says that while he does not
admit anything against his clients, he cannot successfully
contend, or contend with hope of success, that the plaintiffs
are not entitled to an order declaring the lien and giving
all the usual remedies of a vendor upon or in respect of his
lien for unpaid purchase money, but he contends that the
plaintiffs are not entitled to the injunction asked nor to the
possession of the lands that have been expropriated.
Counsel for the plaintiffs contend (according to his
motion) that the plaintiffs are entitled to the injunction and
the possession, as well as the order in respect to the lien.
The question for me is : Are the plaintiiBTs entitled to the
injunction and possession ?
In the course of the proceedings for the expropriation of
the lands an estimated sum of $1200, was deposited and
this with interest the plaintiffs have received in part satis-
faction. The value finally fixed by the award was $1500,
The present value unpaid is largely composed of interest
and costs.
So far as this motion is for possession of the lands, the
subject is very fully considered by the late Chief Justice,
then the Chancellor, in the case, Slater v. Canada Central
R. W. Co., 25 Qr. 363, in which the learned Judge decided
that the Court would not order possession to be restored in
case of default in payment of compensation, saying that the
case Wing v. Tottenham, &c., K W. Co., L. R. 3 Ch. 740,
settled the question that where there is a vendor's lien
parties are entitled to enforce it in the way any other lien
Digitized byVjOOQlC
110 THE ONTARIO REPORTS. [VOL.
Judgment can be enforced, that is, by a sale. The learned Judge
FerguBon, J. then refers to that as being the proper remedy, and he
pronounced a decree for payment within one month, or in
default that the land be sold.
As to the injunction, there is a considerable number of
cases in the Euglish Reports^ which are of comparatively
recent date. Many of these are collected in the L. R Dig.,
1865-1880, commencing at page or rather column 2160.
In the case Munna v. Isle of Wight R. W. Co,, L. R. 5
Ch. 414, it was decided that an injunction is not the proper
remedy, as it would make the land useless to both parties.
See the reasoning of Lord Justice QifFard at p. 419. There
the case, CoaeTis v. Bog^aor R, W, Co,, L. K 1 Ch. 594, is
amongst other cases referred to, and it is remarked that
Lord Justice Turner had in that case expressed his opinion
that to appoint a receiver was the proper 'course. By re-
ferring to the case one sees that the judgments are very
short, Knight Bruce, L. J., saying simply that the order
(the one appealed from) might not be according to the
ordinary practice of the Court, nor was the case ordinary.
He thought that the Court was not exceeding its power
in allowing the order for the injunction to stand. The two
Judges were of diflFerent opinions, and the order was allow-
ed to stand. In the case Lycett v. Stajford and Uttooceter
R. W. Go,, L.R. 13 Eq. 261, it is decided that the Court
will not in such a case grant the injunction, the learned
Judge following Lord Justice QifTard in Mwnns v. Isle of
Wight R, W, Co,, supra, I think I need not refer specially
to any more of the English authorities. It seems to me that
down to a late case, to which I will presently refer, they are
in the main, if not altogether, against the granting of an
injunction in cases such as the present case is.
The case to which I allude is Allgood v. Merrybent and
Darlington R. W, Co., 33 Ch. D. 571. This seems to me
to be the authority relied upon by the plaintiffs in regard
to the branch of the motion respecting the injunction and
the possession. That case is however, I think, materially
different. Thirteen years had passed away after the price
Digitized byVjOOQlC
XIX.] LINCOLN PAPER MILLS CO. V. ST. CATHARINES R.W. CO. Ill
had been agreed upon. The company had proved unsuc- Jodgment.
cessful and an Act of Parliament had been passed authoriz- Ferguson, J.
ing an abandonment by the company. The company was,
in liquidation and utterly insolvent No part of the pur-
chase money had been paid, although the suits were com-
menced ten years after this company had obtained possess-
ion and the judgments were by consent.
It was shewn that the lands were wholly unsaleable. It
was argued by the vendors that they were dealing with an
insolvent company, and that an order for sale would put
them to unnecessary expense, &c. The learned Judge said,
at p. 574 : " There are two remedies, the one is to force a
sale and the other is to ask for a rescission of the contract
and for possession." Then, as I have said, no part of the
compensation had been paid.
I may say that I do not fully unden^nd the learned
Judge when he says there is nothing in the case before
Lord Justice Giffard, Murine v. Isle of Wight R. W, Go.y
L. R. 5 Ch. 414, to conflict with what he was stating.
Lord Justice GiiBTard did say, at p. 419, '' I shall in this
case discharge the order for an injunction, which I consider
inconsistent with the authorities, and in some measure
inconsistent with principle."
It has not been shewn that the defendants are insolvent. ^
I think the plaintifls cannot in the face of what appears
and has heretofore appeared, say that the land is valueless
and, as will readily be seen, there are many other differ-
ences between the present case and All good v. Men^bentj
Ace. R W. Co., 33 Ch. D. 571. In my opinion the great
weight of recent English authority is against the granting
of the injunction or the order for possession that is asked,
that the case in our own Court, reported in 25 Gr., before
referred to, accords with this weight of authority, and I
think that the case Allgood v. Merryhent, Jkc, Co., is distin-
guishable.
I am therefore of opinion that the plaintiffs are not en-
titled to the injunction or the order for the possession. It is,
however^ conceded and I think rightly so, that the plaintiffs
Digitized byVjOOQlC
112 THE ONTARIO REPORTS. [VoL.
JndgmenL are entitled to the order declaring their lien as they ask.
Ferguson, J. This Order may go and it may contain all such provisions
as are necessary to realize by a sale of the lands. The
time to be allowed will be one month. I think it proper
to confine the refusal of the order for the injunction and
that for the possession to the present state of facts and con-
dition of the proceedings, so that the plaintiffs may not be
precluded or be in danger of being precluded from moving
for these remedies or either of them should a different con-
dition of facts arise and they should be advised so to do.
I think the plaintiffs are nevertheless entitled to their costs
as against the defendants, as the defendants are in default
and the judgment clearly contemplates a motion for relief
in such event.
Order accordingly.
A. H. F. L.
Digitized by VjOOQIC
XIX.] RE IRON CLAY BRICK MANUFACTURING CO. IIS
[CHANCERY DIVISION.]
Re Iron Clay Brick Manufacturing Company.
Turner's Case.
Compatty — Dtredor — Fiduciary capacity — Purchase by director of property
of company nold under mortgage — LiabUily to account — Breach of
trtut — WiruUng-vp Act, Domtuion and Provmdal— Constitutional law
—R. 8. O. cK 1B9, sec, SS—R. S. O, 1887, ch. 18S,
A director of a joint stock company, having a judgment and execution of
his own against the property of the company acting in good faifch, par-
i^iased the same at a sale by mortgagees, under a power of sale for
$8,400, and sold it in the following year for $23,000 :—
Heldy in winding-up proceedings, that he could not purchase for his own
beneBfc, but held the land as trustee for the company and was account-
able for any profit received on a re-sale, and by reason of his refusing to
pay over or account for such profits, and in fact by his appearing as a
bidder at the sale and so damping the bidding, was guilty of a breach
of trust within R. S. C. ch. 129, sec. 83.
Sembfe. Notwithstanding the Act, 52 Vic. ch. 32 (D.), amending the
Dominion Winding-up Act, the Ontario Winding-up Act, R. S. O.
1887, ch. 183, does not apply to a 4:ompany incorporated in Ontario
where application to wind up is made on the ground of insolvency,
because local legislatures have no jurisdiction in matters of bankruptcy
or insolvency.
This was an appeal from a decision of the Master in statement.
Ordinary, made in the matter of the winding-up proceed-
ings of the Iron Clay Brick Manufactuiing Company,
under circumstances suflSciently set out in the reasons of
the learned Master, which were as follows : (a)
Ths Master in Ordinaby ;— This is an application by the liquidator to
have the respondent declared a trustee for the company in respect of cer-
tain lands, purchased by him in 1888, while a director and treasurer of the
company.
The company was incorporated in 1884, for the manufacture from clay^
atone and other material!*, and for the sale of paving stones, or blocks,
bricks, pipes, tiles, statuary, and all other like articles ; and in March, *
1886, it acquired the property in question for |14,100, for the purposes of
its business, assuming in the purchase an existing mortgage for $4,700.
The company got into financial difficulties and paid nothing on the
mortgage ; and in 1888 the mortgagees, under a power of sale, sold the
lands at public auction, when the respondent became the purchaser for
$8,400, he having at the same time a judgment and execution against the
company for |3,400. In February or March, 1889, he was offered $23,000
for the property.
(a) These reasons of the learned Master are more shortly reported, 9
C. L. T. 461.
16 — VOL. XIX. O.R.
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114 THE ONTARIO REPORTS. [VOL.
Judgment. The liquidator contends that by virtue of his position as director and
treasurer of the company, he could not purchase for his own \>enefit, and
Master in ^y^^^ ^^ ijoi^ls the lands as a trustee for the company. No imputotion is
Ordmary. ^^^^ ^^^ ^^^ conduct of the respondent, but it is alleged that he wrong-
fully claims to hold the property as against the company and its creditors.
The chief ground urged by counsel for the liquidator is, that on the
ground of public policy a director should not be allowed to acquire the
corporate property for his own benefit, for the reasons that he and his
co-directors have the possession and control of that property, and acquire
their knowledge of its situation and advantages by virtue of their posi-
tion as directors ; and that they are bound to use it, and if need be, to
sell it, for the benefit of the shareholders.
There is no statutory law prohibiting directors from purchasing the
property of their company, the law controlling such purchases is a rule of
equity, classed by jurists and text writers as a law of public policy.
The law of public policy is not capable of exact definition, but I think
it may come within Austin's references to ** a rule morally sanctioned, or
a rule of positive or actual morality," which may become binding if
affirmed by legislative action ; or become " converted into a law after the
judicial fashion." It is sometimes deemed a law emanating from custom,
or^iM moribus constUutum; and though established by the judicial process
as a rule of judiciary law, it is not less a positive law than if it were
enforced by a statute. One branch of that law relates to the position and
duties of persons holding a fiduciary relation^towards others, and it affirms
that such fiduciary relationship debars the person holding it from gaining
a personal benefit at the expense, or to the detriment, of the persons in
respect of whom such fiduciary relationship exists.
The position of directors of a company has been variously defined as
that of " trustees," " quasi trustees," or " managing partners or agents."
As said by Lord Romilly, M. R., in York and North Midland B, W, Co, v.
Hudson, 16 Beav. 485, at p. 491, "the directors are persons selected to
manage the affairs of the company for the benefit of the shareholders ; it
is an office of trust, which if ihey undertake, it is their duty to perform
fully and entirely." Sir George Jessel, M. R., /« re Forest of Dean Coal
Mining Co., 10 Ch. D. 460, says at p. 451 : "Directors have sometimes
been called trustees or commercial trustees, and sometimes they have
been called managing partners. It does not much matter what you cill
them so long as you understand what their true position is, which is that
they are really commercial men managing a trading concern for the
benefit of themselves and of all the other shareholders in it." Mr. Justice
Lindley in his recent work on the Law of Companies, (1889), also gives
A definition, and its effect thus, (p. 364) : " Directors are not only agents
but to a certain extent trustees. * * The property of the company may
not be legally vested in the directors, but it is practically under their
control, and they are bound to employ it for the purposes for which it
was entrusted to them ; * * and any exercise of such powers for other
purposes is a breach of trust, and will be treated accordingly. It fol-
lows as a necessary consequence, that directors of a company are bound to
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XIX.] RE IKON CLAY BRICK MANUFACTURING 00. 115
acooant to the company for all profits made by themselves by the em- Judgment.
ployment of the assets of the company, and for all profits made by them
at the expense of the company, unless they can show that the company, {i^^l2J^
with a full knowledge of all the facts, have agreed to allow them to retain
such profits for their own benefit. "
The Courts of the United States recognize the same law, and place
directors of joint stock companies under the rule of public policy relating
to fiduciary relations.
In Brctdley y. FarweU, 1 Holmes C. C. 433, it was held that as directors
are intrusted with the general management and control of the affairs and
property of the corporation, this management and control must be
exercised by them in their character of trustees, and subject to the respon-
sibilities, under the law of trusts, imposed upon those who have assumed
and are consequently under obb'gation faithfully to execute a trust. The
fact that the directors in dealing with a trust property have secured to
themselves a benefit or advantage over the creditors, or a benefit or
advantage to themselves as creditors, taints the transaction, and invokes
the aid of a Court of Bquity to the right execution of the trust.
In Twin-Lick Oil Co. v. Marbwry, 91 U. S. 587, the Supreme Court also
placed directors under the rule relating to fiduciary relations : " A direc-
tor of a joint stock corporation occupies one of those fiduciary relations
where his dealings with the subject matter of his trust or agency is viewed
with jealousy by the Courts, and may be set aside on slight grounds.
This is a doctrine founded on the soundest morality, and which has
received the clearest recognition in this Court and in others."
The reason of the rule is given in Bradley v. FarweU^ mpra : " It is
not that in particular instances the sale or the purchase may not be
reasonable ; but to avoid temptation, the agent to sell is disqualified from
purchasing, and the agent to purchase, from selling. In all such contracts
the sales or the purchases may be set aside by him for whom such agent is
acting. The ee«tui que trugt may confirm all such sales or purchases if he
deems it for his interest. The affirmance or disaffirmance rests with him ;
and the trustee when buying trust property from, or selling it to, himself,
must assume the risk of having his contracts set aside if the cestui que
trust is dissatisfied with his action. "
Suits like the present against a trustee or agent, are not actions for
relief on the ground of fraud, but for a judicial declaration and enforce-
ment of an implied or constructive trust : CovingUmj die, , R, W, Co. v.
Bowler, 9 Bush 468.
Mr. Robinson has furnished me with two authorities from the jurispru-
dence of the United States, directly bearing on the case of directors
purchasing their company's property at auction or other sales. In
Hoyle V. PlaUsburgh and Montreal B, W. Co., 64 N. Y. 314, a
director of the company purchased the rolling stock of the rail-
road at a sale under an execution against the company. The Court
held that from his position of director arose the duty of managing
and conducting the affairs of the company to the best advantage,
and the obligation not to let the private interests of any individual
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116
THE ONTARIO REPORTS.
[vol.
Jadgmont.
Master in
Ordinary.
director compete with his duty towardB the corporation, and that
he could not, therefore, become the purchaser of the property of the
corporation, except subject to its right to elect to disaffirm the sale and
demand a re-sale. And in giving judgment, the Court said : *' As direc-
tor it was his duty to prevent a sale if possible ; and if not, then to
endeavour to have the property produce the highest price ; and in order
to the attainment of these objects to use the knowledge he had derived
from the confidence reposed in him as director. As purchaser, on the
other hand, it was his interest to pay as little as possible, and to use his
special knowledge for his own advantage."
No case directly in point has been cited from the English reports ; but
in our Courts the case of King v. Keating^ 12 Gr. 29, may be dted aa
showing that even in the case of sales not controlled by the trustee, as
in the case of a sheriff's sale, Mowat V. C, held that a purchase by
a trustee of his cestui que trwiVa property must enure for the benefit of
his CMtui que trust.
The Irish case of OaJbbeU v. Lawder, 11 L. R. Jr. 295, is to the same
effect. The defendant was the administrator of one Lawder, who held a
leasehold interest in certain Church lands. The reversion in fee was directed
to be sold, and was offered to the defendant as the immediate tenant ; he
declined to purchase at the price named, and the reversion was then put
up for sale by public auction. The defendant attended the auction sale,
and purchased the property at a less price than that previously asked.
The Court held that his purchase was for the benefit of the estate.
In giving judgment, the Vice-Chancellor said: *'If his position could
have caused, or even contributed to his obtaining the advantage, it is, in
my opinion, enough ; and the Court will not undertake the difficult and
often impossible task of investigating the motives of the parties to the
transaction."
The American case of Covington, dtc, JR. W. Co, v. Bowler, 9 Bush, 468, is
to the same effect. There a director of the company purchased the r^ail-
road at a judicial sale ordered by the Court It was held that as he had
not obtained the consent of the company, nor the permission of the
Chancellor of the Court, by whom the sale was decreed, his purchase was
within the rule prohibiting trustees from purchasing the trust property
for their own benefit.
These cases appear to be applicable to the case before me, and I, there-
fore, follow them and adjudge that the respondent is a trustee for the
company of the lands in question ;^ but that he is entitled to claim as
against the said lands all charges and expenses properly claimable by him
in these proceedings.
Costs to follow the result, including the costs in Martens v. Turner,
Sabsequent costs are reserved.
The appeal came on for argument on November 23rd
1889, before Robertson, J.
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:XIX.] RE IRON CLAY BRICK MANUFACTURING CO. iJ7
W. Cassds, Q. C, and Z>. MacdoixaM, for Turner. Wo Argument.
rely upon In re Compagnie CUnerale de BeUegarde,
CampbeWa Case, 4 Ch. D. 471 ; a case which is not cited in
the Master's judgment. Turner has not got moneys of the
company. He has not been guilty of a misfeasance or breach
of trust The case does not come within sec. 83 of the Wind-
ing-up Act^R. S. C. ch. 129, at all. But the Master is also in
error in holding that under no circumstances can a direc-
tor hold for his own benefit. In all cases there is some
particular circumstance. Here the circumstances were
the other way. There had been no meeting of the com-
pany for two years, and the sale was brought on by the
<*ompany itself. The sale is not attacked on any ground.
Robinson, Q. C, and Le Vescovite, for the liquidator.
Section 83 covers many more things than misfe&sance or
breach of trust. Turner becomes accountable for moneys
of the company under that section. He is responsible to
the company for profits as director. The broad principle
is unassailable. He was a director ; the property was the
company's; he made a profit. These three things are
undenied. It comes within the broad principle. CampbdFs
Case, 4 Ch. D. 471, is distinguishable. The point there was
that there was no profit. A director is a person to whom
the rules governing the conduct of persons in a fiduciary
position apply. He is not technically a trustee. There is
no case in which directors have been allowed to retain
profits made out of the property of the company purchased
by them. So long as a director retains office he is subject
to obligations. If he wished to purchase property, to pro-
tect himself, he should have resigned. The duty of a
director is to guard the interests of the company. His
duty as purchaser was inconsistent with this. His duty
as director would have been to take steps to set aside this
sale. We may refer to Mooney v. Smith, 17 0. R. 644.
Turner's bidding at the sale would discourage bidders.
They would think he was trying to buy it in for the com-
pany. That consideration is adverted to in Fox v. Mack-
reth, W. & T. L. C. 6th ed., vol. 1, p. 141 ; see especially
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118 THE ONTARIO REPORTS. [VOU
Argument pp. 176, 180, 191, 191, 197-8, 203, 207, 209. The law i»
epitomized in Tylce v. The Queen, 7 S C. R. at p. 683. See
also Hoyle v. Plattaburgh and Montreal R. TT, Co., 54
N. Y. 314, which is the strongest case we have found. An-
other strong case is Covington, <fec., R. W. Co. v. Bowler, 9
Bush. 468. Also Oreenlaw v. King, 3 Beav. 49, 61;
Lewin on Trusts, 8th ed., vol. 1, p. 279 ; In re Cameron,
14 Gr. 612 ; In re Faure v. Electric Accumulator Co., 40
Ch. D. 141 ; Lindley on Companies, 5th ed., at p. 368.
CasseU, in reply. Sections 11 and 13 of R. S. O., 1887,
ch. 156, may be referred to as to the position of directors^
In this particular case from 1886 the company were not a
company. It was merely a technical directorship from,
that" time out. In Twin-Lick Oil Co, v. Marbury, 91 U. S.
587, the position of directors is defined. The relation of
trustee and cestui que trust is different alt.ogether. A
director can buy, though the Court may on slight grounds
set aside the sale. All the cases say is, that his action s*
will be viewed with jealousy.
Robinson. Under section 77 of the Winding-up Act,.
R. S. C. ch. 129, the Master is Judge. There is no
appeal except to the Court of Appeal. See, also, 52 Vic.
ch. 32, (D). This answers the objection as to section 83.
December 23rd, 1889. Robertson, J. : —
This is an appeal from the report of the Master in
Ordinary adjudging that Mr. Turner is a trustee for the
company of certain lands in which the company had the
equity of redemption, and which he purchased at a sale
under a power contained in a mortgage ; the said Turner
at the time of the said purchase being a director of the com-
pany.
[The learned Judge stated the facts set out in the
Master's finding and continued :]
The liquidator claims that, by virtue of his position as
director and treasurer of the company, he could not pur-
chase for his own benefit ; and that he holds the land aa
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XIX.] RE IRON CLAY BRICK MANUFACTURING CO. 11 &
a trustee for the company. No imputation is made upon Judgment,
the conduct of the respondent, but it is alleged that he Robertson, J.
wrongfully claims to hold the property for his own benefit
as against the company and its creditors. The counsel for
the liquidator contends that, on the ground of public policy,
a director should not be allowed to acquire the corporate
property for his own benefit, for the reasons that he and
his co-directors have the possession and control of that
property and acquire their knowledge of its situation and
advantages by virtue of their position as directors ; and
that they are bound to use it, and, if need be, to sell it for
the benefit of the shareholders.
Mr. Cassels took the objection before me that ''The
Winding-up Act," R S. C. ch. 129, does not apply to a
joint stock company formed under " The Ontario Joint
Stock Companies Letters Patent Act," R S. O., 1887, ch.
157, which is the case of this company now being wound
up; there being a local Winding-up Act, R S. O., 1887
ch. 183, and cites the amending Act, 62 Vic. ch. 32, (D.)
sec. 3, which declares that this Act only applies to corpor-
ations incorporated by or under the authority of an Act
of the Parliament of Canada, or by or under the authority
of any Act of the late Province of Canada, or of the Pro-
vinces of Nova Scotia, New Brunswick, Prince Edward
Island, or British Columbia, and whose incorporation and
the affairs whefreof are subject to the Legislative authority
of the Parliament of Canada. This amending Act, was
passed on April 16th, 1889. The order in this matter was
made before that Act became law — ^namely, on February
20th, 1889. I think, therefore, even if there were no other
reason, the objection must fail. In lie Clarke and Union
Fire Ins. Co., 16 A. R 161, the decision of Boyd, C, that
the Dominion Winding-up Act is intra vires the Domini-
on Parliament, and applies to a company incorporated by
the Provincial Legislature, Vas affirmed. This, however,
was conceded by Mr. Cassels in so far as former legisla-
tion was concerned, but he contended that the amending
Act was passed to meet the case now put by him.
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120 THB ONTARIO REPORTS. [VOL.
Judgment The local Act> in my judgment, does not apply, when
Robertson, J. the applicatioa for " winding- up" is made by a creditor on
the grounds that the company is insolvent, as was the case
here. The local Legislature having no jurisdiction in
matters of insolvency, whereas matters of "insolvency"
are wholly within and ''subject to the legislative authority
of the Parliament of Canada."
Another ground of appeal is, that the Master in Ordinary
was wrong in holding that the appellant Turner, although
a director of the company at the time of the purchase of
the land in question, could not purchase for his own
benefit ; that the purchase by a director is not per se void ;
nor is he trustee in the ordinary sense. There must be some-
thing in the nature of a breach of trust, and sec. 83 of the
Winding-up Act, R. S. C. ch. 129, is referred to ; there
must be a misapplication, &c. Nor does the mere fact of
his buying make him guilty of a breach of trust. This
company was promoted by a Mr. Von Heimrod, who had
lands which could be utilized for making bricks, &c. The
company bought these lands at $500 per acre, subject to a
moi-tgage thereon, which the company was to assume and
pay off out of the purchase money. Von Heimrod took
stock for a large amount. The propriety of the transac-
tion so far as the purchase by Turner is concerned, is not
questioned.
At a special meeting of the shareholders, held on Novem-
ber 30th, 1886, at which it was concluded that the com-
pany could not raise the necessary funds to meet their
liabilities, Mr. Turaer, who was a holder of promissory
notes against the company for a considerable amount,
stated that he purposed entering suits against the company
upon the notes held by him, and solicitors were then
instructed by resolution to accept service of process for
the company. The action was proceeded with, and Mr.
Turner in due course recovered judgment, and'placed Ji. fa*a.
against goods and lands in the hands of the sheriff*,
and was proceeding to sell the equity of redemption of the
company in the lands, but at the request of the directors
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XIX.] BE IRON CLAY BRICK MANUFACTURING CO. 121
he permitted the sale to stand over from time to time in Jp^gment,
order to give the company another opportunity to raise the Robertson, J.
money to pay his claim, in which however the company
failed. And these circumstances are urged to shew that
Mr. Turner acted in good faith in his endeavour to assist
the company.
After this, the mortgagees took steps to realize on their
mortgage, and Mr. Turner thereupon allowed his ji, fa.
lands to stand again at the request of the company, the
property being sold under the power contained in their
mortgage on July 2ad, 1888. It is admitted that every
thing was done on the part of the mortgagees to get the
highest price ; and the Master has so found. Mr. Turner
at this mortgage sale became the puitshaser at about $8,400,
and afterwards sold for $23,000; his judgment was for
about $3,400, and his mortgage claim about $5,000, so that
he got the property for the amount due on the mortgage
and his own claim.
Mr. Cassels also contended that if it can be satisfactorily
established that the property when purchased by Mr.
Turner, brought its then full market value, the claim of
the liquidator must fail ; and in order to ascertain that
fact, there should be a reference back.
I will consider this last contention first ; and in doing
so, it is only necessary to refer to a very late case, which, in
my judgment, not only covers this point, but goes to main-
tain the position taken by the Master on the general ques-
tion. In Eden v. Ridsdale'a Railway Lamp and Lighting
Co., 23 Q. B. D. 368, the Court of Appeal in England
decided that a gift by a promoter of a company to a direc-
tor, under the circumstances therein mentioned, miLst be
a/xounted for by the director to the company, and the com-
pany has the option of claiming the thing given^ or its
highest value whilst held by the director. Applying that
case to this, the company now say the highest value of this
property whilst it was in Mr. Turner's hands, is found to
be $23,000— he paid $8,400 for it. We claim the balance
as forfeit. I am of opinion the company, or its creditors
16 — VOL XIX. O.R
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122 THE ONTARIO REPORTS. [VOL.
Judgment ean do 80, and therefore there need be no reference back
Bc^berteon, J. to ascertain what the value was at the time of purchase
by Mr. Turner.
Then as to the objection that Mr. Turner although a
director at the time of the purchase, was not a trustee,
and that there must be something done in the nature of a
breach of trust, a misapplication, or a retention in his own
hands of the moneys or property of the company within
the purview of the 83rd sec. of the Winding-up Act, to
make him answerable, &c. That section of the statute
declarefif, "When, in the course of the winding-up of the
business of a company under this Act, it appears that any
past or present director, manager, &c., of such company
has misapplied or retained in his hands, or become liable or
accountable for any moneys of the company, or been
guilty of any misfeasance, or breach of trust in relation to
the company, the Court may, on the application of any
liquidator, &c., * * examine into the conduct of such
director, &c., and compel him to repay any moneys so
misapplied or retained, or for which he has become liable
or accountable, &c., or to contribute such sum of money to
the assets of the company by way of compensation in
respect to such misapplication, retention, misfeasance, or
breach of trust, as the Court thinks fit."
Now it is contended on the part of the liquidator that
in this case, by reason of Mr. Turner having become
the purchaser of the lands in question, which certainly
were the lands of the company subject to the mortgage,
he, Mr. Turner, then being a director of the company, has
become liable or a^ccountable for whatever profits he may
have received on a sale by him of these lands ; and that
by reason of his refusing to pay over or to account for
such profits, he has been properly adjudged guilty of a
" breach of trust," and after full consideration of the
point, I think that contention is well supported, and is
withiifi the 83rd section.
As to whether Mr. Turner is a trustee in the ordinary
legal acceptation of the term, this is to my mind of little
consequence. Learned Judges before this have treated of
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XDL.] BE IKON CLAY BRICK MANUFACTURING CO. 12*
ihat in numerous reported eases, but whether he was a Judgment,
trustee or an agent, or whatever it may please any one to Robertson, 'J.
call the position occupied by Mr. Turner in this company,
it is clear he was a director, and his duty as such made it
incumbent on him to give his whole ability, business know-
ledge, exertion, and attention, to the best interests of the
shareholders, who had placed him in that position, when
these interests were involved ; and it was incumbent upon
him to assume no part which would be inconsistent with
a proper, free, and independent discharge of his duties in
that respect; he could not serve two masters — himself
individually or personally, and the shareholders of the
company, whose agent he was — the interest of the one,
and his duty to the company or its shareholders, were
conflicting ; and although I have not the slightest doubt,
and that fact is admitted on all sides, that so far as Mr.
Turner's own mind was concerned, he acted in perfect good
faith, and he had no idea that he was in any way infringing
upon the rights of others ; yet the very fact of his appear-
ing as a bidder at the sale, the public knowing that he was a
director of the company whose lands were being sold, would
have the effect of damping the bidding, and the chances of
a good fair price being obtained were greatly lessened by
that fact, and in that respect there was a breach of trust.
No one standing or occupying a fiduciary relationship can
be permitted to do an act on his own personal behalf,
which might or could be construed to be inconsistent with
the fiduciary character which he held at the time.
I have not over-looked the case cited, and relied upon by
Mr. Cassels : In re Compagne Ginirale de Bdlegrade,
Campbell's Com, 4 Ch. D. 471 ; but I do not think it ap-
plies in principle, nor could I give effect to it even if I
thought it could be so construed, against all the other
cases which are to be found in the books and cited by Mr.
Robinson, which meet the facts, circumstances, and prin-
ciples involved in the case now before me. I am, there-
fore, of opinion that the Master in Ordinary was right, and
the appeal must be dismissed with costs.
A. H. F. L.
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124 THE ONTARIO BEPOBTS. [VOL.
[QUEEN'S BENCH DIVISION.]
Brooke et al. v. Brown.
Tru8t8 and trusUes — ProviHums oj tnll— Implied powers of trustees —
jReasonabU btiilding lease — Specific performance of agreement for.
The plaintiffs were trustees under s will, holding the legal estate in the
property devised and bequeathed, in trust to maintain themselves and
their children, with remainder over to the children upon the death of
themselves; with power to absolutely convey the property and to
exclude any child from participating in the remainder : —
Held^ that the plaintiffs had implied power to make all reasonable leases.
The plaintiffs made an agreement for a building lease to the defendant
of part of the trust estate for twenty-one years, with a provision for
compensation to the defendant at the end of the term for bis improve-
ments, and the draft lease settled provided that the plaintiffs should at
the end of the term pay for subh improvements or renew the lease for a
further term of twenty -one years : —
Hddf that the provisions of the agreement and lease were reasonable, and
bound the trust estate, and that the plaintiffs were entitled to specific
performance.
Statement This was an action brought to compel the defendant
specifically to perform the following agreement : —
" I hereby agree to lease from John Edmund Brooke and
Betsey Johnston Brooke (the plaintiffs), of the town of
Chatham, in the county of Kent, trustees under the will of
Daniel Brooke, senior, formerly of Toronto, deceased, the
premises at present known as numbers 16, 18, and 20
Adelaide street west, Toronto, lately occupied by Barnes
Bros, as livery and sale stables, for a term of twenty-one
years, yielding and paying yearly the sum of $1,425 and
all taxes for the first ten years, and the sum of $1,800
yearly and all taxes for the remaining eleven years : the
premises to be put in a fair state of repair, so as to make
them wind and water tight : the above named trustees to
furnish the lumber and to pay for one-half the labour, and
I to pay for the other half of the labour. I also agree
within three or four years from the date of my lease to
erect or cause to be erected on the said premises good and
substantial brick stables to cost not less than $8,000. The
lease to contain the ordinary statutory covenants and a
clause for the disposition of the said buildings at a valua-
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XIX.1 BROOKE V. BKOWN. 125
tion to be decided by arbitration at the end of the term.*' Statement.
This was dated the 6th October, 1888, and was signed by
Charles Brown, the defendant, and by the trustees.
A lease was settled between the parties pursuant to
the agreement, which provided that the lessors, as trustees,
should have the option at the end of the first term of
twenty-one jears of paying for the buildings or renew-
ing the lease for the further term of twenty-one years, at
a rent to be fixed by arbitration. A covenant by the
plaintiffs, as trustees, for quiet enjoyment wcks inserted.
It was agreed that if the plaintiffs had the power (which
the defendant denied) to make such an agreement and
lease, and if the defendant was bound to specifically per-
form the agreement, tlie lease should be in the terms as
settled.
The defendant set up that the plaintiffs had not the
power as trustees under the will of Daniel Brooke, senior,
to make the agreement or lease.
The trial of the action was begun at the assizes at
Chatham in the autumn of 1889, before Rose, J., without
a jury.
The material parts of the will were as follows: "I will,
devise, and bequeath upto my son John Edmund Brooke
• * and Betsey Johnston Brooke, his wife, all my estate,
real as well as personal * * to have and to hold the
same to said John Edmund Brooke and his wife, Betsey
Johnston Brooke, and to the survivor of them to, for, with,
and upon the uses, trusts, limitations, provisoes, powers,
conditions, and limitations hereinafter provided and ex-
pressed of and concerning the same, that is to say: in the
first place, to and for the support and maintenance of the
said John Edmund Brooke and his wife * * during their
joint lives and during the life of the survivor of them;
secondly, for the^ support, education, and maintenance of
the children of the said John Edmund Brooke and Betsey
Johnston Brooke * • and after their death, then to all
their children, share and share alike, as may survive them
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126 THE ONTARIO REPORTS. [VOL.
Statement, and the heirs of the bodies lawfully begotten of such as
may not survive, forever : provided the said John Edmund
Brooke and Betsey Johnson Brooke, or the survivor of
them, shall not by any instrument or instruments under
their hands and seals, or the hand and seal of such sur-
vivor, make any other distribution of the same between
their said children and their said heirs except as they are
hereinafter empowered to do • * * and I hereby em-
power the said John Edmund Brooke and his wife, Betsey
Johnston Brooke, jointly during their joint lives, but not
either of them, • • • ^ny qj. ^U of the said lands
and tenements, mortgages, and all other securities to sell,
convey, and absolutely dispose of, and for that purpose any
deed or deeds to execute, sign, seal, and deliver, and any
mortgage or mortgages or other securities to accept and
take, securing the purchase money or any part thereof, at
such time or times as they * * may think fit, and to
stand possessed of the said proceeds of such sale or sales
to and upon the same trusts, uses, and conditions as herein-
before provided with respect to my bequest to them. * *
And I hereby further empower my son John Edmund
Brooke and his wife, Betsey Johnston Brooke, during their
joint lives or the survivor of them, by instrument under
their hands and seals irrevocable, to take effect after their
death, or sooner if they shall think fit, to divide said real
and personal estate or the proceeds thereof * * * be-
tween their said children and their said heirs, if any, in
such manner and in such proportion as to them may seem
fit, or to exclude any of them entirely from any benefit or
any portion thereof, if they shall see fit so to do, or in the
meantime by any such instrument to convey and make
over to any of them by way of advancement any portion
of the same, to become theirs absolutely from thenceforth
forever: provided always that nothing herein contained
shall be construed to allow the said John Edmund Brooke
and his said wife or either of them to mortgage or create
any lien on any part of the said bequest to them, or in any
way incumber the same by debts, either already contracted
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XIX.] BKOOKB V. BROWN.
187
or to be contracted by tbem or either of them, in any way StiAenwiit.
whatsoever."*
It was shewn, and not denied by the defendant, that the
terms of the agreement and lease were reasonable, and
such as a prudent owner would make of similarly situated
property in the interest of himself and family, and that the
property would soon become unproductive unless new
buildings were erected thereon, and that the testator bad
made a similar lease of property similarly situated.
Upon the evidence taken at Chatham the case was
argued at Toronto before Rose, J., on the 6th December,
1889.
Matthew WUson, for the plaintiffs. It is contended by
the defendant that the plaintiffs have not the power to
make the agreement or lease ; that the term is too long ;
and that the provision as to payment for buildings of great
value is beyond the powers of the trustees. The plaintiffs
are trustees vested with the legal estate ; they are trustees
for the maintenance of themselves and children and the
preservation and care of the property out of the proceeds
of the estate ; it is therefore their duty to so use the estate
as best to realize an income with which to carry out the
trusts. The power to manage the estate during the lives
of the trustees and to make leases is a necessary adjunct
to the duty to obtain an income for the purpose of carrying
out the trusts. The trustees are expressly given the greater
power of making an absolute conveyance, as well as of
altering or directing the course of the estate upon their
death, and of excluding any child from participation in the
estate; it therefore must have been intended that the
trustees should have the lesser power to make such leases
as would best secure the largest income consistent with the
due management of the estate in such a manner as an
owner would prudently use his own property; and that
power should be held to be incident and necessary to the
* This is the same will that was in qnestion in I^ken y. Brooke, 4
A* R. 98.
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128 THE ONTARIO REPOilTS. [VOL.
Aiigiune&t. proper execution of the trusts. I submit, as a matter of
law, that the plaintiffs can give all reasonable leases. To
determine whether a lease is reasonable or not, the Court
should consider the nature and location of the property
and other surrounding circumstances, also the rent which
can, as the property now is, be obtained, and the income
which may be derived under the agreement and proposed
lease, and the reasonableness or unreasonableness of the
trustees in making the proposed lease in the interest of the
present cestuis que tt^ustent, as well as in that of the
remaindermen. In this cose the testator made similar
leases of similar property, and the pi-oposed lease is shewn
to be alike advantageous to the present recipients of the
income and to the future owners ; it will best conduce to
the proper support and maintenance of the beneficiaries
mentioned in the will, and will also make the estate more
valuable for those who may afterwards be entitled, than if
part of the estate is now taken to erect buildings ; a tenant
would not enter into binding covenants and pay large rents
unless he secured a long term ; the agreement is therefore
a reasonable one and such, no doubt, as the testator con-
templated; and it is not inconsistent with any provision in
the will. See Sheehy v. Lord Muskem^, 1 H. L. Cas. 576.
A trustee who has the management of property may
grant any reasonable lease unless expressly or impliedly
restrained : UnderhilFs Law of Trusts and Trustees, 3rd ed.
p. 308 ; Hill on Trustees, 482 ; In re Cross, 27 Beav. 592.
Trustees having a general power of superintendence and
management, and a duty to repair, will be allowed sums ex-
pended in erecting and repairing buildings : Lewin on
Trusts, 8th ed., pp. 576 and 595; Bowes v. Strathmore, 8 Jur.
92. It must therefore be within the powers of the plaintiffs
to make a reasonable lease providing for the erection of
buildings; and under the circumstances this is a reasonable
lease : Hill on Trustees, p. 428 ; In re Leslie's Settlement
Toasts, 2 Ch. D. 185; Greason v. Keteltas, 17 N. Y. 491.
Morson, for the defendant. We have no Settled Estates
Act such as exists in England. Before that Act in England,.
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XIX.] BROOKE V. BROWN. 129
trustees coald not give a building lease without express Argument.
power or the consent of the cestui que truat: Emden's Law of
Building, 2nd ed., p. 7, and cases there collected. At least the
power was so doubtful that the lease would not be forced
upon an unwilling leissee. The Court (independently of the
statute) would not authorize trustees for infants to grant
a mining lease although the lease would be for the
benefit of the infants : Wood v. Patteaon, 10 Beav. 541.
The Court also refused to give authority to trustees to
grant leases of real estate for a term not exceeding ten
years : In re Shawns Trusts, L. R 12 Eq. 124. Express
power is usually given to trustees where it is intended that
they shall make leases binding on the remaindermen :
Sheehy V, Lord JHuskeiTy, 1 H. L. Cas. 576 ; Mostyn v.
Lancctster, 23 Ch. D. 583. By this will power to sell is ex-
pressly given, and therefore a power to lease should not be
implied : Evans v. Jackson, 8 Sim. 217. Express power
must be given to trustees to enable them to make leases
for long terms : Hill v. HiU, 6 Sim. 136 ; Duke of Bedford
V. Ahercom, 1 Mj. & Cr. 312 ; and the tenants for life
cannot without express power create (by the undertaking
to pay for the building at the end of the term) a burden
upon the inheritance which the remaindermen must pay
off To grant a decree for specific performance against
the defendant would subject him to an action by the
cestuis que trustent upon the death of the trustees.
WiUon, in reply. This is not a simple case of tenant
for life and remainderman, where the former cannot for
his own benefit incumber the latter's estate. Here the
trustees have sole control during their lifetime of the in-
terests both of the present beneficiaries and the future
owners. The plaintifiis under their express powers can
deprive any child or cestui que trust of all interest in re-
mainder : it is therefore not unreasonable that the trustees
should have the lesser power of charging a portion of the
property with the payment for buildings, when without
the buildings the property would be practically useless to
produce an income for the support and maintenance of the
17 — ^VOL. XIX. O.B.
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130 THE ONTARIO REPOBTS. [vOL.
Argument children. The Amencan more than the English cases are
applicable to the circumstances of a new country, but even
the English decisions are not contrary to the plaintiffs'
contention. I refer particularly to Oreaeon v. Keteltas, 17
N. Y. 491, already cited, where the general power of manage-
ment given to trustees was held to authorize a lease by them
for twenty-one years, with a covenant to renew or to pay for
buildings to be erected by the lessee such sum as two
sworn appraisers might then fix ; and to the language of
Pratt, J., at p. 501 : " Indeed, it seems to me, if the
trustees had allowed the property . . to have remained
vacant and unproductive, subject annually to the enormous
taxes, . . they might well have been chargeable with
gross neglect of the duties which they had assumed in
accepting the trust. They would have been more culpable
than the unprofitable servant, who hid the talent entrusted
to him in a napkin, for in that case no expense would be
incurred in its preservation." In Jfaylor v. Amitt, 1
Russ. & My. 501, it was held that a trustee to manage and
apply the rents of an estate might make a lease for ten
years, and that case was followed in Fitzpatrick v. War-
ing, 11 L. R Ir. 35 in which it was said, at p. 53, (dis-
tinguishing Wood V. Patieson and In re Shaw's Trusts)
that a trustee without express power might make a yearly
or other reasonable letting of tenantable land. The Lord
Chancellor in Attorney- General v. Ov)en, 10 Ves. at p. 560,
shews that the power of a trustee (apart from his express
authority) depends upon the reasonableness of the lease,
and says that the ordinary husbandry lease is for twenty-
one years, and building leases are sometimes made for
sixty or ninety years, at a rent increasing from time to
time. I therefore submit that the plaintiffs have ample
power to mnke such a reasonable lease as that in question,
and the plaintifiR^ are entitled to have the lease executed
and a judgment for specific performance : Mobei^tson v.
Patterson, 10 O. R 267 ; Walsh v. Lonsdale, 21 Ch. D. 9,
per Jessel, M. R.
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SIX.] BROOKE y. BBOWN. 131
Judgment was given at the condusion of the argoment. Jndgment.
Rose, J.
BOSE, J.: —
Held that power to manage the testator's property
necessarily arose from the vesting of the legal estate in the
trustees with directions to apply the proceeds or income
therefrom as is in the will provided ; that for the proper
management of the estate it was necessary to make reason-
able leases, and the authority to do so must be implied,
particularly as such authority was not inconsistent with
any provision in the will; that in ascertaining what was
reasonable, a reference to the circumstances of each case
was indispensable ; that the terms of the agreement and
lease in question were under the circumstances of this
case, reasonable; that the trustees (the plaintiffs) had
power to make such an agreement and lease, and in so
-doing to bind the trust estate ; and that the defendsmt also
was bound thereby, and should specifically perform the
^igreement.
The judgment of the Court as settled was as follows :
1. It is declared and adjudged that the plaintiffs as
trustees have the right and power under the will in the
pleadings set out to make, execute, and carry out the
agreement in the pleadings mentioned and set forth, and
the lease thereby agreed to be made ; and that said agree-
ment is valid and binding upon the parties hereto and the
-estate held and represented by the plaintiffs.
2. It is further declared and adjudged that the plaintiffs
are entitled to specific performance by the defendant of
the said agreement, and the defendant is hereby ordered
and adjudged to specifically perform the same, and to exe-
cute and deliver to the plaintiffs forthwith the lease
referred to in the statement of claim and tendered by the
plaintiffs to the defendant.
3. And it is further ordered and adjudged that the de-
fendant do pay to the plaintiffs their costs of and incidental
to this action forthwith after the taxation thereof.
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132 THB ONTARIO REPORTS. [VOU
COMMON PLEAS DIVISION.
Mason v. The South Norfolk Railway Company.
Datnages — AgreftnetU for aale of land — Ohstructwn to land by railway com-
pany— JRiyhts of vendor and purchaser as to damayes.
The plaintiff was in poesession of certain lands under an oral agreement-
of purchase at $450, payable in bricks deliverable as demanded, of which
$100 worth had been demanded and delivered. The defendants, without
making any compensation or taking any steps under the statute there-
for, built their railway in front of the land so as to interfere with the
plaintiff's right of access, whereupon this action was brought, and
damages recovered by the plaintiff he being treated as entitled to the
whole estate in the land ana the injury permanent, reducing the value
of the land.
Held that the company were trespassers, and could not justify the acts
complained of under the statute : that substantial damages, on proof of
them, were recoverable for the disturbance of the possession ; but in a.
first action only nominal damages for the injury to the reversion.
Held therefore that the damages here were not properly assebsed, and a.
new trial was directed.
Stmble that the damages for injury to the reversion belonged to the
vendor ; and leave was given to add him as a party plaintiff.
The position of a vendee un ler a contract for sale of land considered.
Statement. This was an actioD tried before Street, J., and a jury,
at Simcoe, at the Fall Assizes of 1889.
The action was for consequential damages occasioned
by the defendant company building its road in front of
the premises occupied by the plaintiff, and interfering with
the way of access thereto.
The jury assessed the damages at $175, evidently treat-
ing the plaintiff as entitled to the whole estate in the land,
and the injury as permanent, reducing the value of the
land.
A motion was made to the Divisional Court to set aside
the judgment entered for the plaintiff, and to enter judg-
ment for the defendants.
In Michaelmas Sittings, 1889, E. D. Armour, supported
the motion.
Robb, contra.
The authorities cited sufficiently appear from the judg-
ment.
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XIX.] MASON V. SOUTH NORFOLK B. W. CO. 133
December 21, 1889. Rose, J. : — Jadgment.
The plaintiff was in possession under an oral contract of
purchase from one Dr. Hayes. The consideration was $450
to be paid in bricks, which were to be delivered as de-
manded by the vendor. Bricks to the value of $100, as I
understand the evidence, had been demanded and delivered,
and so we must treat the plaintiff as in possession, and not
in default.
The sole point raised by the defendants' counsel is,
whether the plaintiff not having the legal estate could
recover.
It has been held that a person having an equitable title
can recover possession of land : Thome v. Williams, 18
0. R 577, 579 ; Heenan v. Heenan, 3 C. L. T. 163.
But here something more is sought^ not only possession,
but the amount representing the diminution in value by
reason of the obstruction.
I think the effect of West v. Corporation ofParkdale, 12
App. Cas. 602, at p. 614, is, that the company must be
treated as trespassers; not having made compensation prior
to doing the work,it cannot justify the acts complained of by
pleading the statutory authority of the railway companies.
If so, then can the amount sought to be recovered, or
the mode of recovering it be governed at all by the Rail-
way Act ? Probably not If it could then, under sec. 92
of the Railway Act of 1888, the company was required to
make *' full compensation" * * to all parties interested,*'
4tnd both the plaintiff and his vendor would be interested,
for until the purchase money has been paid, the vendor
has really a greater interest in the land than the plaintiff.
While, if the company is precluded from setting up the
provisions of the Act, it is difficult to see how sec. 92
applies: the language of Lord Macnaghten, at p. 616, sug-
gests if it does not declare that even after the work has
been commenced the company may take the steps neces-
sary to have compensation assessed, for he speaks of the
protection which must be afforded if the company " were
Boae, J.
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134 THE ONTARIO REPORTS. [VOL.
Jadgmaai willing to put the matter in train for the assessment of
Rooe, J. eompenaation.**
Then what is the exact status of the plaintiff? I am
indebted to my learned brother Street for reference to the
cases of Trotter v. Watson, L. R. 4 C. P. 434, 450, and
Lysaght v. Edwards, 2 Ch. D. 499, where are most interest-
ing and instructive discussions as to the interest of a vendee
of land under a contract of purchase.
In both cases Wall v. Bright, 1 Jac. & W. 494, is treated as
good law. There we find such expressions as follow : It is
** in equity no longer his," : " he (the vendor) " is considered
constructively to be a trustee of the estate for the purchaser,
and the latter as a trustee of the purchase money
for him." " Before it is known whether the agreement
will be performed, he " (the vendor) " is not even in the
situation of a constructive trustee ; he is only a trustee atib
modo, and provided nothing happens to prevent it. It
may turn out that the title is not good, or the purchaser
may be unable to pay ; he may become bankrupt, then
the contract is not performed, and the vendor again be-
comes the absolute owner ; here he differs from a naked
trustee, who can never be beneficially entitled. We must not
therefore pursue the analogy between them too far. The
agreement is not for all purposes considered to be completed.
Thus, the purchaser is not entitled to possession, unless
stipulated for ; and if he should take possession, it would be
a waiver of any of the objections to the title ; the vendor
has a right to retain the estate in the meantime, liable to
account if the purchase is completed, but not otherwise.
Till then, it is uncertain whether he may not again become
the sole owner ; the ovmership of the purchaser ia inchoate
and imperfect ; it is in the way to pass, but it has nx)t yet
Bovill, C. J., adds, at p. 450 of L. R. 4 C. P.: "And though
the general doctrine of courts of equity may be as stated by
the learned counsel, it falls far short of shewing that the
purchaser has an equitable estate, as distinguished from
an equitable interest."
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XIX.] MASON V. SOUTH NORFOLK K. W. CO. 135
In Lysaght v. Edwards, Jessel, M. R., at p. 504, com- Jutigment.
ments on Wall v. Bright, premising by saying that he Rose, J.
thought it was impossible for him to say it was not
law. It would be necessary to extract very fully to fairly
give the effect of what the learned Judge then said, at
p. 508, but I will quote the following citation by the
Master of the Rolls, from Lord Caims's judgment in Sliaw
V. Foster, L. R 5 H. L, 321, at p. 338. " Under these
circumstances I apprehend there cannot be the slightest
doubt of the relation subsisting in the eye of a Court of
Equity between the vendor and the purchaser. The ven-
dor was a trustee of the property for the purchaser ; the
purchaser was the real beneficial owner in the eye of a
Court of Equity of the property subject only to this obser-
vation, that the vendor, whom I have called the trustee, was
not a mere dormant trustee, he was a trustee having a per-
sonal and substantial inten^est in the property, a right to
protect that interest, and an active right to assert thai
interest if anything should he dons in derogation of it.
The relation, therefore, of trustee and cestui que ti'ust sub-
sisted, but subsisted subject to the paramount right of the
vendor and trustee to protect his o in interest as vendor
of the property" The Master of the Rolls adding : " That
interest being, as I said before, a charge or lien upon the
property for the amount of the purchase money."
The vendor in this case has therefore in him the legal
estate and a substantial interest in the property, and an
active right to assert that interest, if anything should be
done in derogation of it ; and, it seems to me, that any act
which would lessen the value of the property would be in
derogation of the vendor's right by lessening the value of
his security, i.e,, of property on which he has his lien.
The vendee, the plaintiff, is not entitled to a conveyance,
may never become entitled ; may become bankrupt and
unable to complete the purchase.
In Vallance v. Savage, 7 Bing. 595, Tindal, C. J., said, at p.
599: *' It has been objected that Sarah Pell was not tenant
to the plainti S, but to James Vallance ; and, consequently!
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136 THE ONTAHIO REPORTS. [vOL.
Judgment, that the plaintiff had not the reversionary interest set forth
Rose, J. in the declaration. The evidence was, that John Vallance
the plaintiff was a trustee ; that James Vallance was his
cestui que truat.BXiA had let the premises in question to Sarah
Pell, from whom he received the rent. It was therefore the
simple case of trustee and cestui que trust The legal in-
terest is in the trustee ; actions must be brought by him ;
the cestui que trust has no interest in law; if he enters, his
possession is considered the possession of the trustee : and
any disposition made by him and adopted by the trustee
is considered the disposition of the trustee, the cestui que
^rwffi only possessing the property in the right of the trustee.
* * Even in the case of mortgagor and mortgagee,
whose interests are adverse, acts of the mortgagor assented
to by the mortgagee are considered as acts of the mort-
gagee. Hy the stronger reason, therefore, the act of the
cestui que trust, whose interest is under the trustee, must,
if known and not repudiated, be considered the act of the
trustee."
Is not the position of vendor and vendee somewhat
similar until the purchase money has been paid, and all
acts done by the vendee to entitle him to a conveyance of
the land at which time the vendor becomes a bare trustee ?
If the vendee enter into possession under his contract
with the vendor, is he not a tenant whose possession can
be determined at the will of his vendor so soon as the
purchase money becomes in arrear, or any other act is done
disentitling him to retain possession ? Is not his posses-
sion the possession of the vendor, the holder of the legal
estate, and must he not defend his possession under the
title of his vendor ?
So far as his possession is concerned, if a trespasser inter-
feres with it he may obtain such damages as he sustains
by reason of interference with his right of possession, but
if the property is injured by permanent acts, so that its
value would be lessened, as, for instance, by cutting down
timber, carrying away soil, building walls across ways of
. access, cutting watercourses, or flooding by turning the
Digitized byVjOOQlC
XIX.] MASON V. SOUTH NORFOLK R. W. CO. 137
•courses of streams, would not the vendor, in whom is the JndgmeDt.
legal estate, be in a position to assert his " paramount right Rom, J.
of the vendor and trustee to protect his own interest?"
I am not overlooking Baker v. Jlills, 11 O. R. 253, where
it was held that an heir-at-law or devisee cannot maintain
trespass before entry, nor Western Bank of Canada v.
Oreey, 12 O. R. pp. 76-7, where it was held that " a mort-
gagee not in possession, or a landlord after the end of a
lease, or heir or lessee or assignee of leasee cannot maintain
trespass before entry."
But I think I am not here bound to determine
whether a vendee upon the facts of this case can maintain
an action for permanent injury to the freehold, for it
seems to me that, as I have indicated upon the author-
ity of West V. Corporation of Parkdale, 12 App. Gas. 602, the
defendant company being a trespasser, and unable to plead
the statute, it must be treated as any other trespasser. The
trespass was a continuing one,and fresh damage accrues from
day to day, and a new right of action arises each day :
Holmes y. Wilson, 10 A.&E. 503; Bowyer v. CooA:,4 C.B. 236.
For such a trespass the occupant or person in possession
has a right of action, the damages being confined to the
disturbance of such possession.
The obstruction in this case is of a permanent character,
and injurious to the reversion.
The law is collected in Addison on Torts, 6th ed., pp. 56,
364, 390 ; Roscoe's N. P., loth ed., p. 679 ; Bullen & Leake,
3rd ed., pp. 348, 378, 394, 395, 416, 425, 429 ; Mayne on
Damages, 2nd ed., pp. 63, 334 ; WoodfalFs, L. & T., 12th ed.,
pp. 655, 657, 660, 671, 680, 704, 706, 707, where, amongst
other cases, are cited Battishill v. Reed, 18 C. B. 696 ; Kid-
gill v. Moor, 9 C. B. 364, 378 ; Dobson v. Blackmore, 9
Q. B. 991, 1004 ; Hapwood v. Scho/ield, 2 Moo. & Rob. 84 ;
BeJl V. Midland R Tf. Co., 10 C. B. N. S. 287; Wilkes v.
Hvmgerford Market Co,, 2 Bing. N. 0. 281.
But to the reversioner the damages should be only nomi-
nal in the first action : Hopwood v. Schofield, 2 Moo. &
Rob. .34 ; Battishill v. Reed, 18 C. B. 696.
18 — VOL. XIX. O.R.
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138 THE ONTARIO REPORTS. [VOL.
J«4giiient. The defendant by paying the damages in the first suit
KoM, J. is not protected against further actions, otherwise he would
be purchasing a right to commit a wrong. Id.
At common law as a continuing trespass is a fresh
ground of action every day, the jury could not lawfully
give damages in respect of injury subsequent to the day
of the commencement of the action; but damages in
respect of any continuing cause, of action are now
assessed down to the time of assessment : Con. Rule 680.
See Pollock on Torts, Bl. Ed. 344.
Damages for an anticipated continuance of the nuisance^
cannot be recovered ; but if the defendant persists in con-
tinuing the nuisance after a verdict against him for nomi-
nal damages, the jury in a second action may give
vindictive damages to compel him to abate the nuisance :
Battishill v. Reed, 18 C. B. 696 ; ShadweU v. Hutchinson^
40. & P. 333.
For the same reason, ^.«., that a continuing trespass is a
fresh ground of action every day, if part of the time
during which the trespass was continued is beyond the
period of limitation^ damages can only be recovered for
the trespasses within such period : Wilkes v. Hungerford
Market Co., 2 Bing. N. C. 281.
I am indebted to my learned brother Osier, for a refer-
ence to WUkes V. Gzowski, 13 TJ. C. R. 308, where many of
the above principles are applied. It has so direct a bear-
ing that I give the headnote.
" The Grand Trunk Railway Company gave a notice to
the plaintiff under 14 & 15 Vic. ch. 51, sec. 11, sub-.sec. 5,
of their intention to take about 11 acres of his farm,
through which their line passed. They afterwards w^ith-
drew this notice, and informed the plaintiff verbally that
a new notice would be given, but omitted to give it. The
quantity marked on the company's map, which was duly
filed, was only 2.25 acres. The defendants', contractors'
under the company, having entered upon this portion, and
constructed it : Seld, that the plaintiff was entitled to
recover damages for the loss of occupation of such portion.
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XIX.] MASON V. SOUTH NORFOLK R W. CO. 139
ftod for the inconvenience occasioned to him in the use of Judgment
his farm by its being thus intersected, up to the commence- r^bcT?.
ment of this action."
If the defendant company desire to avoid the bringing
of fresh actions, it may act on the suggestion of Lord
Macnaghten in West v. Corporation ofParkdale, and '* put
the matter in train for the assessment of compensation."
It thus appears that the plaintiff has a cause of action,
but that the damages have been assessed on a wrong prin-
ciple.
For the disturbance of his possession he may recover
substantial damages if he can prove them, and as even if
he is entitled to recover in respect to the whole estate the
damages for injury to what may be called the reversion, i.e.,
the estate remaining after carving out the tenancy under
which he occupies the land, such damages should be merely
nominal. We need not, I think, formally determine whether
or not he has such right. At present I incline to the
opinion that the vendor has the right to recover for the
injury sustained by the lessening of his interest ; but I am
not clear about it, and so say nothing further.
As the case must go down again for a new assessment
of damages, I think the plaintiff may add his vendor as a
party plaintiff, especially as he should only have assessed
to him at present nominal damages.
I have been favored with the manuscript judgment of
the Coui-t of Appeal in West v. Gwyoration ofParkdale, on
an appeal from the Chancery Division, as to the mode of
determining the damages to which the claimants there were
entitled. I think that while here the road-bed is a permanent
obstruction entitling the reversioner to bring an action for
injury'- which he might sustain, it is not permanent in the
sense that it may not be removed by physical labor.
I understand that the case is to be reported. The prin-
ciples I have above referred to, as well as the measure of
compensation, are there discussed.
The result is, that in my opinion we cannot give effect
to the motion to dismiss the action, as the plaintiff is en-
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14'0 THE ONTARIO REPORTS. [VOL.
Judgmeni. titled to maintaiD it ; but as the damages have been assessed
Rose, J. o^ * wrong principle, there must be a new trial
The defendant's motion not prevailing, it should have
no costs, and Uie plaintiff having a verdict which cannot
stand, is not entitled to costs. There should, therefore, be
no costs to either party of the trial or motion before the
Divisional Court.
Qalt, C. J., and MacMahon, J., concurred.
Digitized by VjOOQIC
xix.] freeman v. freeman. 242
[common pleas division.]
Freeman v. Freeman.
WUl — ValidUy of — IngtrudticM for — Mental and physical capacity oj
te^iatar — Donatio mortis causa — Sufficiency of.
The testator when nearly eighty years of age executed a will devising the
whole of his estate to a son and daughter by his first marriage to the
exclusion of his wife and other children of the second marriage. At the
time of its execution he was on his death-bed, staying with his daughter
in the United States, having shortly before left his farm in Ontario
without any notice to his wife and other children. For some time be-
fore he had been afflicted with a complication of diseases rendering him
incapable of managing his farm, and which resulted in his death shortly
after the execution of the will in question. A will was prepared by an
attorney practising in the place the testator was staying, leaving every-
thing to tbe daughter, solely on the instructions of her husband. On
this being read over to the testator, who was lying in bed and unable to
rise, 8u£fering great physical and mental prostration, he remarked that it
was not right, that he wanted the son's name in it too. The will in
question was then prepared, and after being read over to him, without
explanation as to the effect of the language used, was executed by him,
with assistance, with great difficulty. The attorney and medical man
in attendance were of opinion that he had sufficient mental capacity to
make a will. The same attorney had sometime before induced him to
refrain from making a similar will. Shortly before the execution of the
will he had handed to his daughter a bank deposit receipt which she
had transferred to her name, and partly used, he stating that he wanted
her to take care of him, and that he was going to have a will drawn.
From the evidence it appeared that the testator, as well as his daughter,
were under the impression that the will had reference to the deposit
receipt only : —
Hdd, (varying the judgment of the trial Judge) that the will was invalid,
its execution under tne circumstances of the testator's condition, and the
absence of any explanation to him of the effect of his.testamentary act,
being a fraud on the part of those concerned in procuring its execution : —
Held, also, that the gilt of the deposit receipt was a valid donatio mortis
causa.
This was an action tried before Falconbridge, J., statement,
without a jury, at Chatham and finished at St. Thomas, at
the Autumn Assizes of 1888.
The action was instituted by the widow and a number
of children of the late Bryant Freeman, of the township of
Haleigh, in the county of Kent, farmer, against the
defendants, who were two of the children of the said Bryant
Freeman by his first wife, to have the will of the said
Bryant Freeman in favour of the defendant, declared invalid
and void, upon the following grounds :
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142 THE ONTARIO REPOBTS. [VOL.
Statement. 1. Because, if executed by said Bryant Freeman, that
the witnesses did not subscribe their names in the manner
and form required by the Wills Act of Ontario.
2. That the said alleged will was obtained by undue
influence, and while the said Bryant Freeman was in-
capable of making a will.
The will in dispute was as follows :
" Ann Arbor, Michigan, December 14, 1S86.
*' Know aU men by these presents, that I, Bryant Freeman, of Ann
Arbor, State of Michigan, being in iU health, but of sound and disposing
mind and memory, do make and publish this my hist will and testament,
hereby revoking aU former wills by me at any time heretofore made.
** First. I hereby constitute and appoint my daughter, Harriet Wright,
to be my sole executor of this my last will, directing my said executor to
pay aU my just debts and funeral expenses.
" Second. After the payment of my said debts and funeral expenses, I
give and bequeath to my daughter, Harriet Wright, and my son, Noah
Freeman, equally, share and share alike, all my property of every name
and kind, both real and personaL
'* In testimony whereof I hereby and hereto set my hand and seal, and
publish and declare this to be my last wiU and testament in presence of
the witnesses named below, on this 14th day of December, 1S86.
(Signed, ) * * Brtamt J. Frssmak (L. S.)
*' Signed, sealed, published, and declared by the said Bryant Freeman
as and for his last will and testament in presence of us, who, in his
presence and in the presence of each other, and at his request^ have
subscribed our names as witnesses hereto.
(Signed,) " Albx. W. Hamilton,
" Jkromb Johnson."
The learned trial Judge, after taking time to consider,
on the 21st of February, 1889, delivered the following
judgment :
Falconbridge, J. :—
This was an action by the widow and younger surviving
children of Bryant J. Freeman, late of the township of
Raleigh, against the two adult children of Bryant Freeman
(by a foi-mer marriage), to set aside an alleged will of
Bryant Freeman, and an alleged gift to defendant, Hannah
Wright, of a bank receipt of $500.
The trial of the case occupied two days in Chatham and
one at St. Thoma& I had, at the close of the argument,
formed a strong opinion in favour of the plaintiffs, which
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XIZ.j FREEMAN V. FREEMAN. 143
opinion has been confirmed by a reference to the cases J^^fflMPt
cited, and to other authorities in point. FalconbridiBe,
There being no official stenographer attached to the j.
Queen's Bench Division, or otherwise at my dispoeal, for
the porpose of giving judgments, I find myself obliged,
having regard to numerous other claims upon my time, to
forego any analysis of the evidence, and to content myself
with stating my conclusions.
The facts appearing in evidence will amply justify my
findings ; but I may state, for the information of any Court
which may be called on to review this judgment, that I
find the witness, Jerome Johnson, not to be a credible
witness, but on the contrary utterly unworthy of belief.
The value of the evidence of the other witnesses who
attempted to prove the due execution of a will, can be
tested by the light of surrounding circumstances and the
other common and ordinary standards of veracity; and as
to their demeanour I offer no observation.
I find that the paper propounded by the defendants
ought not to be allowed to stand as the will of Bryant
Freeman.
*' I cannot come to the conclusion that the deceased had
the power of summoning, and did successfully summon, his
faculties to the consideration of the nature of his property,
the various persons who were the fit objects of his regard,
And their respective claims upon his bounty :" Wilson v.
Wilson, 22 Gr. 87.
The execution of the said paper was obtained by undue
influence.
And I declare that the said Bryant Freeman died
intestate ; and I order the defendants to account for the
^500 which the defendants have appropriated to their own
use. After payment of the sum of $500, the plaintiffs,
{other than the widow) and the defendants, are each
entitled to an undivided interest in the lands and goods of
the said Bryant Freeman, subject to the interest of the
widow as doweress and to a mortgage.
The costs of this action to be paid out of interests or
shares of the defendants in the said lands and goods, or
otherwise by the defendants.
There will be reference to the Master at Chatham.
The defendants gave notice of appeal, and amongst other
grounds, set up that, as to the sum of $500 in the plead-
ings mentioned, the defendant, Harriet Wright, is lawfully
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144 THE ONTARIO REPORTS. [VOL.
•
Ai^gameni entitled to retain the same under the circumstances
disclosed in the evidence, and cannot be called upon to
account in this action for the disposition of any part
thereof.
The cause having been transferred to this Division,
during Easter Sittings, ISS9, Moss, Q. C, and White sup-
ported the motion when
WUson, (of Chatham) shewed cause.
The arguments and cases cited sufficiently appear from
the judgment.
September 7, 1889. MacMahon, J. : —
The facts are somewhat peculiar. Bryant Freeman
became the grantee from the Crown, in 1865, of eighty-five
acres of land, in the township of Raleigh, in the county
of Kent, which, at the time of his death, on the 27th of
January, 1887, was valued at from $3,000 to $.i,500, and
was free from incumbrance up to the 27th day of September,
1886, on which day he went to the town of Chatham,
and raised the sum of 8705 on a mortgage thereon from
James Dillon, repayable in three years, with interest
thereon at the rate of 24 per cent, per annum, and having
received the money left Canada for the United States,
without informing his wife or the children, then living
with him, of his intention. They were left in possession
of the farm.
At the time of his death, Bryant Freeman was sup-
posed to be about 78 years old, and for two or three years *
prior to his decease complained of excessive pains in his
head, resulting, as he thought, from the efiects of a sun-
stroke received in the Southern States nearly forty years
before. He was also afflicted with a tumor in his throat,
causing threat distress; and, as a consequence of these com-
plicated troubles, he had been unable to take any interest
in or manage his farm, and had been advised by his atten-
dant physician to consult Dr. Maclean, of Ann Arbor, with
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ZIX.] FBEEMAN V. FREEB£AN. 145
the view to an operation for the removal of the tumor Judgment
from his throat. He reached Ann Arbor about the Ist MftcMahon^
day of October, 1886, and went to the house of his ^•
daughter, the defendant, Harriet Wright, who had left her
home in Raleigh some eight years before, and had been
married to Henry Wright three or four years prior to his
death, which occurred shortly before this action was com-
menced.
After reaching his daughter's house, Bryant Freeman
consulted a Dr. Darling, who visited him for four or five
weeks ; and from the 9th of November until the 22nd of
December Dr. Tyler was his attendant physician, and
visited him on the 14th of December, and was in Wright's
house on that day when Mr. Hamilton, an attorney, called
to draw Freeman's will.
In October, 1886, the defendant, Noah Freeman, who
resided in Indianapolis, in the State of Indiana (who left
his father's home about fourteen years before this), came
to Ann Arbor, and Noah went with his father to Mr.
Hamilton's office for the purpose of having the latter's will
drawn.
What took place at the interview between the parties,
is thus stated by Hamilton in his evidence :
"Q. How long have yea been practising law ? A. Since 1872.
Q. Do yoa remember Bryant Freeman ? A. Yes, sir.
<^ When did yon first see him ? A. I think I saw him first in Octo-
ber, 1886.
Q. Where was lie? A. He came to my office.
Q. For what purpose ? A. He came with Noah Freeman. He asked
Bte to draw his will at that time.
Q. Was there any discnssion between you and him about the will at
that time ? A. Tes, sir.
Q. What did he say with regard to it ? A« He stated the provisions of
the will, and I advised him not to draw it at that time.
Q. What were the provisions; were they taken down in writing?
A. No; simply an oral conversation. The provisions, as he stated
them, that he desired to give his property to Noah and to Mrs. Wright.
I learned frcmi him that he had other children and a wife living, and I
advised him not to draw his will in that way at that time. He then
skated to me that he had trouble at home with his family. We had some
conversation in reference to that, and he left the office.
19 — VOL. XIX. O.R.
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146 THE ONTARIO REPORTS. [VOU
Judgment Q. Then you asked him to consider whether he would msk6 the will in
J ' His Lokdsutp. — Mr. Hamilton says he advised him not to have it done
that way."
Bryant Freeman and his son Noah went to the office of
Mr. Hamilton again on the 8th of November, when Bryant
Freeman executed a deed of thirty-five acres of the farm
in favor of Noah, the consideration mentioned in the deed
being $705. The conveyance was expressed to be subject
to a mortgage for S705, which the party of the second part
(Noah) agreed to assume and pay off*.
It may be that the design was to sell the thirty-five
acres mentioned in the deed, and pay off Dillon's mortgage
with the money realized from the sale. It is at all events,
I think, apparent from the evidence that, although the
conveyance to Noah was in form absolute, it was not
intended for his benefit, and that he was merely acting
as agent for the father in endeavouring to sell the thirty-
five acres. No monej'^ passed from Noah to his father at
the time the deed was executed.
Noah came to Raleigh, and tried to induce his step-
mother, who was mentioned in the conveyance as one of
the grantors, to execute the same, but, as she refused to do
so, no sale was effected.
Hamilton is a witness to the deed.
After Freeman reached Ann Arbor he deposited $500 of
the money received from Dillon in a bank there, obtaining
a deposit receipt therefor, and this he had in a trunk in
Mrs. Wright's house, from which he requested her, on the
13th of December, to fetch it to him, and, according to her
evidence, after he had extracted the receipt from a roll of
papers, he delivered it to her, stating he wanted her to
take care of him, and told her he was going to have his
will made.
Mr. Hamilton was asked if, at the time the conveyance
of thirty-five acres to Noah was executed, Bryant Free-
man mentioned anything about the will he desired to have
drawn when he was at Hamilton's office in October, to
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:XIX.J FREEMAN V. FREEMAN. I4t7
-which Hamilton replied, that he did not think the matter Judgment,
was discussed at that time. MaoMaIioii.
He then gives the following account of his being sent ^•
for to go to Wright's house to draw Freeman's will, and of
what took place after seeing Freeman :
"Q. When did you next see him with regard to his will ? A. I saw him
in December ; Mr. Wright, Mrs. Wright's husband, came for me to the
•office and asked me to go to his place, — to Mr. Wright's, in the city of
Ann Arbor— and draw Mr. Freeman's will ; he stated at that time that he
was very ill.
Q. In consequence of that did you go to Mr. Wright's house ? A. Yes ;
and he also stated to me at that time, as I understood him, he wanted
the will drawn in favour of Mrs. Wright.
Q. Who stated that ? A. Mr. Wright, from his conversation at that
^ime.
Q. Did you go to the house ? A. I did, sir.
Q. Did you find Mr. Freeman there ? A. I did.
Q. Did you have any conversation with him? A. I stepped to the
-door after going in, and I said, 'Mr. Freeman, yon want I should draw your
will, do you' ? and he nodded his head that way. I sat down in another
room, and prepared a will aa Mr. Wright had stated to me, took it into
the room, my man who works for me had driven me down, and going into
the office — Dr. Tyler was there at the time I first came, but left while I
was preparing the will — I then asked Mr. Johnston to step into the room
with me, and asked Mr. Freeman if he was ready to hear the will, and
he said he was. (Mr. Johnson is my man). I read the will over to him,
jmd he said that is not right, I want Noah's name in the will, too. I said»
then, * do you want anybody else's name in ' ? and he says, * Noah's and
Harriet's ; ' I think he called her Harriet. I said, ' to them and to them
only ' ? and he said, *yes.' I went back and prepared another will in the
adjoining room, and then took it into him, called Mr. Johnston into the
room again, and read .that will over to him, and asked him if that was as
he wanted it ? He says, yes. He was lying in bed at that time. I said,
^on wiU have to get up to sign this will, you cannot sign it lying down,
and I called Mr. Wright into the room to raise him up. I stood by him,
iuid as Mr. Wright came in he stepped back of him and raised him partly
up. I assisted him partiaUy to a sitting posture, and then I placed the
will before him. He took the pen and commenced to write, and I saw
that he was writing with very great difficulty, and I said to him, do you
want that I should assist you ? and he said, yes, or I understood him to
Mky yes, he bowed his head in that way, and I took the top of the pen, at
ihe same time steadying his hand, and the signature was written in that
way.
Q. Who were the witnesses ? A. I was one of the subscribing witnesses
juid my man, Mr. Johnston, was the other.
Q. Is that the document that you prepared, and that he so executed?
A. Yes, sir.
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148 THE ONTAKIO REPORTS. [V0L»
Jadgment. Q. The sigiiAtare is the eigDatnre of Freeman made as you describe t
A. Yes, sir.
MacMahon, Q. And these are the signatures of yourself and Mr. Johnston? A.
Yes, sir ; this is my signature and this is Mr. Johnston's.
On that day Mr. Hamilton considered Freeman had
mental capacity sufficient to dispose of his property by
will ; and Dr. Tyler who saw him that morning, said that
his mind was clear ; that he answered promptly, and con-
versed freely ; and that he considered him qualified to do
anything required with his property.
But on that same day, and after the execution of the
will, Mrs. Wright wrote to her sister Josephine at Raleigh,,
and without mentioning anything about the will, asked
her to write, " and let father hear from you all before he
dies ; I don't think you will ever see him again. We are
looking for him to die every hour, the doctor says he can-
not live, so please write."
The reason assigned by her for writing in this strain
was, she says, to induce the family* to write.
James Stewart, who was in attendance on Bryant Free-
man during the latter part of December, 1886, and the
early portion of January, 1887, said that Freeman had
*' fainting spells" lasting from an hour to an hour and a
half, showing that he was extremely weak physically.
From the account furnished by Hamilton, it is clear that
Freeman gave no instructions as to how his will was to be
drawn, and the subjects of the intended testamentary dis-
position were not even referred to. In fact, when Hamil-
ton immediately on entering Wright's house, said : " Mr.
Freeman you want I should draw your will, do you T^
Freeman did not make a verbal reply, but merely
nodded his head, and on the strength of this Hamilton
prepared a will, as he states just as Wright had directed
him, by which the whole of Freeman's property real and
personal was left to Wright's wife.
That will, so far as the suVgects of the intended testa-
mentary disposition, and the object of the testator's bounty,
as expressed therein are concerned, was a will drawn upon
Digitized byVjOOQlC
3IX.] FREEMAN V. FREEMAN. I4t>
the instructions or supposed instructions of Wright, and JudgmeDt
not upon any communication made by Freeman to Hamil- MacMahon,
ton as to his wishes or desires in the matter. So that '^•
unless the statement made by Freeman upoa hearing that
will read, that it was not right, and that he wanted his
son Noah's name included as a beneficiary, can be con-
sidered as furnishing instructions for the preparation of a
will, whereby all his estate real and personal was to be
devised to Mrs. Wright and his son Noah, to the exclusion
of the rest of his children, then no instructions were
given, because not a syllable beyond what I have stated
was, according to the evidence, uttered by the testator, to
indicate what portion of his estate he intended to dispose
of by his will.
When the deposit recei[^t was at Freeman's request taken
from the trunk, it was then he spoke of having a will
drawn, and Mrs. Wright supposed that it was in relation
to the deposit receipt he desired a will drawn, and she
stated in her evidence at the trial, and also to several
of her relatives after her father's death, that neither
herself nor her husband supposed that the real estate in
Canada was included in the will. Nor were they aware
that it was so included, until after Freeman's death , when
they were informed, that such was the case, by Hamilton.
This is the more singular because Mrs. Wright was pres-
ent at the reading of the will, and appears from her
evidence to be a woman of fair intelligence, and with a
far greater capacity for understanding what was contained
in a document in which she had an interest, than an aged
man like her father, who, according to Hamilton's state-
ment, he believed to be in his last sickness.
Mrs. Wright, at the request of her father, wrote to James
Stewart, at Ypsilanti, to come and stay with him, and on
coming to Ann Arbor remained in attendance upon
Freeman for twelve and one-half days, for which he was
paid 918.50. He states that Freeman told him that
Wright had induced him to make a will as to the money
in the Ann Arbor bank, i. e,, the $500 deposit receipt, but
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150 THE ONTARIO REPORTS. [VOL,
JudgmeDt. that he had not made a will as to the farm. He also
MacMahon, stated that Mrs. Wright told him that her father had made
^' no will as to the farm, but only as to the money in the
bank.
It is not in evidence whether Freeman made the state-
ment to Stewart as to the contents of his will in presence-
of Mrs. Wright ; but from the statement made to Stewart
it is beyond question that he was aware that he had
executed a will, but that he did not by such will intend to-
deal with or dispose of any portion of his estate beyond
the 9500 he then had in Ann Arbor. This is also Mrs.
Wright's statement as to her own and her husbands' belief
at and after the execution of the will.
The deposit receipt was in Mrs. Wright's possession, and
we must assume it was given to .her by her father, as she
states that he told her to keep it, and afler paj'ment of his
debts and funeral expenses the balance was to be divided
between herself and Noah, and that the receipt was
changed to her name in the bank, and the amount
deposited to her credit, upon which fund she drew for
payment of the household expenses, and I suppose the
physician's bills for attendance on her father; the payment
of Stewart's account, &c.
In order to have the deposit transferred from Bryant
Freeman to Mrs. Wright, it would be necessary for Free*
man to endorse the receipt to her. Even without endorsa-
tion, the delivery of the receipt to her for her own use,
would constitute at least a good donatio mortis catbsa in
favor of Harriet Wright : Veal v. Veal, 27 Beav. 303 ;.
Austen v. Mead, 15 Ch. D. 657 ; Clement v. Cheeseman, 27
Ch. D. 631.
From the judgment of my learned brother Falcon-
BRIDGE, I assume that this point was not urged before
him.
Mr. Moss urged that as the testator was shewn by the
evidence to be possessed of testamentary capacity, and the
will being read over to him at the time of its execution,
that he knew what was contained therein; and in the
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XIX.] FREEMAN Y. FREEMAN. 151
langaage of Sir J. P. Wilde, in Ouardhouse v. Blackburn, 1 Judgment
P. & D. 109, at p. 116,that '* should * * be held conclusive MauMahon,
evidence that he approved as well as knew of the con- •^•
tents thereof." AUer v. Atkinson, L. R. 1 P. & D. C65;
Ooodcuyre v. Smith, ib., 359 ; Thompson v. Torrance, 28
Gr. 253, S. C, 9 A. R. 1, were also referred to by counsel
The rules laid down by Lord Penzance, in his charge to
the jury in Atter v. Atkinson, and the rules laid down by
Sir J. P. Wilde, in Guardhouse v. BUickbu'i'n, must now be
read subject to the modifications expressed by the House of
Lords, in Fulton v. Andrew, L R 7 H. L. 448.
In FvUon v. Andrew, the testator, Hugh Harrison, after
giving numerous specific legacies and individual bequests,
and devising his freehold estates, made the following resi-
duary devise : ** All the residue of my real and personal
estate, I devise and bequeath equally to the said Charles
Batty Andrew and Thomas Wilson, whom I appoint to be
executors of this my last and only will."
The will was contested, and it was ordered by the Court
of Probate that the case should be tried at the Assizes, and
was so tried on six issues. The first four required a
determination of the fact whether the testator was of
sound mind and understanding capable of making a will :
the fifth, whether he knew of the contents of the will ; and
the sixth, whether he knew and approved of the residuary
clause. The jury found for the propounders of the will on
the first five issues, and for the opponents on the sixth.
Notwithstanding the finding of thei jury as to the sixth
issue, the Judge of Probate made a rule absolute to enter
the verdict for the propounders of the will, and granted
probate, of the whole will, including the residuary clause-
It was from the decision of the learned Probate Judge
granting probate, so as to include the residuary clause of
the will, that the appeal was taken to the House of Lords.
In that case the instructions for the will were given on
the 9th of June, 1870; and it was alleged by Andrew and
Wilson, the residuary devisees, that the will was read
over to and left with the testator until the morning of the
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152 THE ONTARIO BEPORTS. [VOL.
Judgment, nth of Jane, on which day it was executed. The testator
MacMahon, died in July, 1870.
^' Lord Chancellor Cairns, in his judgment, at p. 460, after
refen-ing to the strong argument urged at Bar, that there
was a species of non-direction, which amounted to
misdirection, on the part of Mr. Justice Mellor, before
whom the issues were tried at the Assizes, because " that
learned Judge had not laid down before the jury that
absolute and fixed rule of law with regard to the judging
of the validity of a will" which, it was contended, he should
have done on the authority of Ouardhoiise v. BUich-
bum, L. R. 1 P. & D. 665; and Alter v. Atkinson^ L.
R. 1 P. & D. 109 ; the Lord Chancellor proceeds : " Now
my Lords, the rule of law which is said not to have been
suffiQiently considered is this: It is said that it has
been established by certain cases to which I will presently
refer, that in judging of the validity of a will, or of part
of a will, if 3^ou find the testator was of sound mind,
memory, and understanding, and if you find, farther, that
the will was read over to him, or read over by him, there
is an end of the case ; that you must at once assume that
he was aware of the contents of the will, and that there is
a positive and unyielding rule of law that no evidence
against that presumption can be received. My Lords, I
should in this case, as indeed in all other cases, greatly
deprecate the introduction or creation of fixed and un-
yielding rules of law which are not imposed by Act of
Parliament I think it would be greatly to be deprecated
that any positive rule as to dealing with a question of fact
should be laid down, and laid down now for the first time,
unless the Legislature has, in the shape of an Act of
Parliament, distinctly imposed that rule."
After referring to the cases of Barry v. BuUin, 1 Moo.
P. C. 480, and BaJcer v. Bait, 2 Moo. P. C. 317, Lord Cairns
proceeds to consider the charge of Lord Penzance to the
jury in Atter v. Atkinson, L. R. 1 P. & D., at p. 670, and
says : " I do not know that there is anything in that direc-
tion, taken as a whole, to which I could venture to make
Digitized byVjOOQlC
JUX.] FBEEMAN V. FBEEMAN. 153
any objection ; but you will observe the very important Judgment,
qualification— I say, * taken as a whole/ In the first place MacSahou,
the jury must be satisfied that the will was read over, and J-
in the second place must also be satisfied that there was no
fraud in the case. * * It appears that these witnesses
atated either that the will was read over to the testator, or
that it had been left with him over night for the purpose
of being read over. The jury may, or may not, have be-
lieved that statement, or may have thought, even if there
had been some reading of the will, that that reading had
not taken place in such a way as to convey to the mind of
the testator a due appreciation of the contents and efiects
of the residuary clause."
The House of Lords reversed the order of the Court of
Probate, giving out probate of the whole will, and gave a
direction to that Court an to issuing qualified probate of
the will.
Fulton V. Andrew, was not referred to in Thompson v.
TorraTitfe, 9 A. R 1, in which latter case, the testator, Rev.
Dr. Barrie, a man of education and a minister of the
Presbyterian Church, having become weakened by illness,
executed a will a day or two before his death, the instruc-
tions for which were entirely obtained by the person pre-
paring it by putting questions to the testator. The will
when drawn was read over to the testator clause by clause,
who expressed his assent to some of the bequests, while as
to the others, he made intelligent remarks, and some
changes in the provisions thereof. A suit was brought
impeaching the will, on the ground of fraudulent practices
and undue influence of persons benefited thereby, which was
dismiased with costs. On appeal to the Court of Appeal,
the Court being equally divided, the decree stood. But
Burton and Patterson, JJ. A., were in favour of the ap-
peal being allowed, being of opinion that the evidence
shewed a want of spontaneity or volition on the part of
the testator, necessary to the making of a valid will.
In the case we are considering, no instructions whatso-
ever were given by the testator as to what his will . should
20— VOL. XIX. O.R.
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164 THE ONTARIO REPORTS. [VOL,
Jadgment. contain. The instructions came from the husband of the
MjwMahon P®TRon who under the terms of the first will would have
J- become possessed of the whole of the testator's estate, and
who under the second will was one of the principal bene-
ficiaries. The mere reading of the will would not convey
to a man in the then physical and mental condition of the
testator, and with his limited education, what was included
in the comprehensive words, "all my property of every
name and kind, both real and personal ;" and there was not
a word of explana.tion furnished by the person who
prepared the will as to what the language meant, even had
Freeman been in a condition to comprehend the explana-
tion. When Freeman was unable to write his signature
to the will, Hamilton asked if he would help him to write
it, to which question, from inability to articulate, or from
some other cause. Freeman did not reply, but only nodded
his head, and being held up in the bed Hamilton assisted
him to make the signature appended to the will.
In the summing up of Sir James Hannen, in the case of
Burdett v. Thompson, reported in a note to Boughton v.
Knight, L. R. 3 P. & D. 64, at p. 73, he says in reference to
the degree of soundness required to make a will : " From
the character of the act it requires the consideration of a
larger variety of circumstances than is required in other
acts, for it involves reflection upon the claims of the
several persons who by nature, or through other circum-
stances, may be supposed to have claims on the testator's
bounty, and the power of considering these several claims,
and of determining in what proportion the property
shall be- divided amongst the claimants ; and, therefore,,
whatever degrees there may be of soundness of mind the
highest degree must be required for making a will."
There was neither consideration nor reflection on the
part of Freeman, and his mind appears at that time to
have been in such a torpid state as to have been incapable
of either consideration or reflection.
I do not agree with the learned trial Judge in his view,
that the will should be set aside because of undue influence*
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XIX.] FREEMAN Y. FREEMAN. 155
The undue influence which will set aside a will " must Judgment.
amount to force and coercion, destroying free agency ; it MacMahon,
must not be the influence of aflection or attachment ; it ^'
must not be the mere desire of gratifying the wishes of
another, for that would be a very strong ground in
support of a testamentary a<3t ; further, there must be
proof that the act was obtained by this coercion ; by im-
portunity which could not be resisted ; that it was done
merely for the sake of peace, so that the motive was tan-
tamount to force and fear : " Williams on Executors, 8th
ed., pt. 1, Bk. 2, ch. 1, p. 48, sec. 2, cited by Lord Pen-
zance in his judgment in ParUtt v. Lawless, L. R 2 P. & D.
462, at p. 470.
There was no evidence of force or coercion on the part of
Mrs. Wright or her husband to induce Freeman to make
the will in question.
What was done by drawing Jbhe will of a person in the
physical and mental condition in which Freeman then was,
without a word of instruction from the testator, contain-
ing a devise of the whole of the testator's estate, without
bringing home to his mind (were he capable of being made
to understand) the efiect of his testamentary act, amounted
to a greater or less degree of fraud on the part of the
person who prepared the will, and of those who were
present and taking benefits under the will the testator was
asked to execute : See Lord Caims's judgment in Fulton v.
Andrew, L. R. 7 H. L. at p. 463.
The judgment pronounced by the learned trial Judge,
will be varied by ordering that the defendant Harriet
Wright is entitled to the amount of the deposit receipt as
a good doTUitio Tnortia causa. Otherwise the judgment is
confirmed, and the defendant's motion dismissed with
costs.
Galt, C. J., concurred.
Rose, J., was not present at the argument and took no
part in the judgment.
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156 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION.]
Canada Permanent Building Society v. Teeter et al.
Mortgage — Power of «a/e without notice — Action to recover land without
leave required by «ec. SO, B. 8. O. ch, 102,
A power of sale in a mortgBge authorized a sale without any notice. De-
fault having been made in payment of the mortgage moneys notice of
sale was given exercisable forthwith. Shortly afterwards an action was
brought by the mortgagees for the possession of the mortgaged premises
without the leave of a judse, as required by sec 30, of R. S. O. ch. 102,
having been first qbtamed
Heldj that the Act did not apply^ there being no proviso for notice in the
mortgage.
Statement. This wrs an action brought by the plaintiffs, the Can-
ada Permanent Loan and Savings Company, against Henry
Teeter and Michael Demain to recover possession of the
north part of lot 23 in the 8th concession of the township
of Clinton in the County of Lincoln, for default in pay-
ment of two mortgages executed by the defendant Henry
Teeter. The other defendant Michael Demain was his
tenant.
The action was tried before Falconbridqe, J., at St
Catharines, at the Autumn Assizes of 1889.
Notice had been given for a jury, but the learned Judge
dispensed with it and tried the case without a jury.
The defendants set up that at the time of the com-
mencement of the action the plaintiffs had given a notice
to the said Henry Teeter pursuant to a proviso alleged to
be contained in the said mortgages requiring payment of
the money secured by such mortgages and declaring an
intention to proceed under and exercise the power of sale
alleged to be be contained in such mortgages, and the time
at or after which according to which demand the power of
sale was to be exercised or proceeded under had not
elapsed, and the plaintiffs commenced this action without
having first obtained an order permitting the same from a
Judge of the County Court or from a Judge ot the High
Court.
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XIX.] CANADA PERMANENT BUILDING SOCIETY V. TEETER. 157
The mortgage upon which this action was brought con- Stotement.
tained the following power of sale : —
"Provided that the company on default of payment for
two months may without any notice enter upon and lease
or sell the said lands for cash or credit."
Notice of sale had been served on the mortgagor in May,
1889^ and required payment of the moneys secured by the
mortgages to be made forthwith, and tbe action was not
commenced until a reasonable time after service of the
notice.
The writ was issued on the 11th day of June without
an order from a Judge of the County Court or from a
Judge of the High Court.
The learned Judge was of opinion that as the time at
which the demand for the payment of the money was
made was " forthwith," and as the proceedings were not in
fact taken until a reasonable time after that he did not
think he could give effect to the objection founded on the
K. S.O. ch. 102 section 30 (1887); and he found for the
plaintiffs.
The defendants moved on notice to set aside the judg-
ment entered at the trial in favour of the plaintiffs, and
to enter judgment for the defendants.
In Michaelmas Sittings, November 21st, 1889, Lancaster
supported the motion. The action should not have been
commenced without having obtained an order from a
Judge of the County Court, or from a Judge of the High
Court, in pursuance of section 2 of the Ontario Mortgage
Act, 47 Via ch. 16 (0.), sec. 30 of R. S. 0. ch. 102. The
learned Judge at the trial had no power to dispense with
the jury.
C. Bobinaon, Q. C. and E. E. A.Du Vemet contra. The
mortgage in the present case stipulates that no notice need
be given. The contract of the p^irties will not be interfered
with: Grand Trunk R. W. Co. v. Vogel, 11 S. C. R. 612, 631;
Clark V. Harvey, 16 O. R. 169 ; iJfi Oilchrist and Island,
11 O. R. 537. The Mortgage Act does not say that notice
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158 THE ONTARIO REPORTS. [VOU
Argument must be given, it only says, "that where pursuant to any
condition or proviso contained in the mortgage there has
been made or given a demand or notice." Here there was
no proviso io the mortgage for notice, and the Act does not
apply. It has been held that a power of sale is good
without notice: Re Bntiah Canadian Loan and Investment
Co. and Ray, 16 O. R 15. The objection as to dispensing
with the jury is disposed of by the case of Marks v. Cor-
poration of Windsor, 17 0. R 719. Section 80 of R S. O.
ch. 44 (1887) now expressly authorizes the Judge to dis-
pense with the jury.
December 21, 1889. Galt, C. J. :—
[The learned Cliief Justice, after discussing some objec-
tions argued, but which are not now material, proceeded:]
The fourth statement is really the only one to be con-
sidered, as it involves the construction of an important
clause in the '^ Act respecting Mortgages of Real Estate,"
I will set it out :
" The defendants say further that at the time of the
commencement of this action the plaintiffs had given a
notice to the said Henry Teeter (the mortgagor) pursuant
to a proviso alleged to be contained in the mortgages men-
tioned in the first paragraph of the statement of claim,
requiring payment of the money secured by such mort-
gages, and declaring an intention to proceed under and
exercise the power of sale alleged to be contained in such
mortgages, and the time at, or after which, according to
such demand, the power of sale was to be exercised or
proceeded under, had not elapsed, and the plaintiff com-
menced this action without having first obtained an order
permitting the same from the Judge of a County Court,
or from a Judge of the High Court."
The Act upon which this statement of defence is based,
was passed after the execution of these mortgages; but as
there is no clause limiting its application to mortgages
subsequently executed, it is applicable to the present case
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XIX] CANADA PERMANENT BUILDING SOOIETT Y. TEETER. 159
if there is any condition or proviso contained in these Jndgment.
mortgages pursuant to which "any demand or notice reqair- Gait, C.J.
ing payment, or declaring an intention to proceed under
and exercise the power of sale has been made."
Upon referring to the mortgages, it will be found there
is no such proviso or condition ; but, on the contrary, it is
•expressly provided: "That the company on default of
payment for two months, may,, without any notice, enter
upon and lease and sell the said lands for cash or credit."
R S. O. (1877), ch. 104, contains a special provision (14)
to which the Act of 1884, 47 Vic. ch. 16 (0.), now in force,
would apply : " Provided that the said mortgagee on default
of payment for — months, may on — notice, enter on
and lease or sell the said lands." But it is also enacted
by the same statute, by sec. 3, " Any such mortgage or
part of such mortgage" (namely, mortgages expressed
to be made in pursuance of this Act), "which fails to take
-effect by virtue of this Act, shall nevertheless be as effec-
tual to bind the parties thereto, so far as the rules of law
and equity will permit, as if this Act had not been made ;"
and from the terms of these mortgages the said sec. 14
does not apply; and therefore the parties are bound by
their contract.
This defence therefore fails.
There was also an objection on the ground that the
learned Judge had dispensed with a jury after notice
therefor had been given by the defendants. By sec. 80 of
R S. O. ch. 44 (1887), the learned Judge at the trial is
-expressly authorized to do what was done in this case, and
we see no reason why we should interfere with his judg-
ment
Rose, J. : —
I quite agree. Judgment was reserved only to consider
the last ground, and, as to that, I concur in the opinion
expressed by the learned Chief Justice.
Mr. Robinson referred to Grand Trunk R, W. Co. v. Vogel,
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160 THE ONTARIO REPORTS. [VOL.
Judgment H S. C R. 612, at p. 631, as to the principle of construc-
RosE^ J, tion, where it is stated that " it is a universal principle of
statutory construction that every presumption must be
made against an intention to interfere with the freedom of
contract."
Reference was also made to Clark v. Hai^ey, 16 O. R.
159, and Mr. Robinson pointed out that in it no reference
is made to Bintiah Canadian Invs. Co. v. Ray, 16 O. R.
15, a decision of our learned brother Street, who sat with
us in Clark v. Harvey.
The objection as to dispensing with the juiy was clearly
not tenable : Marks v. Corporation of Windsor, 17 O. R
719.
MacMahon, J., concurred.
Motion dismissed with costs.
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XIX.] EE MCLEAN AND WALKER. 161
[CHANCERY DIVISION. 1
Re McLean and Walker.
Saie of land — Agreevient—When payment to be made — Title — Prior mart-
gage — Time to take posseMiOTi- -Interest,
In an agreement for the sale of land it was provided that the cash
payment should be made and the mortgage for the balance given "so
soon as the solicitors for the purchaser shall be satisfied with the title " :
Held, that the meaning of the contract was that payment was not to be
required, until snch title was shown as would justify the purchaser in
taking possession, and following WeUs v. Mcuctoell, 32 Beav. 552, that
no satisfaction being given as to a prior mortgage affecting the land
until two years after the agreement, the purchaser could not prudently
take possession until then, and interest on the purchase money should
only be allowed from that time.
This was an application under the Vendor and Pur- statement.
chaser Act, R. S. O. ch. 112.
An agreement in writing had been entered into on
October 10th, 1887, between A- G. McLean, as vendor, and
K C. Walker and R J. Hodge, as purchasers, for the sale
and purchase of certain land for the sum of $5,600, pay-
able as follows : " $1,200 so soon as the solicitor for the
purchasers shall be satisfied with the title, and the balance
of $4,400 by a mortgage to run for five years with interest
at six per centum per annum, payable half yearly, &;c."
The ordinary requisitions on title were satisfied soon
after the date of the agreement, but the holders of a
mortgage on the premises declined to discharge it until
some accounts between them and the vendor were settled
up, which was not done until October, 1889. It also
appeared that the agreement had been left in the hands of
a land agent, but had, without the knowledge or consent of
the vendor, been borrowed from him soon after it was signed,
on behalf of the purchasers, and registered. The lands were
vacant.
The petition came up for argument on April 2nd, 1890
before Boyd, C.
21 — VOL. XIX. O.R.
D.igitized byVjOOQlC
162 THE ONTARIO REPORTS. [VOL.
Argument. M088, Q.C., for the purchaser. The question in dispute
is as to the time from which the purchaser should pay
interest. The agreement was made in October, 1887. Tlie
purchasers' solicitor discovered a mortgage existing upon
the premises, which the holders refused to discharge until
October, 1889 ; the cause of the delay being some unsettled
accounts between the mortgagees and the vendor, with
which the purchaser had nothing to do, and as the agreement
provided for the payment of the cash instalment and the
giving of the mortgage for the balance " so soon as the
solicitor for the purchasers shall be satisfied with the title,"
the purchasers could not prudently take possession until
the mortgage was discharged, and so should not pay
interest until the mortgage was removed. I refer to The
Peoples* Loan, <tc., Co, v. Bacon, 27 Gr., 294 ; Fry on
Specific Performance of Contracts, 2nd ed., sees. 1372, 1373;
Boulton V. Bethune, 21 Gr. 110 and 478; Cameron v.
Carter, 9 O. R. 426 ; Binks v. Lord Rokeby, 2 Swanst., at
p. 226 ; Dart on Vendors and Purchasers, 6th ed., 711; In
re Bui^oughs, Lynn, and Sexton, 5 Ch. D., 601.
B. Cassels, for the vendor. Interest should be paid from
the date when the requisitions on title were answered or
at the very latest from the time the purchasers registered
the agreement. That act was evidence of satisfaction by
the purchasers' solicitor. The mortgage was not an objec-
tion to the title but was a mere matter of conveyancing.
When the objections to the title were made and answered
the title was satisfactory. The authorities cited on behalf
of the purchasers are not applicable to this case, as they
were decisions in cases were no time was fixed and nothing
was said about interest: both of those elements appear here.
No tender of any conveyance or of the mortgage was
made and no cash payment was made. I refer to Vickers
V. Hand, 26 Beav. 630: Lord v. Stephens, 1 Y. & C. (Ex.)
222.
M088, Q.C., in reply. The production and registration of
the discharge of the mortgage was required and was not
satisfied.
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XIX.] RE M*LEAN AND WALKER. 263
April 2; 1890. Boyd, C. :— Judgment.
Boyd, C.
The only time fixed for completion is when "the solici-
tor for the purchasers shall be satisfied with the title."
There is no evidence that he has ever expressed satisfaction,
though it is to be inferred that reasonable satisfaction was
made as to all questions of title in its strict sense upon the
.answers to the purchasers' requisitions. But there was
then a question raised as to a prior mortgage which affected
this land and no satisfaction w&s afforded as to that till
^bout October, 1889. The fair and reasonable meaning of
the contract appears to be that payment was not to be
required till such a title was shewn as would justify the
purchasers in taking possession.
I had occasion to consider the matter of interest in
Roe V. GeddeSy 3 Ch. Ch. 404, which is in point as to
the present case. One of the cases there referred to.
Wells V. Maxwell, 32 Beav. at p. 552, affords an apt cita-
tion: "The rule is, that interest is to be given from
the time when the purchaser could prudently take
possession, but I do not think a purchaser could pru-
dently take possession on the title being perfectly well
shewn, if it appeared that the property was mortgaged to
its full amount, and that there was no assurance that
the mortgagee would join the conveyance, and it was
not known whether the vendor could get him to join.
It is true that this is a matter of conveyance, but the
purchaser does not know that you can get the mortgagee's
consent to it."
The disagreement as to interest here arises from the
ambiguity of the contract, and while I construe it in favour
of the purchaser, I think it is not a case for costs. Inter-
est should run on all the price from October, 1889, at
which time possession might have been prudently taken
by the purchasers.
G. A. B.
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164 THE ONTARIO REPORTS. [VOL*
[CHANCERY DIVISION,]
SiBBALD V. Grand Trunk R. W. et al.
Tremayne v. Grand Trunk R. W. et al.
New trial — Action for nefjligencf — Death between verdict and judgment—
DamtiQeJi — Jurindiction — RaUwaya and railway companies — Levkl
crossing — Liability,
Where in an action for damages against a railway company, one of the
parties to whom damages were awarded, who was an infant, died after
verdict and l>efore judgment, and the verdict was now moved against,
on the ground of excessive damages : —
Heldf That the Court to prevent injustice had power to grant anew trial,
which was onder'^d unless the damages given to the deceased child were
reduced to a sum commensurate witn the expense caused to the mother's
estate by its illness and maintenance.
Semble, That where a railroad crosses a public highway at a level cross-
ing, and it is open to observation that the highway is in a dangerous
state, liability will rest upon the operating company for resulting acci-
dent, even although a different company was responsible for the
original faulty construction of the railway roadbed which led to the
unsafe condition of the highway.
Statement THESE were two aetioDs brought, one by Francis C.
Sibbald, and the other by Frank G. Tremayne and his
wife, the administrator and administratrix of Mrs.
Anderson, deceased, against the Grand Trunk Railway
Company and the Midland Railway Company, for damages
arising from alleged negligence on the part of the defend-
ants, under circumstances not necessary to report at length.
The second action was brought for the benefit of the two
children of Mrs. Anderson, who wa.s killed in one of the
accidents in question.
The defendants pleaded "not guilty by statute," the Grand
Trunk Railway Company referring to C. S. C. ch. 66, sec.
83 ; 51 Vic. ch. 27, sec. 287, (D.), and the Midland Railway
Company to 51 Vic. ch. 29, sec. 287, R. S. 0, 1887, ch. 170,
see 42, and 45 Vic. ch. 67, sec. 8 (O.).
The two actions came on for trial together before Street,
J., and a jury, at the Toronto Fall Assizes, 1889, and
verdicts were given and judgments entered for the plain-
tiffs.
■ Digitized byVjOOQlC
XIX.] SIBBALD V. GRAND TRUNK R. W. CO. 165
The present motion was made by the defendants to the Statement.
Divisional Court by way of appeal from the above verdicts
and judgments, and came on for argument on December
17th, 1889, before BoYD, C, and Robertson, J.
Osier, Q, C, and Neshitt, for the defendants.
Shepley and Bums, for the plaintiffs.
March 14th, 1890. Boyd, C. :—
Having read all the evidence, the Judge's charge, and
the findings of the jury, I am not able to distinguish this
case in substance from the ca^e of Rosenberger v. Gh*and
Trunk R. W. Co., 8 A. R. 482, and 9 S. C. R. 311. The
jury have found, not against the weight of evidence, that the
statutory obligations as to notes of warning to be given upon
•engines approaching road crossings were not complied with,
And that this omission was contributory to the accident.
It is easy to see how the evidence led them to conclude as
they did. The highway at the point where the accident
occurred was materially narrowed upon the construction
of the railway track, so as to leave it in a dangerous con-
dition for wheeled vehicles. The highway sloped south to
the railway crossing, and was narrowed to about sixteen
feet, with a ditch on either side, which made it impracti-
<^ble to handle horses so as to turn in the face of an
approaching engine. Upon this narrow piece of road the
plaintiff had driven before he was aware of the engine
Approaching towards him. The engine was then at a dis-
tance of some 200 or 300 yards,and was coming at the rate of
six or eight miles an hour, when first in sight of the travel-
lers; it was too late for the plaintiff, the doctor, to extricate
himself and his vehicle from this position of danger, and
taking the best precautions he could he had to abide. the
result of the passing engine. The jury evidently believed
and in effect find that, had the whistle been sounded or
the bell been rung at intervals as directed by the
statute, the defendant would have been warned not to come
/
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166 THE ONTARIO REPORTS. [VOL.
Judgment, down the slope of the hill, and so would have avoided
Boyd. C. being hampered by the narrowneas of the roadway. The
jury find that with the exception of the whistling, which
w&s done as the engine started, more than eighty rods
from the crossing, no other note of warning was sounded.
This whistling must have been some time before the
plaintiff reached the brow of the hill, and was either not
heard by him or conveyed no indication as to the move-
ment in his direction. According to the evidence, it was
impossible on account of over-hanging trees for him to see
the engine sooner than he did, which would be when it
was about the cattle guard, a distance of some 280 feet
from the crossing, and when he was half way down the
slope of the hill, and about 150 feet from this crossing.
The hazardous condition of the travelled road is obvious
to any passer by, and the engineer of the defendants
admits that he was acquainted with the place, though he
did not consider it specially dangerous more than other
level crossings. The jury have, therefore, thought it to be a
place where, for two-fold reasons, great precaution should
have been used, and they find that not even the warning
which the statute prescribes was given.
It does not appear to me needful to consider the liabil-
ity of this company for the unsafe condition of the high^
way arising from the original construction of the track and
road bed some ten years ago by the Simcoe Junction
Railway, as to which I find no express decision. My
impression is, that the dangerous state of the public road
being open to observation, liability would rest upon the
operating railway, though it was not responsible for the
original faulty construction. Had the highway at this
point been of the width it was before the railway came
there, then people driving to the crossing would have been
able to extricate themselves even at the eleventh hour ^
but the narrowed way shuts them up to face the danger
without alternative. However, as I regard the evidence
and findings, the verdict may rest upon ground covered by
the decision in the Rosenberger case.
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XIX.] SI6BALD V. GRAND TRUNK R. W. CO. 167
The verdict in favour of the children of Mrs. Anderson, Jadgment.
was also moved against on the ground of excessive dam- Boyd~(5
ages ; to the younger, aged ten, $3,200 was awarded ; to
the elder, aged thirteen, $2,800. Since verdict and before
judgment, the elder has died. It is shewn by affidavit
that he injured himself in the Christmas holidays of 1888,
after the death of his mother, and was sent for treatment
to the Toronto hospital. He was there from March, 1889,
till June, 1889, and I should infer he never thoroughly
recovered from the effect of this injury.
The trial was concluded on September 14th, 1889, and
his death was on the 29th of the same month. The
nearest practice in such cases is derived from actions for
personal injuries. These do not abate, though the plaintiff
dies after verdict and before judgment, by virtue of legis-
lation in that behalf. [See C. S. U. C. ch. 22, sec. 139 ;
R S. O. 1877, ch. 50, sec. 236 ; Udy v. Stewart, 10 O. R.
at p. 602, and Con. Rule 620.] If such damages are given
as is likely to work injustice in case death intervenes as
here, between verdict and judgment, the Court has power
to interfere by granting a new trial. See per Bramwell,
B.,in Kramer v. Waymark, L. R. 1 Ex. 241, 244. To the
other child, a very liberal verdict is given, but the Court is
becoming less and less disposed to interfere in matters of
this kind, where no other element intervenes. The one
test (assuming right to any damage) is, are the damages so
large that no jury could reasonably have given them ? Praed
V. Graham, 24 Q. B. D. 63. This particular case was one
of libel, but the observations of the Court are pertinent
to cases of negligence or personal injury. No fault can be
found with the Judge's charge, which was very full, clear,
and fair. But having regard to the death of one child
since verdict, and noting that the expenses occasioned to
the estate of the mother by the illness and maintenance
of that child, is said to be from $375 to $400, I think
the proper disposition of this branch of the application
will be to say that judgment should be affirmed with
costs, if the plaintiff' agrees to reduce the damages as to»
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IGS THE ONTARIO REPORTS. [VOL.
Judgment, the deceased child to the sum of $400. If this is declined,
Boyd, c. there should be a new assessment of damages as to the
children, with costs of this application reserved to be dis-
posed of by the trial Judge.
Robertson J., concurred.
A. H. F. L.
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/
XIX.] BLACKLEY V. KENNEY. 169
[CHANCERY DIVISION.]
Blackley V. Kenney ET AL.
Morigat/e— Security for present and future advances — Payment — Liuid
held in suretyship — Giving time by reneioaZs — Release of land — Parties
—Creditors' rig)Us — Evidence,
One of the defendants, who was the husband of another of the defendants,
Qiort^aged certain lands to the plaintiff, a member of a mercantile firm,
to secure an existing indebtedness to the firm and future advances.
Subsequently the husband, by the advice of the plaintiff, conveyed his
equity of redemption in the lauds to his wife, suoject to the mortgage.
At the time of this conveyance, the debt due the plaintiffs' firm was
represented by notes under discount which, as they fell due, were re-
tired by the firm, the husband making part payments thereon, procuring
fresh goods from the firm, giving renewals for the balances and setting
delivery up of the original notes, the wife not being consulted as to
these dealings, and rights against her not being reserved. The husband
subsequently made an assignment under R. S. O. ch. 124.
In an action for that purpose the conveyance to the wife was declared
fraudulent and void as against creditors, but not as against the
creditors' assignee, it having been made before the Assignment and
Preferences Act : Ferguson v. Kenney^ 16 A. R. 272.
In the present action on the plaintiff's mortgage, it was held by the Court
of Appeal that the plaintiff was estopped from disputing the validity of
the conveyance to the wife, and that the mortgaged lands were not
chai^eable with advances made after notice of such conveyance, and the
action was referred back to an Official Referee (16 A. R. 522).
On a second appeal from the Referee's report : —
Hdd^ that the course of dealing of plaintiff's firm did not operate as a
payment of the original notes or debt : Dominion Bank v. Oliver ^ 17
0. R. 432, followed. But
Htld, that the wife, at the time of the conveyance to her, became a
surety in respect of the lands, and that the renewal of the notes by the
plaintiff's Krm discharged the lands from liability.
Htldy also, following the judgment in Blackley v. Kenruy, supra, that the
mortgage was not a security for advances made after the conveyance to
the wife, nor could the plaintiff's firm claim as simple contract creditors
against the lands, nor could the creditors' assignee, who was a defend-
ant in this action, claim on behalf of the other creditors, whether execu-
tion creditors or otherwise, they not being parties to this action.
A certified copy of the certificate of the Court of Appeal of the result of
an appeal in an action is not evidence of the judgment therein in another
action between different parties.
This was an appeal from a second report of an Official statement.
Referee, the first having been set aside by the Court of
Appeal. See 16 A. R. 522.
The following statement is taken from the judgment of
Robertson. J. :
22 — vol. XIX. o.R.
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170 THE ONTARIO REPORTS. [vOL-
Statement. Thig vvas an appeal from the report of John Winchester^
Esq., referee, dated the 15th January, 1890, in a mort-
gaore action brought by the plaintiff as trustee and mort-
gagee for the firm of D. McCall & Co., of which the
plaintiff was a member, against the defendant John Henry
Kenney as mortgagor, and the defendant Margaret Jane
Adelaide Kenney, claiming to be the owner of the equity
of redemption, by virtue of a deed from the mortgagor,
bearing date 1st September, 1884 ; and the defendant
Ferguson who also claimed to he entitled to the equity of •
redemption in the property described in the said mortgage
for the benefit of the creditors of the said John Henry
Kenny, on the ground that the deed to the defendant
Margaret Jane Adelaide Kenney is void as against creditors.
The facts are as follows :
On 17th January, 1883, the defendant John Henry
Kenney gave to the plaintiff, trustee for the firm of D.
McCall & Co., of which he was a partner, a mortgage on
real estate in Toronto, to secure a present indebtedness of
$2,000, and as collateral security for the payment thereof,
and future advances, &c. The proviso is in these words :
" Provided, this mortgage to be void on payment of all
moneys due or hereafter to become due by the mortgagor
to the said firm of D. McCall & Co., or to the mortgagee
as representing the said firm for purchases, cash advances,,
interest, or otherwise. It being intended that this mort-
gage is given as collateral security for all moneys due or
to become due from the said mortgagor to the said firm of
D. McCall & Co. or to the said mortgagee."
Afterwards on the 1st September, 1884, the said defen-
dant John Henry Kenney by deed of that date, conveyed
his equity of redemption in the same land to one James
D. Smith, to the use of Margaret Jane Adelaide Kenney,
the wife of John Henry Kenney, her heirs and assigns, to-
and for her and their sole and only use forever, subject to
the above mentioned mortgage, which he John Henry
Kenney covenanted to pay off and discharge when due.
The plaintiff, the mortgagee, had full notice of this deed„
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XIX.] BLACKLEY V. KENNEY. 17 1
and advised that it should be given ; and at the date of it,StAtement
the indebtedness of John Henry Kenny to D. McCall & Co.
and the plaintiff was represented by ten promissory notes,
made by him to that firm, amounting together to the sum
of $4,375.14, and none of which was due at the time.
The mortgagor continued to deal with D. McCall & Co.,
and as each of the foregoing notes matured, they having
been discounted by the firm of D. McCall & Co., at the
Imperial Bank of Canada, were and each of them was
retired by the cheque of that firm ; the maker John Henry
Kenny having paid some money on account and given a
renewal note for the balance. These renewal notes were
payable at future days, and were also discounted by the
firm. As each of the original notes was retired, the plain-
tiflF or his firm cancelled and delivered it up to the maker.
By the 11th February, 1885, the whole of the original
notes had been taken up and disposed of as above.
The defendant John Henry Kenney having become in-
solvent made an assignment for the benefit . of his credi-
tors to one Ferguson, who brought an action to set aside
the conveyance from Kenney to his wife, joining with him
in bringing the action against Tait, Burch & Co., creditors.
In this action the conveyance was declared fraudulant and
void as against creditors, but the action was dismissed as
regards the creditor's assignee, Ferguson (See 16 A. R. 276).
The plaintiff on behalf of his firm brought an action
on the mortgage, claiming that the same was a security for
the amount due his firm, and on a reference to an OfiScial
Referee, who found the sum of $4,083.52 due them, this
sum including purchases and advances made after the
conveyance to the wife. His repoii; was upheld by the
Chancellor, but the latter's judgment was reversed by the
Court of Appeal, who held that the plaintiff" could not
charge against the land, under his mortgage any advances
made after notice of the conveyance to the wife (see 16
A R. 522).
The report states as follows :
2. The amount due the plaintiff" under and by virtue of
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172 THE ONTARIO REPORTS. [VOL.
Statement, his mortgage security in the pleadings mentioned on the
first day of September, 1884, being the date of the convey-
ance from the defendant John Henry Kenney to his wife
the defendant Margaret Jane Adelaide Kenney, was the
sum of 84375.14, and deducting therefrom all payments
made thereon, and adding interest on the balances from
time to time, there was due to the plaintiff on the 30th
day of June, 1888, date of my former report herein, by
virtue of the notes given by the defendant John Henry,
Kenney, on or before the said first day of September, 1884,
for the said sum of S4375.14, and renewals of such notes,
the sum $2553.33, and adding interest thereon at the rate
of six per cent, per annum from such last mentioned date
to the date hereof, amounting to the sum of S236.69, make
together the sum of $2790.02, payable out of the lands in
question herein in priority to all other claims.
3. I have taken an account of the amount due to the
defendant John Ferguson, representing the creditors of the
defendant John Henry Kenney, and have set out the several
sums in the schedule hereunder written.
4. Pursuant to the certificates of the Court of Appeal in
the suits of Ferguson v. Kenney ^ and Blackley v. Kenney
. the defendant Margaret Jane Adelaide Kenny is entitled
to the equity of redemption in the said lands upon pay-
ment of the sums found due in the two preceding para-
graphs.
5. I find at the request of the defendants John Henry
Kenney and Margaret Jane Adelaide Kenney, that all the
promissory notes which were held by the plaintiff (or the
firm of D. McCall & Co.,) and which represented the
indebtedness of the defendant John Henry Kenney to the
plaintiff, and the said firm, on the said 1st day of Sep-
tember, 1884, were taken from the bank where they had
been discounted and cancelled by the plaintiff or his said
firm as they fell due, and returned by the plaintifi or his
said firm to said John Henry Kenney, upon the said John
Henry Kenny paying such notes or giving a renewal for
the amount remaining due and unpaid on such notes. And
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XIX.] BLACKLEY V. KENNET. 17S
that the defendant Margaret Jane Adelaide Kenny was S^*®'"®^^-
not a party to the making of the renewal notes mentioned
in the second paragraph hereof. And that neither the
plaintiff nor his said firm reserved any rights against the
said defendant Margaret Jane Adelaide Kenney when they
took the said renewal notes, other than any rights they
were entitled to under the mortgage security herein.
The appeal was argued on February 8th, 1890, before
Robertson, J.
A. C. Gait for the defendants Kenney, who appealed.
The Court of Appeal decided that any advances made to
Kenne}' after the date of the deed to his wife could not be
charged against the mortgage. The mortgage debt at the '
date of the deed was represented by ten promissory notes.
The action of the plaintiff's firm in taking up, cancelling
and returning those notes to Kenney operated as payment
of the debt secured by the mortgage, and the personal lia-
bility of Kenney was accepted in lieu thereof : Mickle v.
Bowslaugh.*
The cash payments made after the date of the deeds
should all go in reduction of the mortgage debt : Devaynes
V. Noble, Clayton's Case, 1 Mer.,at pp. 585, 608. The deed
to the wife having been made with the knowledge and
concurrence of the plaintiff*, she became in respect of the
land a mere surety for the payment of the then existing
mortgage debt, so that the extension of time and accept-
ance of renewals without reserving any rights against her
operated as a discharge of the land in her hands : 2'he
Royal Canadian Bank v. Payne, 19 Gr. 180; Canadian
Bank of Commerce v. Greeny 45 U. C. R 81 ; Brandt on
Sureties, §§ 19, 21, 22, 24. The payments made by the
plaintiff's firm to their bankers in taking up the notes
were subsequent advances within the meaning of the judg-
ment of the Court of Appeal. As regards the claim of the
defendant Ferguson, there is no evidence in this case im-
• Not yet reported.— Rsp.
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174 THE ONTARIO REPORTS. [VOL.
Argument, peaching the deed to the wife The judgment in Fergu-
son V. Kenney, 16 A. R 276, is not evidence in this action
as the plaintiff here was not a party to that action :
Daniel's Chancery Practice, 6th ed. 596 ; Bigelow on Es-
toppel, 4th ed. 98, 99 ; BlaxMey v. Kenney, 16 A. R. 522.
The creditors were not made parties but chose to be
represented by Ferguson, and their rights must depend on
his status : The Commissioners of Sewers, etc. v. GelUMy,
3 Ch. D. 610 ; Morrison v. Robinson, 19 Gr. 480, at p.
486. They cannot come in now and have the case tried
over again : Glasier v. Rolls, 42 Gh. D. at p. 459. Even
if the deed to the wife was void as against Ferguson she
is entitled to priority in respect to her inchoate right to
dower : The Bank of Upper Canada v. Thomas, 2 E. & A,
502. By registering her deed and the judgment of the
Court of Appeal, the wife has acquired priority over Fer-
guson and all the creditor's claims which he represents :
Mutual Life Assurance Society v. Langley, 32 Ch. D. 460.
Walter Macdonald for the plaintiff. The referee has
found that the accounts were kept by specific application
of payments and notes for balances. When new goods
were bought they were paid for in cash in many instances.
The total amount of cash paid by Kenney would not pay
off the mortgage. If renewals were given the plaintiff can
still rely on the original consideration, viz., the money
debt due before the first notes were given. The judgment of
the Court of Appeal, holding the deed to Mrs. Kenney volun-
ntary, was before the referee in this suit, and the plaintiff is
entitled to the benefit of it : Gillies v. Howe, 19 Gr. 32. The
plaintiff is entitled to charge all the subsequent and continu-
ing advances against the lands: Cameron v. Kerr, 3 A. R 30.
The renewals were a mere continuation of the original
debt, and were still chargeable against the mortgage:
Dominion Bank v. Ohver, 17 O. R 402. This case differs
from Royal Canadian Bank v. Payne, because the bank's
assignor there had not taken subject to a mortgage, there
had been enough money paid to pay off the mortgage, ajid
value had been given, all of which elements are wanting
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XIX.] BLACKLEY V. KENNEY. 175
in this case, as Mrs. Kenney took subject to a registered Argnmeiit.
mortgage, expressly providing for renewals, and in any
event should not be relieved to any greater extent than
the cash paid on the debt due at the date of the deed to
her.
Geo. Kerr, Jr,, for Ferguson, the assignee. Each credi-
tor s debt is separately set out in the referee's schedule, so
that Ferguson having represented them all does not affect
their status. Kenny's evidence admits the debts. I refer
to McGaXl v. McDoTialdy 13 S. C. R. 247 ; Ferguson v.
Keaney, 16 A. R 276.
A. G, GaU in reply. In Gillies v. Howe the evidence
was used by consent. In Doviinion Bank v. Oliver there
was no money or other consideration paid at all. In
Cameron v. Kerr, no. deed was made and no other parties
were claiming. The creditors may be mentioned in a
schedule, but they are not parties. If the plaintiff's con-
tention that the defendant is estopped from asserting the
validity of the deed by the judgment in Ferguson v.
Kenney, 16 A. R. 276, the defendant's answer is, that the
plaintiff and Ferguson are estopped from disputing the
deed by the judgment in this case, 16 A. R. 522, and estop-
pel against estoppel leaves the matter at large ; Everest
and Strode on Estoppel, p. 7, Bigelow, 4th ed., 349 and 350.
As to relative rights of the plaintiff and the appellants
after the date of the deed, see Fisher on Mortgages, 4th
ed., 1187, 1193, 1633, and 1634.
February 17th, 1890. Robektson, J. :— (After stating the
facts as above.)
The defendants, the Kenneys, now contend as follows :
1. That by cancelling and returning to the maker all
these notes, and accepting the renewal notes, the plain-
tiff and his firm elected to abandon whatever rights they
had upon the former notes, and the plaintiff's course of
dealing in reference to said notes operated as payment of
the original notes, and the original debt for which they
were given.
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176 THE ONTARIO REPORTS. [VOL.
Judgment. 2. That after the conveyance of Ist September, 1884, to
Robertson, J. the defendant Margaret Jane Adelaide Kenney, she became
in respect to the said lands, a surety for the payment of.
the then existing notes, the defendant, John Henry Kenney^
being the principal debtor, and the plaintifTs said firm
taking the renewal notes, and thereby extending the time
of payment without reserving any rights against the
surety, whereby she became discharged.
3. That no liability attached on the said mortgage secu*
rity for advances made by the plaintiff's firm to the
defendant John Henry Kenney, or for him, subsequent to
the date of the said conveyance of 1st September, 1884.
As to the first contention, the case of Dominion Bank
V. Oliver, 17 O. R. 402, is an express authority against it ;.
as' in that case, so here, there was no payment in fact of
the notes or the debt for which the mortgage was given ;
at their maturity they were. taken up by substitution of
renewal notes, and a small amount paid on account, which
in the whole only amounted to $320 ; and these renewals
were afterwards taken up by other renewals, and so on ;
but no other money or other consideration ever passed
from the mortgagor to the plaintiff or his firm during this
coui*se of dealing in respect of the debt itself represented
by the original notes, and which debt the mortgage was
given to secure.
In Cariniihers v. Ardagh, 20 Gr. 579, at p. 593, the late
Chancellor Spragge, says : " Upon the dishonour of a bill
or note given as coUateral security, the original cause of
action survives, &c., * * It seems to me quite imma-
terial whether the giving of a note or a bill, for the amount
of a debt is to be considered as operating as a suspension
of payment, or as a conditional payment ; whichever it be,
the original cause of action revives, upon default in pay-
ment of the note or bill. * * It is, in short, as a general
rule, merely collateral securit3^ • * The cases entirely
negative the proposition that the mere taking of such note
or bill, does of itself import that it is taken in accord and
satisfaction,'' And in Dominion Bank v. Oliver, Boyd,
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XIX.] BLACKLEY V. KENNEY. 177
C, at p. 405, also says : " The whole series of notes and Judgment,
renewals form links in one and the same chain of liability, Robertson J.
which is secured by the mortgage." I quite agree with
this, and therefore in my judgment the first ground of
objection utterly fails.
As to the second contention. The conveyance of the
equity of redemption from John Henry Kenney of 1st
September, 1884, contains in the hahendiim the proviso,
" subject nevertheless * * a certain mortgage to Wm.
Blackley, dated 17th January, 1883, which the party of the
first part (John Henry Kenney) hereby covenants and agrees
to pay off and discharge when due. At the date of this
conveyance the debt secured by the mortgage referred to was
that for which the before mentioned ten promissory notes
had been given ; as these several notes became due, time
for the payment of them, was given without the consent
of the owner of the equity of redemption, who had by
re<ison of her having accepted the conveyance, become
surety in respect of the Icmd. The rule governing in a
matter of this kind is that * when property of any kind is
mortgaged or pledged by the owner to answer for the debt,
default, or miscarriage of cmother person, such property
occupies the position of a surety, or guarantor, and any
thing which would discharge an individual surety or
guarantor who was personally liable will under similar
circumstances discharge such property/"
In Samuell v. Howarth, 3 Mer. 272, A. guarantees
the payment of any goods to be applied by B. to C.
between the 2nd of April, 1814, and the 2nd of April, 1815.
Although no period of credit was specified, this could not
he taken as a guarantee for an unlimited period, but to be
restrained by the usual course of trade ; and C. having
accepted bills for the amount of the goods delivered, which
B. permits him to renew, when payable without any com-
munication to A. on the subject of such renewals : Held,
that A. was discharged from his guarcmtee, by virtue of the
rule that a creditor giving further time to the principal
debtor, without the consent of the surety, releases the
23 ^VOL. XIX. O.K.
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J 78 THE ONTARIO REPORTS. [VOL.
Judgment, surety. And that, although it was proved that the renewal
Robertson, J. was given only in consequence of C's. inability to pay, and
that no injury could accrue to A. ; the surety being himself
the fit judge of what is, or is not, for his own benefit."
Lord Chancellor Eldon, in giving judgment said
at p. 279 : ** The creditor has no right — it is against the
faith of his contract — to give time to the principal, even
though manifestly for the benefit of the surety, without
the consent of the surety."
And in Royal Canadian Bank v. Payne, 19 Gr. 180,
the late Chancellor Spragge followed that decision, and dis-
charged the surety. See also Lord Harberton v. Bennett,
Beatty s Reports, (Ir. Ch.) 386.
A creditor who takes a bill or note from a debtor who is
in default, impliedly gives him time since he cannot sue
the debtor until the maturity of the bill or note : Th^ Croydon
Commercial Gas Co. v. Dickinson, 1 C. P. D. 707, affirmed
in appeal, 2 C. P. D. 46. Likewise the renewal of a bill
by the creditor may operate to discharge the surety, unless .
made with the assent of the latter: Torrance v. The Bank of
British North America, L. R 5 P. C. 246. But at
the time the debt for which the original ten notes were
given was contracted, the defendant Margaret Jane
Adelaide Kenney had not become a surety. Nor was she
such at the time the notes were given, except as to one,
which was made on 1st October, 1884, for $118.76; and
the question arises as to whether that does not make a
difference in regard to the effect of giving time for pay-
ment for each, by taking the renewals.
Mr. Brandt in his work on Suretyship, sec 19, says : " If
creditor knew of suretyship, when he did the act complained
of, this is sufficient to secure surety his rights ;" and he cites
in support of that proposition the following American cases :
Bank of Missouri v. Matson, 26 Mo. 243; Colgrove v.
Tallman, 2 Lansing (N. T.), 97 ; Lawman v. Nichols, 15
Iowa, 161, and Wheat v. Kendall, 6 New Hamp. 504. But
as being contra, he refers to The Bank of Upper CanocZa v.
Thomas, 11 C. P. 515, and Pauley v. Hat^radine, 7 E. &
B. 431.
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XIX.] BLACKLEY V. KENNEY. 179
In the last mentioned ease, the agreement was made as Judgment.
to the suretyship, at the time the notes were made and RobertsoD, J.
handed over to the plaintiff, and he received them with
full notice of the fcM^t, and it was held that a plea alleging
that fact, and that the plaintiff had afterwards without
the consent of the surety given time to the principal
debtor, but for which he might have obtained payment, was
good on demurrer. But in the same case the question is
raised and not answered, whether the equity would have
existed if the notice had been after the taking of the
notes, but before the givi/ng of time ; and in The Bank of
Upper Canada v. Thomas, supra, the declaration was on
a promissory note made by the defendant and endorsed by
one O. T. M. to the plaintiffs. Plea, on equitable grounds,
that the defendant was surety for O. T. M., and made
the note for his benefit without value, of which the
plaintiffs became aware after they became the holders
thereof and after notice thereof gave time to O. T. M., and
thereby released defendant. On demurrer held bad. The
Court (Draper, C. J., and Hagarty, J.), holding that as the
plaintiffs were not aware of the true state of affairs existing
between the defendant (the maker) and O. T. M., the
payee and endorsee, at the time they became the holders
o£ the note, the defence was not allowable, and it was con-
sidered by these learned Judges, that the case of Pooley v.
Uai^ad/me did not go so far as to decide that a subsequent
knowledge was sufficient to enable the defendant to take
advantage of the equitable doctrine relied upon in the plea,
although Hagarty, J., at p. 517, said : " I gather from
the language of Sir J. Coleridge, in delivering the judgment
in Pooley v. Harradine, that he considers that Courts of
Equity would probably relieve the surety if the creditor
give time to the principal debtor, after knowledge of th(3
existence of the relation, although he had no such know-
ledge at the date or the original transaction." And
the learned Judge continues : " The inclination of my
mind is to think that such would be the view taken. And
this on the short ground that in the language of the case
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180 THE ONTARIO REPOKTS. [VOL.
Judgment, referred to, the defence does not arise by any alteration of
RobertBon, J. the original contract, but that the creditor cannot fairly
or equitably sue the surety when, knowing of the existence
of the relation of principal and surety, he has voluntarily
tied up his hands from proceeding against the principal."
In Davies v. Stainbank, 6 D. M. & G. 679, it was
held that a creditor who holds a floating guarantee from a
surety cannot, without the surety's consent, give time to
the principal debtr -as to any portion of the debt, without
reserving the cr< i.tor s rights against the surety, and yet
hold the surety .i ilile for that portion.
In order ic »|» ;ly these cases to the one now before
me, it is necessa. to review the facts and circumstances
connected with the transaction and between the principal
debtor John Henry Keuney and the plaintiffs from the
beginning. The mortgage, which the plaininff is now
seeking to enforce, was given as a continuing security, and
so long as the equity of redemption remained in the
mortgagor, the giving of time could not affect the case ;.
but afterwards, and when the debt secured was ascer-
tained to amount to the sum represented by the ten notes
in question, and the date of their maturity fixed and
agreed upon, the moi*tgagor conveyed, at the instance and
with the advice and co-operation of the plaintiffs, the
lands in the mortgage mentioned to the defendant Mar-
garet Jane Adelaide Kenney, subject to the said mortgage.
This transaction had the effect of making the grantee
Margaret Jane Adelaide Kenney, a surety in respect of these
lands, for the payment of these several promissory notes,
but for nothing beyond that. These notes respectively
matured at dates from 18th September to 18th November,.
1884, and as they matured, the plaintiffs' firm at the
request of the maker, James Henry Kenney, retired them
in full, and renewal notes, made by the same maker, were
taken in substitution, payable at dates extending the time
of payment from one to several months : the original
notes being cancelled by the plaintiff and hcuided back to
the principal debtor, no consent being given by the surety.
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XIX.] BLACKLBT V. KENNEY. 181
nor were the rights of the creditors reserved against the Judgment,
surety. Robertson, J.
In my search for authorities I have not been able to find
one in which the facts and circumstances are exactly the
same as in this case. The nearest to it is where the surety
in the first instance g^ve the mortgage, to secure the debt
of the principal debtor. I think the same principle governs
here, the moment the defendant Margaret Jane Adelaide
Kenney, became the owner of the land subject to the mort-
gage. So that at that moment she " at the instance, and
^th the advice and co-operation of the plaintiff," became in
respect of the land, a surety for the due payment at
maturity of each of these promissory notes. If I am right
in this, the difficulties presented by the decision in The
Bank of Upper Canada v. Thomas are not present, and
the other cases Pooley v. Harradine, Davies v. Stainbank,
with a host of others referred to in these two cases, as well
as the American cases, noted by me, make it clear that by
the dealings and transactions in regard to these several
notes between the creditor and the principal debtor, after
each of them became due and payable, the surety has
become discharged and released from her liability in respect
of them. I am, therefore, of opinion that the second con-
tention of the defendant (Margaret Jane Adelaide Kenney)
mnst prevail.
As to the third contention, it is only necessary to refer
to this same case in the Court of Appeal, 16 A R. 522,
where it was unanimously held that the mortgagee
(the plaintiff) cannot charge against the land under
his mortgage any advances made after notice of the con-
veyance of the land to the defendant, Margaret Jane
Adelaide Kenney, of 1st September, 1884. But the plaintiff
in answer says : In another action of this defendant Fergu-
.fion against these defendants the Kenneys, in which Tait,
Bnrch & Co., judgment creditors of John Henry Kenney,
had been made parties plaintiffs, the Court of Appeal
(16 A. K. 276), declared that as against creditors this
conveyance was fraudulent and void, and that although
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182 THE ONTARIO REPORTS. [VOL.
Judgment, the Court dismissed the action as regards Fer^son,
Robertson, J. ^^^ assignee, on the ground that he, as assignee, of
James Henry Kenney, looking at the date of the deed
and the date of the assignment, the deed having
been made before the Act respecting assignments, &c.,
by insolvent persons (R. S. O. ch. 124) came in force,
it was manifest that the transaction was one which could
not have been attacked by the assignee ; they, however,
dismissed the appeal against the creditors Tait, Burch &
Co., holding that the creditors are entitled to avoid the
deed under the statute of Elizabeth ; and that inasmuch
as the plaintiffs* firm D. McCall & Co. are creditors of the
grantor, they now contend that they have the same right
as other creditors to take advantage of this judgment of
the Court of Appeal ; and they, as ordinary creditors*
have proved this claim before the Referee, so that if their
security under the mortgage is gone, they still have the
right to claim pro rata with other creditors, the proceeds
of the sale of the land when made by the aj^signee.
Apart from the objection also taken by the defendant
Margaret Jane Adelaide Kenney, as to whether thei'e was
any evidence before the Referee in this action, to establish
the alleged fact, that the deed of 21st September, 1884>
was fraudulent and void as against creditors, and which I
will deal with hereafter, I am of opinion that the plain-
tiffs' firm cannot, as simple creditors, claim against the
lands in that deed described. I cannot see how they can
be in a better position as simple creditors, than they were
as mortgagees ; in fact it was as simple creditors or for
whatever sum was due to them, on their running account
against the d^endant John Henry Kenney, after the date
of the deed, that the question came before the Court of
Appeal ; and the language of Hagarty, C. J. O., at p. 525,.
in that case is, ** I think it impossible to hold that as
against this plaintiff the deed can be held fraudulent
and void, merely because he was a creditor at the time of
its execution. It purports on its face to be for a consider-
ation of $4,000, and it was executed at the instance and
Digitized byVjOOQlC
XIX.] BLACKI.EY V. KENNEY. 183
with the advice and co-operation of the plaintiff. The Judgment,
mortgage to his ^r'^ is declared to be a prior security on Robertson, J.
the land, and we must hold him as fully acquiescing in
the perfect propriety of this deed to the wife, as based on
valid legal consideration, and as in no way a fraud upon
him. The deed was, and is, of courae, perfectly good be-
tween the parties."
In support of my view, I may also refer to the case of
Olliver v. King, 8 D. M. & G. 110 ; and the language of
Lord Justice Turner, at pp. 120, 121, which I adopt as
being most applicable to the effect of the transaction in
this case. My opinion is based upon this : — I consider the
true effect of this transaction to be, that the plaintiff* by
his conduct agreed to this alienation of the assets of
James Henry Kenney, and must be considered to have con-
sented to take satisfaction out of the property which
remained. It follows, therefore, that the Referee was
wrong in reporting that the sum of $2,790.02 due to the
plaintiffs' firm, was payable out of the lands in question,
&c. See also the remarks of Osier and Maclennan, JJ.A.,
in Blackley v. Kenney, at pp. 529, 530, 16 A. R.
The appellant also urges as another ground of appeal
against the report that the creditors generally of the defen-
dant rJohn Henry Kenney), instead of individually proving
their own claims as they might have done, have chosen to
be represented by defendant Ferguson, who is the assignee
for the benefit of the creditors of the defendant John Henry
Kenney, and who has no locus standi, Jkc.
The appellants do not admit that if the said creditors
had proved individually, their claims would take priority
to the appellant Margaret Jane Adelaide Kenney. But
as they have not done so, their rights must be governed
by the rights of their representative in this action. And
inasmuch as the said deed to the appellant Margaret Jane
Adelaide Kenney remains unimpeached and unimpeachable
on the evidence herein, as respects all parties, the third
finding in favour of the said John Ferguson is erroneous.
Assuming for the purpose of this particular ground of
Digitized byVjOOQlC
1 84 THE ONTARIO REPORTS. [VOL.
Judgment, appeal that the defendant Ferguson is entitled to claim
Robertson, J. against the lands in question herein, in respect of the
creditor's claims, which he represents, still the appellant
Margaret Jane Adelaide Kenney is entitled to priority at
least in respect to her inchoate right to dower.
The appellant Margaret Jane Adelaide Kenney derives
her title to the lands in question under the deed of Septem-
ber 1st, 18S4. This deed was dqly registered. The Court
of Appeal for Ontario has decided that upon the evidence
herein the said deed is good as against all the parties to
this action, including the defendant John Ferguson. The
judgment of the said Court of Appeal has also been
registered, and has not been appealed from, and the said
appellant claims the benefit of the Registry Act.
»The original order of reference was made by the Master
in Chambers on 18th October, 1887, to enquire and report
whether there is any, and if any, what sum of money is
due to the plaintiff in respect of the mortgage security in
question in this action.
Under this order the referee would enquire as to subse-
quent incumbrances, &c.,and under Con. Rule 309, trustees
&c., may sue and be sued on behalf of, or as representing
the property or estate of which they are trustees, &c.,
without joining any of the parties beneficially interested
in the trust or estate, and may be considered as represent-
ing such parties in the a.ction.
In this case, however, the assignee Ferguson did not
represent the property or estate. The Court of Appeal in
his action against these defendants the Kenneys, held that
he had no locus standi, and therefore he could not be con-
sidered as representing the parties who were beneficially
interested in the equity of redemption. Moreover, as I
understand the report of the referee, and the evidence
taken before him, the claims which Ferguson brought in,
with the exception of Tait, Burch & Co., formed no charge
upon the mortgaged lands, they were merely simple con-
tract debts which had not been reduced to judgment, and
therefore no execution in regard to them was placed in the
Digitized byVjOOQlC
mX.] BLACKLE1? V. KENNEY. 185
sheriff's hands, or otherwise did they become charged on Judgment.
the land. It follows, therefore, that in regard to all the Robertson, J.
claims mentioned in the schedule to the report as being
allowed to Ferguson as assignee on behalf of the creditors
of the defendant John Henry Kenney must be disallowed,
First, because Ferguson as assignee had no locus standi ;
second, because those of the creditors who were execution
creditors were not made parties to this action ; third.
because those who were not execution creditors had no
charge or lien on the lands.
Before the Referee the only evidence to prove that the
deed of 1st September, 1884, from defendant James Henry
Kenney to the defendant Margaret Jane Adelaide Kenney,
was fraudulent and void as against creditors, was a certi-
fied copy of the certificate of the Registrar of the Court
of Appeal, as to the result of the appeal in Ferguson v,
Kenney — there was no formal judgment nor an exemplifi-
cation of one.
I would, however, allow proper evidence of that judg-
ment to be given, if I thought such evidence could be
received in this action. In order to make it admissible
evidence, a judgment must be between the same parties in
the suit in which it is offered as evidence : that was not
the case here. The parties in the suit of Ferguson v.
Kenney, at the time of the entry of the judgment therein,
were Tait,Burch & Co. plaintiffs, against these defendants.
the Kenneys. The name of the plaintiff Ferguson was, by
the judgment of the Court of Appeal, struck out of the
action : that left Tait, Burch & Co. plaintiffs against these
defendants, the Kenneys, defendants. Tait, Burch & Co.,
are not parties to this action, not having been parties by
original writ, nor added afterwards by the Referee. In
my opinion, therefore, the judgment in Tait, Burch A Go*
V. Kenney, could not be received in evidence in this action
to shew that the conveyance of 1st September, 1884, from
defendant John Henry Kenney to the defendant Margaret
Jane Adelaide Kenney, was void as against creditors.
The result is, that this action, so f^r as the lands de-
24— VOL. XIX. O.B.
Digitized byVjOOQlC
186 THE ONTARIO RKPORTS. [VOL.
Judgment scribed in the mortgagees' security are concerned, has^
Robertson, J. entirely failed. The plaintift should pay the costs of the
defendant Margaret Jane Adelaide Kenney ; and I allow
the appeal except as to the first ground ; and I allow the
defendants, the Keniieys, the general costs of the appeal.
G. A. B.
[COMMON PLEAS DIVISION.]
Huffman v. Walterhouse and Broddy.
Innkeef?er — Sale of stallion under B. S. O., ch, 154* for keep, etc, — Lien —
Beuival of—Tarem License— Oxmier of.
An innkeeper, claiming to act nnder R. S. O. , chap. 154, sold by public
auction a stallion belonging to the plaintiff, a boarder at his inn, to en-
force a lien thereon for the keep and accommodation thereof.
Held, that the lien existed and the sale was authorized.
After the lien accrued the plaintiff removed the stallion and subsequently
brought it back to the inn.
Held, uiat the lien revived on the return of the stallion.
Under sec. 12 of R. S. O. ch. 194, the person receiving a tavern license
is assumed to have satisfied the license commissioners that he is the
true owner, but, notwithstanding, it can be shewn that the licensee was
merely the agent of another who was the real owner of the business.
Statement. This was an action tried before Falconbridge, J., and a
jury, at Toronto, at the Fall Assizes of 1889.
The action was brought by the plaintiff against the
defendant Walterhouse, an inn-keeper at Cookstown, and
the defendant Broddy, an auctioneer, to recover damages
for the alleged wrongful sale of a stallion.
The stallion was sold by the defendant Broddy under
instructions received from the defendant Walterhouse, who
claimed to enforce a lien for the keep and accommodation
of the stallion.
The plaintiff, who was the owner of the stallion, had
stayed for some time at the defendant Walterhouse's inn,
travelling at intervals with the stallion during the season,
going out during the week and returning on Saturday, the
stallion being stabled at the inn. At the end of the season
Digitized byVjOOQlC
XIX.] HUFFMAN V. WALTERHOUSE AND BRODDY. 187
of 1888 the plaintiff stayed on at the house until mid win- Statement,
ter, when the defendant Walterhouse advertised the
plaintiff's goods and the stallion for sale under a claim for
plaintiff's board and the keep of the stallion. After
various postponements the sale took place.
At the close of the case the learned Judge submitted
several questions to the jury — who found first, that there
was an agreement on the part of the plaintiff to pay for a
period extending from the fall of 1886 till the spring of
1887. the sum of $18 per month, and that on or about
April, 1888, a balance of account was struck, shewing a
balance in favour of the defendant Walterhouse of $65 ; that
on the 29th January, 1889, there was a balance struck
between the plaintiff and the said defendant, shewing a
balance of $295.50 in favour of the said defendant.
The jury also found that after the close of the season
of 1888, the said defendant should be allowed at the rate of
S18 a DQonth for the keep of plaintiff and his horse, and
that the plaintiff was not entitled to charge the said de-
fendant anything for his work and labour. They found that
the said defendant should be allowed fifty cents per day for
the keep of the stallion from the date of the seizure until
the day of the sale ; that the goods and chattels realized
their full value at the sale ; and that the plaintiff had sus-
tained no damage from the seizure of the goods, or from the
mode in which the sale was conducted.
The last question was, as to whether there was an
agreement that the said defendant should have a lien. The
jury did not answer this question.
The learned Judge upon the above answers entered
judgment for defendants, dismissing the action.
A motion was made by the plaintiff to set aside the
findings and judgment entered for the defendants and to
enter judgment for the plaintiff.
In Michaelmas Sittings, 1889, D. 0. Cameron and Blai^i
supported the motion.
McFadden shewed cause for the defendant Walterhouse,
and Graham for the defendant Broddy.
Digitized byVjOOQlC
188 THE ONTARIO REPORTS. [VOL.
Judgment. rpj^^ authorities are sufficiently referred to in the judg-
Oalt, C. J. ment.
March 7, 1890. Galt, C. J. :—
[The learned Chief Justice, after fully commenting on
the evidence, decided that the findings of the jury were
in accordance therewith. He then proceeded] :
The legal rights of the parties are based on the con-
struction to be placed on ch. 154, R. S. O., and on the
position of the parties. The learned counsel on both sides
referred to very numerous cases but it is unnecessary to
comment on many of them.
By section 2 of dh. 154, every inn-keeper, boarding-
house keeper, and lodging-house keeper shall have a lien
on the baggage and property of his guest, boarder, or lodger
for the value of any food or accommodation furnished to
such guest, &c., with a power of sale.
By the common law an hotel keeper had such a lien, but
a boarding-house keeper and lodging-house keeper had not.
The statute extends the same privilege to all, so that it is
a matter of indifference whether the plaintiff was in the
house of the defendant as a guest or a boarder. In my
opinion he was there as a boarder, and not as a guest.
The statute also confers a power of sale.
By section 3 of same statute. Where an inn-keeper,
boarding-house keeper, lodging-house keeper, or livery
stable keeper has by law a lien upon a horse or other
animal for the price of any food &c., he shall, in addition
to all other remedies provided by law, have the right in
case any part of such price or value remains unpaid for
the space of two weeks, to sell by public auction such
horse, &c.
The first question raised by Mr. Cameron, counsel for
the plaintiff, was, that as the 3rd section applies only to
cases in which the hotel or boarding-house keeper has by
law a lien, it has no application to the present case because
the second section does not include a horse.
Digitized byVjOOQlC
XIX.] HXTFFMAN V. WALTEBHOUSE AND BRODDY. 189
By the Gommon law an hotel keeper had a lien on horses «^udgment.
the property of his guest or brought to his inn by a guest, Gait. C. J.
see Allen v. Smith 12 C. B. N. S. 638, and Mulliiier v.
Florence^ 3 Q. B. D. 484, consequently the lien on the horse
did exist, and the power of sale in the third section applies.
His argument was, that because the terms of the second
section were " for the value or price of any food or acom-
modation furnished to such guest, boarder, or lodger," it
must be held to apply only to the person of the guest or
boarder; but it has been held, as shown in the cases to
which I have referred, that horses and carriages are sub-
ject to a lien for goods furnished not only for the person
of the guest but also for the food of his horses and ser-
vants. It was manifestly the intention of the Legislature
to increase not to diminish the rights of a landlord. The
Legislature by declaring that the landlord shall have a
lien adds nothing to his common law right. What it has
done is to confer a power of sale which he did not pre-
viously possess.
He then contended that because the wife can-ied on
the business when the settlement of the $65 was made
no lien existed for that There has been no finding
in accordance with this as I have already stated; all
that appeared in the evidence was, that the license was
in the name of the wife; the plaintiff, moreover, was not
in the house as a guest but as a boarder, and under the
statute the boarding-house keeper has the same right as
an inn-keeper.
Mr. Cameron also contended that as the horae and goods
had been removed after this settlement was made, no
lien could be claimed against them on the plaintiff bring-
ing them back after the close of the season in 1888.
In MuUiner v. Florence, 3 Q. B. D. 484, to which I
have referred, the guest arrived at the end of Sep-
tember, 1876, and remained until the middle of Jan-
uary, 1 877. In November, 1876, after he had contracted
a portion of the debt, a pair of horses, waggonette, and
harness, came to defendant's inn for the guest ; after
Digitized by VjOOQIC
190 THE ONTARIO REPORTS. [VOL.
Judgment, the guest (who was a swindler, and really had no
Gait, C.J. property in the horses,) left, the landlord claimed a lien
not only for the debt contracted after the horses arrived,
but for that which was due before.
Lord Bramwell in giving judgment says, at p. 488 :
"The first question for our decision is, what was the
inn-keeper's lien ; was it a lien on the horses for the
charges in respect of the horses, and on the carriage,
in respect of the charges on the carriage and no lien
on them for the guest's reasonable expenses, or was it
a general lien on the horses and carriage and guest's goods
conjointly, for the whole amount of defendant's claim as
inn-keeper ? I am of opinion that the latter was the true
view &s to his lien, and for this reason that the debt
in respect of which the lien was claimed was one debt,
although that debt was made up of several items."
In the present case the defendant had a right of lien on
the goods when they were removed in April, 1888, and I
can see no reason tor holding that when the plaintiff
returned, bringing the goods with him, the right of lien
did not revive.
Mr. Cameron then contended that as the defendant
claimed a lien for a larger amount than he was en titled to
his right of lien ceased. The jury have found that as
respects the amount of the defendant's claim it is correct,
consequently it is unnecessary to consider the question of
lien raised on the basis that the claim was excessive.
Mr. Blain's contention was that the statute only confers
the right to sell the 'goods. This has reference to the $65
to which I have chiefly referred. He then very forcibly
urged that as respects the remainder of the claim, it was
covered by the agreement that no charge was to be made,
but that tlie plaintiff's services were to be accepted as an
equivalent. The jury have found expressly that there was
no such agreement, and in my opinion such finding is in
accordance with the evidence.
Under sec. 12 of the Liquor License Act, R. S. O. ch 194,
the person receiving a tavern license is assumed to have
Digitized byVjOOQlC
XIX.] BADGEROW V. GRAND TRUNK R. W. CO. 191
satisfied the commissioners that he or she is the true owner Jadgment.
of the business. But notwithstanding the issue of a oait, C.J.
license to one person, it is competent to shew that the
licensee was merely the agent of another who was the real
owner of the business.
MacMahon, J., concurred.
[COMMON PLEAS DIVISION.]
Baijgebow V. The Grand Trunk Railway Company.
Bailtnys — Acadent^Ntgligence— Evidence oJ — D^ective hrdke^LaletU
defect — Cor^ectwe.
Action by plaintifif to recover damages for the death of her husband by
reason oi, as was alleged, a defective brake on a car on defendant^
railway on which deceased was employed as a brakeraan : —
Held that there could be no recovery, for the evidence failed to shew how
the accident happened, the contention that it was the defective brake
being mere eonjecture ; and, even had it been the cause, it would have
been no groond of liability, for under the defendant's rules it was the
deceased's duty to examine and see that the brakes were in proper work-
ing order and report any defect to the conductor; and if he made the
examination he apparently discovered no defect as he made no report, a
latent defect being no evidence of negligence ; and if he omitted to make
such examination, etc., then the accident would be attributable to his
own negligence.
This was an action tried before Falconbridoe, J., and Statement*
a jury, at Toronto, at the Autumn Assizes of 1889.
The action was brought by Jennie Badgerow, administra-
trix of David L. Badgerow, deceased, on behalf of herself
and Archie Badgerow, her infant child, under Lord
Campbell's Act, to recover damages from the defendants
for the death of her husband, the said David L. Badgerow,
by the alleged negligence of the defendants.
The action was also framed under the Workmen's Com-
pensation for Injuries Act, alleging a defect in a certain
brake on a car, in a train of cars on which David L.
Badgerow was employed as brakeman, on the defendants'
line of railway; and, by means of which defective brake,
Digitized byVjOOQlC
192 THE ONTARIO REPORTS. [VOL.
statemeut. the death of Badgerow was alleged to have been caused;
and that the defect in the said brake was a defect in the
ways, works, machinery and plant of the defendants' rail-
way, and was or should have been known to the defendants
through their car inspectors at York, from which the train
started with Badgerow as one of the brakemen on the day
he was killed.
The facts are fully set out in the judgment of MagMa-
HON, J.
On the findinr ; of the jury the learned Judge found for
the defendants.
In Michael h. >n Sittings, 1889, a motion was made to set
iiside the verdict and judgment entered for the defendants
and have the same entered for the plaintiff.
In Hilary Sittings, 1890, Macculloch supported he
motion.
Wallace Nesbitt, contra.
The arguments, so far as material, appear from the
judgment.
March 7th, 1890, MacMahon, J. :—
The train on which the deceased wfiis employed was a
freight train, and on the 5th of March, the day on which
Badgerow met with the accident resulting in his death, the
train reached York station about 3 o'clock p.m., and at that
time Badgerow and Clarke, the two brakemen attached to
that train, were at the station and remained there,
departing with the train at 3.40 on its eastward trip, and
about 7.15 o'clock Badgerow left the conductor's van, at a
point two miles west of Uxbridge station, to apply the
brakes where there is a curve and a down grade, and when
the train reached the semaphore near Uxbridge station
Michael McCarthy, the conductor, missed Badgerow, and
on going back with the pilot engine found Badgerow's
body quite dead, close to the track about three-quarters
of a mile west of the semaphore at Uxbridge.
Digitized byVjOOQlC
XIX.] BADGEROW V. GRAND TRUNK R. W. CO. 193
On an examination of the cars at the rear end of the Judgment.
train, where Badgerow was braking, it was found that MacMahon^
some of the brakes which had been applied were not '^•
relaxed as they should have been before reaching the
semaphore; and on a flat car — the third car from the van —
the conductor found the brake-mast without any circle,
the whole top attached to the mast being gone.
The manner in which the brake-circle is put on the
mast is thus described by McCarthy, the conductor;
" There is a hub in the centre of the spokes of the brake-
circle, and the upper part of the mast is inserted into that
hub, the circle lying flat on top of the mast ; the spokes
run to a centre, and they sit on a shoulder on the mast,
and then there is a nut screwed on the top of the mast
which keeps the circle flat in its place."
Badgerow's body was taken to Goodwood station from
the place where it was found; and in the van from which
the body was removed there were removed two pieces of a
brake-circle, which it was asserted on behalf of the plaintifi'
was the brake-circle attached to the brake-mast on the
flat-car spoken of by McCarthy, who could not, at the
trial, say whether the brake was or wa§ not set on that
particular car at the time he examined it.
McCarthy did not see any part of a brake-circle near
Badgerow's body at the time it was found; and if the
bi-ake-circle belonging to the brake-mast of the flat-car
spoken of by McCarthy was the one in the van from which
Badgerow's body was removed at Goodwood, there is no
evidence by whom or where it was picked up, and put
there.
Evidence was given on behalf of the plaintiff by experts
to shew that there had been a crack for at least some weeks
in the brake-circle taken out of the van at Goodwood ;
and that the brake inspectors at York station should have
discovered the defect if proper precautions had been taken
by them in making their examination ; and that in such
examination they should have used a hammer to tap the
26 — VOL. XIX. O.R.
Digitized by VjOOQIC
194 THE ONTARIO REPORTS. [VOL.
Judgment, brake-circle in order to make a proper test for discovery
acMahon, of defects therein.
^' The rules of the defendants produced from the plaintiffs
custody, and which she stated belonged to her late husband,
and for which he gave a receipt to the Grand Trunk
Railway Company, provide :
Rule 196, "The conductor and brakemen have time on
the journey to examine the wheels, brakes, coupling and
journals of the cars, and can have no excuse for allowing
them to be neglected ; it will always be presumed that
they are inattentive to their duties if they are neglected."
By Rule 217, conductors and brakemen of freight trains
must be in attendance half an hour before the time fixed
on the time table for the departure of their trains.
And Rule 229 prescribes in regard to brakemen they
must examine the car brakes to see that they are in proper
working order, and report any defect to the conductor.
The evidence is that Badgerow, who had been a brake-
man for about five years, was in attendance for at least
forty minutes prior to the departure of the train, and that
there was ample time in which to examine the brakes.
With the careful inspection he was called upon by the
rules to make so as to enable him to report to the con-
ductor, Badgerow, if he did make one, did not, it must
be assumed, discover any defects, for he did not report that
there were any to the conductor; and, if he did not
make an examination, he was violating one of the impor-
tant rules of the railway company whose servant he was,
and so was guilty of negligence from which, it might pos-
sibly be said, the accident occurred resulting in his death ;
if so, no liability attaches to the defendants by reason of
such negligence.
I say it might possibly be assumed, for there is no evi-
dence upon which the accident causing Badgerow's death
can be attributed to any particular cause ; nor is there any
evidence shewing that the defendants have been guilty of
any negligence conducing to his death.
The evidence is, that after leaving York, Badgerow
Digitized byVjOOQlC
XIX.] BADGEROW V. GRAND TRUNK R. W. CO. 195
would require to use the brake on the flat-car, from which Judgment,
the brake-circle was missing, at Scarborough, Markham^ MacM^n»
and StouflFville, and coming down the grade at Unionville '^•
before reaching the grade where he last went out to apply
the brakes. So that it is fair to assume that at these several
places, the brake was not, so far as he could discern, de-
fective, otherwise he would have communicated the defect
to the conductor ; and also had he found it defective at
any of the prior points where he was required to use it,
he would not have attempted to use it in braking the train
near Uxbridge through which attempted user at that
point, while in that defective condition, the plaintiff
claims that his death was caused.
If this brake was, as stated, used on at least four occa-
^ons by the deceased prior to coming to the grade near
Uxbridge, and as the brake-mast was found without the
brake-circle and the nut which keeps the circle attached
to the brake-mast, the strong probability is, that the nut
had worked completely oj9r,or was loose,and when Badgerow
went to apply the brake the nut and brake-circle flew off*
together, and so precipitated him from the train. For, even
if the brake-circle had been cracked so as to have broken
through the strength employed by Badgerow in applying
the brake, the brake-circle would have parted from the
m&st, but would have left the nut there if screwed down
to its proper place over the brake-circle.
However, there is no evidence to shew how, or in what
manner, or from what cause, the accident causing the death
happened. At best there is mere conjecture, and any
negligence with which the defendants have been charged
by reason of what is stated was a defect in the brake-circle,
cannot be charged against the railway company, because
it was the duty of Badgerow, under the rules, to have made
such an examination as would have satisfied him that
there was no defect in the brake ; and, if that was not
done, the defendants cannot be made liable.
In Hanson v. Lancashire and Yorkshire M. W. Co,,
20 W. R. 297, where by reason of the breaking of a chain
Digitized byVjOOQlC
196 THE ONTARIO REPORTS. [VOU
Judgment, securing timber on a truck on the defendants' line of rail-
IfacMahon, way, and the plaintiff, who wag on a passenger train
^' passing the timber truck on another track, yvHS injured by
the projecting timber, there was evidence that the break-
age was caused by a latent flaw in the chain. Brett, J.,
at p. 298, said : " The accident here might solely be caused
by the latent defect in the chain, and that would not be
negligence on the defendants' part."
And in Gilbert v. North London R. W. Co.^ 1 Cab.
and El. 33, Field, J., said: "If in such cases as these '^
(actions for injuries caused by negligence) "the facts
proved are as consistent with the supposition that due and
reasonable care has been exercised as that there has been
negligence the plaintiff must fail." See also the note to
that case at the foot of same page.
I have not considered it necessary to discuss the other
questions raised by the plaintiff's motion as upon the main
question as to the duty of the deceased to inspect the
brake — if the accident could be attributed to any defect
therein — we hold that it was incumbent upon Badgerow,
according to the rules, to make such inspection, and his
neglect so to do disentitles the plaintiS to recover.
The judgment entered by the learned trial Judge for the
defendants will stand, and the plaintiff's motion will be
dismissed with costs.
Galt, C. J., and Rose, J., concurred.
Digitized by VjOOQIC
XIX.] REQINA V. CANTILLON. 197
[COMMON PLEAS DIVISION.]
Regina V. Cantillon.
Liquor License Act, R. 8, O, cJk 194-'Adjudk(Uion — Conviction — Imprison-
ment without prior dvUress — Costs of conveying to jaiL
The adjudication on a second offence under the '* Liquor License Act,"
without providing for distress, directed immediate imprisonment in
default of the payment of the tine and costs; and the conviction drawn
up under it was in similar termn. After the issue of a writ of certiorari,
but before its return, an amended conviction was returned providing for
distress being first made : —
Eeldy that the adjudication and conviction made under it were void for
not providing for distress; and that the amended conviction could not
be supported, because ib did not follow the adjudication.
Semble, tnat had the amended conviction been in other respects good it
would not have been void under the Liquor License Act for including
the costs of conveying to jail.
In Michaelmas Sittings, 1889, an order nisi was obtained Statement,
to quash a conviction of the defendant, made by James
Grace, acting police magistrate for the city of 6rantford>
and Wm. Likens, a justice of the peace, for a second oflTence
in selling liquor during hours prohibited by the " Liqaor
Licence Act."
In Hilary Sittings, 1890, DuVemet supported the motion.
Langton, Q. C, contra.
March 8, 1890. MacMahon, J. :—
The order nisi states no less than seventeen grounds for
quashing the conviction, most of them being untenable.
There are two grounds taken which we think are fatal
to the conviction, viz. :
L That the original conviction wrongfully awards direct
imprisonment in default of payment of the fine ; and
2. That the conviction secondly returned to the clerk
of the peace does not conform to the adjudication, in this
that the conviction provides for levying the fine and costs
by distress while the adjudication omits to provide for
distress.
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1 98 THE ONTARIO REPORTS. [vOL.
Judgment. Xhe adjudication signed by the justices is as follows:
MacMahon, "We therefore adjudicate the defendant W. D. Gantillon
^' for his said offence to pay a fine of $75, and costs $2.85^
and, in default of payment forthwith, to be imprisoned in
the common gaol in the County of Brant for the space of
20 days."
The conviction first returned, after stating the amount
of the fine and costs adjudged to be paid, provided that if
the said several sums were not paid forthwith the defend-
ant was to be imprisoned for 20 days unless the said sev-
eral sums were sooner paid.
After the issue of the certiorari, but before its return, the
convicting magistrates filed an amended conviction which
provided that on non-payment forthwith of the fine and
costs then the same was to be levied by distreas, and in
default of sufiicient distress imprisonment of the defendant
for 20 days '* unless the said sums and the costs and
charges of conveying the said Wm. D. Gantillon to the said
gaol be sooner paid."
The Tlst section of the Liquor License Act, R. S. O. ch
194 makes no provision for the levying of the penalty im-
posed for a second offence. And where there is no mode
of raising the penalty by the Act authorizing the convic-
tion then the justice is empowered by R S. C. ch. 178^
section 62 (Summary Convictions Act) to issue his war-
rant of distress (forms N. 1 and N. 2), which shew that it
is only in default of distress that the defendant is to be
imprisoned.
The adjudication made does not award distress, and the
conviction first filed follows the adjudication in awarding
direct imprisonment for non-payment of the fine and costs
and is therefore bad. And the second conviction is bad be-
cause it awards distress, and in that it does not follow the
adjudication, and is bad for that reason. See Begina v.
Brady, 12 O. R. 368, at pp. 860-1 ; Regina v. Higgins, 18
O. R. 148.
Had the adjudication been proper there is ground for
Mr. Langton's contention that the conviction secondly filed
Digitized byVjOOQlC
XIX.] REGINA V. ROWLIN. 199
would not have been bad by reason of its including the Jud>{ment.
casts and charges of conveying the def '^ndant to goal. See MacMahon,
Forms X. 1 and N. 2 to Summary Convictions Act. '^•
The conviction must be quashed without costs.
There will be the usual protection to the magistrates and
oflicers.
Galt, C. J., concurred.
Rose, J., was not present at the argument and took no
part in the judgment
[COMMON PLEAS DIVISION].
ReOINA V. ROWLIN.
CmmeHon—ImpogUion of costs of commitment and conveying to jail'-Ojfence
against Public Health Act, H. S, 0, cK S06.
A connction for carrying on a noxious and offensive trade oontrar^r to
R. S. O. ch. 205, the Public Health Act, imposed in default of sufficient
distress to satisfy the fine and costs imprisonment in the conunon
jail for fourteen days, unless the fine and costs, including the costs of
commitment and conveyinff to jail were sooner paid.
Htld^ following Regtna v. Wright, 14 O. R. 668, that the imposition of the
costs of commitment and conveying to jail was unauthorized, and that
sec. 1 of R. S. O. ch. 74, not referred to in that case, did not affect the
question.
In Michaelmas Sittings 1889«anordemm was obtained to Statement
quash a conviction made by James Cahill, police magistrate
for the city of Hamilton, and justice of the peace for the
coanty of Wentworth.
The conviction was made on the 23rd June, 1889, on the
ioformation of one of the sanitary inspectors of the town-
ship of Barton local Board of Health, laid on the 6th of
Jane, 1889, and averred that Frank Bowlin ''did un-
lawfully, and after the passing of 47 Via ch. 38 (1884),
BOW ch. 205 of the Revised Statutes of Ontario (1887), at
lot number ten in the first concession of the township of
Barton, in the county of Wentworth, without the consent
of the municipal council of the said township of Barton,
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200 THE ONTARIO REPORTS. [vOL.
Statement, establish and carry on the trade, business, or manufacture '
of artificial manure from carcases, also being a noxious and
offensive trade, manufacture, or business contrary to the
said statute in such cases made and provided ; " and im-
posed a fine of $200, payable forthwith to the treasurer of
Barton for the use of the local Board of Health, and $12
costs payable to the complainant, one of the sanitary in-
spectors of said Board ; and in default of payment forth-
with of said fine and costs, the same were to be levied by
distress, &c., and in default of suflScient distress, imprison-
ment in the common jail for the said county of Went-
worth, at the said eity of Hamilton, for the term of
fourteen days, unless the said several sums and all costs
and charges of the said distress (and the commitment and
conveyance of the said Frank Rowlin to the common jail,)
were sooner paid.
The magistrate found as a matter of fact that the said
Frank Rowlin had established and carried on the trade,
business and manufacture complained of, and which con-
stituted the offence mentioned in said conviction, prior to
the coming into force of the Act 47 Vic. ch. 38, (O.)
In Hilary Sittings, 1890, Bickndl supported the motion.
Ayleaworth and Waddell, contra.
March 8, 1890. Rose, J.:—
Mr. Aylesworth candidly admitted that, unless he could
distinguish Regina v. Wright, 14 0. R. 668, the objection
as to the conviction including the costs of commitment and
conveying to jail must prevail.
The argument was that sec. 1 of R. S. O. ch. 74, which
was not referred to in Regina v. Wright, gave the power
to collect such costs. That section provides that " where
a penalty or punishment is imposed under the authority of
any statute of the Province of Ontario * * the like
proceedings, and no other, shall and may be had for recov-
ering the penalty * ♦ and the infliction of the punish-
Digitized byVjOOQlC
XIX.] REGINA V. ROWUN. 201
ment, and otherwise in respect thereof * * as under Judgment,
the statutes of the Dominion of Canada then in force Rose, J.
might be had * ♦ if the penalty or punishment had
been imposed by a statute of Canada, unless in any Act
hereafter passed imposing the penalty or punishment, it is
otherwise declared." And that this section introduced the
provisions of sea 66, discussed in Regina v. Wright.
It seems to me that this argument cannot prevail. It
<»n go no farther than place the provisions of sees. 63 and
107 of ch. 205, on the same footing as if the Act containing
them had been a Dominion Act, i, e., as if the penalty
imposed by sec. 63 had been imposed by a Dominion Act.
If ch. 205 had been a Dominion Act, then sec. 66 of ch.
178 would not have applied, for the reasons pointed out in
Regina v. Wright, viz.. that ch. 205, by sec. 107, provides a
mode for levying the penalty.
It would be anomalous to be required to read into an
Ontario Act the provisions of ch. 178 of the Dominion
statutes, when the same provisions would not be read into
a Dominion Act passed in similar terms.
I have read over the evidence referred to with reference
to the date when the business was established ; and I am
clearly of the opinion that there was evidence upon which
the magistrate was warranted in finding that the business
of hlood and bone boiling was established since 1884. I
have not to consider whether the finding is the proper
conclusion to be drawn from conflicting evidence.
While the conviction must be quashed, in my opinion it
must be without costs and with the usual order for
protection.
Galt, C. J., and MacMahon, J., concurred.
26 — VOL XIX. O.R.
Digitized by VjOOQIC
202 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION.]
Gardner v. Brown.
Doxoer — Equity of redemption.
There can be no dower in land of which the husband had merely acquired
the equity of redemption, and which he had parted with.
Be Crosktry, 16 0, R. 207, followed.
Statement THiswas an appeal from the ruling of the R^strar of
the Queen's Bench Division on a question of title, namely :
that the land in question here was subject to the inchoate
right of dower of the wife of William Burgess, Jr. The
facts appear from the judgment.
February 4, 1890, Arnoldi, Q.C., supported the motion.
R, M. Macdonald, contra.
February 23, 1890. MacMahon. J.:—
William Burgess, Sr., having encumbered the lands —
referred to in the admissions for argument on question of
title — by three several mortgages, conveyed to his son.
William Burgess, Jr., subject to the incumbrances so
created.
After the conveyance to William Burgess, Jr., he mort-
gaged the lands to Robert Blong for the sum of $7,000, his
wife joining in the mortgage for the purpose of barring
her dower.
William Burgess, Jr., afterwards assigned all his estate,
real and personal, to the plaintiff, for the benefit of his
creditors, under R. S. O. ch. 124.
The question is : Whether the land mentioned and sold
by the plaintiff, under the assignment to him, and pur-
chased by the defendant, is subject to the inchoate right of
dower of the wife of William Burgess, Jr. ?
The learned Registrar of the Queen's Bench Division held
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XIX.] GARDNER V. BROWN. 203
that the purchase by the defendant was subject to such Judgment,
right. MacMahon,
What William Burgess, Sr., had to convey, and what he ^'
did convey to William Burgess, Jr., was his equity of
redemption in the lands, and the wife of the latter would
only be entitled to dower out of this equitable estate in
the event of her husband dying beneficially entitled, which
it is impossible he can now do, having parted with his
quitable estate and interest to the plaintiff: R S. O. ch.
133. sec. 1 ; Re Groskery. 16 O. R. 207.
The appeal must be allowed, with costs.
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204 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION.]
GiRviN V. Burke.
BillH of exchatige ajid promissory notes— Notes given for purchetse of poUent
— h/iidoraement of words ** given for a patent right " — Necessity for at
between nuiker and payee— Waiver— R. 8, G. ch, ISS, sees, I2-I4,
The statute R. S. C ch. 123, sees. 12-14, which requires notea given for
the purchase of a patent right, before being issued to have the words
*'givenfor a patent right," written or printed thereon, provides that
the endorsee or transferee of a note with such words thereon shall have
the same defence as would have existed between the original parties,
and subjects to indictment, anyone issuing, selling or transferring such
notes without such words written thereon.
One of the plaintiffs gave two notes to the defendant for the purchase
money on the assignment of a patent right on which the required words
were written. These notes were subsequently cancelled, and in lieu
thereof the notes in question were given, made by both plaiuti£EiB with-
out having the said words thereon : —
Helil^ that the notes were enforceable by defendant, these words not
being required as between maker and payee, and, even if they were,
the makers had the right to and did waiver having the same thereon.
Statement. This was an action tried before Rose, J., without a jury,
at Qoderich, at the Autumn Assizes of 1889.
There were two actions of Oirvin v. Burke, and Burke
V. Oirvin and Spence, which were consolidated The
actions arose out of the sale and assignment by Burke to
Girvin, of a patent.
For the patent so sold and assigned, Girvin first gave his
own notes, having the words " Given for a patent right,"
printed across the face thereof ; and for these the notes of
Girvin and Spence were substituted ; and it was in respect of
the latter that the defendant Burke counter-claimed. In
answer to the counter-claim it was set up that the last-
mentioned notes were void, being granted for a patent right
without the words ** given for a patent right," required by
the Act R. S. C, ch. 123, sec. 12, being written or printed
across their face.
In the statement of claim, fraud was set up on the sale
and assignment of the patent.
The learned Judge found for the defendant on the
question of fraud, but peserved his decision on the other
Digitized byVjOOQlC
IIX.] GIRVIN V, BURKE. 205
question ; and subsequently delivered the following judg- Judgment,
ment : Rose, J.
October 24, 1889. Rose, J.:—
At the trial I gave judgment for the defendant on the
charge of fraud, but reserved judgment as to his right to
recover on the notes upon his counter-claim.
The question arose under sees. 12, 13, and 14 of R. S. C.
ch. 123.
Sec. 12 provides that " Every bill of exchange, or pro-
missory note, the consideration of which consists in whole
or in part, of the purchase money of a patent right, or of a
partial interest, limited geographically or otherwise, in a
patent right, shall have written or printed prominently
and legibly across the face thereof, before the same is
issued, the words *given for a patent right.'"
The notes in question were made by the plaintiffs Girvin
and Spence, and were for a patent right, and had not the
required words written or printed across the face.
The defendant who counter-claims to recover the amount
of the notes is the payee and holder. To his counter-claim
the answer is made that the notes are void.
They are not so declared by the Act in express terms.
Are they void by implication ?
Sec. 13 provides, " The indorsee or other transferee of
any such instrument having the words aforesaid so printed
or written thereon, shall take the same subject to any
defence or set off in respect of the whole or any part
thereof which would have existed between the original
parties/ "
This clause shews the object of the Legislature to be to
protect the maker, and to make the endorsee or other
transferee of any such note a holder with noi'iice, i.e., to
put the endorsee or titinsferee in the position of the payee
as to any defence which the maker may have against a
claim by the payee.
It is clear, therefore, that these words are not necessary
«tt between the maker and payee.
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206 THB ONTARIO REPORTS. [VOL.
Judgment Sec. 14 makes "every one who issues, sells or transfers
Rose, J. ty endorsement or delivery, any such instrument," not
having the prescribed words thereon, guilty of a misde-
meanor, and liable on conviction to fine and imprisonment.
This section clearly does not apply to either the maker
or to the payee while he is the holder.
I think, therefore, as between the maker and the payee,
the contract or note is not invalidated so as to give the
maker any defence other than he would have had without
the statute.
It seems to me that the statute was not passed to give
any new defence against the payee, but merely to preserve
as against an endorsee or transferee any defence existing
against the payee, and this may well be accomplished
without holding that the effect is to invalidate the note.
The cases are collected, and the law summarized in the
2nd ed. of Maxwell on Statutes, p. 487, et seq.
Mr. Justice Blackburn, in Waugh v. Morris, cited by
Mr. Garrow, and which is reported in the L. R, 8 Q. B. 202,
at p. 208, says : *' We quite agree, that where a contract is to
do a thing which cannot be performed without a violation of
the law, it is void, whether the parties knew the law or not
But we think, that in order to avoid a contract which can
be legally performed on the ground that there was an in-
tention to perform it in an illegal manner, it is necessary
to shew that there was the wicked intention to break the
law; and, if this be so, the knowledge of what the law is
becomes of great importance. * * And it seems to us
that the mena rea is as necessary to avoid a contract,
which can be legally performed, because when it was made
it was with the object of satisfying an illegal purpose, as
it is to render the parties criminally liable."
So far as the case is applicable, it does not assist the
plaintiff*, for here both makers and payee knew that they
were contracting with regard to a patent right, and no
words on the note would have given more perfect notice,
and there could be no " wicked intention" as between them-
selves in not having the words written or printed on the
face of the notes.
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XIX.1 GIRVIN V. BURKE. 207
Then again, I think, so far as Girvin is concerned, he Judgment,
waived any benefit, if any he had under the statute, by R^g©, J.
giving the new notes under the written agreement of the
26th of November, and cancelling the notes on the 8th of
November, the first notes having the prescribed words
printed across their face.
It seems clear that such a benefit may be waived. I
refer to the 5th ed. of Broom's Legal Maxims, at p. 699,
under the head "quUibet potest renundare juri 2>to se
introductOy' and to the cases there referred to.
There must be judgment dismissing the plaintiff's action
with costs, and for the defendant on his counter-claim
against the plaintiffs for the amount of the notes, and inter-
est since they became due, common items to be taxed only
once.
In Michaelmas Sittings 1889, a motion was made to the
Divisional Court to set aside the judgment entered for the
defendant and to enter judgment for the plaintiffs.
In Hilary Sittings, February 8, 1890, Aylesivorth, Q. C,
supported the motion : The notes are invalid not having
the words "given for a patent right" written or printed
across their face before they were issued. Sections 12, 13
and 14 of R. S. C. ch. 123, shew that unless these words
are so written or printed the notes cannot be enforced.
Section 12 provides that this shall be done before the
notes are issued, and a note is issued when it is made and
delivered. Section 13 provides that the endorsee or other
transferee who takes such note with these words being
written or printed across them takes it subject to any
defence, eta, which would have existed between the orig-
inal parties; and section 14 provides that every one
issuing, selling, or transferring by endorsement or deliv-
ery any such instrument not having the prescribed words
thereon is subject to indictment. Where the doing of
an fikct renders the party liable to indictment the act itself
cannot be civilly enforced : Anson on Contracts, 5th ed.,
180. This Act is similar to a Pennsylvania Act except that
Digitized byLjOOQlC
208 THE ONTARIO REPORTS. [VOL.
Argument. the words used in the latter are " take, sell or transfer,"
while our act uses the words " issue," etc. The cases decided
under the Pennsylvania Act shew that there is no liability :
EaskeU v. Jones, 86 Penn. 173; Palvier v. Minar, 15 N.
y. Sup. Ct. 342. See also Bensley v. Bignold, 5 B. & Ad.
335; Little y. Poole, 9 B. & C. 192 ; Melliss v. Shirley
Local Board, 16 Q. B. D. 446, Chalmers on Bills, 4th ed.
90. Attorney General v. Birbeck, 12 Q. B. D. 605 ; Gard-
Tier V. Walsh, 5 E. & B. 83, 89; Pollock on Contracts, 4th
ed. 253, 255. There was no waiver. The act being a mis-
demeanour could not be waived merely by conduct, but,
even if there was a waiver as to Burke, certainly there
was none as to Spence.
Mackdcan, Q. C, contra. The object of sections 12
and 13 of R. S. C. ch. 123 is to provide that the endorsee
or other transferee of a note given for a patent right
should take the same subject to any defence or set-off
which would have existed between the original parties, and
to fully secure this object section 14 was passed. It never
could have been intended that the person for whose benefit
and protection the Act was passed should be liable to in-
dictment for a misdemeanour if he did not avail himself of
the benefit of the Act. The principle is well established
that those for whose benefit an Act is passed may waive
its provisions : Markhara v. Stanford, 14 C. B. N. S. 376;
Rumsey v. North Eastern R, TT. Co. 14 C. B. N. S. 641
653 ; Grafuim v. Ingleby, 1 Ex. 651. The words " every
one who issues " any such instrument, cannot possibly in-
clude the person to whom the note is issued. To hold this
would be equivalent to saying that the maker of a note
includes the payee. The words ^'issues, sells or transfers
by endorsement or delivery,'* are to be read together and
must be taken to relate to any transfer by a buyer or
other holder, the object being to make the note subject in
the hands of the transferee to any defence which would
be open between the original parties : Graff v. Evans, 8
Q. B. D. 373, 377; Lamb v. Brewster, 4 Q. B. D. 220, 224.
The true construction of the statute is that the payee or
Digitized byVjOOQlC
XIX.] GinVIN V. BURKE. 200
holder of the note must not issue, sell or transfer it by Judgment,
endorsement or delivery unless before doing so he has the MacMahon^
said words so written or printed. ^'
March 8, 1890. MacMahon, J. :—
We have merely to consider the legal question raised by
the rule as to the effect of the statute.
The only part of the notice of motion we were called
upon to consider was that asking that the judgment on the
counter-claim in favour of Burke on the notes should be set
aside, and toenter judgment in favour of Girvin andSpence
on the counter-claim and for a return or cancellation of the
notes, upon the ground that they are invalid and of no effect
because the words **given for a patent right" were not
written or printed across the face of the notes before they
were issued.
In the judgment of my brother Hose, he, I think, clearly
interprets what was the object of the Legislature in requir-
ing the words "given for a patent right," to be written or
printed prominently and legibly across the face of such
notes: viz., to givcthe indorsee or transferee notice and to
put him " in the position of ])ayee as to any defence which
the maker may have against a claim by the payee."
The 14th section of our Act. R. S. C. ch. 123 (passed in
188*) contains a provision in terms similar to an enact-
ment of the Legislature of the State of Pennsylvania,
passed in 1872, and embodying the penal clause as to fine
and imprisonment for contravening the Act.
The only appreciable difference in the two enactments
is as to the penions affected by the penal clauses, and who
may be indicted for a misdemeanour under either Act. In
the Pennsylvania Act, the clause reads : " If any person
shall take, sell or transfer any promissory note or other
negotiable instrument not having the words ' given for a
patent right,* written or printed, legibly and prominently
on the face of such note or instrument, * * shall be
deemed guilty of a misdemeanour." In our Act the 14th
27— VOL. XIX. O.R.
Digitized byVjOOQlC
J.
210 THE ONTARIO REPORTS. [VOL.
Judgment, section provides that, '* Every one who issues, sells or
MacMahon, transfers, by indorsement or delivery, any such instru-
ment," (bill of exchange or promissory note, (sec 12) "not
having the words * given for a patent right,' printed or
written " ♦ * " is guilty of a misdemeanour," frc
In Pennsylvania it is only the person who shall ** take
sell or transfer," who comes within the penal clause, while
ill Canada the person who issues, as well as those who sell
or transfer, may be indicted.
" Issue means the first delivery of a bill or note complete
in form to a person who takes it as a holder : " Chalmers,
on Bills, 3rd ed. p. 6. See also Attoi-ney-General v.
Birkbeck 12 Q. B D. 605, at p. 610.
The notes are made by Girvin and Spence, payable to
the defendant Burke, or bearer, so that immediately upon
the delivery of the notes to Burke, they were " issued."
However, the maker as between himself and the payee,
could raise the same defences to the notes whether the
words prescribed by the statute were omitted therefrom,
or contained thereon. Being designed for the maker's
protection as against transferees for value from the payee,
the prescribed words might be omitted at the pleasure of
the maker without making him amenable to the penal
clauses contained in the 14th section of the Act.
Having to put the interpretation which we have, and
which is the obvious design and effect of the sections of
the Act referred to, the use of the word " issue," in the
14th section, is unfortunate, as in its ordinary meaning it
applies to the maker of a note who has delivered it to the
payee.
The effect of the Pennsylvania statute was considered in
Haskell v. Jones, 86 Penn. 173, where Mr. Justice Shars-
wood, in delivering the opinion of the Court, said at p. 175 :
"By the express provision of the statute, the only effect of the
insertion of such words" ('given for a patent right*) "is that
* such note or instrument in the hands of the purchaser or
holder shall be subject to the same defences as if in the
hands of the original owner or holder.' By necessary im-
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XIX.] GIBVIN V. BURKE. 211
plication, notes without such words inserted in them, Judgment,
remain on the same footing as before the Act. The sole MacMahon,
object of the Legislature was to secure, as far as could be
done consistently with the rights of innocent third persons,
that notice of the consideration should be given to all who
should take the paper. Nothing is better settled than that
between the original parties to a note given for a patent
right it is a good defence to shew that the alleged patent
right is void ; in other words, that it is no patent right at
all, and that the consideration has therefore entirely failed."
The motion fails and must be dismissed with costs.
Galt, C. J., and Rose, J., concurred.
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212 THE ONTARIO REPORTS. [VOL.
[CHANCERY DIVISION.]
Cameron v. Walker.
LimUation of actions — Hwtbnnd arid wif& — Benwval of disaJbUity of cover-
ture—H. 6'. 0., ch. Ill J 8ec8, 4, 4S—2"iilt by posaes8i(/ti — BigfU of
entry — Mortgagor- barrtd, mortgagee not.
A husband and wife were married in ]841. In 1865 the wife acquired
three adjoining lota of land by conveyance from a sti anger. The
defendant was put in possession of the lands in 1869 by the husband,
and in 1870 one of the lots was conveyed by them to him. In 1881 the
husband and wife mortgaged the uncouveyed lots which were afterwards
purchased by the plaintiff at a sale under the |:ower of sale in the
mortgage. The defendant remained in possession of all the lots until
1888. Jn an action of trespass : —
Held (in this afiiiming the judgment of Rose, J.), th&t the wife's dis-
ability of coverture having been removed in 1876 by 38 Vict. c. 16, sees.
1 and 5 (R. S. O. ch. Ill, sees. 4 and 43), the Statute of Limitations ran
against her from that time, and that the defendant had acquired a good
title by possession against her : —
Held, however, that a new right of entry accrued to the mortgagee, and
that the Statute did not commence to run against him until (as the
earliest possible period) the time of the execution of the mortgage, lesa
than ten years before action, and that the plaintiff claiming under him
was entitled to succeed.
SemblCf per Ferguson, J. The plaintiff, as purchaser under the power of
sale, acquired a '* new title " at the time of such sale, at which time
the Statute began to run against him.
The effect of the ** Married \Voman's Property Act, 1869," as to property
not excepted thereby, is that all interference on the part of the husband
during their joint lives is ended.
Statement. This was an appeal from the judgment of Rose, J., in
an action of trespass brought by Alexander Cameron^
against George Walker for breaking down a fence between
lots 43 and 44, in the village of Portsmouth.
The plaintiffs claimed title to lots 44 and 45 as a pur-
chaser under a power of sale in a mortgage made by
Jane H. Gardiner and J. C. Gardiner, her husband,
dated in December, 1881.
The defendant claimed title to lots 43, 44, and 45 by
possession.
The action was tried at the Assizes, held at Kingston
on October 9th, 1888, before Rose, J.
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XIX.] CAMERON V. WALKER. 213
G. M. Macdonell, Q. C, for the plaiutiff. Argument
/. Mcltityre, Q. C, for the defendant.
The evidence showed that all these lots belonged to
Jane H. Gardiner, she having acquired them in 1865, and
that her husband, J. C. Gardiner, had put the defendant
who was a. son-in-law in possession in 1869 ; and that
the defendant had inclosed all three lots within one fence,
and built a hoase on lot 43, and had occupied all three ever
since, Jane H. Gardiner gave the defendant a deed of lot 43
(in which her husband joined) on March 7th, 1870. She and
her husband made a mortgage of lots 44 and 45 in 1881,
and the plaintiff was the purchaser of those lots under the
power of sale in the mortgage. J. C. Gardiner, the hus-
band, died in 1884. When the plaintiff purchased, he put
up a fence between lots 43 and 44, which the defen-
dant pulled down. It also appeared that when notice of
sale under the mortgage was given to Jane H. Gardiner,
that the defendant went to the mortgagee's solicitor's
office and offered him $oi) for lots 44 and 45.
The learned Judge gave the following judgment :
May 13, 1889. Rose, J. :—
The plaintiff proved a paper title. The defendant relied
upon a possessory title. He, the defendant, in the fall of
1868, married the daughter of James Cornelius and Jane
Harriet Gardiner, and in the Spring of 1869, went into
possession of lots 43, 44?, and 45 — 45 being the land in •
question, enclosing the three lots by a fence. On the 7th
of March, 1870, the defendant received a deed from the
Gardiners of lot 43. I think the defendant has proved
open and continued possession from the Spring of 1869
down to the commencement of the action.
It was argued that there was a break between Mathew-
sonand Moore,* but this was not much pressed, and on
the facts, I think there was not. The law may be found
in Harris v, Mudie, 7 A. R. 414, and T/ie Trustees, dkc, v.
Shod, 13 App. Gas. 793.
* Two tenants of a hoose on the premises. — Rbp
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214 THE ONTARIO REPORTS. [VOL.
Judgment J do not think there was any abandonment of possession
j^^j^ J while the house remained unoccupied for the purpose of
repairs.
It was further argued that what took place in the oflSce
of the plaintiff's solicitors, between the defendant and ¥r.
Mudie, estopped the defendant from setting up the claim;
but even if the mortgagee had been the plaintiff*, I do not
think the facts proved bring the case within the principle.
See Willmott v. Barber, 15 Ch. D. 96, at p. 105, which is
very much in point. I think, moreover, the plaintiff" is
not in a position to avail himself of any estoppel on such
facts, even if the mortgagee could. The late decisions in
our own Courts are not in the plaintiff"s favour.
It was also urged that, as Mr. and Mrs. Gardiner
married some time prior to 1848, and the title to the
property was acquired some time prior to 1868, the exact
dates weni not stated, but the events occurred prior to the
years named, the defendant could not acquire a title by
possession during the husband's life-time.
Mr. Gardiner died on the 7th of July, 1884 ; Mrs. Gard-
iner is still alive. If Mrs. Gardiner could have brought an
action in her husband's life-time, then 38 Vic. ch. 16, sees.
1 and 5, (O.,) probably has given the title to the defendant :
more than ten years prior to the action having elapsed,
since he took poss(;ssion. See same section in R. S. 0.
1887, ch. Ill, sees. 4 and 43, by the effect of which
coverture has disappeared as a disability, varying the law
which was in force prior to 38 Vic. (0.)
Having regard to the opinion I expressed at length in
Hicks V. Williams, 15 O. R. 228. and the effect of the 38th
Vic. (O.), I think I must hold that the coverture of Mrs.
Gardiner did not prevent her bringing an action, and so
the statute ran in the defendant's favour unless prevented
by some other fact or facts.
One other fact contended for is, that the defendant
became either tenant at will to Mr. Gardiner, which ten-
ancy Mrs. Gardiner had no power to determine, or that he
became tenant under an agi-eement to pay taxes, and
having paid the taxes from time to time until the date of
the bringing of the action, the case is brought within
Finch V. Gilray, 16 O. R 393.
Upon refening to the evidence, I find that the defendant
stated that he obtained possession from both Mr. and Mrs.
Gardiner. This, I am inclined to doubt, as his detailed
statement to Mr. Mclntyre, in his examination in chief.
Digitized byVjOOQlC
XIX.] CAMERON V. WALKER. 215
shews that he was put in possession by Mr. GarHinor, and Judgment,
so if the question were material, I should be obliged to r^^T^
find.
As to the question of taxes, I find no evidence of any
agreement to pay taxes. They were paid by the defend-
ant or his tenants, but so far as the evidence discloses
without any agreement.
Having regard to the evidence of Mr. Mudie, to which I
give full credence, and the admission of the defendant,
that at the time he offered the $50, he stated it to be the
full value of the land — I find the fact to be that he offered
to purchase the land, making then no claim. But this,
under McGregor v. LnRuah, 30 U. C. R. 299, at p. 307, will
not avail if the defendant has shewn a title by possession
prior to such offer. In that case, Richards, C. J., said,
*' The offer by defendant to purchase, referred to by Mr.
Cameron, would only be evidence to go to a jury when a
defendant really had no title, or pretence of title ; it could
never defeat a good title."
I have considered the effect of the holding that the de-
fendant was put into possession by Mr. Gardiner. This at
most in any event constituted the defendant tenant at
will, and he became at the end of the year tenant at suffer-
ance : sec. 4, sub-sec. 7. ch. Ill, R. S. 0. 1887, when Mrs.
Gardiner could have brought her action.
Thus with every desire to assist the plaintiff* and pre-
vent the dishonest acquisition by the defendant of this
property, to which it is clear to my mind, it was never
intended that he should become entitled, Jis is evidenced by
the deed to him of one lot onl}', and the subsequent mort-
gage by Mr. and Mrs. Gardiner, I am unable to rest a
finding for the plaintiff^ against the defendant s contention
of a prescriptive title on any solid ground.
I am unable to apply Mr. Macdonell's argument as to
the necessity for corroboration of the defendant's evidence
as to the mode of taking possession, as I have accepted his
statement as to that, to found upon it an argument against
him so far as it would apply, i. e., that a tenancy at will
was established.
There must be judgment for the defendant, dismissing
the action with costs.
From this judgment the plaintiff' appealed to the
Divisional Court, and the appeal was argued on June
18th and 19th, 1889, before Boyd, C, and Ferguson, J.
Digitized by VjOOQIC
21() THE ONTARIO REPORTS. [VOL.
Argument. Q^ M. Macdonell, Q C, for the plaintiff. The question
is: Has defendant acquired title by possession ? Whs the
title barred prior to the date of the mortgage ? The party
who put him in possession is dead, and there was not
sufficient corroborative testimony under R. S. O., eh. 61,
sec. 10. The plaintiff is an assignee of a deceased person.
Gardiner died in 1884. [Mclntyre, Q.C.— But Mrs.
Gardiner is alive, and it was her land.] [Bo\'D, C. — The
husband was simpl}' tenant by the curtesy initiate when
he died. He could not grant for his life. You are not
therefore the assignee of a deceased person. You are not
seeking to recover on the strength of his estate, but of his
wife who is alive.] We got an estate from him which
lasted until his death in 1881*. The defendant must prove
the husband had no title in 1881, when the mortgage was
made ; that it was gone by virtue of the possession from
1869 to 1881. The ten years limit was introduced by 38
Vic. ch. IG (0.) to take effect July 1. 1876. This case is
governed by the old law. The husband had complete
control : Edwards & Hamilton, Law of Husband and Wife,
p. 91 ; Jampaon v. Pttcliers, 13 Sim. 328 ; Fumess v.
Mitchell, 3 A.R. at p. 512. Sub-sec. 7 of sec. 5 R.S.O., ch. 1 1 1.
shews when time commences to run in the case of a tenant
at w^ill. There was a new tenancy here, commencing with
the deed of March 5, 1870 : Re Defoe, 2 0. R. 623. The
case is governed by sub-sec. 11, sec. 5, R. S. O. ch. 111.
The wife had no independent rights until her husband s
death. The defendant is estopped : Re Allison, 11 Ch. D.
at p. 290. See also Wood v. Seely, 32 N. Y. 105 ; Bigelow
on Estoppel 3rd ed. 517; Nivenv. Belknap, 2 Johns (N. Y.)
572; Herman on Estoppel 1064 ; Favill v. Roberts, 50 N. Y.
222.
/. Mclntyre, Q.C., for the defendant. There was a
discontinuance of possession in 1869, when defendant was
put in possession, and he now has a title by possession :
R. S. O., ch. Ill, sec. 5, sub-sec. 1 ; Doe Perry v. Henderson
3 U. C. R 486; Keffer v. Keffer, 27 C. P. 257; Tlie
Western Canada Loan Co. v. Garrison, 16 O. R. 81.
Digitized byVjOOQlC
IIX.] CAMERON V. WALKER. 217
Coverture is no disability against the wife: Hicks v. Argument.
WUliams, 15 O. R. 228 ; Jampson v. Pitcliers, was a case
where husband and wife had joined in a conveyance which
was not binding on the wife. See also Farquhavson v.
Morrow, 12 C. P. 811 ; 1 Sugden on Vendors and Pur-
chasers, 8th Am. ed. 389. I also refer to Willmott v. Bar-
ber, 15 Ch. D. at p. 101; McGregor v. La Rush, 30 U. C. R,
299.
Macdonell, Q. C, in reply.
The case was further argued* before the same Judges
sitting in Divisional Court on February 20th, 1890.
6r. M. Macdonell, Q. C, for the plaintiff. The giving of
the mortgage to a stranger in December, 1881, by Gardiner
and his wife, was an interruption of the time. The time
runs from the default on the mortgage, and every payment
is an admission of title and makes a new starting point
The sale of the land operated as a payment. I refer to R.S. 0.
ch. Ill, sec. 22; Doe d. Palmer v. Eyre, 17 Q.B. 3G6; Doe d.
Jones V. Williams, 5 A. & E., at ]). 297 ; Greenwood's Real
Property Statutes, 2nd ed., p. 16; Doe d. Baddeley v. Mousey,
17 Q. B. 373 ; Dart on Vendors and Purchasers, 6th ed., 436;
Hooker v. Morrison, 28 Gr. 369 ; BrockeUiurst v. Jessop,
7 Sim. 438; Chinnery v. Evans, 10 Jur. N. S. 855; 11
a L C. 115.
/. Mclntyre, Q. C, for the defendant. If sec. 22, R. S. 0.
ch. Ill, was not passed, then sec. 4 must govern. De-
fendant was in possession from 1869 to 1888. Section 22
does not refer to an acknowledgment of title, but to a
payment. The letter of the Act must govern and if no
payment was made the time runs : Leith's Blackstone, 2
ed., 445, and case there cited ; Ford v. Ager, 2 New R.
366. In Hooker v. Morrison, 28 Gr. 369, and Chamber-
lain V. Clark, 28 Gr. 454, there were payments made.
*Jadgment was given on the argument above, when application was
maiie and leave granted to argne the farther point as to the effect of the
giving of the mortgage at this Divisional Court, and the judgments were
recalled.— Rep.
28 — VOL. XIX. O.K.
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218 THE ONTARIO REPORTS. [VOL-
Argument. There was no payment here. The giving of the mortgage
is not suflScient.
Macdonell, Q. C, in reply.
March 8, 1890. Boyd, C. :—
In Jones v. Davies, 5 H. & N., at p. 779, the question
was passed upon, as to the nature of the husband's estate
in his wife's lands by the curtesy after issue bom and
before the wife's death. Pollock, C. B., refere to Coke as
saying that four things do belong to an estate of tenancy'
by the curtesy — namely, marriage, seisin of the wife, issue^
and death of wife. And, again, he says : " That albeit the
state (of tenant by the curtesy) be not consummate until
the death of the wife ; yet it has such a beginning after
issue had in the life of the wife, that it is respected in law
for certain purposes." And he calls this estate a tenancy
by the curtesy * initiate,' and not 'consummate.* He also-
mentions the purposes for which such estate is considered
in law to exist during the life of the wife ; such as doing
homage to the * lord and avowry.' The Chief Baron thea
proceeds thus : ** According to this high authority then, it
would seem that until the wife's death, when the estate
would be consummate, the husband woAld only be the
tenant by the curtesy for certain limited purposes. * *
We see no reason * * for holding that the husbands
during the wife's life, is tenant by the curtesy for any
further pui-poses than those which he enumerates." With
this conclusion the Exchequer Chamber agreed : Wight-
man, J., saying : " It is only upon the death of the wife
that the husband becomes tenant by the curtesy in the
proper sense of the term. * * During the life of the wife
he is only what is called tenant by the curtesy initiate,
and, as such, is respected in law for some purposes, * *
but he is not tenant by the curtesy * consummate,* so as to
give him a separate and independent estate of freehold
until the death of the wife." S. a, 7 H. & N. 508. 509.
The property now in question was acquired by the wife
Digitized byVjOOQlC
XIX.] CAMERON V. WALKER. 219
from a stranger to the marriage in 1865. That marriage Judgment,
was in 1840, and the husband gave the defendant possession Boyd, C.
of the land in 1869, and in 1884, predeceased his wife.
To this state of facts applies the second section of the
statute of 1859, relating to married women ; (22 Vic. ch.
34). By virtue of that section, the wife had secured to
her this land, free from the control or disposition of the
husband in as full and ample a manner as if she were sole
and unmarried ; any law, usage, or custom to the contrary
notwithstanding. Standing alone, the effect of this might
be to sweep away all rights appertaining to the husband as
tenant by the curtesy, whether consummate or initiate.
By the 4th section, there is the saving proviso that no con-
veyance or other act of the wife shall deprive the husband
of any estate he may become entitled to as tenant by the
curtesy ; and by the 16th section she can devise land, but
not so as to deprive the husband of any right he may
have acquired as tenant by the curtesy. The effect of the
whole is to leave the husband in the enjoyment of the
estate after the death of the wife, which is properly desig-
nated that of tenant by the curtesy, but to divest him of
any estate (as by curtesy initiate or by marital right)
theretofore enjoyed during their joint lives. The inchoate
estate is, practically speaking, contingent till the wife's
death, and cannot be regarded as vested except for certain
purposes belonging to a system of obsolete law, and it
appears not to have been the intention of the Legislature
to preserve that incipient title, but to have respect to it
only, when like dower it became consummated by the oper-
ation of death in severing the marriage. The effect of
the act is to equalize the condition of husband and wife as
to the property possessed by each during their joint lives.
If this be a correct exposition of the law, then the husband
in this case had no right or authority of his own motion
to put any one in possession of his wife's land. It was
hers during the marriage to have, hold, and enjoy free
from his control or disposition. Whether she concurred or
did not concur in what was being done, the time con-
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-220 THE ONTARIO REPOUTS. [vOL.
Judgment, templated by the Statute of Limitations began to run
Boyd, C. against her upon the removal of her disability to sue by
reason of coverture, which was on the Ist July, 1876,
38 Vic. ch. 16, sees. 1, 5, IG, (O.). Failing any assertion
of right on her ])art, the parliamentary title of the defend-
ant to the land, would appear to be complete in July,
1886, so far as this aspect of the case is concerned.
I do not think that any act or representation of the
defendant is in evidence, which could so operate, whether
by estoppel or otherwise, as to change to the plaintiff the
estate if it was already vested in the defendant.
If the old law as to the status an I rights of a husband
after the birth of issue in respect of his wife's land had
been left intact by legislation, I should have been forcibly
impressed in favour of the view that the wife's right
to recover was not affected by the Statute of Limitations.
By that law, it would seem that the husband, as tenant
by the curtesy initiate, might lease his wife's lands
during his own life, and that as against him or his
tenant, the wife would have no right of entry. See
Crabb's Ileal Property, vol. 2, sec. 1091, p. 107, and the
adverse criticisms passed upon Doe d. Corbyn v. Braniston,
3 A. & E. 63, by able lawyers, in 1 By thewood's Conveyanc-
ii*g, by Sweet, 3rd ed., p. 38, and in last ed., (4th), p. 37, the
same observations are continued, and in Bright's Law of
Husband and Wife, p. 181.
If the wife had no right of entry as against the defend-
ant till the husband's death in 1884, then the action would
be effective as regards the time limit. But as I have con-
cluded that all interference on the part of the husband
during the joint lives is ended by the first Married
Womans* Act in the Province, this line of decision is no
longer available.
After communicating our conclusions on the case as
argued, the plaintiff sought a further hearing U|)on a point
not specially adverted to by him — viz., touching the effect
of the mortgage made by the owners in 1881. Upon
this, further argument was permitted, and the conclusion
Digitized by VjOOQIC
XXI.] CAMERON V. WALKER. 221
we have reached has heen treated at some length by my Judgment
brother Ferguson. It will not be needful for me to do Boyd~c
more than state shortly my view of the law on this head.
The plaintiff's title is derived from a conveyance under
the power of sale contained in a mortgage made by the
owners in 1881. Assuming that the right of entry accrued
forthwith under the mortgage upon its execution, that
would be the point of time from which the statute would
begin to run, as against those claiming under the mortgage ;
and this action is in time, unless the defendant can rely
upon his possession prior to the making of the mortgage.
It has been taken for granted in expressions used in some
eases, (though not so decided) that if the statute has begun
to run in favour of the occupant prior to the owner mort-
gaging the property, it will continue to run as against the
mortgagee. But the decision in Heath v. Pugh, G Q. B. D.
345, and 7 App. Cas. 235, has placed in clear light
the relations of mortgagor and mortgagee, and since the
Judicature Act, the equitable doctrine prevails.
By that doctrine, the conveyance of the legal estate to the
mortgagee was regarded merely as security for a debt, and
upon the jnortgagee's death, both debt and security passed
to the executor. The interest in the land is not in the mort-
gagee, but remained in the mortgagor. Possession might
be taken by the mortgagee upon default, but that is a
very distinct and different thing from possession as owner
of the estate. The title of the mortgagee is an equitable
title ; the right of possession upon that mortgage title
first accrues after the making of the mortgage ; and the
Statute of Limitations quoad possession of the land, can
only run as from that time.
The right of entry exercisable by the mortgagee, is a
very different and distinct thing from the right of entry
still remaining in the mortgagor. If, before this right of
entry under the mortgage is barred b}' the statute, proceed-
ings are taken to foreclose or sell under the power of sale
contained in the mortgage, the completion of such fore-
closure or sale vests a new absolute title as owner in the
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222 THE ONTARIO REPORTS. [vOL.
Judgment, then holder of both legal and equitable estates reunited,
Boyd, O. from wliich would arise a new point of departure in the
running of the Statute of Limitations against any occupant
of the land.
The right to proceed in equity on the mortgage would
first accrue after the making of the mortgage, and as soon
as default arose, and it is an eminently reasonable con-
struction to give to the Statute of Limitations that the
right to enter upon the land first accrues to the mortgagee
at the same time. Such is the construction to be found in
Mr. Brown's Commentary on the Statute, 1 Vic. ch. 28,
(which is in effect reproduced in R. S. 0. ch. Ill, see. 22).
He says at p. 451, (" Limitations") : " Where, since this
statute, the mortgagee is entitled to enter immediately
upon the execution of the mortgage deed, and no interest
has been paid, the right of the mortgagee first accrues on
such execution." Of course, in cases where the occupant
has acquired title by length of possession before the mort-
gage, the making of the mortgage passes nothing to the
mortgagee ; but such is not the case in hand.
Judgment should, therefore, go for the plaintiff with
costs.
Ferguson, J. : —
Gardiner and his wife were married prior to the year
1848 — it was said in the year 1841. The property was
conveyed to her by a stranger (Ross) in the year 1865. It
would be unreasonable to suppose in the absence of evi-
dence on the subject, that there was any maniage contract
or settlement aff*ecting this property. The marriage and
the acquisition of the property being both before the pass-
ing of the Act of 1872, the Act that applied to the case,
was the Act known as the Married Woman's Property Act
of 1859. The 4th section of that Act preserved to the
husband any estate that he might become entitled to as
tenant by the curtesy notwithstanding any conveyance or
other act of the wife. The 16th section preserved to him
Digitized byVjOOQlC
ilX.] CAMERON V. WALKER.
any right that he might have acquired as tenant by the Judgment.
curtesy, notwithstanding a devise or bequest by her. ThcFer^^^J.
wife is still living.
In the year 1881, she made a mortgage of the property.
In this mortgage the husband joined as a granting party.
In it was contained a power of sale under which the
property was sold and the rights imparted by such sale
have through conveyances come to the plaintiff, it being
admitted that he, the plaintiff, now shows a good paper
title.
In 1869, the defendant was put into possession by the
husband Gardiner, and not by the husband and wife. So
finds the learned Judge. Gardiner, the husband, died in
1884.
This property could not have been reduced to the
possession of the husband on the 4th day of May, 1859
because neither he nor his wife had it till 1865. Under
the provisions of the 2nd section of the Act, she was in a
position to have hold and enjoy the property free from
his control, &c., in as free and ample a manner as if she
were sole and unmarried, any law, usage, or custom to the
contrary, noth withstanding, unless the reservation respect-
ing curtesy in the Act made this different.
The curtesy seems to be the estate of the husband after
the death of the wife if issue bom, &;c. : Williams on Real
Property, 266, 16th ed. Curtesy is the estate after the wife's
death. It is initiate at the birth of issue that might inherit,
and it is consummated at the death of the wife, and no
entry is necessary to complete the estate: Wharton's Law
Lexicon Tit., " Curtesy of England." The death of the
wife is necessary to make the estate consummate and
complete: Christian's Blackstone, vol. 2, pp. 126, 129,
The death of the wife is the last of the four things abso-
lutely necessary to consummate the tenancy or estate by
tie curtesy, and I am of the opinion that what is meant
hy the words, "any estate he may become entitled to as
tenant by the curtesy," in the 4th section is the estate
after the death of the wife ; and nothing but this estate
Digitized by VjOOQIC
224
THE ONTARIO REPORTS.
[vol.
Judgment, can be meant by the right spoken of in section 16 of the
Ferguson, J. Act.
The opposite view, or indeed any other view, would
be antagonistic to the enactinor words of section 2 of the
same Act, for if the husband, by reason of the curtesy
initiate would have a right to the rents and profits, &c., the
wife could not hold and enjoy free from his control as
provided for in this section.
Under the circumstances disclosed, I think the wife had
the right to have, hold, and enjoy the property free from
any right of control by the husband, arising by virtue of
the marriage or by virtue of the curtesy initiate ; and,
assuming this to be so, the fact that the defendant was put
into possession by the husband, took no effect whatever
upon the rights of the wife under the statute, it not being
shown that there was any agency to do the act, or any
consent on the part of the wife.
The defendant has been in possession since 1869. The
full period of twenty years from that time had not expired
before the act of disturbance that gave rise to this litiga-
tion, or before the commencement of this action.
Mrs. Gardiner was under a disability — that of coverture —
until the first day of July, 1876. By the Act that then
came into force as to her and those in her position, this
disability was removed, and there was then nothing, .so far
as I am able to perceive, to prevent her from bringing and
sustaining an action to recover possession of the land from
the defendant. The Statute of Limitations commenced
then I think to run against her and in the defendants
favor.
From this a conclusion had been arrived at affirming
the judgment of the trial Judge, and in favour of the
defendant. It was, however, said that a matter that had
been mentioned but not made the subject of argument had
been overlooked. This was as to the effect of the making
of the mortgage upon the property by Mrs. Gardiner and
her husband, and the sale under the power of sale con-
tained therein, upon the position of the defendant in respect
Digitized by
Google
XIX.] CAMERON V. WALKER. 225
to his contention that the statute had before the commence- Judgment,
ment of this action run in his favour, and the title become Ferguson, J.
extinguished so that he was able successfully to resist an
action for the posse&sion of the land. This question has
now been argued and is to be determined.
In the cise Heath v. Fugh, 6 Q. B. D. 345, the Court of
Appeal by a judgment (afterwards affirmed in the House
of Lords, 7 App. Cas. 235), reversing the decision of the
Common Plens Division, decided that time commenced to
run against the mortgagee, either from the date of the
mortgage deed, or from the day fixed for redemption on
payment of the principal money secured by the deed,
certainly not more than a year afterwards, (there had been
DO possession by the mortgagee ; no payment of principal or
interest to him, nor any acknowledgment of his title,) but
that the time having that commencement could only
run against the mortgage title then vested in the plaintiffs,
and that the plaintiffs having commenced their action of
foreclosure within the statutory period, and in such action
obtained a final order of foreclosure, they thereupon gained
a new and different title which was the title to the land
which they before had not, and that as to this title the
statute then began to run against them, and they had again
the statutorj' • period within which to bring their action
for the recovery of the possession of the land as owners,
which, as is clearly pointed out in the judgment of the
Couii; delivered by Lord Selbome, L. C, is a possession,
entirely different from the possession of a mortgagee,
referring to the remarks of Lord Manners in Blake v. Foster^
2 Ball & B., at p. 403, where that learned judge said "there
can be no two things more distinct or opposite than
possession as mortgagee, and possession as owner of the
estate; nor can anything be more hazardous or inconvenient
than the possession of a mortgagee ; the manner in which
he is called to account is most rigorous and severe."
In this judgment many authorities are referred to, and
the positions and respective titles of mortga;j^or and mort-
gagee very fully considered. Attention is called to the
29 — VOL. XIX. o.R.
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226 THE ONTARIO REPORTS. [VOL.
Judgment, provision of the Judicature Act, whereby a mortgagor
Ferguson, J. entitled for the time being to the possassion of the land,
as to which no notice of his intention to take possession
has been given by the mortgagee, is recognized as having
a right in respect of which it was thought fit that he
should be enabled to sue for possession, &c., in his own
name. The nature of an equity of redemption, is con-
sidered, and quoting from Lord Hardwicke, in Casbome
V. Scarfe, 1 Atk, 603, it is said that it cannot be considered
a mere right, but an estate " whereof there may be a
seisin," that the person entitled to the equity of redemp-
tion is considered as the owner of the land, and a mortgage
in fee is considered as personal assets; that the effect of
an order of foreclosure absolute, is to vest the ownership
of the land for the first time in the person who was pre-
viously a mere encumbrancer : that this is consi Jered as a
" new purchase" of the land, and that it fol lows from this
state of the law, that when the owner of land under an
ordinary decree of foreclosure absolute takes proceedings
to recover possession of that land, he seeks possession of
that which by a title newly accrued has for the first time
become his own property.
The language of our Act, sec. 22, ch. Ill, R S. O. is
substantially the same, excepting the difference as to
the period, as that of the English Act: **Any person
entitled to or claiming under a mortgage of land, may
make an entry or bring an action to recover such land,
at any time within ten years next after the last payment
of any part of the principal money or interest secured by
such mortgage, although more than ten years have elapsed
since the time at which the right to make such entry or
bring such action first accrued."
It was contended that this provision applies to cases
only where there has been such a payment, and that as a
consequence where there has not been such a payment, a
possession of the land by a stranger^against the mortgagor
prior to the making of the mortgage, is a possession to be
reckoned against the mortgagee in ascertaining whetner or
not the statute has run against him.
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XIX-] CAMERON V. WALKER. 227
This contention cannot, however, be sustained The Judgment
clear and pointed words of Lord Selborne who delivered Ferguson, J.
the judgment of the Court of Appeal in Heath v. Pugh, are
entirely against it ; and the judgment in all its paiixs seems
to have been adopted and affirmed in the House of Lords.
In Brown on Limitations, p. 451, the words of the author
jseem to mean the same thing as this passage in the judg-
ment in Heath v. Pugh, and I do not see that it is against
what is said in Mr. Leith's work referred to and relied on
by counsel.
In JDoe d. Palmer v. Eyre, 17 Q. B; 366, it was held that
the mortgagee was entitled to recover, though the mort-
gagor's right of entry within the meaning of 3 & 4 Wm.
IV., ch. 27, had accrued before the mortgage, and was
barred by the statute by lapse of time before the com-
mencement of the action. In delivering the judgment.
Lord Campbell said, at p. 372 : *•' A case may be put where
a person who has occupied as tenant by sufferance necwly
twenty years without payment of rent or writtea acknow-
ledgment might be deprived of the benefit of the Stat-
ute of Limitations by the owner mortgaging the premises
and going on, for a great many years afterwards, pajung
interest to the mortgagee. But it cannot be considered to
have been an object of the Legislature to protect the in-
terest of such a person.'* This case is referred to, and the
principle of it adopted and acted upon in Hooker v. Mor-
rison, 28 Gr. 369. This was, however, a case in which
there had been payments made upon the mortgage. Boys
V. Wood, 39 U. C. R. 495, was a case of a like char-
acter, and at p. 499, the Court said : '* In short, we are of
opinion that the right of entry of the mortgagee * ♦
did not accrue until after the making of the mortgage ;
and as this was within twenty years of the bringing of
the action, the plaintiff is entitled to recover."
A question arose as to whether or not the purchaser
under the power of sale contained in the mortgage whose
rights have come to the plaintiff, was a person "claiming
under the mortgage" within the meaning of this clause in
the statute. This is, I think, answered by authority.
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22» THE ONTARIO REPORTS, [voL,
Judgment. In Doe d. Baddeley v. Maasey, 17 Q. B. 373, the purchaser
Fei^aon, J. paid principal and interest due on the mortgage and took a
conveyance, in which the mortgagor and mortgagee joined,
of the premises and of the mortgagor's equity of redemption
and all the residue of his interest, and it was held that he
was a person claiming under the mortgage within the
meaning of 7 Wm. IV., and 1 Vic. c. 28. In delivering the
judgment, Lord Campbell said : " But, suppose the mortgage
deed contains a power of sale, may the mortgagee not
transfer the same right to a purchaser," and further on, "On
payment of the mortgage money the mortgage ceases to
exist as a security for money ; but the person to whom the
mortgagee conveys his legal interest claims under tlie
^mortgage, aMhoxxgh the equity of redemption should like-
wise be conveyed to him." In the case of Ford v. Ager,
2 H. & C. 279, where counsel had referred to Doe d. Palmer
V. Eyre, and I)oe d, Baddeley v. Alasaey, as being decisive as
to the true construction of the statute he was stopped by
the (>ourt.
The statute I think, commenced as I have said to run
against Mrs. Gardiner upon the removal of the disability^
on the 1st day of July, 187G. At any time for the period
of ten years after that day she could have maintained an
action for possession against the defendant unless after the
making of the mortgage, the mortgagee had given notice
of his intention to take possession, or to enter into receipt
of the rents and profits of the land, (Judicature Act R. S. 0.
sec. 63, sub-sec. 4,) and her action would have been for the
possession of the land as owner thereof (subject to the mort-
gage.)
After the making of the mortgage and defiiult thereon,
the mortgagee could have maintained an action for the
possession, but this would be upon the mortgage title, and
for possession as mortgagee, a possession quite different
from the possession as owner of the land. From the time
at which he could have brought such an action the statute
would run against him, unless there should have been some
proper acknowledgment on pajmeiit of interest or princi-
pal, to take the case out of its operation.
Digitized byLjOOQlC
XIX.] CAMERON V. WALKER. 229
If he, the mortgagee, had brought an action of foreclosure Jadgment.
and obtained a final order therein, according to the decision Ferguson, J.
in Heath v. Pagh, the statute would have again commenced
to run against him at the date of such final order, for then,
for the first time, he would have been in a position to bring
an action for the possession of the land as owner thereof.
Then it would have been that what is called his *'new title"
first accrued as stated in the judgment of Heath v. Pugh.
The mortgagee did not, however, bring the action for
foreclosure, but sold the lands under the power of sale con-
tained in the mortgage, and under the authorities of Heath
V. Pugh, and Doe d. Baddeley v. Maasey, there appears to
me strong ground for saying that the statute first com-
menced to run against the purchaser under this power of
sale, when he so acquired his title ; but, it is not necessary *
to decide this, because, according to the decisions in Doe d.
Baddeleyy, Massey^ond Doe d. Palmer v.Eyreyihia purchaser
** claimed under the mortgage," and his title came to the
plaintifi' ; who, it is admitted, has a good paper title, and
the statutory period of ten years had not elapsed after
the making of the mortgage, and before the commencement
of this action.
The case comes then to this, the defendant has no title
but the possession. The plaintiff has a good paper title,
and although the defendant has been so many years in
possession in fact, the statute did not commence to run
against the title that the plaintifi* now has until (at the
earliest possible period) the date of the making of the
mortgage, less than ten years before the commencement of
this action. The plaintiflT must therefore succeed. The
judgment will, for these reasons, be reversed with costs to
the plaintiff.
Judgment for the plaintiff with costs.
G. A. B.
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230 THB ONTARIO REPORTS. [VOL.
[QUEEN'S BENCH DIVISION.]
Martin v. McMullen et al.
Bankruptcy and insolvency — Assignment for benefit of creditors — B. 8. 0.
ch, 1£4 — Valtung security— Guaranty, construction of.
A deceased person, of whom the plaintiff was executor, gave the defend-
ants a guaranty in respect of goods sold and to be sold to another, in
the following terms : — ** 1 hereby undertake to guarantee you against all
loss in respect of such goods so sold or to be sold, provided I shall not
be called on in any eveut to pay a greater sum than $2,500."
The principal debtor, being indebted to the defendants in 95,500, made an
assignment under R. S. O. ch 124, and the defendants filed a claim with
the assignee but did not in the affidavit proving the claim state whether
they held any security or not. At a later date the plaintiff paid the
defendants the |2,500 and filed a claim with the assignee. The divid-
ends from the estate were insufficient to pay the balance of th&
• defendants' claim : —
Beidy that the guaranty was not a security which the defendants were
required to vidue under the Act, and that the omissiomfrom their claim
of a piece of information which could not affect it did not render it
invalid : —
Heldt also, that this was a guaranty, not of part, but of the whole of the
debt, limited in amount to f2,d00, that is, a guai*anty of the ultimate
balance after all other sources were exhausted ; and the plaintiff was-
not entitled to rank upon the estate in respect of the $2,500, nor to
recover any part of any dividend which the defendants had received.
Sobwn V. Bass, L. R. 6 Ch. 792, distinguished ; and Ellis v. Emmanuel,.
1 Ex. D. 157, foUowed.
Statement This action was tried before Street, J., at the Wood-
stock Spring Assizes, on 14th March, 1890.
The following facts were proved or admitted : On 8th
March, 1888, McGachie Brothers carried on business at
Woodstock, and were indebted to the defendants Ogilvy,
Alexander, & Anderson, wholesale merchants in Toronto,
McGachie Brothers on that day, being desirous of obtain-
ing further goods from Ogilvy & Co., procured Jonathan
Martin to give them a guaranty, of which the following
is a copy :
" Messrs. Ogilvy, Alexandei, & Anderson, Toronto.
Dear Sirs :
In consideration of the goods sold by you on credit to
McGachie Brothers of Woodstock, and of any further
goods which you may sell to McGachie Brothers upon
Digitized byVjOOQlC
XTX.] MARTIN V. ITMULLEN. 231
credit during the next twelve months from date, I hereby Statement.
undertake to guarantee you against all loss in respect of
such goods so sold or to be sold, provided I shall not be
called on in any event to pay a greater amount than
$2,500. You shall have the right to accept and release
collateral securities, to extend the time for payment, take
notes or bills in settlement for goods sold or to be sold,
and renew the same, compromise or compound the said
indebtedness, either during the said period or afterwards,
without notice to me.
J. Martin."
On the 27th May, 1889, McGachie Brothers made an
assignment to the defendant McMuUen, under the pro-
visions of ch. 124, R S. O.
At the time this assignment was made McGachie Bro-
thers were indebted to the defendants Ogilvy & Co. in
the sum of $5,500, or thereabouts. On the 6th June,
1889, they filed with the assignee an affidavit and partic-
ulars of their claim, but did not in this affidavit state
whether they held any security or not. On 7th June,
1889, a meeting of creditors was held pursuant to the
statute, at which a member of the firm of Ogilvy & Co.
attended and voted in respect of the claim so filed, with-
out objection.
The guarantor, Jonathan Martin, died, and the plaintiff
was his executor.
On 26th September, 1889, the plaintiff, as such execu-
tor, paid to Ogilvy & Co. the $2,500 secured by the
guaranty, and filed with the assignee a claim to rank for
that amount upon the estate.
On 7th October,- 1889, Ogilvy & Co. filed with the
assignee an affidavit that at the time of the filing of their
claim they had not, that they now had not, and never had,
any security for their tslaim which they were required or
bound to value undor the statute.
On 10th October, 1889, Ogilvy & Co. served a notice on
the plaintiff contesting his right to rank upon the estate.
On loth October, 1889, the plaintiff brought this action
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THE ONTARIO REPORTS. [VOL.
Statement, praying for a declaration that he was entitled to rank as a
creditor of the estate in respect of the sum of S2,500 paid
by him to Ogilvy & Co. The defendant McMuUen de-
fended the action under the direction of the insi)ectors of
the estate. The defendants Ogilvy & Co. insisted upon
their notice of contestation, and urged that the plaintiff
could not be substituted for them in ranking upon the
estate in respect of the $2,500 paid by him, without pay-
ing their whole claim.
It was admitted that the dividends upon the estate
would not be sufficient in any event to pay the balance of
Ogilvy & Co/s. claim.
The case was argued at the conclusion of the evidence.
S, G, McKay, for the plaintiff, contended that the claim
filed by Ogilvy & Co. on 6th June, 1889, was not in
accordance with the statute, sub-sec. 4, sec. 19, ch. 124,
R. S. O., because no mention was made in it of the guar-
anty ; and it did not appear from the claim, as it should
have done, whether the claimants held security or not ;
that the claim, if proved at all, could not be taken to have
been proved until the filing of the supplemental affidavit
of 7th October, 1889 ; and that before the filing of that
affidavit, their claim had been reduced by the paj'ment of
the $2,500, and was only properly provable for the balance.
Upon the question of the construction of the guaranty
he referred to Hobson v. BasSy L. R. 6 Ch. 792 ; Gray v.
Seckham, L.R. 7 Ch. 680 ; Ellis v. Emmanuel, 1 Ex. D. 1 57.
Gibbons, Q. C. for the defendants, referred to sec. 20 of
R S. 0. ch..l24; Kellock's Case, L. R. 3 Ch. at p. 783;
A'rmstrong v. Drew, decided by Armour, C. J., in Sep-
tember, 1887, (unreported.)
March 21, 1890. Street, J. :—
The guaranty held by Ogilvy & Co. does not appear
to be a security which they were required to value under
the Act. See Ex parte English and American Bank,
Digitized byVjOOQlC
XIX.] MARTIN V. MCMULLEN. 233
L R 4 Ch. 49, and the cases there referred to. They Judgment
were, therefore, entitled to rank for their full claim on street, J.
7th June, 1889, and I cannot hold that the omission from
their claim of a piece of information which could not
affect it, rendered the claim invalid. See Kellocka Case,
L. R. 3 Ch. at p. 783; Eastman v. Bank of Montreal, 10
0. R. 79.
It was then contended on the part of the plaintiff that
the form of the guaranty here was in substance the same as
that in question in Hohaon v. jBass, L. R. 6 Ch. 702. In
that case Jesse Hobson gave to Bass a guaranty as
follows :
" I hereby guarantee to you the payment of all goods
you may supply to Edmund Hobson, but so as my liability
to 3'ou under this guaranty shall not at any time exceed
£250." Bass supplied goods to Edmund Hobson to the
amount of £657. Edmund Hobson then became bank-
rupt. Bass proved for the £057, and then called on the
guarantor, who paid him <£250. Bass then.received a divi-
dend of 28. Id, on the £ on the £657. It was held that
the guarantor was entitled to a part of this dividend bear-
ing to the whole the same proportion as £250 to £G57.
Lord Hatherley in his judgment points out that the
question is whether the guarantor means, " I will be liable
for £250 of the amount which A. B. shall owe you," or "I
will be liable for the amount which A. B. shall owe you,
subject to this limitation that 1 shall not be called on to
pay more than £250." In the former case the surety,
being answerable for a particular part of the debt which
he pays, is entitled on payment of that part of the debt
to stand in the creditor's shoes with regard to it, and to
receive the dividend and rank upon the estate in regard
to it ; in the latter case he is surety for the whole debt,
but his liability is limited, and he is not entitled to rank
until he has paid the whole debt. The distinction is fur-
ther illustrated and all the cases collected in Ellis v.
Emmanuel, 1 Ex. D. 157.
The guaranty in question must be taken to be a guar-
30— VOL. XIX. O.R.
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234 THE ONTARIO REPORTS. [VOL,
Judgment, antee, not of a paiii, but of the whole of the debt due
Street, J. Ogilvy & Co., limited in amount to $2,500, because it
purports to guarantee them " against all loss," that is, as I
read it, a guaranty of the ultimate balance after all other
sources are exhausted. It falls, therefore, within Ellis \\
Errvnianuel, and not within Hobson v. Bass,
There should, therefore, be a declaration that the plain-
tiff is not entitled to rank upon the estate in respect of
the $2,500 paid to Oi^ilvy & Co., nor to recover any part
of any dividend which they have received upon their
debt; and the plaintiff should pay the defendant's costs.
[On the 22nd May, 1890, an appeal from this decision
was argued before the Queen s Bench Divisional Court.
Judgment was reserved.]
Digitized by VjOOQIC
XIX.] REYNOLDS V. JAMIESON. 235
[CHANCERY DIVISION.]
Reynolds v. Jamieson.
Hiuband and w\fe — Action for breach of promise of marriage— Nonsuit —
Rtlease by promisee.
In aa action for breach of promise of marriage the plaintiff's evidence
was that after promising to marry her in 1885, the defendant in March,
1886, visited her and repudiated his promise, whereupon she ordered
him out of her house, and refused afterwards to renew the engagement.
The trial tlndge nonsuited the plaintiff on the ground that this
amounted to an absolute release, and that the relationship between the
parties was terminated.
Htld, that the defendant having previously violated his engagement, the
matter should have been left to the jury, who might have reasoned
that the plaintiff chose to consider the connection at an end, and that
she was not willing to subject herself to the pain and mortification of
being again deceived.
This was an action for breach of promise of marriage, Statement,
brought by Sarah Jane Reynolds against Samuel
Jamieson under circumstances sufficiently stated in the
judgment of Boyd, C, below.
The action was tried at Peterborough on April 23rd,
1889, before Mr. Justice MacMahon and a jury.
At the close of the evidence the following took place : —
Mr, Oder, — I submit there is no case. The promise for which there
is oorroborative evidence ends with her turning him out of the house, it
ends with this : " I ordered him out, he iK'anted the engagement renewed
bat I would not consent to it" So that there is an absolute release there.
There is no action for that promise ; that terminated the relationship
between the parties. He left in March, 1886, and the action which she
brings must be founded on the promise in June following. For that
promise there is no corroborative evidence under the Act. Reading from
her own examination these are the words she consented to in the box
here : " After I ordered him out he wanted the engagement renewed but
I would not consent to it ; I ordered him out of the house, I did not want
to have anything more to do with him ; after I ordered him out he wanted
the engagement renewed but I would not consent to it." I will put in
those extracts so that there wiU be no question about it.
His Lobdship. — I think perhaps that sending out of the house would be
lofficient.
Mr. Osier. — Then the June offer stands by itself altogether without
corroboration, all the circumsfcances indicating that there was no promise
at that time. She says he was bound and she was not. The interview
stands altogether uncorroborated, and the facts remained that he never
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236 THE ONTARIO REPORTS. [vOL.
Statement. came back to see ber from Marcb, 1886, at all, sbowing tbat no relation-
sbip as would take place between engaged parties existed between them.
There was an absolute severance of intercourse between them till the
interview in June which she claims was a new promise, and so it simply
stands with her turning him out of the house and saying she would have
nothing more to do with him, and his never comiug back, and her action
stands on her unaided testimony as to the June interview. Tliere was a
relinquishment in March and there is no new promise under the statute.
So I say there is nothing to go to the jury in the matter.
Mr. Watson. -A^ifix as the March incident is concerned, there is no
evidence of a relinquishment at that time. There was an unpleasantness
arising out of some statements by the defendant, these statements causing
some anger to the plaintiff, but' there is no evidence showing that at that
time she released the defendant from his obligation to her entered into
by the contract. My learned friend will search in vain for any such evi-
dence from her. Leaving the transaction as it was in March we have the
contract proven beyond doubt, and if it went no further there would be
the breach committed at that time, and without an}' relinquishment or
release. What occurred afterwards was by the defendant promising to
marry her at a subsequent time ; tliere was no relinquishment in respect
to the contract preceding that. It was merely fixing different terms for the
marriage. By the contract before, the marriage was to take place in the
spring of 1886. Then the occurrences have been mentioned which caused
Jamieson to think he could not get married then but would have to post-
pone it. After that she consented to marry him if he came along at a
subsequent time ready to marry her. She might have relied at that
time. * *
His Lordship. — What would be the position of the parties supposing
they had corresponded from October to March, and he had gone there and
she had turned him out saying she was not going to have anything more to
do with him, and there had not' been any renewal of the corresp mdence,
wouldn't that be regarded as an exoneration ?
Mr, Watson. — Not an exoneration by her ; it was a breach by him.
His Lordship. — She turns him out of the house where he had been
visiting as an accepted suitor, and no correspondence took place
between the parties during the two years.
Mr. WoUaon. — This evidence from her is to be regarded in view of the
circumstances as they existed at that time. It was not a matter of delib-
eration on her part ; she had not concluded deliberately that she would not
continue the relationship, but at that time she was provoked to anger and
said "leave my house," and it does not go beyond that. I submit there
is nothing in that to show a deliberate act on her part to release the de-
fendant.
His Lordship. — You desire to go to the jury on that promise which
you say continued up to March, and that the promise was broken by
him ?
Mr. WcUaon. — The defendant at that time stated that he had never
agreed to marry her, that he had no idea of marriage with her, and if
Digitized byVjOOQlC
XIX.] REYNOLDS V. JAMIESON. 237
that statement was correct there was a breach committed by him. I Statement.
desire to go to the jury on the breach of the contract existing up to
that time, and also the breach in future.
His Lordship. — Your argument is that it was a continuation of the old
contract that was existing ?
Mr. WaJLsoiu — Entirely, yes. The plaintiff says after overcoming her
anger she was perfectly willing to marry the defendant, and she would
have married him immediately after this Clara was married. Apart
from tbat there is corroboration even in respect to the Jime inter-
view. • *
Mr. Oder, — ^The evidence that is here from her own mouth is incisively
stated in the extracts I have given, and the extracts that I have given
make it quite clear that there was a positive release in March : '*I did
not want to have anything to do with him ; I put him out of the house ;
he renewed his offer to marry me : 1 declined it." It is positively in evi-
dence that on that occasion he wanted to make it up : *' I declined to
have anything to do with him ; I put him out of the house." I put in
those extracts.
Mr. WcUson. — I object to those extracts going in.
Hw Lordship. — Well, I do not think there is anything at all to go to
the jury in this case. I think that the evidence discloses that at that
interview in March 18S6, just at the time when it was supposed that
the plaintiff and defendant were going to marry, that she put an end to
the engagement by ordering him out of the house ; that there was a com-
plete exoneration at that time, the plaintiff threatening to bring an action
for the recovery of damages; that at the subsequent interview in June what
he stated then, as far as we know from the plaintiff's own evidence, is
that he wanted a renewal of the engagement, and she does say that
the engagement was renewed at that time, but she says fihe refused
to allow him to come to the house till after Clara got married, and
she also states that till Clara got married she was under no binding en-
gagement to marry. That was the statement which she deliberately made
before the examiner, and I think she is bouad by it. There was no
renewal of the intercourse between the parties between March, 1886, and
November or December, 1888, when the defendant got married, and from
the non-communication and from her action all through, I think there was
an exoneration of the defendant from all liability in respect of any promise
to be married to her. The action must be dismissed.
Air. WcUson. — Will your Lordship direct a stay of proceedings ?
His Lordship — To jury. After hearing the case presented on behalf
of the plaintiff I concluded that there was not a case to go to you
and therefore the defendant has not been called upon to ei^ter on his
defence, and I have ordered judgment to be entered for the defendant,
dismissing the plaintiff's action with costs.
The plaintiff* now made a motion to the Divisional Court
of the Chancery Livi^ion for a new trial, and the matter
came on for argument before Boyd, C, and Ferguson J. on
June 13th, 1889.
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238 THE ONTARIO REPORTS. [VOL.
Argument Edivards, for the plaintiff.
Douglas, for the defendant,
September 12th, 1889. Boyd, C. :—
' The plaintiff sets up a promise to marry in October, 1885,
and a repudiation thereof by the defendant in March, 1886.
She then avers a renewal of the promise in June, 1886, to
take effect when a certain girl should leave the defendant's
house, and that this engagement continued till November,
. 1888, when the defendant married another woman. The
defendant denies an}^ promise to marry at any time. He
pleads that in March 1886, the plaintiff ordered him to
leave her house (which he had entered on her invitation) and
never to return again. He pleads further, that even if he
did agree to marry the plaintiff that agreement was before
breach ended by mutual consent. This defence in effect
amounts to a plea of rescission by both, and to a suggestion
of a plea that the engagement had been broken off by the
plaintiff in March, 1886. The first promise was proved by
sufficient evidence ; the last rests on the sole evidence of
the plaintiff. Her account of the termination of the first
promise was that in March, 188G, the defendant visited her
and told her, " I never asked you to marry, or came to
marry you, I never wa^ promised to you," whereupon
she got vexed at him and ordered him out of the house-
A part of her depositions before trial was put in, in which
she said, " I ordered him out, he wanted the engagement
renewed but I would not consent to it." Upon this a non-
suit was moved on the ground that this amounted to an
absolute release, and the relationship between them was
terminated. The learned Judge took this view that her
ordering him out of the house amounted to a complete
exoneration of the defendant. I cannot accept this &s a
necessary conclusion to be drawn from the evidence ; it
was a matter proper to be submitted to the jury. If he
put an end to the engagement by saying he had never
asked her to marry and was never promised to her, there
%yas nothing very extraordinary in her asking him to leave
Digitized byVjOOQlC
XIX.] REYNOLDS V. JAMIESON. 239
the house as a "faithless deceiver." Assuming the prior Judjjment
engagement to be well proved, this language of his was Boyd, C.
an insult to which she was not obliged to submit, and '
which might well justify what she admits doing in tell-
ing him to leave the house. But there is evidence of his
having broken the contract before she said this and her
action was one of the consequences resulting from that
breach. In Kraxberyer v. Roiter, a case reported in
60 Am. Rep. 263, it was held that a breach being
proved it was no defence that the plaintiff afterwards
gave up her engagement ring to the defendant. And
in another case by a strong Court of Southard v. Rexford,
6 Cow. (N. Y.) 254 it was held that after a defendant
has once broken his prj^mise his offer to renew it is no
defence to an action for the breach. Applying the
language of the Court in that case to this " she chose to
consider the connexion between them at an end, the def en-
danthaving previously violated his engagement, and she was
not willing to subject herself to the pain and mortification of
being again deceived." So might the jury reason, and
perhaps they would in this case, notwithstanding the age
of the parties and the business-like character of the
whole proceedings. I deal now with the case simply as it
was put by the defendant's counsel and as it was discussed
by the Judge in directing a nonsuit. It is not needful to
go further into the case so as to consider the position of the
plaintiff if her story of a renewal of the engagement at a
later date is believed by the jury. That may depend to a
material extent upon whether the prosecution of the mat-
ter is regarded as a continuation of the original offer or as
a new contract, and it may be found that the defendant has
not aptly pleaded to meet all the exigencies of the situation.
At present I do not see how the case on the evidence
now taken could be withheld from the jury, and for this
reason there should be a new trial with costs to the plain-
tiff, i. e. costs occasioned by moving the nonsuit.
Ferguson, J., I concur in the conclusion.
A. H. F. L.
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240 THE ONTARIO REPORTS. [vOL.
[CHANCERY DIVISION.]
Kennedy et al v. Haddow et al.
Lien^ Mechanic' 8 lien—Prior mortgage— Suhf^equent lien— Increase of
selling vaZue of land— Priority.
Where there is a registered prior mortgage aflfecting land and buildings,
and a mechanic's lien for subsequent work thereon, the mortgage re-
tains its priority to the extent of the value of the security beiore the
work began, iu respect of which the lien attaches, and the lien has
priority only to the extent of the additional value given by the subsequent
improvements.
And where the owner of a mill subject to a mortgage, intending to have
certain improvements effected, which although as regards the work of a
lien holder were fully carried out, were otherwise only partially com-
plete and left the mill in an unfinished state :--
Held^ that the lien holder was not entitled to priority for the work done,
it not clearly appearing that the sellinsj value of the property had been
increased thereby.
Where, in a consent judgment in the usual form in lien cases, a reference
was made to a local registrar of the Court : —
Held, that an appeal lay from his repoi-t, it appearing from the whole
judgment that tne reference was to him as Master.
Statement • This was an appeal from the report of a Local Registrar.
The action was brought by the firm of William Kennedy
& Sons against James Haddow, as owner, and Adam Scott
Elliot, as mortgagee, of certain lands against which the
plaintiffs claimed a mechanic's lien.
The action was tried at Owen Sound on May 7tb, 188!)
before MacMahon, J.
CreasoTy Q.C , for plaintiffs.
A. Frost, for defendant Elliot.
A judgment by consent was given declaring the lien on
the lands as against the defendant Haddow, and directing
^ reference to the local registrar at Owen Sound, with all
the powers of the Ma-ster, to enquire by what amount the
'selling value of the lands had been actually increased by
the improvements caused by the plaintiff's work, etc. It
appeared that the property was a mill, and the plaintiffs
Digitized byVjOOQlC
XII.] KENNEDY V. HADDOW. 241
were employed to chnrge it from a stone mill into a roller Statement,
mill, and the old machinery was removed and certain work
done towards making it a roller mill, but it was not com-
pleted as such.
The Registrar found by his report that the amount of
the selling value of the land had been actually increased
by the improvement caused by the work and materials of
the plaintiffs, and that they were entitled to a lien for the
full amount of their claim.
From this report the defendant Elliot appealed, and the
appeal was argued on March 6th, 1890, before BoYD, C.
C, J. Hblman for the appeal. The evidence shows the
value of the mill was not increased — in fact it was
decreased — by plaintiffs, as it was dismantled, and the
improved machineiy was not put in. The mortgagee gave
no cr:fisent to the change, and the property will not now
realize the amount due on the mortgage. The plaintiffs
have no right to a lien in priority to the mortgage under
the statute : R. S. 0. ch. 126, sec. 5, sub.-sec. 3.
Uoyles, Q.C., contra. The reference was to a local
registrar and there is no appeal as frcm the Master or a
local referee: Kagle v. Latour, 27 C. P. 137 ; Tanner v.
Sewery, 27 C. P. 63 ; Wilson v. Richardson, 43 U. C. R.
365. It was a consent reference : Webster v. HaggaH, d
O. R. 27. The plaintiffs did all their work properly, and
it was no default of theirs that the new machinery was
not provided by the owner. The evidence shows that the
change was a necessity.
Holman in reply. There is a right to appeal, and the
reference could be had to anyone under R. S. O. ch. 44,
sec. 102 : Buims v. Chamberliny 25 Gr. 148.
March 8, 1890. Boyd, C. :—
I overrule the objection that no appeal lies from this
report because the judgment appears to be by con:seut, and
31 — VOL. XIX. O.B.
Digitized by VjOOQIC
242 THE ONTARIO REPORTS. [VOL.
/Judgment. ^\^q reference is to George Inglis, local registrar of the
Boyd, C. Court at Owen Sound. It may be that this officer has not,
at present, the powers of an official referee, and for this
reason the parties may have agreed to his selection as a
special referee under sec 102 of the Judicature Act, but it
is evident from the whole judgment that the reference is
to him as to the Master ; for the usual fonn of judgment
in lien cases is followed : see Holmested, p. 136, form 25,
and upon his report the defendant Haddow is ordered to
pay.
Now, the judgment went by default in Haddow's case
and the Court cannot be intended to have cut him out
of an appeal, if dissatisfied. Nor can it be argued that
the other defendants should not have an appeal — the mat-
ter has been put under reference according to the usual
course of the Court^ — one of the incidents of which is the
right to appeal. None of the authorities cited rule the
point now under discussion.
Upon the merits of the appeal, I favour the contention
of the defendant Elliott. He is first mortgagee, having
priority bj' law upon the mortgaged premises for payment
of bis security, and before he is postponed to the claim of
one who subsequently does work upon the premises it
must be clearly proved that the selling value of the land
has been increased by the work done.
The clause of the Mechanics' Lien Act (R. S. O. ch.
126,) is sec. 5, sub-sec. 3, which means that the extent
to which the selling value of the land has been actually
increased by the improvements being ascertained, that
amount shall have priority to the first mortgage. " Ac-
tually" is a word not found in the statute, but it is
used in the judgment under which this appeal arises
which is framed as I have indicated upon the model in
Mr. Holmested's book (see at p. 138, clause 7).
Now the improvements made here were done in pur-
suance of a plan for turning the stone flouring mill on the
property into a* roller mill, and what was done by the
plaintiffs was only a part of the alterations necessary for
Digitized byVjOOQlC
XIX.] KENNEDY V. HADDOW. 248
this purpose. They made such changes as to take out a Judgment,
great part of the interior fittings and replaced them with Boyd, C.
others suitable for the new project, at an expense of some
$650, but to complete the alterations so as to convert the
mill into a roller mill will take an expenditure of some
$2,500 additional.
The work is partially done so far as the contemplated
alteration is concerned, though the work done by the
plaintifl^ is complete in itself. Still the. actual result
on the ground now is that the mill cannot be used
as a stone mill, which was its former condition before the
plaintiffs intervened: nor can it be used as a roller mill, for
that depends on when the alterations may be completed in
the future.
There appears to be great difficulty inworking this clause
to any satisfactory or reasonable result, unless in cases
where the prior mortgage attaches upon the land alone,
and afterwards buildings or improvements are put upon it ;
and in cases where there is such addition or improvement
by way of alteration of, or repairs to, existing buildings
already covered by the mortgage as gives a distinct and
easily recognized additional value to the property. The
only sound principle of construction which recommends
itself to me is to hold in the case of a registered prior
mortgage affecting land and buildings, and a mechanic's
lien for subsequent work thereon, that the mortgage
should retain its priority to the extent of the value of
the security, before the work is begun, in respect of which
the lien attaches : and that the lien should have priority
only to the extent of the additional value given by the
subsequent improvements.
I cannot read the statute as extending to, or, indeed,
providing for, such a case as the present: the actual result
of the plaintiff s work is to withdraw from the mortgagee
part of his security, and the alteration has not gone to
completion so as to really enhance the saleable value of the
property. For the evidence is most suggestive that the
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244 THE ONTARIO REPORTS. [VOL.
Judgment, place as it now stands incomplete will bring less in the
Boyd, C. market, and is worth less than before it wns touched.
In regard to mortgagees, the Court has always been soli-
citous to protect mortgagors from being improved out of
their property, and it strikes me that under this new law
the Court must be equally solicitous to protect mortgagees
from being improved out of their security. The appeal is
allowed, and it does not appear that any good would
follow from referring it back for further evidence.
G. A.B.
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XIX.] COCEBURN V. BRITISH AMERICA ASSURANCE CO. 245
[QUEEN'S BENCH DIVISION.]
COCKBURN ET AL. V. ThE BRITISH AMERICA ASSURANCE
Company.
iTisuranee — Fire — Interim receipt —Powers of lo«*(d agant— Approval by
compan;f — Indnmemznta on appliccUion — Non-repuliation— Prior in-
surance— Eighth ntcUutorj/ coiiUition — Assent of company — Election not
to acold — Extension,
The plaintiff had for some years insured his mill and machinery therein
with the defendants, the policy having been effected through one of
their local agents, there being also anobher insurance with another
compiny. The plaintiff, desiring additional insurance thereon, signed
an application therefor, for a porcion thereof, throngh the same agent,
on which was an indorsement, of which he was unaware, and to which
his attention was not called, that where steam was used for propelling
purposes the propossd was required to be submitted to the defendants
before the interim receipt was issued. The agent issued the interim
receipt to the plaintiff at the time of the proprisal, as was his practice,
recognized by the defendants. The application, which contained a
statement, without the names of the companies, of the amount of
additional insurances effected elsewhere and also the amount of the prior
insurance, was sent by the agent to the defendants, but was mislaid by
them after they had made from it certain extensions on the policy,
which had also been forwarded to them for that purpose.
About two months after the date of the interim receipt the defendants
wrote their agent declining to continue the risk on the interim receipt,
retaining however the portion of the premium earned, at the same time
re insuring half the risk. Of this the plaintiff was not informed, nor
was any portion of the premium repaid him : —
Mdd^ that the indorsements formed no part of the application signed by
the plaintiff, and that the agent wtvs acting in the apparent scope of his
authority, and was to be deemed primd facie to be the agent of the com-
pany ; and as the defendants never repudiated the contract, but merely
determined to put an end to it and treated it as a subsisting contract,
they were liable upon it.
Under the 8th statutory condition the defendants claimed that they were
not liable upon the receipt because there was prior insurance in another
company and their assent did not appear in and was not indorsed on
the policy, or that they were not liable upon their earlier insurance be-
cause of the subsequent insurance in other companies without their
assent : —
Heldj that the application and the interim receipt constituted the contract
of insurance, and as in this contract the total amount of insurance was
truly stated, and the contract continued to be binding until after the
loss occurred, the defendants must be considered to have assented to
such insurance, and would be compellable to make their assent appear
iu or to have it indorsed on their policy if such policy were issued : —
Hddj also, that the prior iusurance was voidable, not void, and that the
defendants, after the subsequent contract was entered into in which the
total amount of insurance was stated, and after they knew that it was
entered into, had elected not to avoid the prior insurance, but to treat
it as still subsisting by extending it.
wSemA/e, that the defendants, having assented to the insurance stated in
the contract of insurance, could not assert that the effecting such insur-
ance had the result of avoiding the prior insurance effected by their
policy.
Digitized byVjOOQlC
246 THE ONTARIO REPORTS. [VOL.
Statement. This action was brought upon a policy of insurance
made by the defendants in favour of the plaintiffs, dated
26th August, 1886, and numbered 303,029, whereby the
defendants insured the plaintiffs against loss or damage by
fire to the amount of $2,600, as follows : " $750 on his two
storey frame shingle-roofed building, 100 x 60, occupied
as a steam power saw mill, including frame boiler-house
attached, situate at Gravenhurst, on bank of Lake
Muskoka, as per diagram for this assurance ; $1,000 on
fixed and movable machinery, including shafting, gear-
ing, belting, and pulleys while therein, including tools
belonging to and used in connection with said mill ; $100
on force-pump and inspirator while therein; $200 on
boiler and connections therein, including smoke-stacks;.
$375 on engine and connections therein ; $75 on refuse
carriers therein." " Further concurrent insurance, $2,500
Royal." The policy had been renewed from time to time
and was in full force so far as being renewed was con-
cerned, the last renewal receipt being dated the 26th of
August, 1888.
The action was also brought upon an interim receipt
issued by the defendants, dated 4th July, 1888, and num-
bered 20, whereby the defendants insured the plaintiffs ta
the extent of $1,050 " upon mill and machinery as described
in fire application No. 20 of this company," by which
application the said insurance was apportioned as follows:
" On building No. 1 on diagram (including gas, steam, and
water pipes) 100x60 and attachments $150. On machinery^
shafting, gearing, belting, tools, and pulleys (exclusive of
boilers and engines), $750. On the boilers and connections,
including smoke stack, $45. On the engine -and its con-
nections, $52.50. On force-pump and inspirator, $37.50.
On refuse carriers, $15."
The defence set up, amongst others unnecessary to be
stated, was that by the terms of the application upon
which the said interim receipt was issued the application
was required to be submitted to the company for approval
before the receipt was issued, and it never was so submitted
Digitized byVjOOQlC
XIX.] COCKBURN V. BKITISH AMERICA ASSURANCE CO. 247
or approved, and they also set up as a defence the breach Statement.
of the eighth statutory condition applicable to the said
policy and receipt. *
The cause was tried at the Sittings of this Coui-t at
Toronto in the autumn of 1889 by Falconbridge, J.,
and a jury.
It appeared that F. A. Lett & Co. were the agents of
the defendant company, and for other fire insurance com-
panies, and had an office at Barrie^ and one at Alliston,
and through them the insurance granted by the policy
sued on was effected and the application therefor was
drawn ; that there was also an insurance for $2,500 in
the Royal Insurance Company concurrent with the policy
sued on ; that on the 4th of July, 1888, they effected a
fai*ther insurance upon the same property, amounting to
$7,000, distributed as follows : Northern, $1,400 ; Citizens,'
$1,400 ; Caledonian, $2,100 ; Royal, $1,050 ; and defendants,
Sl,050 : that the Citizens' aftei'wards refused the risk, and
the Lancashire was substituted for the Citizens' : that the
application to the defendants was drawn by F. A. Lett
& Co., and signed by Isaac Cockburn, the plaintiff, per
F. A. L., and the interim receipt sued on was thereupon
issued by F. A. Lett i Co. to the plaintiff Cockburn ; that
the application was copied, and the copy kept by the
agents, and the original was sent to the defendants in the
following letter : —
• R. S. O. ch. 167, sec 114. — The conditions set forth in this section
shall, fts against the insurers, be deemed to be part of every contract,
whether sealed, written, or oral, of fire insurance hereafter entered into
* * in Ontario * * and shall be printed on every such policy with
the heading StoUutory Conditions. * *
8. The -company is not liable for loss if there is any prior insurance in
any other company, unless the company's assent thereto appears herein
or is indorsed hereon, nor if any subsequent insurance is effected in any
other company, unless and until the company assents thereto, or unless
the company does not dissent in writing within two weeks after receiving
written notice of the intention or desire to effect the subsequent insurance,
or does not dissent in writing after that time and before the subsequent
or further insurance is effected.
Digitized byVjOOQlC
248 THE ONTARIO REPORTS. [VOL.
Statement. « Alliston, July l7th, 1888.
J. H. EwART, Esq.,
General Agent British America Assurance
Company, Toronto.
Dear Sir, — Enclosed please find application No. 20,
Isaac Cock burn, and by concurrent book post wo send
policy No. 305,029 for correction ; should be buildings and
attachment, including boiler-house ; should be same as
diagram shewn on application No. 20.
Yours truly,
F. A. Lktt & Co.,
per Sec.**
The number in this letter 305,029 was an error ; it should
have been 303.029.
The following letter was sent :
" Toronto, July 18. 1888.
Messrs. F. A Lett & Co.,
Alliston, Ont.,
Re Policy 303,029, I. Cockbum.
Dear Sirs, — The above policy was returned to us this
a.m. What do you wish us to do w'th it?
Yours truly,
J. H. EWART,
Geneial Agent."
No answer was either sent or received to this letter so
far as could be ascertained.
The policy referred to in the letter of the I7th of July
was obtained by F. A. Lett & Co. from the plaintiff Cock-
burn when he took application No. 20, in order, at the
plaintiff Cockbnrn's request, that it might be amended as
stated in the said letter.
The following indorsement was made upon the policy*
'*The first item of this policy is hereby extended to cover
on boiler house, mill platform, shingle room, and lath
room.
Toronto, July 20, 1888.
J. H. EWART,
General Agent'
Digitized byVjOOQlC
XIX.] COCKBURN V. BRITISH AMERICA ASSURANCE CO. 249
And on the transcript of the policy kept at the head Statement.
office of the defendants the following indorsement was
made : " The first item of this policy is hereby extended
to cover on boiler house, mill platform, shingle room, and
lath room.
Toronto, July 4th, 1888. Fee 50."
On the loth or 20th August F. A. Lett & Co. made their
return to the defendants of the business done by them in
the month of July, which contained the following item
among others : number of application, 20 ; name of insured,
Isaac Cockburn ; amount insured, Sl,050 ; rate, CJ ; pre-
miums S35.43; expiration, November 4th, 1888. Upon
seeing this item, Mr. Ewart asked a clerk in the head office
for the appliciition, and it could not be found. Mr. Ewart
thereupon wrote to F. A. Lett & Co. for the application,
and they on August 28th, 1888, replied to him as follows:
" We mailed application No. 20 to you on 17th July, also
303,029, for correction same as diagram for No. 20, which
was done ; therefore you must ha<re received application No.
20." This letter could not be found at the head office, and
the copy of it was produced by F. A. Lett & Co. Upon
receipt of it Mr. Ewart wrote to F. A. Lett & Co. as follows:
" Dear Sirs, — Re App. 20, Cockburn — Your explanation
of 28th is received. We are very sorry to trouble you, but
we have searched everywhere for this application, and it
cannot be found. Will you kindly furnish us with a
duplicate ? "
What purported to be the copy of application No. 20
kept b}'- F. A. Lett & Co. was thereupon sent to Mr.
Ewart, and he thereupon sent the following letter to F. A.
Lett & Co. :—
"Toronto, Sept. 7th, 1888.
Messrs. F. A. Lett & Co.,
Alliston, Ont.
De.\r Sirs, — Re App. 20, Isaac Cockburn.
We are sorry, but our instructions are that we must not
write short date risks on saw mills. We must therefore
Ask you to take up this receipt at once and return it to
32 — VOL. XIX. o.R.
Digitized by VjOOQIC
250 THE ONTARIO REPORTS. [VOL.
Statement, this office, and as it has run just over half of the term we
have debited you in the sum of $17.71, as earned. Kindly
let us have the receipt at once please, that we may secure
a relea^se from our re-insurance."
On the same day, the 7th September, the defendants re-
insured for one-half the risk effected by the interim
receipt sued on, in the People's Insurance Company of
Manchester, N. H.
On the 13th October, 1888, Mr. Ewart wrote to F. A.
Lett & Co. as follows : " Dear Sirs — Re App. 20, Isaac
Cockburn — We apparently have not received this interim
receipt yet, and, gentlemen, this is not the way to treat us.
We have a portion re-insured, and you will compel us to-
incur an expense unnecessarily. We do not use you like
that."
F. A. Lett & Co. never informed the plaintiff Cockburn
that the defendants had refused this risk, nor did the de-
fendants ever inform him of it, and he was ignorant of it
until after the fire, which occurred on the 26th October,
1888. The reason F. A. Lett gave for not informing
the plaintifi' Cockburn that the defendants had refused
the risk was that the defendants did not send him the
money to refund to the plaintiff Cockburn, and the fact was
that the defendants never did give him or the plaintiff
Cockburn the money, but retained the amount The copy
of application No. 20 sent to the head office described the
property as "Cockburn's Mill, Gravenhurst, Ont., owner
and occupant, Isaac Cockburn, 100 x 60, 13 x 60, 49 x 25,
and the lath -room," and comparing these figures with dia-
gram shewed them to represent size of mill, shingle-room^
and boiler-house respectively. And in answer to the ques-
tion: " Insurance. What is the total amount of insurance
carried on premises ? Give names of companies and a-
mounts;" the statement was "total insurance including this is
$12,000, all concurrent." Questions six and seven, to be
answered by the agent, were not answered on this copy.
They were: 6. Has this company already any insurance on
or in the premises ? If so state name and number of
Digitized byVjOOQlC
XIX.] COCKBURN V. BRITISH AMERICA ASSURANCE CO. 251
policy and amount. 7. What insurance does this com- Statement,
pany hold within 200 feet of the proposed risk ? N. B,
State name and number of policies and amount insured by
same, and mark number of policies and amount on the
respective buildings on diagram.
Indorsed on this copy of application was the following :
"Special: To be submitted to the company for approval
before receipt is issued;" and the following : "Applications
for insurance on property where steam is used for pro-
pelling machinery must be approved by the head oflSce at
Toronto before the company will be liable for any loss or
damage." The plaintiflF Cockbums attention was not
drawn to these indoraements, and he was not aware that
F. A. Lett & Co. had no authority to grant the interim
receipt on this account.
F. A. Lett swore that he had never received any instruc-
tions not to grant an interim receipt under such circum-
stances, and that his practice was to issue such receipts at
once, and the company would issue the policies, dating
them from the date of the receipts. He also swore that
at the time the original application was copied, questions
6 and 7 were not answered, but that he did answer them
in the original application before it was sent to the head
oflBce, and that he never got any inquiries from the
defendants as to what companies were on the risk. Mr.
Ewart swore that it did not make a particle of diCerence to
the defendants that the Lancashire was substituted for the
Citizens'; that the Lancashire was a better company ; that
his objection to the insurance was not because the names
of the companies holding the insurance were not stated,
nor that they were also insurers, but it was to the amount
he would have objected; that he did not know that the
application covered the same risk as was covered by the
policy till after the fire; that indorsements made on the
policy under the transcripts were in Mr. Bailey's hand-
writing.
The learned Judge left only one question to the jury :
whether the letter of the 17th July enclosing the applica-
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252 THE ONTARIO REPORTS. [vOL.
Statement, tion was received by the defendant company, and the jury
found that it was. The learned Judge thereupon con-
sidered that this finding with the admitted facts was con-
clusive against the defendants on both branches of the
plaintiffs* claim, and directed judgment for the plaintiffs
for 83,589.28, with full costs of suit.
The defendants moved before the Divisional Court to
dismiss the action on one or both claims of the ])]aintiffs.
February 11, 1890. The motion was argued before
Armour, C.J., and MacMahon, J.
LaidlaWy Q.C., for the defendants. Tlie local agent had
no power to insure, the mill and machinery being run by
steam. The approval of the company was necessary.
The plaintiff admits that he read the papers, and he must
have seen that it was distinctly stated on the back of the
application. 1 refer to McOrea v. Waterloo Mutual Ins,
Co,, 1 A. R. 218. Under the eighth statutory condition
there must be the assent of the company to the prior
insurance, and the assent must appear in or be indorsed
on the policy : Noad v. Provinsial Ins. Co., 18 U. C. R.
584'; Merritt v, Niagara Insurance Gomp'iny, ib. 529;
Billington v. Provincial Insurance Company, 3 S. C R.
182; Doull V. Western Assurance Co., 12 S. C. R. 446;
Logan v. Commercial Union Ins. Co., 13 S. C. R. 270
Suppose the local agent had had power to issue the policy,
and had issued it, it would still not be binding witiiout
the indorsement of the assent as required. Or, conversely,
the prior insurance in this company is void by reason of
the subsequent insurance in other companies without
assent. There was no assent. There was no dissent it
may be said ; but the dissent is only to be in case of
actual notice, not merely constructive notice : Oraham v.
London Insurance Company, 13 O. R. 132.
Wallace Nesbitt, for the plaintiffs, referred to McQueen
V. Pkxnix Insurance Co., 4 S. C. R. 6()0 ; Parsons v.
Queen Insurance Co., 43 U. 0. R. 271 ; Benson v. Ottawa
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XIX.] COCEBURN V. BBITISH AMERICA ASSURANCE CO. 253
Agricultural Insurance Co,, 42 U. C. R 282 ; Law v. Argument.
Hand in Havd Insurance Co., 29 C. P. 1 ; Hopkins v.
Manufacturers Insurance Co,, 43 U. U. R. 254 ; Mcln-
tyre v. Last Williams Insurance Co,, 18 O. R. 79 ;
Insurance Co. v. Wolf, 95 U. S. 326 ; Smith v. City
of London Insurance Co,, 14 A. R. 328 ; 15 S. C. R. 69 ;
Porter on lusurance, 86 ; R. S. O. ch. 167, sec. 114, sub-
sec. 2.
March 8, 1890. The judgment "of the Court was de-
livered by
Armour, C. J.; —
It was contended that there never was any contract of
insurance created by the application and interim receipt,
becau.se by the indorsements on the application the agent
had no power in case of such a ri<?k to muke such a con-
tract or to issue such a receipt until the application was
submitted to the compan}' for approval and was approved
of by them and until such approval the company were not
to be liable for any loss or damage.
But this contention is not, in my opinion, open to the
defendants.
These indorsements formed no part of the application
required to be signed by the plaintiff Cockburn, nor were
they ever brought to his notice, and when he made the
application and the interim receipt was issued to him the
agent isi<uing it was acting in the apparent scope of his
authority, and was to be deemed prinid facie to be the
agent of the company. These indorsements were rather
instructions to the agent than warnings to the applicant;
the agent had, however, received no special instructions,
unless these indorsements could be called such, not to issue
in case of such a risk an interim receipt unless the appli-
cation was first approved by the company, and he was
continually doing it, and such receipts so issued had always
been recognized by the company. The defendants, more-
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254 THE ONTARIO REPORTS. [VOL.
Jadgment. over, never repudiated the contract of insurance whicb
Armour, C.J. pui ported to have been effected by the application of the
plaintiff and the interim receipt issued to him, but merely
determined to put an end to it, treating it as a subsisting
contract and elected to retain the premiums earned there-
under from the time it was made up to the time when
they determined to put an end to it and so approved of
the contract so made.
As to the contention raised under the provisions of the
eighth statutory condition, it must be assumed from the
finding of fact, and no doubt the fact was so, that the
defendants received the application, and if they did so
they must have known that it was for insurance upon the
same property already insured by them under their policy;
the letter of the 17th of July enclosing the application
and referring the defendants to it for information as to
the amendment to be made on the policy clearly pointed
this out to them ; and when they made the indorsement
on the policy and on their transcript of it the only sources,
according to the evidence, from which they could have
derived the information necessary for that purpose were
the letter of the 17th of July and the application enclosed
therein ; and it appears to me abundantly clear that from
these sources these indorsements could have been readily
made. Bailey, the clerk in the head office who made the
indorsements, and who must have known the sources from
which he derived the information necessary to make them,
was not called as a witness by the defendants.
The statutory conditions are to be deemed to be part of
every contract, whether sealed, written, or oral, but these
conditions are to be printed only on the policy when issued,
and not on any interim receipt or upon any other inchoate
contract.
The application and the interim receipt constituted, as I
have already said, the contract of insurance between the
plaintiff Cockburn and the defendants, and in this contract
was stated,*and truly stated, the total amount of the insur-
ance on the property insured, and this contract so made
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XH.] CXKJKBURN V. BRITISH AMERICA ASSURANCE CO. 255
continued to be binding on the company until after the Judgment,
loss occurred, and the company therein and thereby Armour, 0. J.
assented to such insurance, and if it were sought to com-
pel the defendants to issue a policy carrying out the said
contract they would be compellable to make their assent
to such insurance appear therein or to have it indorsed
thereon.
I do not think that the defendants, having assented to
the insurance stated in the contract of insurance, could
assert that the effecting such insurance to which they had
assented had the result of avoiding the prior insurance
effected by their policy.
However this may be, the prior insurance effected by
the policy was voidable, not void, and they might elect to
avoid it or they might elect not to avoid it as they thought
proper[; and after the contract of insurance was entered
into in which the total amount of insurance [was stated,
and after they knew that it was entered into, they elected
not to avoid the prior insurance, but to treat it as still sub-
sisting by extending it to cover additional property to
that in respect of which, it was originally effected.
In my view, therefore, the defence under the eighth
statutory condition fails.
I refer to Parsons v. Queen Insurance Company, 43 U.
C. R. 271; Parsons v. Standard Ins. Co,, 43 U. C. R. 603;
4 A. R 326; 5 S. C. R. 233.
The motion must be dismissed with costs.
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256 THE ONTARIO REPORTS. [VOL.
[QUEEN'S BENCH DIVISION.]
Abraham v. Abraham etal.
Alimony -~Regi8(rnii(m of Jvdgwent for — Amgnment lyy defmdavt for
general itnt-fit. of crtdUoi's — Priorities— Ji. S. O. ch, 44, «ec. SO—
R. S, O. ch. 1S4, sec, 9,
The precedence given to an assignment for the general bene fih of creditors
by K. S. O. ch. 1*24, sec. 9, over *' all judgments and all executions not
completely executed by payment" does nut extend to a judgment ftir
alimony registered under R. S. O. ch. 44, sec. ^, againfet the lands of
a defendant prior to the registration of »n assignment by him ; and a
plaintiff in such a judgment U not obliged to rank with the other
creditors of the defendant.
Statement This was an action for alimony, which was tried at
Stratford on the 6th April, 1889, before Robertson, J.,
who gave judgment in favour of the plaintiff* declaring her
entitled to alimony, and directing a reference to the local
Master at Stratford to fix the amount and report.
The local Master made his report, dated 2nd November,
1889, by which it appeared that the defendant Thomas
Abraham having under the Act respecting As.signments by
Insolvents, R. S. O. ch. 124, made an assignment of all
his estate for the benefit of his creditors, to John Hossie,
sheriff of the county of Perth, subsequent to the data of
the judgment, Ilossie had been made a party in the Mas-
ter's oflBce on the 9th May, 1889.
By his report the Master found that under an order made
in Chambers for the payment by the defendant of interim
alimony there wa.s due and owing to the i)laintiff* at the
date of the judgment the sura of $iO-l'.50; also that the sum
of $150 per annum would be a proper sum for future ali-
mony, to commence from the 6th of April, 1889, which he
directed should be paid quarterly by the defendant Thomas
Abraham, or by Hossie out of the defendant Abraham's
esbite.
The Master also found specially that the judgment in
the action was registered in the Registry office for the
county of Perth on the 6th April, 1889, and in the Registry
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XIX.] ABRAHAM V. ABRAHAM. 257
office for the county of Huron on the 8th April, 1 889, being Statement,
the counties in which the defendant Thomas Abraham had
certain lands; that the assignment by the defendant Thomas
Abraham to Hossie was dated 8th April, 1889, and was
registered in the Registry office for the county of Perth on
the 9th April, 1889, and in the Registry office for^the county
of Huron on the 10th April, 1889.
The defendant Hossie appealed from the report ; the
main ground of the appeal being that under sec. 9 of R. S.
0. ch. 124 the assignment from the defendant Thomas
Abraham to the defendant Hossie took precedence of the
plaintiff's judgment, and that she was only entitled to rank
as a creditor with the other creditors of Thomas Abraham
upon his estate in the hands of the appellant, the assignee
thereof
The appeal was argued before MacMahon, J., in Court
on 29th November, 1889.
IdingtoyiyQ. C, for the appellant. R. S. O. ch. 124, sec. 9,
is express in its terras — " An assignment for the general
benefit of creditors under this Act shall take precedence
of all judgments and of all executions not completely
executed by payment." As against this provision the plain-
tiff's judgment is nothing more than a registered judgment,
and it cannot prevail. The grammatical and ordinary
meaning must be given to the words of a statute : Orey v.
Pearson, 6 H. L. C. at p. 106 ; Maxwell on Statutes, pp. 2.
and 40. The plaintiff relies upon R. S. O. ch. 44, sec. 30,
and contends that her judgment has priority, but the effect
of this contention is to enlarge the operation of that enact-
ment. The defendant Abraham could not have made a life
charge on his real estate in favour of his wife on the 6th
of April, with all the claims of creditors, for whom the
assignment was made two days afterwards, existing against
his estate.
Osier, Q. C, and TT. M. Douglas, for the plaintiff. By
the registration of her judgment the plaintiff is in a
higher position than th^ ordinaiy judgment creditor. By
33 — VOL. XIX. O.H.
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258 THE ONTARIO REPORTS. [VOL.
Argument virtue of sec. 30 of ch. 44 the registration operates upon
the lands and has the same effect as if the defendant had
charged his lands with a life annuity in favour of the
plaintiff, thus giving her a lien on the land not enforceable
by the ordinary /i. fa, lands, and not capable of being com-
pletely executed by payment, but enft)rceable by a judicial
sale. The plaintiff is notan the position of an ordinary
execution creditor, but has a lien prevailing over execu-
tions : Milltr v. Miller, 8 C. L. T. Occ. N. 120 ; CoU v. tiall,
12 P. R. 584., 13 P. R. 100. According to the construction
put upon sec. 9 of ch. 124 by the ap})ellant, the effect
would be to repeal sec. 30 of ch. 44, but the two clauses
stand side by side in the Revised Statutes, and it cannot
be said that the one has been repealed as inconsistent with
the other: Ar^coit v. Liihy, 11 O. R. 285 ; 14 A. R. 283.
" Judgments" in sec. 9 of ch. 124 does not include a judg-
ment of this kind, but is limited to judgments which are
followed by execution. An alimony or annuity decree pro-
viding for future payments is not one that can be com-
pletely executed by payment, and cannot rank with ordin-
ary judgments.
April 9, 1890. MacMahon, J. :—
Under the Judicature Act, K. S. O. ch. 44, sec. 30, "An
order or judgment for alimony may be registered in any
Registry office in Ontario, and the registi ation shall, so
long as the order or judgment registered remains in force
bind the estate and interest of every description which the
defendant has in any lands in the county or counties where
the registration is made, and operate thereon in the
same manner and with the same effect as the registration
of a charge by the defendant of a life annuity on his lands."
By the Act respecting Assignments of Insolvents, R.S,0.
ch. 124, sec. 9, "An assignment for the general benefit
of creditors under this Act shall take precedence of all
judgments and of all executions not completely executed
by payment, subject to the lien, if any, of an execution
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XIX.] ABRAHAM V. ABRAHAM. 259
creditor for his costs, where there is but one execution in Judgment,
the sberiflTs hands, or to the lien, if any, of the creditor for MacMahon.
his costs who has the first execution in the sheriff's J.
hands."
These two sections must be read together in order to
obtain a proper conception of what were the objects sought
to be accomplished by the Legislature in passing the
several enactments.
An annuity although personal property is " frequently
ranged under incorporeal hereditaments, issuing out of land
and even the legislature treats it sometimes as a rent-
charge, from which it materially diflers. — 3 and 4 Wm. IV.
ch. 27, sec. 21. The words * annuity,' and * rent-charge ' are
frequently used as convertible terms": Wharton's Law
Lexicon, 7th ed., p. 49.
In the case of an annuity granted by way of rent-charge
it may be limited so as to charge both the land and the
person of the grantor, or the land only, and the annuitant
may proceed at his option against the land or the person
chargeable : Turner v. Tur7ier, Amb. 782.
Where an annuity is made a charge upon lands, or what
is the same thing, where the annuity issues out of land,
and there is no power of distress given by the deed creat-
ing the annuity, a power of distress exists in the annuit-
ant by virtue of 4 George 11. ch. 42, sec. 5, such power
being, as said by Malins, V. C, in Sollory v. Leaver, L. E.
9 Eq. at p. 25, " superadded by the statute."
The most common form in which annuities are created
in this country is whej-e the owner of land in fee conveys
to his son and then takes from the grantee an annuity bond
which is registered against and forms a charge upon the
lands conveyed.
Even before the passing of the 18 & 19 Vic. ch. 15 in
England, which required an annuity or rent-charge granted
otherwise than by marriage settlement or given by will,
to be registered in order to protect the lands against pur-
chasers, mortgagees, or creditors, it was held that where
lands were charged with the payment of annuities those
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260 THE ONTARIO REPORTS. [VOL.
Judgment, lands would be liable in the bands of a purchaser, because
MacMahon, it was the very purpose of making the lands a fund for
•'• that payment, that it should be a constant and subsisting
fund : Sugden, V. and P., 14th ed., 6G0 ; Dart. V. and P.,
6th ed., 691 ; Elliot v. Merrywan, Barn C. 82 ; Wynn
V. Williams, 5 Ves. 130.
An annuity charged on real estate is liable to the judg-
ments against the annuitant : Youvghushand v. Oisborne,
1 De G. & Sm. 209 ; and see the judgment of Esten, V.C.^
in Bank of British Koo^th America v. Matthews , 8 Gr., at
p. 490, where he points cut that should the annuitant be-
come bankrupt or insolvent, his whole interest will pass to
his assignees, notwithstanding a declaration that it shall not
be liable to his debts and engagements, and that it shall
not be anticipated.
The precedence given to an assignment for the general
benefit of creditoi*s by R. S. O. ch. 124, sec. 9, over "all
judgments and all executions not completely executed by
payment" does not, I consider, apply to a judgment for
alimony under E. S. O. ch. 44, sec. 30. Under the latter
Act the judgment, when registered, is to have the same
effect as if the owner of the real estate (the defendant in
the alimony proceedings) had created a life annuity on his
lands by deed duly registered, that is, although a judgment
in form, it is for the purpose of creating a lien or charge
in favour of a wife entitled to alimony to be considered in
effect as a charge by deed of a life annuity on his land,
and so necessarily with all the incidents in favour of such a
charge.
If that is to be regarded as the effect of such a judgment,
then the defendant Thomas Abraham could not convey
the lands against which it was registered, unless subject to
the charge so created. The title or interest he could con-
vey to a purchaser is the same title or interest which would
pass to his assignee by virtue of an assignment under the
Act.
The evident desi^ of the Legislature in passing sec. 9
of ch. 124, B. S. 0., was to place all ordinary claims or debts
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XIX.] ABRAHAM V. ABRAHAM. 261
owing by the insolvent, even although such debts were Judgment
evidenced by judgment, or had passed into execution MacMahon,
against the insolvent debtor's goods and lands, upon '^^
the same footing, so that there should be a distribu-
tion of his estate pari passu amongst his creditors when
he had made an assignment under the Act, such assignment
taking precedence over such judgments and executions.
Alimony is not an ordinary debt, and under the English
Bankruptcy Act it is not the subject of proof on the bank-
ruptcy of the husband, because the amount may be in-
creased or diminished according to the varying circum-
stances of the insolvent. He is, notwithstanding his
bankruptcy, liable to continue the payments : Linton v.
Linton, J 5 Q. B. D. 239. Our Legislature, by sec. 30 of
R S. 0. ch. 44, have not regarded an alimony judgment
as an ordinary debt, but have by that enactment created
the judgment, when registered, a charge upon the land for
the payment of the alimony, the same as if it had been a
life annuity which the husband had charged upon his land.
I therefore hold that the assignment from the defendant
Thomas Abraham to the defendant Hossie does not take
precedence of the plaintiff's judgment, and that the plain-
tiff is not obliged to rank with the other creditors of
Thomas Abraham.
The appeal must be dismissed on that ground.
I do not think, from the evidence, that the allowance of
8150 per annum made by the local Master for alimony is
at all excessive.
It is clear that the judgment of the plaintiff against the
defendant Thomas Abraham is binding upon the defendant
John Hossie as assignee of the estate of Thomas Abraham,
and he (the defendant Hossie) took such estate subject to
the charge created by the judgment, because it was the
evident intention of the Legislature to make the lands a
fund for the payment of the alimony under the judgment,
and that such fund " should be a constant and subsisting
fund."
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262
Judgment.
MacMahoD,
J.
THE ONTARIO REPORTS.
[vol.
The priority of the plaintiff's judgment is declared by
the Act R. S. O. ch. 44, sec. 30, and the question as to the
priority as between the plaintiff and the defendant Hossie
has been sufficiently dealt with by the report of the learned
local Master.
If the defendant Hossie, as the assignee of Thomas Abra-
ham's estate, is dealing with it, then the direction that
Hossie, as assignee, should pay the alimony declared to be
due by his assignor is, I coasider, a proper direction.
The appeal must be dismissed on all the grounds with
costs.
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XIX.] SCOTTISH AMERICAN INVESTMENT CO. V. TEN'NANT. 263
[COMMON PLEAS DIVISION.]
The Scottish American Investment Company v.
Tennant.
Mcrtgagta — Right to consolidcUe,
The plain tiffs who were the mortgagees under three mortgages from the
same mortgagors on different lands, were held entitled only to consoli-
date in respect of the mortgages in default when action brought to
enforce them, and as the amount due on one of the mortgages had been
then paid, and there was then no default as to it, the right to consolid-
ate it was refused.
This was an action on three moi-tgages made by Messrs. Statement.
Christie, Kerr & Co., in favour of the plaintilfs over the
following lots ; the first mortgage being over lots 2 and 3
in the 5th con. of the township of Matchedash ; the second
over lot 23 in the 4th con. of North Orillia ; and the third
over lot 1, 4th con. of Matchedash. The mortgages were
given for balance of purchase money.
All the mortgages being in arrear on the 11th of Decem-
ber, 1888, Messrs. Christie, Kerr k Co. arranged with the
plaintiffs' solicitors to give them four notes for the pay-
ments that were in arrear. On the 15th of February,
1889, two of these notes having at that time been paid,
and one of the notes having been dishonoured, Mr. Christie
handed Messrs. Gordon & Sampson, the plaintiffs* solici-
tors, a cheque for $267.50, which paid up in full the
amount due on the mortgage over lot 23 in the 4th con. of
North Orillia, and demanded a discharge for the same.
The plaintiffs credited this payment on the mortgage over
lot 23 in the 4th con. of North Orillia, but refused to give
a discharge, asserting that they had a right to consolidate
the mortgages that were in arrear on the other lots with
the mortgage on tliis lot, and that Messrs. Christie, Kerr &
Co. were not entitled to redeem or get a discharge of the
mortgage over lot 23 in the 4th con. of North Orillia,
until all the arrears were paid up on the other lots. Messrs.
Christie, Kerr & Co. having requested the plaintiffs to
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264
THE ONTARIO REPORTS.
[VOL.
Statement again renew the note that had fallen due for a portion of
the payment in arrear on the mortorage over lots 2 and 3
in the 5th con. of Matchedash, and at the same tirae
having again demanded a discharge of the mortgage over
lot 23 in the 4th con. of North Orillia, the plaintiffs* solic-
itors wrote Messrs. Christie & Co. the following letter:
** ToEONTO, 22nd February 1889.
MesHTS. Christie, Kerr <C? Co.
Dear Sirs :
We now enclose you renewal for two months of your note for
$447.50 and interest due the 14th inst. Kindly have same signed and
endorsed and return to us and we will then send you the old note. We
cannot discharge the mortgage over lot 23 in the 4th con. of North Orillia
until the arrears have been paid up over lot 1, con. 4, Matchedash.
Yours,
Gordon & Sampson."
It appeared that the plaintiff^s solicitoi-s intended to refer
to the arrears over lot 2 and 3, con. 5, Matchedash, as at
that time there were.no arrears over lot 1, con. 4.
Subsequently Messrs. Christie, Kerr &; Co. became in-
solvent, and the defendant Tennant was appointed their
assignee. Other payments then fell due on lot 1, in the
4th con. of Matchedash, so that both that mortf];age and
also the one over lots 2 and 3 in the 5th con. of Matche-
dash were considerably in arrear, and the plaintiffs sought
to consolidate these mortgages with the mortgage over lot
23 in the 4th con. of North Orillia, which the defendant
James Tennant claimed had been paid off.
A motion was made by the plaintiffs to consolidate the
three mortgages, and for judgment on the pleadings and
evidence taken before the special examiner, for the amount
of the mortgages and interest, and for the possession
of the said lands.
February 8th, 1890.
Lockhart Gordon, for the plaintiffs. The assignee can-
not stand in any better position than Messrs. Christie, Kerr
& Co., for he took the estate subject to all the equities that
existed against Christie, Kerr & Co., at the time of their
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XIX.] SCOTTISH AMERICAN INVESTJIENT CO. V. TEN'NANT. 265
assignment. The mortgage over lot 23, in the 4th con. Argument,
of North Orillia having at one time been in arrear and at
the time of the payment on the loth of February, 1889,
the mortgage over lots 2 and 3 in the 5th con. of Matche-
dash being largely in arrear, Messrs. Christie, Kerr & Co.
had no more right to demand a discharge of lot 23 in the
4th con. of North Orillia, than they would have a right
to commence an action for redemption of this lot without
otfering to pay the arrears due on the mortgage over the
other lots. The correspondence shows that the three
mortgages were to be treated as one, for in a letter written on
the 11th December, in which Messrs. Gordon & Sampson
acknowledge the receipt of the notes to cover the arrears
on the mortgages they stipulate thatif any note was unpaid
at maturity, all the notes might be handed back and pro-
ceedings might be taken on all the mortgages for any over-
due payments. By signing the renewal note and thereby
procuring an extension of time for the arrears due on one
of the others mortgages (which note Messrs. Gordon &
Sampson returned in their letter of the 22nd February, in
which they state that they would not discharge lot 23 in
the 4th con. of North Orillia), Messrs. Christie, Kerr & Co.
obtained the extension of time by consenting to their
withholding the discharge until these arrears were paid, '
and as the arrears have never been paid, the plaintiffs are
entitled now to proceed against this lot, as well as the
others : Dominion Savings and Investment Society of
London v. KittHdge, 23 Gr. 631 ; Brower v. Canadian
Permanent Building Association, 24! Gr. 509 ; Johnston v.
Beid, 29 Gr. 293 ; Ross v. Stevemson, 7 P. R 126 ; Mert^tt
V. Stephenson, 6 Gr. 567, 7 Gr. 22 ; Griffith v. Pound,
Weekly Notes, 1889, p. 203.
JJrquhaHy for the defendant. The evidence shews that
the defendant having made this payment of the 15th of
February, 1889, specially on account of lot 23 in the 4th
con. of North Orillia, and the plaintiffs' solicitors having
applied the payment to pay in full the mortgage over that
34?— VOL. XIX. o.R.
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266
THE ONTARIO REPORTS.
[vol.
Argument, lot, they Cannot now argue that the mortgage had not been
paid off. Cummins v, Fletcher, 14 Ch D. 699, 712, decides
that a mortgage not in arrear cannot be consolidated witli
a mortgage in arrear.
Lockhart Oordon, in reply, Gum^Tnina v. Fletcher,
is distinguishable from the present case. The mortgage
over lot 23 in the 4th con. of North Orillia having once
been in arrear, an arrangement was made on the 11th of
December, that if any of the notes then given to cover the
arrears of the mortgages were unpaid, proceedings might
be taken on all the mortgages. When the mortgage was
in arrear, no payment could subsequently be made on it if
other mortgages were in arrear which would pay it up in
full, and so deprive the plaintiffs of their right to consoli-
date.
February 22, 1890. MacMahon, J. :—
The defendant Tennant is the assignee for the benefit of
creditors of the estate and effects of the defendants Christie,
Kerr & Co., under R. S. O. ch. 124, by virtue of an assign-
ment bearing date the 4th of March, 1889.
The plaintiffs are the mortgagees, under and by virtue
of a mortgage from the defendants Christie, Kerr & Co.r
bearing date the loth day of December, 1885, of lots 2
and 3 in the 5th con. of the township of Matchedash, for
securing payment of $3,100 and interest.
The plaintiffs are also the mortgagees under a certain
other mortgage from Christie, Kerr & Co., dated the 22nd
February, 1886, of lot 23 in the 4th con. of North Orillia,
securing payment of $750 and interest
The plaintiffs are also the mortgagees by virtue of a
certain other mortgage from the said Christie, KeiT & Co.,
d ated the 6th December, 1887, of lot No. 1 in the 4th con.
of the township of Matchedash, for securing payment of
the sum of $800 and interest.
Under the terms of the mortgage of the 15th December,
1885, an instalment of the principal money, amounting to
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XIX.] SCOTTISH AMERICAN INVESTMENT CO. V. TENNANT. 267
$775, fell due on the 10th December, 1888, which was not Judgment,
paid ; and it is alleged in the statement of claim that by MacMahon,
the terms of the mortgage the whole balance due as prin- *^'
cipal money and the interest thereon, became due and
payable.
The sum of $400 was paid on account of the mortgage,
bearing date the 6th December, 1887.
The whole amount claimed to be due on the two mort-
gages of 15th December, 1885, and 6th December, 1887, is
$1,950 principal, and for interest $24«1.86.*
On the 15th February, 1889, Christie & Kerr gave to
Messrs. Gordon & Sampson, the solicitors for the plaintiffs,
a cheque for $267.50, being the balance of principal and
interest due on the mortgage of the 22nd Febniary, 1886,
on the face of the cheque being written by the drawers
thereof, " Lot 23, 4th con. North Orillia, balance in full,"
which cheque was endorsed by and paid to Gordon &
Sampson. And in their books under the head of that par-
ticular mortgage, a number of credits are given, and the
various items of interest and other charges in respect of
the mortgage, were added to the account and credit given
for the above cheque, and the account balanced as to that '
mortgage.
The plaintiffs by their claim seek to consolidate the said
three mortgages, so as to make the whole of the lands
available for the payment of the amount now remaining
unpaid for principal and interest, so that Tennant as the
assignee of Christie, Kerr & Co., of the equity of redemption
in the lands, should not be entitled to a discharge of the
land covered by the mortgage of February, 1886, unless
he redeemed the lands covered by the other mortgages.
It is contended by the defendants that the balance due
on the mortgage of February, 1886, having been paid to
and accepted by the plaintiffs as applicable to that partic-
ular mortgage, that as to the land mentioned in that
mortgage, there is nothing to redeem. What the defen-
dants in effect assert is, that the money having been
tendered and accepted and applied in payment of that
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278
THE ONTARIO REPORTS.
[vol.
Judgment, particular security, Christie, Kerr & Co.,could have tendei'ed
MacMahon, ^ discharge of that mortgage, and could require the plain-
J- tiffs to execute the same.
At the time of the payment of the $267.50, there was
an instalment of principal and interest overdue on the
mortgage of December, 1885, which still remains unpaid;
and it is by reason of the default then existing in the
December, 1885, mortgage, that the plaintiffs now claim
the right to consolidate the 1886 mortgage ; and the ques-
tion is, whether such right to consolidate now exists, there
being at the time the action was brought no default in the
mortgage of February, 1886, the amount due on that
mortgage having been paid and satisfied.
In Mills V. Jennings, 13 Ch. D. 639, the leading case on the
question of consolidation, the Court of Appeal in it« judg-
ment, at p. 64«6, states the rule as follows : *' The rule as
to consolidation of mortgages in its simplest form is this,
that where one person ha.s vested in himself by way of
mortgage two estates the property of the same mortgagor,
one of these cannot be redeemed without the other, and
this is so, whether the two mortgages were originally
• granted to the same mortgagee or, having been originally
vested in different personi^, have by assignment become
vested in the same person. This was on the equitable
principle that a Court of Equity would not assist a mort-
gagor in getting back one of his estates unless he paid all
that was due, though secured on a different estate. The
mortgagor was coming into a Court of Equity to obtain
its assistance in getting back an estate which at law be-
longed to the mortgagee, and it was held to be inequitable
to allow him to get back an estate of more value than the
debt charged on it, and to leave the mortgagee with
an estate charged with a debt due by the mortgagor, which
might be of larger amount than the value of the estate."
That case went to the House of Lords sub nomine Jen-
nings V. Jordan, 6 App. Cas. 699 ; and Lord Chancellor
Selborne, at p. 700, said : *Upon this, which was the princi-
pal question in the cause," (the right of the mortgagee to
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XIX.] SCOTTISH AMERICAN INVESTMENT CO. V. TENNANT. 26{>
consolidate) "I agree with the Lords Justices. A mortgagee, Judgment.
who holds several distinct mortgages under the same raort- MacMahon.
gagor, redeemable not by express contract, but only by '^•
virtue of the right which (in English jurisprudence) is
called ' equity of redemption/ may, within certain limits,
and against certain persons (entitled to redeem some or all
of them) ' consolidate' them, that is, treat them as one, and
decline to be redeemed as to any, unless he is redeemed as
to all."
Mr. Urquhart for the defendants, relied on the judg-
ment of Cotton, L. J., in Cumviina v. Fletcher, 14 Ch. D.
699, at p. 712, where he said :
" In order to enable the mortoragee to bring an action
and to consolidate, there must be two debts due, there
must be two estates in respect of which there is
only an equitable right in the debtor to redeem or
claim them back, and that cannot apply to a case where
as regards one of the securities, there has been no forfeiture
at all, where the debt is not due, and where, as regards that
estate and that security — an independent security — steps
could not be taken as against the owner of the equity of
redemption to bring him into Court and to call upon him
to redeem or to be foreclosed."
But in the present case as to the land covered by the
security of February, 1886, there is nothing to redeem, and
therefore as to it the Court has nothing upon which it can
foreclose. As put by James, L. J., in Cummins v, Fletcher ,
at p. 708 : ** If a man does not want to redeem property A
in respect of which he has made default he may be barred
as to that. But if he does not require to redeem property
B in respect of which he has made no default, he has no
occasion to come into the Court of Equity. The Court of
Equity has nothinc; to foreclose him of, and has no right
to deprive him of his legal right to redeem at the proper
time."
In the case of Grijffith v. Pound, W. R (1889), p. 203,
had the plaintiffs after giving notice demanding payment
of the £14,200 due on the mortgage mentioned in the
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J.
270 THE ONTARIO REPORTS. [VOL.
Judgment, notice, accepted the sum so demanded, their right to con-
MacMahon, solidate that with the other mortgages overdue at the
time action was broucrht, would have been gone. So in
the case I .am considering the acceptance of the amount
due on the 1886 mortgage, is the same as if a demand had
been made and the amount paid in compliance with the
demand.
The result is that the plaintiffs are only entitled to con-
solidate in respect to the mortgages in default at the
time when the action is brought, to enforce the claim. As
the mortgage of February, 1886, was not in default when
this action was instituted, the right to consolidate could
not exist as to that mortgage.
I do not think the plaintiffs should be called upon to
pay the defendants' costs in respect of the point decided
in favour of tlie latter as to the consolidation.
In re Watts, Smith v. Watts, 22 Ch. D. 5, at p. 13,
Cotton, L. J., says : ** All mortgagees, unless they misbehave
themselves, have a right to their costs, and it cannot be
said that when a mortgagee having such a point as this,
(where a mortgagee brings in an account, and under a wrong
impression of the law, but bond fide and honestly makes a
claim which he cannot support), requires it to be brought
before the J udge personally, he is guilty of anything wrong.
He has a right to require that the matter should be decided
by the Judge himself, and although he was unsuccess-
ful, he ought not to have been made to pay the costs of
going before the Judge and taking his opinion on such a
point."
I have examined the cases of Dominion Savings and
Investment Society of London v. Kittridge, 23 Gr. 631 ;
Brower v. Canadian Perm<inent Building Association, 24
Gr. 509; Johnston v. Reid, 29 Gr. 293 ; Ross v. Stevenson^
7 P. R. 126 ; Merritt v. Stephenson, 6 Gr. 567, 7 Gr. 22,
cited during the argument ; but none of them touch the
point required to be decided in this case.
There will be judgment for the plaintiffs for the imme-
diate possession of the lands mentioned in the mortgage of
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XIX.] SCOTTISH AMERICAN INVESTMENT CO. V. TENNANT. 271
the 10th of December, 1885, and of the 6th of December, Judgment
1887. MacMahon,
The defendants to have — months in which to redeem. •^•
Reference to Master to ascertain the amount due for
principal and interest on the said two mortgages, and pay-
ment directed after amount ascertained.
Judgment for the defendants as to lands mentioned in
the mortgage of February, 1886.
The plaintiff is entitled to the general costs, except the
costs occasioned by the opposition to the consolidation of
the 1886 mortgage with the other mortgages.
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272
THE ONTARIO REPORTS.
[vol.
[CHANCERY DIVISION.]
DuGGAN V. The London & Canadian Loan and
Agency Company, et al.
Statement.
Shares— Pledge of for loan — Transfers **»n trvAl" — Pledge by transferee for
larger loan — Notice oftrunt — Hight to redeem — Aleasure of value.
Certain shares not numbered or capable of identification, transferable on
the books of a company, were transferred by the plaintiff to brokers,
"in trust" as security for the payment of a loan. The plaintiff's trans-
ferees afterwards transferred the shares to others as security for other
and larger sums due by them than were due by plaintiff to them. Each
transfer subsequent to that of the brokers was made *'in trust."
The plaintiff was aware that the brokers were raising money on his shares,
but was assured by them that he could redeem hia stock on payment of
the amount due by him.
The brokers being unable to redeem the shares, in an action by the plaintiff
against the last transferees, who had sold them for a large sum after
tender by plaintiff of amount due by him, to compel them to account
for their value : —
Held, that the form of the transfer to the last holders was sufficient to
put them on enquiry, and that they were chargeable with notice of the
facts and of the plaintiff's rights in regard to the shares ; and that he
was entitled to the value of the stock after payment of the amount he
had borrowed on it from the brokers, and that the value of the shares
was to be taken at their highest market value between plaintiff's tender
and the conclusion of the trial herein.
This was an action brought by E. H. Duggan against the
defendants named in the judgment for the recovery, upon
payment of the amount due by plaintiff, of certain shares
of stock, which had been transferred to two of the defend-
ants " in trust," as security for such payment, and which
shares had been afterwards transferred by the plaintiff's
transferees to others as security for other and larger
amounts due by them than were due by plaintiff to them.
The following facts are taken from the judgment:
On 27th October, 1881, the plaintiff, being the owner of
160 shares of the stock of the Toronto House Building
Association, procured a loan of $1,500 from the North
British Canadian Investment Co.,and as security transferred
80 of these shares to the defendants, W. B. Scarth and
Robert Cochran, who were the managers of the company.
The transfer expressed upon its face that it was "in trust."
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XIX.] DUGGAN V. LONDON AND CANADIAN LOAN CO 273
Messrs. Scarth & Cochran, in addition to their business Statement,
of managing the North British and Canadian Investment
Co., carried on the business of stockbrokers and financial
agents.
On 20th February, 1882, the plaintiff embarked in
some stock speculations, in the course of which he
purchased through Messrs. Scarth & Cochran a large
quantity of Hudson's Bay and North West Land Co.
stock upon margins, and he transferred to Messrs. Scarth
& Cochran on that day the remaining 80 shares of his
stock in the Toronto House Building Association to secure
them against loss in connection with his stock speculations
through them. This transfer was made to ** Messrs. Scarth
& Cochran, Brokers of Toronto, in trust."
On 23rd February, 1882, they transferred 80 shares of
the stock to " John L. Brodie, in trust Cashier," and on
11th July, 1882, they transferred the remaining 80 shares
to **John L. Brodie, Cashier in trust." Mr. Brodie was
cashier of the Standard Bank, and these transfers were
made to him to secure advances made to Scarth &
Cochran by that bank.
On 23rd January, 1883, they changed the loan from the
Standard Bank to the Merchants' Bank, and at their
request the 160 shares were transferred by Mr. Brodie to
"William Cook, Manager, in trust," Mr. Cook being at the
time manager of the Merchants' Bank in Toronto. The
name of the company in which these shares were held was
changed at this time from "The Toronto House Building
Association" to "The Land Security Company."
On 2nd February, 1883, Scarth & Cochran paid off to
the North British & Canadian Investment Co. the loan of
$1,500, which had been effected by the plaintiff in October,
1881, and the stock appears to have been treated as part
of the margin they held from the plaintifl, and was never
re-assigned to him.
In April, 1883, Scarth & Cochran arranged with the
Home Savings & Loan Co., and with the Federal Bank for
an advance upon the security of this stock ; the Merchants'
35 VOL. XIX. o.R.
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274
THE ONTARIO REPORTS.
[vol.
Statement. Bank was paid off, and 45 of the shares held by Mr. Cook
for the Merchants' Bank were transferred at their request
to " The Home Savings & Loan Co, in trust," and the
remaining 115 shares to "H. S. Strath y. Cashier, in trust"
Each of these transfers was executed by Mr. Cochran as
attorney for Mr. Cook.
On 2nd January, 1885, Mr. Strathy, for the purpose of
convenience, transferred to Mr. J. O. Buchanan, manager
of the Federal Bank in Toronto, the 115 shares theretofore
held by him. This transfer is made by " H. S. Strathy,
cashier, in trust," to "J. O. Buchanan, manager, in trust."
On 2nd March, 188G, having in view a pending allotment
of new stock in the Land Security Co., the Home Savings
& Loan Co. transferred to " J. O. Buchanan, manager, in
trust," one share of the 45 shares held by him. In
February, 188C, the Land Security Company made an
allotment of new shares of the company amongst their then
present shareholders, and at the request of the plaintiff,
Cochran arranged with the holders of the shares to take
up the allotments and pay the call made upon them. In
pursuance of this arrangement, the Home Savings & Loan
Co. accepted on 17th February, 188G, an allotment of 67
new shares in respect of the 45 shares then held by them,
and Mr. Buchanan, as manager, in trust, accepted an allot-
ment of 172 new shares in respect of the 115 shares then
held by him.
On 17th December, 1886, at the request of Cochran,
the Home Savings & Loan Co., by Robert Cochran,
their attorney, transferred to " J. O. Buchanan, man-
ager, in trust," the 44 old and 67 new shares then held
by the transferors, whose debt was paid off witti money
obtained from the Federal Bank. In Februaiy, 1887, a
further allotment of new shares in the Land Security Co.
was made, and " J. 0. Buchanan, manager, in trust,"
received and accepted an allotment of 399 new shares in
respect of the 160 old shares then held by him. The calls
upon the new stock in each case were added b}' the holders
of it to the debt of Cochran, for which the shares were
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XIX.] DUGGAN V. LONDON AND CANADIAN LOAN CO. 275
pledged. The Federal Bank now held the 160 old shares Statement,
and 638 new shares in the Land Security Co.^ all in the
name of " J. O. Buchanan, manager, in trust."
On September 7th, 1887, Cochran paid oft' the debt for
"which the stock was held by the Federal Bank, and
obtained from Mr. Buchanan a power of attorney to trans-
fer the stock generally. On the same day he negotiated
and obtained an advance of $14,300 from the defendants,
the London & Canadian Loan & Agency Co., Limited, and
to secure the advance he executed as attorney for " J. O.
Buchanan, manager, in trust," a transfer to " James Turn-
bull, in trust," of the 160 shares old and 638 shares new
stock, Mr. TumbuU being the manager of the London &
Canadian Loan & Agency Co.
Shortly before the commencement of this action the
plaintiff tendered to the defendants, the London & Can-
adian Loan & Agency Co., Limited, a sum of $7,500^
alleged by him to be a sum sufficient to cover all that
Scarth & Cochran could claim from him, and demanded
that the stock should be re-transferred to him. They '
refused, however, to recognize him in the matter, and
claimed to hold the stock for the fall amount ad-
vanced by them to Cochran. Cochran wrote to the
plaintiff that he was unable to procure a return of the
stook upon payment of Duggan*s debt, and the stock, was
thereupon sold by the London & Canadian Loan & Agency
Co. to realize the amount of their claim against Cochran.
The sale took place on 9th January, 1888. The 160
shares of old stock realized J9,670, and the 638 shares of
new stock, $7,711.83— in all, $17,381.83.
Duggan was aware from the beginning that Messrs.
Scarth & Cochran were raising money upon his stock ;
this was certainly called to his attention in 1886, when the
first allotment of new stock was made, but he was assured
then by Oochran that his stock was intact and could be
redeemed upon payment of the amount due by the plain-
tiff to Cochran. He was only made aware immediately
before his tender to the London & Canadian that it was
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276
THE ONTARIO REPORTS.
[vol.
statement, pledged for an amount in excess of what he owed the
broker upon it. Long before this time all the stocks in
which the plaintiff had been speculating had been disposed
of, and the balance due Cochran by him represented the
losses upon the speculations and the advances made to take
up the new stock in the Land Security Co. Messrs.
Scarth & Cochran had dissolved partnership in November,
1884, and the business was continued by the defendant
Cochran alone. At the time of the dissolution some
$4,100 appears to have been due the firm from the plaintiff,
and his stock was pledged lor a sum considerably larger.
The action was tried at the Winter Assizes, held in
Toronto upon the 4th and 8th days of March, 1890, before
Street, J.
McCarthy, Q C, and Moss, Q,C., for plaintiff.
Arnoldi, Q.C., for the Company.
Cassels, Q.C., for defendant Turnbull.
Ritchie, Q.C., for defendant Scarth.
March 20th, 1890. Street, J. :—
This action is brought against the London & Canadian
Loan & Agency Co., Limited, James Turnbull, William^ B.
Scarth and Robert Cochran, claiming an account from the
defendants of the full value of the shares and discovery of
their dealings with them, and a declaration that the
defendants, the London & Canadian Loan & Agency Co.,
Limited, and Turnbull could only lawfully hold the stock
for the amount due by the plaintiff* to Scarth & Cochran.
It appears sufficiently plain from the facts that Scarth
& Cochran never hold these shares as security for any
greater sum than that which was due to them from time
to time by the plaintiff, and that as between them and the
plaintiff, their duty was to return, or procure the return to
the plaintiff of the shares upon his paying the amount due
them. This, however, they were unable to do, as Mr.
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XIX.]. DUGGA.N V. LONDON AND CANADIAN LOAN CO. 277
Cochran informed the plaintiff in his letter of 9th J«dgm^t.
December, 1887, because the stock was pledged for a sum street, J.
largely exceeding the plaintiffs debt to them, and they
were unable to raise the difference, and I think, Ipoking at
that letter, that a tender to Cochran would have been a
useless formality.
The question of the plaintiff's right to follow the stock
into the hands of the London & Canadian Loan & Agency
Co. and their manager, Mr. Turnbull, is, no doubt, a highly
important one, but the principles upon which the right is
claimed are familiar ones, and their application to the facts
of the present case does not appear attended with special
difficulty. The shares in question are by statute transfer-
able upon the books of the company in which they are
held. They are, however, within the rule which applies to
shares as well as to ordinary goods and chattels that a
transferee acquires no better title tjian that of his trans-
feror, unless the true owner have in some way estopped
himself from setting up his title as against the transferee.
See remarks of Cotton, L. J., in WilliaTns v. Colonial Bank,
38Ch. D., at p. 399.
Duggan was the true owner of the shares in question,
and was undoubtedly entitled to obtain them as between
himself and Messrs. Scarth & Cochran upon payment of
their advances. His right to obtain them from the trans-
ferees, the London & Canadian Co., is disputed upon
^several grounds which it is necessary to examine.
It is said, in the first place, that the first 80 shares were
ti-ansferred hj^ Duggan to William B. Scarth and Robert
Cochran individually, and that they have made no transfer
in their individual names ; that as to these 80 shares the
plaintiff cannot recover, because they must be taken to be
still standing in the names of the original transferees. A
transfer was, however, executed during the continuance of
the partnership in the name of the firm of 160 shares
which Mr. Cochran says were the shares of the plaintiff,
to the manager of the Merchant's Bank, and I am bound
to assume upon the pleadings and the facts disclosed that
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278
THB ONTARIO REPORTS.
[vou
Judgment, this transfer was made with the authority of both partners.
Street, J. And that, therefore, the 80 shares passed as part of the 160.
Then it is contended that it is impossible to shew that
the shares transferred by the Federal Bank manager to
Mr. Turnbull were the shares of the plaintiff, because in
the course of their journey through various holders, between
the first transfer by the plaintiff to Scarth & Cochran and
their final arrival in the hands of the London & Canadian
Co., they had passed through the hands of persons who
held large numbers of other shares in the same company
which were in no way distinguishable from those in
question ; and that it would be unjust to impute to the
London & Canadian Co. notice of the plaintiffs rights
when those rights had become confused with the rights of
other holders.
Now it is quite true that these shares were in no way
ear-marked or distinguished from other similar shares
in the same company. They were not identified by
numbers or otherwise, and it is, therefore, alike impossible
and unnecessary that the plaintiff should shew that the
shares which came to the hands of Mr Turnbull were the
identical shares which he had transfeiTcd to Messrs. Scarth
& Cochran. It is sufficient for him to shew, as he has
done, that the shares have been dealt with by the various
intermediate holders as being those shares, in order to
entitle him to assert as against the last transferee his
ownership in them : Lewin on Trusts, Bl. ed., p. 1093 (star
page 894) ; Pennell v. Defell, 4 D. M. & G. 372 ; In re
HalletVa Estate, Knatchbull v. Hallett, 13 Ch. D. 696, at p.
711.
Granting, however, for the moment, that the London &
Canadian Co. might have had some difficulty in tracing these
shares back through the various holders to the true owner,
the plaintiff, they have left unanswered the further objection
that they did not attempt to do so. They held the shares
under a transfer expressed on its face to be from "J. O.
Buchanan, manager, in trust," executed by Cochran as attor-
ney for him, and accepted by Mr. Turnbull, their manager.
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XIX.] DUGGAN V. LONDON AND CANADIAN LOAN CO. 279
and tbey were lending money upon the shares to Cochran. Judgment
They must at least be taken to have known that Mr. street, J.
Buchanan held the shares as trustee. Here w<is plain
notice that the transferor, Mr. Buchanan, was not the
owner of them, and everything to put the London &
Canadian Co. upon enquiry as to who was the owner, but
they abstained from a single word of enquiry upon the
point. Mr. Tumbull, their manager, who negotiated the
transaction, was asked at the trial ;
" Q. As a fact, you did not know what the trust was ?
A. I did not know what the trust was.
Q. You did not inquire of Mr. Cochran how he held ?
A. 1 did not. 1 think it would have been an impertirience
if I had,
Q. Then you did not inquire into the title at all?
A. Beyond the fact that we got it.
*♦*♦♦♦•♦♦
Q. Now, if you had noticed that this stock had been
assigned in trust, that the gentleman who purported to
assign it to you described himself as holding it in trust
would not you have felt bound to make enquiries as to
what that trust was ? A. I thought I knew what the
trust wa.s.
Q. Answer the question ? A. No."
The witness afterwards explained in re -examination that
if he had noticed that the stock stood in the name of Mr.
Buchanan, " in trust," that circumstance would have made
no difference in his action, because he would have under-
stood that to mean in trust for the Federal Bank.
Being put upon enquiry by the form of the transfer to
them, the London & Canadian Co. must be taken upon all
reason and authority to be chargeable with notice of the
facts which existed, and which I am bound to assume they
would have learned, had they made enquiry either of Mr.
Buchanan or Mr. 0»>chran : Jones v. Smith, 1 Ha at p. 55 ;
Jones V. Willi<i7ns, 24 Beav., at p. 62. They would have
been told by the former gentleman that he held the shares
for the Federal Bank as security for an advance made to
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280
THE ONTARIO REPORTS.
[vol.
Judgment. Cochran, which had just been paid off; they would, I
Street, J. niust assume, have ascertained from Mr. Cochran that the
shares had been pledged to Scarth and himself as security
for advances made to Duggan, and that Duggan was the
owner of them, subject to the payment of some 87,000 or
$7,500. Apart, therefore, from the supposed diflBculty of
tracing the shares back to the plaintiff, the London &
Canadian Co. seem clearly chargeable with notice of the
plaintiff's rights in regard to the shares which were trans-
feri'ed to them.
The London & Canadian Co. further contended, upon the
^ argument, that they were entitled to be treated as assignees
of the debt for which the Federal Bank held the shares.
This position is not raised upon the pleadings, nor was
. attention directed to it at the trial. The pleadings treat
the advance as having been made directly to Cochran, and
do not set up the rights of the Federal Bank as a bar.
The evidence at the trial does not connect the money of
these defendants with the payment of the debt of the
Federal Bank beyond the fact that the advance to Cochran
was made apparently on the same day that he paid the
debt to the Federal Bank. It would rather appear that
the Bank was paid before the Loan Co. actually made any
advance. It may, perhaps, be well, however, now to con-
sider the grounds upon which the argument rests.
On 11th April, 1883, Scarth & Cochran borrowed from
the Federal Bank $13,450 upon the security of the plain-
tiff's stock and other stocks belonging to their customers.
At this time the plaintiff owed them some $4f5,000 for the
purchase money of the speculative stocks which they had
purchased for him. Against this they or their English
agents held these stocks, and in addition Scarth & Cochran
held the 160 shares of Land Security Co. stock and other
stocks as a margin. At the end of 1885 all the speculative
stocks had been sold and the proceeds placed to plaintiff's
credit by Cochran leaving a balance due by plaintiff of
between $3,000 and $1?,000, and there was due the Federal
Bank by Cochran some $8,300, for which they held the
plaintiff^s stock.
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XIX.] DUGGAN V. LONDOJ^ AJJD CANADIAN LOAN CO. 281
The contention of the defendants, the London & Cana- Judgment,
dian Co., is that Scarth & Cochran must be taken to street, J.
have had from Duggan authority to pledge the stock
held as margin to the extent of the balance due them
by him, and that therefore they had his authority to pledge
the stock to the Federal Bank for the full amount for
which they did pledge it; that the pledge to the Federal
Bank was lawfully made with Duggan's authority for the
full amount of $13,450 in the first place, and that although
Scarth & Cochran should have applied the proceeds of
the sales of the speculative stocks in reducing this debt
the right of the Bank to hold the stocks for the whole debt
was not affected by Scarth & Cochran's failure to do so-
that the Bank had, therefore, always the right to hold a
lien on the stock against the plaintiff for the amount due
them, which, as above stated, was reduced in 1885 to
$8»30O, but was afterwards increased by the amount they
advanced to take up the new stock, and that the defend-
ants, as equitable assignees of the rights of the Bank, are
entitled to hold the stock for this S8,300, and for the later
advances upon the new stock less any payments since
made by Cochran to the Bank in reduction of the amount.
No application was made to amend the pleadings, and I
think it was too late after the evidence had all been taken
to raise such a question, putting, as it does, the case of the
Loan Co. upon such an entirely new basis, unless the
evidence shewed the strongest and firmest foundation for
it. To come to a decision upon it I should have to go into
the whole account between the Federal Bank and Scarth
& Cochran, and to ascertain whether the Federal Bank
were chargeable with notice from time to time of the
plaintifTs rights. I must, therefore, refuse to give effect to
this contention.
I can find no evidence upon which I can hold that the
plaintift* has estopped himself from claiming his rights. In
his transfers to Scarth & Cochran he transferred to them
^' in trust," thus giving notice to all subsequent transferees
from them that their interest was not an absolute one :
36 — VOL XIX. o.R
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2»2
THE ONTARIO REPORTS.
[vol.
Judgment. Bank of Montreal v. Sweeny, 12 App. Oas. 617 ; Muir v.
Street, J. Carter, IG S.C.R. 473. He is not shewn to have been aware
until immediately before he gave notice to the defendants,
the Loan Co., that his stock had been improperly dealt
with by Scarth & Cochran, or either of them, and the
mere fact that he knew they had pledged it, when coupled
with Cochran s statement to him that it was intact, was
not one which required action on his part.
On the part of Scarth it was urged that he should not
be held liable for the acts done by Cochran after the
dissolution of the partnership ; that the loan eflfected upon
this stock whilst he was a partner with Cochran was no
greater than was justified by the state of the account
between the plaintiff and his firm, and that with regard to
the new stock, at all events, he is not in any way answer-
able for it.
Scarth &> Cochran became trustees of the 160 shares, and
their duty was to restore them to the plaintiff upon pay-
ment of their lien. Scarth had nothing to do with the new
stock, and was never a trustee of it ; his liability must,
therefore, be limited to the value of the 160 shares of old
stock, and against this he is entitled to credit for so much
of the balance due by Duggan now remaining as represents
the balance of the debt due by him to Scarth & Cochran
as a firm at the time of their dissolution.
The plaintiff is entitled, therefore, to recover from all the
defendants, including Scarth, the value of the 160 .shai'es,less
this balance of Scarth & Cochran*s claim as a firm against
Duggan ; and, in addition, to recover from the defendants,
other than Scarth, the value of the 638 new shares, less
the balance due by the plaintiff to Cochran upon the
dealings subsequent to the dissolution of the firm of Scarth
& Cochran. The value of the shares in each case is to be
taken at their highest market value between the date of
the plaintiff s tender to the Loan Co. and the 8th March,
1890, which was the day upon which the trial was con-
cluded: Bank of Montgomery v. Reese, 26 Penn. St. Rep.
143, and cases there cited.
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IIX.J RE INGOLSBY. 283
There should be a reference as agreed on by the parties Judgment,
to ascertain the value of the shares and to take the street J
necessary accounts, and the plaintifils should have their costs
against all the defendants.
G. A. B
[CHANCERY DIVISION.]
Re Inqolsby.
Devolution oj EatcUes Act — B, 8. O. ch. 108, see. 4, sub-sec- 2 — Election by
mil— Time of will taking effect.
An election by a widow to take her distribntive share in lieu of her dower
nnder sec. 4, sub-sec. 2 of "The Devolution of Estates Act," may be
made by will, which as to such election speaks from the time of its exe-
cution, and not from the time of her death.
This was an application in Chambers under Consolidated statement.
Rule 1006 for the opinion of the Court as to the validity
of an election made in a will by the widow of an intestate
under the " Devolution of Estates Act."
The matter came up on March 17, 1890, before Robert-
son, J.
McKechnie, for the executor of the deceased widow.
/. Hoskin, Q.C., for the infants.
The facts are sufficiently stated in the judgment.
April, 29, 1890. Robertson, J. :—
On or about 15th June, AD. 1889, Bernard Ingolsby
died intestate, having left him surviving his widow, Bridget,
and one or more infant children, and seized in fee or other-
wise beneficially entitled to certain lands in the county of
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284
THE ONTARIO REPORTS.
[vol.
Judgment, Peel. Afterwards, on or about the 31st day of August, in
Roberteon, J. the same year, the widow also departed this life, having
first made and published her last will and testament, bear-
ing date the 28th day of August, 1889, the said will having
been duly executed according to law.
Up to this date the widow had not elected to take her
interest, under section 4 of " The Devolution of Estates
Act," (R. S. 0. ch. 108) in her husband's undisposed of real
estate, in lieu of dower, but in her said will is the following
paragraph : " I elect to take a distributive share of my
deceased husband's real estate in lieu of dower therein.''
Letters of administration to the estate of Bernard
Ingolsby have been granted by the proper Surrogate Court
to Thomas Ingolsby, a brother of the intestate, since the
decease of the widow — and probate has also been granted to
the executor named in the will of the testatrix, the widow.
The question now is whether the election expressed in
and by the will of the widow, is a good election, under the
said 4th section of " The Devolution of Estates Act," sub-
sec. 2.
The 26th section of " The Wills Act of Ontario," declares
that " Every will shall be construed, with reference to the
real and personal estate compHsed in it, to speak and to
take eflect, as if it had been executed immediately before the
death of the testator, unless a contrary intention appears
by the will."
This will contains not only a devise and bequest,
but also a declaration ; the former is in relation to real
and personal estate of which the testatrix died seized,
in regard to which it is clear, that the will must be construed
to speak as if it had been executed immediately before the
death. As regards the declaration however, I am of opin-
ion that it must be held to have taken effect ahd to have
become operative, immediately upon the execution.
There is no doubt that for some purposes the date of the
will can be looked to for the purpose of ascertaining, for
instance, the intention of the testatrix ; and that being the
case, it is clear that three days before the death of the
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XIX.] RE INGOLSBY. 285
testatrix, she intended to elect to take a distributive share Judgment,
in the real estate of her deceased husband, and as the will Robertson, J.
was duly executed as a will, it follows that it must be
construed as an instrument within the said fourth section,
duly executed according to the requirements of that section.
I am therefore of opinion that the election thus made by
the widow was a good election, and that she became enti-
tled under the " Devolution of Estates Act," to all the bene-
fits arising thereunder.
Costs of all parties to be paid out of the estate of Bridget
Inorokb3'.
^ G. A. B.
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286
THE ONTARIO REPORTS,
[vol.
[QUEEN'S BENCH DIVISION.]
Stretton V. Holmes et al.
Negligence — Mistake in compounding medicine — Physician— Druggist— Costs.
A physiciaa wrote a prescription for the plaintiff and directed that it
snould be charged to him by the druggist who compounded it, which
was done. His fee, including the charge for making up the prescrip-
tion, was paid by the plaintiff. The druggist's clerk by mistake put
prussic acid in the mixture, and the plaintiff in consequence suffered
injury.
Held, that the druggist was liable to the plaintiff for negligence, but the
physician was not
Under the circumstances of the case no costs were awarded to or against
any of the parties.
Statement. This was an action for damages for negligence, tried
before Rose, J., and a jury at Goderich, on the 25th
October, 1889.
The defendant Thomas G. Holmes was a physician, and
the defendant George A. Deadman was a druggist. The
plaintifl being ill, her husband went for the defendant
Dr. Holmes, who came and prescribed for her. One
of the ingredients was hydrochloric acid. The husband
took the prescription to the defendant Deadman's drug
store. On it was written " Charge to T. G. H.," by which
was meant that the druggist should charge the mixture to
the doctor, which was done. The doctor charged his fee
and was paid by the husband. This fee included the
charge for the mixture.
In compounding the mixture the druggist's clerk by
mistake put in h^'drocyanic (prussic) acid instead of hydro-
chloric acid. The husband administered a dose to the
plaintiff, who suffered somewhat severely from either
fright or the effects of the poison.
The action was brought against both the doctor and the
druggist. The charge in the statement of claim was "that
the defendants in giving and preparing said presciiption
and in compounding said poisonous, deleterious, and noxious
mixture for the plaintiff, and in administering the same
or causing the same to be administered to the plaintiff, did
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XIX.] STRETTON V. HOLMES. 287
not exercise reasonable and proper care, and the plaintiff Statement
further charfires and the fact is that in their treatment of
the plaintiff in this particular matter the defendants were
guilty of gross negligence and want of professional care
and skill."
The only questions which it was thought neceasary to
leave to the jury were : (1st) whether the plaintiff suffered
injury from the administration of the hydrocyanic acid ;
(2nd) if so, whether or not the effect was merely temporary;
and (3rd) as to damages.
The jur}' found that the plaintiff did suffer injury ; that
the effect was merely temporary ; and they assessed the
damages at $100.
The argument was heard at Toronto on the 11th
December, 1889.
A. i/. Taylor, for the plaintiff. There should \e judg-
ment against both defendants. I refer to Thomas v.
Winchester, N. Y. Court of Appeals, July, 1882, reported
in Bigelow's Leading Cases on the Law of Torts, p. 602.
The defendant Holmes is liable for breach of contract.
The plaintiff paid him for medicine, and was entitled to
receive good medicine.
Garrow, Q.C., for the defendants, referred to Longvieid
Y.HoUiday, 6 Ex. 761; Gladwell v. Steggall, 8 Scott 60 ; 5
Bmg. N. C. 733 ; Butler v. Hunter, 7 H. & N. 826 ; Oillaon
V. NoHh Grey R. W. Go., 35 U. C. R. 475 ; Wheelhouae v.
Dareh, 28 C. P. 269 ; Bower v. Peate, 1 Q. B. D. 321 ;
Murphey v. Caralli, 3 H. & C. 462 ; Heaven v. Pender,
11 Q. B. D. 603, 507.
April 23, 1890. Rose, J. : — (After stating the facts as
above).
It is clear that the defendant Holmes was not guilty of
any nogligence in giving or preparing the prescription, and
had nothing to do with the preparation or administration of
the mixture, nor was any negligence in treatment shewn.
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288
THE ONTARIO REPORTS.
[vol.
Judgment The druggist personally was not guilty of any negU-
RosE, J. gence — the error was his clerk s — and had nothing to do
with preparing the prescription, administering the medicine,
or the subsequent treatment. In no sense was there joint
negligence.
I do not see how the fJaintift' can succeed against the
defendant Holmes for negligence. He was guilty of none.
His prescription was properly prepared and every act of
his was with due care. He was no more guilty of negli-
gence than if he had gone to the drug store and purchased
for the plaintiff a bottle of any prepared mixture which to
all appearance was properly prepared. See Longraeid v.
HoUiday, 6 Ex. 761, referred to in Heaven v. Pender, U
Q. B. D. .503.
But I think it is clear that the defendant Dead-
man is liable. The case of George and wife v. Skivingtoiir
L. R. 5 Ex. 1, is directly in point. Here, as there, the per-
son for whom the mixture was required was known— for
the prescription had written upon its face "Mrs. John
Stretton." That case also is referred to in Heaven v.
Pender,
See also Pippin v. Sheppard, 11 Prfce 400. and Glodwdl
V. Steggall, 8 Scott 60 ; 5 Bing. N. C. 733, referred to in
Longvieid v. Holliday,
The result is that the plaintiff is entitled to enter judg-
ment against the defendant Deadman for the $100, and
the action must be dismissed as against the defendant
Holmes.
As to costs, I do not feel inclined to certify to entitle the
plaintiff to full costs. On the finding of the jury the
plaintiff made a claim which was excessive and open to
observation. Siie may have honestly believed that all she
suffered, or thought she suffered, was from taking the
mixture in question, but the jury s finding is substantially a
finding that the effect of the poison was merely temporary
and passed away in a few hours.
While as a matter of law the druggist is liable, it is for
no personal act, and a claim of $10,000 was so excessive
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XIX.] STRETTON V. HOLMES. 289
that the award of $100 is a substantial failure on the Judgment.
plaintiflTs part. Rosb, J.
Mr. Garrow said that his clients were willing, in the event
ofeitherbeingfoundliable,to have judgment entered against
such defendant wilhout costs rather than to have judgment
ag*ainst one with costs, and in favour of the other with
costs. And as, if I do not certify, there would in one event
be the further complication of setting off costs, I think
perhaps the fairest course will be to act on Mr. Gafrow's
suggestion and direct judgment to be entered for plaintiff
for $100 without costs against the defendant Deadman,
and for the defendant Holmes dismissing the action with-
out costs.
37— VOL. XIX. O.R.
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290 the ontario reports. [vol.
[queen's bench division.]
Gibbons v. McDonald et al.
Bankruptcy and insolvency — Insolvent debtor — Morfga^je to crfdltor— Pre-
Jerence— Notice or knowledge of insolvency^B. S. 0. cA. 7j?4, sec. 2,
A farmer mortgaged his farm to secure a debt dae by him to the mort-
gagee^ and a small sum advanced at the time the mortgage was made.
He knew at the time he made the mortgage that he was unable to pay
his debts in full, and that he was giving the mortgagee a preference
over his other creditors. The practical effect was tnat the mortffagee
was paid in full and that the rest of the creditors received nothing.
The mortgagee, however, was not aware at the time he took the mort-
gage that the mortgagor was in insolvent circumstances.
Held, following Johnson v. Hope, 17 A. H. 10, that the mortgage was not
void against creditors, under sec. 2 of R. S. O. ch. 124.
Statement] This was an action tried before Street, J., without a
jury, at the Goderich Assizes, on April 1, 1890.
The plaintiff was th6 assignee under R. S. O. eh. 124 of
Andrew Morrison, a farmer, under an assignment for the
benefit of creditors dated December 12, 1889, and the
action was brought by him to set aside as a preference a
mortgage for $600 made by Andrew Morrison to the defen-
ant McDonald, on November 9, 1889. upon the farm of the
mortgagor. The mortgage had been assigned before action
by McDonald to the defendant Heffeman, and the plaintiff
at the trial asked leave to claim from McDonald the pro-
ceeds of the sale of the mortgage in case it should be held
to be a sale which could not be impeached
The case was argued at the conclusion of the evidence.
Ga/rroWy Q.C., for the plaintiff. The recent case of
JohTison V. Hope, 17 A. R. 10, does not apply to a case
like this, where a mortgage is given to a creditor, but only
to the case of an advance by a lender upon the security of
a mortgage. This is clearly a fraudulent preference: River
Stave Co. v. Sill, 12 O. R 657; MoUon'a BarUc v. Halter,
16 A. R. 323 ; Mae v. McDonald, 13 O. R 352. As to the
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XIX.] GIBBONS V. M'DONALD. 2S
position of Heffeman, EUioU v. McConneU, 21 Gr. 276, ArgnmeniL
and Totten v. Douglas, 18 Gr. 341, shew that the purchaser
of a mortgage takes subject to all the equities. I also refer
on this point to Ryckman v. Canada Life Assurance Co.^
17 Gr. 550 ; Wilson v. Kyle, 28 Gr. 104 ; Coote on Mort-
gages, 4th ed., p. 659; Parker v. Clarke, 30 Beav. 54;
Ogilvie v. Jeafreson, 2 Giff. 353, to be distinguished
from Oeorge v. MUbanke, 9 Ves. 190.
M. G, Cameron, for the defendant McDonald. My client
is not a proper party, having parted with the mortgage.
There can be no judgment against him except upon terms
of his being restored to his rights. But at any rate the
mortgage is not void against him : Roe v. McDonald, 13
0. R 352 ; Kennedy v. Freeman, 15 A. R. 216, remarks of
Burton, J. A., at pp. 222 et seq. ; Johnson v. Hope, 17
A. R. 10.
MaheCy for the defendant Heffeman. Neither McDonald
nor Heffeman had notice of the insolvency of Morrison,
and the mortgage is not void : Johnson v. Hope, 17 A. R.
10 ; Lamb v. Yovmg, 19 O. R. 104; Bwms v. McKay, 10
0. R. 167 ; Lancey v. Merchants Bank, ib, 169. Heffeman,
at all events, is a purchaser of the mortgage for value
without notice, and the mortgage is not void as against
him : R. S. O. ch. 102, sec. 32 ; Wright v. Leys, 8 O. R. 88 ;
Davis V. Hawke, 4 Gr, 394 ; Jvdd v. Oreen, 45 L. J. Ch.
108 ; 33 L. T. N. S. 597 ; Nant-y-Glo v. Tamplin, 36
L T. N. S. 125. If the mortgage is declared void, Heffernan ^
is entitled to relief over against McDonald for the mortgage
money and costs betweoi solicitor and client : Powell v.
Baker, 13 C. P. 194 ; Meal Esta^ Investment Co. v. Metro-
pditan Building Society, 3 0. R. 476 ; Hutton v. Wanzer,
11 P. R 302.
May 1, 1890. Street, J. :—
At the time the mortgage was given the mortgagor
owned the following property :
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292
THE ONTARIO REPORTS.
[vol.
Judgment The fatin in question, the extreme cash value of
Street, J. which certainly did not exceed $6500 00
Subject to a mortgage for $5000 and interest . . 5150 00
Chattel property worth about
Less the value of his wife's dower in the land.
And he owed debts to the amount of about . .
J1350 00
. 550 00
$1900 00
. 4100 00
Leaving a clear deficiency of $2200 00
I arrive at the amount of the debts by taking their
amount at the time of the assignment, viz. : $2960, besides
the debt of $571.50 to McDonald, and adding to this the
debts which Morrison swore he paid off before the assign-
ment out of the proceeds of the $550 worth of chattel
property, between the making of the mortgage and the
date of the assignment.
The mortgage was given to secure a debt of $571.50 due
by the mortgagor to the mortgagee, and the sum of $28.50
advanced at the time the mortgage was made.
It is clear from the evidence of the mortgagor that he
knew when he made the mortgage that he was unable to
pay his debts in full, and the circumstances are such that
he cannot have been ignorant of the fact that by making
the mortgage he was giving McDonald a preference over
his other creditors.
It is equally clear that the necessary effect of the making
of the mortgage has been to give to this creditor McDonald
a preference over the other creditors of the mortgagor; the
assignee has only the equity of redemption in the land
subject to the two mortgages — an asset which is not worth
more than $750 — with which to pay debts amounting to
$2960. The practical effect wmII he that McDonald will
probably be paid in full, and that the rest of the creditors
will receive nothing.
There is, however, upon the evidence nothing to shew
that McDonald was aware at the time he took the mortgage
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XIX.] GIBBONS V. MCDONALD.
that Morrison was in insolvent circumstances ; his credit Judgment,
up to this time had been perfectly good ; and McDonald street, J.
swears that he was not aware of his circumstances, and had
no reason whatever to doubt his solvency.
Under these circumstances, were I to follow the view
which I confess I have hitherto entertained of the meaning
of sec. 2 of ch. 12i, R. S. 0.* I should hold the mortgage
to be void as b«ing a transfer having the effect of giving
to McDonald a preference over the other creditors of the
mortgagor. I conceive, however, that I am bound to decide
otherwise by reason of the construction placed upon this
and the 3rd sec. of the Act by the unanimous judgment of
the Court of Appeal in the late case of Jolui'^on v. Hope,
17 A. R. 10. 1 might without difficulty distinguish between
the facts in that case and those in the present case, but the
principle is too broadly and clearly laid down to justify
me in treating it as being inapplicable to the facts of the
present case ; that principle being, as I understand it, that
unless notice of the insolvency of the transferor is brought
home to the transferee, the transfer is not avoided even
though its effect may be to give one creditor a preference
over the others. I have no course open, therefore, in the
present case but to order that the action be dismissed with
costs.
* 2. Every gift, conveyance, aesignment, or transfer, delivery over or
payment of gxKls, chitteU, or effects, or of bills, bi^nds, notes, securities,
or of shares, dividends, premiums, or bonus in any bank, compiny, or
corporation, or of any other property, real or personal, made by a person
at a time when he is io insolvent circumstances, or is unable to pay his
debts in full, or knows that he is on the eve of insolvency) with intent to
defeat, delay, or prejudice his creditors, or to give to any one or more of
them a preference over his other creditors, or over any one or more of
them, or which has such effect, shall, as against them, be utterly Toid.
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294
THE ONTARIO REPORTS.
[vol.
statement.
[QUEEN'S BENCH DIVISION.]
Rose v. Township of West Wawanosh et al.
Municipal corporations — By-law authorizing taking of gravel tcilhout speci-
fying lands— Illegality— R, S. O. ch, 184^ ^^- ^^Oy 9ub-fec. 8; sec. 33S
— Jnjunctioti without quashing by-lajw.
By see. 650, sub-sec. 8, of R. S. O. ch. 184, the council of every tovmship is
authorized to pass by-laws for searching for and taking such timber,
f ravel, stone, or other material or materials as may be necessary for
eeping in repair any road or highway within the municipality :—
Held, that the meaning of this section is that the council may, as necessity
arises for their doing so, exercise the right to take gravel, &c ., from any
particular parcel or parcels of land, bavins first declared the necessity
to exist and chosen and described the land from which the material is
to be taken, by a by-law ; and therefore a by-law, purporting to be
passed under this section, which authorized and empowered the path-
masters and other employees of the corporation to enter upon any land
within the municipality when necessary to do so, save and except
orchards, gardens, and pleasure-grounds, and search for and take any
timber, gravel, &c., was upon its face illegal, because it purported to
confer upon its officers wider and more extensive powers than the
statute authorized : —
Held, also, notwithstanding the provisions of sec. 338 of R. S. O. ch. 184»
that the plaintiff was entitled without quashing the by-law to an in-
junction to restrain the defendants from proceeding to enforce the rights
they claimed under this by-law, by entering upon his lands.
This action was tried before Street, J., without a jury,
at the Goderich Assizes on 1st April, 1890.
The plaintiff claimed to be owner of the lands in ques-
tion under the will of his father subject to the life estate
of his mother, Isabella Rose. The action was brought
against the corporation of the township of West Wawa
nosh, and certain persons acting under their authority, to
restrain them from removing gravel from the land ia
question. The defendants claimed the right to take the
gravel under a by-law of the corporation, of which the
following is a copy :
" Municipality of West Wawanosh.
By-law No. 3, 1889.
Whereas power is given by the R. S. O. 1887 ch. 184,
sec. 550, sub-sec. 8, to township councils to pass by-laws
for searching for and taking such timber, gi'avel, stone, or
other material or materials as may be necessary for mak-
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XIX.] ROSE V. TOWNSHIP OF WAWANOSH. 2J
ing and keeping in repair any rpad or highway belonging Stotement.
to or within the municipality. Be it therefore enacted
by the council of the corporation of West Wawanosh,
and the same is hereby enacted, that the pathmasters and
other employees of the corporation of the said township
of West Wawanosh be and are hereby authorized and
empowered to enter upon any land within the municipal-
ity when necessary to do so, save and except orchards,
gardens, and pleasure grounds, and search for and take any
timber, gravel, stone, or other materials necessary for mak-
ing and keeping in repair any road or highway in the
township of West Wawanosh; and the right to enter upon
such land as well as the price or damage to be paid to any
person for such timber or materials shall, if not agreed
upon by the parties concerned, be settled by arbitration
under the provisions of this Act. Passed this 11th June,
1889."
This by-law had not been quashed.
R. S. O. ch. 184, sec. 550 — The council of ^e very county,
township, city, town, and incorporated village may pass
by-laws. * * * 8. For searching for and taking such
timber, gravel, stone, or other material or materials (within
the municipality) as may be necessary for keeping in
repair any road or highway within the municipality ; and,
for the purpose aforesaid, with the consent of the council
of an adjoining municipality (by resolution expressed) for
searching for and taking gravel within the limits of such
adjoining municipality, and the right of entry upon such
lands, as well as the price or damage to be paid to any
person for such timber or materials shall, if not agreed
upon by the parties concerned, be settled by arbitration
under the provisions of this Act.
(a) But no such gravel shall be taken or removed from
the premises of any person in an adjoining municipality
until the price or damage has been agreed^ upon between
the pai-ties or settled by arbitration.
The case was argued at the conclusion of the evidence.
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296
THE ONTARIO REPORTS.
[vol.
Argument. Garrow, Q.C., for the plaintiff. The by-law is clearly
bad : In re Ingerabll and Carrolly 1 O. R. 488. Where
the by-law is not within the competence of the council
the plaintiff may maintain an action without having it
quashed : Connor v. Middagh, 16 A. R. 356. It is not
necessary to quash a by-law to get an injunction, nor even
to recover damage? in every case. Here there is no by-
law applicable.
M. C, Cameron, for the defendants. Sec. 550, sub-sec.
8, of the Municipal Act gives the power which was here
exercised. I refer to Stonehouse v. Enniskillen, 32 U.
C. R. 562 ; Harding v. Cardiff 29 Gr. 308 ; 2 O. R. 329.
Compensation under the Act is the plaintitTs remedy, and
where there is a remedy of that kind an action will not
lie: Pratt v. Stratford, 14 O. R. 260; 16 A. R. 5 ; Adams
V. Toronto, 12 O. R. 243; Canadian Land, etc., Co. v.
Dysart, 9 O. R. 495 ; 12 A. R. 80. The by-law, not hav-
ing been quashed, the Court will not interfere by injunc-
tion : Carroll v. Perth, 10 Gr. 64 ; Grier v. St. Vincent, 12
Gr. 330; 13 Gr. 512; Vandecar v. East Oxford, 3 A. R.
131. Sec. 338 of the Municipal Act, R. S. O. ch. 184,
shews that no action can be brought till after the by-law
has been quashed, and also that one month s notice of
action is necessary. I refer to Smith v. Toronto, 11 C. P.
200 ; Black v. White, 18 U. C. R. 362 ; Wilson v. Middlesex,
18 U. C. R. 348 ; Barclay v. Darlington, 5 C. P. 432 ;
Carmichael v. Slater, 9 C. P. 423 ; Haynes v. Copeland,
18 C. P. 150; Malott v. Mersea, 9 O. R. 611; Dennis v.
Hughes, 8 U. C. R. 444.
[Argument was also heard as to the construction of the
will of. the plaintiff's father.]
May 1, 1890. Street, J.:—
I am of opinion that in passing a by-law in this form
the council have not carried out what was intended by
the Legislature by the section referred to in it; if so
general a power had been intended it would have been
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XIXj ROSE V. TOWNSHIP OP WAWANOSH. 297
easier for the Legislature to say at once that every path- Judgment,
master and other employee of each municipality should stre«t, j.
have the right to enter upon any land whenever he
thought it necessary to do so and to search for and take
gravel, timber, stone, and other materials. In the present
case the defendants without any further preliminary pro-
ceeding began to take gravel from the plaintiff's land, and
when the owner protested they justified their action by
pointing to this by-law.
What the Legislature did intend, I think, as I gather its
meaning from the section referred to, was that the council
should, as necessity arose for their doingr so, exercise the
right to take gravel from any parcel or parcels of land,
having first declared the necessity to exist and chosen and
described the land from which the gravel was to be taken,
by a bj'-law. This by-law is therefore, I think, upon ita
face illegal, because it purports to confer upon its officers
powers much wider and more extensive than the statute
authorizes.
It was objected on the part of the defendants that even
supposing the by-law to be illegal they were protected by
sec. 338 of the Municipal Act from any action, because it
has not been quashed. It is perhaps true that the plain-
tiff here might be unable until he had quashed the by-law
to recover damages for any thing done under even such a
by-law as this ; but the damages here claimed are trifling ;
the substantial relief sought is an injunction to restrain
the defendants from proceeding to enforce the rights they
claim under this by-law. Sec. 338 * does not tie the
hands of a person threatened with damage under an illegal
* R. S. O. ch. 184» sec. 33S^n case a by-law, order, or resolution is
illegal in whole or in part, and in case any thing has been done under it
which, by reason of such illegality, gives any person a right of action,
no such action shall be brought until one month has elapsed after the
by-bw, order, or resolution has been quashed or repealed, nor until one
month's notice in writing of the intention to bring the action has been
given to the corporation, and every such action shaX be brought against
the corporation alone, and not against any person acting under the by-
law, order, or resolution.
38 — VOL. XIX. O.R.
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298 THE ONTARIO REPORTS. [YOL.
Judgment, by-law ; it Only prevents his bringing an action to recover
Street, J. damages for a wrong already done him until he has
quashed it. There is nothing therefore in that section to
prevent the plaintiff from maintaining this action, so far
as it is based upon a claim to restrain further damage. See
Wilson V. Middlesex, 18 U. C. R. 348
[Judgment was also given in favour of the plaintiff
upon the construction of his father's will, holding that he
became entitled thereunder to a vested remainder in fee,
* and that he was entitled by virtue of that estate to
restrain the defendants from injuring his inheritance by
taking away gravel, and to the injunction for which he
asked, with costs to be paid by the defendants. No inquiry
as to damages was directed.]
Digitized by VjOOQIC
XIX.] RE GOODFALLOW, TRADERS' BANK V. GOODFALLOW. 299
[CHANCERY DIVISION.]
Re Goodfallow, Traders' Bank v. Goodfallow.
Banks and banking— Warehouse receipt— WhecU converted into fiour —
Following moneys representing such flour — R. 8. G, ch. 1£0, sec, 56.
A miller gave a warehoase receipt to a bank on some wheat " and its pro-
duct " stored in his mill for advances made to him and died insolvent
about two months after. During this period wheat was constantly going
out of and fresh wheat coming into the mill. Just before his death the
bank took possession and found a large shortage in the wheat which
had commenced shortly after the receipt had been given and had con-
tinued to a greater or less degree all the time.
In the administration of his estate it appeared that during the period of
shortage some of the wheat had been converted into flour which had
been sold and the proceeds, which were less than the value of the
shortage paid to the administrator : —
Beld, that the bank was entitled to the purchase money of the flour.
This was an appeal from the report of the Master of this Statement
Court at St. Thomas, made in the above proceedings, which
were for the administration of the estate of one Goodfallow,
deceased.
In the course of the administration the Traders' Bank
of Canada put in a claim to certain moneys, the proceeds
of flour sold out of the mill of Goodfallow under the follow-
ing circumstances.
On April 12th, 1888, the Traders' Bank took from
Goodfallow, who was a miller, a warehouse receipt on 2,800
bushels of " wheat and its product,'' which were in his
mill at Aylmer. The receipt was in the following form: —
The undersigned acknowledges to have received from G. W. Goodfallow
and to have stored in my warehouse the following goods, wares and
merchandise, viz : (2,800) twenty-eight hundred bushels of wheat and its
product. Which goods, wares and merchandise are to be delivered pursu-
ant to the order of the Traders* Bank of Canada, to be endorsed hereon,
and are to be left in store till delivered pursuant to meet order.
This is intended as a warehouse receipt within the meaning of the
Statute of Canada, entitled *^ An Act relating to Banks and Banking," and
the amendments thereto, and within the meaning of all other acts and laws
under which a Bank in Canada may acquire a warehouse receipt as security.
(Sigd.) G. W. Goodfallow.
Dated Aylmer, 12th April, 1888.
The evidence shewed that Goodfallow died on June 19th,
1888 ; that the manager of the Bank at Aylmer entered to
Digitized byVjOOQlC
300
THE ONTARIO REPORTS.
[vol.
Statement, take possession of the wheat covered by the receipt a few
days before this, and then for the first time found that
there was a shortage amounting in value to over $800;
and that, in fact, there were only 742 bushels of wheat
found in the mill ; that this shortage had commenced on
April 27th, 1888, and continued steadily till the date
when the Bank took possession, and till the death of
Goodfallow, at no time amounting to less than a shorta^
of 600 bushels, which would represent a value of very much
more than the money in question in this appeal ; that there
was no reason to suppase that the wheat in the mill from
April 27th onwards was the same wheat as that in the
mill when the receipt was given, but, on the contrary,
wheat was constantly going out and fresh wheat coming
in in the course of Goodfallow's business; that between
April 27th and Goodfallow s death certain wheat had
been made into flour by Goodfallow, and the flour sold to
various parties who had paid their purchase money to the
Toronto General Trusts Company, who had been appointed
by order, to represent the esUite as administrators, and who
* admitted that it was the product of the flour, as above
mentioned, and paid it into Court ; that the money thus
representing flour sold was $I0/).63.
This was the sum in question in this appeal, and was
claimed by the Bank under the above circumstances. The
estate, however, proved insolvent, and this preferential
claim was disputed by the administrator.
The Master held that the Bank were entitled to take
the wheat found in the mill at Goodfallow's death, but
that it could not follow the flour or its proceeds without
proving that it was made from the identical wheat covered
by the warehouse receipt.
The Traders' Bank now appealed from the Report in
respect to this ruling, and the appeal came on for argument
before BuYD, C, on April 3rd, 1890.
A. H. F. Lefroy for the appeal. If this money in
question had been in its original form of wheat, and had
Digitized by
Qoo^^
IIX.] RE GOODFALLOW, TRADERS* BANK V. GOODFALLOW. 301
been in the mill when we took possession, the Master him- Argument,
self holds we could have appropriated it. It was not
necessary to prove its identity with the 2„800 bushels of
wheat in the mill when the receipt was given : Coffee v.
Quebec Bank, 20 C. P., at pp. 117, 120, 124; Clark w.
Western Assurance Co., 25 U. C. R 209. This being so,
the Bank Act, R. S. C. ch. 120, sees. 56 and 57, especially,
gives the same right to flour, the product of the wheat, as
to the wheat itself ; while the general principles of equity
give to us the right to go further and follow the mone}''
proved to now represent that flour : Culhane v. Stuart, 6
0. B. 97, and the cases there cited. There is an American
case McLarren v. Brewer, 51 Maine, 402, which is very
nearly on all fours with this case.
Malone, contra. Not having proved that this flour was
the product of wheat included in the 2,800 bushels referred
to in the receipt, the appellants are not entitled to succeed.
April 3rd, 1890. BOYD, C. :—
The Bank is entitled to recover the price of all flour
made f rona wheat covered by the warehouse receipt. There
was wheat to answer the receipt when it was given, but
the shortage began on April 27th, 1888, and, as the Master
finds, continued varying in amount till the death of the
receiptor in June, 1888, and appears to have been never
less than 648 bushels at any time. $105 have been received
in respect of wheat or flour sold between April 27th, and
June 19th, 1888, which represents a less sum than the
amount of shortage at any time during this period. This
money must, therefore, be attributable to wheat which was
covered by the warehouse receipt, and is in contemplation
of law to be identified as the Bank's property. When the
receiptor reduced the wheat in his mill to a quantity equal
to, or less than, the amount in the receipt, the whole of the
wheat in his mill was the Bank's property. Such was the
condition of affairs from April 27th. Therefore all the
wheat made into flour after that date and sold to custom-
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"802 THE ONTARIO REPORTS. [VOL
Judgment, ers Was wheat belonging to the Bank. As long as the
Boyd, C. " product " of this wheat can be traced, whether it be in
flour or in money, it is recoverable by the Bank as
against the deceased and his administrator.
The appeal should be allowed, and costs of claim in
the Master's office and of appeal (taxed on scale propor-
tionate to the amount involved) should be added to ihe
Bank's debt.
A, H. F. L.
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XIX.] PAiSLST y. wiLLa 803
[OOMMOK PLEAS DIVISION.]
Paisley v. Wills.
specific perjormance — DUcovery of toant of UtU — B^nidiation on other
grounds — Control qftiUe^Fraud,
To an action for specific performance of an agreement for the exchange of
lands Uie agreement was admitted, the onfy defence beinc fraud and a
ropndiation therefor. A month prior to the trial, the defendant ascer-
tamed that the plaintiff's wife and not the plaintiff, was the owner of
the land, and tnisbt she had executed a deed thereof to he delivered to
the defendant. No claim for repudiation was made on the ffround of
want of title At the trial the defendant was allowed to amend by setting
up that neither at the time of the agreement nor at the commencement
ot tiie action was the plaintiff the owner of the land, without any aver-
ment ^t on the discovery thereof the defendant repudiated on such
ground :-^-
Held, that the amended defence constituted no answer to the action, and
that the defendant not having repudiated when he ascertained the
plaintiff had no title, it was sufficient if the plaintiff made title on the
reference therefor.
This was an action tried before Ferguson, J., at Toronto, Statement.
at tbe Autumn Chancery Sittings of 1889.
The facts sufficiently appear in the judgment of
Rose, J.
In Michaelmas Sittings, 1889, ShiUon obtained a stay of
proceedings, and moved on notice to set aside the judgment
and to enter judgment for the plaintiff, or for a new trial.
In the same sittings, December 7th, 1889, ShUton
supported tbe motion. The learned judge should not have
allowed the defendant to set up the defence of want of
title. This under the circumstance is a technical defence,
and k made too late : Collette v. Ooode, 7 Ch. D. 842 ;
Gcmghill v. Olarkf 9 P. R. 471 ; Oates v. 8v/preme CouH
of Foresters, 4 O. R. 686. A party must set up every
defence in his pleading, or if he desires amendment to be
made at the trial he should give notice of his intention to do
so: Roscoe, N. P. Ev., 15th ed., 297. Con. Rule 444, only
authorizes amendments necessary to the advancement of
justice, determining the real question or issue raised by or
depending on the proceedings, and best calculated to
89 — VOL. XIX. O.B.
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304 THE ONTARIO REPORTS. [VOL.
Argument secure the giving of judgment according to the very right
and justice of the case. Certainly if the defendant were
allowed to set up such defence the plaintiff should have
been allowed to amend by adding or substituting the wife
as a party plaintiff: Con. Rule 4«4«5; Thome v. WiUiaTns,
13 O.R. 577. The cases shew that the wife should have been
added : Henderson v. WhUe, 23 C. P. 78. Blake v. Done,
7 H. & N, 465, McGuin v. Fretts, 13 0. R 699. The husband
had authority from his wife to enter in the contract. It is
sufficient if plaintiff could shew title on the reference to the
master: McDonald v. Murray, 11 A. R. 101, 120, Patan
V. Rogers, 6 Madd. 256 ; MoHlock v. Butler, 10 Ves. 315 ;
Jenkins v. HUes, 6 Vea 646 ; Sidebotham v. BarringUm, 4
Beav. 110.
Bain, Q. C, contra. In order to enforce a contract for
the sale of land there must be mutuality. The plaintifi
had no title to the land, and never had what he con-
tracted to convey, and the defendant was entitled to
and did repudiate the contract. The only title the vendor
had was contingent upon the will and volition of a third
person, namely his wife, and he had no power to compel her
to convey. The vendor must have title at the time he
enters into the contract : Brewer v. Broadwood, 22 Ch.
D. 105, 109; ForreTY, Nash, 35 Beav. 167; Wylson v. Dunn
34 Ch, D. 577 ; Fry on Specific Performance, 2nd ed., 201,
203 : Dart on V. & P., 6th ed., 180 ; BusseU v. Romanes,
3 A. R. 635, 642-3. The plaintiff contends that he had a
verbal authority from his wife to enter into the contract,
but such authority to be binding should have been under
seal: Evans on Principal and Agent, 22. The cases
referred to by the other side are distinguishable, for there
was no repudiation.
ShiUon in reply. There was no repudiation here on the
ground of want of title but of fraud, and it was not until
the trial that the repudiation for title was attempted to be
set up. The wife had executed a deed ready to be delivered
to the defendant.
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3IX.] PAISLEY V. WILLa 806
March 7, 1890. Rose, J.:— Jndgment
Ross, J.
The case came down for trial on the following pleadings^
The plaintiff set out an agreement under seal between
himself and the defendant for an exchange of lands, the
one property being described as being the defendant's and
the other as belonging to the plaintiff.
The agreement was in the shape of an offer under seal by
the defendant and an acceptance under seal by the plaintiff.
The statement of claim averred the performance of all
necessary conditions on the plaintiff's part and the refusal
by the defendant to perform the agreement on his part
The claim was for specific performance, or for damages.
The defendant admitted the execution of the agreement;
^t up that he was induced to enter into the agreement
by the plaintiff^s fraud, and that so soon as he became
aware of the fraud he repudiated and offered to cancel the
agreement.
By counter-claim the defendant asked for a decree for
Tescission on the ground of the fraud alleged.
On this the plaintiff joined issue. The joinder was on
the 12th of September, 1889.
On the 7th of October, 1889, the plaintiff was examined
for discovery, when it was shewn that the deed of the
property he agreed to exchange was in his wife's name.
The following questions and answers were read at the
trial from such examination :
" Q. I suppose your wife trusts you implicitly in the sale
•of this farm ? A. She has done so. Q. You have author-
ity to act for her ? A. Yes, sir. Q. You have no deed
from her ? A. I have no deed. The deed has been made
out to Mr. Wills from her."
Upon this examination the defendant made an application
ior security for costs. The plaintiff was given leave to
make the wife a party or to give security for costs. He
elected to give security for costs.
No application for leave to amend was made by the
•defendant until the trial, when upon the case opening, his
his counsel, said: "I ask leave to amend as follows:
Digitized byVjOOQlC
306 TH£ ONTARIO BEPORTa [YOL.
Judgment < That at the time of the alleged agreement the plaintiflT
Rose, J. was not the owner of the land, and was not the owner at
the time of the commencement of the action.' "
This was opposed by the plaintifi's counsel, who con-
tended that the defendant should have applied earlier — bs
soon as he became aware of the facts — but hb objection
was overruled and the amendment allowed.
The plaintiff then applied for leave to amend, adding
the wife as a party plaintiff.
On such application plaintiff's counsel stated that "a
conveyance from the plaintiffs wife to the defendant was
executed by her and offered to the defendant, but this was
after the repudiation of the contract by the defendant."
The only repudiation mentioned before this was the one
in the pleadings on the ground of fraud, and we must take
it that the plaintiff's counsel referred to such repudiation.
Plaintiff's counsel subsequently applied for leave to amend
by substituting the wife as plaintiff, and in doing so stated
that the plaintiff was prepared to bring evidence to shew
that at the time of the agreement, and before the agree-
ment was entered into, the defendant was made aware of
the fact that the wife owned the property.
The plaintiff^s application for leave to amend was re-
fused. No evidence was taken except as stated by counsel;
and the action was dismissed with costs, on the ground
that the title was not in the plaintiff.
The learned Judge said: ''I think authorities show the
objection taken by the defendant's counsel on ihe record
is a valid objection, and it is not even hinted that the
amendment was a surprise to the plaintiff. I think the
proper course is to dismiss this action with costs."
Plaintiff's counsel then applied for a stay to enable him to
take the opinion of this Court, stating that he was taken
by surprise.
This application was also refused, and the action dis-
missed with costs.
The case comes before us in a rather unsatisfactory
shape. We have to take the facts from the record and
Digitized byVjOOQlC
XiX.] PAISLEY V. WILLS. 307
statements of counsel during the argument before the Jadgmeni
learned Judge at the trial Rose, j.
We havenow to consider whether on this record and state-
ment of facts the plaintiff was entitled to have the trial pro-
ceed, or whether the mere fact that the title was not in him,
although he had control of it, prevented his recovery.
Mr. Shilton's statement that the defendant knew at and
before the date of the agreement that the title was in the
wife was not denied. He certainly knew it at the date of
the examination for discovery, and as he chose to come down
for trial without setting up any defence, and without
alleging repudiation, on such ground, but solely relying on
the charge of fraud, I do not think he was entitled to any
consideration at the hearing. He must now, I think,
be held strictly to the defence he has been permitted
to raise, and certainly no further amendment should
be permitted. Had the trial proceeded on the record
as originally framed, it seems to me that the only issue
was fraud, and if the defendant had failed on that»
the plaintiff would have been entitled to a decree for
specific performance with a reference as to title, and if he
could have shewn title at any time up to the report or
decree on further directions he would have succeeded. If
this is so, did the amendment as made prevent his recovery ?
As to the effect of pleadings see Richardson v. Jenkin^ 10
P. R. at p. 294.
Now what was the contract ? Wilson, 0. J., in McDon-
ald V. Mv/rray, 2 0. R 573 at p. 584, says: "The plaintiff in
such a case has engaged that whenever he can be called on
to make a good title he will make it. He does not engage
that he himself has the title, but that he will convey a
good title : Ma/rsden v. Moore, 4 H. & N., 500, at p. 502.
The title is perfect when the abstract shews the vendor
is either himself competent to convey or can otherwise
procure to be vested in the purchaser the legal and equit-
able estate free from encumbrances. See also Dart on
Yendors and Purchasers, 6th ed., 321, et aeq.^*
And Mr. Justice Patterson in 8. 0. 11 A. R., 101, at p. 120,
says: "* * because as the learned Chief Justice pointed
Digitized byVjOOQlC
308 THB OKTABIO REPORTS. [VOU.
Jmdgment out in delivering the judgment of the Court, it was not
Rose, J. essential that the plaintiff should himself have any title
to the land until the time arrived for the conveyance to
the defendant.'*
In Fry on Specific Performance, 2nd ed., p. 576, sec.
1339, it is said : ''The enquiry is whether the vendor can
make a good title, not whether he could do so at the date
of the contract, and therefore when once the inquiry has
been directed he may make out his title at any time before
the certificate, and if he can do so he will be entitled to a
judgment or order in his favor, at least where there has
been no unreasonable delay and time is not material."
An examination of the cases will shew, I think, that
while the Court has said that it will discourage speculating
in other persons' titles, as for instance where one having no
interest in an estate enters into a contract for its sale on
the chance of being able to purchase or to procure the
owner to convey, it has never eaid that where one not hav-
ing the title but acting in good faith in the interest of the
owner with the owner's knowledge and consent, enters into
a contract for sale in his, the plaintiff's own name, the
owner being at such time and at all times ready and will-
ing to convey, performance of such a contract will not be
enforced, especially when the purchaser was made aware
of the facts from the beginning.
It has been held that where the vendor has no title, and
this fact has been made known to the purchaser after the
making of the contract, he could at once repudiate, and
was in a position to ask for rescission, but if he chose
not to repudiate but to act upon the contract, to treat it as-
valid and binding, he could not afterward be heard to raise
the objection if the vendor could make good title at any
time before the decree on further directions.
The cases I think fully bear out these propositions.
See Daniell's Chancery Practice, 6th ed., pp. 785-6, 1377^
1113.
In Paton v. Rogers, 6 Madd. 266, the Vice-ChanceUor
held that the vendor might at the hearing on further direc-
tions cure the objection there raised.
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XIX.] PAISLEY V. WILLS. 809
In Eadaile v. Stephenson^ same volume, p. 366, the Vice- Judgment.
Chancellor, Sir John Leach, consulted with the Lord Chan- Rose, J.
cellor. Lord Eldon, with a view to settle a general rule, and
this role was formulated : " That where a necessary party
to the title was neither in law or equity under the control
of the vendor, but had an independent interest, unless
there was produced to the master a legal or equitable obli-
gation on the part of the stranger to join in the sale, the
master ought to report against the title ; otherwise, where
a necessary party to the title was under the legal or equit-
able coyatrol of the vendor, as a mortgagee, there the master
might well report that upon payment of the mortgage a
good title could be made. That if the master should report
agmnst the title, and at the hearing upon JuriJier di/rec-
tions the vendor had cured the defect, the Court would then
compel the purchaser to taJce the title, although it would
not suspend the contract with a view to a future proceed-
ing to perfect the title ; that if the fact, whether the ven-
dor could at the hearing cure the defect were in question it
must be then sent back to the master to review his report
with the additional circumstances." This case and rule
are cited in the text books without comment.
In Hoggart v.Scott,l R.& M.,(1830),293, at p. 295, it is said :
*' An objection was taken at the hearvng, that the plaintiff
at the time of the contract had no power of sale and that
the contract, therefore, could not be enforced." Sir John
Leach, M. R, said: "The objection must be overruled.
The defendant, if he had thought fit, might have declined
the contract as soon as he discovered that the plaintiffs had
no title ; and he was not bound to wait until they had
acquired a title ; but, he not having taken that course, it is
enough that at the hearing a good title can be made."
Unless that decision has ceased to be good law it seems
to me decisive in the plaintiff's favour on the facts as they
appear here.
I find the case referred to in both Dart on V. &
P., 6th ed., p. 1178, and Watson's Compendium of
Equity, 2nd ed., p. 1127, as good law ; and in Dart, at p.
Digitized byVjOOQlC
310 THE ONTARIO REPORTS. [TOU
Judgment. 1178, there is the following text : "But as a general rale
K^ose, J. where no legal invalidity affects the contract the enforce-
ment of it in equity is a matter of judicial discretion, and
in several cases specific performance has been decreed at
the suit of vendors, who contracting under the bond fide
belief that they could make a good title, afterwards on
discovering that they had no title either legal or equitable,
procured tlie concurrence of the necessary parties, citing
Hoggart v. Scott and other case&
See also Saliabv/ry v. Eatcker, 2 Y. C. C, 54, from which
the language in Dart at p. 1178 seems to have beei\ taken
and was used by the Vice-chancellor Sir James L. Knight
Bruce. He f urUier stated, at p. 63: "In cases of specific per-
formance the want of mutuality is a consideration generally
material, but it is contrary to principle and authority to
say that perfect mutuality is requisite in order to call a
Court of equity into action. There are cases in which the
plaintiffs have had a decree for specific performance against
defendants, who, when the bill was filed, were not in a
condition to enforce specific performance in their own
favour. Where no legal invalidity affects the contract^ the
enforcement of it in this Court is a matter of judicial dis-
cretion."
From the quotations I have made from Macdonald v.
Mwrray, supra, it would appear that no legal invalidity
affects the contract in question.
In Sideboiham v. Barrington, 4 Beav. 110, (1841,) on
further directions the case stood over to obtain the concur-
rence of an assignee under a previous insolvency in uhom
the estate was vested.
Counsel objected most strenuously. They said : "This
is not a case in which, if the insolvent assignee by agree-
ment joins, the title will be perfect, for he can sell only in
the form prescribed by the Act: Mather v. Priestman, 9
Sim. 352. * * After all this litigation on a single point,
it is asked that the case may stand over and not that the
assignee may execute, but that the plaintiff may go before
another jurisdiction and see if he can patch up the defect"
Digitized byVjOOQlC
XIX.] PAISLEF V. WILLS. 311
The Master of the Rolls, Lord LangdaJe, said: "The Judgment.
OTdy dovht I have in this ease is about the form of the ^Bm^.z,
order. * * • It appears under the circumstances stated
that Tiow the plaintiff can probably make a good title," &c.
But it is said that Forrer v. Nash, 35 Beav, 167, (1865,)
followed in Brewer v. Broachwod, 22 Ch. D. 106, 109, and
quoted as law in WyUon v. Dtmn, 34 Ch. D. 569, 677, con-
tains a rule that is in the plaintiff's way.
In Forrer v. Nash, at p., 171, we find the Master of the Rolls,
Lord Romilly, stating: "I am of opinion that when a per-
son sells property which he is neither able to convey him-
self nor has the power to compel a conveyance of it from
any other person, the purchaser, as soon as he finds that to
be the case, may say : 'I will have nothing to do with it/
The purchaser is not bound to wait to see whether the
vendor can induce some third person (who has the power)
to join him in making a good title to the property sold."'
This seems to me not to state any more stringent rule
ihan that laid down by Sir John Leach in Hoggartv. Scott,
supra, but if anything it is more liberal, introducing, as it
does, the provision "nor has the power to compel a convey-
ance of it from any other person."
In Forrer v. Nash there was the repudiation required.
And there is this to be noted in that case : The letter
from the defendant's solicitors to the plaintiff's solicitors
calling attention to the want of title was written on the
22nd of September, 1864. The bill was filed on the 7th
of October, 1864. In April, 1865, the landlord made an
affidavit that he was willing to do what was necessary to
•enable the plaintiff to perform his contract.
The Master of the Rolls said, at p. 170 : ''The plaintiff, at
i;he hearing, says, I have now the power to grant you the
'lease, and for that purpose he produces an affidavit. * * ♦
If he had made this statement in September, 1864, and
the plaintiff had communicated it to the defendant, ihere
would have been an end of the question"
So that it appears dear that until repudiation title
<BSi be gotten in, and on the plaintiff^s examination for
40— VOL. XIX. O.R.
Digitized byVjOOQlC
312 THE ONTARIO REPOBTS. [YOL.
Judgment discovery in the case before us it appeared that he had
Rose, J. control of the title. Brewer v. Broad/wood was also a case
of repudiation.
Wylson V. Dunn decides that the doctrine of non-mutu-
ality being a bar to specific performance does not apply to
a contract which to the knowledge of both parties camiot
be enforced by either until the occurrence of a contingent
event.
In that case Mr. Justice Eekewich defines what he con-
siders to be the doctrine of non-mutuality as " The doe-
trine that a purchaser rriay avoid a contract when he dis-
covers that his vendor has not got that which he contracted
to sell," which, read in the light of the cases to which I
have referred, means, I take it, that until avoidance the
contract is valid and subsisting.
To apply the decisions to the facts we have been consid-
ering. We have here a plaintiff coming down to trial on
a record which admits the contract and the refusal to per-
form, and sets up as an excuse that the contract was in-
duced by fraud. If no evidence had been offered would
not the plaintiff have been entitled to a decree, and, if the
defendant asked for it, with a reference as to title : then
the defendant by leave of the Court amends, setting up
that the plaintiff was not the owner of the lands either at
the time of making of the contract or when the action
was brought. The defendant does not by his pleading say
when he discovered the fact, or aver that so soon as he
discovered it he repudiated the contract; but it does appear
by admissions or statements of counsel that this knowl-
edge was acquired a month prior to the trial : that upon
the acquisition of such knowledge the defendant procured
an order requiring the plaintiff to amend, no doubt on the
well known practice that he was not the real plaintiff and
might not be able to pay costs : obtained security and came
down to trial without, so for as appears, ever seeking to
repudiate or avoid the contract on the ground that the
plaintiff was not the owner and without seeking to
place such a defence on the record. And it further
appeared that prior to the trial and prior to the
Digitized byVjOOQlC
XIX.] PAISLEY V. WILLS. 313
examination for discoveiy, and therefore at the trial, the Judgment.
plaintiff had ready to be delivered to the defendant at the Rose, J.
proper time a deed of the land made by his wife direct to
the defendant.
In my opinion it was not open to the defendant to re-
pndiate, for the examination that disclosed that the title
stood in the wife's name also disclosed that she had made
a deed to the defendant. On snch &cts appearing it seems
to me clear on the authorities that the plaintiff was still
entitled to his decree, subject of course to the disposition
of the issue of fraud, and if that had been found in th^
plaintiffs favor the most the defendant could have asked
was a reference as to title.
The amendment, without the averment that so soon as
the defendant became aware of the want of title he
repudiated the contract, did not, in my judgment, raise any
defence, for as I have pointed out the contract was not
that the plaintiff had title but that he would make title
whenever called upon to make it.
Indeed it seems to me that the motion for security for
costs without repudiation was calculated to mislead the
plamtiff into preparing for trial at much expense to meet
the issue of fraud and expecting that such was the only issue.
In Daniell's Chancery Practice, at p. 861, it is said :
"Thus in suits for the specific performance of contracts
the Court will not, in general, permit the question whether
a good titie can be made or not to be argued before it, in
the first instance, even though the objections to the title
are stated and the questions arising upon them are properly
raised by the pleadings."
On the record of facts now before us it seems to me the
plaintifi is entitied to a decree subject to the determin-
ation of the question of fraud ; and the defendant may, if
such question be determined in the plaintiff's favour, have
a reference in the form stated in Danieirs Chancery Prac-
tice, p. 852, viz.: "Not whether the plaintiff could make a
good titie at the time of entering into the contract, but
whether he can, that is, at the time of the inquiry, make a
good titie."
Digitized byVjOOQlC
.314 THE ONTARIO REP0BT8, [VOL.
Judgment. If the defendant desire, the case may go down again
Roee, J. for a trial of the issue of fraud. If he do not desire to
have such defence tried then the decree may at once go for
the plaintiff with a reference.
The defendant must in any event pay the costs of the
first trial and of this motion, such costs to be in the cause
to the plaintiff in any event.
In this view it is not necessary to enquire whether the
plaintiff was entitled to have the amendment asked for*
If it would have answered the amended defence he cer-
tainly should have been allowed to amend ; but if the
agreement is to be considered as a deed inter partes no
authority was cited as showing that the wife, not being a
party, could sue upon it. See PickeriTig'a Claim, L. R.
6 Ch. 525, 651. Evans on Principal and Agent, Bl. ed., p.
497 ; Pollock on Contracts, Bl. ed., p. 99, and cases therein
cited, which shew that only the parties to a deed can sue
or be sued thereon.
Nor is it necessary to determine the plaintiff's rights
under his contract to recover damages as prayed, even if
not entitled to a decree for specific performance.
The defendant's election as to the trial of the issue of
fraud to be made within two weeks and should be with-
out prejudice to his right to appeal.
Galt, C. J., and MacMahon, J., concurred.
Digitized by VjOOQIC
XEL] m RE SHBRBfAK. 31&
[COMMON PLEAS DIVISION.]
In re Shebman.
MtetradUum — Forgery — Evidence,
A caigo of oats was receiyed at an elevator for the S. Co., of which the
priMner was a member, and also secretary and financial manager with
power to sign notes, etc. On the day of their receipt a clerk of the S.
Co., who was authorized so to do, prisoner having nothing to do with
the bnyinff and selling of the grain, signed an order for the delivery of
19,886 bnimela of the oats to a railway company, consigned to the S.
Go.'s agents in New York, on whom two drafts were drawn by the S.
Go. signed by the prisoner, which were accepted and paid. Warehouse
receipts transferaole by endorsement were given to tneS. Co. for these
oats, thongh after the delivery thereof to the railway company, and
were allowed to remain with the S. Co. withont any demand being
made for their cancellation. Subsequently, the prisoner, in the name
of the S. Ca, discounted two promissory notes at a bank, and endorsed
the warehouse receipts as security for the payment thereof, the notes
cfmtaining a statement that the receipts were pledged as such security
with anthori^ to sell, etc., in defatdt of pavment.
Hddf in extradition proceedings, that the endorsement to the bank of the
receipts did not constitute forgery.
The prisoner was committed by the Judge of the Statement.
County Court of the County of York for extradition for
f oi^eiy committed at Buffalo, in the State of New York.
A writ of Jiaheaa corpus was issued returnable before
the Divisional Court of the Common Pleas Division ; and
a writ of certiorari was also issued to bring up all the
papers and proceedings before the said Court
On the return of the writs, the writs and return were
filed and the discharge of the prisoner moved for on the
ground that the evidence established no primd facie charge
of forgery against him.
In Hilary sittings, February 10th, 1890, Ayleaworth, Q.C.,
supported the motion.
/. K. Kerr, Q.C., shewed cause.
The hcte and the authorities referred to sufficiently
appear in the judgment.
March 7th, 1890. Galt, C. J. :—
The facts of the case may be briefly summarized as
follows: There was a firm in Buffalo, in which the
Digitized by VjOOQIC
^16 THE ONTABIO RBFOBTS. [VOL.
Judgment, prisoner was a partner, that had for several years carried
Gait, G.J. on a very extensive basiness in buying and selling grain,
under the name of "TheShermanBro8.& Company, limited."
The prisoner was the secretary and financial manager, and
had power and authority to sign bills, notes, &^, for the
company. In the same building in which the office of Sher-
man Bros. & Co. was situated there was the office of " The
Associated Elevators," of which J. F. Sherman (who was a
partner in Sherman Bros. & Co., limited) was manager.
On 5th June, 1889, a parcel of white oats was received
by "The Associated Elevators," for which they gave a
warehouse receipt, and on 8th June another parcel, for
which they gave another warehouse receipt. On 6th June
an order was addressed to the International Elevator, one
of " The Associated Elevators," and given by one Boyle,
a clerk in the office of The Sherman Bros. & Co., for the
delivery out of 250 bushels, and on the same day another
order was addressed to the International Elevator, by
another clerk of the name of Nachbar, for the delivery of
19,886 bushels to the West Shore railway. The prisoner
had nothing whatever to do with these orders. I may men-
tion that these orders, and the warehouse receipts, refer to
the oats as received from a vessel named " Badger State,"
so there is no question as to their identity.
I have stated the prisoner was the secretary and financial
manager, but he had nothing to do with buying and selling
oats. This was done by a person named Tyler, who died
after the proceedings commenced. The manner in which
the grain business was carried on was, as appears from the
evidence of one Wurtz, who stated in answer to the
question : " How long were you in the employment ?" (he
hadpreviously stated he was a book-keeper.) A. "From the
latter part of August or the first part of September, 1887,
until the Receiver was appointed in 1889. Mr. Sherman,
the accused, was secretary during that whole time. Mr.
Tyler was car grain manager. Q. That involved the con-
trol of all the grain that was handled by the company ?
A. The handling of it, yes sir, the buying and selling. Q.
Digitized byVjOOQlC
2IX.] IN BE SHBEflCAN. 817
He bought all the grain and saw it in the elevator ? A. Yes. Judgment.
Q. And when it went into the elevators, he kept track of Gait, G. J^
what was in the elevators ? A. Yes."
It appears that on 5 th June, eighteen cars of oats were
forwarded by the West Shore Railway to Mclntjnre &
Wardell, of New York, from the International Elevator
under the order I have mentioned signed by Nachbar, a
clerk in Sherman Bros, office. These oats had not been
sold to Mclntyre & Wardell ; they were consigned to them
as agents ; and singular to say, no entry of the transaction
was made in the books until after the Receiver had been
appointed.
Wurtz states, in answer to the question : *' This entry of
Mclntyre & Wardell, whose writing is that ? A. Mine. Q.
Was that writing made at the time ? A. No, sir, it was not ;
I think that was made the time the Receiver was appointed.
Q. Who told you to make it? A. Nobody told me to make it.
I made it from the entry that appears in the sales book."
He then is asked as to whose duty it was to have made
the entry, and having answered, Mr. Boyle, is then asked :
" Did you ever come across any other entries where he did
not enter sales ? A. I do not know there was any other
than that."
It is singular that although from the railway shipping
receipts the oats were received from the International ele-
vator on 5th June, the warehouse receipts are dated on 6th
and 8th of June after appai*ently they had shipped the oats
on the cars. This however does not signify, for it is plain
from the order to deliver the 19,886 bushels and the ware-
house receipts that they had reference to the same oats, viz.,
the ''Badger State" cargo, as it is so mentioned in all of them.
The oats then having been forwarded to Mclntyre &
Wardell, the prisoner drew two drafts upon them, one on
7th June, for $2,740.50, and the other on 8th June for
I ♦3,065.70, which were accepted and paid.
There is no reference to any particular transaction in
these drafts nor do they appear to be in the handwrit-
ing of the prisoner, but unquestionably they were signed
Digitized by VjOOQIC
818 TH£ ONTABIO BEPOBTS. [VOL. |
Judgment by him, and I think it is beyond question they represented |
Giit» a J. ^e oeAa for which the wardtiouse receipts had been given.
I may mention that the warehouse receipts are numbered
2,729 for 9,667 bushels oats, and dated 5th June, 1889, and
the other 2,730 for 10,219 bushels, dated 8th June, 1889.
On the 13th of June, the prisoner as secretary made a
promissory note payable on demand in favour of the
American Exchange Bank of Buffalo, for $2,500, to which
was attached receipt No. 2,730, and on the 29th June made
another note payable on demand for $2,600 to which was
attached receipt No. 2,729, and in each note is the follow-
ing statement, ''having pledged to the said bank as security,
with authority to sell the same on the non-performance of
this provision in such manner as the said bank in its dis-
cretion may deem proper, without notice, either at private
or public sale, and to apply the proceeds thereon." Refer-
ence is then made in each case to the contents of the receipts^
These receipts were endorsed by the prisoner.
It is because the oats represented by those receipts had
been removed from the elevator by orders of Sherman Broar
although such orders were made without the knowledge
or consent of the prisoner at the time they were made, he
is charged with forgery.
There are therefore two questions to be considered..
First, was the act of the prisoner, if he had knowledge the
oats had been removed when he signed the promissory
notes and endorsed the warehouse receipts, forgery ?
Second. Is there evidence on which it can reasonably be
found that the prisoner had such knowledge at the time
when he made the said notes and endorsements ?
As respects the first question. By sec 3 of " An Act
respecting Forgery," R. S. C. 166, it is enacted that in the
interpretation of that Act, '* The wilful alteration, for any
purpose of fraud or deceit, of any document or thing
written, printed or otherwise made capable of being read,
or of any document or thing, the forging of which is made
punishable by this Act, shall be held to be a forging
thereof."
Digitized byVjOOQlC
XrS.] IN RE SHERMAN. 319
In this case there was no alteration in the document ; Judgment,
what was done by the prisoner was an endorsement on the Gait, C. J.
warehouse receipt made by him as secretary of " The Sher-
man Bros. & Company, limited," which the prosecutors
contend is forgery, because before the time the endorsement
was made^ they had received the notes, and the receipt
was satisfied.
The case of Begina v. Ritson, L. E. 1 C. C. R. 200, was
relied on as the authority supporting this contention. That
case, however, in my opinion, was entirely different from
the present. The facts were, that on the 10th January,
1868, W. Ritson had borrowed from the prosecutor, J.
Gardner, a sum of money, and as security had given him
an equitable mortgage by written agreement and deposit
of title deeds. On the 6th May, 1868, he became bank-
rupt, and on the 7th May, a deed was executed by the
trustee and W. Ritson, conveying the land to the prose-
cutor, who entered into possession. After this had been
done, W. Ritson and his son S. Ritson, fof the purpose of
defrauding the prosecutor, jointly executed a deed, ante
dated the 12th March, 1868, demising the land to S. Ritson
for 999 years without any reference to the equitable mort-
gage held by the prosecutor.
S. Ritson, then claiming to be a tenant under the lease,
brought an action of trespass against the prosecutor. By
so doing S. Ritson averred that W. Ritson had, on the 12th
March^ made a lease to him, and W. Ritson by executing
the lease made the same averment, and by so doing both
asserted that the deed had been executed on that day*
A deed had certainly been executed on some day, but not
on 12th March; consequently, when S. Ritson produced
the deed and claimed title under it he did that which he
knew to be false, and virtually changed the date with intent
to defraud. It is, moreover, to be borne in mind that the
statute tmder which that conviction took place, viz., 24-25
Vic. ch. 98, contains no definition of forgery whereas our
statute does, and I doubt much whether if such an inter-
pretation clause as we possess had been before the Court
41— VOL, XIX. 0.R,
Digitized by VjOOQIC
820 THE ONTARIO REPORTS. [VOL.
Judgment, the judgment would have been the same. There was no
Gftlt, C. J. " alteration " (that is, as I read our statute) what may b^
termed a ''physical change in the writing " ; it was a false
deed ; and, as said by Lush, J. : '* To make a deed appear
to be that which it is not, if done with fraudulent, intent
to deceive, is forgery, whether the falsehood consist in the
same or in any other matter." And, in the absence of any
clause defining " forgery," the Court held it was forgery
under the statute.
Now what are the circumstances of the present case :
on the 5th June the Associated Elevator Company gave a
warehouse receipt for 9,667 bushels of oats, and on the 8th
June another for 10,219, these receipts were transferable
by endorsement ; the grain covered by both receipts had
been removed from the Elevator Association on 5th June
and no demand had been made for the return of the receipts;
in fact, judging from the receipt of the railway company
the greater portion of the grain had been received before
the 8th of June. This being the state of affairs on the 13th
June the prisoner endorsed the latter receipt to the bank,
and there was no alteration in the receipt, and the
same observation applies to the assignment of 29th June,
how then can it be said to be a forgery under our statute ?
There was no time fixed by these receipts within which
they were to be used, and so long as they remained out-
standing the Elevator Association was responsible for
them ; it was their duty to demand a cancellation of these
receipts, and if they did not then they remained liable on
them. This was proved in the present case, because it was
shewn they had admitted their liability. If this be so
how can there be a * forgery " ? A forged instrument can
convey no right ; it is, except as an evidence of crime, as if it
had no existence. Consequently if the endorsation by the
prisoner transferred a right to demand and receive a certain
quantity of grain from the Association and the transferee
did receive it, there was no forgery. There may have been a
breach of duty between Sherman, Bros. & Co. and the
Association, in this that after the Association had delivered
Digitized byVjOOQlC
XIX.] IN RE SHEBMAK. 321
Ae grain without requiring a cancellation of the receipt Judgment
it was a fraud on them for Sherman Broa to transfer the Oalt, G.J.
right, but it was no forgery.
As I am of opinion there was no forgery, it is unneces-
-sary to consider the second question; but, upon a very care-
ful perusal of the evidence, I am satisfied there is great
doubt whether at the time the prisoner endorsed the ware-
house receipts he had a knowledge that the oats had been
removed, and that he had any intention to defraud the
Elevator Association.
MacMahon, J. : —
The facts, so far as may be necessary for the purpose of
this motion, have been fully reviewed in the judgment of
his Lordship the Chief Justice.
I have been unable to discover in the facts disclosed by
the witnesses before the learned extradition Judge the
evidence of any forgery having been committed by the
prisoner.
Forgery, by the common law is, " Where a man fraudu-
lently writes or publishes a false deed or writing to the
prejudice of the right of another " : Comyn's Dig., Forgery,
A.1.
Sir William Blackstone defines forgery as the fraudulent
making or alteration of a writing to the prejudice of
another's right : 4 Co. 247-8.
** Forgery at common law denotes a false making (which
includes every alteration of or addition to a true instru-
ment), a making; malo animo, of any written instrument
for the purpose of fraud and deceit :" East's P. C. 862.
Making: a fraudulent insertion, alteration or erasure,
in any material part of a true instrument, although but in
a letter, and even if it be afterwards executed by another
person, he not knowing of the deceit ; or the fraudulent
application of a true signature to a false instrument for
which it was not intended, or vice versa" will be forgery :
East P. C. 855.
Digitized by VjOOQIC
322 THEONTAMO RBPOBTS. [VOl,.
Judgment. Qne of the earliest illustrations of the fraudulent mak-
MacMahon, ing of a writing is given by Lord CV)ke, 8 Inst. 171. In
'^' that case a person had written a letter to which he attached
his signature — as was customary in those days — some
inches below the letter. The prisoner cut oft the paper
just below the letter, and wrote a release on the blank
paper above the signature. This was held to be a forgery.
What was done in that case was the fraudulent applica-
cation of a false instrument to a true signature.
It was likewise held to be forgery in a man who was
ordered to draw a will for a sick person to insert a legacy
in it of his own head: Noy, 101, cited in Russell on
Crimes, 5th ed., vol. ii., 619,
What was done by the person drawing the will was
without lawful authority and with a fraudulent intent,
and, although executed by the testator (who was ignorant
of the deceit), it was the fraudulent application of a true
signature to a false instrument.
We were referred by Mr. Kerr to Regma v. Wilson, 2 C. &
K. 527, in support of his contention that the endorsement
by the prisoner, Sherman, of the warehouse receipt, was a
forgery. •
In Regina v. Wilson, the prisoner was a clerk of one
John M. Nicholl,who had a bill maturing for £156 9s. 9d.,
and on the day of its maturity he signed a blank cheque
and gave it to the prisoner, directing him to fill up the
cheque with the correct amount of the bill and expenses
(which would amount to about ten shillings), and after
receiving the amount from the bank to pay it over to the
holder of the bill and take it up. Instead of doing so the
prisoner filled up the cheque for £250, which he received
irom the bank and retained the whole in his possession in
satisfaction for a claim for salary which he alleged to be
due him.
The prisoner was convicted of a forgery, on the authority
of Rex V. Minter Hart, 7 0. & P. 652, and Regina v.
Bateman, 1 Cox 186.
The prisoner there had no authority to fill in the cheque
Digitized byVjOOQlC
ZIX.] IN RE SHEBKAN. 383
but as directed by his master, and the fraudulent insertion Jndfi^ment.
by him of an amount in excess of what he was instructed MaoMahon,
to fill it up with, miule it a forgery when done with intent ^*
to defraud. It is another instance of the fraudulent
application of a false instrument to a true signature :
East P. C. 865.
Begina v. Ritson, L. R 1 C. C. R. 200, was much pressed
upon us by counsel for the prosecution as shewing that
what was done by Sherman in endorsing the warehouse
receipts, in this case (even had there been evidence that
he endorsed them after the oats had been removed from
the elevator) was equivalent to what was done by the
Ritsons when they ante-dated the deed, which was executed
by them for the purpose of defrauding the mortgagee of
William Ritson, one of the prisoners.
In that case the instrument itself by which the fraud
was attempted to be perpetrated was a false instrument,
i. e., it was false as to the date, being that which was
material in order to the accomplishment of the fraudulent
intent
In Begina v. Ritson, Lush, J., at p. 205, after referring
to 24 & 26 Vic ch. 98, sec. 20, (being the same as
our Act, R. S. 0. ch. 165, sec 26) wherein it is provided
that ^' whoever with intent to defraud shall forge or alter
♦ ♦ any deed," &c., shall be guilty of felony, points
oat that " it would be absurd to hold that an alteration
might constitute a forgery, but an original false making
would not."
There is I conceive no analogy between that case and
the present. In Regvna v. RUson, as pointed out, the
deed by reason of the insertion of the false date made it a
taise instrument But the warehouse receipt endorsed by
Sherman was a genuine and valid instrument in regard to
which the Elevator Company was liable to an endorsee for
value upon its beiog endorsed by Sherman Bros., the
holders thereof.
To my mind it is the same as if the payee of a promis-
sory note indorsed it after payment to him by the maker
but before the maturity thereof.
Digitized byVjOOQlC
324 THE ONTABIO BBPOBTS. [VOL.
Judgment. A. B., borrows from C. D., the sum of S500, for which he
MacMahon, gives his promissory note, as follows : " Toronto, July 1st,
^' 1889. Three months after date I promise to pay C. D.,
the sum of 9^00, at his office here, being the amount this
day lent by 0. D. to me. A. B."
Two months after giving this note, A. B. pays the
amount thereof, but neglects to take up the note. The
day after receiving payment, C. D. endorses the note and
transfers it for value. The endorsing and transferring of
the note was not a forgery by 0. D. See Burbridge v»
Manners, 3 Camp, at p. 194. Still what would be done by
C. D. in the case put, would be as much a representation
to his indorsee that at the date the indorsement was made,
A. B. was still owing the $500 represented by the note
as was the representation by Sherman to the American
Exchange Bank that the oats represented by the Elevator
Company's receipts were at the times of the endorsements
thereof, (if, as I already stated, there was evidence that
the endorsements were made after the removal of the oats)
still in the possession of the Elevator Company to answer
the demand for the oats when called for.
In each of the cases the instruments were genuine,
although the endorsement of the note in the one case by
the payee, after payment thereof, was a fraud upon the
maker, and in the other case the endorsement of the ware-
house receipt, if after the removal of the oats, was a fraud
upon the Elevator Company. But being genuine instru-
ments there could be no forgery by the holders of such
instruments endorsing in either case, because the endorse-
ments were made by the persons named as being entitled
to make the same. The maker of the note remained liable
because it was his duty to take up the note when paidr
and the Elevator Company continued liable because its-
duty was to demand a deliveiy up of the warehouse
receipt when shipping the oats to New York. It would
be by reason of the payee's endorsement of the note not
constituting a forgeiy that the maker still remained liable
Digitized byVjOOQlC
XIX.] IN BE SHERMAN. 325
to the endorsee, although payment had been made to the Judgment,
payee ; and it was by reason of the endorsement of the MaoAfahon^
warehouse receipts by the prisoner Sherman, in the name ^
of Sherman Bros. & Co., not constituting a forgery that the
Elevator Company continued liable to the Exchange Bank
for the value of the oats, although they had been shipped
by Sherman Bros, to New York.
The authorities all shew that the instrument must be
false, and what is not a false endorsement of a bill, or a false
making of a bill is well illustrated by the cases of Rex v*
Hevey, 1 Leach 229, decided 1782, and Regina v. Martin, 5
Q. B. D. 34, decided in 1879. In the latter case the prisoner
Robert Martin, in payment for some goods purchased from
the prosecutor, drew a cheque in the name of William
Martin upon a bank at which he had no account and gave
it to the prosecutor as his own cheque, drawn in his own
name, knowing that it would be dishonoured. The prose-
cutor received the cheque in the belief that it was drawn
in the prisoner's own name.
Cockburn, C. J., in delivering the judgment of the Court,
consisting of himself. Lush, J., Huddleston, B., Lindley and
Hawkins, J. J., said at p. 37 : " The case is concluded by
authority. In Dunn*8 Case, 1 Lea. C. C. 69 (Case 32) it was
agreed by the judges that ' in all forgeries the instrument
supposed to be forged must be a false instrument in itself ;
and that if a person give a note entirely as his own, his
subscribing it by a fictitious name will not make it a forgery,
the credit there being given wholly to himself, without any
r^ard to the name, or any relation' to a third person.'
Upon authority, as well as upon principle, it is clear the
conviction should be quashed." See also Rex v. Story
R.&B. 0.0.81.
As in my opinion the evidence does not shew that the
prisoner Wilson H. Sherman was guilty of forgery, he
should not be held for extradition, and should be discharged
from custody.
Digitized by VjOOQIC
826 TH£ ONTARIO BEPOBTS. [VOL.
Judgment. RoSB, J.: —
Rose, J.
I agree to the conclusion arrived at by the learned Chief
Justice and my brother MacMahon, on the ground that
there is no evidence to shew when the endorsements were
made — whether before or after the grain had been with-
drawn from store; and therefore no evidence that they
were made when the grain was not in store.
The argument for the prosecution rested upon the hy-
pothesis that the grain had been taken out of store prior
to the endorsements. Mr. Kerr urged that the fact of the
negotiation being after the shipment of the grain, afforded
evidence of the fact. I do not think so.
In Byles on Bills, 14th ed., p. 172, it is said: "Except
where an endorsement bears date after the maturity of
the bill, every negotiation is primd fade deemed to have
been effected before the bill was overdue."
During the argument, my brother MacMahon referred to
Russell on Crimes, 5th ed., p. 709, where Hex v. HorweU,
R & M. C. C. 405, is cited. In that case a count was
held bad for not averring that the prisoner uttered the
forged acceptance, the holding being tliat the count was
bad 08 it was possible the acceptance might have been
taken off the bill before the prisoner uttered it.
As to the question of there being evidence of foiigery
in this case, apart from the above, I say nothing either one
way or the other.
Digitized by VjOOQIC
XIX.] BBENNEN V. BBENNBN. 327
[QUEEN'S BENCH DIVISION,]
Bbennen V. Brennen ET AL.
Hfuband and wife — Action by wife CLgainsi htubancPa relcUives — False
rqpresentationa and conspiracy to bring about marriage — Want qf
precedent — PvbUc policy.
Action by a married woman a^nst the father, mother, and brother of
her husband for damages for false representations made to her before
marriage as to the character and financial standing of her husband, and
for entering into a fraudulent conspiracy to induce the plaintiff to enter
into the marriage contract : —
Heid, that the action being without precedent and contrary to public
poUcy was not maintainable.
This action was brought by Susannah Elizabeth Brennen statement,
against Michael Brennen, Sarah Brennen, and Hugh Scott
Brennen.
The amended statement of claim was as follows :
1. The plaintiff is a married woman, the wife of one
Joseph Scott Brennen, of the city of Hamilton. The de-
fendants are respectively father, mother, and brother of
the said Joseph Scott Brennen.
2. In or about the month of January, 1883, the defen-
•dants Michael Brennen and Sarah Brennen commenced
negotiations with the plaintiff for the purpose of bringing
about a marriage between her, the plaintiff, and their son,
the said Joseph Scott Brennen, and subsequently the said
Joseph Scott Brennen, and the defendant Hugh Scott
Brennen took part in the said negotiations.
3. The result of the said negotiations was that the plain-
tiff and the said Joseph Scott Brennen became engaged to
be and were married on tiie 7th day of February, 1888.
4. In the course of the said negotiations the defendants
represented to the plaintiff, and also to the plaintiffs father
•and mother, who were part of the time acting on her
behalf in the said negotiations :
(a) That the said Joseph Scott Brennen was a sober
man and never drank any intoxicating liquor.
42 — ^VOL. XIX. O.B.
Digitized by VjOOQIC
328 THE ONTARIO REPORTS. [VOU
Statement. (J) That he, the said Joseph Scott Brennen, was and
always had been a man of unblemished moral character
and reputation.
(c) That he, the said Joseph Scott Brennen, was a mem-
ber of the very large and prosperous firm of M. Brennen
& Sons, then and still doing business in the said city of
Hamilton.
(d) That he, the said Joseph Scott Brennen, had an
income of $3,000 per annum.
(e) That he, the said Joseph Scott Brennen, had an income
of $3,000 per annum over and above the income which he
had as a partner in the said firm of M. Brennen & Son&
5. In the course of the said negotiations the defendant
Michael Brennen made the representations to the plaintiflT
which are specifically set forth in the next preceding para-
graph, and also made bhe said representations to the
plaintiff's father and mother acting part of the time on her
behalf during the said negotiations, and for the purpose of
obtaining their consent to and approval of the said mar-
riage.
6. In the course of the said negotiations the said Sarah
Brennen made the representations to the plaintiff which
are specifically set forth in the last mentioned para^rraph*
and also made the said representations to the plaintiff's
father and mother acting part of the time on her behalf
during the said negotiations, and for the purpose of obtain-
ing their consent to and approval of the said marriage.
7. Acting on the faith of the said representations, the-
plaintiff entered into the said engagement and consented
to and did marry the said Joseph Scott Brennen at the
time hereinbefore set forth, with the consent and approval
of her father and mother, also obtained on the faith of the
said representations.
8. The said representations were all false, as the defen-
dants well knew when they falsely made them.
9. The said Joseph Scott Brennen was not a sober and
moral man at the time the said representations were made>
nor at any time thereafter until the separation of the
Digitized byVjOOQlC
XIX,] BBENNEN V. BRENNEN. 329*
plaintiff and defendant hereinafter mentioned took place, Statement,
bat, on the contrary, was given passionately to intoxicating
drink, and was of a very immoral character, and was lewd
and licentious, and had one or more illegitimate children.
10. The plaintiff lived with the said Joseph Scott Bren-
nen as his wife from the date of their marriage till the
present year (1888) during which time his evil habit of
becoming intoxicated, and his grossly immoral and inde-
cent practices and habits, and his cruelty to the plaintiff,
were at times unbearable, and at length compelled the
plaintiff to separate from him, and cease to live with him
as his wife.
Neither was the said Joseph Scott Brennen a member
of the said firm of M. Brennen & Sons, nor had he any
income whatever, but on the contrary was a poor man,,
with only a small salary or wages from the said firm or
elsewhere.
11. And the plaintiff further charges that the said repre-
sentations were made by the defendants in pursuance of a
fraudulent scheme and conspiracy entered into between
them, the said defendants, or between them or some of
them, and the said Joseph Scott Brennen, with the object
of thereby inducing the plaintiff to enter into the said
engagement and to marry the said Joseph Scott Brennen,
and of obtaining the consent and approval of her father
and mother to the said marriage as aforesaid, they well
knowing or believing at the time that if she the plaintiff
had known the true character and financial standing of the
said Joseph Scott Brennen as they knew it, she never
would have entered into said engagement or married him.
11. (a) By reason of the grievances hereinbefore set
forth and the misrepresentations aforesaid inducing the
plamtiff to marry the said Joseph Scott Brennen, she lost
the support and maintenance which she had previously
enjoyed from her father and her freedom to make any
other marriage, and became bound in life to an unkind,,
passionate, cruel, dissolute, unfaithful husband, and she suf-
fered much annoyance, disgrace, reproach, contempt, abuse,.
Digitized by VjOOQIC
330 THE ONTARIO BEPOBTS. [VOL.
Statemeat, and pain, and loss of health, comfort, and reputation, and
suffered other great damage, and the plaintiff during the
time she lived with the said Joseph Scott Brennen ab afore-
said was poorly maintained and not at all as comfortably
and as well as she had a right to be supported and main-
tained had the income of the said Joseph Scott Brennen
been $3,000 per annum, as it was represented as aforesaid,
and the plaintiff is now left entirely destitute and without
means of support or maintenance for herself or her child
hereinafter mentioned.
11. (b) And the plaintiff further says that on or about the
27th day of June last, and after she had been compelled to
leave the home of the said Joseph Scott Brennen as afore-
said, she commenced an action against him in this Court
for alimony, and since the said action was commenced, and
since the original statement of claim herein was delivered,
and for the purpose of further oppressing and injuring the
plaintiff, the defendants herein, colluding and conspiring
together for that purpose, persuaded and induced the said
Joseph Scott Brennen to cease following any occupation
or calling whereby he might make money, and to leave
Canada and go to the United States of America, so as to
prevent the plaintiff from recovering anything from the
said Joseph Scott Brennen, and to make the said fiction
for alimony firuitless, and to deprive the plaintiff of sup-
port ; and by reason of all the grievances set forth in the
foregoing statement of claim the plaintiff is now reduced
to complete and permanent destitution, and is prevented
from obtaining any substantial redress from the said Joseph
Scott Brennen, and has suffered other great damages.
12. There was only one child of said marriage, who is a
boy and now four years old and over, and is living with
and maintained by the plaintiff
The plaintiff claims : (1) $30,000 damages. (2) The
costs of this action.
The defendants delivered the following statement of
-defence and demurrer :
Digitized byVjOOQlC
XnC.] BRENNEN V. BRENNDN. 331
1. The defendant say and each of them nays that they Statement,
did not nor did any of them make the representations set
forth in the third paragraph of the statement of claim.
2. The plaintiff lived with the said Joseph Scott Brennen
as his wife from the time of her marriage till shortly hef ore
the commencement of this action, and was during the said
time well and sufficiently maintained and supported, and
the said Joseph Scott Brennen has always been ever since
the said marriage and is now able and willing to well and
sufficiently support and maintain the plaintiff.
3. The defendants demur to the plaintiff's amended
statement of claim, and say that the same is bad in law on
the grounds that no sufficient special damage is alleged
to have accrued to the plaintiff by reason of such repre-
sentations for which she is entitled by law to recover, or
which were naturally occasioned by reason of their untruth,
or which affected the property of the plaintiff, and on other
grounds sufficient in law to sustain this demurrer.
The defendants' demurrer was argued before Falcon -
BRIDGE, J., in Court on the 5th February, 1889.
8, H, Blake, Q. C, for the defendants. This is a novel
cause of action. Representations such as those alleged
would not give a cause of action against the plaintiff's
husband, much less against third parties. The plaintiff
has held to the contract for five years, and had the benefit
of it, and has had issue. She cannot now disclaim. As
long as that is retained which has been given, no action
for damages lies.
The maxim cavecU emptor applies. It was her duty to
make investigations for herself. I refer to Loffua v. MaWy
3 Gift 592 ; Hammerdey v. DeBiel, 12 CI. & F. 45 ;
Maddi8on v. Alder son, 8 App. Cas. 467 ; Britain v.
Bossiter, 11 Q. B. D. 123.
There is no contract within the Statute of Frauds.
Marriage is not a part performance which will bring the
case within the statute ; there must be a memorandum in
wnting and a consideration, and there is neither in this
■ ■ Digitized by VjOOQIC
THE ONTARIO REPORTS. [?0L.
Argament. case. The doctrine of part performance has at any rate
nothing to do with personalty : Britam v. RoaaUer,
This action is in reality brought to compel the defend-
ants to make a settlement on the plaintifi. The statement
of claim does not allege that the plaintiff would not have
married Joseph Brennen but for the representations— it
says (paragraph 11) that the defendants well knew she
would not have married him if she had known his trae
character and standing. An action to compel a settlement
will not lie: MontaetUe v. Maxwell, 1 P. Wms. 618; Dwi^
das V. I>wtena, 1 Ves. Jun. 196 ; Wa/rdem, v. Joms, 23
Beav. 487 ; 2 DeQ. & J. 76 ; May on Fraudulent Convey-
ances, 2nd ed., p. 372.
In entering into contracts of this kind, due caution
must be exercised. As said in Wakefidd v. McKay, 1
Phillim. 134, 137, there is no relief for a blind credulity.
I also refer to SvUivan v. SuUwan, 2 Hagg. Con. 238, at
p. 248 ; Bishop on Marriage and Divoi-ce, 5th ed., sec 204 ;
Roberta v. Roberta, 3 P. Wms. 66, notes at p. 74.
No sufficient special damage is alleged : Chamberlain v.
Boyd, 11 Q. B. D. 407 ; Lynch v. Knight, 9 H. L C. 577.
Bicknell, on the same side. Upon grounds of public
policy the action does not lie. I refer to Macqueen on
Husband and Wife, pp. 1 and 220 ; Schouler on Domestic
Relations, 4th ed., sees. 23 and 24.
Actual pecuniary damage must be shewn : Srm^ v.
Chadwick, 9 App. Caa 187 ; Barber v. Leaiter, 7 C. B. N.
S. 175 ; GoUvna v. Cave, 4 H. & N. 225 ; Hodgson v.
Sidney, L. R. 1 Ex. 313 ; Morgan v. Steele, L. R. 7 Q. B.
611. The plaintiff alleges nothing as to possession of any
property ; her position was incapable of being depreciated
by her marriage ; and she has been supported and main-
tained during five years. There is nothing to shew any
pecuniary damage, and mental suffering is no ground of
recovery : Odgers, 2nd ed., p. 291. She does not allege
that she lost the benefit of some other contract then pend-
ing ; nor that it was represented to her that she was to get
some part of the supposed income of her husband.
Digitized byVjOOQlC
:XIX.] BBENNEN V. BBENNEN. 3S3
The necessity for particularity in contracts relating to^go^^^^
marriage is shewn by MaunsM v. White,4i H. L. C. 1039 ;
Egerton v. Earl Browrdow, ib, 1.
W. A. Eeeve, Q.C., for the plaintiff. The authorities cited
would be in point if this action were in contract But it
is an action of deceit; false representations are charged
inducing the plaintiff to enter into a maipriage. See Eerr
on Frauds, 2nd ed, pp. 383-4, 395, 405-6.
Representations as to the financial standing should be
made good : Montejwri v. Mordejuyri, 1 Wm. BL 362-3 ;
NevULe V. WUldnson, 1 Bro. 0. C. 643 ; Qdls v. Lmdo, 1
Vem. 475 ; Hutton v. Rosavter, 7 De G. M. & G. 9 ; Bur-
rowes V. Lock, 10 Ves. 470.
The plaintiff when she discovered the falsity of the rep-
resentations could not take steps to undo the marriage
which she had contracted on the faith of them — a marriage
perfectly valid and binding, there being no false represen-
tations by the husband. That the marriage cannot be
undone intensifies the case against the defendants. Para-
graph 7 of the statement of claim sufficiently alleges that
the plaintiff would not have entered into the contract but
for the representations made by the defendants. The
representations having been made to the plaintiff, the
inference is that she acted upon them. I refer to Redgrave
V, Hurd, 20 Ch. D. 1 ; Smith v. Ckadvnck, ib. at p. 44 ; 9
App. Gas. at p. 196.
As to damages. The plaintiff enters into a contract to
improve her position, but does not improve her position.
That is the result of the misrepresentations. Loss of
marriage is accounted special damage in slander. I refer
to Odgers on Libel and Slander, 2nd ed., pp 298-9, 304.
A fortiori, to contract a bad marriage, which deprives her
of the chance of making a good one, is ground for dam-
^es. If the plaintiff had discovered the misrepresenta-
tions before marriage it would have furnished a sufficient
excuse for her breaking off the contract.
The conspiracy to make the husband leave the country,
set up in paragraph 11(b) of the statement of claim, is
Digitized byVjOOQlC
334 THE ONTARIO REPORTS. [VOL.
Argument, either a separate cause of action, or is matter in aggrava-
tion of damages. This would, if necessary, support the
action.
Blake, in reply. The plaintiff must shew within the
authorities that representations were made which the
defendants could have been compelled to carry out. Mon-
tefiori v. Montefioxi and the other cases cited are cases of
estoppel. Probability of another marriage is mere matter
of speculation and not substantial. See FirUay v. Chimey,
20 Q. B. D. 494 ; Smith v. Chadwick, 9 App. Cas. at p. 195.
Advising a man to leave the country is not actionable.
On the 26th February, 1889, Falconbridge, J., directed
that the demurrer should stand over till the trial, and the
issues of fact and law be tried together.
The action was tried before Falconbridge, J., and a
jury, at the Toronto Autumn Assizes, 1889.
J. K. Kerr, Q.C., and R, 8. Neville, for the plaintiff.
McCarthy, Q.C., and Bicknell, for the defendant Michael
Brennen.
S. H. Blake, Q.C., for the defendant Sarah Brennen.
J, A. McCarthy, for the defendant Hugh Brennen.
At the conclusion of the plaintiff's case a non-suit was
asked for, but the trial Judge allowed the case to go to the
jury, who were unable to agree, and were discharged.
On the 19th December, 1889, argument was again heard
upon the question whether the action was maintainable.
/. K, Kerr, Q.C., for the plaintiff. The action* is founded
on conspiracy as well as deceit, and the evidence supported
the charge of conspiracy. The representations made were
false, and it is immaterial whether they were false to the
knowledge of the defendants or not, but as a matter of
fact they were untrue to the knowledge of the defendants.
It was not necessary for the plaintiff either to affirm or
repudiate in a case of this kind. It may be true that the
Digitized byVjOOQlC
XDC.] BRENNEN Y. BRENNEN. 336
plaintiff could have satisfied herself by investigation as to Argument,
the truth of the representations made to her, but as a
matter of fact she relied upon the representations made,
not only to her, but to her relatives.
Lord Tenterden's Act does not apply to representations
of this kind : Pollock on Torts, p. 265.
It is not necessary that the false representations should
be the sole inducement. I refer to Pollock on Torts, p.
240 ; Wade v. TatUm, 18 C. B. 371 ; Hastings on Torts, p.
270 ; CorbeU v. Brown, 8 Bing. 33 ; Lovdl v. Hiclca, 2 Y.
& C. Ex. 472, 481. .
The plaintiff suffered actual damage by acting on the
representations ; she lost the ability to contract another
marriage. There is no necessity to shew a consideration.
The plaintiff has been placed in a position from which she
cannot recede. I refer to Britain v. Mosnter, 11 Q. B. D.
123 ; Mayne on Damages, 4th ed., 469 ; Addison on Cour
tracts, 8th ed., 838 ; WhaHon v. Lewis, 1 C. & P. 529 ;
Money v. Jordan, 21 L. J. Ch. 531 ; Richardson v. Sil-
vester, L. R. 9 Q. B. 34.
J2. S. Neville, on the same side. Fraudulent representa-
tions are an answer to an action for breach of promise of
marriage : Addison on Contracts, 8th ed., 838 ; Barley v.
Wcdford, 9 Q. B. D. 197 ; Kerr on Frauds, pp. 505-6. The
contract cannot be undone, and an action for deceit is the
only remedy : Pvlsford v* Richards, 17 Beav. 87, 94.
It has been said that an action of this kind is contrary
to public policy. Is it public policy that conspiracy and
deceit should be justified ?
McCarthy, Q. C, for the defendants. The action is with-
out authority to support it^ and should be dismissed. See
Finlay v. Chimey, 20 Q. B. D. at pp. 497-8. No case of
this kind is to be found in the books. Such cases as are
to be found bearing on agreements to make' settlements,
are based on contract I refer to Hammersley v. DeBiel,
12 CL & F. 45 ; MaunseLl v. White, 4 H. L. C. 1039 i Moor-
house V. Colvi/n, 15 Beav. 341 ; In re Badcock, 17 Ch. D.
361 ; Kay v. Crook, 3 Sm. & Giff. 407.
43 — VOL XIX. O.R
Digitized by VjOOQIC
386 THE ONTABIO BEPORI8. [VOL.
Aignmenfe. The action is not maintainable because it is contrary to
public policy. If maintainable at all, it is so whether the
husband and wife are living together amicably or not, aod
the wife could equally well sue if they had a happy home
and there was no dispute between them. Scandal inevit-
ably ensues from the bringing of an action of this kind.
See MUier v. Miller, 29 Cent. L. J. 162.
Representations as to the financial position of the hus-
band, unless made with a view to a settlement, are not
enforceable either at law or in equity. No matter what
are the circumstances of the husband, he has a right to say
what establishment he shall keep up. The plaintiff has no
right to be maintained upon any specii^l scale of comfort or
luxury ; the representations amounted to nothing unless
they amounted to a contract to miike a settlement upon
the plaintiff herself.
What damages could the plaintiff claim ? It is im-
possible to give any direction as to damages. The hus-
band was warranted as "a good young man.'' What
damages could there be in respect of that ?
J, A. McCarthy, on the same side. Contracts of or
relating to marriage are not subject to the same principles
as ordinary contracts. There is a special sanctity about
the contract of marriage. See Bishop on Marriage and
Divorce, 6th ed., sec. 167.
The action is against public policy. See QHhert v.
Sykea, 16 East 150.
I also refer to the following cases : Mordaunt v. Mon-
creife, 43 L. J. P. & M. -19, 52 ; Soroggina v. Scroggins, 3
Dev. (North Carolina) 535 ; Bishop on Marriage and
Divorce, 6th ed., sec. 178; Ferris v. Ferris, 8 Conn. 166;
OuUford V. Oxford, 9 Conn. 321 ; Reynolds v. Reynolds,
3 Allen 605 ; Wier v. Still, 31 Iowa 107 ; Evans v. Emns,
1 Hagg. Con. at p. 118.
Kerr, in reply. It is not necessary to avoid the contract
in order to bring this action. The impossibility of giving
a definite direction as to money damages is no argnment.
It is the same in breach of promise of marriage.
Digitized byVjOOQlC
§LIX.] BRENNEN Y. BKENNEN. 837
April 26, 1890. FaLCONBRIDGE, J. :— Judgment.
Falconbridge,
No precedent has been cited for an action like the present '''
one. This fact alone furnishes a potent argument against
my now establishing such a precedent.
In Finlay v. Ghimey, 20 Q. B. D. at p. 498, Lord Esher,
M. R., finds authority for the opinion that the action
which he is there considering will not lie, in the " fact that
there is no case to be found in the books where such an
action has been maintained * * and this in spite of
the fact that circnmstances must frequently have arisen
which would invite a decision of the question."
These words are extremely applicable to the case in hand.
There are cases where an action has been brought to annul
or declare void a marriage as having been procured by
force or fraud, or as involving palpable error. And in
these cases the injured party when left free to give or
withhold assent must have elected not to abide by but to
disavow the contract.
Here the plaintiff for five years retained the benefit,
such as it was, of the contract which she says she was
fraudulently prevailed upon to enter, and children were
bom of the marriage.
If she had brought an action to void the marriage when
she discovered the falsity of the representations which she
says were made, she could not have succeeded.
The law, it has been observed, makes no provision for
the relief of a blind credulity, however it may have been
produced : per Lord Stowell in Wakefield v. Mackay,
1 Phillim. at p. 137. ''Fraudulent misrepresentations of
one party as to birth, social position, fortune, good health,
and temperament cannot vitiate the contract" : Schouler
Dom. Rel., sec. 23 ; Ewvng v. Wheatley, 2 Hagg. Con. 175.
Nor even does the concealment of previous unchaste and
immoral behaviour in general vitiate a marriage ; for pub-
lic policy is said to " open marriage as the gateway to
repentance and virtue."
The maxim *^ caveat emptor'' seems as brutally and
Digitized byVjOOQlC
888 THE ONTARIO BEPOBTS. [VOU
Judgment necessarily applicable to the case of marrying and taking
Falconbridge in marriage as it is to the purchase of a rood of land or
^' of a horse.
A fortiori, the present action cannot be maintained*
There has been a change of the position of the parties
which can never be revoked. They can never be replaced
in their original status; and it would be against public
policy, against public morals, and fraught with the great-^
est damage to the most sacred of the domestic relations, if
the plaintiff should be held entitled to succeed.
That such an action should lie is doubly against public
policy in this, that if maintainable at all, I see no reason
why it should not be equally maintainable whether the
husband and wife are or are not living together amicably,
so that if it be a wrong sounding in damages for a woman
to be linked for life to a man of evil monal character, the
astounding spectacle could be presented of a wife launch-
ing from the shelter of her husband's house, an action
against that husband's relatives for misrepresenting his
character and conduct before his marriage !
As to the financial position of the husband, the wife
says : '' If his character and conduct had been as repre-
sented, I would not have minded about his income — ^if hfr
had been a good man, and if he had enough to keep me.''^
The plaintiff and her friends allowed the marriage cere-
mony* to be celebrated with great precipitation. Unless
Joseph Brennen has wofully changed for the worse in six
years, I would have thought that a girl of ordinary dis-
cernment would have discovered even in the very brief
courtship which took place, that he was not a very safe
person to whom to entrust her happiness, be the commen-
dations of his father and mother never so warm.
She took her chances and must now, as far as this Court
is concerned, read into her contract the words " for better
for worse, for richer for poorer." The praise of the
father, the brother, and particularly of the mother, are
simplex eommendatio quce non obligat
I was impressed by the difficulty of giving any proper
Digitized byVjOOQlC
XIX.] BEGINA V. CBEIGHTON. 339
direction to the jury as to the measure of damages on the Judfipnent
different branches of the case. Faloonbridge,
Other objections to plwntiflf's right to recover were ^^
in^ed, both by way of demurrer and on the facts.
I rest my judgment on the want of precedent for such
an action, and on its being clearly, in my opinion, against
public policy.
The action will be dismissed with costs.
Proceedings will be stayed until the Divisional Court.
[27*6 case toas Tiot carried furthei'.]
[QUEEN'S BENCH DIVISION.]
Eeqixa V. Creighton.
VriniifMU law — Pleading — Libel— Jtutifieation — ParHculara—Motion to
quoth pUa—R» S. C. eh. 174f mc i?, aub-sec (c) ; aec 143.
To an indictment for libel, the langnaffe of which was coached in vagae
general terms, the defendant pleaded that the words and statements
oomplalned of in the indictment were true in substance and in fact, and
that it was for the pnblic benefit that the matters charged in the allied
libel ^onld be pnblished by him :—
Held, that the plea was insufficient because it did not set out the particn-
lu* facta upon which the defendant intended to rely ; and that the omis-
sion from 37 Vic ch. 38, sec. 5, (R S. 0. ch. 163, sec. 4) of the words
'* in the manner required in pleading a justification in an action for
defamation," which were contained in C. S. U. G. ch. 103, sec. 9, had not
the effect of altering the rule : —
JSeldj also, that this was a case in which the Court should in the ezerdse
of its discretion quash the plea upon a summary motion, without re-
quiring a demurrer, a course permitted by sec. 143 of R. S. G. ch. V74t,
as interpreted by sec 2, sub-sec. (c).
At the Spring Assizes for the county of York, 1890J
If acMahon, J., presiding, the following indictment for
libel was found against the defendants.
Canada, Pbovingb of Ontabio, \ The jurors of our Iiady the Queen
Gounty of York :TotoU: f upon their oaths present that
David Creighton, contriving and nnlawfuUy, wickedly, and malioioiisly
intfloding to injure, villify, and prejudice the Mail Printing Company of
the said oity of Toronto, who are a corporation that publishes a news-
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840 THE OOTABIO B3EPOBT8. [VOh.
Statement paper in the aaid city of Toronto, called *'The Toronto Daily Mail," edited
by one Edward Farrer, and to deprive it, the said company, of its good name,
fame, credit, reputation, and bucdness connection, and to bring it into pub-
lic contempt, scandal, infamy, and disgrace, on the twenty -fifth day of
January, in the year of our Lord one thousand eight hundred and ninety,
unlawfully, wickedly, and malicionsly did write 'and publish and cause
and procure to be written and published a false, scandalous, malicious,
and defamatory libel in the form of sundry articles and headings of
articles in a newspaper published in the city of Toronto, in the county of
York, called ''The Empire," in a certain part of which articles and
headings of articles, namel}^ in an article and the heading thereto pub-
lished in the said newspaper called " The Empire," bearing date the
twenty-second day of the said month of January, there were and are
contained certain false, scandalous, malicious, and defamatory matters
and things of and concerning '^The Mail Printing Company," according
to the tenor and eflfect following, that is to say :
'* The Plot Exposed," " A Desperate and Unholy Annexation Alliance,"
* The Mail (meaning the said the Mail Printing Company) Deep in the Plot''
'* Conclusive evidence that the Toronto Mail (meaning the said the Mail
Printing (Ilompany) has entered into an alliance with the United States
Senators to deliver Canada into the Union." ** How the Traitorous Work
is being carried out." "The most Atrocious Piece of National Rascality
that has ever marred Canadian History." Atrociously Traitorous Con-
duct on the part of the Mail Newspaper, (meaning the said the Toronto
Daily Mail)." "The Mail, (meaning the said The Mail Printing Com-
pany) is a Traitor." "The Mail, (meaning the said the Mail Printing
Company) in the present is a black Traitor to its Country ;" and in a
certain ^other part of which articles, namely, in an article and heading
thereto pubUshed in the said newspaper called " The Empire," bearing
date the twenty-second day of the said month of January, there were and
are contained certain false, scandalous, and malicious and defamatory
matters and things of and concerning the said the Mail Printing Com-
pany,, according to the tenor and effect following, that is to say :
** Our commissioner has returned, and the report which he gives this
morning leaves no room to further doubt the secret and treasonable
intrigues with foreigners which the Mail, (meaning the said the Mail
Printing Company) has been carrying on. The plot is now laid bare and
the plotters exposed to the gaze and execration of loyal citizens, who will
be startled to find that they have been harbouring such traitors in their
midst." "Now that .their eyes are opened to what has been going on,
they will make it known in unmistakable terms that Canada has no room
for such traitors."
And in a certain other part of which articles and headings of articles
Aamely, in an article and the heading thereto published in the said
newspaper called *' The Empire," bearing date the twenty-third day
6t the said month of January, there were and are contained certain false,
Bcandalous, maliciouB, anddefamatory matters and things of and conoemiqg
the said the Mail Printing Company, according to the tenor and effect
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ZIX.] REOINA V. CREIGHTON. 341
following, that is to say: *<The Mail*8 Perfidy," <* That a newspaper, Statement.
Canadian in the sense that it is published in Canada, should plot against
its country and become the secret service agent and informer of the more
aggressive section of oar foreign assailants, is a fact that is startling as
an instance of depravity. The evidence of this iniquity is overwhelming,
and it is apparent that there are lower depths in the ACail's,perfidy yet
unrevealed."
And in a certain other part of which articles and headings of articles,
namely, in an article and the heading thereto published in the said news-
paper called *' The Empire," bearing date the twenty-fourth day of the
said month of January, there were and are contained certain false,
scandalous, malicious, and defamatory matters and things of and concern-
ing the said the Mail Printing Company, according to the tenor and effect
oUowing, that is to say : *' * Traitor,* is what the Mail, (meaning the said
the Mail Printing Company) admits itself to be ; hunted to earth ;
the Traitor (meaning the said the Mail Printing Company) attempts a
defence ; still blacker infamy is the only result of the attempt" "Driven
to the post, fairly run to earth, the traitorous Mail, (meaning the said
the Mail Printing Company) at last has turned,. and yesterday attempted
a defence against the overwhelming proof furmahed by the Empire
of its treasonable machinations at Washington." "Proof is usually
required, and in a case like this where such important interests are invol-
ved, and where a great journal (meaning the said the Toronto Daily
Mail) is charged with the blackest crime in the calendar, that proof will
need to be of the most clear and irrefragable character." " The reply of
the accused (meaning the said the Mail Printing Company) is awaited, and
unless the Mail, (meaning the said the Mail Printing Company) can fully
clear itself of the serious charges, Canada should have no use for such
traitorous sheets, (meaning the said the Toronto Daily Mail)." "Every
Canadian knows that in making such statements he, (meaning the said
Editor of the Mail) and his journal, (meaning the said the Toronto Daily
Mail) acted the part of traitors to their country."
And in a certain other part of which articles and headings of articles,
namely, in an article and the heading thereto published in the said news-
paper called "The Empire," bearing date the tweniy-fourth day of the said
month of January, there were and are contained certain false, scandalous,
malicious, and defamatory matters and things of and concerning the said the
Mul Printing Company, to the tenor and effect following, that is to say :
"The Traitor at Bay." "The evidence obtained by the Empire of
the disloyal perfidy of the Mail, (meaning the said the Mail Printing
Company) in giving secret information to be used against Canada by the
foreigners seeking its annexation, has forced the culprits (meaning the
said the Mail Printing Company) from their covert after their prolonged
and obstinate silence in the face of the first less complete but damaging
revelations." " The additional revelations given on our first page to-day
completely shatter the last lingering hope of any who thought the
Mail would be able to clear itself from the damaging charges, and leave
that journal fnlly exposed as the blackest traitor to its country in the
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342 THE ONTARIO KEPOHTS. [VOU
StatomMit. ranks of Canadian journalism/' meaning thereby that the said the
Mail Printing Company, by whom the said newspaper known and enti-
tled *'The Toronto Daily MaU" is published, and whose property the
said newspaper is, are plotters against their country and guilty of atro-
cious rascality and atrociously traitorous conduct ; black traitors ; secret
service agents and informers 6f foreign assailants oi Canada, guilty of
treasonable machinations, charged with the blackest crime in the calendar,
giving secret information to be used against Canada ; culprits ; the black-
est traitors in their country in the ranks of Canadian journalism ; he,
the said David Creighton, then well knowing the said defamatozy libel
to be false, to the great damage, scandal, and disgrace of them, the sidd
the Mail Printing Company, to the evQ example of all others in the
like case offending, and against the peace of our Lady the Queen, her
Crown and dignity.
The following pleas were pleaded by the defendant :
At the Assizes and general delivery of the Queen's gaol for the oounty
of York holden in and for the said county on the 26th day of March, in
the year of our Lord 1890, cometh into Court the said David Creighton, *
in his own proper person, and, having heard the said indictment read,
saith he is not guilty of the said premises in the said indictment above
specified and charged upon him, and of this he, the said David Creighton,
puts himself upon the country, etc.
And for a further plea in this behalf, the said David Creighton says
that our Lady the Queen ought not to prosecute the said indictment
further against him, because the words and statements complained of in
the said indictment are true in substance and in fact. And the said
David Creighton further saith that before and at the time of publishing
the said alleged libel it was for the public benefit that the matters
charged in the said alleged libel, and all and every of them, should be
published by him, and this he is ready to verify; wherefore he prays
judgment, and that by the Court here he may be dismissed and dis-
charged from the said premises in the said indictment above specified.
April 19, 1890. 8. H. Blake, Q. C, Osier, Q. C, and
Marshy Q. C, for the prosecution, moved to quash the
second plea upon the ground of its insufficiency in not
setting out the particular facts upon which the defendant
intended to rely as justifying the charges contained in the
libels, and as shewing that it was for the public benefit
that the matters complained of should be published.
Bitchis, Q. C, Laidlaw, Q. C, and H. Cassels, for the
defendant, contended : (1) that the authority conferred by
R S. C. ch. 174, sec. 143, only applied to motions to quash
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:XIX,] REGINA V. CREIOHTON. 848
indictments, and that no authority was conferred to quash Argmneiit
a plea ; and (2) that under the Act relating to criminal
libel, R S. C. ch. 168, sec. 4, all that was necessary in a
plea of justification was to allege the truth of the defama-
tory matter complained of, and that it was published for
the public benefit
The following authorities were referred to: Shortt on
Informations, &c., pp. 527-8 ; Odgers on Libel, 2nd ed., pp.
177-8, 331, 566 ; Townshend on Slander and Libel, 4th ed.,
«ecs. 355-6; Archbold's Criminal Pleading, 19th ed., p*
150 ; Wharton's Criminal Law, 9th ed., p. 1646 ; Newell
on Defamation, p. 797 ; r Anson v. StuaH, 1 T. R. 748 ;
Baretto v. Pirie, 26 U. C. R 468 ; Fitch v. LemmaUy 27
U. C. R 273; Gourley v. PlimsoU, L. R 8 C. P. 362;
Janes v. Bewicke, L. R. 5 C. P. 32 ; Begina v. Newman, 1
E. & B. 558; Regina v. Lahouchere, 14 Cox, 419 ; Davi-
son V. Elliott, 7 E. & B. 229 ; Gommormedlih v. Snel-
ling, 16 Pick. 337; Begimi v. PaMeson, 36 U. C. R
129 ; Begina v. Charlesioorth, 9 Cox 44 ; People v. jBTarcZ-
ing, 53 Mich. 481 ; Bex v. Mason, 2 T. R 681- ; Begina v.
Bradlaugh, 15 Cox 156 ; Begina v. Bea, 9 Cox 401.
May 17, 1890. MacMahon, J. :—
By the Criminal Procedure Act, R S. C. ch- 174, sec
143 : " Every objection to any indictment for any defect
apparent on the face thereof, shall be taken by demurrer
or motion to quash the indictment, before the defendant
has pleaded, and not afterwards." And provision is also
made in the same section for the immediate amendment
• of the indictment by the Court before which such objection
is taken.
By the interpretation clause in the same Act, sec. 2,
sub-sec. (c.) : " The expression 'indictment' includes infor-
mation, inquisition, and presentment, as well as indict-
ment, and also any plea, replication, or other pleading, and
.any record."
The above sections were evidently framed from the
4*— VOL. XIX. OR.
Digitized byVjOOQlC
344 THB ONTARIO EEPOBTS. [VOL.
Judgment. Imperial Act, 14 & 15 Vic. ch. 100, sees. 25 and 30 raspect-
MacMahon, ively. But sec. 25 of the Imperial Act refers only to
"^^ '* formal defects. So that under the 25th clause of the
English Act, where the fault "is more than a 'mere for-
mal defect," it is not amendable : " per Pollock, C. B., in
Regina v. LonsdcUe, 4 F. & F. at p. 68 ; while under
sec. 143 of our Act, objection may be taken to *' any de-
fect" apparent on the face of the indictment by demurrer
or motion to quash, and may be forthwith amended.
" A ' defect ' is the want or absence of something neces-
sary:" Imp. Diet. A good illustration of a defect iu
an indictment is where an indictment for embezzlement,
which charges that within six calendar months the prisoner
received three sums, laying a day to the receipt of each,
and that " on the several days aforesaid " the prisoner em-
bezzled these sums, is bad, because it does not shew that
the sums were embezzled within six months of each other :
Regina v. Purchase, 1 Car. & M. 617. This objection prior
to our 32 ife 33 Vic. ch. 29, sec. 32, could only be taken by
demurrer, but now by that section can be taken by motion
to quash.
Under the statute an objection to a plea may equally
with an indictment be properly taken by a motion to
quash.
In the case of Regina v. Maclean, (not reported), on an
indictment for libel found at the Toronto Winter Assizes in
January, 1889, a motion was made by the prosecutor to
quash the defendant's plea of justification because it set
out the facts relied upon as shewing the truth of the mat-
ters alleged to be libellous, and thus making it apparent
that it was for the public benefit the publication should
take place.
The motion in that case was made upon grounds the
converse of those taken in the present case. In the Ma^dean
Case it was insisted that all the defendant could allege in
his plea was that the defamatory matters published were
true, and it w^as for the public benefit that they should be
published ; and that he could not by his plea place upon.
Digitized byVjOOQlC
XIX.] BXGINA V. CREIOHTON. 345
the record the facts relied upon as justifying the alJeged Judgment,
libel. ^ MftcMahon,
In Regina v. Maclean I held that a motion to quash J-
the plea was properly made. And in many cases I would
regard it as the more convenient practice.
Suppose to an indictment found for libel in charging the
prosecutor with being a thief, the defendant should plead
the truth of the matters published, alleging that the pros-
ecutor had committed larceny by stealing five acres of land,
the property of one J. B., and also alleging that the pub-
lication was for the public benefit. In such a case the
preferable way would be to move to strike out the plea,
upon the ground that land cannot be the subject of
larceny, instead of demurring thereto.
In an Irish case, RegiifM, v. Rea, 9 Cox 401, which was a
criminal information for a libel on the prosecutor in rela-
tion to his office as mayor of Belfast, the first sixteen
counts of the information were for words spoken to and
of the prosecutor; and the 17th, 18th, and 19th counts
were for composing and publishing a libel on the prosecu-
tor as mayor, and of and concerning him in the execution
of the duties of his office. The traverser pleaded '' not
guilty " to the whole information, and a justification in
terms similar to the plea pleaded in the present c&se, with
the addition to the plea in that case, that it was the
duty of the traverser, as a town councillor of Belfast,
to speak the words complained of, and to compose and
publish the said matters. There was a motion to set
aside the plea and take it off* the files. One of the grounds
taken against the motion was that the Libel Act, 6 & 7
Vic. ch. 96, sec. 6, did not apply to oral slander, and that
that question could only be properly raised and decided
by demurrer to the plea. The Court refused to set aside
the plea on a summary motion, leaving the prosecutor to
demur if he thought proper.
In Regina v. Hoggan, Times for Nov. 4th, 1880, cited
in Odgers, 2nd ed., p. 597, it is said if sufficient details be
not given in such a plea, the only course is for the prose-
cutor to demur.
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h
S46 THS ONTAJUO REPOBTS. [YOL.
Judgment. Under the 143rd section of the Act, where there is a
MacMahon, defect apparent on the face of an indictment, either conrse
^' prescribed by the statute is open to the prosecutor ; he may
demur, or he may move to quash; and it is for the
Court before which the objection is taken to exercise its
discretion, as was done by the Court in Begina v. iZea, and
say whether it will give effect to a summary motion to
quash, or leave the party to his remedy by demurrer.
The Slander and Libel Act, as it appears in the old Con.
Stat of U. C. ch. 103, sec. 9, provides that it shall be a
good defence for a defendant to plead the truth of the
matters charged -by way of justification '' in the manner
required in pleading a justification in an action for defama-
tion"— in this following the English Act, 6 & 7 Vic. ch.
96, sec 6.
When the Libel Act was amended by 37 Vic ch. 38, sees.
5 and 6, the above words in quotation marks were omitted,
and are likewise omitted in the R. S. C. ch. 163, sec 4.
It was urged that the omission of these words from the
present Act is an indication that since the Act of 1874,
(37 Vic.) it was not the intention that in pleading a justi-
fication to an indictment or information for libel the
defendant should be required to plead as in an action for
defamation, and that all he is now required to say by his
plea is that the defamatory matter is true, and that it was
for the public benefit it was published.
I think, however, the change made by the Act of 1874
has not the effect claimed by counsel for the defendant;
and the omission of the words indicated was not intended
to limit the mode in which a plea of justification should be
pleaded, but rather to widen the jurisdiction of the Court
in dealing with such pleas when pleaded in such a manner
as to withhold what might be deemed sufficient particulars
of a charge made by the libel against a prosecutor, and
which he is called upon to meet.
In Huiki/nbotham v. LeaA, 2 DowL N. S. at p. 272,
Alderson, B., says : " The object of the plea (of justifica-
tion) is to give the party who is in truth an accused per-
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XIX.] REQIKA V. CBISiaHTOK. 347
son, the means of knowing what are the matters alleged Jnd^ent.
against him ; " or as put in Odgers, 2nd ed., p. 178, " The MaoMahon.
plea ought to state the charge with the same precision as ^'
in an indictment."
" A justification must always be specially pleaded, and
with sufficient particularity to enable plaintiff to know
precisely what is the charge he will have to meet. If the
libel make a vague general charge, as, for instance, that
the plaintiff is a swindler, it is not sufficient to plead that
he is a swindler ; the defendant must set forth the specific
facts which he means to prove in order to shew that the
plaintiff is a swindler:" Odgers, 2nd ed., p. 177, citing
r Anson v. StuaH, 1 T. R 748.
If an indictment were found against a person for libel
m publishing that J. B. was a thief, because at a certain
time he stole (100 of the moneys of J. S. ; or that J. B.
was a forger, having forged the name of J. S. to a promis-
sory note for the payment of $500 ; in either of the cases
put, the defendant in pleading a justification is only called
upon to allege the truth of the matters, and that they were
published for the public benefit, because all the necessary
facts in the one case shewing how the prosecutor is a thief,
and in the other how he is a forger, are stated with suffi-
cient particularity in the libel, and such {gets therefore need
not be repeated in the plea of j ustification. But if an indict-
ment were found against a person for calling J. B. a thief or
a forger, the defendant, if he desires to plead a justification,
must in his plea set forth the specific facts in order to
shew how the prosecutor is a felon of the dass stated in
iheUbeL
So in regard to the libels set forth in the indictment
found against the defendant, by which libels the prosecu-
tors, are called " traitors," and said to have been guilty of
"atrociously traitorous conduct," and the Mail is called
" a black traitor to its country," the plea fails to shew
how and in what manner the prosecutors are " traitors f
or how they have been guilty of " traitorous conduct ;" or
how the Mail has been ** a black traitor to its country ; '*
Digitized by VjOOQIC
348 THE ONTARIO RBPORTS. [VOL.
Judgment and the prosecutors are entitied to have in the plea of
MacMahon, justification the facts set forth with sufficient particularity
*^- to enable them to see the charge they will have to meet
In Regina v. Wilkinson, 42 U. C. R, decided in 1878,
four years after our Libel Act was amended, Harrison,
C. J., at pp. 506-6, treated the rule as to flie necessity of
pleading a justification to an indictment in a like manner
to an action for defamation, as being still in existence.
And Taschereau's Criminal Acts, 2nd ed., p.* 229, gives the
form of a plea of justification under our Libel Act in which
the author evidently entertains the opinion that the facts
which render the publication of the alleged libel to be for
the public benefit must be set out in the plea.
The care to be taken and the particularity required in
pleading a justification to an indictment or information
for libel is fully considered in Regvna v. Newmany 1 E. &
B. 558, and see p. 561, where the pleas are fully set out
Also Eegin/i v. Moylan, 19 U. C. R. 521 ; Begins v. WU-
kinsony 4i2 U. C. R, where at p. 506, Ebrrison, C. J., gives
the result of the cases as being that if the defendant,
either in civil or criminal proceedings, has stated in the
article complained of, more than he can allege to be true
or substantially prove to be true if alleged, he may be
found guilty of libel.
I have come to the conclusion for the reasons given that
the plea of justification filed is manifestly insufficient,
and must be quashed and removed from the files.
Where the objection is that the plea of justification
filed is insufficient in its details, as in Regina v. Hoggan,
or where, as in Begins v. Rea, one of the questions raised
during the argument of the motion to quash the plea, was
whether the Libel Act, 6 & 7 Vic ch. 96, sec. 6, applied to
cases of oral slander, I can well understand the Court before
which questions of the character stated were raised, refus-
ing to deal with them by summary motion to quash, and
leaving the prosecutor to demur.
No such questions arise as to the plea before me, and I
think it a proper case in which to deal with it by a motion
to quash.
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xdl] county of mtodlesex v. shallman. 849
The defendant will have until the first day of the next Judgment
sittings of Oyer and Terminer at Toronto in which to MaoMahon,
file an amended plea of justification^ *^'
The costs of and incidental to this motion can be dis-
posed of when the Judge who presides at the trial is
disposing of the costs at the trial.
[QUEEN'S BENCH DIVISION].
County of Middlesex v. Smallman et al.
BtgiUry latos — Bond for performance of dtUiee of office of Begistrar — -Paj/-
fMut to mundcipalUy of portion o/fees—LiabUUy of sureties — B. 8, U,
ck. 114, sees. ISy 107.
Action upon a bond of the defendants as sareties for a Registrar of deeds,
dated 8th January, 1886, to recover the portion of fees received by him
which he should have paid over to the plaintifib under the Registry
Act, R. S. O. ch. 114, sec. 107.
The bond was in the form prescribed by schedule A. of the Act, and was
conditioned for the perrormance of the duties of the Registrar's office
snd against neglect or wilful misconduct in office to the cuimage of any
person or persons.
The form was prescribed before the introduction of the provisions now
contained in sec. 107 of the Re^stry Act, which by sec. 13 makes pro-
vision for the giving of special security for the payment of moneys
onder sec. 107 : —
Eddy that the bond given by the defendants must be taken to be restricted
to the performance by the Registrar of the duties imposed upon him
other than the duty imposed by sec. 107 ; and the action was dismissed.
This was an action tried before Street, J., at London, Statement
without a jury, on 15th May, 1890.
The plaintiffs were the corporation of the county of
Middlesex ; the defendants were the sureties for the late
Registrar of the north and east ridings of the county.
The action was brought upon a bond dated 8th January,
1886, in the form given in Schedule A. to the Registry
Act, to recover $737.50 and interest, being the portion of
the fees received by the Registrar which he should have
pwd over to the plaintiffs, under the 107th section of the
Registry Act, ch. 114, R. S. O.
The defence was that under the bond they gave, the
sureties were not liable for the payment of these moneys.
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360 THE ONTARIO REPORTS. [VOL.
Aignment. Purdom, for the plaintiffs.
Oaler, Q. C, and Flock, Q. C, for the defendants.
The following Ontario statutes were referred to b^
counsel : 31 Vic. ch. 20, sec& 9 and 17-21 ; 35 Vic. ch. 27 ;
36 Vic. ch. 6, sec 3 ; 39 Vic. ch. 17, sec. 10 ; R. S. 0. 1877
ch. Ill, sees. 8, 9, 13, 20-24, 104, 108 ; 40 Vic. ch. 6, sec.
10 ; R S. O. 1887 ch, 114, sees. 8, 9, 13, 20-24, 107.
The following authorities were also referred to : Murfree
on Official Bonds (1885), seca 179, 460, 488 ; De Colyar
on Guaranties, 2nd ed., p. 206 ; Oray v. IngeraoU, 16
O. R. 194.
May 21, 1890. Street, J.:—
The foim of the bond here sued on is that which was
prescribed by the Registry Acts in force before the intro-
duction of the provisions giving to the county or city
municipalities a share in the Registrar's fees, and the same
form has been preserved down to the present time,
notwithstanding those provisions. The condition is that
the Registrar shall " perform the duties of his office as
such Registrar, and that neither he nor his deputy shall
negligently or wilfully misconduct himself in his said
office to the damage of any person or persons whomsoever."
By sea 107 of the Act (R. S. 0. 1887 ch. 114) it is made
compulsory upon any Registrar, the fees of whose oflSce
have exceeded a certain sum, to pay over to the county or
city municipality a certain proportion of the excess.
Had there been no clause in the Act under which the
present bond was given, dealing specially with the question
of the security to be given for the payment by the
Registrar to the municipality of the prescribed portion of
his fees, I think the terms of the bond would have been
sufficient to make the sureties liable. The words used are,
as might be expected from the object with which the form
was originally framed, more apt to cover the performance
of duties than the payment of moneys, but the conclusion
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XIX.]
COUNTY OF MIDDLESEX V. SMALLMAN.
351
mighti without much straining, have been reached that a Judgment,
Registrar who did not pay over moneys belonging to the street, J.
municipality was not faithfully performing the duties of
his office. The 13th section of the same Act, however,
makes special provision for the giving of special security
for the payment of these moneys. It enacts that " The
Lieutenant-Governor, upon the application of any county
or city interested, or without such application if he thinks
fit, may require any Registrar to give security in such form
and for such an amount as the Lieutenant-Governor in
Council determines to be sufficient to secure the due pay-
ment of any moneys payable by the Registrar to the county
or city."
I think it cannot be held that where such a special
security is given there are two sets of sureties for the
payment of these moneys, and if so, then until the special
security for them is given, it would seem to follow that no
security exists for them. The history of the legislation, I
think, strengthens this view.
Previous to 35 Vic. ch. 27 Registrars retained all fees to
their own use, and gave one bond only in the statutory
form which still exists, and is that which the defendants
executed.
By 35 Vic. ch. 27 Registrars were required for the first
time to pay part of their fees to the municipality, but no
provision was made for their giving security for such
payments. This omission was rectified by 39 Vic. ch. 17,
sec. 10, which is the same as sec. 13 of the present
Registry Act.
The result seems to be that the bond given under sec. 9
must be taken to be restricted to the performance by the
Registrar of the duties imposed upon him, other than the
duty of paying over to the municipality the prescribed
portion of his fees, and that if an interested municipality
should desire to have security for the moneys payable to it
by the Registrar, it must obtain a special bond for the
purpose.
Action dismissed with costs.
45 — VOL. XIX. o.R.
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852 THE ONTABIO BEPOBTS. [VOL
[COMMON PLEAS DIVISION.]
Beqika y. Herbcan Llotd, Oeorge Llotd and
Albert Llotd.
Criminal Law — Bape — Crown cast ruerved— Evidence to go to jury.
On a Grown case reserved it is not proper to reserve the question whether
there is sufficient evidence in support of the criminal chai^, that beinff
a question for the jury ; whether there is any evidence is a question of
law for the Judge.
The evidence against the prisoners here was the uncorroborated evidence
of the woman charged to have been raped which, in view of admissions
made by her, and the circumstances, was unsatisfactory : —
Held, that the evidence was properly submitted to the jury, but the
Court directed that the attention of the executive should be called to
the<
Statement The prisoners were tried at the Belleville Assizes on the
22nd day of April, 1889, before Falconbridge, J., and a
jury, on an indictment charging the prisoner, Herman
Lloyd, with having on the 2nd day of September, 1888,
at the Township of Tyendenaga, in the County of
Hastings, committed a rape on one Anne Denton, and the
prisoners George Lloyd and Albert Lloyd with aiding and
abetting in the commission of the said felony.
The jury returned a verdict of guilty againsc all the
prisoners; and the learned trial Judge reserved for the
opinion of the Justices of the Common Pleas Division of
the High Court of Justice as a Court for Crown Cases
Reserved the following case :
1. The prisoners were defended by different counsel, Mr. Dickson,
Q.C., for Albert Lloyd, and Mr. Burdett for Herman Lloyd and Oeoige
Lloyd ; and both counsel for the defence cross-examined the witnesses for
the prosecution.
2. The counsel for the Crown, upon re-ezamination of Annie Denton,
who was the principal witness for the Crown, examined her at length as
to previous acts of criminal connection alleged by her to have been had
by the said Albert Lloyd with her feloniously and against her will, which
re-examination upon these distinct felonies as if they were charged in the
indictment, the counsel for the defendant Albert Lloyd objected to, upon
the ground that he was not on trial for and not prepared to answer such
charges then, and that their expansion before the jury would natar&Uy
prejudice the jurors against his client, the said Albert Lloyd.
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XIX.]
REOINA V. LLOYD.
3. The only evidence of the alleged crime was that given by Annie Statement.
Denton, upon whom it was charged to have been committed. She deposed
that on the Sunday afternoon in question she had got into a buggy with
the prisoner Herman Lloyd to go with him for a drive to Chisholm's
Mills, starting from the residence of Albert Lloyd, where she was staying,
about a mile distant from Chishblm's Mills. They drove to Asa Lloyd's,
A brother of the prisoner, about seven miles distant. There they met
the prisoner Qeorge Lloyd, and he left Asa Lloyd's at the same time as
Herman Lloyd and Annie Denton the prosecutrix, who swears that
Oeoi^ge Uoyd got into the buggy with them and rode with them for some
distance, and then George Uoyd got out of the buggy an^ Herman Lloyd,
with Annie Denton, drove on into woods called Hall's Woods, and there
she stated the act was committed by Herman Lloyd while they were
alone ; that a few minutes after he had committed the offence the prisoner
George Lloyd came through the woods, and that he, too, had connection
with her against her wiU. That a few minvtes after this the other
prisoner, Albert Lloyd, came to the place where they were and a<>ked her,
according to her evidence, to consent that he might have connection with
her, which she refused to do, and thereupon that Albert Lloyd went away
without molesting her. That Herman Lloyd then drove with her in the
bujcgy to Albert Lloyd's, where she remained for another week until the
second Monday following this Sunday, during which time she made no
compljdnt, nor did she tell her sister, the wife of Albert Lloyd, or anyone
what had been done to her.
4. The prosecutrix, Annie Denton, stated in cross-examination that at
the time of the alleged rape on the Sunday evening mentioned, that the
prisoner Albert Lloyd was getting ready to thresh his grain. She also
states that one Thomas Emerson did the threshing for Albert Lloyd that
fall, and that the way from Albert Lloyd's to Thomas Emerson's is past
Asa Lloyd's : that the road through Hall's Woods is the road to Asa
Lloyd's from Albert Lloyd's : that it was not fenced on either side through
the woods ; and she says that Herman only drove a few feet off the
regular road, also that there was a road into the woods on which Herman
Lloyd drove off the main road with her. She says she struggled hard
and screamed loudly both when Herman Lloyd and George Lloyd had
connection with her. She also testified that during the week preceding
this Sunday Albert Lloyd had had counection with her, and assigned as
her reason for accepting Herman Lloyd's invitation to go out riding imder
these circumstances that she " thought he was just as nice as anybody
else." She says that when they left Albert Lloyd's the express intention
was to drive to Chisholm's Mills, and that neither George Lloyd nor
Albert Lloyd were present, nor were either of them present when she and
Herman Lloyd started on their drive, and it was after they had started
that the destination was changed to Asa Lloyd's with her consent. She
thinks something was said about the proposed drive to Chisholm's Mills
at the supper table ; and she also states that Asa Lloyd's is in the opposite
direction from Chisholm's Mills.
5. The prosecutrix also swore that the prisoner Albert Lloyd had had
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354
THE ONTARIO REPORTS.
[vol.
f- .
Statement, connection with her in June, 1887, after which she returned to Albert
Lloyd's in 1888, but that she had never told anyone of this during the
year and over which intervened after the first connection and before she
returned to his place in 1888. She also stated that during her visit in
1888 Albert Lloyd had connection with her twice, but that she isid
nothing about it to anyone until after the third time, although she had
every opportunity to complain of the acts or to go away from Alber
Lloyd's house.
6. It was shown that on the trial of a former indictment against the
prisoner Albert Lloyd upon a charg%of rape committed upon the prosecn*
trix in 1887, which trial was had before Mr. Justice Rose in the fall of
1888, the witness, Annie Denton, had sworn that both Herman Lloyd and
George Lloyd each had had connection with her once at least before the
occasion in Hall's Woods.
7. The Crown counsel, in re-examination of Annie Denton, the prosecu-
trix, examined her in detail in reference to the previous acts of illicit
connection had between her and Albert Lloyd. Albert Lloyd's ooooBel
objected upon the ground that it would prejudice his defence to this
indictment in the minds of the jury, and that his client was not being
tried for such acts.
8. The whole of the evidence as taken by the official reporter and my
charge to the jury is herewith submitted as part of this case for the con-
sideration of the said Justices of the Common Pleas Division of the High
Court of Justice.
The questions for the said Judges are :
(1.) Was the evidence against Albert Uoyd such as was sufficient and
proper to submit to a jury in support of the indictment against him
hereinbefore set forth, or should I have withdrawn the case from the
jury and directed an acquittal of Albert Lloyd ?
(2.) Was the evidence on re-examination, as against Albert Lloyd,
properly admitted ? «
(3. ) Was the evidence against Herman Uoyd of that character that it
was safe and proper to submit it to a jury on a charge of rape against him ?
(4. ) Was the evidence against George Lloyd such as was sufficient and
proper to submit to a jury in support of the indictment against him herein-
before set forth ?
(5.) If the said Justices should answer either the first or second-
questions in the negative, then the verdict of guilty against Albert Uoyd
shall be vacated and set aside and quashed.
(6. ) If the said Justices should answer the third question in the negative,
then the said verdict as against the prisoner Herman Lloyd shall be-
vacated and quashed.
(7.) If the said Justices should answer the fourth question in the^
negative, then the said verdict as against George Lloyd shall be quashed
and vacated.
In Hilary sittings, February 15, 1890, the case was
argued before Galt, C. J., Rose and MacMahon, J.J.
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XIX.] BKGINA V. LLOYD. 356
Bigdow, Q. C, for the prisoners. Argument
/. R, Cartwright, for the Crown.
March 8. 1890. MacMahon, J.
The evidence is somewhat voluminous, but the main
facts developed during the trial are nearly all sufficiently
set forth in the case reserved by my learned brother
Falconbridge.
There is no evidence whatever to connect Albert Lloyd
with the offence charged. The facts as stated in the third
paragraph of the case shew that at the time Herman and
the prosecutrix started for their drive from Albert's house
on the Sunday evening in question, they drove in a con-
trary direction to that at first contemplated. When
Herman asked Annie Denton to go for a drive, the pro-
posed destination was Chisholm's Mills, a mile from
Albert's house, and instead of going there they drove in an
opposite direction, a distance of seven miles, to Asa
Lloyd's. There is no evidence that Herman had com-
municated to Albert the direction in which he was going,
and from what took place prior to leaving Albert's house,
the purpose appeared to be to go to Chisholm's Mills.
If Albert appeared in Hall's Woods, as the prosecutrix
states he did, after she had been criminally assaulted by
the prisoners Herman and George, he (Albert) never
molested her ; and there is no evidence of any agreement
between him and Herman that he should be in the vicinity
of the place where it is alleged the assault was committed
by the prisoners Herman and George.
In order to make Albert an aider and abettor under this
indictment, he must have been present either actually
or constructively ; and a person is present in construc-
tion of law aiding and abetting if with the intention of
giving assistance he is near enough to afford it should
occasion arise. Thus, if he was watching at a proper
distance, to prevent a surprise, or to favour the escape of
those who were more immediately engaged, then he
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S56
THE ONTAKIO REPOBTS.
[vol.
Judgment. (Albert) would be a principal in the second degree : Roscoe's
M,;;5;^on, Cr. Ev., (10 ed.), pp. 182-3. Archbold's Cr. PI. (10 ed.) 9 & 10.
^' There was no evidence to shew such a state of facts, and
the learned Judge should, we think, have withdrawn the
case as against Albert Lloyd from the jury.
As to the case against the prisoners Herman and George,
we cannot say that there was not evidence which the
learned trial Judge should have submitted to the jury
against them, although, as stated in the sixth paragraph of
the case the prosecutrix swore on the trial of a former
indictment against Albert Lloyd upon a charge of rape
said to have been committed upon her in 1887, that both
Herman Lloyd and George Lloyd had connection with her
at least once before the Sunday on which they assaulted
her in Hall's woods.
These facts were before the jury, and were commented
upon by my learned brother Falconbridge in his charge,
and it was for the jury to weigh the evidence of the
prosecutrix and say what credit should be given to her
testimony.
Even in cases where, upon the trial of a prisoner, the
evidence of an accomplice is not corroborated, the jury
may convict, although it is now the universal practice for
judges to advise juries that it is unsafe to convict upon the
testimony of an accomplice alone. " It is not a rule of law
that an accomplice must be corroborated, but a rule of
practice merely": see Jervis, C.J., in Eegiria v. Stubbst 7
Cox. C. C. 48, 51 ; and Lord Campbell in Regina v. JoneSf
2 Camp. 131, speaking of the evidence of an accomplice,
says, at p. 132 : '* If he is believed, his testimony is un>
questionably sufficient to establish the facts to which he
deposes." See cases collected on this point in Regina v.
Smith, 38 U. C. R. 218, at p. 229 ; and in Regina v.
Andrews, 12 O. R 184.
In charges of rape the law as to the credit to be attached
to the evidence of the person ravished is thus stated by
Lord Hale : " The credibility of her testimony, and how far
she is to be believed, must be left to the jury, and is more
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SIX*] BEOINA V. LLOYD. 357
or less credible according to the circumstances of fact that 'J^udgment,
concur in that testimony : " 1 Hale P. C, 633. Ma^iMahon,
In the case against the prisoners, which we are called ^*
upon to consider, we may, in view of the statement in the
sixth paragraph of the case to which I have already
referred, adopt the very apt language of Robinson, C. J., in
delivering the judgment of the Court in Regina v. Baby, 12
U. C. R. 346, in 1855, at which time under the statute then
in force the Courts were empowered to grant new trials in
criminal cases. He says at p. 353: "The statute * * gives
us no authority to order a new trial, or to prevent a verdict
of guilty from going into effect because we may think the
jury would have exercised a sounder judgment if they had
acquitted. We may consider the evidence for the prose-
cution to be weak ; we may find it to be conflicting, and
may have a strong impression that, if we ourselves had
formed part of the jury we might not have been satisfied
with it."
So in the case in hand we may consider the evidence of
the prosecutrix weak ; we may, in view of the admissions
made during the trial, consider some of the statements
made against the prisoners Herman and George as improb-
able ; but the probable truth or falsity of the statements
was for the consideration of the jury, and although we
may think they did not exercise a sound judgment in
reaching their verdict, we cannot say there was no evidence
to be submitted to them, and therefore the learned Judge
was not bound to withdraw the case from the jury.
The question reserved as to whether the evidence was
sufficient and proper to be submitted to the jury was not a
question of law arising at the trial, and the reservation was
therefore not properly made. Whether there was any
evidence was a question of law for the Judge ; its
sufficiency was a question of fact for the jury.
While reaching the conclusion that the case could not
have been withdrawn from the jury as to Herman Lloyd
and George Lloyd, yet in view of the admission made by
the prosecutrix that prior to the alleged rape charged in
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358 THE ONTARIO REPOBTS. [VOL.
Judgment, the indictment they had connection with her, it is proper
MacMahon, that the attention of the Executive should be drawn to the
^' case of these prisoners.
There will be judgment for the Crown as against the
prisoners Herman Lloyd and Gteorge Lloyd ; and there will
be judgment quashing the conviction as against the
prisoner Albert Lloyd.
Galt, C.J., and Rose, J., concurred.
[OOMMON PLEAS DIVISION. 1
Meyers v. The Hamilton Provident and Loan Company.
WiU—RtUe in Shelley's Catt—Trtut—IUMrtMnt on aUenatUm by saU but
not by mortgagt^RuU against perpetuities,
A testator by his wiU devised certain lands to his son N. M., for life and
after his decease to his heirs and assigns forever, bnt subject to the
payment within three years out of the rents and income of a sum of
money charsed upon the lands therein specified ; after his death the
land was to oe sold provided N. M.'8 younsest child then living was of
the age of twenty-one years, the proceeds thereof to be equaUy divided
between N. M.*8 children at the time of the sale : —
Heldt affirming the judgment of Stbbkt, J., at the trial, that under the
rule in Shelley's Case N. M. took an estate in fee simple in the land,
but reversing it so far as it held that there was a trust in favour of
N. M.'s children.
Held, also, that by the terms of the will there was a restraint on aliena-
tion by sale, bnt not by mortgage.
Hdd, lastly that the executory devise in favour of N. M.*s children was
void as a violation of the rule against perpetuities.
Statement This was an action commenced before Street, J., with*
out a jury, at Brantford on the 6th of November
and continued at Toronto on the 11th of November, 1889.
The action was brought by the plaintiff to obtain a de-
claratory judgment as to the title which passed to him
under the will of David Meyers, and to restrain the
mortgagees, the Hamilton Provident and Loan Society,
from selling under the mortgage until the title was declared
by the Court.
The learned Judge delivered the following judgment^
which contains the clause of the will before the Ciourt for
consideration, and states fully the &cts :
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XIX.] MEYERS V. HAMILTON PROVIDENT AND LOAN CO.
369
Street, J.: — The circumstances in this case were as Jndgment.
follows: David Meyers being the owner in fee simple street, J.
of the lands in question made his last will, bearing date
on 27th December, 1851, and died on 2nd July, following.
The third clause of his will is as follows :
*
"I give and beqaeath unto my third son Nelson Meyers daring his
natural life and after his decease to his heirs and their assigns forever,
lot No. 25 in the 5th concession, township of Ancaster. This endow-
ment of Nelson Meyers is subject to the hereafter named reservations : I
bind and oblige Nelson Meyers to pay or cause to be paid out of the rents
or incomes of his endowment in this will the sum of £43, 15s. of lawful
money. This sum of money is to be paid within three years after my
decease, and it is also to be paid to the following persons, that is to say,
£25 to my son Jacob Meyer ; £6, 5s. to my eldest daughter Mary Ann
Hardy ; £6,5e. to my second daughter Amanda Lambkin, and £6, 5s. to Jane
Eliza Miller, the girl that I have had from a child. The lot of land that
NehKm Meyers is endowed with in this will is to be sold, but not during
Nelson Meyers' natural life and not after his death until his youngest
child then living is of the full age of 21 years, and it is to be sold within
three years after Nelson Meyers' youngest child is of the full age of 21
years, providing Nelson Meyers is dead. The proceeds received from the
sale of this lot of land is to be equally divided between Nelson Meyers'
children at the time of the sale."
No other part of the will is of any assistance in con-
struing this clause.
Upon the death of the testator. Nelson Meyers entered
into possession of the lands in question and has ever
^ce continued in possession of them. He had three
children living at the time of the death of his father
David Meyers, all of whom are parties defendants; in this
action.
On the 27th of January, 1883, Nelson Meyers executed
a disentailing deed for the purpose, as it appears^ of vest-
ing a fee simple in himself and his heii*s.
On the 1st of August, 1885, he executed a mortgage upon
the property to the defendants, the Hamilton Provident
and Loan Society. That mortgage being in arrear the
mortgagees took proceedings under their power of sale, but
were unable to obtain a purchaser owing, as it is stated,
4x) doubts as to Nelson Myers's right to convey a good title.
46— VOL. XIX. O.K.
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TH£ ONTABIO REPORTS. [VOL..
Jodgment. Xhis action 16 now bronght by him to obtain a declara-
Street, J. tory judgment as to the title which passed to him by the-
will, and to restrain the mortgagees from selling until the
title is declared by the Court.
The latter part of the relief asked is one which I think
should not be entertained. The plaintiff has conveyed to
the mortgagees covenanting with them that he had a good
title, and upon the faith of his title the mortgagees have
advanced him a considerable sum of money ; he has made
default in repaying it ; and it cannot be allowed that he
should urge doubts as to the title as a reason why the mort-
gagees should not be allowed to realize their security.
He had, however, a right to have a declaration as against
his children of his right to the property ; and it does not
seem to be improper to join the mortgagees for the pur-
pose of obtaininir it.
The intention of the testator in regard to this property
is, I think, plainly to be gathered from his will. His
desire was that Nelson Meyers should enjoy it for his life,
paying out of the rents the legacies which he specifies, and
that upon his death, and within three years of the young-
est child attaining 21 years of age, whichever event should
last happen, the property should be sold and the proceeds
divided amongst his children then living. .
In carrying out this intention he has first created a fee
simple in Nelson Meyers by devising to him the property
for life with remainder to his heirs, but the fee simple so
devised must in order to carry ovi the avhsequent pro-
visions be ooTistrued as being upon a trust to sell the Icmd
aJt the period speoified in the will amd to divide the pro-
ceeds amongst the children of the devisee for Ufe then
living.
It is not necessary that formal words declaring a trust
should be used. It is only necessary that an intention
should be manifested by the testator with respect to the-
property in favour of an ascertained person or class of
persons, and the inlerUion wUl be eooecuted through the
medium of a trust however informal the language may be
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XIX.] MEYERS V. HAMILTON PROVIDENT AND LOAN CO. 361
in which the intention may have been expressed. Here Jndgment.
the property is devised to Nelson Meyers expressly subject street. J.
to the subsequent reservations which are that out of the
rents and income he shall pay the legacies and that at or
shortly after his death it shall be sold and the proceeds of
the sale divided amongst his children then living. Subject
then to these conditions he takes the property and may
apply the rents and income to his own purposes after pay-
ing the legacies. When the time comes for a sale of the
property the trust for sale arises and is to be exercised by
the persons then entitled to the legal estate under the will
of David Meyers, that is to say, by the heirs of Nelson
Meyers, or by his or their assigns, for eveiy aasign must
take subject to the terms of the will. Nelson Meyers
therefore took a beneficial interest in the land for his life
subject to the payment of the legacies which are charged
on it, and there is nothing in the wiU to prevent his dis-
posing of it. This interest is what passed to the mortga-
gees and the disentailing deed was of no force or validity.
The plaintiffs should pay the costs of this action.
The declaration will of course not be binding upon any
children of Nelson Meyers who may hereafter come into
existence and who may become entitled to a share of the
proceeds of the sale of the property.
In Michaelmas Sittings, 1889, the plaintiff moved on
notice to vary the judgment.
In Hilary Sittings of the Divisional Court, (composed of
Galt, C. J., and MacMahon, J.), February 12, 1890,
Orerar, Q. 0., and VcmNorman, Q. C, supported the
motion.
Hoyles, Q. C, contra.
March 8, 1890, MacMahon, J. : —
I agree with Mr. Justice Street in that part of his judg-
ment which holds that by the words in the will "I give and
bequeath unto my third son Nelson Meyers during his
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362 THE ONTARIO REPORTS. [VOL.
Judgment, natural life and after his decease to his heirs and their
MacMahon, assigns forever/' the testator created a fee simple in Nelson
Meyers, under the rule in Shelley's case. And in regard
to thd,t rule the learned author of Tudor's Leading Cases
on Real Property, 3th ed., p. 599, says : " There is no rule
which has been adhered to more inflexibly than that which
is termed the rule in SheUey^a Gase, viz., that when the
ancestor by any gift or conveyance takes an estate of free-
hold, and in the same gift or conveyance an estate is
limited by way of remainder either mediately or imme-
diately to his heirs in fee or in tail, in such cases * the
heirs ' are words of limitation of the estate and not words
of purchase."
Mr. Hoyles's argument was that as there were "children"
of Nelson Meyers living at the date of the devise the use
of that word by the testator in the latter part of the
clause of the will could not be prima fade considered as
a word of limitation; and that the words "their assigns,"
following the words "heirs," made the latter a word of
purchase.
In Theobald on Wills, 8rd ed., 813, the rule of constrao-
tion is thus stated : " The rules of construction with refer-
ence to cases coming within the operation of the rule in
Shelley' 8 Case are settled by the leading cases of Jeason v.
Wright, 2 Bligh 1, and Roddy v. Fitzgerald, 6 H. L 823.
Where the words " heirs" or " heirs of the body" are used in
the limitation of the inheritance the rule applies. — (1)
Although the limitation of the freehold to the ancestor
may be followed by words clearly indicating an intention
that the estate is to be for life only. Thus, it is immaterial,
that the estate of the ancestor may be declared to be 'for
life and no longer ' : Roe d. Thong v, Bedford, 4 M. & S.
362 ; Robinson v. Robwson, 1 Burr. 88, 2 Ves. Sen. 225 ;
Macnamiara v. DiUan, L. R. 11 Ir. 29, etc. The words
limiting the estate of the heirs to a life estate or to a
life estate without power to sell or dispose, will be
rejected: Doed. Cotton v.Stenlake, 12 East 515; Euffo
V. WiUiamB, 14 Bq. 224 ; Hayes v. fo^tie, 2 W. BL 698.
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XEL] MSTERS v. HAMILTON PROVIDBl^T AND LOAN 00. 36S
The same will be the case with words of limitation in fee Jndgment.
or in tail, superadded to the words " heirs" or " heirs of the MacMahoB>
body." Thus a limitation to the heirs of the body of the J-
ancestor and their heirs, or their heirs, execntors, adminis-
trators and assigns forever, * * will not avail to give
the heirs an estate by purchase : Theobald* 3rd ed. 314.
It is said by the same author at p. 315: ''Nor will
words of distribution and limitation together superadded
to the limitation of the inheritance prevent the operation
of the rule."
It has sometimes been laid down that words of distribu-
tion and limitation together, superadded to the heirs,
vould make the latter a word of purchase, but the
rule is now clearly settled overruling Oretton v. Haward,
Taunt. 94 ; Crump d. Woolley v. No'i^oood, 7 Taunt. 362 ;
And^9on v. Anderson, 30 Beav. 209, and other cases cited
by Theobald, at p. 315.
"Lord Cockburn, C. J., in Jordan v. AdamSy 9 C. B. N.
S. 483, at p. 497, thus sums up the law with reference to
the extent of the application of the rule in Shelley's Case
where the word "heirs" or "heirs of the body" are used: " No
incident superadded to the estate for life, however clearly
shewing that an estate for life merely and not an estate of
inheritance was intended to be given to the last donee,
nor any modification of the estate given to the heirs, how-
ever plainly inconsistent with an estate of inheritance, nor
any declaration however express or emphatic of the devisor,
can be aUowed, either by inference or by force of express
direction, to qualify or abridge the estate in fee or in tail
as the case may be, into which upon a gift to a man for
life with remainder to his heirs or the heirs of his body
the law inexorably converts the entire devise in favour of
the ancestor."
In Peterborovgh Investment Company v. Patterson, 13
O.R. 142, and 15 A. R. 751, it was held that from the
peculiar wording of the testatrix's will in that case she
intended that the estate should be entailed on the children
of her son and daughter-in-law Alexander and Mary
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364 THB ONTABIO REPORTS. [VOL.
Judgment. Patterson ; and in order to carry out such intention the
MacMahon, Court held they — the son and daughter-in-l&w — ^took only
*^' a life estate by entireties and their children an estate tail
in severalty. Wilson, C. J., in the Oourt below, at pp. 147,
148, pointing out the rule of law that in construing wiUs
the general intent will yield to the particular intent says :
" if there be superadded words or expressions shewing what
the particular intent of the testator was, and if that intent
can be lawfully carried out." And also *" that every part of
the will shall be given effect to, so far as the lanv will per-^
mit bvi no furtheTy and that no part will be rejected, ex-
cept what the law make<) it necessary to reject."
In Smith v. Smith, 8 O. R. 677, where there was a devise
to J. S. for the term of his natural life, and if he should
leave a lawful heir or heirs then the said lands should be
divided equally amongst them, the learned Chancellor held
that J. S. took a life estate only, the testator having him-
self interpreted the words " lawful heir or heirs " to mean
child or children by declaring that the farm was to be
divided amongst them at the death of their father. But
in that case the devise did not, according to the Chancel-
lor's judgment, create an estate in fee or in tail under the
rule in Shelley's Case.
In Dickson v. Dickson, 6 0. R. 278, where the will was
made in 18^6 the devise was to the plaintiff and his heirs
and executors forever of a parcel of land subject to the
proviso, "That he neither mortgage nor sell the place, but
that it shall be to his children after his decease." The
plaintiff had children living at the date of the will.
The learned Chancellor in his judgment gave three pos-
sible constructions : (1) An estate in fee in the plaintiff,
but subject to be defeated by executory limitation to his
children after his decease if they survived him. (2) By
rejecting the earlier technical words ''to his heirs" as
being used ignorantly or in misapprehension of their
effect which would cut down thei first devise to an estate
for life only, and would vest the remainder in fee in the
children as tenants in common. (3) To intercalate a life
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3DL] MEYEES V. HAMILTON PBOVIDENT AND LOAN CO. 366
^tate of the children between an estate for life in the Judgment
plaintiff and the ultimate remainder in fee vested to him MaoMahon,
by the first words of the wili ^'
The inclination of the Chancellor was that the last was
the preferable construction.
Smith V. Smith ; Sweet v. Piatt, 12 O. R. 229 ; Re
Chomdler, 18 0. R. 105, and Dickson v. Dickson, were
cited in the argument as authorities that under the will in
the present case Nelson Meyers only took a life estate.
Bat the language of the will, according to the view of the
learned trial Judge, and in my own opinion, shews that
Nelson took an estate in fee under the Rule in SheUey's
Case ; and I do not think the words in the latter part of
the clause are of that decisive character by which that
estate can be cut down or in anywise impaired.
It is a rule of the Courts in construing written instru-
ments, that when an interest was given or an estate con-
veyed, in one clause of the instrument in clear and decis-
ive terms, such interest or estate cannot be taken away or
cat down by raising a doubt upon the extent and meaning
and application of a subsequent clause, nor by reference
therefrom, nor by any subsequent words that are not as
clear and decisive as the words of the clause giving that
interest or estate : Tho^mhiU v. Hcdl, 2 CI. & F. 22. See
also Kerr v Baroness Clinton, L. R. 8 Eq. 462, at p. 465.
The other question to be decided is whether the restraint
against alienation by Nelson Meyers during his lifetime
is valid ; or whether it is such a restraint upon alienation
when added to a devise in fee as renders it void for
repugnancy.
In Smith v. Faught, 45 U. C. R. 484, there was a devise
in fee the devisee being restrained from selling or causing
to be sold the above named lot or any part thereof during
her .natural life, but she should be at liberty to grant it to
any of her children whom she should think proper. The
restraint upon alienation was held valid. But it was also
held that the giving of a mortgage by the devisee was not
a violation of the restraint.
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366 . TAB ONTARIO REPORTS. [VOI,
Jndgment. In Eavls V McAlpine, 27 Grant, 161, the devise was to
MacMahon, the two sons of the testator with a restraint on alienation
^^ during the life of testator's widow. Blake, V, C, held the
restraint valid, and the Court of Appeal affirmed the judg-
ment in 6 A. R. 145.
In lie Wdler, 16 0. R. 318, where the devise of lands
was to a man-ied woman with a proviso that she should
not alienate or incumber them until her sister should
arrive at the age of 40 years Armour, C. J., held the
restraint wa& valid. See also Peiinyman v. McOrogan, 18
C. P. 132; Be Wiiistanley, 6 0. R. 315.
The last case in our own Courts is Re Norihcote, 18 O.
R. 107, where the testator devised land in fee to his son
subject to this express condition that he should not sell or
mortgage the land during his life, but with power to
devise the same to his children as he might think fit in
such way as he might desire. Boyd, C, held that the case
was governed by Ee Winatanley, and that the property
was not clothed with a trust in favour of the children, but
the devisee took it in fee simple with, however, a valid
prohibition against selling and mortgaging during his life.
Having regard to the decisions in Smith v. Faugh and
Re N^orthcote, I think the restraint upon alienation by
/'sale" during' the life time of Nelson Meyers must be
regarded as a valid restraint. But it is only against an
alienation by "sale" that the will provides; and, therefore^
does not include alienation by mortgage, will, lease, ex-
change, etc.
The legacies subject to which Nelson Meyers takes the
estate, and which legacies are to be paid within three years
from the testator's death, constitute a charge upon the land:
Earls V. MoAlpine, 6 A R. 145, per Patterson, J. A.; Met-
calfe V. Hutchinson, 1 Ch. D. 591 ; Preston v. Preston, 2
Jur. N. S. 1040.
Jessel, M. R., in giving judgment in Metcalfe v. Hutch-
vnson, in dealing with the question of directions in a will
to pay debts, etc., at p. 594, says the rule is " that where
there is a trust to pay, or to raise and pay, or to raise or
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XIX.] METERS V. HAMILTON PROVIDENT AND LOAN CO. 367
pay gross sums out of rents and profits^ that means out of Judgment,
the estate. * * The gross sum can only be paid in the MacMahon,
case of sale or mortgage, and therefore if the testator says *^-
ouk of rents and profits he means out of the estate. That
is the rule, and it is a very intelligible one."
There is, I conceive, no difference between the expression
"rents and profits" and the expression used here "rents
and income." And as Nelson Meyers by the terms of the
will could not "sell" for the purpose of meeting the lega-
cies, he was entitled to mortgage the fee which he took
under the will.
The objection urged against the will as being a viola-
tion of the rule against perpetuities appears to me as most
formidable.
The land is to be sold, but not during Nelson Meyers*
life aud not after his death until the " youngest child then
living is of the full age of 21 years, and it is to be sold
within three years after Nelson Meyers' youngest child is
of the full age of 21 years, providing Nelson Meyers is
dead. The proceeds received from the sale of this land to
be equally divided between Nelson Meyers' children at the
time of the sale.*'
A limitation by way of executory devise is void as too
remote if it is not to take efiect until after the determina-
tion of one or more lives in being and upon the expiration
of 21 years afterwards ; Cadell v. Palmer, 1 CI. & F. 372;
Theobald, 3rd ed., 396.
There is no gift of the land to the children of Nelson
Meyers. They take nothing until there is a sale of the
land which cannot be until after the double event of their
father s death and the youngest child living at the death
of the father having reached the full age of 21 years.
And such sale can take place at any time within three
years after such child is of the full age of 21 years. So
that in the event of a child being born on the day of Nel-
son Meyers' death, under the terms of the will a longer
period than 21 years from a life in being (Nelson Meyers'
47— VOL. xrx. 0 ju
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^68
THE ONTARIO REPORTS.
[vol.
Jnclgment. life) must necessarily elapse before the intended executory
MacMahon, devise in favour of the children could take effect
^' The interest must vest in the parties entitled within the
period limited by the rule. Here there is no possibility of
its vesting should a child be bom the day Nelson Meyers
dies, because the land is not to be sold until after Nelson
Meyers' youngest child is of the full age of 21 years.
Not only must the title become vested within the pre-
scribed period but the shares in which different persons
are to take the property must also be ascertained, other-
wise the gift will be void for remoteness : Challis on Real
Property, 149, citing OuHia v. Lukin, 5 Beav. 147;
Blight V. Hartnoll, 19 Ch. D. 294.
In Leith's Williams, p. 240, it is said : "This additional
term of 21 years may be independent or not of the mi-
nority of any person to be entitled ; and if no lives are
fixed on then the term of 21 years only is allowed. But
every executory estate which might, in any event, trans-
gress this limit, will from its commencement be absolutely
void. • * When a gift is infected with the vice of its
possibly exceeding the prescribed limit, it is at once and
altogether void both at law and in equity. And even if,
in its actual event, it should fall greatly within such limit
yet it is still as absolutely void as if the event had occurred
which would have taken it beyond the boundary." See
the cases there cited.
In my opinion the judgment of my brother Street hold-
ing that Nelson Meyers took an estate in fee in the lands
should be affirmed ; but that that part of his judgment
holding that there is a trust in favour of Nelson's child-
ren should be reversed.
The devisee, Nelson Meyers, was by the terms of the
will restrained from alienating the land by sale ; but such
restraint does not, I consider, extend to an alienation by
mortgage, will, etc.
The executory devise in favour of Nelson Meyers'
children I consider void as a violation of the rule against
perpetuities.
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XIX.] RICHARDSON V. CANADIAN PACIFIC R. W. CO.
The motion of the plaintiff Nelson Meyers will be abso- Jndgment.
lute to vary the judgment of Mr. Justice Street has here- MacMahon^
inbefore stated. '^•
The costs of all parties to be paid out of the estate.
Oalt, C. J., concurred.
[COMMON PLEAS DinSION.]
UlCHARDSON V. CANADIAN PACIFIC RAILWAY COMPANY.
Railways and railway companies— Common carriers — Carriage of goods--
Warehousing — Termination qf liability — Privity ofcontracL
Under a condition in a railway shipping biU the delivery of goods was to
be considered complete and the responsibility of the company to
terminate when the goods were placed in the company's warehouse at
their destination.
The goods were carried to the station at the place of delivery and were
placed in the company's shed there used for the purpose of storing
goods, where they were subsequently destroyed by fire. The station
was some five miles distant from the village where the plainti£f 's place
of business was : —
Held, that the station was the destination of the goods and not the
village : that the shed was a warehouse within the meaning of the con-
dition ; and that after the goods were placed there the company's
liability was at an end.
Ooods were sent by another railway company and were carried by it to
its oroesinff point with defendants' line when the goods were delivered
over to defendants to be carried to the plaintiff : —
Held, that an action for the loss of the goods was not maintainable by
plaintiff against defendants as there was no privity of contract between
theuL
This action was brought to recover the value of several Statement,
consignments of goods which were consigned to the plain-
tiff, a merchant carrying on business at Flesherton.
At the trial only three of the consignments were in
dispute.
One of the consignments consisted of goods of the value
of J326.22, delivered by Mills & Hutchison, merchants,
at Montreal, to the defendants at Montreal, to be carried and
delivered to the plaintiff at Flesherton. Another consign-
ment consisted of groceries, of the value of $11.25, de-
livered by Warren Bros, of Toronto, to the defendants
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^
370 THE ONTARIO REPORTS. [VOL.
Statement, at Torontx), to be also SO carried and delivered. The third
package consisted also of dry goods of the value of
$132.99, delivered by James Turner & Co. of Hamilton,
to the Hamilton and North Western Railway Com-
pany at Hamilton, to be also so carried and delivered.
The Montreal goods duly arrived at Toronto, and were
forwarded with the Toronto goods on the regular freight
train leaving Toronto at 6.30 am., on the 21st of Jan-
uary, 1888, reaching Cardwell Junction at 11.30, and
together with the Hamilton goods, which had been carried
by the Hamilton and North Western Railway, and there
delivered over to the defendants to be carried on to the
plaintiff— the crossing point of the Hamilton and North
Western line being there — were forwarded to Elesherton,
reaching the station there between three and four o'clock in
the afternoon. On the arrival of the goods they were placed
in the defendants* baggage room or warehouse where
they remained till the night of the 24th of January, when
the warehouse, having been destroyed by fire, the goods
were lost.
The bill of lading or shipping bill given by the respec-
tive railways was similar in form and was subject to the
following conditions, amongst others :
CoTidUion 5, (set out in the judgment of Ross, J.)
Condition 10, — '*That aU goods addressed to consigneea at points
beyond the places at which the company have stations, and respecting
which no direction to the contrary shall have been received at those sta-
tions, will be forwarded to their destination by public carrier or otherwise,
as opportunity may offer, without any claim for delay against the com-
pany for want of opportunity to forward them ; or they may, at the dis-
cretion of the company, be suffered to remain on the company's premises,
or to be placed in a shed or warehouse [if there be such convenienoe for
receiving the same] pending communication with the consignees, at the
risk of the owners as to damage thereto from any cause whatsoever. But
the delivery will be considered complete, and all responsibility of the
company shall cease when such other carriers shall have received notice
that said company is prepared to deliver to them the said goods for
further conveyance ; and it is expressly declared and agreed that said
Canadian Pacific Railway Company shall not be responsible for any loss,
mis-delivery, damage, or detention that may happen to goods sent by
them, if such loss, mis- delivery, damage, or detention occur after the said
goods arrive at said stations, or places which they are consigned to, or
beyond their said limits."
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XIX.] RICHARDSON V. CANADIAN PACIFIC R, W. CO. 871
The action was tried before RosB, J., without a jury, at Statem«it.
Toronto, at the Spring Assizes of 1889.
The learned Judge delivered the following judgment
in which the additional facts are stated :
Rose, J.: — ^This action was brought to recover the
value of several consignments of goods — three only, how-
ever, being in dispute in this case — one from Hamilton,
which was carried by the Hamilton and North Western
Railway Company to its terminus, or rather to a crossing
point, Cardwell Junction, I think, and there delivered to
the defendant company, to be carried by the latter to
Flesherton Station; another from Toronto, delivered to
the defendant at Toronto to be carried to Flesherton; and
the third from Montreal, delivered to the defendant to be
carried to Flesherton.
The bills of lading were produced and were subject to
conditions.
The action was laid, in the statement of claim, against
the company as a common carrier, and the case was opened,
and evidence given, and the case closed upon proving the
contract to deliver, and an admission of non-delivery to
the plaintiff.
Some question arising as to the form and effect of the
admission, the plaintiff called evidence to shew what took
place at the point of destination, namely, at the station of
Flesherton; and there was a contest as to whether or
not actual notice or knowledge by the plaintiff was
shewn.
The plaintiff took the position, with regard to the Ham-
ilton consignment, that there was no condition binding
tipon the plaintiff — the conditions upon the contract with
the Hamilton and North Western shewing that there was
an end of liability after the goods had reached the terminus,
or junction of that line with that of the Canadian Pacific
Railway at Cardwell Junction; and to that the answer
was given, by the defendant there was no privity
of contract between the plaintiff and the defendant.
Digitized by VjOOQIC 1
372 THE ONTARIO REPORTS. [VOL,
Judgment. With regard to that, an offer was made by the defend-
Itoee, J. ant's counsel that this consignment should be treated the
same as the others.
This offer was not accepted, and as to that, each party
stood upon their strict legal rights.
When the goods arrived at Flesherton station, which
was on Saturday, the 21st of January, they were unloaded
from the car and placed in the baggage room or warehouse
of the defendant, and there remained until the night
of Tuesday, the 24th, when — ^the station house being
consumed by fire — they were destroyed. On Saturday
morning the book-keeper of the plaintiff went to the sta-
tion, and there settled for the freight on other goods then
in store, and during that day they were removed, with the
exception of a consignment of salt.
Some question arose as to when certain coal oil, which
was subsequently taken away, was received, and as to
what communication passed between the station master
and the manager and book-keeper of the plaintiff on that
day — on Saturday, the 21st. On the following Monday
nothing wa,s done by either party with respect to these
goods. On Tuesday morning, the carter (one Lawrence)
employed by the merchants of the village to go to the sta-
tion and carry their wares from the station to the town,
about a mile and a half distant, and whose duty it was,,
apparently, under instructions, to enquire for goods, and if
he found them there to take them to the owners, they
either first paying the freight or he taking the freight bill
with the goods and bringing back the charges on the goods
to the station master, went to the station. He did not call
at the station on Monday, because he was away at a f uneraU
but apparently his custom, if not his duty, was to enquire
frequently, if not from day to day. On Tuesday morning
he attended — ^not with any specific instructions in regard
to these goods or any other goods, except it might be as to
the salt and coal oil then there, and which belonged to the
plaintiff.
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XIX.] RICHARDSON V. CANADIAN PACIFIC R. W. CO. 375
What then took place is in dispute. He says he received Judgment,
certain information from the baggage master which con- Rose, J.
veyed to his mind the impression that there were goods
there belonging to the plaintiff; and I think the fair result
of his evidence is, as to the impression he obtained, that
the goods were other goods than the salt and coal oil, and
that the goods were in the baggage room.
The evidence of the baggage master, if received with-
out any qualification, is that he told him that there were
other goods there, and questioned him as to when he would
take them away, whether he would remove them before
taking away the salt and coal oil. However that may be,
certain it is that, upon receipt of the information he went
to the office, saw the station master and made inquiiies of
him in respect of goods, and was given a freight bill for
coal oil, and was told it ought to have been taken away
earlier.
It appears that the station master had been communi-
cating with the plaintiff earlier than the Saturday about
the coal oil, to have it removed at once, as he did not wish
to have t standing near the station in a car on the track.
Whether or not Lawrence, on that Tuesday morning,
received other freight bills than that for the coal oil, is a
matter to be decided. I am not able to satisfy my own
mind that he did ; and, as the onus is upon the defendant
I must find that he did not receive other than the
freight bill for the coal oil. I must confess my mind
is not altogether free from doubt, but I cannot arrive with
any certainty at the conclusion that he did receive it ; I
shall, therefore, treat the case as if he had only received the
freight bill for the coal oil. He then went about his busi-
ness and delivered the coal oil. Whether his mind was
sati.sfied on receiving the freight bill for the coal oil, or
whether there was some pressure in regard to the coaJ oil,
and removing it at once, it appears to me that no enquiry
was made with regard to these specific goods.
I think I must find, as a fact, that the plaintiff had re-
ceived invoices of the goods some time before the fire—
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374 THE ONTARIO REPORTS. [VOL.
Judgment possibly on the Monday, and it is possible one on the Sat-
RoBe, J. nrday, from Warren Brothers ; but certainly on the Tues-
day morning. I think the fair inference of fact is, he
received the invoices of goods, of the three consignments
in question.
If it be necessary that notice should have been given
to the plaintiff, the case would turn upon very close ques-
tions of fact, and perhaps of law.
I have gone through the many cases cited as to the
necessity for giving notice. I find it is laid down in
American text books that there is no English case in which
the railway company has been held free from liability to
give notice; and Mitchell v. Lancashire & Yorkshire R. W.
Co., L. R 10 Q. B. 256, was referred to— see page 260.
It was contended by Mr. Thompson, for the plaintiff,
that it was the duty of the common carrier, the railway
company, to give notice, to free itself from liability.
Bourne v. Gattiffe, 11 C. & F. 45, cited in Mitchell v.
Lancashire and Yorkshire R. W, Co., is the case which has
been relied upon chiefly for that doctrine. That was the
case of a ship. It is clear that in the case of a ship, where
the time of arrival is uncertain, and where the consignee
ma} not know with any degree of certainty when the vessel
may arrive, the duty of the carrier is to give notice.
I have also looked at Hutchison on Carriers, and at
Schuyler's Law of Bailments. The judgments on the point
of notice vary in the different States — some go in one
direction, and some in the other.
Having regard to the various cases, and after carefnlly
analysing the different authorities cited — ^and referring
more particularly to the case of (Mapman v. Ghreai West^
em R W. Co., 5 Q. B. D. 278, 1 have come to the conclusion
that the principle of law which must govern is this — ^that
the consignee must have a reasonable time within which
to take away the goods, and that reasonable time begins
from notice or knowledge ; what is notice or knowledge
turns on the facts in each case, the custom of the carrier,
and the practice of the party or consignee.
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ill.] RICHARDSON V. CANADIAN PACIFIC R. W. CO.
876
It 18 laid down in the case of Chapman v.OrecU Weetem
E, W. Co.y (the principles of which govern this case)
that if notice by the carrier to the consignee is not abso-
lutely necessary, there must be knowledge by the consignee
of the date of the arrival of the goods, or such facts must
exist as would charge him with neglect if he had not
knowledge — and that time begins from knowledge either
actual or imputed.
The case of Chapman is very like this in many respects;
There the consignee knew when the goods were coming ;
I think the consignee in this case knew with reasonable
certainty when the goods would arrive, although probably
not the exact day or time. There the consignee went
more than once to enquire about the goods; and there no
question was raised as to the duty of the carrier to give
notice to the consignee ; but here the custom was for the
consignee, the plaintiff, and other merchants in Flesherton
if not to make personal enquiry, at least to make enquiry
through Lawrence, who I think was their agent for the
purpose, being employed by them and for them in enquir-
ing as to the arrival of goods at Flesherton Station con-
signed to Flesherton merchants. Nothing took place on
Monday or Tuesday; but if enquiry had not been made
by Lawrence on either of these days, I think I should
have been bound to hold, on the authority of the Chap-
than Case, that reasonable time had elapsed from the time
of the receipt of the goods, and from the time the plaintiff
ought to have had notice of their arrival ; and that the
defendant was discharged from its duties and liabilities as
a common carrier by reason of the neglect of the plaintiff
to make enquiry lor the goods, either by himself or through
Lawrence. But Lawrence did, in fact, make enquiry ; and
the question in my mind, which T am not able to solve
with any certainty, is whether or not Lawrence did not
receive such information as placed the duty of further
enquiry upon him, or whether the receipt by him of the
freight bill for the coal oil was such as to reasonably sat-
^ his mind that that was the freight which the baggage
48— VOL. XIX. O.R.
Judgmoiit.
R
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376 THE ONTARIO REPORTS. [VOL.
Judgment, master had referred to, and that, therefore, he was misled
Rose, J. hy the station master.
In the further history of this case the question may
receive further consideration.
I think that the case of Collins v. Bristol and Exeter i2.
W. Co,y 7 H. L. 194, is clear and conclusive authority as to
the goods shipped^from Hamilton, that the plaintiff cannot
recover.
Mr. Thompson endeavoured to distinguish this case from
the other cases which were referred to, and which were
relied on by the defendant company, as justifying the con-
tention, (and I might refer to the case of McMillan v.
Orand Trunk R W. Co., 15 A. R 14,) by saying that
there was evidence here that there was not one rate
of freight under which the goods were carried. I think
the duty was upon the plaintiff to shew if there were
different rates ; and reading the contract, I think there is
no distinction, in law, between the words in this contract
and the contract in Collins v. Bristol and Exeter R. W.
Co, Mr. Justice Patterson, in McMillan v. Orand TVitn/?
R W, Co,, quotes Bristol and Exeter R. W. Co. as clearly
applicable to a contract similar to the one in question.
I therefore hold there was no contract between the
plaintiff and the defendant company in regard to the
Hamilton goods, and that the liability on that contract
was the liability of the Northern and North Western Rail-
way Company, and as to it the plaintiff must fail. And
there is the authority of very strong opinion — ^the opinions
of very strong and able Judges in Collins v. Bristol and
Exeter R. W. Co. — ^that in a contract made by the defendant
company, a contract extending to the carriage of goods
beyond its own line, the defendant company could have
availed itself of the conditions.
As to the other two consignments, it is dear, upon the
case to which I have referred, and Shepherd v. Bristol
and Exeter R W. Co., L. R 3 fEx. 189. that the liability
of the common carrier may be limited, to any degree
and in any respect, both as to time and amount by con*
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XIX.] RIGHABI>SON Y. CANADIAN PACIFIC R. W. CO. 377
tiBci. I have, therefore, to find whether or not there is Jadgment.
a contract here which limits liability. RoseTj.
It seems to me the common law liability of the car-
rier is to continue until a reasonable time after the arrival
of the goods and notice to the consignee. There is a clear
distinction between passenger luggage and freight. In the
former the passenger has notice of the arrival. In that
respect the consignee stands on a different footing as to
fact, and I find as to principle.
In regard to both these consignments, condition 5 pro-
vides: "In all cases where herein nob otherwise provided,
the delivery of the goods shall be considered complete and
the responsibilities of the company shall terminate when
the goods are placed in the company's sheds or warehouse
(if there be convenience for receiving the same) at their
final destination ; or when the goods shall have arrived at
the place to be reached on the said company's railway.
The warehousing of all goods will be at the owner's risk
and expense ; and if the company are unable to store or
warehouse goods received by them they shall have the
right to place such goods in any warehouse that may be
available, at the risk and expense of the owner of the
property so stored, and all charges for storing, warehous-
ing, and conveyance, shall form an additional lien on said
gooda"
Mr. Thompson argued that this baggage room was not
a warehouse within the conditions, and that the duty cast
upon the company had not been discharged when the
goods were placed in that room.
It certainly appears to have been made use of for that
purpose. But the question is, — ^Had the goods arrived at
their destination? I think the baggage room was a ware,
house within the conditions, and I think the goods had
arrived at their destination. I do not think there was any
daty undertaken by the company to deliver goods beyond
the station, and that Flesherton in the contract mean»
Flesherton station and not the village; the consignee ac-
cepted the duty of taking the goods from the station to
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578 THE ONTARIO REPORTS. [VOL.
the village; I think, therefore, the goods had arrived at
their destination. It seems to me that the effect of that
is, that the contract under which the company assumed
the liability of common carriers has been limited ; and,
as pointed out in some of the cases, the liability may be
limited as to certain goods ; in this case the liability seems
to me to have been limited as to the time when the goods
arrived at their destination.
The duty of the common carrier ceased when the goods
were removed from the car to the warehouse. I think
this is in accordance with the lines laid down in Schuyler,
and given effect to in many of the States of the Union.
I have referred to the judgment in Gottina v. Bristol cmd
Exeter R. W. Co., and also to the judgment of Mr. Justice
Osier in the case oi McMillan v. Grand Trunk R W. Co. —
there condition 10 was held not to apply to point of des-
tination, but the reason which went to shew the condition
10 not to apply in that case seems to me to apply to make
condition 5 binding in this case.
I think the liability of common carrier ceased when
the goods were placed in the warehouse, and from that
moment the character of the company was changed from
that of a common carrier to that of a warehouseman.
The statement of claim was framed against the defend-
ant company as a common carrier, and evidence was given
in that view. By the replication to the defence of the
railway company, setting up the conditions, the plaintiff
set up that the defendant company was not entitled to
take advantage of the conditions by reason of the goods
having been destroyed by negligence.
I think that was not at all a reply to the plea, because
if the liability of the defendant had ceased by reason
of the change from its custody as carrier to that of ware-
houseman, it clearly follows that the liability for the n^-
ligence of the carrier had ceased, and subsequent negli-
gence did not change the liability from that of ware-
houseman to that of carrier.
There was no application to amend the statement of
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h
XIX.] RICHARDSON V. CANADIAN PACIFIC B. W. CO. 37&
claiin, so as to claim against the defendant company as Judgment.
warehouseman; nor do I undertake to pass upon the Roee, J,
question whether such an application would have been
successful, because Mr. McCarthy, on behalf of the defend-
ant company, said he had not come prepared to meet such
a case.
I do not think it would be reasonable, on this record,
to require the company to meet such a condition of affairs,
but as was said in two of the cases, Vineberg v. Grand
Trwnk K W. Co. (13 A. R 93), and McMillan v. Grand
Trunk R. W. Co., it is still open to the plaintiff to seek such
remedy. I do not think it is fair, where the plaintiff comes
down with a statement pointing in one direction to allow,
by replication, a wholly different case to be brought, except
upon a formal application to amend to set up a new cause of
action, and upon such terms as appear just and reasonable,
having regard to the rights of the parties. I think the
record must be treated in all cases as the specific statement
of the causes of action when the result will be to shew
the plaintiff's grounds in respect to each of the causes of
action, and then there can be judgment as to each.
The defendant paid into Court, or to the plaintiff, a sum
of money pending action. Unless there is something urged
to the contrary, I think the plaintiff must have the costs
of his action occasioned by the amount so paid in — ^up to
that date the defendant must have its costs of action.
I
In Michaelmas Sittings, 1889, D. E. Thompson moved '
on notice to set aside the judgment and to enter the judg-
ment for the plaintiff. ^
In Hilary Sittings of the Divisional Court (composed of
Galt, C.J., Rose and MacMahon, J.J.), February 13th, .
1890, D. E. Thompson and George Bell supported the
motion. '
McCarthy y Q. C, and Angus MacMwrchy, contra.
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580
THE ONTARIO REPORTS.
[VOI
Judgment. March 8, 1890. Galt, C. J. :—
Gait. C. J.
c
r
This case was tried before my brother Rose without i
jury. After reserving the case for consideration mj
learned brother has given a carefully considered judgmeni
in which he has set forth all the facts, and expressed hh
opinion on the law bearing on them. After the learned
argument of counsel on both sides and after a careful con-
sideration of the evidence and authorities, I fully concur
in the judgment expressed by my brother Rose. It is
therefore unnecessary to do more than state that in mj
opinion the motion must be dismissed with costs.
Rose and MacMahon, J. J., concurred.
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XIX.] HAGARTT V. BATEMAN. 381
[COMMON PLEAS DIVISION.]
Hagarty V. Bateman.
Vohiniary conveyanet — Transaction improvidently carried out 'and unthout
pnf/esHonal advice— Setting aside.
One of the plaintifiB was the owner of a farm valued at abont |4,500, and
being, as was also his wife, old and feeble and incapable of doing much
manual labour, and also illiterate, negotiated with the defendant, the
wife's nephew, a yonng man, with the object of effecting an arrangement
for their support and maintenance. The defendant without |>ermitting
the husband ])Uiiutiff to obtain independent advice induced lum and his
wife to execute a deed to defendant, the latter giving them back a life
lease. The consideration in the deed was natural love and affection,
$1, and the life lease. The habendum and covenants for quiet enjoy-
ment were made subject to the lease and the covenants therein. The
annual rental in the lease was |1 with a covenant for quiet enjoyment,
and a special covenant by defendant to support and maintain the
plaintifb, on performance of which he was to have the proceeds of the
land. The defendant was also to pay $30 in cash yearly, and provide
plaintifif with a horse and vehicle and house room. On failure by
defendant to perform such provisions plaintifis were to have the pro-
ceeds of the land on giving^ defendant two months notice in writmg,
and if the default still continued plaintiffs were to be at liberty to take
steps to eject defendant. The deed did not contain any power of
revocation in case of defendant's default : —
Held, under the circumstances, the deed and life lease must be set aside.
This was an action tried before Falconbridqe, J., with- Statement
out a jury, at the Belleville Spring Assizes, 1889.
The action was brought by William Hagarty and Eliza
Hagarty, his wife, against Caleb Bateman, a farmer, in the
township of Rawdon, in the county of Hastings.
The plaintiff, Wra. Hagarty, was the owner in fee free
from encumbrance, of the east half of lot 2, in the 7th con-
cession of Rawdon, containing 100 acres, which he alleged
was worth S6,000.
It was alleged in the statement of claim, that the plaintiffs
were, at the time of the transaction now impeached, old
and feeble, and unable to take care of themselves, and that
the defendant, well knowing their weakness and infirm-
ities, offered to take the said land, and in consideration
therefor that he would support and maintain the plaintiffs
for the term of their and each of their natural lives, in a
manner suitable to their condition in life, and that he would
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^
382 THE ONTABIO BEPOBTS. [VOI.»
Statement, provide them "and each of them with proper and sufficient
food, clothing and medical and other attendance, together
with a dwelling to reside inland a conveyance to goand come
as they might choose, and such other necessaries as they
might require; and the plaintiffs consented to such arrange-
ment, and in order to carry it out the plaintiffs executed a
deed of the said land to the defendant, and the defendant
executed and delivered to the plaintiffs a life lease of said
premises at a nominal rent and containing covenants on
the part of the defendant as ahove set forth, the said deed
and life lease bearing date the 12th of August, 1886.
It was also alleged in the said statement of claim, that^
amongst other things, it was provided by the life lease that
so long as the defendant performed his said agreement and
covenants towards the plaintiffs, that the defendant should
have the total proceeds of the lands, but upon default being
made in the performance of the same, that the plaintiffs, or
either of them, might eject the defendant from the premises
after notice ; and it was distinctly understood and agreed
between the parties that upon such default being made the
deed and life lease should be null and void, and the plain-
tiffs should have reverted to them their former estates in
the said lands, but by inadvertence and error such pro-
vision was omitted from the deed and life lease: that
defendant went and lived upon the farm and still lived
there, and had taken the total proceeds thereof ; but that
the defendant soon began to be neglectful of the plaintiflb,
and they remonstrated with him, and finally served a notice
of ejectment upon him in accordance with the agreement ;.
and the defendant for a little treated them better, but soon
began again to neglect them, and that plaintiffs thereupon
served a second notice with the same i*esult as before : that
after service of the second notice the defendant neglected
and illtreated the plaintiffs, and that the plaintiff Eliza
Hagarty became ill and the plaintiff Wm. Hagarty though
old and feeble was obliged to nurse her, and the defendant
still continued his neglect and used abusive language
towards the plaintiffs: that the plaintiffs, in consequence of
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XIX.]
HAGARTY V. BATEMAN.
383
the de f endant's neglect and refusal in breach of his covenant. Statement
were compelled to procure food and clothing of various
kinds, and have been obliged to go T^ithout some of the
necessaries required for their comfort and convenience.
The plaintiffs also alleged that they were' ill treated, and
that they executed the deed and life lease without consid-
eration, and entered into the agreement improvidently and
without independent advice ; and that the defendant, by
not having the deed and life lease contain afpower of revo-
cation at the will of the plaintiffs, as the plaintiffs believed
they did contain, took an undue and improper advantage of
the plaintiffs; the plaintiffs served a notice as contemplated
by the agreement and as provided by the life lease more than
two months prior to the commencement of the action; and
that the defendant had by his neglect and non-perform-
ance of the covenants made the deed and life lease null
and void.
The plaintiffs claimed ownership of the farm as of their
first and former estate, and prayed that the deed and life
lease might be declared void and be ordered to be delivered
up to be cancelled, or that the defendant might be ordered
to pay a certain annual sum to the plaintiffs to be fixed by
the Master at Belleville, in lieu of their support and main-
tenance, for their natural lives, together with the use of
the house and stabling of a horse and necessary vehicles,
and their costs of suit.
The statement of defence set up that the plaintiffs
sought out the defendant and asked him to take a deed of
the place and work it, and the whole agreement was reduced
to writing and signed by the parties, and that the writing
contained no such item as set out in the fifth paragraph of the
statement of claim; and the defendant pleaded the Statute
of Frauds in answer to any alleged verbal agreement; and
that he also, to the best of his ability, performed the said
agreement, and denied he had not performed the same ;
also that the plaintiffs were determined not to be satisfied
and made unreasonable demands on him ; and that he pro-
cured servants to work for and wait upon the plaintifls,
49— VOL. XIX. O.K.
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384 THE ONTARIO REPORTS. [VOL.
Statement, who drove such servants away ; and also that the plaintiff
Wm. Hagarty used offensive and insulting language to the
defendant with the object, as the defendant believed, to
raake his life upon the said farm unbearable. The
defendant likewise alleged he was desirous of carrying out
and performing the said agreement according to the true
intent and meaning thereof.
The learned trial Judge, at the conclusion of the plain-
tiffs' case said : '' I do not think any case has been made
out for cancellation."
In his considered judgment he stated: "After much
consideration I have come to the conclusion that I would
be justified in declaring the deed and life lease void for
improvidence and want of professional advice; but I prefer
to grant the alternative relief sought by the statement of
claim. I therefore order the defendant to pay to the
plaintiffs, and the survivor of them, a certain annual sum
to be fixed by the Master at Belleville in lieu of their
support and maintenance, together with the use of the
main building and horse, and vehicle, and provision there-
for as set out in the life lease.
I give no costs up to this judgment because I do not find
any case of actual fraud or moral wrong established against
the defendant, and while adequate provision may not have
been always made for the plaintiffs, there is evidence that
they were sometimes exacting and unreasonable."
The plaintiffs moved on notice to vary the judgment of
the learned Judge, and to set aside the deed and life lease,
as entered into improvidently :
During Hilary Sittings of the Divisional Court (com-
posed of Galt, C.J., and MacMahon, J.), February 13th,
1890, E. 0. Porter supported his motion, and referred to
Lavin v. Lavin, 27 Gr. 567, 572-4; Beeman v. Knapp, 13
Gr. 398; Hume v. Cook, 16 Gr. 84; Irwin v. Young, 28
Gr. 511; Mason v. Seney, 11 Gr. 447, 450; Shanagan v.
ShaTiagan, 7 O. R. 209 ; Sheldon v. Sheldon, 22 U. U. R
621; Demoreat v. MiUer, 42 U. C. R. 56, 64; WiddiAeld
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XIX.]
HAGARTY V. BATEMAN.
385
V. Simons, 1 0. R. 483 ; Waters v. Donnelly, 9 0. R. 391, Argument.
402-3 ; Sheard v. Laird, 15 O. R. 533 ; Huguenin v.
Basehy, 2 W. & T. L. C, 6th ed., 597.
Moss, Q. C , contra, referred to Harrison v. Guest, 6
DeG. McN. & G. 424, 432, 8 H. L. Gas. 481 ; Toker v.
Toker, 31 Beav. 629; Re White, 22 Gr. 547, 24 Gr. 224;
Sheard v. Laird, 15 A. R. 339.
March 8, 1890. MacMahon, J. :—
At the time the deed and life lease were executed in
August, 1886, the plaintiff Wm. Hagarty was about 70
years old, and some years prior thereto had lost one of his
hands so that he was incapacitated from doing much man-
ual labour on his farm. The plaintiff Eliza Hagarty was
at that time 63 or 64 years old. So far as appears the
plaintiffs have no family.
The farm in question was occupied by the plaintiffs since
1837, and has a dwelling house of stone built thereon, and,
from the evidence, would be of the value of $4,000 or
^,500.
The defendant is a young man and a nephew of Eliza
Hagarty, and owned a farm a short distance from the
plaintiffs, but his house being destroyed by fire a short
time prior to August, 1886, he was in August living at a
'village called Springbrook, seven miles from the plaintiffs.
About two weeks prior to the deed being executed the
plaintiffs met Wm. Bateman, the defendant's brother, at
Stirling, and they made overtures through him to the de-
fendant that as the latter's dwelling had been destroyed
he should come and live on their (the plaintiffs') farm.
The plaintiff William Hagarty's evidence of what took
place at Stirling is as follows :
Q. " Who met his brother at Stirling ? " A. " My wife and me. She
told him if he wanted to come to live we would give him a chance ; we
would give him the place to take care of us as long as we lived."
Eliza Hagarty's account of what took place was :
Q. " What did you say to Wm. Bateman ? " A. ** I said that if he "
(meaning the defendant) '* came and took care of us we would give him
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386 THE ONTARIO REPORTS. [VOL.
J.
Judgment, the place after oar death." Q. ''That if he would come out and keep yon
and maintain you you would give him your place after your death ? " A.
MacJ^on, i.yes." Q. "Was that aU that occurred at that time?" A. "That
waaalL"
Wm. Bateman said that the plaintiffs wanted him to
take the farm, and then said to tell his brother Caleb and
they would give him a deed of the place to support them.
He saw Caleb the next day and told him what the plain-
tiffs desired.
The defendant says that a short time prior to the plain-
tiffs speaking to his brother William that he had been at
John Potter's, his brother-in-law's, and that the plaintiifs-
then wanted him (Caleb) to go out and take their place
and keep them while they lived, but that he refused, say-
ing that he had enough land of his own.
A few days after the conversation between the plaintiffs
and Wm. Bateman at Stirling the defendant went to the
plaintiffs' house and they told him what they wanted him
to do, viz. : they would give him a deed and take a life
lease, but no agreement was come to on that occasion.
Another day was appointed for the defendant to come out,
which he did a few days afterwards, bringing his wife with
him, when the plaintiffs and the defendant and his wife left
in the carriage together to have the papers drawn and exe-
cuted evidencing the contemplated agreement, for during
the first interview no agreement appears to have beea
arrived at, and there is nothing to show that on the second
occasion the [question had been discussed between the
parties.
There is no doubt the plaintiffs intended when starting
to go to Stirling and have the documents drawn by a
lawyer by ^hom they could be advised. Both plaintiffs
say that this was the intention, and the defendant and
his wife admit that when starting out the intended
destination was Stirling.
The defendant said in his examination :
** Q. How did you come to Springbrook ? A. They spoke about fetch-
ing Mr. Cook. I think Mrs. Hagarty said that she had heard I B«d
something, and she wanted to fetch Mr. Cook with her. Q. Was any-
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XIX.] HAGARTY V. BATEMAN. 387
thing said about going to Stirling ? A. Well, that is where we were Judgments
calculating to go only they spoke about Mr. Cook. Q. When Mr. Oook
was spoken about, what was agreed upon? A. I drove right to Mr. j '
Cook's, to the turn up to his house, and I was driving on up and they
asked me where I was going. I said I was going on after Mr. Cook ; they
said maybe he would not be home ; I said it would not take long to go
■&nd see, and I started to go again, and they told me to drive on and not
mind it."
The defendant's wife gives the following account of their
going to and leaving the plaintiffs and what took place on
the road :
"Q. You are the wife of Caleb Bateman ? A. Yes. Q. I want to fix
jour mind upon the day the deeds were executed ; you went to Mr.
Hagarty's, didyou? A. Yes. Q. Drove there with your husband ? A,
Yes. Q. How long were you there ? A, Not very long ; they both got
ready and went with us. A. And where did you start for ? A. Well,
the calculation was, as far as I know, to go to Stirling. Q. Well, why
•did you drive north and away from Stirling ? A. Well, Uncle William
spoke something — or Aunt Eliza I think it was— about Mr. Cook ; she
wanted to take Mr. Cook with them ; then wej had to go back the same
way we came in order to get Mr. Cook. Q. Why didn't you get Mr.
Cook ? A. Caleb went to turn there and Uncle William said he would
not be at home ; Caleb said it would not take long to go in and see, and
Uncle William said to drive on and not mind. We then went up to the
town hall, and they went into the hotel. Q. "^ When they came out was
there any place decided upon going to ? A. Some of them spoke about
^oing back to Mr. Wiggins. I heard Caleb say that he did draw writings,
and we went there.'*
The defendant says there was no bargain concluded on
liis first visit to the plaintiffs, and I take it that from the
■evidence of the defendant and his wife the bargain was
not discussed at the plaintiffs' house on the second visit
The plaintiff William thus gives his account of why
they did not go to Stirling, but instead went to Spring-
brook, where the deed and life lease were drawn by Mr.
Wiggins, and also what took place while at Wiggins' :
" Q. Wlien he came to your place the last time, that is, the time you
went to get the deeds drawn, did you talk over any bargain with him ?
Did you yourself talk over any ? A. No. Q. How long was he at your
place on that occasion ? A. He came there in the forenoon and we left
something about noon or afternoon, I could not say which. Q. Just there
a portion of the day ? A. Yes. Q. Who was it proposed going some
place that day ? A. Well, I proposed to go to Stirling to see a lawyer
about getting the writings done. Q. What did he say to that ? A. He
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1
388 THE ONTARIO REPORTS. [VOL.
Judgment, said that Mr. Wiggins back — was doing business, and that he would do it
for us. Q. Was it before or after you had started for home that he spoke
*^ J ^^'^^ to you about going to Stirling ? A. After we had started from home. Q.
And he told you about Mr. Wiggins. Now, did you speak to him of
seeing anybody else ? A. Yes, when we were on the way I wanted to
stop and we would take Mr. Cook with me. Q. Who was he ? A. He
was Reeve of the township for a long time ; he is dead now. Q. A friend
of yours ? A. No, he was no relation to me. Q. But you were good
friends ? A. Yes. Q. What did you want to see him for ? A. To see me
rightified. Q. Did Bateman take you to Stirling ? A. No. Q. He took
you to Cook's ? A. No, I wanted to go to Cook's, and then he said he
thought it was no use, he thought we had best go right on ; Wiggins
was making a living by that, and he would do the fair thing. Q. So you
got on down to Wiggins' ? A. We got to Wiggins'. Q. Did you want to*
give Caleb Bateman a deed of your farm ? A. No there was no deed
spoken of till we went to Wiggins'. Q. Why didn't you want to give him
a deed ? A. Well, I thought I would be throwing my place away from
me altogether, and I thought I would get a lease. Q. Did you say any-
thing about that at Wiggins' ? A. It was spoken over and they said the
lease would be no good without a deed. Q. Who said that ? A. I think
it was Wiggins. Q. How many acres are there in that farm ? A. There
is a hundred acres in it. Q. And what would be the fair value of it f
A. The day I gave it to him I would not give it for less than between five
and six thousand dollars, but himself said when he got it he would not
give it for six thousand. Q. The day you were at Wiggins' was there
anybody there looking after your interests ? A. No one at alL
Mr. Wiggins is a retired schoolmaster and acts as a con-
veyancer at Springbrook. and the conveyance drawn by
him is dated the 12th day of August, 1886, and is an abso-
lute deed in fee of the farm to the defendant, the consider-
ation expressed being " natural love and affection and a
life lease executed between the parties hereto and bearing
even date herewith, and the sum of one dollar." The
habendum in the deed makes it " subject to the life lease
and the covenants therein contained and executed between
the parties thereto bearing even date herewith."
The covenant in the deed for quiet possession is also
" subject to the covenants contained in the life lease here-
inbefore referred to, and also subject to the said life lease.'*
The life lease bears date the same day as the deed, and is to
the plaintiffs for the term of their lives, subject to a yearly
rent of one dollar. There is a covenant by the lessor for
quiet enjoyment, and a proviso for re-entry by the lessor
on non-performance of covenanta
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XIX.]
HAGARTY V. BATEMAN.
38&
Then follow these special provisions and covenants : Judgment.
"Provided that so long as the said lessor supports and MacMahon,
maintains the said lessees in a manner suitable to their *^'
condition in life, and provides them with proper and suffi-
cient food, clothing and medical and other attendance, the
said lessor shall h^ve the proceeds of the said lands to his
own use. The said leasor further agrees to pay in cash
$30 to the said lessees on the 1st day of January in each
and every year, first payment to be made A.D. 1888 ; and
also to provide a horse and vehicle when required for the
use of the said lessees ; also to feed and take care of a colt, ,
now the property of the lessees, until sold. The said lessees
hereby covenant and agree to and with the said lessor, that
he tl^e lessor shall have the use of all buildings on said
premises, save and except the main building, which the
said lessees reserve for their own use. But in case the
lessor fails to make such provisions, then upon default
the said lessees shall have to their own use all the proceeds
of the said lands upon giving to said lessor two months*
notice in writing, upon the expiration of which time the
lessees, or one of them, may take steps to eject the lessor
if he still fails to carry out this agreement or proviso. The
said lessor covenants with the said lessees'for quiet enjoy-
ment."
The defendant and his family moved into the plaintiffs'
house shortly after the execution of the deed, and from
that time until March or April in the following year the
two families took their meals at the same table, at which
latter period differences arose, the plaintiff's asserting that
the provisions they had on hand when the defendant came
there to live having been consumed by the two families the
defendant neglected to provide suitable provisions for the
plaintiflTs, so the plaintiffs thereafter remained in their own
part of the house, having their meals separate from the
defendant and his family.
There is evidence that the plaintiffs purchased bread and
butter and other supplies, and also some articles of clothing
which, it is alleged, the defendant neglected and refused to
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890 THE ONTARIO REPORTS. [VOI^
Judgment, supply. And evidence was given on behalf of the defend-
MacMahon, ^^^ ^^^^ ^^ supplied the plaintiffs with all that could or
J- should reasonably be required by a farmer and his wife for
their proper support and maintenance.
There cannot, I think, be any question that before
executing any written agreement the plaintiff desired legal
advice so that his interests might have been properly pro-
tected. He says he did not want to give a deed but was
told by the defendant and Wiggins that it was necessary
before a life lease be drawn. That his interests were not
so protected I consider is manifest from the proviso in
the life lease I have copied in full. The proviso is that if
the defendant supports and maintains, &c., the plaintiffs,
he (the defendant) is to have the proceeds of the lands to
his own use ; if the defendant fails to make such provision,
then, upon default, the lessees shall have to their own use
the proceeds of the lands, upon giving the defendant the
notice in writing required, and may take steps to eject.
There is no covenant by the defendant that he will sup-
port and maintain; and there is no power of revocation in
the deed or life lease in the event of the defendant's failure
to furnish proper support and maintenance.
The defendant understood his position to be that in the
event of his not performing his agreement to support and
maintain the plaintiffs, they were merely to have the pro-
ceeds of the land during their lives or the life of the sur-
vi vor; and that is the effect of the proviso in the life lease
which is referred to in the deed.
The defendant on cross-examination by plaintiffs* coun-
sel said :
*' Q. You told me in your examination before you were to have thif
farm whether you performed your agreement or not ? A. Well, that
is the way I understood it. Q. It did not matter whether you performed
the agreement or not ? Then it was no part of the agreement that the
old people were to get the farm hack in any event? A. No."
This farm was all the property owned by the plaintiffs,
and the}'' are both illiterate, for, although the female plain-
tiff says she can read print, the deed is executed by each of
them bj^ their mark.
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XIX.]
HAGARTY V. BATEMAN.
391
There is no doabt the plaintiffs first sought the defend- Judgment,
ant with a view of eventually giving- to him the farm in MacMahon,
return for the support and maintenance they desired to ''•
procure in their declining years. But it could hardly be
supposed that they contemplated immediately depriving
themselves of their property without any proper security
being given to them for such future support and mainten-
ance.
Any language I might employ could not by any possi-
bility add to the force of the observations of Mo wat, V. C, in
Beeman v. Knapp, 13 Gr. 398, where he sa3's, at p. 400 : " It
is claimed to be a deed for valuable consideration, because of
the proviso for the old man*s maintenance ; but clearly that
is not the chai'acter of the instrument. The maintenance of
tte old man would have been an inadequate consideration
for the conveyance; but the grantor had no personal security
even for his maintenance, nor security of any kind beyond
a mere lien for it on the land he was conveying. This
lien he reserved, and subject to it the deed was a gift of
the land to the grantee. As such it cannot be main-
tained— embracing, as it did, the whole real estate of the
grantor, and very nearly the whole of his means of every
kind; making no provision for his wife; and placing him at
the mercy of his daughter and her husband for the main-
tenance he should have ; a suit at law or here, with all its
cares and anxieties and diflSculties to an old man, and its
costs, being his only remedy, and being practically in such
a case no remedy at all ; and the deed having been executed
without the full information as to the effect and conse-
quence of the deed, or the deliberation and independent
advice necessary in the circumstances of the parties to give
validity in equity to such a transaction.
Primd facie, a conveyance of all a man's property in
his old age, without any power of revocation, in considera-
tion of a mere promise of maintenance, whether under seal
'Or not, is extremely improvident," p. 404.
" Considering the relation of the parties, the transaction
•in question could only be sustained on evidence of the
50 — VOL XIX. O.R.
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892 THE ONTARIO REa?ORTS. [VOU
Judgment fullest information as to the possible consequences of what^
MacMahon, ^^ was doing ; and evidence of his having had competent
*^* independent advice ; and of his having, in executing the
deed,]acted freely and deliberately, and with full knowledge
of the position in which the transaction was placing him.
A prudent adviser would, for example, have said that^
if a deed was to be executed at all, it should, at the very
least, contain a power of revocation at the will of the
grantor, the grantee in that case receiving, if it was so
agreed, a fair compensation for what the grantor should,,
up to the time of revocation, have received from him ; and
that such other precautions should be adopted and arrange-
ments made, that, if maintenance should thereafter be with-
held, or an inadequate maintenance be given, the grantee,
his heirs and assigns, could not keep the property, leaving
the old man — in his helplass feebleness and poverty —
to bring suits at law from time to time for damages, or
a suit here for like relief. * * A mere bond like that
given by the plaintifl', viewed as a security for the peace-
able, comfortable, and sure maintenance of the old couple
during the remainder of their lives, after parting with all
their property, was manifestly a delusion ; and I say this
without questioning that the bond was given in good faith,
and with the intention of faithfully fulfilling its condi-
tions."
Lord Chancellor Hatherley in Phillips v. Mullings,
L. R. 7 Ch. 244, after referring to Coutta v. Acworth,
L. R. 8 Eq. 558, Wollaaton v. THbe, L. R 9 Eq. 44, and
Everitt v. Everitt, L. R. 10 Eq. 405, as holding that where
there is no power of revocation in a voluntary deed it will
be set aside, lays it down, at p. 247, that " whether there
should be a power of revocation or not must depend upon
the circumstances ; and that it cannot be laid down as a
general rule that such a deed would be voidable unless it
contained a power of revocation."
In that case also the Lord Chancellor said that while
cases in relation to voluntary settlements must depend
upon the facts, there are certain principles laid down for
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XIX.]
HAGARTY V. BATEMAN.
393
J.
the guidance of those dealing with their property in that Judgment,
manner, and of those who have to give such persons advice; MacMahon,
and he states, at p. 246 : " These principles rest on a broad
basis established by a series of decisions. It is clear, for in-
stance, that any one taking any advantage under a volun-
tary deed, and setting it up against the donor, must shew
that he thoroughly understood what he was doing, or, at all
events, was protected by independent advice. Again, it is
clear that a solicitor who advises a client for his own
protection to take a particular step of this nature does
assume a very responsible duty, and where a person is
induced to execute such a deed, it must, in order to support
the deed, be shown that the nature of the deed was
thoroughly understood by the person executing it."
The case in hand is one in which the circumstances shew
that the only fair and proper protection which could be
afforded to the grantor was by a power of revocation being
contained in the deed. Had the plaintiffs the legal advice,
which it was their intention to obtain by going to Stirling
and consulting a solicitor, they would doubtless have been
prevented from consummating the improvident act of exe-
cuting a deed conveying their whole property without the
safeguards which a vigilant and conscientious solicitor
would have seen were provided.
Mrs. Hagarty had heard of remarks having been made
by the defendant, which induced the plaintiffs to regard
his intentions in relation to the preparation and execution
of the deed with some suspicion, and they therefoie desired
to have Mr. Cook, who was a magistrate and reeve of the
township, and in whom they had confidence, to be present
when the documents were being prepared so as to protect
their interests. It may have been that Mr. Cook's presence
would have been unavailing to afford the protection which
only a skilled lawyer, acting for the plaintiffs, would have *
secured to them; and even then, as stated by Lord Hather-
ley in Phillips v. Mullings, L. R. 7 Ch. 244, the solicitor in
advising " assumes a very responsible duty." As to this
particular point, Toker v. Toker, 31 Beav. 629. See also
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THE ONTARIO REPORTS. [VOL.
Judgment. Demorest v. Miller, 42 U. C. R. 56, pp. 64-65; Waters v.
MacMahon, Donnelly, 9 0. R 391.
*^- It was urged by counsel for the defendant that the
doctrines as to improvidence and the want of professional
advice do not apply here as there was no fiduciary relation-
ship existing between the parties.
The law as laid down in Slator v. Nolan, Tr. R 11
Eq., at p. 38G, is very broad and unmistakable on the sub-
ject. The M. R, Sir Edward Sullivan, there says : " It is
an idle thing to suppose that the relation of trustee and
cestui que trust, or guardian and ward, or attorney and
client, or some other confidential relation, must exist to
entitle a man to get aid in this Court in setting aside an
unconscionable transaction."
I agree with the learned trial Judge that he would have
been justified in declaring the deed and life lease void for
improvidence and want of prof essional advice; and, I think,
that is the judgment which the learned judge should have
directed to be entered, and not a judgment granting the
alternative relief.
Where a plaintiff^is entitled to a judgment declaring a
transaction void, the parties are at once restored to the
position in which they were prior to the impeached trans-
action being entered into, subject in certain cases to a
direction to take the accounts between tlje parties as to
maintenance on the one hand and the value of the pro-
ducts of the farm on the other.
I consider the defendant was to blame in inducing the
plaintiffs to go to Mr. Wiggins when he knew their desire
and intention was to go to Stirling and consult a solicitor;
and I am forced to the conclusion that he had a design in
getting them to go to Wiggins's where there would be no
t opportunity of their learning the effect of the deed and
life lease there prepared. For, according to the defendant's
own statement, he understood he was to have the farm
whether he performed the agreement or not as to mainten-
ance and support. For this reason I think the plaintiffi
are entitled to their costs.
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XIX.]
HAQARTY V. BATEMAN.
395
The judgment of my learned brother Falconbridge will Judgment
be varied by directing judgment to be entered for the MacMahon,
plaintiffs, declaring the deed from the plaintiffs and also *^-
the life lease void with costs including the costs of this
motion.
I assume that the defendant will not be at a disadvant-
age by setting off the maintenance already furnished the
plaintiffs against his occupation of the farm. If, however,
the defendant desires a reference as to the value of the
maintenance supplied as against the occupation, he can
have it, if he so elects within three weeks, at the risk of
costs in the event of the reference proving adverse to him.
Galt, C.J., concurred.
! I
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396 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION.]
Hanrahan v. Hanrahan.
Infant— Domicile in Quebec—Tutors in Quebec entitled to have i^fcaH^t
money in Ontario paid over to them.
Held, that the duly appointed tutors in the Province of Quebec of an
infant domiciled ana residing there, which Province had also been the
domicile of the father at his death, were entitled to have paid over to
them from the Ontario administrators of the father's estate, there beioe
no creditors, money coming to the infant from said estate, which had
been collected in Ontario.
Statement. The statement of claim set forth that Thomas Edward
Hanrahan, a British subject domiciled and resident at the
city of Montreal, in the province of Quebec, departed this
life on the 16th day of March, 1887, at Passadena, Califor-
nia, in the United States of America, where he was
temporarily residing, leaving him surviving his widow the
plainti£F, and his only child, the infant defendant : that at
the time of his death the said Thomas Edward Hanrahan
was possessed of the sum of 5^7,000, which sum was
deposited by him to his credit in an incorporated bank
in the Province of Ontario, and the said Thomas Edward
Hanrahan had no other property within the said Province :
that according to the law of the Province of Quebec,
such property is equally divisible between the plaintiff and
the infant defendant : that the defendants, The Toronto
General Trusts Company had been appointed administra-
tors of the said Thomas Edward Hanrahan, and as such
had received the said sum of money, and had accounted
to the plaintiff for her share thereof, and still had in their
hands the share of the infant defendant : that the plaintiff
had been duly appointed tutrix of the infant defendant by
the proper court of the Province of Quebec by letters of
tutorship, dated 5th of August, 1887 : that by the law of
the Province of Quebec the plaintiff was entitled to demand
and receive as such tutrix all the property of the said
infant wheresoever situate: that the said law of the
Province of Quebec further required that the plaintiff as
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XIX.] HANRAHAN V. HANRAHAN. 397
such tutrix, should collect all the assets of the said infant : Statement,
that the plaintiff and the said infant were both British
subjects domiciled at and resident in the city of Montreal
in said Province of Quebec: that the defendants, the
Toronto General Trusts Company, refused to pay the said
moneys to the plaintiff as such tutrix.
The plaintiff claimed a declaration that she was entitled to
receive said moneys, and an order for the payment thereof.
The official guardian by his statement of defence submit-
ted the rights of the infant defendant to the protection of
the Court.
The Toronto General Trusts Company by their state-
ment of defence admitted that they had the money in
their hands ; and submitted to such order as the Court
might see fit to make.
An affidavit was filed of Selkirk Cross of the city of
Montreal, in the Province of Quebec, in which he set forth:
** 1. I am a duly qualified advocate of the Province of 'Quebec, and have
been for years actively engaged in practice in the Courts of the said
Province, and I am familiar with the law of the said Province.
2. According to the law of the Province of Quebec the tutrix of an infant
represents the minor in all civil cases, and is authorized and bound to
collect and get in all sums belonging to the minor, suing for them if
necessary, and is bound to invest aU capital moneys received, and the
receipt of the tutrix is a sufficient release to any debtor paying, as a tutrix
luider the said law is in effect regarded as the minor for all legal purposes.
3. Under and by virtue of the said law a tutrix is not liable to give
security for the property of the minor, but the immovable property of the
tutrix is subject to a legal hypothec (or mortgage) in favour of the minor,
for any moneys of the latter in her hands; and a tutrix is subject to im-
prisonment if she fails to pay over whatever may be due to the minor.
4. Under and by virtue of the said laws the father of any minor is
bound to accept the position of tutor for his child; and, in case the father
is dead, the mother is entitled to be^appointed tutrix in preference to any
stranger.
dt. According to the law of \ the Province of Quebec the rights of th e
tutrix extend to all the personal property of the minor wheresoever situate,
uid her appointment is regarded as of universal effect.
In accordance with this theory the Courts of Quebec recognize the
appointment by the courts of the country where the infant or ward is
domiciled.
6. I have seen the letters of tutorship appointing Mrs. Victoria
Hanrahan tutrix of her infant child Thomas Garnet Hanrahan; and I say
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THE OKTARIO REPORTS. [VOL.
Statement. that the said letters of tntonhip, a copy of which are now shewn to me
and marked as exhibit ** A," appear to have been correctly and r^larly
issued.
7. Upon the facts stated in the pleadings herein, there can be no doubt
that according to the law of Quebec the plaintiff is entitled to the moneys
in qnestion."
An affidavit of the plaintiif was also filed verifying the
statements made in the statement of claim as to her
appointment as tutrix, the deposit of the money and the
appointment of the Toronto General Trusts Company as
administrators.
Subsequently to the commencement of the action, the
tutrix married Robert Murdock Liddell, and he was ap-
pointed joint tutor with the plaintiff.
In Michaelmas sittings, November 27, 1889, the case
was argued before the Divisional Court (composed of Galt»
C.J., and Rose, J.), upon the above pleadings and evidence.
Madaren, Q. C, for the plaintiff and the Trust Company.
J. Hoakin, Q. C, for the infant.
The cases referred to sufficiently appear in the judgment.
May 26, 1890. Rose, J. :—
The facts sufficiently appear in the pleadings as amended.
By consent, no question is to be raised as to the marriage
of the testatrix after appointment and ewjtion brought, and
the appointment of herself and husband as joint tutor.
No rights of creditors or others than the infant have to
be considered. The estate, so far as any person or persons,
in Ontario are concerned, has been duly administered.
The sole question is as to the right of the tutor U>
demand and receive from the Trust Company the moneys
belonging to the infant, and to give a sufficient discharge
therefor.
Mr. Hoskin was notified by the parties simply to argue
the law and to assist the Court to a proper conclusion.
Unless, upon principles which have been established, the
Court should refuse to make the order or give judgment
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XIX.] HANRAHAN V. HANRAHAN. 399
for the plaintiff, there is no opposition to the plaintiff's Jadgment.
claim. Rose, J.
The money is not in Court, and there h&s been no ap-
plication to have it paid into Court unless, on these pro-
ceedings, such would be the proper order. If necessary to
give the Court juiisdiction, the company is willing to pay
the money into Court.
There is no dpubt as to the general principles of law
governing personal property. Personal property is subject
to that law which governs the person of the owner.
"With respect to the disposition of it — with respect to the
transmission of it, either by succession or the act of the
party — it follows the law of the person:" Silly. Woravncky
1 H. Bl. at p. 690, refemng to Pipon v. Pipon, Ambl. 25,
where Lord Hardwicke, refused to permit an administra-
trix to take personal property from England to Jersey,
notwithstanding that it was urged that according to the
law of Jersey the plaintiff would be excluded from sharing
in its distribution, although it would be otherwise by the
law of England. Lord Hardwicke said, that having
acquired the right to it, she was to distribute it according
to the law which guided the succession to the personal
estate of the intestate.
In Newton v. Manning, 1 M. N. & Q. 362, the Lord
Chancellor (Cottenham) decided that where the petitioner's
husband in France had been declared a lunatic under the
laws of France, and where "the law of France warranted
the petitioner in dealing in the manner proposed with
the corpus of her husband's property, she had only to arm
herself with the authority of that foreign jurisdiction, and
the money would be paid out to her as any other sum of
money in Court would be paid out to a party shewing a
tide" There the application was for the payment of cer-
tain moneys out of the corpus of the estate then in Court.
In that case there was, however, a statutoiy authority :
1 Will. IV. ch. 65, sec. 34.
The authority of the curator in that case was derived
from the 4j50th article of the Code Civil of France, to which
51 — VOL. XIX. O.R.
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400 THE ONTARIO REPORTS. [VOI.-
Judgment Art. 290 of the Code Civil of Quebec, with respect to tutors
Rose, J. of infants is similar. See also Art. 343.
In Huggina v. Law, 14 A. R 383, it was decided that a
guardian of infants appointed under our scatute could
rightfully demand and receive from an executor moneys
bequeathed to the infants and give a valid discharge.
Mr. Justice Patterson said that the old action at law for
money had and received would have been successful under
the old practice.
The affidavit of Mr. Cross of Quebec, an advocate
practicing in Montreal, fully sets out the powers, duties
and responsibilities of a tutor under the laws of that
Province.
I confess I see no answer to the plaintiff's demand. The
money belongs to the infant. If he were of age he could
demand and recover it by action. During his minority he
is by the law of the countrj^ he dwells in represented in
all civil acts by his tutor. His tutor has the right, and it
is his duty to get in his estate. The tutor demands the
money from one who holds it. The answer is, that the
Court is the guardian of the infant ; should look after its
interests, and should not direct the administrator here who
has given security to pay it over to a tutor in another
Province who may have or has given no security.
It seems to me that this Court has not placed upon it
the care of infants in another country to such an extent
that we are to guard their property so as to give any
greater security than that afforded by the laws of their
own domicile.
Now, what is there against this view ?
Mr. Hoskin stated that he admitted : 1. That the law of
domicile governed the disposition of personal property ; 2.
That apart from the question of infancy, the infant was
entitled to the money; and 3. That if thei*e had been
debts to be paid in Quebec, or if the case had been one of
bankruptcy, the mgney should, be forwarded to the foreign
jurisdiction, to be applied in payment of debts.
The admission was also made that in cases of lunacy
the money would be paid over to the curator.
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XIX.] HANRAHAN V. HANRAHAN. 401
The argument against the application was rested on the Judgment,
-daty of the Court to retain the money in its own keeping Rose, J.
or the keeping of trustees who had given security, and not
to send it to the tutor who had not given security^ and
who might waste the money before the infant attained its
majority.
The following cases were cited to shew the course fol-
lowed in our own Courts : Mitchell v. Rickey, 13 Gr. 445,
at p. 453 ; KingdmUl v. MUler, 15 Gr. 171, and Re Parr,
11 P. R 301; and I may add, Flanders v. ly Evelyn, 4 0.
R.704
In ScoU v. BenHey, 1 K. & J. 281, Sir W. Page
Wood, V. C, held that a curator bonis duly appointed in
Scotland to a person found lunatic there, could recover and
give a good discharge for personal property of the lunatic
in England.
He further said, at p. 283-4, that assignees of a bank-
rupt in England could sue in Scotland, as established by
SeUerig v. Daviea, 2 Eose 97, and that " the only case
which seems contrary to this rule is, that of executors
who cannot exercise such right in another country."
He added : " And it was said in argument that guardians
cannot ;" but he said " as to guardians, however, I think
that has not been so decided ; " and then discussed certain
cases.
I find this language in the judgment: "As a party
abroad can assign his rights, I do not see why a Court of
competent jurisdiction should not transfer them when he
becomes lunatic." And again, " I do not see why the order
•of a Court of competent jurisdiction should not have the
same effect as the Bankrupt Acts for this purpose," i. e.
vesting the right of property.
In Dicey on Domicile, 172r6, 195-7, this decision is dis-
cussed, and is reconciled with the general principle that a
foreign curator as such has not authority in England, on
the ground that " the right is one in fact acquired by a
transaction taking place wholly under the law of a foreign
country, and so enforceable here."
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THE ONTARIO REPORTS. [VOL.
Judgment. At p. 12 of Mr. Dicey:s work, Rule 30, is followed by
Hose, J. an inten'ogation point thus : '' A foreign guardian cannot
interfere with moveables situated in England belonging to
his ward;" and the explanation in the preface for such note is
that " the law is so unsettled that no rule can be stated
which ought to be considered as more than a conjectural
inference from established principles."
This history of the conflict may be found in Dicey, pp.
172-6 ; Wharton on Conflict of Laws, 2nd ed., sec. 265, et
seq., and Piggott on Foreign Judgments, 2nd ed., pp. 302-6,
where the distinction between the powers of the foreign
guardian over person and property is noted.
In Simpson on Infants, 2nd ed, at p. 264, it is thus stated :
" Personal property in England belonging to an infant
domiciled abroad will be paid to him, when he is by the
law of his domicile entitled to receive it, or to his guardian,
if the latter be so entitled," citing Re Brotun's Trusts, 12
L.T.N.S. 488; Re Grichton'a Trust, 24 L.T. 267; Re Fergu-
eon's Trusts, 22 W. R. 762.
See also Eversley's Domestic Relations, (1855), where-
similar language is found, at p. 663 ; and the cases of Re
CrvMorCs Trust and Re Ferguson's Trusts cited.
That learned author also says : " As regarda personal or
moveable property, the right of a foreign guardian to deal
with such, has not been the subject of an actual decision,
and therefore is still within the region of speculation,"
referring to the remarks of Wood, V. C, in Scott v. Bentley*
Re Hellmann's Will, L. R. 2 Eq. 363, is referred to as the
authority for stating that the property will be paid over
to an infant residing abroad when he is by the law of his
domicile entitled to receive it.
In that case, Lord Romilly, M. R.. ordered a legacy to
be paid over to a person eighteen years of age, it having
been shewn that according to the law of Hamburg, a girl
became of age at eighteen ; and we will see by the cases
to which I will refer now, the Courts have frequently
ordered moneys to be paid to infants where by the law of
their domicile they were entitled to receive it and give a
valid discharge.
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XIX.] HAKRAHAN V. HANRAHAN. 403
So that if here it had been shewn that by the law of Judgment.
Qaebec the infant or the infant and his tutor could receive Uose, J.
and give a valid receipt or discharge, ample authority has
been cited to shew that pavment over would be justified.
The cases cited also justify the statement of the above
learned authors that payment will be made to the guardian
if by the law of the infant's domicile he is entitled to
receive it.
In Be Crichton'8 Trust, 24 L. T. 267, (1855) Kindersley,
y.C, ordered the fund in England to be transferred to the
joint names of the infant, above the age of puberty, and her
curator upon proof of the law of Scotland that such an
infant and her curator might receive payments, and give
valid discharges.
In Re Brovm'8 Trusts, 12 L. T. N. S. 488 (1865\ upon
the petitioner adducing evidence to shew that by the law
of Prussia he was entitled (in his capacity of guardian of
the infant) to receive the fund and administer it during the
infant's minority, Wood, V. C, ordered a sum of JE2,000,
which had been paid into Court to be transferred to the
petitioner.
In Re Ferguson's Trusts, 22 W.R 762, (1874),Sumvan. M.
R (Ir.), ordered a fund in Court to be paid to the minor
and her curator, it having been shewn that by the law of
Scotland they were entitled to give a valid discharge.
Since Huggims v. Law, 14 A. R. 383, it is clear that if
the guardian were within this Province payment to him
would be a discharge to the company.
In Mitchell v. Rickey, 13 Gr. 445, it was held that the
Court would not order money to be paid to the guardian
of an infant.
In Huggims v. Law, at p. 396, it is said that the reasons
relied on in Mitchell v. Rickey, " are entirely consistent
with the validity of the acquittance from the guardian to
the person who pays him the infant's money."
StUeman v. Campbell, 13 Gr. 454, follows Mitchell v.
Rickey, and is by the same learned Judge, Mowat, Y. C.
There the infants were out of the jurisdiction, and a per-
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404 THE ONTARIO REPORTS. [VOL.,
Judgment, son within the jurisdiction had a contingent interest in.
Roee, J. the trust fund, and the money was ordered to be secured
in Court.
The learned Vice-Chancellor said : " The case is stronger
on this point than Mitchell v. Rickey, which I have just
decided, for not only are the infants the principal parties
concerned, but the plaintiff is not resident within the
jurisdiction of this Court — he is said to be living some-
where in Arabia ; and Duncan Campbell has a contingent
interest in the fund."
Kingsmill v. MUler, 15 Gr. 171, was not a case of a
guardian but of a trustee. We are not informed as to the
nature of the trust, and the decision was that the Court
would not on the facts of that case leave the moneys in
the hands of the trustee, but would invest it for the
infants. Mitchell v. Rickey, is again referred to, and the
decision is by the same Judge.
In Flandera v. ly Evelyn, 4 O. R 704, the plaintiff was
the foreign guardian of infants residing in Minnesota,
and the action was against the executor under a will con-
taining bequests in favour of the infants.
The learned Judge ordered the money to be paid into
Court and not to the foreign guardian, saying, at p. 707, that,
"The duties and powers of guardians under the statutes of
Minnesota do not seem to be greater than those under the
statute 12 Car. II. ch. 24, sec. 9; or of guardians appointed
by a Surrogate Court, who are to have the care and man-
agement of the ward's estate real and personal.
The decision might have been the different had Huggins
V. L(W) been then decided.
The learned Judge, however, took for granted the power
to direct payment to the foreign guardian, for he said that
the rule laid down in Mitchell v. Rickey ^ " may be subject
to modification, if the sum is small, and the whole or
nearly the whole may be required for the infisuit's educa-
tion and maintenance or other immediate use."
That case is referred to by Mr. Justice Burton, in Jffti^-
gims V. Law, at p. 389, as follows :
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XIX.] HAKRAHAN V. HANRAHAN. 405
" Another case cited below was Flanders v. D'Evelyn^ Judgment.
4 0. R 704; that case might have been disposed of on the Koae, J.
short ground that a foreign guardian has no locus standi
in our Courts."
With very great respect, I think that statement must, in
view of the authorities to which I have referred, be taken
with some modification.
In none of the cases cited, has any question been made
as to the right of the foreign guardian to appear before the
Court and make the application for transferring funds
from the Court to himself, to be removed from the juris-
diction. The refusal of the application seems in every
case to have been rested upon other grounds.
In Re Pan\ 11 P. R, 301, a decision of the learned
Chancellor, was not cited to the Court in Huggins v. Law.
I venture to think it is not in the plaintiff's way.
The motion was ex parte, no decisions are referred to by
counsel, so far as the report shews ;, and therefore we are
not assisted by the view of the learned Chancellor save
upon the narrow case presented. It was not shewn what
the duties and powers of the guardian were, in Dakota, U.S.,
where he and the infants resided, nor was Hwggins v.
Law then decided, so that the refusal to pay out of Court
to a guardian either domestic or foreign is no authority
that neither one nor the other was empowered to receive
infant's money and give valid discharges therefor.
Indeed, I would not conclude from the language of the
learned Chancellor and his reference to lie And/rews, same
voL p. 199, that he intended to lay down any doctrine con-
trary to the opinion I have formed.
In Holdemess v. Stock, an appeal from the County Court
of York set down to be heard before the Court of Appeal
on the 7th of September, 1880, the Court held, dismissing
the appeal, that the defendant was bound to pay a note
given by him to a brother of his creditor after the decease
of the creditor domiciled in Pennsylvania, U. S., in settle-
ment of a debt owing to the creditor at the time of his
death. And this though, so far as appeared, no letters of
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406 THE ONTARIO REPORTS. [VOL.
Judgment administration had been taken out in this country, The
Rose, J. brother applied to the defendant for a settlement, and the
defendant, not questioning his authority, gave the note in
settlement.
The case is not reported, but the appeal book may be
found in the bound appeal cases for September, 1880.
In this case the sole question we have to determine is,
whether " the plaintiff is entitled to receive the moneys,
for the defendant company is quite ready and willing to
pay over the moneys if in the opinion of the Court it may
safely do so and receive a valid discharge from the
plaintiff."
It is clear that the tutor if he had been appointed guar-
dian under our statute, would have been entitled to demand
and receive this money.
2. That if the money in Hv^gins v. Law had been in
the hands of any one in Quebec, the tutor's duty would
have been to get it in, and of course his power would be
co-extensive with his duty.
3. That if by the law of Quebec, the child had been
empowered to demand, recover and give a valid receipt for
the money, the Court, following decided cases, would have
been justified in directing payment of moneys out of Coiirfc
to the infant.
4. And to the infant and tutor jointly, if the law of
Quebec had empowered them jointly to receive and dis-
charge.
It seems to be a necessary consequence that where the
law of ^Quebec empowers the tutor to receive and give
valid receipts, the Court would be justified in transferring
to the tutor a fund in Coui*t belonging to the infant
And, further, it seems to me equally to follow that any
one in this Province having moneys belonging to the
infant, may safely pay over such moneys to the tutor, and
receive a valid discharge therefor.
The order will, therefore, go for payment of the moneys
in question to the joint tutor, Victoria Hanrahan, now
Liddell, and Robert Murdock Liddell, upon their executing
Digitized byVjOOQlC
XIX.] BLAND V. RIVERS/ 407
and delivering at the time of payment, a receipt in form Judgment,
sufficient according to the law of Quebec to discharge the Rose, j.
defendant company.
As the parties are acting in harmony, it will not be
necessary to provide for settling the form of the receipt.
Nothing was said as to costs, and no order will be made
as to them.
GAL.T, C. J., concurred.
[COMMON PLE^S DIVISION.]
Bland v. Rivers.
Prohibition — I>iv%8ion Courts — T^eto trial granted a/ter fourteen days from
trial.
An action was tried in a Division Court with a jury on the 15th January,
when they found for the plaintiff with a recommendation that plaintiff
should pay his own and defendant's costs, whereupon judgment was
entered for the plaintiff with costs reserved. On January 24th the
Judge directed "judgment for plaintiff with costs on verdict of jury."
On Febniaiy 5th an application was made for a new trial which was
granted on February 16th.
Meldj that the application for the new trial was too late not having been
made within fourteen days from the trial as required by sec. 145 of the
Division Court Act, R. 8. O. ch. 51 ; and a prohibition was therefore
directed*
This was an application for a prohibition to the Sixth Statement
Division Court of Northamberland and Durham, to pro-
hibit the proceeding with a new trial granted in this case,
on the ground that the application was not made until
after fourteen days had expired after the trial.
On April 11th, 1890, /. B. Clark, Q. C, supported the
motion.
Watson, Q. C, contra.
April 14th, 1890. Galt, C. J.:—
There is no question as to the fourteen days having
^expired after the trial, that is to say, after the case had
been tried at the sittings of the Division Court where the
52— VOL. XIX. O.K.
Digitized by VjOOQIC
408 THE ONTABIO REPORTS. [VOI-
JndgmeDt. case had been tried by a jury. When the jury brought^
Gait, C.J. in their verdict, they found in favour of the plaintiff as
respects his claim, but they also recommended that the-
plaintiff should pay all the costs.
A note was entered in the Judge's book, which is set
forth in the affidavit of Henry Lawless, the clerk of the
Sixth Division Court :
" I have * * carefuUy examined the entries made by His Honor Jay
Ketchom, Junior Jndge of the said united counties, in the Judge's book
used at the trial of the said action, in my Court on 15th January, 1890,
and the entry therein relating to said action is the following :
''No. 42, 1889.— John Bland v. John Rivers.— Judge's order.
"Jury find for plaintiff, with recommendation that plaintiff pay his
own and defendant's costs. Judgment for plaintiff for $21. 78, question of
costs reserved."
And the subsequent entries in this cause are as follows :
•• January 24 — Judge orders judgment Jor plaintiff with costs on verdict
of jury.
" February 6th— Application for new trial now transmitted to Judge.
" February 14— A new trial granted, costs to abide event"
It is against this last order this application is made —
the time* within which an application for a new trial must
be made, is by sec. 145, " within fourteen days after the
trial." In the present case the application was not made
within fourteen days after the trial, but was made within
fourteen days after the Judge had given his decision on
the recommendation of the jury on the question of costs.
It is manifest the decision of the learned Judge had
nothing to do with the facts of the case, I mean as to the
right of the plaintiff to recover ; this was the subject of
the trial, and if the defendant disputed that right, and
thought that on the facts of the case, the verdict was
erroneous, he should, in my opinion, have applied for a new
trial within fourteen days. The question of costs was
one for the consideration of the Judge, but it was not one
on which the rights of the parties in the suit depended.
The motion is absolute, but without costs, as it appears
that when the application was argued before the learned
Judge, no objection was taken.
Digitized byVjOOQlC
XIX.] BANN V. BBOCVKILLE. 409
[COMMON PLEAS DIVISION.]
Bank v. Brockville.
Taverns and sTiqpa— By-law JUeing license fee in excess 0/ ^£00— Delay in
moving to quasK
A by-law requiring amounts to be paid for tavern license fees in excess of
$200, directed, as required, the votes of the electors to be taken thereon.
The by-law was passed on the 25th February, 1889, and on 8th April,
1890, a motion was made to quash it on the ground that the votes ot all
the duly qnalified electors had not been taken thereon, but only those
of freeholders. By reason of the by-law the number of licenses was
decreased, and bad the motion been allowed it would have been too late
for the corporation to make any change, by increasing the number of
licenses so as to make up the deficiency, or to submit a new by-law.
The only evidence in support of the motion was very weak and no person
whose vote had been rejected complained. The applicant hituself was a
tavern keeper who had obtained a license for the year 1889, under the
by-law witiiout any objection, and had applied again for the current
year : —
The by-law being valid on its face the Courts under the circumstanceF,
conmderinff the lapse of time before motion made, in the exercise of
its discretion refuse to interfere.
This was an application on behalf of John C. Bann, statement.
an hotel keeper in the town of Brockville, to quash a
by-law passed on 26th Eebruary, 1889, on pounds which
appear in the judgment.
On Ap^ 15th, 1890, the motion was argued.
AyIe8worth, Q. C, and Hutchinaony supported the motion.
Shepley, Q. C, and JSeynoldSy contra.
April 26, 1890. Galt, C. J. :—
The by-law enacts " that from and after the passing of
this by-law, the following duties over and above all govem-
ment duties shall be paid for tavern and shop licenses by
the person to whom the same may hereafter be granted —
namely, tavern licenses granted to persons exempted from
the necessity of having all the tavern accommodation pro*
vided by by-law, $700," and other tavern licenses $400.
These sums being in excess of $200, it was necessary
under sec. 42 of ch. 194, R S. 0., to submit the same to
Digitized byVjOOQlC
410 THE ONTARIO REPORTS. [VOL.
Judgment, the electors, the by-law therefore enacted " that the votes
Oait, C.J. of the electors of the said muncicipality shall be taken on
the said by-law," &a
This application which was not made until the 8th
April last, is based on the ground " that the several deputy
returning officers appointed to take the votes of rate-
paj'ers upon the said by-law, received only the votes of
freeholders thereon instead of the votes of all duly
qualified municipal electors."
After the judgment of the Court of Appeal in Re Croft
and the Tovm of Peterborough, 17 O. R. 522, there can be
no question as to the validity of this objection ; and Mr.
Shepley, who appeared for the corporation, did not seriously
contest it ; but he contended that the Court having a dis-
cretion in the case, should not give effect to the motion
After the delay which had taken place, as the financial
affairs of the corporation would be very seriously affected,
because if the by-law was quashed, the only duty which
the corporation could raise for the present year would be
the sum of $80 as the time at which such a by-law can be
passed, is now expired, namely, 1st March.
Bann is an hotel keeper, and applied for and obtained a
license under the by-law after the repeal of the prohibi-
tory clause in the Canada Temperance Act, which took
effect last year, and it appears from the afiSdavit of the
mayor that when the by-law now in question was under
consideration, it was resolved to reduce the number of
tavern licenses, which has been done, and which cannot
now be altered for the present year. No complaint was
made for any thing done last year, nor was the present
application made until it was too late for the corporation
to make any change or to submit the present or any other
by-law of a similar description to the electors.
Bann acted under the by-law last year by obtaining a
license, and is again an applicant, and makes nocomphiint
until the time has arrived when he will be liable to pay
only $80 for the present year if this by-law is quashed,
and when it is out of the power of the corporation to
increase the number of licenses under sec 20, of ch. 194,
Digitized byVjOOQlC
XIX.] BANN V. BROCKVILLE. 411
By sec. 332, of ch. 184, of " The Municipal Act," the Judgment.
High Court "may quash the by-law in whole or in part Gait, CJ;.
for illegality ;" and by sec. 333 such an application in
cases like the present may be made at any time. In the case
of SheUy v. The Corporation of WiTidaor, 23 U. C. R. 569,
which was very similar to the present, the Court held that
the long delay between the time of passing the by-law,
-which took efiect on 1st March, 1863, and the time of the
application which was in August, 1864, afforded a sufficient
reason for not exercising the summary jurisdiction of the
Court.
In the present case, the by-law was passed on 25th Feb-
ruary, 1 889, and this application was not made until 8th
April, 1890, so that in fact no change could be made in the
license fee or license until next year.
This case differs in one essential respect from Re Croft
and the Town of Peterboroiugh. In that, as appears from
the head note, 17 0. R 522, certain leaseholders had
tendered their votes arid had been refused. In the
present case all that was done is, as two of the reeves
who acted as deputy returning officers state they had
votes as leaseholders, but did not vote in consequence of
not having freeholds ; and one of them states that a man,
" whose name I have forgotten," tendered a vote and was
by him rejected. This is the whole, and no complaint is
made by any person whose vote was rejected. The appli-
cation is made by a man who has actually availed himself
of the provision of the by-law.
The by-law on its face is unobjectionable ; the reference
to the ** electors," is in accordance with the provisions of
the Act ; had it been defective in that respect as limiting
the word *' elector" to " freeholder," it would have been
unquestionably irregular, and must have been quashed.
Had this motion been made by persons who, by the mis-
take of the clerk of the municipality in furnishing lists
of voters to the deputy -returning officers, had been de-
prived of their votes, something might be urged agaiast
the validity of the by-law. No such allegation is made. It
Digitized byVjOOQlC
412 THE ONTAKIO REPORTS. [VOL.
Judgment, is true that Bann states in his aflSdavit that he did not
Gait, C.J. tender his vote because he understood it would not be
received. Had Bann intended to question the validity of
the by-law on such a ground, he should have done so in
due time, and not have delayed his motion until the time
had passed within which the corporation might have again
submitted a similar by-law to the " electors," or might have
increased the number of licenses.
As my judgment turns entirely upon the " discretionary"
power conferred on the Court, there are three cases to
which T refer, namely, Hill v. Municipality of Tecumsetk,
6 C. P. 297 ; Re Michie and Corporation of Torcmto, 11 C.
P. 379, and Re Richardson and Board of Commissioners
of Toronto, 38 U. C. R 621, in which towards the conclu-
sion of his judgment, Harrison, C.J., says, at p. 630 : " This
leads me to the conclusion, although not entirely fre3 from
doubt, that the objection taken to the by-law in question
is not well taken. I may add that even if I had, on an ex-
amination of the statutes and authorities, arrived at a diff-
erent conclusion, I would not have exercised the discretion
which the Court has to refuse to quash by-laws after long
and unexplained delay ; and where the effect of quashing a
by-law after such delay, may be to cause great inconveni-
ence and confusion in the affairs of a municipality."
There is here a reference to the case before him as to the
duration of the by-law which does not apply to the present
The motion must be dismissed with costs.
Digitized byVjOOQlC
XIX.] ELLIOTT V. BUSSELL. 413
[CHANCERY DIVISIOK.]
Elliott v. Busselu
JItuband and vyife — Advance ofjnoiMyfrom w\fe to husband — Pregumption
of gi/l—Ontis — Corroborative evidence — B, S, 0, 1887, cK 61, sec. 10,
Where, in adminiBtration proceediDgs, the widcvF of the deceased claimed
from the executor repayment of certain moneys paid by her, at her
husband's request, out of her separate property, on premiums payable
on policies on his life, which she swore were to be repaid to her ; and
it appeared that the moneys were paid by a third person who held them
to the use of the claimant ; that she acquiesced in the payment of them
with great reluctance ; and that she had no claim to any part of the
policy moneys, which were wholly at the disposition of the deceased : —
Held, that under these circumstances the onus was on the executor to
proTe that the moneys were a dlft to the deceased, and it was not
necessary for the claimant to produce corroborative evidence that the
moneys were to be repaid in order to recover.
In order to make out that money paid by a wife to her husband was a
gift, it is necessary to prove it either by direct evidence or by such a
course of dealing between the husband and wife as shews that the
money was so paid to him as a gift.
This was an appeal by the defendant from the report of statement,
the local Master at Milton in administration proceedings,
and the. circumstances of the case are fully set out in the
judgment of Robertson, J.
The appeal came up for argument in March 13th, 1890,
before Robertson, J.
Laidlatu, Q. C, for the appeal.
Kilmer, contra.
May 14th, 1890. Robertson, J. : —
This is an appeal from the report of the learned local
Master at Milton, bearing date February 15th, 1890, allow-
ing to the plaintiff the sum of $865.67 and interest for money
paid by the plaintiff to the use of her late husband,
William Elliott, the testator, (whose executor the defen-
dant is) at his, the testator's, request, on premiums payable
by the testator, on two life assurance policies on his own
life, on the ground that there was no corroborative
Digitized byVjOOQlC
414 THE ONTARIO REPORTS. [vOL,
Judgment evidence that the said moneys were to be repaid to the
Robertson, J. plaintiff. It is admitted that these moneys were paid by
the plaintiff at the request of the testator, and that they
were the separate moneys of the plaintiff and had never
been reduced into the possession of the testator ; but it
is denied that they were to be repaid to the plaintiff.
Counsel for the plaintiff at the bar, besides contending
that it was not for the plaintiff to prove by corrobora-
tive testimony the agreement to repay, alleged that these
moneys were not the moneys of the plaintiff, but were
really trust moneys in her hands for her t\wo children
by a former husband, viz., Thomas H. Sheppard and
Stanley Sheppard, who are both infants under the age of
twenty-one years, and who are not parties to this action,
nor have they been so made in the Master's office, and
whose interests consequently were not looked after or
guarded. This fact, however, was not made clear on
the evidence, although it does appear, not only in the
plaintiff's evidence, but in an affidavit filed by her, that
they were, at least in part, the moneys of these infants.
Under these circumstances, I felt it incumbent on me
shortly after the case was argued to suggest that it should
be referred back for further enquiry ; and if necessary
to make the infants parties, and I directed Mr. WiUiam
Davidson to act as guardian ad litems the official guardian
having already on hand the interests of the infant children
of the testator, whose interests were adverse to the otheis.
All parties having met and Mr. Davidson having made en-
quiry, it turns out on evidence satisfactory to me that the
plaintiff was mistaken when she stated in her evidence that
these moneys were those of the first named infants, although
it was quite reasonable for her to assume that her first hus-
band so intended as to the moneys, which were the proceeds
of life assurance on his life, but which it now turns out were
payable on his death to the wife alone. This beinj
admitted on all hands, there is no necessity for a refer-
ence back, nor should the first named infants be made
parties. The question therefore comes before me as it did
Digitized byVjOOQlC
XrX-] ELLIOTT V. BUSSELL. 415
before the learned Master, and the question is whether he Judgment.
was right in holding that the plaintiff, on the evidence, is Robertson, J.
entitled to recover.
The conclusion that I have come to, although I confess
not without some doubt, is that the learned Master is right,
and the appeal should be dismissed. It appears to me that
there is no doubt on the evidence, in fact the defendant
admits that the plaintiff did pay the moneys charged, at
the request of the testator, for the pui-poses alleged. And
she positively swears that she was to be repaid the amounts
so paid by her. I think the defendant is bound to shew
under these circumstances that they were a gift from the
wife to her husband. That issue is upon him ; and the
presumption is not under the circumstances detailed in
evidence, that they were a gift. The moneys were the
separate moneys of the plaintiff. The testator had no
control whatever over them, they were paid by a third
person, who held them to the use of the plaintiff, and they
were paid by his cheque to the insurance companies. They
were not used in any way for the support and maintenance
of the plaintiff, they were specifically applied in payment
of the premiums payable on policies, which were for the
benefit of the testator, or his estate, no part whereof
was payable to, or had the plaintiff any claim on them.
The testator could dispose of them as he pleased, and he
did do so, and on the authority of In re Flamank, Wood v.
Cock, 40 Ch. D. 461, 1 am of opinion that she is entitled to
recover. That case is not exactly on all fours, so to speak,
with the one now in hand, but the same principle is involved
in it, and Mr. Justice Kay, in giving judgment, says at p. 469 :
" Here is property" (it was a morts^age) " which originally
belonged to Mrs. Flamank for her separate use, and was
transferred to her husband without any evidence whatever
of there being an intention on her part to give it to her
husband as his property at that time ; and the question is
whether looking at all the facts, the Court can come to
the conclusion that she did deliberately give it to her hus-
band as his property. I cannot conclude that from the
53— VOL. XIX. O.K.
Digitized byVjOOQlC
416 THE ONTARIO REPORTS. [VOX^
Judgment, mere fact of the transfer of the mortgage to the husband.
Robertson, J. The circumstances which are relied upon are the reali-
zation of the mortgage by him in 1869, the concurrence
of the wife, the receipts of the purchase money by him^
and the fact that no claim was made against him for it.
But it is to be observed that the wife had no separate
advice, and that her signature to the deed of assignment,
in which she only joined as one of the executors of Daniel
Codner, the original mortgagee, appears to have been
obtained by the husband. I am quite unable to infer from
all these facts that she made any gift of this money to
her husband." The learned Judge then goes on to say :
" Thinking the burden of proof to be on those who daim
under the husband to show a gift of the capital, I must
say, on a careful investigation of the case, that they have
not made out any such gift, and accordingly, I think the
claim, this claim against the estate of the testator Thomas
Flamank, must succeed."
Applying the facts of the above case to this, it will be
found that the circumstances are much more in favour of
the plaintiffs contention here than they were in Re
Flamank. The evidence discloses the fact that the plain-
tiff would not advance these moneys until her husband
promised and agreed that he would repay her the amount,
and further that she with great reluctance even then gave
way to his request, in fact she states that on each occasion
when the amount of the premium was asked from her,
there was a " row about it" I have no doubt whatever
that that was true, and the Master has found the facts in
her favour, and according to the case above referred to
there was no evidence in support of the defendants' con-
tention that there was a gift of these amounts.
The case of Caton v. Rideout, 1 MacK & G. 59D,
also supports the contention that in order to make out
that the money was a gift, the party so contending must
make out that fact, either by direct evidence or by a course
of dealing as existing between the husband and wife*
"which shews that the money was paid to him as a gift.
Digitized byVjOOQlC
XIX.] BE SAUGEEN MUTUAL FIRE INS CO.. 417
There is not a single circumstance here which points in Judgmeat.
that direction. Robertson, J.
I am, therefore, of opinion that the appeal should be
dismissed, and with costs, to be paid out of the estate .
The costs to Mr, Davidson in the matter to be fixed by me
and paid out of the suitors* fee fund.
A.H.F. L.
[CHANCERY DIVISION.]
Re Saugeen Mutual Fire Insurance Company.
Knechtel's Case.
Iwntranee — Mutual Inniranee Companies — Statute law — Retrospective
operatumSS Vict, ch. U, ««c. 4 (0.)—R, S, 0. 1887, ch. 167, sec. ISi,
RM, that 53 Vict. ch. 44, sec 4 (0. ), subetituting a new section for
R. S. O. 18S7, ch. 167, sec. 132, is retrospective in its operation, and
applies to premium notes given before its passing as well as to those
given af terwarda
This was an appeal from the judgment or finding of the
Local Master at Guelph, on an application of the liquida-
tors of the Saugeen Mutual Fire Insurance Company, to
place D. Knechtel, a former policy holder in the company,
who held his premium note for $50, on which there
was an unpaid balance of SI 8.75, on the list of contribu-
tories. The policy expired in 1887 ; there were no unpaid
arrears due on the note. The winding-up order was made
on November 5th, 1889, on the petition of creditors.
The company was purely a mutual company. On December
11th, 1889, the final winding-up order was made appoint-
ing the liquidators ; and on February 27th following, the
liquidators filed a provisional list of contributories, on
which was the name of the respondent, No. 3002, showing
the original amount of a premium note alleged to be given
by the respondent to be $50 ; on account of which he had
paid $31.25, leaving a balance of $18.75, for which balance
Digitized byVjOOQlC
418 THE ONTARIO REPORTS. [VOL.
Statement, the liquidators sought to have the respondent's name
placed on the list of contributories, &c. Objection was
taken that the respondent was entitled under section 4 of
ch. 44 of 53 Vic. (O)., to have the said note delivered up to
him to be cancelled on the ground that more than forty
days had elapsed^since the expiration of the policy, or the
term of insurance had ended, there having been no lawful
assessments of which notice had been given to the maker
of the note during the currency of the policy, or within
the period of forty days therealter ; and that therefore the
respondent's name should not be placed on the list, &c.,
and the above Act was relied on. The Local Master gave
effect to the objection, and the liquidators now appealed.
The appeal came up for argument before Robertson, J.»
on May 8th, 1890.
Kingston^ Q. C, for the appellants, the liquidators of
the company. Our ground of appeal is, that section 4 of
the Act, 53 Vic. ch. 44, (0)., does not apply to this case, and
that irrespective of the statute, a mutual company could
assess on premium notes after forty days from the end of
the term. Under the Ontario Insurance Act, R. S. 0-
(1887) ch. 167, sec. 124, such assessment could be made.
But whether they could assess or not under R. S. 0. (1887)
ch. 167, the liquidators had power to make a levy under
the Winding-up Act. Nothing in 63 Vic. ch. 44, (0). says it
shall have a retrospective effect. The statute must not be
read so as to impair an obligation. It must not be sup-
posed that the legislature exceeded their jurisdiction, and
infringed on insolvency legislation. Next I point out that
if this statute applies, it indirectly repeals a large part of
the Ontario Winding-up Act, which it should not be pre-
sumed to do. In this new Act there is a very great change
made in mutual insurance law. I refer to McEvoy v.
Clune, 21 Gr. 515, on the question as to whether the statute
is retrospective.
Digitized byVjOOQlC
XIX.] BE SAUQEEN MUTUAL FIBE INS. CO. 419
Hoyles, Q. C, contra. As to sec. 124 of R. S. O. ch. 167, Argnment.
under which the liquidators claim, it provides that assess-
ments are to be made under directions of the board of
^iirectors. There are no directors now. This section can-
not apply to an assessment made by the Master. I submit,
moreover, that 53 Vic. ch. 44, sec. 4, (O)., is retrospective,
for it is passed for the purpose of removing doubts and
explaining the true construction of the former section.
There were doubts as to the meaning of the former sec-
tion : Victoria MvutuM Fire Ins. Go. v. Tkompaon, 32 C.
P. 476, 9 A. R 620. Where a statute is passed to remove
doubts, it is to be considered retrospective : Wilberforce on
Statute Law, p. 165; Rex v. Inhabitants of Diirsly, 3
B. & A. 465 ; Attorney -Oeneralw, The Bristol Water Works
Co., 10 Ex. 884; McEvoy v. Glune, 21 Gr. at pp. 519, 521 ,
523. There were doubts as to the meaning of the old sec.
132, and unless this is retrospective, the intention of the
Legislature to remove doubts is not carried out. There is
no reason why it should not be retrospective, since there is
ao interference with vested rights or with property.
May 13th, 1890. Robertson, J. — [After setting out the
£eK;ts as above.]
The decision of this appeal turns upon the question
whether the substituted section 132, enacted by sec. 4 of
the amending Act, 53 Vict. ch. 44 (0)., is to be read as having
a retrospective effect or not. Section 132 of the Ontario
Insurance Act, R. S. 0., 1887, ch. 167, was in these words :
"Forty days after the expiration of the term of insurance,
the premium note or undertaking given for the insurance
shall, on application therefor, be given up to the signor
thereof, provided all losses and expenses with which the
note or undertaking is chargeable, have been paid."
The substituted section, 53 Vic. ch. 44, sec 4, (O)., is in
these words :
•* To remove doubts, sec. 132 of the said Act" (The On-
tario Insurance Act) "is repealed, and the following
Digitized byVjOOQlC
420 THE ONTARIO REPORTS. [VOI^
Jad«i[ment. section substituted therefor, 132 : On the expiration of
Roberteon J. ^^^7 ^^Y^ after the term of insurance ended, the premii]^ii>
note or undertaking given for the term, shall be absolutely
null and void, except as to first payment or instalments
thereof remaining unpaid, and except as to lawful assess-
ments, of which written notice pursuant to sections 124
and 126, has been given to the maker of the premiom
note, &c., during the currency of the policy, or within the
said period of forty days." * *
There was no evidence ofiered that there was any over-
due assessments payable on the note.
In McEvoy v. Clune, 21 Or. 515, it was held that 27
Vic. ch. 13, (1863), was declaratory of the meaning of the
257th, 258th, and 259th sections of the C. L. P. Act, and
was retrospective in its eSect. The words in the declara-
tory Act were : " Whereas doubts have arisen as to the
meaning of the 257th, 258th and 259th sections of the
C. L. P. Act, being 22nd ch. of the Con. Stat, for U. C.
Therefore Her Majesty, &c., enacts as follows : 1. When-
ever the word ' mortgagor' occurs in the said sections, it
shall be read and construed as if the words ' his heirs,
executors, administrators, or assigns, or person having the
equity of redemption,' were inserted immediately after
such word * mortgagor,'" &c
Reading carefully the repealed section 132, and compar-
ing it with the substituted section, it is clear that the
Legislature, by the latter, have only declared what it inten-
ded by the former. There is no question that doubts have
arisen as to the meaning of the old section ; the legislature
has so declared; and that being the case, it has taken upon
itself the office of interpreter, and has expressed itself in
plain and unmistakable language as to what it meant by
its previous enactment. It might be said with some force^
I think, that the original section meant exactly what the
substituted section says it was intended it should mean,
without this legislative interpretation. By the original
section the note after forty days after the expiration of the
insurance, should be given up, " provided all losses and ex-
Digitized byVjOOQlC
XIXj RE SAUGEEN MUTUAL FIRE INS. CO. 421
I
penses with which the note, Ac, is chargeable, have been Judgment.
paid." The forty days, no doubt, were given to enable the Robertson, J.
company to make any assessment which might be chargeable
against the note ; if that was not done within these forty
days it was to be presumed that the company had no fur-
ther claims. That has been made clear now by the substi-
tuted section. There is no declaration that the new section
is only to aflfect premium notes given after the passing of
the substituted section ; or that it is only to be construed
as affecting cases which may thereafter arise, but it obliter-
ates entirely the old section, and " substitutes" another for
it In my judgment that section is now to be read as if
it was the original section from the passing of the original
Act
I think, therefore, the Local Master was right in the
conclusion come to by him, and the appeal should be dis-
missed with costs, to be paid by the liquidators out of the
estate.
The liquidators' costs will be dealt with hereafter, when
the estate is wound up and they apply for their discharge*
A. H. F. L.
Digitized by VjOOQIC
422 THE ONTARIO REPORTS. [VOL.
[QUEEN'S BENCH DIVISION.]
Cann V. Knott et ux.
Execution — Free granis and homesteads — Exemption from execution —
Interest of original loca^ee as mortgagee after alienation.
The defendant was locatee of certain lands under the Free Grants and
Homesteads Act, R. S. 0. ch. 25, and duly obtained patents therefor.
Afterwards he and his wife sold and conveyed parts of the land, he
taking back mortgages to secure the purchase money : —
Heldj that the mortgages were not interests in the land exempt from levy
under execution witnin the meaning of sec. 20, sub-sec. 2.
The exemption extends to the land or any part thereof or interest therein
so long as it Ib held by the original location title, whether before or
after patent ; but where there has been a valid alienation, a mortgage
taken by the original locatee does not vest in him qud locatee.
The word " interest " used in the sub-section does not extend to the
chattel interest of a mortgagee.
atat^nent. This was an action brought by George W. Cann to set
aside an assignment of two mortgages by the defendant
James Knott to the defendant Elizabeth Knott, his wife,
as fraudulent and void against the plaintiff, and to have it
cleclaied that the mortgages were assets of the defendant
James Knott liable to satisfy a certain judgment against
him obtained by one Samuel Johnston, and assigned to the
plaintiff.
The mortgages in question were made to the defendant
James Knott by William Beswick and Henry William
Clarke, and covered parts of lot 19 in the 2nd concession
of the township of Chaff ey, in the district of Muskoka, of
which lot and the adjoining lot 20 the defendant James
Knott was locatee under the " Free Grants and Homesteads
Act," R. S. 0. ch. 25, and afterwards obtained patents there-
for. The mortgages were made to secure the purchase
money of portions sold and conveyed to Beswick and Clarke
by both defendants.
Among other defences, the defendants set up that the
assignment of the mortgages was made by one to the
other in good faith and for valuable consideration, and
without knowledge on the part of the defendant Elizabeth
Knott of the indebtedness of her co-defendant, and without
Digitized byVjOOQlC
:XIX.] CANN V. KNOTT. 423
-any fraudulent intent, or for the purpose of defeating or Statement,
<ielaying creditors ; that the moneys secured by the two
mortgages were the amounts of the purchase money pay-
able by the mortgagors in respect of the respective lands
mentioned in the mortgages, and the consideration money
for the sale and conveyance by the defendants to the mort-
gagors of such lands.
The action was tried before Boyd, C, at the Toronto
Spring Chancery Sittings, on the 19th May, 1890.
The case was argued at the conclusion of the evidence.
■^oy* Q- C., for the defendants. The land comprised in
the mortgages, and the mortgages themselves, are exempt
from seizure under execution by R. S. O. ch. 25, sec. 20.
The plaintiff has to shew that the mortgages are not an
** interest" protected by the statute and exempt for twenty
years after patent. There is no evidence of intention to
defeat the claim of Johnston, or of knowledge on the part
of the defendant Elizabeth Knott of her husband's in-
debtedness. I refer to Robertson v. Holland, 16 0. R. 532 ;
Oibbans v. Wilson, 17 A. R. 1 ; Johnson v. Hope, ib. 10 ;
Blums V. Mackay, 10 0. R 167 ; Ex parte Mercer, 17 Q. B.
D. 290.
D. Urqukart, for the plaintiff. Is this an interest in land
within the Act ? See sees. 17 and 19. A mortgage is only
a chattel interest, and the whole statute points to the con-
clusion that a freehold interest is contemplated. The
mortgage is taken in the name of the husband alone, shew-
ing that he was the one who had the interest after the
alienation.
June 4, 1890. BoYD, C. :—
The plaintiff seeks equitable execution in respect of
two mortgages assigned by the debtor to his co-defendant,
his wife, on the ground that the transfer is void as
against creditors. The main defence is that the mortgages
are not seizable or exigible under execution, because they
54 — VOL. XIX. O.R.
Digitized byVjOOQlC
424 THE ONTARIO REPORTS. [VOL.
Judgment, represent an interest in land which is protected by the
Boyd, C. -A^ct respecting "Free Grants and Homesteads," R S. 0.
eh. 25. James Knott, the defendant, was locatee under
this statute of lots 19 and 20 in the 2nd concession of
Chaffey, and duly obtained patents therefor. On the 2nd
June, 1886, Knott and his wife (the now defendants) sold
and conveyed twenty-five acres of lot 19 to Beswick, and
thirty acres of the same lot to Clarke, taking back mort-
gages to secure the purchase money made to James Knott,
as sole mortgagee. These are the mortgages now in ques-
tion. The defendants rely on sec. 20, sub-sec. 2, whidi is
thus expressed :
" After the issuing of the patent for any land, and while
the land or any part thereof, or interest therein, is owned
by the locatee or his widow, heirs, or devisees, such land,
part, or interest, shall during the twenty years next after
the date of the location be exempt from attachment, levy
under execution, or sale for payment of debts, and shall
not be or become liable to the satisfaction of any debt or
liability contracted or incurred before or during that
period, save and except a debt secured by a valid mort-
gage or pledge of the land made subsequently to the
issuing of the patent."
I am of opinion that the mortgages above mentioned are
not interests in the land exempt from levy under exe-
cution within the meaning of the 20th section. By sec-
tion 17* the parts sold to Beswick and Clarke were validly
alienated. By virtue of that alienation these parts of the
land were taken out of the operation of the Act. When
the owners of these parts mortgaged them to Knott he
received the security, not under the provisions of the
statute, but as one who had contracted himself out of his
* No alienation (otherwise than by devbe) and no mortgage or pledge
of the land, or of any right or interest therein, by the locatee after the
issue offthe patent, and within twenty years from the date of the location^
and during the life- time of the wife of the locatee, shaU be valid or of any
efifect, unless the same be by deed in which the wife of the locatee is one
of the grantees with her husband, nor unless such deed is duly execnted
by her.
Digitized byVjOOQlC
XIX.] CANN V. KNOTT. 425
privilege. The language used in sub-section 2 is peculiar, Jndgment.
and emphasizes this point by speaking of the person enti- Boyd, C.
tied to protection as locatee, albeit the patent has issued.
That is to say, the exemption extends to the land, or any
part thereof, or interest therein, so long as it is held by
the original location title, and this whether before or after
patent. But if the chain of privilege is broken by the valid
alienation of any part of the land, then a mortgage
taken upon that part by the original locatee does not vest
in him qvA locatee.
Again the word interest, as used in this sub-section, does
not appefiir to me intended to include the interest of a
mortgagee ; because the context indicates such an interest
to be protected as passes beneficially " to widow, heirs, or
devisees," : that is to say, a chattel interest is not contem-
plated, which would vest in executors upon the death of
the locatee or patentee. I quote the language of Lord
Selbome in Heath v. Pv{/h, 6 Q. B. D. at p. 359, as perti-
nent : " In equity the conveyance of the legal estate to a
mortgagee was regarded as nothing more than a security
for a debt. During the subsistence of the equity of re-
demption, the debt, together with this benefit of the
security, passed to the executor by a will of personal estate,
and the legal title to the land did not pass by a general
devise of all the mortgagee's real estate in a will duly
attested, because it was not regarded in equity as any part
of that estate." See also Caracaden v. Shore, 17 C. P. 493 ;
Wilde V. Wilde, 20 Gr. at p. 534.
Upon the merits, I think the plaintiff should succeed ;
but it is not a case for costs against the married woman.
Digitized by VjOOQIC
426 THE ONTARIO REPORTS. [VOL.
[queen's bench division.]
commtng et al. v. landed banking and loan
Company.
Tnists and U-uaUes— Breaches of trtut — Taking seeurUies m name of one of
ttoo joint tnuitees — Pledging securilies for advance — Misapplicaiian of
motieyH advanced — FoUovoing securities in hands o/ pledgee.
One of two joint trustees assumed to lend trust moneys on the security
of mortgages on land, taking the mortgages to himself alone "as
trustee of the estate and effects of J. C, deceased." These mortgases
were hypothecated by him to, and moneys were advanced to him by, ue
defendants, ostensibly to meet an unexpected call by one of the
beneficiaries ; but the moneys were not so applied, nor otherwise for
the benefit of the estate, and they were not required for any saeh
purposes under the terms of the will creating the trust.
In an action by the other trustee and two new trustees, who were also
beneficiaries, appointed in his stead : —
Held, that he ha4 been guilty of two breaches of trust, and that the
plaintiffs were entitled te follow the trust securities and to make the
defendants account for all moneys received by them thereunder.
Statement James Cumming, of the village of Trenton, died on the
let of February, 1873, having in his life time made his
will and devised and bequeathed all his estate to his exe-
cutors, the plaintiff Robert T. D. Cumming and one Thomas
B. Wragg, upon the trusts set forth therein, including a
trust to invest the moneys belonging to the estate in good,
safe securities, and to receive the interest arising there-
from, and out of the same and the other revenue and
income arising from the estate to maintain and educate
the children of the testator, and to reinvest upon good
safe securities as aforesaid, any surplus of the said interest,
revenue, and income which should remain after the pay*
ment for the maintenance and education aforesaid.
The plaintiff Robert D. T. Cumming and Thomas B.
Wragg proved the will and accepted the burthen of the
trusts.
In the year 1881 Thomas B. Wragg, as one of the trus-
tees, lent certain of the moneys . of the estate to one
Alfred Brignall, and took from him a mortgage upon cer-
tain land for S2,230, with interest at six and one-half per
cent, per annum, to secure re-payment of the loan. In the
Digitized byVjOOQlC
XIX.] GUMMING V. LANDED BANKING AND LOAN CO. 427
same year Wragg also lent certain of the moneys of the Statement,
estate to one Owen Foley, and took from him a mortgage
upon certain land for $3,370, with interest at seven per
cent, per annum, to secure re-payment of the loan.
These mortgages were both made in favour of Wragg
alone, and upon the face of them were expressed to be
made to him as ti-ustee of the estate and effects of the
late James Gumming, deceased.
On the 14th June, 1883, Wragg assigned and transferred
these two mortgages with all moneys then due or to accrue
due in respect thereof to the defendants to secure to them
the repayment of a loan of $5,000, which was made on
the 19th June, 1883, by the defendants to Wragg, which
loan was to be repaid by Wragg to the defendants on the
14th June, 1884, together with interest at eight per cent,
per annum.
By an order made in an action of Gumming v. Wragg,
on the 5th April, 1886, two of the present plaintiffs. Flora
M. A- Wright and Daniel R. Murphy, were appointed trus-
tees of the will of James Gumming, in the place of Wragg
jointly with the plaintiff Robert D. T. Gumming, the con-
tinuing trustee ; Gumming and Wright being also bene-
ficiaries under the will.
This action was brought in the name of the three trus-
tees. The statement of claim set out the foregoing facts,
and charged that Wragg, without any notice to or know-
ledge on the part of the plaintiff Robert D. T. Gumming,
improperly took the two mortgages unto himself alone;
that at the time of the assignment by Wragg to the
defendants the latter had notice and knowledge that he
was committing a breach of his duty as trustee ; and that
Wragg had no power or authority 'as against the plaintiffs
and the estate and the beneficiaries thereof, which the
plaintiffs represented, to assign the two mortgages to the
defendants ; and that in attempting to do so, he committed
a breach of duty as trustee; and that the defendants were
accountable to the plaintiffs for all moneys received under
or in connection with the mortgages, and were bound to
Digitized byVjOOQlC
428 THE ONTARIO REPORTS. [VOL.
Statement, re-assign to the plaintiffs after accounting as aforesaid.
The plaintiffs prayed consequential relief, or, in the event
of its being held that the assignment made by Wragg was
valid as against the plaintiffs, that they might be allowed
to redeem the mortgages.
The statement of defence set up that Wragg was mort-
gagee of the lands mentioned in the statement of claim
by way of security for certain moneys alleged in the
Brignall and Foley mortgages respectively to have been
advanced by Wragg to the mortgagors in the mortgages
respectively named ; that the description of Wragg con-
tained in the mortgages was in the words following:
*' Thomas Busby Wragg, of the city of Belleville, in the
county of Hastings, and Province of Ontario, Esquire,
trustee of the estate and effectis of the late James Gum-
ming, deceased, hereinafter called the mortgagee ; that the
defendants had no knowledge of the affairs of the estate,
and dealt with Wragg in good faith as the person entitled
by law, as he in fact was, to collect the moneys secured by
the mortgages, and to release, assign, or dispose of the
mortgage^securities ; that the plaintiffs, and those through
whom or on whose behalf they claimed, had notice or
knowledge of the transfer of the mortgages to the defen-
dants, and had by acquiescence therein waived all objec-
tion thereto, and were estopped from complaining thereof
as against the defendants ; and the defendants claimed the
benefit of sees. 18, 19, 20, 21, and 29 of the " Act respecting
Trustees and Executors and the Administration of Estates,"
R. S. 0. ch. 110.
The defendants further alleged in their defence that
Wragg was the acting trustee of the estate of Jaui^
Gumming, and that the plaintiffs permitted him to have
the sole charge and management of the affairs of the
estate until after the assignment to the defendants of the
mortgages in question, and allowed him to invest the
moneys of the estate in such manner as he might dem
proper, and if there was at the time of the assignment of
the mortgages to the defendants any other trustee of the
Digitized byVjOOQlC
XIX.] GUMMING V. LANDED BANKING AND LOAN CO. 429
-estate, the defendants were not aware of it; that the Statement,
plaintiffs had recovered a judgment in the High Court of
Justice for Ontario against Wragg for all moneys he was
liable to account for to the estate.
The defendants submitted to be redeemed by the persons
entitled to the equity of redemption in the mortgaged
lands upon being paid the principal and interest moneys
owing to them upon the mortgage securities, and the costs
and expenses incurred in respect thereof, and the costs of
this action.
The action was tried before Boyd, C, at Toronto, on the
3rd May, 1890.
The facts, in addition to those set out above, are stated
in the judgment.
The case was argued at the conclusion of the evidence.
A. H, Marsh, Q. C, for the plaintiffs. The defendants
had notice that Wragg was a trustee. It was their duty
to ascertain his position and powers. There is no such
thing as an acting trustee ; one executor may act, but not
one trustee: Wilbur v. Almy, 12 How. 180. The defen-
dants were bound to inquire : Bank of Montreal v. Sweeny,
12 App. Cas. 617 ; Bayard v. Farmers' Bank, 52 Pa. St
at pp. 237-8 ; Jones on Pledges, sec. 474. It was their
duty to inquire, and inquiry would have led to information
which would have saved the estate from loss : Jones v.
Williams, 24 Beav. at p. 62 ; Oaston v. American Ex-
change National Bank, 29 N. J. Eq. at pp. 102-3. Inquiry
would have led to knowledge of breach of trust in several
respects : 1. There were two trustees, and it was a breach
of duty to take the mortgages to one only : Consterdine v,
Consterdine, 31 Beav. 330 ; Lewis v. Nobbs, 8 Ch. D. 591 ;
Lewin on Trusts, 8th ed., p. 337. 2. It was said that the
money received by Wragg from the defendants, was to be
paid to an heir. That was not the case ; and if it had
been, it was a breach of trust, because the estate was not
divisible till the youngest child came of age. The income
Digitized by VjOOQIC
430 THE ONTARIO REPORTS. [VOL.
Argument, only was to be paid by the trustees for maintenance. 3.
It was a breach of duty to deal with the securities by way
of sub-mortgage. The trustees were to invest and keep
invested the moneys of the estate in good, safe securities.
Sees. 18, 19, 20, 21, and 29 of R. S. O. ch. 110 do not
justify a pledging of securities. See Perry on Trusts, 4th
ed, sec. 466.
S. H. Blake, Q.C., for the defendants. There is no author-
ity to shew that any inquiry is to be made where a mortgage
is made to one described as a trustee. Stock cases do not
apply to mortgages. The defendants are in the position
of purchasers for value without notice : Wright v. Leys, 8-
O. R. 88 ; Davis v. Hawke, 4 Gr. 494. Wragg was an
executor, whose duty it was to discharge the debts, and it
was not for the defendants to inquire whether the func-
tions of an executor were at an end or not. The defen-
dants had no notice of the will ; it did not form a link in
the title which they had to investigate upon taking the
security, and it was not needful for them to see it at all.
But even if the will were looked at, it would justify the
executor in raising money for maintenance. There is noth-
ing to shew that the moneys advanced by Wragg were
not part of the income of the estate. Facts cannot be
assumed against the defendants. There is no evidence that
the defendtints had notice or knowledge when they took
the assignment from Wragg that he was acting beyond the
scope of his duties. I refer to Pilcher v. Rawlins, L. R. 7
Ch. 259, 263 ; Garter v. Carter, 3 K. & J. 617 ; C(yrser v.
Caiiiurighf, L. R. 7 H. L. 731, 736 ; Lewin on Trusts, 8th
ed., pp. 859, 860. Judgment has been obtained by the
plaintiffs against Wragg, and they are not entitledto this^
remedy in addition. They have elected to take their
remedy against Wragg.
MacKelcan, Q. C, on the same side. There is no dis-
tinction between the right of the executor to realize by
selling the security, which is a legitimate way of proceed-
ing, and borrowing on the security, which is a realization
pro tanto. Executor was still the function of Wragg
Digitized byVjOOQlC
XrX.] GUMMING v. LANDED BAlfKlNG AND LOAN CO. 4S1
till the legatees were paid and the estate distributed. I Argument.
refer to Lewin on Truste, 8th ed., pp. 477, 480 ; Coote on
Mortgages, 5th ed., pp. 308-15; McLeod v. Drummond,
1 4 Ves. 353 ; 17 Ves. 152 ; MUea v. JDwrnfrnd, 2 DeG. M. &
G. 641 ; Vane v. Rigden, L. R 5 Ch. 663 ; CJiilda v. Thov
hy, 16 Ch. D. 151 ; WoMna v. Cheek, 2 Sim. & Stu. 199 ;
Farhall v. FarhaU, L. R 7 Eq. 286 ; CruiJcahank v. Duffln,
L. R. 13 Eq. 555 ; Devitt v. Kearney, 13 L. R. Jr. 45, (1884).
The plaintifl Gumming is not entitled ou account of laches
to seek equity against the defendants. The judgment
against Wragg has satisfied the claim now sued for.
MavBh, in reply. The Trustee Act is limited to real
estate devised by the testator, and Is not applicable. See
Fbher on Mortgages, 4th ed., sec. 428. The defendants
have not satisfied the onus of shewing that the mortgages
are valid, and that they should get the benefit of them.
The plaintiffs are legatees and trustees, and can maintain
the action.
June 4, 1890. Boyd, C. :—
The Act relating to Trustees and Executors, which is
pleaded by the defendants, does not appear to affect this
case. The question is short and simple : has the defen-
dant company with notice of the trust obtained misap-
plied trust property ? The cases cited as to executors seem
beside the real question — for here the executorial powers
had ceased, and the fund was being dealt with as a trust.
That being so, one of the joint trustees assumes to lend
two sums of trust money on the security of mortgages on
land, to one Foley and one Bignall. Both mortgages are
on the face expressed to be taken to Wragg, " trustee of
the estate and effects of the late James Gumming, deceased.'
This was a breach of trust to start with, for one trustee has
no power so to vest the assets in himself to the exclusion
of his fellow trustee. But the security being ample to
answer the demand, no question arises except in regard to
following this trust security. These mortgages were
55 — you xix. O.B.
Digitized by VjOOQIC
^32 THE ONTARIO REPORTS. [VOK
Judgment, assigned to the defendants by the trustee Wra^ to raise
Boyd, C. funds ostensibly to meet an unexpected call by one of the
heirs for a large sum of money, and herein appears a
second breach of trust The money was not so applied,
nor was it required for any such purpose under the terms
of the testator's will. James Cumming, the testator, died
in February, 1873 ; this transaction was ten years after-
wards in 1883 ; the division of the estate among the
family was not to take place till the youngest daughter
was of age, and she at the father's death was only seven
years old. There is no proof that the money was applied
otherwise for the benefit of the estate. Upon these facts,
I think that the defendants must account for all mone} s
received by them under the Foley and Bignall mortgages,
as part of the estate represented by the present plaintiffs.
The principle of this decision is to be found in Bank of
Montreal v. Sweeny, 12 App. Cas. 617, and having regard
to Carson v. Sloane, 13 L. R. Ir. 139, I see no disability in
any of the plaintiffs to recover.
Costs will follow the result.
Digitized by VjOOQIC
XIX.] BRUYEA V. ROSE. 433
[CHANCERY DIVISION.]
Brutea V. Rose.
Landlord and tenant — Bhicroachment by tenant on adjoining land — Title &y
possession — Action of trespass — Intruder on Crown lands*
A lessee of a lot had for more than twenty years exercised acts of owner*
ship over part of a lot adjoining, and now claimed to have acquired
title from his landlord by possession to the said part, and brought this
action of trespass against the present owner of the rest of the said
adjoining lot : —
Heldy that his action must be dismissed, for although a tenant taking in
land adjacent to his own by encroachment, must, as between himself
and his landlord, be deemeid primd fade to take it as part of the de-
mised land, yet that presumption will not prevail for the landlord's
benefit against third persons.
The result of the cases appears to be that where a person is in possession
with the assent of the Crown, paying rent ; or where a person is a pur-
chaser, although the patent has not issued, such person can maintain
trespass against a wrong-doer, but this was not the present plaintiff's
possession.
-Harper v. Cfiarlestoorth, 4 B. [& C. 574, referred to and specially'con-
-sidered.
This was an action of trespass to land brought understatement,
circumstances which are fully set out in the judgment,
where the arguments of counsel are also referred to.
The action came on for trial at Belleville on September
27th and 28th, 1889, before MacMahon, J.
Dickson, Q. C, for the plaintiffs.
Clute, Q. C, and Burdette, for the 'defendants.
May 22nd, 1890. MacMahon, J. :—
The action is one of trespass to land. The plaintiffs
allege in the statement of claim that they occupy the south
half of lot 5, and the defendants the south half of lot 6 in
the tenth concession of the township of Murray in the
county of Northumberland : That the plaintiff Jane
Bruyea is a daughter, and one of the heirs-at-law of the
late Wm. Bamber, who died seized in fee of said lot 5 in
the tenth concession up to the old line fence claimed to be
the boundary line between it and the south half of lot 6,
Digitized byVjOOQlC
434 THE ONTARIO REPORTS. [VOL
Judgment, sxid to which line the plaintiff claims to recover in the
MacMahon, action : and also that the plaintiff John Bniyea and those
^' through whom he claims title, and right to the possession^
and said Wm. Bamber and his heirs have for over thirty-
five years been in continuous possession of the land up to a
certain line fence which during said period has been treated
and recognized to be the line fence between the plaintiffs,
and the defendants' lands.
The plaintiffs claim that said line fence is the true line
between said lots 5 and 6, but whether it is the true line
or not, that they are entitled to possession up to that line
as against the defendants by length of possession.
The plaintiffs allege that in the spring of 1887, the
defendants unlawfully moved said line fence some eight
or ten rods in on to the land occupied by the plaintiffs,
thereby including the same with land occupied by the
defendants as part of the south half of lot 6, and depriving
the plaintiffs of the use and possession of the said land.
The plaintiffs claim damages for the trespass, and ask to
have the line fence restored to the line it occupied, and the
possession of the land restored to the plaintiffa
The patent from the Crown for lot No. 5 in the tenth
concession of Murray (together with other lands) was issued
to Wm. R Caldwell on the Slst of October, 1817. Wm.R.
Caldwell conveyed said lot 5 with other lands to the
Hon. Geo. S. Boulton, and such lot 5 in the tei^th concession
was by the said Hon. Geo. S. Boulton surrendered to the
Crown on the 20th of October, 1847 — the original surrender
being produced to me from the Crown Lands Department.
One George Potts of the township of Brighton, yeoman,
then assuming to be the owner, made a conveyance dated
the 10th of May, 1868, of the south half of lot 5 in the
tenth concession to Wm. Bamber, which was registered on
the 28th of September, 1858.
On the 1st of February, 1869, Wm. Bamber, leased to
the plaintiff John Bruyea the north halves of lots 5 and 6
in the ninth concession, and the south half of lot five in the
tenth concession of Murray for a period of three years.
Digitized byVjOOQlC
XIX.] BRUTEA V. ROSE. 436
Wm. Bamber died in 1879 intestate, leaving a family >£ Judgment,
ten children, one of whom is Jane Bruyea, wife of the MacMahon,
plaintiff John Bruyea. ——
The plaintiff John Bruyea since the lease to him of the
above three parcels has purchased one of them, viz., the
north half of lot 6 in the ninth concession from the heirs
of the late Wm. Bamber.
The patent from the Crown issued on the 4th of January,
1865, to George German for the south part of lot 6 in the
tenth concession of Murray, containing fifty-three acres
lying south of the river Trent.
Geo. German conveyed the said part of lot 6, and also
the east part of lot 7 in the tenth concession to Wm. J.
Chadsay on the 16th December, 1886. And by a vesting
order in the suit of Chadsay v. Chadsay, dated the 25th of
January, 1881, the said part of lot 6, and said east part of
lot 7 became vested in Patrick Turley who conveyed the
aame to the defendant Ellen Rose by deed dated the 6th
of April, 1881.
The strip of land in dispute forms a part of that portion
of said lot 6 in the tenth concession conveyed by Turley to
the defendant Ellen Rose, and has a frontaofe of three
chains twenty-eight links on the concession line between
the ninth and tenth concessions, and running north twenty*
two chains to the river Trent — which forms the northern
boundary of the south part of the lot — and contains about
six and one-half acres.
The plaintiff John Bruyea claims this strip as tenant
under the lease from the Bambers.
There are no improvements on the south half of lot 5 in
the tenth concession which is wooded land, and has been
used by the plaintiff John Bruyea as a pasture field, his
cattle crossing the concession line (which does not ^appear
to have been fenced in on either side of the concession)
from lot 5 in the ninth to lot 5 in the tenth concession.
It is stated by Jane Bruyea that when Wm. R. G. German
lived on lot 6 in the tenth concession he and Wm. Bamber
built a fence of brush and logs between the east half of
Digitized byVjOOQlC
436 THE ONTARIO REPORTS. [VOL.
Judgment, gix and the west half of five in the tenth concession then
MacMahon, claimed by Wm. Bamber.
^' When the plaintiff John Bruyea was examined for dis-
covery he said he never gave anything for the six and a
half acres claimed, and he could not state whether the
present line fence is east or west of where it is claimed the
old line fence was. There is a good deal of difficulty in
determining where the post indicating the boundary
between lots 9 and 10 was placed, as at certain seasons of
the year the land was drowned, and Bruyea represented
to Jacob Terry and James German that the post placed
there had floated away.
The title to the south half of lot 5 in the tenth conces-
sion is still in the Crown, and no one has been entered for
that lot although numerous applications were made for a
right to enter in the ten years between 1877 and 1887.
And so long ago as 1859 an order in council was passed
and published in that locality prohibiting squatters from
trespassing on the Crown lands.
The fence which it is claimed was built by Wm, R 6.
German and Wm. Bamber could not be considered as a
line fence between the owners of adjacent lands as the
Crown is still the owner of lot 5 in the tenth concession^
and the title to the south part of lot 6 was in the Crown
until January, 1865, when the patent therefor issued to
Geo. German.
It is not in evidence who Wm. R. G. German was, or
how he was in possession of this south part of lot 6.
John Bruyea when in the witness box said he claimed
this land in dispute as tenant of the Bambers under the
lease, and he made no other claim.
The argument of Mr. Dickson was that whether the
title to*lot 5 is in the Crown or not, the plaintiffs being in
possession are entitled to maintain trespass on the authority
of Harper v. Charlesivorth, 4 B. & C. 574.
In Harper v. CharUaworth, the plaintiff was in actual
possession with the concurrence of the Crown paying a
nominal rent to the King. But as he occupied under a
Digitized byVjOOQlC
XIX.] BRUTEA V. ROSE. 437
parol license from the Crown, and the rent paid was much Judgment,
less than one-third the annual value of the land as required MacMahon,
by Ist Anne eh. 7, sec. 5, he had no legal right to retain '^•
possession of the land as against the Crown, but as he
occupied with the permission of the Crown his possession
was sufficient to enable him to maintain trespass against a
wrong-doer. And Bayley, J., said at p. 590: "If an
information had been filed against him as an intruder, it
would have been a good answer, in point of law for him
to shew that by license from the Crown he was in posses-
sion and actual occupation of the land."
The conclusion Bayley, J., reaches (p. 591), is "that
actual possession of Crown land, with the consent of the
Crown, is sufficient to entitle the party possessing it to
maintain trespass against persons who have no title at all,
and who are mere wrong-doers."
And Littledale, J., says, pp. 593-4 : '* In this case, the
question was not whether the plaintiff had a legal title to
the land, but assuming that he could not retain the actual
possession against the Crown, the question was, whether
he was entitled to that possession against a third person,
as the Crown did not treat him as a wrong-doer."
In Hend&i'aon v. McLean, 8 C. P. 42, it was held that a
purchaser from the Crown who held only a receipt for a
portion of the purchase money without a license of occu-
pation under the 6th section of 16 Vict. ch. 159, could not
maintain trespass against a wrong-doer, Draper, C. J., in his
judgment, at p. 45, referring to Plowden's reports, p. 546, as
showing that the plaintiff could not have an action of tres-
pass. But in the case of Henderson v. McLean, 16 U. C. R.
630, the Court dissented from the judgment of the Court in
the case in 8 C. P. 42, by holding that the effect of the
Act 16 Vict. ch. 169, did not disable purchasers of Crown
lands who had taken possession, but not obtained a patent
from protecting themselves against trespassers. And
Robinson, C. J. in giving judgment in the case in the
Queen's Bench, at p. 638, refers to Harper v. Charlesworth,
4 B. & C. 574, and says : " We think the effect of that
Digitized byVjOOQlC
4SH THE OSTAUO SETOnS. [VOL.
^n^^jtat, /leeision is to shew that the ancient doctrine respecting ia-
3iaeMaiM», tmders opon the pasRession of the Crown, cannot in reason
^' be applied to such a case,' (as he was considering) ** for
that a contracting purchaser holding possession witii the
eoncnrrence of the Crown, cannot in any just sense be
regardefl as an intrnder." See also Glover v. WaUcer, 5
a p. 478 ; Deedes v. Wallace, 8 C P. 385.
The re^MiIt of the cases appears to be that where a i>er-
son is in pos-session with the assent of the Crown, paying
rent nn in Harper v. Chirlesicorfh, and is therefore not an
intruder, or where a person is a purchaser, although the
patent has not issued as in the cases eited from our
own reprirts, such person can maintain trespass against
a wrong-doer. See also Graham v. Heenan, 20 C. P. 340.
But the plaintiff's action is not for a trespass to lot 5
npon which he was an " intruder " as against the Crown,
but in regard to part of lot 6 forming a portion of the
whole land trespassed over by the plaintiffs in pasturing
their cattle.
The title to this part of lot 6 being in the Crown until
1865, one of the questions to be considered is whether the
plaintiff John Bruyea who claims to be lessee from Wm.
Bamber, during his lifetime of the south half of lot 5 in
the tenth concession under the lease of 1869, and since the
latters death in 1879 from his heirs, could — even
supposing Bamber had been the owner of lot 5 in the tenth
concession— have acquired title in himself by encroachment
on this part of lot 6 as against the owner of the fee ?
In Smyth v. Leavens, 3 U. C. R 411 (decided in 1847),
the Court held that where a landlord places a tenant in
possession of lot No. 1, and the tenant knowingly incroaches
on part of lot No. 2, to which the agreement as between
himself and his landlord gives him no right whatever, that
the tenant's occupation does not enure to create for the
landlord a title to lot 2 by means of a twenty years posses-
sion of the lot.
In the present case Bruyea as tenant is only entitled
under his lease to possession of the south half of lot 5 in
Digitized byVjOOQlC
2TX.] BRUYEA Y. ROSE. 439
the tenth concession, and he does not pretend to claim as Judgment.
his own the strip of land in dispute, but only as forming MacMahon,
part of the land to which the Bamber estate is entitled. *^'
Wm. Bamber one of the heirs at law of the late Wm.
Bamber's estate, and whose cYidence was taken de bene
€8se on behalf of the plaintiffs did not wish to be joined as
« plaintiff" in the action, nor had he been instructed by the
other heirs for whom he was acting as agent to assent to
their being joined as plaintiffs in the suit.
In Doe dem, Baddeley v. Maasey, 17 Q. B. 373 (decided
in 1851), the headnote is: "A tenant taking in land
adjacent to his own by encroachment must as between
himself and the landlord be deemed pHrad facie to take
it as part of the demised land ; but that presumption will
not preYail for the landlord's benefit against third persons."
The possession of this strip — whatever such possession
amounted to — ^was the like possession as the plaintiffs had
of the south-half of lot 5, and this was simply by permit-
ting the cattle to stray over from lot 5 in the ninth con-
cession, to lot 5 in the 10th concession.
John Bruyea paid taxes since 1869, on lot 5 although a
Crown lot.
Bruyea had promised two years before the defen-
dants had moved the fence, to build a fence on the true line,
but when the true line was to be ascertained, Bruyea said
he would have nothing to do with it, because the property
did not belong to him.
I find that the line surveyed by Cyprean Caddy, and
upon which the defendants' line is now built, is the true, line
between the south halves of lots 5 and 6 in the tenth con-
'Cession, and corresponds with the survey made by Edward
Caddy under instructions from the Crown Lands Depart-
ment in 1865.
Lot 5 being in the Crown, and the plaintiffs being in
possession in defiance of notice from the Crown against
squatters, are there as intruders, and for the reasons stated,
I consider they cannot maintain trespass — and there can
he no question that they could not succeed in ejectment, a
56— VOL. XIX. O.R.
Digitized byVjOOQlC
440 THE ONTARIO REPORTS. [VOI^
Judgment, result sought by the ctction in claiming the line up to the
MacMahon, fence now asserted by Bruyea as the boundary line. See
^- Jamieson v. Harker, 18 U. C. R. 590; Dowsett v. Cox, ib.
594, and Walker v. Rogers, 12 C. P. 327. And this strip of
land being in possesion of the tenant by encroachment the
tenant cannot claim it ; nor does the tenant John Bruyea
claim it as his own.
I cannot see that the addition to the action of Jane
Bruyea one of the heirs of Wm. Bamber as a party plaintiff
can assist in making the claim successful. See Doe d.
Baddeley v. Maasey^VI Q. B. 373.
The plaintiffs' action must be dismissed with costs.
A. H. F. L.
Digitized by VjOOQIC
XIX.] ICACKLIN V. DOWLING. 441
[CHANCERY DIVISIOK.]
Macklin V. DOWUNQ.
Sale of land — Title to land^Private Acta—Equiiahle intertst — Person not
named •» PrtoaU Act — Canada Agency Asaociation — Colonial Securi-
ties Company— S£ Vic, cJi, 62, sec 6, (0.)—36 Vic, ch. 121, sec. 5, (0.)
— i?. S. O., 1887, ch, 1, sec. 8, subs, 47.
On a reference as to title to land, it appeared that one H. entrusted cer-
tain moneys to a Loan Association to invest for her on mortgage,
under an agreement that the Association should guarantee to her pay-
ment of interest at seven per cent, and iu consideration thereof should
retain to their own use all interest over that rate. The mortgage,
which recited the said agreement, was taken to the trustees appomted
by the Association, and was made in 1861. By 82 Vict. ch. 62, sec. 5,
(O.) all lands, mortoages, fta, held by trustees of the Association were
to be deemed vested in the C. S. Company, so that the same miffht be
sold , assigned, Ac. , by the latter. Subsequently the mortgagor released
his equity of redemption to the C. S. Company, in full satisfaction of
the mortgage moneys, but not so as to merge the mortgage. By 36
Vict. ch. 121, sec. 5, (0.) all lands, mortgages, Ac, held by theC. S.
Company, were to be deemed vested in the C. T. Company, so that the
same might be sold, assigned, Ac, by the C. T. Company. Afterwards
the latter company conveyed the lands to the vendor.
Held, that, inasmuch as the above Acts made no mention of H., the ven-
dor could not make a good title free from her claim, who, unless the
moneys advanced by her had been repaid, was in equity substantially
the owner of the mortgage, and if sne chose to aaopt the act of the
trustees in ti^ng a conveyance of the equity, then of the land.
This was an appeal by the defendant from tbe report Statement*
of the Local Master at Hamilton, made pursuant to a
reference as to title in an action for specific performance
of a sale of lands, and under circumstances set out in the
judgment.
The matter came on for argument on April 22nd, 1890,
before Ferguson, J.
BichneU, for the defendant. Trustees invest money
upon a mortgage to themselves as trustees, and after-
wards acquire the equity of redemption by release from
the mortgagor, because he was in default. The vendor
makes title through these trustees. I say they have no
power of sale and cannot convey more than the legal
estate. The trustees had power to invest in this mort*
Digitized byVjOOQlC
442 THE ONTARIO REPORTS. [VOL.
Argument gage, I do not dispute, but that is all that appears. The
trustees conveyed by a simple deed, dealing with the
land as absolute owners. That is not a good title. We
must have the equitable estate got in. As to 32 Viet
eh. 62, (0). that Act could not transfer anything except
what the Canada Agency Association were beneficially
entitled to. Miss Hill is not named, though her rights
are affected. 31 Vict. ch. 1, (0)., sec. 7, sub-sec. 31, is the
Interpretation Act, which was in force when the 32 Vict
ch. 62, (0)., was passed. It says rights shall not be affec-
ted unless parties are named. I refer also to Me Goodhue,
19 Gr. at pp. 422, 426, 428, 429, 439, 448, 450 ; Lewin on
Trusts, 8th ed., pp. 192, 193, 332. 460, 858 ; and Prideaux
Prec. in Convey. 14th ed., vol. i, p. 535 ; In re Harman
arui Uxbridge and Rickmansworth K W. Co., 24 Ch. D., 720.
Bruce, Q. C, for the plaintiff. Miss Hill was not in-
terested in the land, but only in the money, and if she
got her money back which she advanced, the company,
represented by Buchan and Ridout, would be entitled to
any surplus. This appears clearly from the mortgage to
Buchan and Ridout. It is clear that Miss Hill from the
inception of the matter, was trusting in the Canada
Agency Association, and it is nearly thirty years ago.
Upon this point, I refer to Loi^d Braybrohe v. Inakip, 8
Ves. at p. 432. Miss Hill never became cestui que trust
as to the land. We rely on the provisions of the Act
as to payment of money on mortgages, R.S.O. 1887, ch. 102,
uec. 15. [Ferguson, J. — The most that can be said is,
that Miss Hill in equity had an incumbrance on the
land, and that is not a matter of title but of convey-
ance.] Yes. See OraJiam v. Stephens, 27 Qr. 434, per
Blake, V. C. We also refer to R. S. O., 1887, cL 110,
sec. 8, as to the position of trustees and executors. The
release of the equity of redemption recites this mort-
gage and another mortgage. These lands were not con-
veyed to Ridout and Buchan as trustees for Miss Hill,
nor was the mortgage made to them as trustees for her
but for the Association. There was no privity between
Digitized byVjOOQlC
XIX.] MACKLIN V. BOWLING. 445
Ridout and Buchan and Miss Hill. I also object that ^8^™**^*-
these points have already been disposed of upon an ap-
peal from a certificate of the Master in September,
1888 ; Wyman v. Carter, L. R. 12 Eq. 309 ; Tomdin v.
Budd, L. R. 18 Eq. 368 ; Monro v. Taylor, 8 Ha. 51, S. C.
in App. 3 MacN. & G. 713 ; Carrodua v. Sharp, 20 Beav.
66 ; LoTig v. Collier, 4 Russ. 267.
Bicknell, in reply. My main point is, that the trustees
by taking a release, were in the same position as if they
had foreclosed and held it in trust.
May 12th, 1890. Ferguson, J. :—
The action is upon an agreement for the purchase and
sale of lot No. 372, on the east side of Valley street, in
J. C. Macklin's survey in the city of Hamilton. The
agreement bears date July 5th, 1877. The plaintiff was
the vendor and the defendant the purchaser.
The judgment pronounced at the trial is not before me,
but I am told, and no doubt such is the fact, that it was
a judgment for specific performance of this agreement if
the plaintiff could make a good title, with a reference to
the Master at Hamilton as to the title.
The learned Master has reported that a good title can
be made to the lands in question, having regard to the
terms of the agreement.
I do not see anything in the agreement as set forth in
the pleadings, having the effect of compelling the defen-
dant to take anything less than a good title.
The learned Master has also reported that it was first
shown that a good title could be made on or about the -21 st
day of June, 1888-
The report also finds the amount to be paid by the
defendant, and besides contains many special findings
reported apparently at the instance of the plaintiff's
solicitor.
The case was before me on a former appeal, (which was
from a certificate of the local master), on the 20th day of
Digitized byVjOOQlC
444 THE ONTARIO REPORTS. [VOI*.
Judgment. September, 1888. The order drawn up upon that appeal,
Ferguson^ J. appears to be misleading. I find by my notes of the case
and a short memorandum of the conclusion at which I
arrived, that the whole of the then contention was in
respect of a ground of appeal thus stated in the notice of
appeal : " The recital of the seizure in fee, is not such a
recital of fact or matter as to justify the plaintiff in refus-
ing to abstract the earlier title."
My opinion was against the appellant upon this ground,
and I think this was substantially all that was really de-
termined. Owing to what passed between counsel, the
other grounds of appeal were not really argued or con-
sidered or determined upon. At all events, this is my
recollection and belief after a perusal of my notes, &c
The notice of the present appeal states many grounds of
appeal. Counsel for the appellant, however, said that his
main objection to the title was that there is an existing
trust of this land in favour of one, the Hon. Emily Noell
Hill, and that a sale and conveyance, of the land forming
a link in the chain of the plaintifi'^s, (the vendor's) title
was vdthout the consent of this ceatwi que trust, and with-
out any power of sale.
The respondent's counsel said that, should my opinion
be against his client on this subject^ he asked a reference
back to the Master for the pui-pose of showing that all
claims of this cestui que trust, the Hon. Emily Noell Hill
were long since satisfied, and that she really had not at
the time of the sale referred to, and has not now any
claim or demand whatever in regard to the subject matter,
saying also that this was the more important to his client
the plaintiff, because many other parcels of land were in
the same or much the same position with regard to title.
There was contention as to the meaning of certain Acts
of the Legislature — ^namely, 32 Vict. ch. 62, sec. 5, (O.), and
36 Vict ch. 121, sec. 5, (O.), which contention, in certain
events, it might become unnecessary to determine upon or
decide ; and^for these reasons it will, I think, be conven-
ient to consider, first, this matter of the alleged trust.
Digitized byVjOOQlC
XIX] MACKLIN V. DOWLING. 446
The land in question is a small portion of a very large Jndgment.
quantity of land embraced in a mortgage from the late Fergoson, J.
Hon. Malcolm Cameron and wife, to the late Thomas Qibbs
Ridout and David Bachan, trustees appointed by the
directors of the Canada Agency Association, limited. This
mortgage bears date the 4th day of May, 1861, and is or
was to secure the sum of $7,430, with interest, at the rate
of eight per cent, per annum, payable half yearly in ad-
vance. The principal money was according to the terms
of the mortgage, payable on the 1st day of April, 1866.
The mortgage recites the incorporation of this Association
and the purposes thereof, in a general way, stating that
these or some of them were, with a view to the promotion
of emigration and the investment of moneys in Canada,
and for the transaction of all kinds of agency business
between Canada and the United Kingdom.
It also recites that the Hon Emily Noell Hill of the
county of Salop, England, (thereinafter called the lender)
through the Association as her agents, had agreed to ad-
vance to the mortgagor this sum of $7,430, upon the
security of the lands described in the mortgage, and upon
the terms therein set forth.
It recites also an agreement between the Association
and the lender, that the Association should guarantee and
become liable to the lender in the city of London in Eng-
gland, for the payment of interest half yearly, at the rate
of seven per cent per annum, on the sterling money
advanced by her equal in value to the said sum of $7,430 ;
and that in consideration thereof the Association should
recover for their own use, all interest secured by the mort-
gage over and above this seven per cent, per annum ; and
that the security for " the said money so invested," should
be taken to and vested in trustees as in the mortgage,
appears instead of in the lender.
This mortgage money, as before stated, fell due on the
Ist day of April, 1866. On the 23rd day of January, 1869,
32 Vict. ch. 62, sec 5 (0.), was passed. The section provides
as follows : ^ All lands, mortgages, securities, leases, bonds.
Digitized byVjOOQlC
446 THE ONTARIO REPOBTS. [VOL
Judgment, or other instruments held by or in the name or names of
Fei^QMii, J. the trustee or trustees of the Canada Agency Association
(Limited), or of the Colonial Securities Company (Limited)^
respectively, shall be deemed and taken to be vested in
the Colonial Securities Company (Limited), so that the
same may be sold, assigned, conveyed, collected, realized,
dealt with, released or discharged by the Colonial Securities
Company (Limited) under the provisions of this Act," and
on the 23rd day of September, 1872, the mortgagor,
Malcolm Cameron, granted and released his equity of
redemption in these and other lands to the Colonial
Securities Company (Limited), the document reciting the
passing of the Act, and that by virtue thereof this company
became entitled to the mortgages mentioned in the docu-
ment of release, and to the rights, interests, and benefits of
Thomas Gibbs Ridout and David Buchan therein and
thereunder.
This document of release states on its face that it is in
full satisfaction and discharge of the mortgage moneys
secured by the two mortgages before mentioned in it (one
of them being this mortgage), but nevertheless so that the
grant and release should not operate by way of merger of
the mortgages, and in order that they might be deemed
and continue valid and existing securities as against other
incumbrances and claims, and also that these mortgages
had been assigned by deed intended to bear date and take
effect prior to the execution of the document of release to
Adam Crooks and Richard John Uniacke Chipman in trust
to attend the inheritance of and in the lands.
A copy of this assignment is produced. It bears date
the 20th day of September, 1872. On March 29th, 1873,
the oth section of 36 Vict. ch. 121 (0.), was passed. The
provision is : " All lands, mortgages, securities, leases, bonds,
or other instruments held by or for the Colonial Securities
Company (Limited), or the Colonial Trusts Corporation
(Limited), respectively, shall be deemed and taken to be
vested in the Colonial Trusts Corporation (Limited), so that
the same may be sold, assigned, conveyed, collected, realized.
Digitized byVjOOQlC
XIX.] MACKLIN V. BOWLING. 447
dealt with, released or discharged by the Colonial Trusts Jndgment.
Corporation (Limited), under the provisions of this Act/* &e FergnBon, J.
On the 12th day of January, 1878, the Colonial Trusts
Corporation (Limited) by deed of bargain and sale con-
veyed or professed to convey the lands in question, amongst
other lands, to the plaintiff, the present vendor, his heirs
and assigns for the consideration of $5000.
It ^as contended that the earlier one of the statutes
above referred to is insufficient to operate the transfer
which it was admitted must have been intended by the
Legislature in passing the Act, and that neither of the
Acts could affect the rights or interests of the Hon. Emily
Noell Hill even to the extent of changing the trustees or
appointing new ti*ustees for her, the Acts being in the nature
of private Acts, and her name not being mentioned in them,
or either of them, and for this contention the 31st clause of
section 6 of 31 Vict. ch. I , (0)., was relied upon. In Re
Goodhue, 19 Gr. 366, was also referred to in this contention.
The mortgage for $7430 embracing this land was beyond
all question a mortgage in trust for the Hon. Emily Noell
Hill. It matters not, I think, for the purposes of the
rights under such trust, that it was, or may have been, to a
small extent, in trust for another or others. She was
confessedly the lender, the one who through her agents
advanced the mortgage money, this large sum, and she was
in equity substantially the owner of the mortgage. If
there had been no change of trustees at all, and the mort-
gagor had, instead of paying the mortgage money according
to the provisions in that behalf in the mortgage conveyed
the equity of redemption in the land to the trustees, the
cestui que trust might of course complain of the act of her
trustees in taking a conveyance of the equity of redemp-
tion instead of pursuing the well known remedies upon
the mortgage, but if she chose to adopt the transaction
made by the trustees in taking the conveyance of the
equity the land would then belong in equity to her. It
would stand instead of (he mortgage, and all the rights
57 — VOL. XIX. o.B.
Digitized by VjOOQIC
448 THE ONTARIO BEP0KT8. [VOI-
Judgment, and remedies upon or in respect of it as the consideration
FerguBon, J. to her for the money that she had advanced.
If the conveyance of the equity of redemption were
taken in a manner so as to prevent a merger, she would in
equity be the owner of the mortgage and also of the equity
of redemption ; and I do not perceive any difference in
this respect that could have been occasioned by a change
of trustees, assuming that there was a change or changes
that was or were valid and binding upon her. This is,
however, assuming that there was no settlement or pay-
ment, or satisfaction of her claim in respect of the mort-
gage money by her agents or trustees, and it is not at
present known how this is.
The trust in her favour is an express trust The Statute
of Limitations did not run against her. Assuming the
enactments that have been referred to have all the force
contended for by the plaintiff, they could not have, nor
could they have been intended to have the effect of oper-
ating the destruction of the rights of the cestui que trust,
whose claim and right, assuming it to be still existing, is
not confined to the mortgage money and the interest
thereon. She would, in such case, be in equity entitled,
adopting the transaction of her trustees in taking the
release, to the land, or to the mortgage plus the equity of
redemption in case there was no merger.
In any view that I am able to take of this matter, there
is, if Miss Hill's claim has not been satisfied, an equitable
interest outstanding in her which is not necessarily a mat-
ter of encumbrance or conveyancing, but a matter of title,
as such being an equitable right to the land itself or to the
mortgage, plus the equity of redemption, as the case may
be.
As I understand the matter, I think a good title has not
been shown, and in saying this, I confine my remarks to
the one matter — namely, this equitable interest or estate
outstanding in Miss Hill if her claim has not been satis-
fied in some way.
It is, therefore, I think, all important that it should be
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XIX.] MACKUN V. BOWLING. 449
made to appear whether or not there has been a satisfac- Judgment,
tion of her claim or right; and as counsel for the plaintiff Ferguson, J.
asked a reference back to the Master for the purpose of
showing how this matter is, if I should be of this opinion,
I think there should be such reference back for that pur-
pose.
The matter is very old indeed, and possibly, nay pro-
bably, Miss Hill's claim was long ago fully satisfied, and
should this turn out to be so, some, if not many of the
other questions that were raised* may dissolve and vanish
without further contention or trouble. It will be borne in
mind that I decide but the one thing, and order the refer-
ence back above mentioned.
As 'to the costs. The appellant is an unwilling pur-
•ehaser, confessedly making all the trouble as to the title
that he possibly can. This, of course, he has the right to
do. The costs will be reserved to be disposed of after
a further report, when the whole of the facts will, I hope,
appear.
Under the circumstances, I need, of course, say nothing
as to the motion on further directions.
Order accordingly.
A* H. F. L,
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450 THE ONTARIO REPORTS. [vOL.
[CHANCERY DIVISION.]
The Canadian Bank of Commeroe v. George Marks
ET AL.
Partnertihip— Change offirm'-Novaiion — Privity.
A certain firm waa indebted to the plaintifiGk Another firm, bearing the
same name, bat composed of different individaals, assumed itsliabikties^
as between itself and the former firm, and contioued the baafneafl, and
made certain payments to the j^laintifGi, and also asked for time to ]^y
the balance. There was no evidence of any assets of the first firm beiDg
taken over by the second.
Held, that the above was not sufficient to create a new obligation as be-
tween the plaintifb and the new firm.
Benderaon v. Killey, 14 0. R. 149, and in appeal before the Sapreme
Court, unreported, cited and relied on.
Statement. xhis Was an action brought by the Canadian Bank of
Commerce against George Marks and James B. Dobie, for-
merly trading under the name of Marks,' Dobie & Co. ;
Samuel Marks, and James B. Dobie, trading under the
name of Marks^ Dobie & Co. ; John S. Playfair, and St
Clair Balfour, in reference to the balance due in respect of
certain promissory notes under circumstances thus set oat
in the statement of claim : that the promissory notes in
question were made by the defendants George Marks and
James B. Dobie, when they were carrying on business as
Marks, Dobie &d Co. : that after the plaintiflfe became the
holders of the notes, George Marks retired from the said
firm of Marks, Dobie & Co., and the defendants Samuel
Marks and James B. Dobie, thereafter continued in busi-
ness under the same firm name, and took over the assets
and assumed the liabilities thereof, and agreed to indemmfy
George Marks therefrom: that in July, 1889, Samud
Marks and James B. Dobie, trading as aforesaid, made an
assignment of all their estate and effects for the benefit of
their creditors to the defendant Balfour: that in the
same month George Marks made an assignment of all his
estate and efiects for the benefit of his creditor to Play-
fair : that Balfour disputed the right of the plaintiffs to
rank on the estate of Marks, Dobie & Co., in his hands, in
Digitized byVjOOQlC
XIX.] CANADIAN BANK OF COMMEBCE V. MARKS. 451
respect of their claim in this action, and Playfair disputed Statement.
their right to rank on the estate of George Marks ; and the
pliuntiffs claimed judgment against George Marks, Samuel
Marks, and James B. Dobie for the balance due in respect
of the notes, and a declaration that they were entitled to
rank on the estates of Marks, Dobie & Co. and Greorge
Marks, for the amount of their claim,
The remcdning facts of the case and the evidence ad-
duced, so far as is necessary to the present report, are set
out in the judgment of Botd, C.
The action came on for trial at Toronto, on April 28th,
1890, before Boyd, C.
IT. (TosseZs, Q. C, for the plaintiffs.
Laidlaw, Q. C, for the defendant Playfair.
/. J. Scott, for the defendant Balfour.
The following cases were referred to on the argument :
K. S. 0. 1887, ch. 124, sec. 5 ; Rolfe v. Flomr, L. R. 1 P. C.
27 ; landley on Partnership, 5th ed., p. 208 ; H&nd&raon ▼.
KiUey, 14 O. R 149, and in Supreme Court, not yet report*
ed ; Daniel v. Oro88, 8 Ves. 277 ; Ex parte Parker, 2 M. D.
& D. 511.
June 4th, 1890. Boyd, 0. :—
The plaintiffs are creditors of Marks, Dobie & Co., i. e.,
the first partnership of which George Marks was a mem-
ber. They still remain creditors of his firm, and assert
this to be their position both by pleadings and evidence.
In course of time a new partnership was formed, under the
same name, in which Samuel Marks took the place of
George who retired. This second firm was, by arrange-
ment, in the articles of partnership, to pay the debts of
the first partnership, which would include the plaintiffs'
ddm. There is no evidence as to there being any assets
of the first firm taken over by the second, and no evidence
Digitized byVjOOQlC
452 THS ONTABIO BBPOBTS. [TOL.
Jndgment. of any direct assumption of liability on the part of the
Boyd, C. second firm in dealing with the pUuntiflb. The only evi-
dence bearing this way is that of certain payments being
made by the second firm to the bank, in respect of the
existing liabilities of the first firm. I cannot find evidence
sufficient to create a new obligation as between the plaintifis
and the second firm ; any payments made being explicable
by the 'internal arrangement existing between the two
partnerships, and not as the result of direct privity of
obligation between the second firm and the plaintifik In
the same way the correspondence asking for time, pro-
bably arose from a mistake of law on the part of the
second firm, and is not enough to create a new contract for
valuable consideration to pay to the plaintifis as creditors.
The whole dealing is properly referable to the obligation
which the second firm had with the first, i. e., to indenmify
them against the debt. This element of asking time
existed in Henderson v. KiUey, 14 O. R 149, 152, and was
there thought sufficient to give a new right of action, but
this view was overruled by the Supreme CJourt — ^though I
have searched the reports and legal periodicals in vain to
find any record or even hint of this final dedsion.
This case is not one of continuation of business with
the new firm by which a series of transactions becomes
common, as it were, to both concerns. In such inter-
weaving of business dealings, but slight evidence is needed
to show a substitution of debtors. Here, however, the
transaction is single, ending with the old firm. The inter-
course between the new firm and the bank is merely in
the way of reducing that undertaking or obligation which
the new concern had assumed as between themselves and
the former partnership. The statement of law applicable
to the position of the parties, appears to be more clearly
enunciated by Lord Selbome, in Scarf v. Jardine, 7 App.
Caa 351-2, than in any other decision I have seen.
The action fails, and should be dismissed vrith costs to
the assignees for creditors.
A. H. F. L.
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XIX.] CITY OF KINQSTOK Y. CANADA LIFE ASSURANCE C0« 453
[CHANCERY DIVISION.]
The Corporation of the City of Einqston y. The
Canada Life Assurance Company.
Aaaesnnent and iaxeg—Life Ineurance Oompany^Head officA and branch
office— Meaning of ''branch" or *' place of bwnneu''' in Aiteeament
Act — Asaeaament of income at branch office — " Pereonal property " —
B. S, 0. 1887, eh. 19S, aec. ty wb-^ec. 10, eeca, 34-85,
The defendants were a life insurance company with their head office at H. ,
in this Provinoe, and transacted business by agents in K., who received
applications for insurances which they forwarded to the head office,
m>m which all policies issaed ready for delivenr, the premiums on the
same also being collected by the agents in K. In an action by the
corporation of the city of K.yto recover taxes, assessed against the
defendants on income, it was contended that the defendants' only place
of business was in H. and that their business was of such a nature that
they could not be assessed at K., and that they had elected under
R. S. O. 1887, ch. 193, sec 35, sub sea 2 to be assessed at H. on their
whole income.
Heldj reversing the decision of Ferguson, J., 18 0. R. 18, that the
afiency at K. was not a branch business within the meaning of sec. 35
above referred to, and that the premiums received year by year at K.
were not assessable there.
The ultimate profit represents the year's taxable income under the statute,
but this could only oe ascertained by placing the sum total of gains and
losses against each other, together with the result of the volume of
business done at the head-office, and no distinct integral part of this
hicome was referable to the K. agency.
Sembie, also, that notwithstanding sub-sec. 10 of sec. 2, *' personal
property " in sections 35 and 36 of the above Act is intended to cover
only something readily and specifically ascertainable, and "income"
an intangible and invidble entity is not to be read into these provisions
of the Act.
Lawless v. SuRivan, 6 App. Cas. 373, specially referred to.
This was a motion made to the Divisional Court by way statement,
of appeal from the judgment of Ferguson, J., reported
18 O. R 18, where the circumstances are fully set out.
The motion came on for argument before Boyd, C, and
Robertson, J., on December 11th and 12th, 1889.
McCarthy, Q. C, for the defendants. The defendant
company never had a place of business at Kingston. They
had an agent who solicited business, and received applica-
tions for insurance on life. He received the first premium
only and forwarded applications to Hamilton. See Assess-
Digitized byVjOOQlC
454 THE ONTARIO REPORTS. [VOL.
Argument ment Act, R. S. O. 1887, ch. 193, sec. 2, sub-sees. 10,7,
sees. 21-3, 34, 35, sub-sec. 2. The company elected to be
assessed at Hamilton, and a certificate to that effect was
produced to the authorities at Kingston. The company's
head office is at Hamilton, and they have not more than
one place of business. No income in any way belongs to
the Kingston office. There are 260 agencies of the company,
and that at Kingston could not be separated so as to ascer-
tain the income from that office. The profits which are the
net income, are arrived at by deducting the payments
made and the sums to be retained for liabilities. Income is
indivisible and appertains to the head-office only. Again,
gross receipts are not assessable as income : OUheii^aon v.
Fergtiason, 7 Q. B. D. 562, 570 ; Lawless v. SvUivan, 6
App, Cas. 373 ; Maxwell on Statutes, 2nd ed., pp. 67, 74.
''Branch" and "place of business," are interchangeable
expressions, and the part must be complete in respect to
the transaction of business though subordinate : Werle A
Go. V. Colquhoun, 20 Q. B. D. 753, 761. The learned Judge
attributed more force to the schedules of forms to the
Assessment Act, than to sec. 31. Sec. 64, sub-sec. 14, has
not any enlai^ng effect by proper construction. " Gross'*
in Schedules D., E., and Q, means ** aggregate." The
schedules cannot enlarge the words of the statute : Law-
less V. Sullivan, 6 App. Cas. 878 ; Le TaiUear v. South
East&rn R W. Co., 3 C. P. D. 18 ; Last v. London Assur-
ance Corporation, 10 App. Cas. 438 ; New York Life Ins.
Co. V. Styles, 61 L. T. N. S. 201; Attorney 'General v.
Alexander, L. R. 10 Ex. 20.
Bruce, Q. C, on the same side. There are important
differences between Fire and Life Insurance business :
Last V. London Assurance Corporation, 12 Q. B. P. 889 ;
The Corporation of the City of Bran^tford v. 0%itario In^
vestment Co., 15 A. R. 605. We are assessed for our whole
income at Hamilton, {. e., the amount that comes to the
shareholders. By 12 Vict. ch. 168, our Act of incorpara-
tion, our head-office is fixed at Hamilton. As to sec.
35, sub-sec 2, it only applies to tangible property. In
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Xn.] CITY OF KINGSTON V. CANADA LIFE ASSURANCE CO. 455
addition to the (^es already cited, I refer to The Mersey ^e^"^^^^-
Docks and Harbour Board v. Liicas, 8 App. Cas. 891 ;
Begma v. The Commissioners of the Port of South'-
ampUm, L. R. 4 H. L. Cas. 449 ; NieUe v. Douglas, 35
U. C. R 126 ; 37 XT. G R 51 ; The Cessna Sulphur Co.
V. Nicholson, 1 Ex. D. 428, 445 ; Ex parte Charles, L. R
13 Eq. 638 ; AUorney-Oenei^ v. SuiUy, 4 K & N. 769,
^ H. & N. 711 ; AngeU and Ames on Corporations, 10th
-ed., sec. 107.
WaUcem, Q. C, for the plaintiffs. The only material
•question is, whether. there is at Kingston a branch of the
'defendants' business or not. All other questions belong to
the Court of Revision and the County Judge : The Cor-
poration of iJie^ City of Brantford v. Ontario Investmefni
Co., 15 A. R 606 ; London Mutual Ins. Co. v. City of Lon^
don, ib., 629 ; Canadiam, Land and Emigration Co. y.
The Municipality of Dysart et al., 9 O. R 495, 12 A.
R 80. The defendants are clearly assessable on the
whole of the profits they have made, whether payable
to policy holders or shareholders. Here the company
only pays on the share of the profits, which goes to
the shareholders. The business at Kingston is a branch
business : WerleA Co. v. Colquhoun, 20 Q. B. D. 753. Sec.
41 of the Assessment Act gives the right to assess the
-defendants as trustees for the policy holders, (and not
merely debtors) to the extent of 90 per cent, of the profits
which go to the policy holders at Kingston.
La/ngton, on the same side. It is certain that the pub-
lic who wish to deal with the company, can do all that
is needed to be done by them at Kingston. R S. 0. 1887,
di. 193, sec. 31 justifies taxing personal property, less the
expense of earning it, and tiie money received by the
agents at different places, less the expense of earning it at
each place, is what should be assessed. Sec. 64, sub-sec.
14, explains sec. 31. The premiums belong to the com-
pany as their property and are to be assessed less the
'expense of getting them in. The payments out for
demhh are in the nature of debts paid, and should not
58 — VOL. XIX. O.K.
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456 THE ONTABIO BEPORia [VOL.
Argument, be first deducted Lawleaa' Case 1% that of a bank, and
is therefore distinguishable. It proceeds'upon a statute
where income is defined as annual profits. What we seek
to tax is not profits. Sec 131 of R S. 0. 1887, ch. 193,
is the section under which the action is brought. I refer
also to Cooley on Taxation, 2nd ed., pp. 221, 386.
Brace, in reply. We are not assessed at Kingston on
*' personal propertjr" at all, but on " income" as appears by
the Assessment Roll. We say '' income" is that which is
owned by the shareholders, or that which comes to thei»
only, and not to the company. See Harrison's Municipat
Manual, notes to sees. 34, 35. Income is defined by Law-
less V. Sullivan, 6 App. Cas. 373 ; see LoTidon MvHfd
Ina. Co. V. City of London, 16 A. R. at p. 636. The right of
election is with the party assessed and not with the muni-
cipality. The company had no office of their own at King-
ston. It was in some other person's place, for which the
company paid no rent, and where they had no personal*
property. '* Income" must depend on the results of the
business of the whole company* every where, and cannot
be apportioned to branches. Sec. 7, sub-sec. 15 shews that
personal property is distinguished from " income" that is
subject to assessment.
June 9th, 1890. Boyd, C. :—
My brother Ferguson has come to the condaaion that
the amount of premiums received yearly at Kingston in the
agency office there of the defendants was assessable at tbat-
place as '' gross" income. This question, I incline to think,
is at the bottom of the litigation before us, and the solu-
tion of what is meant by " income," will go far to solve the
whole matter in controversy. The provisions of the
Assessment Act as to the taxation of corporations, are
very meagre, and consist of a short section of the statate^
R S. 0. 1887, ch, 193, sec. 34, whereby they are put on the
footing of unincorporated partnerships. The matter of th^
taxation of corporations has received and is receiving ▼^
Digitized byVjOOQlC
XIX] Cmr OF KINGSTON y. CANADA LIFX ASSURANCE CO. 45T
special attention in the different States of the adjoining ^'udgment.
Republic, and in many of them the system of levying taxes Boyd, c.
on gross receipts for premiums, and other like sources of in-
come has been adopted. Our statute does not make any
plain distinction 'between income tax properly so called
and a rate levied upon personal property — though these
are becoming broadly contrasted by social economists.
The assessments here imposed were, in respect of *' income"
only, and not in respect of personal property, or of income
and personal property. The distinction is, I think, mate-
rial in view of the application of the statute as it is framed.
"Income" is not perhaps the most appropriate word to
use with reference to corporations, but being used for con-
venience or for comprehensiveness, it must receive the
meaning which " income" has in connection with individu-
als or partnerships. Whatever difficulty one might have
in arriving at a conclusion as to this word in its statutory
signification, has been obviated by the judgment of the
Privy Council in Lawless v. SuUivom, 6 App. Cas. 373, which
was upon a fiscal statute using very much the same collo-
cation of words as are found in the Ontario Assessment
Act. Sir M. E. Smith, who read the judgment, said, at p.
378: ''There can be no doubt that in the natural and ordinary
meaning of language, the income of a bank or trade for
any given year, would be understood to be the gain, if any,
resulting from the balance of the profits and losses of
the business in that year. That alone is the income
which a commercial business produces, and the proprietor
can receive from it." He then considers the context of
the Act — ^refers to the use of such words as "net profits,"
suggesting that " income" was to be distinguished from
net profits; and, also, "the whole amount of i]!come,"
which it appears, was an expression that guided the Courts
below (See SvMvan v. Bobvnson, 1 P. & B. 431 ; Ecc
parte Lawless, 2 P. & 6. 520, and Lawless v. Sullivan,
3 S. C. B. 117), and comes to the conclusion that these
considerations have not *' sufficient cogency to justify an
interpretation being given to the word " income," as ap-
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458 THE ONTARIO BEFORTS. [VOLi.
Judgment, plied to a Commercial business, other than which it
Boyd, 0. naturally bears," at p. 382. The judgment then is defini-
tively and conclusively upon this point, that "income,"
as commercially used, means the balance of gain over loss
in the fiscal year or other period of computation. Now
there is no context in the Assessment Act of more con-
trolling force than the expressions "net profit" and the
" whole amount of income." The epithet " gross," refer-
red to, and emphasized by my brother Fei^^on in sec. 31,
and in some of the schedules to the Act, is, in one of its
common meanings, synonymous with " whole" or ** total"
The term "net," is used in connection with personal
property in the same section. But I see nothing to de-
ti*act from the ordinary commercial meaning attributable
to the word " income," as defined by the highest appellate
tribunal of this country.
This item of assessment being ascertained, I think it is
obvious that the business of the company wad so con-
ducted that no distinct integral part of income is refer-
rable to the Kingston agency. There may be loss or
extreme outlay at one agency — there may be nothing
but gain at another — ^but it is the sum total of their gains
and losses placed against each other, together with the
result of the volume of business done at the head oflioe,
which will show whether there has been profit or not at
the end of the year's transactions. The ultimate profit
(if any) represents the year's taxable " income," as I
understand the statute , read by the light of the decision
in Lawless v. SvUvvari. See also RuBsell v. Tovm and
Comity Bank, 13 App. Cas. 421 and 429.
Now, "income" is ascertained at the head office, and it
is not 'in the ordinary course of business fibfterwards
apportioned so much to each agency ; nor do I think the
statute contemplates this — a thing practically impossible
for the company to do, and utterly impossible for the
assessor to verify.
I have assumed that the business of a life insurance
company can be so adjusted that each year will repre-
Digitized byVjOOQlC
xra.] crrr of Kingston v. Canada life assurance co. 459'
sent its own aimtial income. This was for the purpose Judgment.
of presenting this issue in its simplest form. It may Boyd, C.
'well be however that no reasonable or even approximately
accurate ascertainment of yearly profits can be reached
unless upon a system of averages which would cover a quin-
qnennial or lesser period. With this, however, I am not
at present concerned. I only advert to it to indicate
what di£Sculties may arise in assessing such companies
as individuals on the footing of " income" as such. Pro-
Itably this is one reason why the taxation in several of
the American States is upon the gross receipts of trading
or business corporations in which the totals are readily
ascertainable, and the facility of minimising results, doe.s
not obtain, as in the case of net revenue.
These considerations go far to solve the next point t^>
be dealt with — namely, whether this Kingston agencj-
was a branch business within the meaning of the 35tli
section. The question is, whether Kingston was a branch
at which any sum arbitrary or otherwise could be assessed
as *' income." In my opinion it was not. Sec. 35, sub-
sec. 2, contemplates the case of a partnership having two
places of business in different localities, which may be
spoken of as " branches" inter se, and with personal pro-
perty belonging to each branch. The section is in pari
materid with that which follows, section 86, as to an indi-
vidual carrying on two places of business in different
municipalities; and it refers to the personal propei*ty
connected with the business carried on at each place.
The " branch" analogy does not well apply to the busi-
ness of a corporation like this with head-office fixed by
statute at Hamilton, at which point in fact all business is
passed upon, regulated and controlled. The different local
agencies, like Kingston, to send in applications for insur-
ance, and to collect premiums to be remitted to the central
office, may be " feeders" to the great trunk, but with such
slight organization can hardly be regarded as *' branches''
of the concern. As said by Blackburn, J., in Be Brown v.
London and North Western R. W. Co., 4 B. & S. S26 :
Digitized byVjOOQlC
460 THE ONTARIO BEPORTS. [VOL
Judgment. « Generally speaking, a man carries on his entire business
Boyd, 0. where the general superintendence of it is," at p. 335.
There is a clause in the Compiled Laws of 1871, for the
State of Michigan, ch. 21, sec 978, very much the same as
that I am now dealing with. It reads: "Partners in
mercantile or oj^her business, whether residing in the same
or different townships, may be jointly tweed under the
partnership name in the township where their business is
carried on, for all the personal property employed in such
business ; and if they have places of business in two or more
townships, they shall be taxed in those townships for the
proportion of property employed in such townships respec-
tively. The meaning of this legislation is thus defined in
Putman v. The Township of Fife Lake, 45 Mich. 125: "In
making the property taxable away from the owner's resi-
dence, as belonging to an independent enterprise having a
local centre, the law refers to an actual business seat or
•establishment capable of being contemplated as a local con-
cern possessing an identity of its own. It was not intended
to include the numberless activities and operations con-
stantly going on in all directions, and which lack this local
fixed and individual character. To have done so, would
have resulted in unparalleled confusion." This exposition
of the law was acted on as correct in a later case : McCoy v.
Ander807i, 47 Mich. 502, 504, and was recognized as correct
by the Legislature by the subsequent extension of the law
in 1882, as pointed out in Hood v. JiidJcins, 61 Mich, at p.
580, (1886.)
Regarding the meaning of the words " personal pro-
perty," in sees. 35 and 36, I am of opinion that the con-
text shews that something readily and specifically ascer-
tainable is intended. Property is contemplated that has a
visible status " belonging to" or " or connected with" the
particular business; and "income," an intangible and
invisible entity, is not to be read into these provisions of
the Act. '* Personal property," by the interpretation
clause, is not to have this comprehensive and inclusive
ineaning in case a contrary intention appears. To my
Digitized byVjOOQlC
iXIX.] CITT OF KINGSTON V. CANADA LIFE ASSURANCE CO. 461
mind the argument ab mconvenienti applies cogently to Jn<igment.
excinde " income" as an item of " personal property" to i%d7c.
be assessed at a '' branch" which is entirely in subordina-
tion to the principal seat of business.
For these reasons, I have reached the conclusion that
there is no valid claim, and that the action should be dis-
missed with costs.
RoBEBTSON, J., concurred.
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462 THE ONTABIO BEPORTa [vOL.
[QUEEN'S BENCH DIVISION.]
Western Assurance Company v. Ontario Coal
Company.
Insurance, Marine — General average contribution — Attempt to rescue veMtT
and cargo — Common danger— Average bond — Ac^ustment — Bxpendi^
ture — Liability of owners of cargo,
A yessel loaded with coal stranded under streBS of weather, and wa»
abandoned as a total loss to the underwriters, the plaintifis. The
owners of the cai^o, the defendants, proposed to unload at their own
expense, but the plaintiffs refused to permit this and would not allow
the defendants to get the cargo without signing an average bond.
Upon this the defendants signed a bondfwhioh was ex fade imperfectr
and the plaintiffs took steps to save vessel and cargo by one expedition.
They failed to rescue the vessel, but saved the larger part of the cargo.
They now claimed upon adjustment contribution from the defendants
for the expenditure incurred, whi^h was in excess of the value of the
salvaffe : —
Heldy that the vessel and her cargo were not when stranded in a common
danger, and the expenditure was not for the preservation and safety of
both ship and carso, but for the deliverance of the vessel alone ; that
the average bond ^signed did not bind the defendants to pay more
than they were rightfully liable to pay, and the adjustment was no*
obstacle to the determination of the real liability ; and that the defend-
ants were liable only to pay what they would have paid to recover the
cai^o by their own exertions.
Statement THIS was an action to recover the sum of $2,314.45 as
the defendants* contribution to an expenditure of $2,551.98r
made by the plaintifis in endeavouring to save the schooner
" Okniffer" which was stranded in the Humber bay, a few
miles from Toronto, on the 27th November, 1889, and her
cargo of coal.
The plaintiffs were the underwriters of the vessel, which
was abandoned to them, and the defendants were the
owners of the cargo.
Under the circumstances set out in the judgment, an
average bond was signed by the managing director of the
plaintiffs on their behalf, and by the treasurer of the de-
fendants on their behalf, in the following terms : —
"Whereas the schooner Qlenifei\ whereof Captain Robert-
son is master, having on board a cargo of coal, sailed from
the port of Oswego on or about the 23rd day of November,
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XIX.] WiSTERN ASSURANCE CO. V. ONTARIO COAL CO. 463
1889, bound for Toronto, and in the prosecution of her said Statement.
voyage " (here followed a blank) " by which means certain
losses and expenses have been incurred, and other expenses
hereafter may be incurred in consequence thereof, which
(accordin/sr to the usage of this port) constitute a general
average, to be apportioned on said vessel, her earnings as
freight, and the cargo on board : Now we, the subscribers
* * do hereby * * covenant and agree to and with
each other * * that the loss and damage aforesaid,
and such other incidental expenses therein as shall be made
to appear to be due from us * * shall be paid by us
respectively according to our parts or shares in the said
vessel, her earnings as freight, and her said cargo, or our
interest therein, or responsibility therefor, and that such
losses and expenses be stated and apportioned in accord-
ance with the established usage and laws of this Province
in similar cases, by Captain Robert Thomas, adjuster of
marine losses * * "
The plaintiffs did not succeed in rescuing the vessel, but
saved the greater part of the cargo.
The adjuster named in the bond apportioned $2,314.45
of the $2,551.98 expended, to the defendants, and $237.53
to the plaintiffs.
By the statement of defence the defendants set up, inter
alia, that there was no voluntary sacrifice of anything con-
stituting a claim for general average, but that, on the
contrary, the total loss of the vessel happened through
stress of weather, and there was no voluntary abandon-
ment of anything for the safety of the rest, and no claim
for general average; that the only sum which the plaintiffs
were entitled to recover from the defendants was the
freight which they were bound to pay to the owners upon
the delivery of the coal at the docks of the defendants ;
that the cargo of coal could have been unloaded by the
defendants themselves, and would have been so unloaded
but for the interference of the plaintiffs, and the coal de-
livered on the defendants' docks for the sum of 75 cents
per ton, and that $578.98 was more than sufficient to pay
59— VOL. XIX. O.R.
Digitized byVjOOQlC
464 THE ONTARIO REPORTS. [VOU
Statement, foj. the cost of unloading and delivering the coal ; and
while not admitting any liability to the plaintiffs, they
brought into Court the sum of $578.98 in full satisfaction
for any claim for freight or otherwise that the plaintiffs
might have against the defendants.
The action was tried before BoYD, C, at Toronto, on the
20th May, 1890.
The facts which appeared at the trial are set out in the
judgment
The case was argued at the conclusion of the evidence.
Osier, Q. C, for the plaintiffs. The defendants entered
into the average bond and so approved of what was done ;
the bond admits that it is a case of general average ; but
apart from the bond this is a case of average. The defen-
dants consented to the saving of the vessel and cargo as a
whole, and cannot say now that they could &ave saved
the cargo at a cheaper rate. Besides, the defendants had
no right to remove the coal if there was the slightest chance
of saving the vessel. The average bond is equivalent to a
submission to Captain Thomas ; and he having made an
adjustment, it is binding on the defendants. I refer to
BirkUy v. Presgrave, 1 East 220 ; Lowndes on General
Average, 4th ed., pp. 21, 22, 23; McArthur on Marine
Insurance,- (1886) p. 162 ; International Wrecking Go. v.
Lobb, 11 O. R. 408.
Delamere, Q. C, (with him T. Urquhart,) for the defen-
dants. The bond does not agree that there is any such
state of facts as indicates a right to general average. The
bond says that whatever is due for general average we will
pay. But this is not a case of general average, and noth-
ing is due. After abandonment to the underwriters, no
question of general average arises. The freight is gone
after abandonment by captain and crew ; the salvage may
arise afterwards. I refer to The " Cito" 7 P. D. 5, at p. 8.
General average is on the whole venture, but must include
freight, cargo, and hull, and if freight is gone, it cannot
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XIX.] WESTERN ASSURANCE CO. V. ONTARIO COAL CO. 465
attach. The cargo cannot be required to pay a larger sum Argument.
than would have been the cost of saving it separately. I
refer to Lowndes on General Average, 4th ed., pp. 148, 152,
160, 162 ; Kemp v. Hcdliday, 6 B. & S. 723, 748. Expen-
sive machinery was brought there only to save the vessel
and not the cargo. The plaintiffs had no right to stop the
defendants getting out the cargo. The plaintiffs have no
rights as salvors. The abandonmezit here was more than
a matter of form. The policy provides that abandonment
must involve fifty per cent. loss. I refer to Oerowv, BHt-
isk America Asa. Co., 16 S. C. R. 524 The stranding here
was not voluntary, and the cargo is not liable : Dancey v.
Bums, 31 C. P. 313. Average cannot be allowed unless
with a view to carry on the voyage ; Grover v. Bullock,
6 U. C. R. 297 ; Job v. Langton, 6 E. & B. 779 ; Anderson .
V, Ocean Steamshvp Co,, 10 App. Cas. 107 ; Svensden v.
Wallace, 13 Q. B. D. 69 ; Royal Mail Steam Packet Co. v.
English Bank of Bio de Janevro, 19 Q. B. D. 362.
Oder, Q. C, in reply. Abandonment to underwriters is
subrogation, and does not make the vessel a derelict. This
is a case of the owner trying to bring a ship to her haven,
and there is no abandonment by which freight is lost. The
expedition was for the purpose of enabling the vessel to
complete her voyage. The bond is to be so read as to
include certain losses and expenses which it says constitute
''general average."
June 4, 1890. Boyd, il :—
The schooner " Gleniffer," loaded with hard coal, bound
to Toronto from Oswego, stranded near Mimico under
stress of weather, on 28th November, 1889. Next day the
vessel was abandoned as a total loss to the underwriters,
the plaintiffs, who had insured her to the extent of $5,000.
Next day the cargo-owners, (the defendants) made arrange-
ments to unload at their own expense, but the plaintiffs
refused to allow this to be done. The defendants were
informed that the plaintiffs (as subrogated to the. rights of
Digitized byVjOOQlC
466 THE ONTARIO REPORTS. [VQU
Judgment, the Owner) were taking steps to save vessel and cargo, by
Boyd, C. one expedition, as they thought that this was the more
advisable course. The defendants were told they could
not get the cargo without signing an average bond — ^that
if they did not sign, the coal would be sold to pay charges.
Upon this the bond dated 3rd December was signed. The
wrecking expedition brought by the plaintiffs from Port
Colborne — after some expensive work and delay from
rough weather — failed to rescue the vessel, but saved 678
tons of coal, (net) out of a total shipped of 656 (net). The
wrecking expenses exceed the value of the salvage, and
upon adjustment some $2,350 is claimed from the defen-
dants as their contribution.
The price of the coal was $3.39 a ton (net). The pro-
portional charges now claimed by the plaintiffs average a
fraction over $4 a ton, while the defendants prove that
if allowed to remove the cargo, it would have cost them
75 cents a ton to bring from Mimico to their dock. The
average bond signed is exfdde imperfect, and in my opin-
ion it cannot bind the defendants to pay more than they
are rightfully liable to pay in the premises.
The question thus presented does not appear to have
been decided. Though American authorities would sup-
port the plaintiffs' contention that the whole expense is
the subject of general average according to the adjustment
herein made; yet the indications of English law are
opposed to it.
The principle which governs this branch of law is
succinctly put by Hannen, J., in Waltheiv v. Mavrqjani,
L. R. 5 Ex. at p. 126 : " It is unjust that expenses incur-
red by the owner of the ship for the benefit of all should
be borne by him alone. ♦ ♦ ♦ Only expenses which
are incurred in the preservation of ship and cargo from a
common danger are included in general average." The
words " benefit " and " preservation" in this extract are to
be read as equivalent — the paramount point is that the
expenditure be for the safety or preservation of ship and
cargo from a common danger.
Digitized byVjOOQlC
XIX.] WESTERN ASSURANCE CO. V. ONTARIO COAL CO. 467
Another step is gained in the solution of this question by Judgment,
reference to the rule suggested by Brett, M. R, in Svensden Boyd, C.
V. WaUctce, 13 Q. B. D. 73 : " Every expense incurred [i. e.,
-extraordinary expense] for the preservation of ship and
caj^go comes within general average. Applying this rule
in its ordinary sense to each item successively claimed as
an item of expenditure in respect of which a general average
contribution in any given case is due, the question must
be : was this item of expenditure, at the moment it was
incurred, incurred for the safety of both ship and cargo ?*'
He then deals with the case of a ship putting into a port
of distress for repairs in consequence of damage done by
sea perils, and says : " When the ship and cargo are in the
port, both may still be in danger of destruction, or the
ship alone, or the cargo alone. (1) If both ship and cargo
are in danger, it is impossible to conceive, as a fact, that
anything which can substantially be called repairs can be
done to the ship whilst the cargo is in her. The cargo
must then be landed for the safety of both. (2) But the
■ship alone may be in danger, as for instance, of breaking
her back on a falling tide, if the cargo be left in her,
though the cargo, from its nature, would not be in danger.
In such a case the cargo must be landed solely for the
safety of the ship. (3) The cargo alone may be in danger,
as if the injured ship be on the ground and safe, but the
cargo be perishable if wetted ; then the cargo must be
landed, but solely for the safety of the cargo. Or, (4) it
may be necessary to land the cargo, though neither it nor
the ship be in immediate danger, or though the ship only
be in danger, because the injury to the ship cannot be
repaired without the removal of the cargo." He then
says as to the first case, the cost of" unloading would be
-clearly a general average expenditure ; but as to the 2nd,
3rd, and 4th, it would not be, treated as if it were the cost
of the sole act done. But as to the 4th case put, he
observes it has always been treated as if the going into
port to repair was one act, and as if that one were the act
of sacrifice : p. 77.
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468 THE ONTARIO REPORTS. [VOL.
Judgment. Now applying this method of analysis, I think it ap-
Boyd, o. pears that the " Gleniffer" and her cargo were not, whea
stranded, in a common danger, and the expenditure made
was not for the preservation or safety of both ship and
cargo. The hard coal which she carried would sustain no
injury from the water; it was in no danger of being car-
ried away ; though the upper timbers of the vessel might
be battered and pounded to pieces, the coal below the
water line would remain as steady as if in the founda-
tions of a sunken crib. As to the coal above water, it was-
a comparatively simple and inexpensive process to remove
that by lighters ; and as a matter of fact it could have
been done before stress of weather set in, and during the
delay which occurred before the expedition from acrosa
the lake could be got to work The more elaborate pre-
parations of the plaintiffs were for the deliverance of the
vessel on which their insurance attached, and the removal
of the coal was ancillary to that end : Schvster v. Fletch^y
3 Q. B. D. 418. The coal was to be delivered in a particu-
lar and expensive way, because that would give the best
chance of securing the schooner ; the simple way of getting
out the cargo was rejected, because it might imperil the
vessel. The effort was not to preserve the cargo but t(v
save the vessel.
Now, the plaintiffs, standing in the shoes of the ship-
owners, were mastei-s of the situation; they could prohibit
the interference with the coal by the defendants whether
they claimed for freight or general average till they wei*
paid or secured for their lien. As put by the evidence, the
plaintiffs proposed to take the place of the owners to-
arrange for the unloading of the cargo, and to deliver it at
the defendants' docks : Huth v. Lamporty 16 Q. B. D.735.
This is the reason why the plaintiffs required the bond to be
given ; but, as I have intimated, the question still remains
what sum is reasonable and proper to be paid, having
regard to the relative situations of vessel and cargo. The
adjustment made in this case, if erroneous in principle, is
no obstacle to the determination of the real liability on
Digitized byVjOOQlC
XIX.] WESTERN ASSURANCE CO. V. ONTARIO COAL CO. 469
the present record : Anderson v. Ocean Steamship Co., 10 Judgment.
App. Cas. 107, 115. Boyd,C.
I think the last step may now be taken by referring
to the judicial opinion expressed by Blackburn, J., in
Kemp V. Halliday, 6 B. & S. at p. 748 : " I do not mean
to say that in every case where a ship with cargo on
board is submerged, and the two are in fact raised together
by one operation, the expenditure incurred must necessarily
be for the common preservation of both. I think it is in
€very case a question of fact whether it was so ; and if
the cargo could be easily and cheaply taken out of the
ship and saved by itself, it would not be proper to charge
it with any portion of the joint operation which in that
case would not be incurred for the preservation of the
cargo."
Lowndes on General Average lays down as a pro-
position based upon the above citation, that when a ship
with her cargo on board has been sunk, [or stranded] if
the cargo can be more easily and cheaply saved by itself
than conjointly with the ship, the cargo cannot be required
to pay, as its share of contribution towards a conjoint
salvage, a larger sum than would have been the cost of
.saving it separately : pp. 161-2. And in an author, much
-commended for accuracy, it is said in discussing the ex-
pense of saving the ship and cargo after stranding, that
expenses incurred in saving both ship and cargo together,
as by raising a ship that has sunk, or dragging her off a
bank while still loaded, are general average expenses; with
the limitation, however, that the burden thus thrown on
the cargo must not be greater than the cost of saving it
by itself; Carver on Carriage at Sea, sec. 397. And in the
next paragraph, he says, on the sajne line : ** If the ship
and cargo can be saved by a connected set of operations,
though in separate parts, it seems that the expense of the
whole operations should be treated as a general average
-expenditure, unless that would impose a greater burden
•on the cargo than the cost of saving it alone."
The defendants have paid $578.75 into Court. I think
Digitized byVjOOQlC
470 THE ONTARIO BEPORTS. • [VOU
Judgment, fcjiey are liable only to pay what they would have paid
Boyd, 0. to recover the cargo by their own exertions ; if the parties
disagree, they may have a reference, of which the costs will
be reserved ; but costs up to judgment to the defendants.
If no reference is asked, judgment will be for the defen-
dants with costs.
[QUEEN'S BENCH DIVISION.]
McCrANEY ET AL. V. MOCOOL ET AL.
Partnership— Dissolution— Pending conircLct^
The defendants contracted to deliver lumber to a firm of three partners.
Before delivery the firm was dissolved, and the defendants refused to-
carry out their contract.
In an action brought in the individual names of the three partners, for
damages for non-delivery : —
Held, that the dissolution of the firm was no justification in law for the
defendants' refusal to carry out their contract.
SUtemcnt This action was brought by William McCraney, T. S.
McCool, and Robert S. Wilson, against James McCool &
Co. The plaintiffs based their claim upon the following
written memorandum :
Toronto, Jan. 7th, 1889.
Memorandum of agreement between James McCool & Co.,
of Mattawa, and McCraney, McCool, & Wilson, Toronto.
We hereby agree to supply the enclosed bills of red pine
to McCraney, McCool, & Wilson, for eleven dollars per
thousand, f. o, b. cars at Mattawa. To be good, sound,
common, free from black knots, properly manufactured,
and square edged, and free from bad shakes ; bill No. 1 to
be cut and delivered on cars by June 10, 1889 ; and bill No.
2 by July 10, 1889. If not filled in time or according to
specifications, we will stand any loss that McCraney,
McCool, & Wilson are put to in getting it elsewhere.
Terms, *?iree months from date of shipment
James McCool & Co.
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XIX.] M'CRANEY V. iTCOOL. 471
The statement of claim alleged that the plaintiffs were Statement,
entitled to receive from the defendants the lumber agreed
to be delivered by the defendants, but that the defendants
neglected and refused to deliver it, and by reason thereof
the plaintiffs had suffered damage, &c., and they claimed
8500.
The defendants by their statement of defence admitted
that they entered into the agreement set out with the
firm of McCraney, McCool, & Wilson ; but they said
that shortly after the 7th January, 1889, and long before
the time specified in the agreement for the delivery of the
lumber, the firm of McCraney, McCool, & Wilson was dis-
solved by the retirement therefrom of T. S. McCool, who
thereupon withdrew a large portion of the capital of the
said firm, and a new firm was formed by the remaining
partners under the firm name of McCraney & Wilson;
that the defendants immediately upon learning of
the dissolution notified the new firm of McCraney &
Wilson, by whom they were requested to carry out the
contract, that they did not recognize the right ot the new
firm to enforce performance thereof, and would not supply
the lumber on the credit of the new firm.
The action was tried before Street, J., without a jury,
at the Toronto Winter Assizes, 1890.
It appeared that by indenture of dissolution, dated 21st
March, 1889, the partnership of McCraney, McCool, &
Wilson was dissolved, McCool retiring as and from 1st
January, 1889, and the remaining members of the firm
assuming the liabilities of the partnership, and agreeing to
indemnify McCool. The defendants, having received infor-
mation of the dissolution, wrote to McCraney & Wilson
on the 11th March, 1889, and again on the 16th March^
1889, declining to carry out the contract.
Stkeet, J., gave judgment for the plaintiff for $318
with costs.
60— VOL. XIX. O.K.
Digitized by VjOOQIC
472 THE ONTARIO REPORTS. [VOI^
Argument. The defendants appealed from his judgment, and their
appeal was argued before the Divisional Court (Armour,
C. J., and Falconbridge, J.) on the 21st May, 1890.
M, J. GoTTnan, for the defendants. The contract was
to deliver timber to a particular firm. One of the partners
left the firm before delivery, and the vendors had a right
to repudiate. The financial position of the firm of pur-
chasers was an element in the contract, and that position
being altered, the purchasers are not entitled to call for
delivery. I rely especially on Arkansas Smelting Co. v.
Bdden, 127 U. S. 379. I also refer to the following author-
ities : Robson v. Drummond, 2 B. & Ad. 303 ; Humble v.
Hunter, 12 Q. B. 310 ; Dry v. Davy, 10 A. & E. 30 ;
Parsons on Partnership, 3rd ed., pp. 361, 362 ; Story on
Partnership, sec. 249 ; Benjamin on Sales, (Am. Series), sec.
70 ; Lansden v. McCarthy, 45 Mo. 106 ; Dickinson v. Cola-
han, 19 Pa. St. 227 ; Pollock on Contracts, 5th ed., p. 449.
Fullerton, Q. C, for the plaintifl^s. Lindley on Partner-
ship, 5th ed., p. 287, shews the legal principles affecting
this case. On the strength of that the action was brought
in the name of the three individuals who composed the
firm with whom the contract was made. The bargain here
<loes not relate to the skill of the persons with whom it
was made, and there was therefore no right to repudiate :
British Waggon Co v. Lea, 5 Q. B. D. 149.
Oorman, in reply, referred to Boston Ice Co. v. Potter,
123 Mass. 28.
June 6, 1890. Falconbridge, J. : —
The defendants refused to carry out the contract, claim-
ing that they were not bound to recognize the right of the
new firm to enforce performance of the agreement and to
supply the lumber on the credit of the new firm.
The single point in the case is whether they were justi-
fied by the fact of McCool's retirement in so refusing.
They would still have his liability, which could not be got
Digitized byVjOOQlC
XDL] ITCRANEY V. iTCOOL. 473
rid of by any arrangement of McCraney, McCool, and Wil- Jndgmtnt.
son, amongst themselves. Is there then any difference Vaiconbridge,
between the liability of William McCraney, T. S. McCool, J-
and Robert S. Wilson individually, and that of McCraney,
McCool, & Wilson, a firm of wholesale dealers in pine and
hardwood lumber, &c., as set forth in the heading of the
paper on which the contract is written ?
No doubt there is a diflference. One might be very will-
ing to give credit to a combination of two or more persons
working together in a business when he would not trust
the same persons jointly as individuals. The theory of
partnership is a refinement of the adage that " union is
strength." The implied division of labour and applica-
tion of each partner's hand or brain to that part of the
business for which he is supposed to have a special aptitude
would almost necessarily produce greater results than the
sum of their divided efforts.
But the further question is whether this affords the
defendants a justification in law for refusing to carry out
the contract, bearing in mind, as I have said before, that
the retiring partner does not get rid of his liability to
defendants.
Lord Denman, C. J., says in Humble v. H water, 12 Q. B.
At p. 317 : " You have a right to the benefit you contemplate
from the character, credit, and substance of the party with
-whom you contract."
Sir Frederick Pollock (Contracts, 5th ed., p. 463), says :
^' Again rights arising out of a contract cannot be transferr-
ed if they are coupled with liabilities, or if they involve a
relation of personal confidence such that," &c.
This statement was approved in Arkansas Srfidting Co,
V. BeldeUy 127 U. S. 379, a case which is strongly relied
on by defendants' counsel
There had been in that case an assignment of the con-
tract to a stranger, and the judgment was that the defen-
dants had a perfect right to decline to assent to this, and
to refuse to recognize a party with whom they had never
contracted, as entitled to demand future deliveries.
Digitized byVjOOQlC
474 THE ONTABIO REPORTS. [VOL.
Judgment. That is not this case. Here there is no assignment to a
Falconbridge, stranger.
*^* It was held also in that case that the defendants by
continuing to deliver ore to one of the partners after the
partnership had been dissolved and had sold and assigned
to him the contract, were not estopped to deny the valid-
ity of a subsequent assignment by him to a stranger ;
Mr. Justice Gray remarking (p. 388) : " The change in a
partnership by the coming in or withdrawal of a partner
might perhaps be held to be within the contemplation of
the parties originally contracting."
The defendants have failed to point to any clear author-
ity in support of their position ; and the motion must be
dismissed with costs.
Armour, C. J. : —
I do not think that the dissolution of the firm of Mc-
Craney, McCool, & Wilson (or rather the threatened
dissolution of it, for that firm was not actually dissolved
until after the defendants refused to carry out their con-
tract) afforded any legal justification to the defendants for
their refusal to carry out their contract.
The only consideration for the contract by the defen-
dants to deliver the pine was the contract of the firm to
pay for it, and the defendants lost nothing by the dissolu-
tion of the firm, for the firm still continued liable to them^
notwithstanding the dissolution, upon its contract to pay
for the pine delivered.
The judgment of the learned Judge must therefore be
affirmed, and the motion dismissed with costs.
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XIX.] GRAHAM V. M'KIMIL 476
[QUEEN'S BENCH DIVISION.]
Graham et al. v. McKimm.
D^amcUion — Libd — Article referring to advertisement published amtempor^
aneoudy — Fair criticiem — Bhidence — Plaintiff'e case — Production of
advertiaement — New trial.
The p)amti£BB brought a written advertisement to the defendant for the
pnrpoee of having it published in his newspaper, bat the defendant
refused to insert it, and the phiintiffs took it away intimating that it
would be immediately published in another newspaper. It was so
published ; and on the day of its publication an article, written before
its publication, appeared in the defendant's newspaper, referring to it
as unfit for publication. The plaintifib sued the defendant for libeL
The trial Jnd^ told the jury that if the article was nothing more
than a fair criticism of the advertisement, it was not libellous. It was
objected that the defendant was not entitled to criticize the advertise-
ment because it had not been published before the article criticizing
it:—
Heldy that this was not a valid objection.
The trial Judge ruled that the pbuntiffs were bound to produce and put
in as part of their case the written advertisement referred to by the
defendant in the article complained of ; and the plaintiffs, though pro-
testing, accepted the ruling and put in the evidence : —
JSeldy that the ruling was wrong ; but that the plaintiffs were not entitled
to a new trial, the only injury to the plaintiffs being to let the defen-
dant's counsel have the last word with the jury.
This was an action to" recover damages for an alleged Statement,
iibel published by the defendant, who was the publisher of
a newspaper called "The Rideau Record," at Smith's
Falls, the plaintiffs being traders in the same place, and
was tried at Perth on 1st April, 1889, before MacMahon^
J., and a jury.
The evidence shewed that the plaintiffs shortly before
the 4th October, 1888, had arranged with the defendant
for space in his issue of that date for the insertion of an
advertisement which they were to hand in to him ; and in
the issue of his newspaper of the week before that date
the defendant had notified his subscribers to look out for
the coming advertisement The draft of the advertise-
ment w&s produced by the plaintiffs to the defendant ; but
he refused to publish it because he considered that it con-
tained reflections upon some other of his* customers, and
that it was not an advertisement which he ought to insert
Digitized byVjOOQlC
476 THE ONTARIO BEFORTS. [YOL*
Statement, for that reason. The plaintiflFs thereupon took it to the
rival newspaper, in which it appeared on 4th October, 1888.
In the issue of the [defendant's paper of the same date
appeared the article complained oi as being libellous, which
read as follows :
''Graham & Foster. — Our readers, whom we told last
week to watch for Graham & Foster's advertisement in
this week's issue, will look in vain for it in " The Record."
We had agreed with Mr. Graham for six columns space,
but when the matter for it was handed to us we were
obliged to decline it as unfit for our advertising columns.
It was not advertising goods so much as abusing several
other merchants who are our patrons, and in this way
lowering and degrading the whole trade as well as the
paper in which it might appear. At a considerable loss of
revenue, we refused it, but we aim to edit a respectable
paper, and no respectable paper would publish such stuff.
It is contrary to all business principles, and we very much
mistake the temper of the people of this town and vicinity
if they are drawn in any very large crowds to the doors of
the firm who seek to conduct trade in any such manner.'^
The plaintifis in their statement of claim set this out
with various innuendos, alleging its meaning to be that as
traders and merchants they were unworthy of patronage,
and had endeavoured to bribe the defendant to do some
disgraceful act for their benefit as traders and merchants ;
that they as traders and merchants were maliciously en-
deavouring to injure other traders and merchants ; that
they conducted their business in a disreputable manner,
&c.
The defendant set out the advertisement in his statement
of defence, and submitted that the alleged libel was only a
fair and reasonable statement of his reason for not publish-
ing the advertisement, and was a reasonable comment
thereon. He further submitted that the article complained
of did not bear the meaning and sense ascribed to it by the
plaintiffs. The learned Judge told the jury that if the
Digitized byVjOOQlC
XIX.] GRAHAM V. H'KIMIL 477
article complained of was nothing more than a fair criti- Statemant
cism of the advertisement, then no matter whether it was
injudicious or not for the defendant to have published it,
it was not libellous, and the defendant was not liable. To
this charge objection was taken by counsel for the plain-
tiffs, who urged that inasmuch as the advertisement had
not been published before the article complained of, there
was no right of criticism upon it at all ; that nothing had
been published for defendant to write about. The jury
found a verdict for the defendant.
At the Easter Sittings of the Divisional Court of the
Common Pleas Division, 1889, the plaintiffs moved to set
aside the verdict and for a new trial upon the ground of the
misdirection complained of at the trial, and upon other
grounds referred to in the judgments.
The motion was transferred to the Divisional Court of
the Queen's Bench Division, and was argued before Fal-
CONBRIDGE and Street, JJ., on 28th May, 1889.
WataoUyQ. C, for the plaintiffs, referred to Odgers, 2nd ed.,
p. 573 ; Murphy v. Halpin, Ir. R 8 C. L. 127 ; Morri-
son V. Belcher, 3 F. & F. 614 ; Gathercole v. MiaU, 15 M.
& W. 319 ; Paris v. Levy, 9 C. B. N. S. 342; MerivdU
V. Carson, 20 Q. B. D. 275 ; Campbell v. Spottiswoode, 3
B.&S.769.
Walter Bead, for the defendants, cited Hedley v. Ba/rlow^
4 F. & F. 224 ; Morrison v. Ha/rmer, 3 Bing. N. C. 759.
June 27, 1890. Falconbridoe, J. : —
The first question is whether the learned Judge was
right in compelling the plaintiffs to put in evidence the
advertisement referred to in the article published by the
defendant and complained of in this action.
It is broadly stated by Mr. Odgers (Bl. ed. p. 573;, that
**If the alleged libel refers to any other document, the
defendant is also entitled to have the document read as
part of the plaintiff's case," citing the three following cases :
(1) Weaver v. Uoyd, 1 C. & P. 296.
Digitized byVjOOQlC
478 THE ONTABIO REPORTS. [VOI^
Judgment There the letter from the defendant to the editor of the
Falconbridge, " Oxford Herald" was read, and it referred to another
^' account of the beating of the horse in question, which
had appeared in that paper. The plaintifiTs counsel wished
to read the accoimt so referred to from the "Oxford
Herald." This was objected to, but (Jarrow, B., held it to
be admissible.
This case is not in point. The question here is not as
to the admissibility of the evidence, but the compelling
plaintiff to put it in. ^
(2) Thomson v. Stephens, 2 Moo. & Rob. 45.
There the report which the defendant was held entitled
to have read as part of the plaintiff's case was both refer-
red to in the libel and contained in another column of the
same newspaper — not as here, a separate and distinct doc-
ument.
(3) So too in Hedley v. Barlow, 4 F. & F. 224, the
decision was that the whole of the publication containing
the libel should be put in as the plaintiff's evidence.
It would thus appear that the learned author has stated
the rule somewhat more broadly than the cases justify.
So that, however attractive his proposition may at first
sight be, I cannot find that it is law.
But for the reasons which will be set forth by my
brother Street, I am of the opinion that if the learned
trial Judge erred in this respect, the error is not ground
for a new trial.
As to the second branch of the case : The advertisement
referred to in the article had certainly, by being shewn to
McKimm and offered to him for publication, been pub-
lished, although, perhaps, not published to the extent and
in the sense of making it a matter of public interest and
concern, and therefore a matter of fair criticism. The
plaintiff will not swear that he did not in the defendant's
presence tell a boy to take it over to the other newspaper,
and the fair inference from the evidence is that the defen-
dant knew or had good reason to believe that it was going
to appear in the " News" the same day that the article
Digitized byVjOOQlC
XIX.] GRAHAM V. M^KIMM. 479
complained of appeared in the defendant's newspaper. Judgment
Assuming the defendant's article to be what the jury haveFalconbridge,
found it to be, a fair criticism on the plaintiffs' advertise- •'•
ment, had not the defendant a right to place it before the
public on the same day ? If the plaintiffs' advertisement
had not that day appeared, there would have been no
justification for the defendant ; but had he not a right to
take his chance of its appearing ?
Take the case of what is known^by a recent and inele-
gant importation into our language as the political " roor-
back," by which I understand is meant the publication,
perhaps on the very morning of the polling — at any rate
too late for contradiction before the close of the election —
of statements gravely affecting a party or a candidate.
And suppose that party or that candidate to have secret
information of the probable appearance and circulation of
the " roorback," would they or he not be justified in issuing
a vigorous reply within the recognized rules, in such time
that both publications should go forth simultaneously, and
the electors have the " bane and antidote" both before them
at the same time ? If the information should prove false,
and the *' roorback" should never appear, then let him who
published the answer be mulct in damages.
In my opinion, the motion should be dismissed with
costs.
Street, J. — (after setting out the facts as above) : —
The objection to the charge of the learned Judge at the
trial was that at the time the article complained of was
written the plaintiffs' advertisement had not become
public property by having been published, and that the
defendant was therefore not entitled to criticise it. I con-
fess to having been strongly impressed upon the argu-
ment with this view of the matter, but further considera-
tion has induced me to adopt as correct the view taken by
my brother Falconbridge in his judgment. It is true that
the advertisement commented upon had not been published
61 — VOL. XIX. O.R.
Digitized byVjOOQlC
480 THE ONTARIO REPORTS. [VOk
Judgment, at the time the article complained of was written, and that
Street, J. it is not identified in the article complained of as the
article which appeared in the rival newspaper on the same
day ; but the identity of the advertisement actually pub-
lished with that to which the comments related was not in
fact disputed, and the defendant appears to have had
ample reason for believing that it would appear in the
other newspaper contemporaneously with his own article.
It is not different in principle from a criticism upon a
book the advance sheets of which had been shewn to the
critic with the information that the book was to be imme-
diately published : if, in such a case, the criticism and the
book had appeared simultaneously the author could hardly
complain that the critic had not waited until the following
day before publishing his remarks.
The objection taken at the trial that the defendant's
remarks were not in reference to a matter which had
become public, is seen to be lacking in substance when it
is borne in mind that the advertisement commented upon
was brought by the plaintiffs to the defendant for the
express purpose of having it made as widely known as
possible, and that it was taken away with an intimation
that it would immediately be made public in the rival
newspaper.
The learned Judge at the trial ruled that the plaintiffs
were bound to produce and put in as part of their case the
written advertisement referred to by the defendant in the
article complained of: the plaintiffs contend that this
ruling was erroneous and that a new trial should be
granted upon this ground. The ruling was no doubt
based upon the broad statement at p. 573 of the Black-
stone edition of Odgers on Libel and Slander, that "if the
alleged libel refers to any other document, the defendant is
also entitled to have the document read as part of the
plaintiff's case."
My brother Falconbridge shews in his judgment that
the cases cited in support of this proposition do not sus-
tain it to its full extent. It seems to be clear that the
Digitized byLjOOQlC
XIX.] GRAHAM Y. M'KIMM. 481
whole of on article relied on as being libellous must be put Jodgment.
in by a plaintiff and that he cannot select portions of it street, J.
and require the remainder to be put in by the defendant,
if the defendant desires it referred to. Again if a news-
paper be put in containing the article complained of, the
defendant is entitled to have read as part of the plaintiff's
case any other article in the same newspaper referred to in
the article complained of: Darby v. Ouseley, 1 H. &; !N. 1.
Again, if the plaintiff's case is that a book or publication
of bis has been unfairly criticised, he must put in the book
as part of his case in order to make it out, for he cannot
shew that the criticism is unfair without producing the
book : Strauss v Francis, 4 F. & F. 939.
In the present case, however, the case of the plaintiffs
as stated in their pleadings and opened to the jury was that
the article published by the defendant was simply a libel
npon them ; it was for the defendant if he desired to do so
to justify its publication by shewing the circumstances
and putting in the advertisement to shew that his com-
ments upon it were not unfair. I think, therefore, that
the learned Judge was wrong in ruling that the plaintiffs
were bound to put in the advertisement as part of their case.
The plaintiffs might have refused to do soj and if they had
been non-suited might afterwards have raised the ques-
tion; instead of doing so, they acted upon the ruling and
put in the advertisement, though not without more than
one protest against being required to do so. The result of
this was to give the defendant's counsel the last address to
the jury. The question is whether the plaintiffs are enti-
tled to a new trial upon this ground, and I am of opinion
that they are not. The established rule is that an erroneous
ruling as to the right to begin or to reply is not a suffi-
cient ground for a new trial, unless it is manifest that the
ruling has done clear and manifest wrong ; Brandford v»
FreeiTuin, 5 Ex. 734 ; Oeach v. Ingall, 14 M. & W. 95.
The evidence here has been laid before the jury by the
plaintiffs instead of by the defendant ; the result has been
that the plaintiffs' counsel was probably deprived of the
Digitized by-VjOOQlC
482 THE ONTARIO REPORTS. [VOL,
Judgment, right to answer the aiguments of the defendant's counsel
Street, J. before the jury ; but afber carefully looking at the evi-
dence given, I find it impossible to say that I think wrong
has been done by the verdict. I agree that the motion
should be dismissed with costs.
[CHANCERY DIVISION.]
Macklem V. Macelem ET AL.
Will— Devise —Far/eUure — A dual possestion cmd occupation — Poiattdon If
servant^ caretaker, or worker on shares,
S. M. had become entitled under T. C. S.'s will to certain laoperijr
called <' Clarke Hill/' of which T. C. S. was owner when he died,
and also to an undivided interest in certain other property of which
T. C. S. was tenant in common. He also became entitled to a legacy
under the foUowlns clause of A. H. S/s will : " I wiU and direct
that so soon as S. M. * * can and does take actual poesession of the
real estate and property * * under the will of T. C. S. * * my
executors * skall * * so long as he remains the owner and aotuil
occupant of the said real estate pay over to him * * • the annuil
sum of $2,000 to enable, &c. " :—
Held, that this clause, read in connection with the will of T. C. S., referred
only to the land of which T. C. S. was absolute owner, and not to the
land he owned as tenant in common : —
Held^ also, that actual possession and occupation of the land by S. M.
was consonant with and satisfied by the possession of a servant or
caretaker, or even a worker on shares, and that S. M.'s tempoTiiy
absence from the mansion house on the property, which was kept
furnished and in charge of a servant, did not create a forfeiture.
Statement This was an action for the construction of a clause in
the will of Abigail Hyde Street, in these words :
" I will and direct that so soon as Sutherland Macklem,
the son of my daughter Caroline, can and does take actual
possession of the real estate and property which, under
certain conditions expressed in the will of my late son
Thomas Clarke Street, he will or may take and enjoy : that
thereupon my executors hereinafter named shall, during
the lifetime of the said Sutherland Macklem, and so long as
he remains the owner and actual occupant of the said real
Digitized byVjOOQlC
XIX.] MACKLEM V. MACKLEM. 483
estate, pay over to him annually in each and every y ear Stsatement.
the annual sum of two thousand dollars, to enable him the
better to keep up, decorate, and beautify the property
known as ' Clarke Hill/ and the islands connected there-
with."
Sutherland Macklem was devisee under Thomas Clarke
Street's will of " Clarke Hill" and other properties of which
Thomas Clarke Street was absolute owner, and he was
also devisee of certain shares in other properties in which
Thomas Clarke Street was tenant in common merely.
The action was tried at the Sittings held in Toronto on
April 28 and May 8th, 1890, before Boyd, C.
It appeai*ed at the trial that the properties in which
Thomas Clarke Street was tenant in common had, after his
death, been partitioned by proceedings in Fuller v. Mack-
lem, 25 Gr. 455, and that Sutherland Macklem had sold
and transferred parts of what had been vested in him as
his share.
It also appeared that Sutherland Macklem had occupied
" Clarke Hill" as a residence for some years, and had then
gone to reside with his family temporarily in England for
the purpose of studying in order to qualify himself for
taking Holy Orders in the Church of England, and that
while so absent for the space of three years, he had left
" Clarke Hill" furnished, in the charge of a servant, and
had farmed on shares a part of the property devised to
him absolutely under the will of Thomas Clarke Street with
one Oldfield.
F, E. Hodgins, for the executor plaintiff, submitted the
case.
MosSf Q. C.^ and Bicknell, for Mrs. Fuller, (one of a class en-
titled if the legacy to Sutherland Macklem became forfeited)
and her assignee. The annuity is forfeited. Sutherland
Macklem should not have sold any part, and he must remain
in actual possession and occupation. Inquiry should be
Digitized byVjOOQlC
484 THE ONTARIO REPORTS. [VOL.
Argument, made each year before payment is made if he is the owner
and occupant : Haydon v. Crawford, 3 0. S. 583 ; Madaren
V. Stainton, 27 L. J. Ch. 442 ; 4 Jur. N. S. 199. The evidence
shews " Clarke Hill" is not kept up in the same way as if
Sutherland Macklem resided there. In re Moir, Warner v.
Moir, 25 Ch.D. 605: Dunne v. Dunne.Z Sm. & G. 22, at p. 27;
7 D. M. & G. 207 ; WaXcot v. Botfield, Kay 534 ; 18 Jur. 570 ;
Conxvay v. Canadian Pacific R, W, Go,, 7 0. R 673 ; 12
A. R. 708 ; Davis v. Canadian Pacific R, W, Co., 12 A. R
724. The annuity is by conditional limitation, and the
onus of proof is on the annuitant. A breach for one year
ends the annuity altogether : MovMon v. Robinson, 27 N.
H. (7 Foster) 550 ; Skarwood & Bvdd, L. C. 227 ; Thomp-
son on Homesteads and Exemptions, sec. 263 ; LawreTiceY, •
Fulton, 19 Cal. 684.
Robinson, Q. C, for Sutherland Macklem. Power to
sell any of the estate except ** Clarke Hill " was given to the
trustees by T. C. Street's will. Actual possession is that
which goes with the title. Possession and occupation under
Mr. Street's will are synonymous. Sutherland Macklem
was to remain owner of the seven-tenths share of the real
estate of which T. C. Street was tenant in common. He
could not control its being partitioned or sold. It was
partitioned by the Court. He holds what he got under a
different title from "Clarke Hill," namely through the par-
tition proceedings. I refer to Meyrick v. Laws, 9 Ch. 237;
Laplante v. Seamen, 8 A. R. 657; FiUingkam v. BroifnUy,
T. & R 530; Ridgway v. Woodhouse, 7 Beav. 437;
Abbott's Law of Descent, p. 198 ; Walters v. The Peopk
18 111. at p. 199, S. C. 21 111. 178; Bank of Torordor.
Fanning, 17 Gr. at p. 616 ; Allan v. Fisher, 13 C. P. at p.
71; Mannoxv. Greener, L. R 14 Eq. 456; ClaveringY.
Ellison, 7 H. L. C. 707 ; Schnell v. Tyrrell, 7 Sim. 86.
Hodgins, for the plaintiff, referred to Hamilton v. Mc-
Kdlar, 26 Gr. 110; Walmsley v. Oerard, 29 Beav, 321.
Bicknell, appeared for D. C. Plumb, executor of J. B.
Plumb.
Digitized byVjOOQlC
XIX.] MACKLEM Y. MACKL£M. 485
0. U. Macldem, for Mrs. Becher and the executor of Mrs. Argnment.
Julia A. Macklem.
M088, Q. C, in reply.
June 4, 1890. Boyd, C. :—
The 26th paragraph of the will of Mrs. Street, read in
connection with the will of her son therein referred to, has
its appropriate meaning in my opinion by limiting it to land
of which T. C. Street was absolute owner.
T. C. Street's will deals with lands of diflTerent quality ;
about 100 acres including the Clarke Hill estate or property
were vested in him as sole owner. He had also a joint un-
divided interest in about 700 acres of farm land, in which his
estate was that of a tenant in common. As to this interest
ihe speaks of it as the " shares" or "share" held jointly with
.his father's estate which (in the event that happened) were
with the accumulations thereof to be made over and
assigned to Sutherland Macklem on his attaining the age
of twenty-three years. As to the other absolute estate the
provision is that he shall not take possession or have
charge of the same till he attains that age. This construc-
tion is supported by the judicial opinion of Spragge, C, in
Fuller V. Macklem, 25 Gr. at p. 457.
The 26th paragraph speaks of land which Sutherland
Macklem will or may take and enjoy under conditions
•expressed in the will of T. C. Street. That is satisfied
strictly by reading it in connection with the 100 acres
above mentioned. As to the land held in common that
was dealt with in proceedings for partition, the effect of
which was to vest the share of Sutherland Macklem in
him directly by virtue of these proceedings, and not under
the will of T. C. Street. Under that will Sutherland
Macklem took nothing in severalty, and the part which
he in particular was to take and enjoy was not ascertained
till the vesting order clothed him with sole and distinct
-ownership of the portion allotted to him. He thus takes
both and enjoys an estate of different quality from that
Digitized byVjOOQlC
486 THE ONTARIO KEPO&TS. [VOI-
Judgment, which he would have under the will of the original co-
Boyd,C. owner, T. C. Street : Clark v. Clayton, 2 Giff. at p. 336.
Of the 100 acres above mentioned some 14 acres are
worked on shares by one Oldfield, and the produce divided
between him and Sutherland Macklem. This arrangement
is made without lease, merely for the season, and there is
no visible occupation of this piece by one more than the
other. All the rest of the property is entirely in the
hands of Sutherland Macklem.
Assuming that the language of the will as to the land for-
bids actual occupation by a tenant, I do not hold that the
mdayer arrangement with Oldfield is a breach. The case
cited oi Hay don v. Crawford, 3 O. S. 583, does not apply, for
there a lease for four years was one of the chief factors.
More like the present case is Oberlin v. McGregor, 26 0. P.
460, where an agreement to work on shares without
exclusive possession was held not to amount to a tenancy^.
The words " possession " and " occupation " used in the
will may be regarded as practically synonymous. Each is
qualified by the epithet "actual" which does not mean ** per-
sonal," but may perhaps require something demonstrable
to satisfy it, i.e., some possession or user of the land in fact,
as distinguished from constructive enjoyment. But such
possession or occupation as to the land is consonant with
and satisfied by the presence of a servant or caretaker, or
even a worker on shares. Occupation may be by either
class and yet the possession must be considered that of the
legal owner.
As to the Mansion House at Clarke Hill (guided in part by
the light reflected from the will of T. 0. Street,) I should
underotand Mrs. Street's will as excluding occupation by &
tenant, but not repugnant to temporary absences of the
owner, the premises meanwhile being in charge of a care-
taker and the rooms remaining furnished against his i-etum.
Such is the condition of this property, and upon the circum-
stances in evidence I judge that no forfeiture as to-
the (2,000 has occurred. Among the many cases I have
consulted perhaps the most pertinent are : Smith v. The
Digitized byVjOOQlC
XIX.] BE LONG POINT CO. V. ANDERSON. 487
Overseers of SegkiU, K R 10 Q. B. 422 ; The King v. Judgment.
The Inhabitants of Aberystwith, 10 East at p. 367; Mem- Boyd, C.
nox V. Oreener, L. R 14 Eq. 456 ; Bushby v. Dixon, 3
B. & C. at p. 307, per Littledale, J. ; and Lydl^v. Kennedy,
14 App. Cas. at pp. 456, 7, jyev Earl of Sel borne; The
Guardiar^ of the Callan Union v. Armstrong, 16 L. R.
Ir. 85 (1885) ; and Rabbet v. Squire, 19 Beav. 70, affirmed
4 D. & J. 406.
Costs will come out of the estate.
G. A. B.
[QUEEN'S BENCH DIVISION.]
Re Long Point Company v. Anderson.
Game — FeroB naturcB — Property qf owner of land in deer found thereon —
g9 A SO Vic eh. l^g—B, 8, 0. ch. 221, sec, 10— Construction of ^Pro-
hibition—Division Court — Undisputed facts — Error in lauy—Misoon-'
stmction of statutes.
The defendant killed upon his own land, which adjoined that of the
plaintiffB and was nnfenced, a deer, one of the progeny of certain deer
imported by the plainti£b and defendant, and allowed to run at large
rn the land : —
, that the deer was fera natur<B and, having been shot by the
defendant upon his own luid, belonged to him : —
Edd, also, that neither the Act incorporating the plaintiffii, 29 & 90
Vic. ch. 122, nor K.S.O. ch. 221, sec. 10, vested the absolute property in
the deer in the plaintifib.
Prohibition was granted to a Division Court where there were no facts in
dispute and the Judge in the inferior Court applied a wrong rule of law
to the facts and grounded his judgment upon a misconstruction of the
Acts above referred to.
MonoN by the defendant for a prohibition to the 5th Statement,
Division Ck>nrt of the county of Norfolk, after judgment
for the plaintiffs for Si 5 damages for killing a deer, on the
ground that the right or title to a corporeal or incorporeal
hereditament was in question : R. S. O. ch. 51, sec. 69, (4).
The plaintiffs were incorporated by 29 & 30 Vic. ch. 122,
and were thereby authorized to carry on the business of
" pursuing, protecting, and granting licenses to take game,
muskrats, mink, otter, beaver, and fish," upon their lands
62— VOL. XIX. O.B. r^^^^T^
Digitized by VjOOQIC
4fi8 THE OITTABIO BXPOBTS. [VOX^
StetenwBl. mi<j property to be aequired by them on Long Point, in
Lake Eria
The ialand of Long Point in Lake Erie is aboat thirty
miles long, and of varying width. One end is separated
from the mainland by a narrow channel, and the other
end stretches far out into the lake. It contains upwards
of 20,000 acres ; and in 1874 it was all owned by the
plaintifis except two parcels of about 200 acres each^
owned by government, one parcel at each extremity of
the island, and except another parcel of 360 acres, which
was owned as tenants in common by the plaintiffs and the
defendant, the plaintiffs owning three, and the defendant
one, undivided share, in fee simple. There were not at that
time, nor since, any fences separating the parcels of the
several owners, as above mentioned, from each other.
Under the circumstances above stated, the plaintiffs in
1874 imported fifteen deer, and placed them upon their
own land upon the island, with the desire to breed and
preserve them. They were turned loose and allowed to
run at large, and there were then no other deer upon the
island. In the year 1881 the defendant Anderson placed
four deer, some of each sex, upon his lands ; that is, upon
the 360 acres, which were then owned by the plaintiffs
and himself as tenants in common ; and he did this know-
ing of the deer which had been placed on the island by
the plaintiffs in 1874. In the year 1885 the 360 ^acres
owned in common were partitioned between the plai^ffi
and the defendant, and the plaintiffs from that time ow^ed
270 acres, and the defendant ninety acres thereof in sev-
eralty.
The deer had greatly increased in numbers, and they
roamed at large over the whole island. The defendant
kUled the deer upon bis own land, and upon these facts
which were all admitted by the parties upon the trial before
the learned Judge of the County Court, he gave judgment
for the plaintiffs for $15.
Digitized byVjOOQlC
Xrx.] BE LONG POINT CO. V. ANDBBSON. 489
The motion for prohibition was argued before Mac- Argument.
LENNAN, J. A., sitting for Qalt, C. J., in Chambers, on the
5th April, 1890.
(7. E. Barber, for the defendant.
W. M. Douglas, for the plaintiffs.
April 14, 1890. Maclennan, J. A. (after stating the
facts as above) : —
The plaintiffs relied on R. S. 0. eh. 221, sec. 10. I think
the prohibition must be refused.
The nature and history of the respective titles of the
parties to their respective lands are, in my opinion, very
important in their bearing upon the proper judgment to be
given in the action, but these titles are not in question.
They are admitted on the one side and on the other. There
is no dispute about the right or title to the land, or any
interest therein, and the sole question is whether Ithe killing
of the deer by the defendant on his own land was under the
circumst-ances a wrong for which the plaintiffs have a legal
righttocomplain,andto recover damages fromthedefendant.
I have no right to express an opinion upon the merits, and
Iexpres8none,although the merits were pretty fully discuss-
ed before me; but I am unable to see that this is an action in
which, as expressed by the statute, the right or title to any
corporeal or incorporeal hereditament comes in question.
The motion must be refused with costs.
The defendant appealed from this decision, and his
appeal was argued before the Divisional Court (AuMouB,
C. J., and Falconbridge, J.,) on the 19th May, 1890.
0. E. Barber, for the defendant. The title to the defen-
dant's land comes in question. The deer of the plaintiffs
are /6rcB naturcR, and the defendant had the right to shoot
all such when found upon his own land. An action for
the value of the deer shot is in effect an action for the
land The effect of the decision is to oust the defendant's
title to his own land. Under these circu instances prohii)i-
Digitized byVjOOQlC
490 THE ONTARIO BEPORTS. [VOL.
Argument, tion will be granted. I refer to Portman v. Patterson, 21
U. C. R 237 ; Trairior v. Holoombe, 7 TJ. C. R 548 ; Tin-
niswood v. Pattison, 3 C. B. 243 ; Chew v. Holroyd, 8 Ex.
249. The statutes cannot be construed so as to vest the
absolute property in the plaintiffs. I refer to the following ,
authorities upon the construction of statutes : East Lon-
don It. W. Go. V, Whitechurch, L. R 7 H. L. 81 ; Attor-
ney-QeneroL v. Kwok-a-Sin^, L. R. 5 P. C. 197 ; Regina v,
BacheUyi% 15 0. R 641 ; Tennant v. Howaieon, 13 App.
Cas. 489,496.
W, M, Douglas, for the plaintiffs. No corporeal or in-
corporeal hereditament comes in question. The plaintiffs
rely on R. S. 0. ch. 221, sec. 10. The questions arising
in the action relate to animus revertendi and confusion of
property. This was a clear case of confusion of property,
and the onus was on the defendant to separate. 1 refer
to Lavn*ie v. Rathbun, 38 U. C. R. 255. These were
questions of fact for the Court below, and prohibition will
not lie : Jte Knight v. Medora, 14 A. R 112 ; Siddall v.
Gibson, 17 U. C. R 98. The deer are the absolute pnA
perty of the plaintiffs as long as they remain in confine^
ment, and even if they stray away, so long as they have
the animtbs revertendi, they remain the plaintiffs' pr«^
. perty : Kent's Commentaries, (BL ed.) vol. 2, p. 365 ;
Kerr's Blackstone, vol. 2, pp. 365, 406.
Barber, in reply. The general law applicable to game
will be found in Bum's Justice, 30th ed., vol. 2. pp. 742
et seq.; Stephen's Commentaries, vol. 1, pp. 160, 169;
voL 2, pp. 4, 7, 8 ; Williams on Personal Property, p. 28 ;
Co. Lit. p. 8, note A.; Ford v. Tynte, 2 J. & H. 160;
Morgan v. Abergavenny, 8 C. B. 768.
June 27, 1890. The judgment of the Court was de-
livered by
Armour, C. J. : —
There is no doubt that the deer for which the defendant
was sued was feroe nainjurcB, and having been shot by the
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XIX.] BE LONG POINT CO. V. ANDERSON. 491
defendant upon his own land belonged to him : Blades v. Judgment.
Higga, 12 C. B. N. S. 601 ; S. C, 11 H. L. C. 621 ; Lorn- Ar^^^,j.
dale V. Eigg, 11 Ex. 654 ; S. a, 1 H. & N. 923 ; Morgan v.
Abergavenny, 8 C. B. 768.
It is equally clear that neither the Act 29 & 30 Vic. ch.
122, nor the Act R. S. 0. ch. 221, sec. 10, vested the abso-
lute property in the deer in question in the plaintiffs. The
first mentioned Act permitted the plaintiffs to carry on the
business of pursuing, protecting, and granting licenses to
take game, muskrat, mink, otter, beaver, and fish upon
their lands and property, or in the waters covering the
same ; and the Act secondly above mentioned provided
that, in order to encourage persons who had theretofore
imported or might thereafter import different kinds of
game with the desire to breed and preserve the same on
their own lands, it should not be lawful to hunt, shoot,
kill, or destroy any such game without the consent of
the owner of the property wherever the same may be
bred.
The word " property" here used clearly signifies lands.
The Legislature plainly avoided in these Acts dealing
with the property in the game referred to therein, and,
these Acts do not at all affect the common law right of
the owner of the land to kill and take any such game as
may from time to time be found on his land; and as
soon as he takes and kills such game so found on his
land, it becomes his absolute property.
It is his ratione soli, and as laid down in Blades v.
Biggs, "property ratione soli is the common law right
which every owner of land has to kill and take all such
animals ferce naiv/rcB as may from time to time be found
on his land, and as soon as this right is exercised the
animal so killed or caught becomes the absolute property
of the owner of the soil;" and this property ratione
soli the Legislature has not by their Acts attempted to
interfere with.
The judgment of the learned Judge is plainly errone-
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492 THE ONTARIO REPORTS. [VOU
Judgment qus, but the question is whether under the circumstances
ArmooTy C J. prohibition will lie.*
It may be doubtful, but upon this I express no opioion,
whether certiorari could have been brought, the damagea
claimed not amounting to $40 : R. S. 0. ch. 61, sec. 79;
but failing certiorari tiie defendant could have no remedy
*The Judge of the Ck>nnty Court of Simooe gave a written judgment,
in which he said inter alia : There was some discussion as to who was
meant by " the owner of the property " (in R. S. O. ch. 221, sec 10);
whether ** property" meant the animals or the lands upon which they
were being bred and preserved ; but in either view it would be the plain-
tiffs whose permission would have to be obtained, and, in the absence of
such permission, it does not seem to be any answer to say that when the
animals were killed they were not on the plaintiffs' lands.
It was urged that defendant Anderson had such an interest in the deer
upon this island as would justify him in shooting them upon his own
land, and authorizing the other defendants to do Ukewise. This daim is
based upon the admitted fact that after the plaintifis had put a number of
deer upon that part of the island of which they were solely seized, t^e
defendant Anderson put others upon another part which he then held as
a tenant in conmion with the plaintlfis.
There was nothing done by him to prevent his deer from mingling with
those of the plaintiffs, and no means were or probably could be adopted
whereby the former could be distinguished from the latter ; the resolt is
that they have intermingled, and now form one herd. It is as complete
a case of confusion of property as if he had cast gold into the plsintifb'
crucible ; and where such confusion as in this case has been wUfol, the
rule seems to be that he who creates the confusion forfeits his property
which he has wilfully mixed with that of another.
It was also contended for the defendant that the franchise of the plain-
tiffii being in question in these actions, the jurisdiction of this Court is
ousted, and further, that the result of a judgment in the plaintiflEs' favour
would be to call in question the defendant Anderson's right to shoot game
npon his own land, which it is claimed is an incorporeal hereditament
appurtenant thereto, and therefore this Court has no jurisdiction.
With regard to the first of these objections, the plaintifb' franchise is
contained in a public Act of Parliament, which I am bound to notice,
there was no dispute as to the validity of this Act, and I am unable to
see that In any way the franchise came In question.
As to the second objection, I have not had occasion to consider whether
the defendant Anderson has or has not a right to shoot game upon hii
own land ; but I have come to the conclusion that the statute to wbidi
reference has been made had the effect of protecting the deer in qnestiaa
from being treated as ordinary game, and prohibited all persons alike •
from shooting them without the leave of the plaintiflH.
Digitized by Google
XIX-] BE LONG POINT CO. V. ANDEBSON. 498
except prohibition, and if prohibition will not lie he will Jndgm«at.
be without remedy. Arm<mr, C.J
I have come to the conclusion that prohibition will lie
because there were no facts in dispute, all the facts being
admitted upon which the learned Judge had to determine
the case, and adopting the words of Blackburn, J., in
Elston V. Rose, L. R 4 Q. B. 4 : "I think he was wrong
in the conclusion at which he arrived, because he applied
a wrong rule of law to the facts, and therefore that he had
no jurisdiction."
And also because the learned Judge grounded his judg-
ment upon a misconstruction of the Acts above referred to.
In The Qween v. The Judge of the County Court of
Lincolnshire, 20 Q. B. D. 167, Pollock, B., said : *' In many
of the older cases it has been held that where a Judge of
an inferior Court purported to give himself jurisdiction by
misconstruing an Act of Parliament, the superior Court
would interfere by prohibition. That is not this case, but
this case depends on the same principle, for here the County
Court Judge came to the conclusion on the construction of
the will that the words of that will gave him jurisdiction
to make this order not only as against the defendant in
this action but also as against the trustees. It was con-
tended by Mr. Chester that if it is once shewn that there
was jurisdiction, and then a document is construed wrongly,
and in consequence of so construing it the Judge exceeds
his jurisdiction, the High Court cannot interfere by pro-
hibition. I am of opinion that this contention is wholly
untenable. * * More shortly stated the principle is
this : a Judge cannbt give himself jurisdiction by constru-
ing an Act of Parliament or a document wrongly."
See also judgment of Rose, J., in Re Macfie v. jETu^Ain-
acm, 12 P. R 167.
The judgment appealed from will therefore be reversed,
and the order for prohibition will go, with costs here and
in Chambers to be pai<^by the plaintiffs to the defendant.
/
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494 THE ONTARIO BEPOKTS. [VOL.
[QUEEN'S BENCH DIVISION.l
Peck v. Agricultubal Insurance CJompany.
Ifuvrance^ Fire — Unoccupied btulding — SpedcU condUi<mr--Reasonabkneii
— Information given to agent qf insurance company, but not in appHea-
tion — Powers of agent — Evidence — Rejection of.
The defendants issned a policy of insurance against fire dated 23rd April,
1889, npon a house of the plainti£f.
The application signed by the plaintiff stated that the house was occapied
as a residence oy the plaintiff's son. A fire took place on the Hili
November, 1889, at which date and for six months previously the hoase
had been unoccupied. One of the special conditions indorsed upon the
policy was that if a buQding became vacant or unoccupied ana lo re-
mained for ten days, the entire policy should be void. The pUintiff
and his wife swore that when the agent came to him and drew the
application he asked the plaintiff if there was anyone in the hoose at
the time, and the plaintiff told him that his son was living there at the
time, but was goiuff to leave in about two weeks, and asked if that
would make any cufference, and was informed by the agent that it
would not. By a clause in ^e application the plaintiff agreed that no
statement made or information given by him pnor to issumg the policy
to any agent of the defendants should be deemed to be made to or
binding upon the defendants unless reduced to writing and incorporated
in the application ; and on the margin of the application there was a
notice shewing that the powers of agents were limited to receiving
proposals, colkcting premiums, and giving the consent of the defen-
dants to assignments of glides : —
HeUlf that the special condition referred to was not an unreasonable one,
and that the agent had no power to vary it ; and an action to recover
the amount of the loss was dismissed.
The plaintiff at the trial soueht to give evidence of certain transactions
between the a«ent of the defendants and a brother of the plaintiff, for
the purpose ofshewing that the plaintiff, having become aware of them
before tne application made by mm, was justifi^ in believing that tiie
defendants did not regard the condition as to occupation as a material
one: —
Held^ that this evidence was properly rejected.
Statement THIS action was brought by the. plaintiffs upon an
insurance policy of the defendants insuring a barn and
dwelling-house and their contents against fire. The de-
fences relied upon were : 1st, that the dwelling-house
was insured as being occupied, and that having become
unoccupied during the period of the insurance, the policy
became void by reason of one of the special conditions
indorsed upon it ; and 2nd, that the proofs of loss had
not been made within the time fixed for that pui-pose by
a special condition on the policy. The reply to these
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xel] peck v. agricultural ins. CO. 496
defences was that the special conditions were unreason- Statement
able, and that if reasonable, they had been waived ; and as
to the second one, that it would be inequitable to allow it
to have effect. The policy was made on 23rd April, 1889,
upon an application signed by the insured, dated 21st
April, 1889, in which it was stated that the house was
occupied as a residence by the son of the insured. A
clause in the application immediately over the signature
of the applicant stated that " it is expressly agreed upon
the part of the applicant that no statement made or infor-
mation given by him prior to issuing the policy of insur-
ance based upon this application, to ajiy agent or solicitor
of the company, shall be deemed to be made to or binding
upon this company unless the same is reduced to writing
and incorporated in this application ;* and in the margin
of the application a notice was given in the foUowiug words :
'' The powers of the agents of this company are limited
to receiving proposals for insurance and collecting pre-
miums and giving the consent of the company to assign-
ments of policies."
The material portions of the special conditions indorsed
upon the policy were the following :
" This entire policy, unless otherwise provided by agree-
ment indorsed hereon or added hereto, shall be void * *
if a building herein described, whether intended for occu-
pancy by owners or tenant, be or become vacant or
unoccupied, and so remain for ten days. In any matter
relating to this insurance no person unless duly authorized
in writing shall be deemed the agent of this company.
'^This policy shall be cancelled at any time at the
request of the insurod, or by the company by giving
notice of such cancellation. If this policy shall be can-
celled or become void, or cease as hereinbefore provided,
the premium having been actually paid, the unearned por-
tion shall be returned on surrender of this policy, this
4M)mpany retaining the customary short rate ; except that
when this policy is cancelled by this company by giving
notice, it shall retain only the pro raid premium.
63 — VOL. XIX. O.R.
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496 THE ONTABIO REPORTS. [YOU.
Statement. "If fire occur, the insured * • within forty days
after the fire, unless such time is extended in writing by
this company, shall render a statement to this company,
signed and sworn to by said insured, stating the knowl-
edge and belief of the insured as to the time and origin of
the fire, * * the interest of the insured and of all
others in the property, the cash value of each item thereof,
and the amount of loss thereon, * * by whom and for
what purpose any building herein described and the
several parts thereof were occupied at the time of the
fire; and also the certificate of a magistrate or notary
public living nearest the place of fire, &c
" This company shall not be held to have waived any
provision or condition of this policy or any forfeiture
thereof by any requirement, act, or proceeding on its part
relating to the appraisal or to any examination herein pro-
vided for.
" No suit or action on this policy for the recovery of any
claim shall be sustainable in any Court of law or equity,
until after full compliance by the insured with all the
foregoing requirements.
'' No agent is permitted to waive any stipulation or
condition contained" in the policy.
At the trial at Belleville, before Armour, C. J., and a
jury, the plaintiff swore that when the agent came to him
and drew the application, he asked the plaintiff if there
was any one in the house at the time, and that the plain tifiT
told him that his son was living there at the time, but was
going to leave in about two weeks, and asked if that would
make any difference, and was informed by the agent that
it would not This evidence was corroborated by that of
the plaintiff's wife.
The fire took place on the 14th November, 1889. At thai
time, and for some six months previously, the dwelling-
house* had been unoccupied. The origin of the fire ap-
peared to be unknown. The plaintiff stated that he went
over the day after the fire to see the local agent, and that
he came down a few days afterwards and told the plaintifiT
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ILTX.] PECK V. AGfilOULTURAL INS. CO. 49T
that he might ^ave his pay in a few days, but that the Statement,
company had the right to keep it for sixty days ; that a
few days after the fire, the agent told him he had written
to Mr. Clarke, the inspector of the company, and finally
that he had written to Mr. Flynn, the general agent for
Canada. Nothing was done towards putting in claim
papers untilfearly in January, and they were not as a fact
put in until 14th January, 1890. When put in, they stated
that the dwelling-house was used by the applicant for
storing apples, &c., at the time of the fire. On the 15th
January, 1890, Mr. Flynn wrote to the inspector asking
him to point out to the applicant that in his proof he had
omitted to give the exact time since a family lived in or
left the dwelling, and saying that upon receiving this infor-
mation, he would lay the matter before the head office. On
the 24th January, 1890, he wrote the plaintiff declining
to pay, because the proofs of loss had not been put in
witiiin the time required by the conditions.
Upon these facts the leluned Chief Justice entered a
nonsuit, being of opinion that the plaintiff was debarred
from recovering by reason of the conditions of the policy
as to occupation ; and also because it did not appear that
anything had been done to satisfy the condition which
required the claim to be put in within forty days.
At the Easter Sittings of the Divisional Court the
plaintiff moved to set aside the nonsuit and enter judg-
ment for him or for a new trial, upon the ground that the
conditions relied upon were unreasonable, and should have
been so declared ; that the trial Judge had improperly
excluded evidence shewing that the defendants by their
acts and conduct had led the plaintiff to believe that the
fact of the premises being vacant was not regarded as
material to the risk by the defendants ; that the defects,
if any, in the proofs of claim were not open to objection
by the defendants ; and that sufficient proofs of ckum were
made by the plaintiff
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498 THE ONTARIO REPORTS. [VOL.
Argumwit. The motion was argued before the Divisional Court
(Falconbridge and Street, J J.,) on 27th May, 1890.
Clute, Q. C, for the plidntiff. The fire was on the 14tli
November, 1889, and the proof papers were put in on the
14th January, 1890. The case is within R S. 0. ch. 167,
sec. 118, which cures the defect. Imperfect compliance
has as much relation to time as to form : May v. Standard
A88. Co., 5 A. R at pp. 619, 620, 621. As to the objection
that the premises were not occupied, the agent was asked as
to this, and stated that it would make no difference. The
agent knew the intention was that the premises should be
vacant. I refer to Parsons v. Qv^n Ins. Go., 2 O. R 45 ;
Bobms V. Victoria Mutual Ins. Co., 31 C. P. 562 ; 6 A. R
427 ; Canada Landed Credit Co. v. Canada Agricultural
Jtis. Co., 17 Gr. 418. There was a wai^'e^ of the condi-
tions: Caldwell v. Stadacona Ins. Co., 11 S. C. R 212.
Forty days was an unreasonable time in which to require
the proofs to be furnished. * I refer to Smith v. City of
London Ins. Co., 110. R 38 ; Peoria Sugar Co. v. Can-
ada F. it M. Ins. Co., 12 A. R 418 ; MiUviUe M. & F. Ins.
Co. V. DriscoU, 11 S. C. R 183 ; Oraham v. Ontario Mutual
Ins. Co., 14 0. R 368 ; Hastings Mutual Fire Ins. Co. v.
Shannon, 2 S. C. R 394. There ought to be a new trial to
admit evidence of the insurance of James Peck, the plain-
tiff's brother, by the defendants, and their knowledge of
the property.
John W. Kerr, for the defendants. The plaintiff was
informed of the powers of the agent by the printed notices
in the application, and the defendants are not bound by
what took place between the plaintiff and the agent. I
refer to Logan v. ConMnerdal Union Ins. Co., 13 S. C. R
270 ; Western Ass. Co. v. DouU, 12 S. C. R 446 ; Shannon
V. Core Ins. Co., 2 A. R 396 ; AbraJuxms v. Agricultural
Mutual Ass, Ass'n., 40 U. 0. R 175 : BiUington v. Pro-
vincial Ins. Co., 2 A. R 158 ; Stichney v. Niagara District
Ins. Co., 23 C. P. 372.
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XIX.] PECK V. AGBICULTUKAL INS. CO. 499
June 27, 1890. The judgment of the Court was de- Judgment,
livered by Street, J.
Street, J. : — ♦
The plaintiff at the trial sought to give evidence of
certain transactiond between the local agent of the com-
pany and a brother of the plaintiff, for the purpose of
shewing that the plaintiff having become aware of them
hefore the application made by him was justified in
believing that the defendants did not regard the condition
as to occupation as a material one. This evidence was
properly excluded by the Chief Justice. The authority of
the agent to make the representations upon the former
occasion was not attempted to be shewn ; and if authority
had been shewn upon the former occasion, it would by no
means follow that the company might not have been
willing upon the former occasion to do something which
they expressly stipulated they would not do upon the sub-
sequent one. It would be extremely dangerous to import
into a complete contract in writing, such as we have here,
loose conversations and statements by persons having no
authority for the purpose, with the object of relieving one
party or the other from the results of his own want of
proper care, and of controlling the written agreement.
The defendants' local agent called on the plaintiff and
took his application for the insurance of this dwelling.
All that is stated in the application is that the dwelling is
occupied by the plaintiff's son. The plaintiff says that he
told the agent that it would become vacant in a fortnight,
and that the agent said that would make no difference ;
but immediately over the plaintiff's signature to the appli-
cation is a plain printed agreement by him that if he
desired to rely upon any information given by him to the
agent, he must have it inserted in the application in
writing. The wisdom and the necessity for such an agree*
ment are obvious. These applications are the foundation
of the contract into which the company enters, and there
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*00 THE ONTARIO REPOBTS. [VOL.
Judgment jg ^o hardship upon the applicant in compelling him after
Street, X due notice to rely solely upon what he puts in writing and
not upon his loose recollections as to what takes place
between him and the local agent at the ijjme the applica-
tion is signed. The authority of the local agent is defined
by the application signed by the plaintiff. He has no
power to make contracts but only to receive applications.
What the plaintiff, in fact, alleges here is that he made a
contract with the agent that the insurance should continue
notwithstanding that the house should become vacant.
The authority of the agent to make any such contract is
negatived by the limitation upon his powers to bind the
company contained in the application. The assent of the
company to any such contract is negatived by the pro-
duction of the policy with the condition indorsed, making
the policy void in case the dwelling should become vacant
and remain so for ten days : BiUington v. Provincial Ins,
Co., 2 A. R. 168.
It is then argued that the con lition is not a reasonable
one, because the fact that a dwelling may become vacant,
it is said, does not necessarily increase the risk.
In many cases it most certainly does increase it very
materially, and I can see nothing unreasonable in a com-
pany saying that they decline to insure vacant dwellings.
That is the effect of their condition here. They say in
substance, " We will insure inhabited dwellings — if they
cease to be inhabited, then our policy terminates at the
end of ten days, unless they again become occupied within
that time ; and if our policy becomes void from this cause,
the person insured, upon surrender of his policy, becomes
•entitled to a return of a proportionate part of his pre-
mium." There appears to be nothing unreasonable in
such a condition, and the cases in which it has been con-
sidered do not seem so to treat it: Abrahams v. AgrictuUurdl
Mutual Ass. Ass'n., 40 U. C. R. 175 ; KeUh v. Qwinoy
JHutual Ins. Co., 10 Allen 228;
In this view of the plaintiff's rights, it becomes unneoes-
;sary to consider the effeet upon them of the delay in put*
ting in the proofs of lo»iS.
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:K.IXJ] PHELPS V. ST. CATHARINES, *C., R. W. CO. 601
We think the motion should be dismissed with costs, and Judgment,
of course without prejudice to the plaintiff's right to street, J.
recover from the defendants the unearned portion of the
premium he has paid, and to which he appears entitled on
the surrender of his policy.
[CHANCERY DIVISION.]
Phelps v. The St. Catharines and Niagara Central
Railway Company.
MaiBways and railway companies— Bondholders* rights to property of—
Judgment creditors* right to garmsh earnings — Reeewer,
So long as a railway company ib a goinff concern, bondholders whose bonds
are a general change on the undertaking have no right, even although
interest on these TOnds is in arrear, to seize, or take, or sell, or fore-
doee any part of the property of the company. Their remedy is the
appointment of a receiver.
The bondholders of the defendants in this case were held not entitled to
the moneys claimed by them, which were the earnings of the road
deposited in a bank, and which had been attached by judgment credi-
tors of the road.
Decision of Botd, C, 18 O. R. 581, reversed.
This was an appeal from the judgment of Boyd, C. Statement,
(reported 18 O. R. 681).
The following statement is taken from the judgment of
Ferguson, J. :
"An order was made by the localJudge attaching infavour
of the plaintiff, an execution creditor of the defendants, a
sum of money which the defendants had on deposit in the
Bank of Commerce at St. Catharines, as a debt owing by
the bank to the defendants, and afterwards, as I understand,
an issue was directed to be tried between certain bondr
holders and the plaintiffs as to the right to such money.
The order has not been left with me.
On an appeal from the order of the local Judge it was
decided that while there might be no specific lien over
these particular moneys, yet that the bondholders as i^
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502 THE ONTARIO REPORTS. [VOI..
Stalemeni privileged body were entitled to be satisfied thereout in
priority to ordinary creditors such as the plaintiff, and
that unless it could be contended that the bondholders had
been paid, an issue between them and the attaching creditor
should not have been directed: or rather the learned Judge
said he did not see for what purpose such an issue should
be directed.
The learned Judge held that, it being assumed that the
bonds are valid and subsisting securities, it having been
shown that the overdue and xmpaid interest upon them
exceeded the sum in the bank, there was nothing to be
attached in respect of which there could be an issue, be-
cause the statute protects all the earnings of the company
(the defendants) for the benefit of the bondholders upon
whose enterprise or capital the undertaking was launched.
The bondholders' appeal was therefore allowed, and a cer-
tain cross-appeal dismissed, and from this decision is the
present appeal."
The appeal came on before the Divisional Court on
February 21, 1890, and was argued before Ferguson and
Robertson, JJ.
Collier, for the judgment creditors who appealed. The
rights of the bondholders depend on section 35 of 44 Vie.
ch. 73 (0.), the special Act incorporating the company^
They are, in the words of the section, mortgagees and
incumbrancers pro rata with all the other holders thereof
upon the undertaking and property of the company. The
bonds are merely floating securities giving the holder no
specific lien upon any portion of the company's assets z
RusseU V. East Anglian R, W. Co., 3 M. & G. at p. 125 ;
Hodges on;IUilways,7th ed.,pp.l27-8-9,and cases there cited.
[Ferguson, J. — ^Was there any statute in England putting-
the bondholders in the same position as in this country ?}
The Companies' Acts there authorized bonds or mortgage
debentures to be issued, which purported to assign to the
holders thereof all the property and assets of the company.
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XIX.] PHELPS V. ST. CATHARINES, *C., B. W. CO. SOS
The rights of the bondholders under the Act in question can Argnment
not be placed on any higher footing. The Legislature did
not have in view any different kind of mortgage debenture
than that theretofore known in law. By section 23 of the
Railway Companies Act of 1867, (Imperial), money borrow-
ed on mortgage, bond, or debenture stock, shall have priority
against the company, and the property from time to time
of the company over all other claims of ordinary creditors.
Yet it was held in Re Hull, Bai^naley, and West Riding
Junction R W. Co., 40 Oh. D. 119, that by that section
debenture holders acquired no lien or charge which they
did not possess before the Act. Their priority only arises
when the assets of the company are being dealt with in
some proceeding in the nature of an administration. No
individual bondholder can take or seize any of the com-
pany's property — they must proceed on behalf of all of the
same class : Bowen v. Brecon R. W. Co., L. R. 3 Eq. 541.
The ordinary creditors can attach anything which the
company could assign without the concurrence of the bond-
holders : WheaUey v. Silkstone & Eaigh Moor Coal Co.,
29 Ch. D. 715. Tolls can be attached : Swiney v. The
EnniskiUen, <bc., R. W. Co., 2 Jr. Rep. C. L. 338. A
transfer of a company's property in payment of a just
debt is not an infringement upon the rights of the bond-
holders : WUmott V. London Cdlvloid Co., 34 Ch. D. 147.
A company can make a valid charge on a specific asset to
secure advances so as to defeat the claims of debenture
holders thereto : In re Hamilton's Windsor Iron Works,
Ex p. Pitman and Edwa/rds, 12 Ch. D. 707. An assignee
of freight has been held to be in the same position : Ward
V. The Royal Exchange Shipping Co., 68 L. T. N. S. 174 ;
Lindley's Law of Companies, 197. The attaching creditors
can claim anything that the company could assign without
interfering with the rights of the debenture holders, and
the case of Hubbuck v. Helms, 35 W. R. 574, shews under
what circumstances the latter could enjoin an assignment
by the company of its assets. A transfer to pay an honest
debt could not be so impeached.
64 — VOL. XIX. O.R.
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504 THE ONTARIO BEPOBTS. [TOL.
AigaaMnt. HcyUa, Q. C, and IngeraoU, for the bondholders. If
bondholders can be postponed, they will be cut out of
even their statutory lien of preference. The judgment
creditors are not in as good a position as any one having a
specific charge : Smith v. The Port Dover, <l:c., R W. Go,, 12
A. R 288. In many cases cited, the charge given was
not the same as here : In re Hull, Barasley and West
Riding Junction R W. Co., 40 Ch. D. 119, is decided on
an English statute, which gives no charge on the com-
pany's property. Russell v. Sast Anglian R, W. Co., 3 M.
k G. at 125, was the sama This company's Act was passed
to meet the difficulties in the cases cited. The bonds are a
lien on the whole " undertaking," sec 35. The undertaking
is a going concern, which is making a return or growing
fruit, and is not worn out or used up : BlaJcer v. Herts
amd Essex Water-works Co., 41 Ch. D. 399, at p. 407 ; In
re Panama, Jkc, Royal Mail Co., L. R 5 Ch. 318. There
is no authority that a bondholder cannot come on bis own
behalf alone without bringing in the body of the bond*
holders.
Collier, in reply.
June 9, 1890. Ferguson, J. :—
On the argument before us it was scarcely contended
that the learned Judge was not right in the view stated,
that the scope and effect of the bonds held by the bond-
holders must depend on the proper construction of section
85 of the Act incorporating the defendants, and not on
section 95 of the Dominion Railway Act of 1888. This
was, as I thought, conceded.
This incorporating Act is the Provincial Act 44 Vic ch.
73, (O.) (1881). The material part of the 35th section is:
^'And such bonds shall without registration or formal
•conveyance be taken and considered to be the first and
preferential claims and charges upon the undertaking, and
the real property of the company, including its rolling
atock and equipments, then existing and at any time
Digitized byVjOOQlC
XIX.] PHELPS v. ST< CATHABINES, AC, R. W. CO. 505
thereafter acquired, and each holder of the said bonds Judgment
shall be deemed to be a mortgagee and encumbrancer pro Ferguson, J.
rcUa with all the other holders thereof, upon the under-
taking and property of the said company as aforesaid."
The money in the hands of the bank and sought to be
attached by the plaintiff as a debt owing by the bank to
the defendant company is admitted to be money which
was tolls and earnings of the company.
The learned Judge says in his judgment that in railway
parlance, "undertaking" has been defined to mean the
completed work from which returns of money or earnings
arise, and that a charge on the " undertaking" means that
these earnings are destined for the satisfaction of the
charge, referring to Gardner v. London, Chatham^ and
Dover R. W. Go., L. R 2 Ch. at p. 217, where Lord Cairns
says : " The tolls and sums of money ejuadem generis,
that is to say, the earnings of the undertaking must be
made available to satisfy the mortgage; but, in my opinion,
the mortgagees cannot, under their mortgages, or as mort-
gagees, by seizing, or calling on this Court to seize the
capital or the lands, or the proceeds of sales of land, or
the stock of the undertaking, either prevent its completion
or reduce it into its original elements when it has been
completed."
The learned Judge refers also to In re Panama, New
Zealand and Auetralian Royal Mail Co., L. R 5 Ch. 318,
and Blaker v. Herts amd Essex Waler-works Co,, 41 Ch. D.
at p. 407.
Although the language of this section 35 is different
from that contained in the English Act, yet when one
looks at the English Act and the authorized form of mort-
gage deed, and takes into consideration the policy of the
law in regard to railway undertakings expressed in so
many cases, I think the conclusion to be arrived at is, that
the effect of the mortgage bond under this section 35 as
against the railway company and their property, is the
same as that of the mortgage bond or deed in England.
Each seems to me to be a mortgage of the " undertaking."
Digitized by VjOOQIC
606 THE ONTARIO REPORTS. [VOL.
Judgment. Lord Cairns in the same judgment previously, says :
Ferguson, J. " Moneys are provided for, and various ingredients go to
make up the undertaking ; but the tei-m " undertaking" is
the proper style, not for the ingredients, but for the com-
pleted work, and it is from the completed work that any
return of moneys or earnings can arise. It is in this
sense, in my opinion, that the '* undertaking" is made the
subject of a mortgage. Whatever may be the liability to
which any of the property or effects connected with it may
be subjected through the legal operation and consequences
of a judgment recovered against it, the undertaking, so
far as these contracts of mortgage are concerned, is, in my
opinion, made over as a thing complete, or to be completed,
as a going concern, with internal and parliamentary powers
of management, not to be interfered with, as a fruit
bearing tree, the produce of which is the fund dedicated
by the contract to secure and to pay the debt. The living
and going concern thus created by the Legislature, must
not, under a contract pledging it as security, be destroyed,
broken up, or annihilated."
In the case Re Panama, <kc,y supra, Giffard, L. J., says :
" And I take the object and meaning of the debenture to
be this, that the word * undertaking' necessarily infers that
the company will go on, and that the debenture holder
could not interfere until either the interest which was due
was unpaid, or until the period had accrued for the pay-
ment of his principal, and that principal was unpaid."
The same proposition is stated by Mr. Justice Kay in
Blaker v. Herts, Ac, supra, and I understand the same to
be the meaning of Sterling, J., in the case Hvhbuck v.
Helms, 35 W. R. 574, where the learned Judge quotes from
Mr. Justice North in the case Wheatley v. SiUcstone, Sc,
Coal Co., 29 Ch. D. at p. 724, and also from James, L J.,
In re Floi^ence Land and Pvi)lic Works Co., 10 Ch. D.
530, where it is said that so long as the company is a going
concern the debenture holders are not entitled to interfere
with the rights of the directors to deal with any part of the
assets in the ordinary course of business. But as soon as
Digitized byVjOOQlC
XIX.] PHELPS V. ST. CATHARINES, *C., R. W. CO. 507
the company makes default in payment of principal or J^^gm^t
interest, or is woxmd up, or as it seems to me, ceases to be Fergoflon, J.
a going concern, the right of the debenture holders arises
to ask the Court to appoint a receiver of the assets, and to
realize their security* In the case before Stirling, J., he
was of the opinion that the company had ceased to be a
going concern.
In Lindley's Law of Companies, 5th ed., at pp. 196 and
197 the law ia stated generaUy in this way : " If, as is
usually the case, it (the debenture) purports to give the
holder a charge on the undertaking or the general property
of the company, the charge given is what has been called
a floating security, that is, it charges the property of the
company for the time being, but does not prevent the com-
pany from dealing with the property in the ordinary course
of its business. Consequently, if a company, after having
issued debentures of this nature, mortgages a specific part
of its property in the ordinary course of its business, or to
x)btain an advance of money necessary to carry on that
business, the specific mortgagee, whether he had notice of
the previous issue of debentures or not, has priority over
the debenture holders. On the appointment of a receiver
by a debenture holder, or on the commencement of a
winding up, the floating nature of the security is at an end,
and the charge then becomes effective on the property of
the company existing at that time, but not as a rule on
capital which has not been called up."
In Kerr on Receivers, 2nd ed., at p. 55, it is said that
the appointment of a receiver is the only remedy open to
the holders of mortgage debentures of a railway; the
right to foreclosure or sale is denied to them. Reference
is made to the case Fwmesa v. Caterham R, W. Go., 25
Beav. 614, in which the Master of the Rolls points out the
inconvenience of granting either a sale or foreclosure where-
by the benefit of the line of railway might be lost to the
public ; the same case in 27 Beav. 358.
In the case Simpson v. The Ottawa and Prescott R. W.
Co., 1 Ch. Cham. 126, the duty of a receiver of a railway
Digitized byVjOOQlC
508 THE ONTARIO REPORTS. [VOL.
Jndgment. company is pointed out as being to receive the gross
FeignBon, J. receipts of tbe company for the carriage of passengers,
freight, mails, &c., and to pay the bills for running ex-
penses thereout. The words in the judgment at p. 189
are : " Out of the moneys so received by him he pays the
expenses of the undertaking, and the interest of the mort-
gagees, and the balance into Court" These are in a
quotation from Sir John Romilly in the case Ames v.
The Trustees of the Birkenhead Docks, 20 Beav. at p. 350.
In Peto V. The Welland R W. Go,, 9 Or. 455, it is shewn
that the fappointment of a receiver is the proper remedy
of a judgment creditor of the company who has an execu-
tion against lands, and the impracticability of selling the
lands is pointed out by the learned Judge.
I have examined a large number of authorities bearing
more or less upon the subject. It is nevertheless entirely
possible that I have not imbibed the correct idea, and I
have the greater hesitancy owing to the well known
accuracy of the learned Judge whose decision is under
review. The conclusion, however, that I have arrived at
is that so long as the undertaking is a '' going concern,"
these bondholders have not a right, even though interest
on their bonds be overdue and unpaid, to seize, or take or
sell or foreclose any part of the property of the defendant
company by virtue of the mortgage bonds, and that the
remedy — ^the sole remedy — is as stated in Kerr on Re-
ceivers, p. 55, before referred to, namely by the appoint-
ment of a receiver, in which case the undertaking Vould
be continued a going concern, the intention of Parliament
carried into effect, and the interests of the public in the
undertaking preserved, unless and until a '' winding up" or
some other fatal disaster should becomei the inevitabla
If on the contrary of this the bondholders had the
right whenever interest was overdue and unpaid to claim
any and every sum of money earned by the undertaking,
that could be found by them, and acted according to such
right, the consequence would be that the undertaking must
cease to be a going concern, for a management of it would
not under such circumstances be reasonably possible.
Digitized byVjOOQlC
XIXj PHELPS V. ST. CATHARINES, *a, R. W. CO. 509
If th^re were nothing more to be said, I should be of the Judgment,
opinion that these bondholders are not entitled to the Ferguson, J.
money in question by reason of their being such holders
even though there is overdue interest unpaid.
The csase Swiney v. The EnniakUlen, <kc. M. W. Co.y 2 Ir.
R. (C. L.) 338 ; seems to me to have a very important
bearing upon the question. There, money that had been
tolls of the railway company became an acknowledged
debt from another company under circumstances that I
need not detail here. It was garnished by a creditor of
the company. Debenture mortgagees of the tolls of the
defendant company moved to discharge the garnishee order.
There was some contention based on the ground that
the order was absolute, but it was opened up by the
Court, at all events, for the purposes of the motion. In
the argument it was admitted that it had been open to the
mortgage bondholders to have had a receiver appointed^
from which I assume that some interest or principal was
overdue and unpaid.
The learned Judges, apparently gaining some of their
light from English decisions, in deciding against the con-
tention of the bondholders seem to emphasize the fact
that nothing had been done by the bondholder by way of
putting themselves in a position to realize upon their bonds,
and the fact also that the moneys in question were not
unpaid tolla Fitzgerald, J., at p. 347 said : '' If this sum
of money sought to be attached had consisted of unpaid
tolls, a nice question would have arisen ; but upon that it
is unnecessary for us to express any opinion, for it appears
by the admission of the Irish North Western Company,
that this sum represents tolls actually received. It appears
to me, therefore, that these debenture holders can, under
the circumstances, establish no claim to it. It would have
been impossible for them to have touched it in the hands
of the Enniskillen, &c., Co., and, therefore, they have no
grounds for coming here," &c (This Enniskillen Co.^
were the company that issued the bonds).
Some of the other Judges take the same grounds and
Digitized byVjOOQlC
^10 THE ONTABIO REPORTS. [VOL
Judgment. Hken the case of the bondholders to that of the mortgagee
FeigQBon, J. of lands seeking to obtain rents of the lauds that had been
paid over to the mortgagor before he the mortgagee had
given any notice or done any act to obtain possession of
the land. George, J., however, I think, grounded his
judgment on the garnishee clauses of the Common Law
Procedure Act
In the present case I incline to think that the money in
the hands of the Bank was so there as to make the bank a
debtor to the defendant company, but all the evidence on
this subject is not here.
In the affidavit of Mr. Cross, the banker, he says : The
account at which the money was is headed, " St Cathar-
ines and Niagara Central Railway Co., Traffic Account,
Richard Wood, Secretary-Treasurer." He says when
moneys were drawn from the account the checks were
similar to the one shown him, and that is not here. I
do not know what it was like. He also says that at the time
of the opening of the account a copy of some resolution
was shown him. That also is not here, and I do not know
what it was.
Some of the affidavits show that this money belonged
to the Michigan Central Railway Co., and that it was
intended to be paid them as soon as the accounts between
the two railway companies could be adjusted. The use of
the word " belonged " may however be taken I think to
mean no more when taken in conjunction with some other
parts of the evidence than that a part of it had been
received to the use of that company, and that it was
intended to pay to them this sum in liquidation of that and
other demands. There is not here, I think, evidence enough
to show that this was not a debt owing from the bank to
the defendant company, and if it was such a debt I see no
good reason why the plaintiff should not have the benefit
of the garnishee clauses of the Act. I refrain from de-
ciding that it was or was not a debt from the bank to
the defendant company, because I have not all the evidence.
I am of opinion, however, that the bondholders had not
Digitized byVjOOQlC
XIX.] PHELPS V. ST. CATHABINES, AC, R. W. CO. 611
and have not a right to this money, and I am very hum- Jndgment.
bly of the opinion that the judgment appealed from should Ferguson, J.
be reversed.
Robertson, J. : —
The 35th section of the Act incorporating the Si Catha-
rines and Niagara Central Railway Company, 44 Vic. ch.
73 (O.), declares that the directors of the company, after
the sanction of the shareholders shall have been 6rst
obtained at any special or general meeting, called for that
purpose, &c., shall have the power to issue bonds for the
purpose of raising money for prosecuting the said under-
taking, and such bonds shall, without registration or
formal conveyance, be taken and considered the first and
preferential claims and charges upon the undertaking, and
the real property of the company, including its rolling
stock and equipments, then existing, and at any time
thereafter acquired, and each holder of the said bonds
shall be deemed to be a mortgagee and incumbrancer pro
raia with all the other holders thereof, upon the undertak-
ing and property of the said company as aforesaid.
The plaintiffs are judgment creditors of the defendants
the St. Catharines and Niagara Central Railway Company,
to the amount of 91,063.73. The garnishees, the Canadian
Bank of Commerce, have on deposit to the credit of the
traffic account of the defendants 9^87.72 ; the claimants
are holders of the company's bonds issued under and by
authority of the above section of the defendants' Act of
Incorporation, and there are issued under that section, bonds
to the amount of JC46,000 sterling : and the question is
whether this sum on deposit in the bank can be attached
to pay the plaintiff's judgment in priority to the claim of
the bondholders.
The matter comes before this Court by way of appeal
from the judgment of the learned Chancellor who allowed
an appeal by the bondholders against an order made by
the learned local Judge of the High Court atSt Catharines,
66— VOL. XIX. O.K.
Digitized by VjOOQIC
512 THE ONTiiBIO REPORTS. [VOL.
J«4gment. directing an interpleader issue to be tried between the b(»id--
RobertMn, J. holders and the execution creditors as to whether the
former are entitled to the said sum as against the said
creditors.
The moneys in question are the earnings of the said
road, and the question is whether these bondholders by
virtue of -these securities have a preferential claim upon
them.
I have had the advantage of reading and considering my
brother Ferguson's judgment, and the cases referred to by
him, and I have come to the same conclusion that he has
arrived at. I cannot see how any ordinary creditor could
enforce his claim if it were held that the bondholders had
a right to step in and seize the daily earnings of the under-
taking after they are deposited in the bank. The whole
of the undertaking, including the rolling stock and all
other loose property belonging to and used in the working
of the railway, is charged with the payment of the bonds or
debentures, but nothing more, as I understand it. If then
these bonds or debentures are in default the only remedy
open to the holders is the appointment of a receiver. The
undertaking is still a going concern, and its earnings would
then be applicable after the payment of all running expenses,
&c., to the payment of interest and principal doe on
the bonds, &c. But so long as the undertaking is in the
hands of the company and is being worked by them, the
bondholders in my judgment are not in a position to claim
against ordinary creditors payment to them of any money
which may be due to the company in the hands of any of
its debtors. I am therefore of opinion, with great deference,
that the judgment appealed against should be reversed, and
with costs.
G. A. B.
Digitized by VjOOQIC
XIX.] wHrra V. tomaun. 51S^
[CHANCERY DIVISION.]
White v. Tomalin.
Ccntiract-^Statvie of Fravds — Extrinaic parol evidenee cls to parties —
Specific performance.
Although extrinaic parol eridence mav be given to identify one of the
parties, it cannot be given to supply information as to the person to
whom an offer in a memorandum required to be in writing by the
Statute of Frauds was made or for whom it was intended.
And where an offer, signed by the defendant, to exchange a stock of
goods for land did not in any way desi^piate the person to whom it
was supposed to be made or for whom it was intended, and such
person could not be ascertained without extrinsic parol evidence adding
to the memorandum : —
ffeld, not to be an agreement in writing within the statute so as to entitle
Ae plaintiff to specific performance : —
Held, also, that an acceptance of the offer beneath the defendant's
signature, signed by the plaintiflf 's assignor, did not cure the defect.
This was an appeal from the judgment of Falcon- Statement
BBIDOE, J.
The action was for the specific performance of an alleged
agreement for the sale of goods (set out in the judgment of
Ferguson, J.,) and was tried before Falconbridge, J., at
the Toronto Assizes, on December 5th, 1889.
WaUace Nesbitt, for the plaintiff.
Laidlaw, Q. C, for the defendant.
February 11th, 1890. Falconbridge, J. :—
The alleged agreement purports to be a sale of a stock
of groceries, &c., taking in payment therefor one hundred
acres of land. The document does not name any pur-
chaser, and is therefore a mere offer, in writing, not
addressed to any one, signed by the defendant.
The signature of McMahon, the assignor and alleged
i^nt of plaintiff, follows that of the defendant.
This wonld not appear to have been an execution of the
paper by McMahon, (if his execution would validate the
alleged memorandum,) for McMahon appends a formal
Digitized byVjOOQlC
514 THE ONTARIO REPOBTS. [VOL.
Judgment acceptance or agreement to purchase the stock and convey
Falconbridge, the land.
^' I am of the opinion that neither under the fourth nor
the seventeenth sections of the Statute of Frauds is there a
su£Scient memorandum or agreement in writing : WHUams
V. Jordan, 6 Ch. D. 517 ; Vanderibergh v. Spooner, L R.
1 Ex. 316.
Other objections were urged against plaintiff's right to
specific performance or damages.
Action dismissed with cost&
From this judgment the plaintiff appealed to the Divi-
sional Court, and the appeal was argued on Febiuary
22nd, 1890, before Boyd, C, and Ferguson and Robert-
son, JJ.
AyUmn-Finlay and 8cho^, for the appeal The agree-
ment is sufficient within the statute. The offer was
handed to McMahon, and he accepted it before it was
withdrawn. Only reasonable certainty as to the parties
and terms is required. In Cooke v. Oxley, 3 T. R 653, the
offer was to be kept open until a certain time, and the
vendor was bound, but the vendee was not. Here the
vendor was not bound unless he chose to leave the ofier
open. In WiUiamis v. Jordan, referred to by the trial
Judge, the offer was not accepted. No one was mentioned
as principal, and the agent did not accept. A proposal in
writing accepted by parol is sufficient: i2ete^ v. Pickdey,
L. R. 1 Ex. 342. An unconditional acceptance such as
we have here is quite sufficient. If the names of both
parties appear and they can be identified, the contract is
sufficient : Sari v. BourdiUon, 1 C. 6. N. S. 188 ; Benjamin
on Sales, 4th ed. 205 ; Wa/mer v. Wellington, 3 Drew. 521
Vandenbergh v. Spooner, L. R 1 Ex. 316, relied on by the
trial Judge, was characterized as an extreme case by both
Wills and Byles, JJ., in Neu^l v. Badford, L. R3C.P.5i
Even if a variation is inserted, subsequent assent would vali-
date the agreement : Stewart v. Eddowea^ L. R 9 C. P. 311.
Digitized byVjOOQlC
XIX.] WHITE V. TOMALIN. 515^
If an erroneous representation is made, it is not a ground for Argament.
rescission unless it varies the whole contract : Kennedy v.
The Pcmama, cfec., Go., L. R. 2 Q. B. 580. The plaintiff's
name might be supplied : Allan v. Bennet, 3 Taunt. 169.
Bain, Q. C, and Beynon, Q. C, for the defendant. The
memorandum is not sufficient within the statute. There was
no contract with McMahon, as he did not own the land, and
so there was no mutuality. The fact that the plaintiff was
the owner, will not put her in any better position. There
was no mutuality at the time the contract was made.
Even if the plaintiff wished to adopt the bargain made by
McMahon as her agent, she has not signed the acceptance.
The document does not shew who is vendor or who
is vendee. The name of the vendee cannot be supplied
by parol evidence. Parol evidence may be given to explain
or construe a contract, but not for the purpose of making
the contract. If the seller's name should appear, so should
the purchaser's : Vandenhergh v. Spooner, L. R. I Ex. 316-
We also refer to McClung v. McCrackeTi, 3 0. R. 696 ;
Jarrett v. Hunter, 34 Ch. D. 182.
Aytoun-Finlay, in reply, referred to Blackburn on Sales,
2nd ed., p. 54 ; Benjamin on Sales, 4th ed., p. 192 ; Kennedy
V. Oldham, 15 0. R 433.
June 9, 1890. Boyd, C. :—
The evidence leaves no doubt that there was a contract
between the parties, but the Statute of Frauds having been
pleaded, the question to be determined is whether the con-
tract is manifested in conformity with the requirements of
that statute.
It purports to be a contract of buying or selling
in the way of exchange, of which the plaintiff seeks
to take advantage, and enforce specifically as being a con-
tract made with or enforceable by her. The statute
requires that such a contract shall be evidenced by some
sufficient memorandum in writing signed by the party
to be charged.
Digitized by VjOOQIC
^Ifi THE ONTABIO BBa?0RT8. [vOLy
Jnagment, Tj^e plaintiff sues as assignee of McMahon, and can-
Boyd, O. not have greater rights than he possessed. McMahon
is not named or described or referred to specifically or
indeed in any way in the writing, signed by the defen-
dant, as the person to whom the offer was made. For it is
to be noted that the memorandum sued on is not an
agreement, but nothing more than an offer or proposal of
the defendant to transfer his stock, &c., for a certain piece
of land. The plaintiff seeks to make out an agreement by
adding to it at the bottom an acceptance in writing signed
by McMahon. But the offer, originally vague and
indefinite as to the person intended, cannot be made cer-
tain in this way : for any other person as well as Mc-
Mahon could have, with as much reason, appended a similar
acceptance. There is nothing in the offer which enables
McMahon or the plaintiff to incorporate this acceptance
with the offer so as to authenticate the whole by the
signature of the defendant.
It is evident from the frame of the offer that we cannot
know to whom that offer was made, or for whom it was
intended without parol evidence, and this not merely to
explain, but to supi^ement the writing. Evidence may be
given to identify one of the parties named or described in
the memorandum of the bargain, but not to supply infor-
mation in that regard.
I had occasion to explore somewhat this branch of the
law in the cases of WHmat v. StalkeT, 2 O. K 78 ; and
Richard v. StUhodl, 8 O. K 511, in which many authori-
ties are collected. To these may be added WUliaans v.
Jordan, 6 Ch. D. 617, which is very much in point, and
was relied on by the Judge of first instance, and the impor-
tant case in the Privy Council of Wittianis v. Bymee, 1
Moo. P. C. N. S. IM, in which is a dictwm hard to understand.
See also Oraflon v. Owmmga, 99 (T. S. 100, which follows
the same line of authorities.
Force of authority compels me to give effect to this
objection, based on the insufficiency of the written evidence
of the contract, but considering the dealings of the parties
Digitized byVjOOQlC
:XIX.] WHITE V. TOMALIN. 617
in the prosecution of the bargain which really existed be-
tween them, I favour withholding costs in this C!ourt, though
the judgment of the Court below is affirmed.
Ferguson, J. : —
The action is for specific performance of an alleged con-
tract for the exchange of a certain store or stock of gopds
for a farm. Amongst other defences, the defendant says
that the alleged contract is void by reason of ambiguity
and uncertainty, and under the provisions of sections 4
And 17 of the Statute of Frauds.
The trial took place before my brother Falconbridge,
iTvho directed a judgment to be entered, dismissing the
action with costs
The paper signed by the defendant and relied on by the
plaintiff is as follows : —
" I hereby agree to sell my stock of groceries, provisions,
glassware, crockery, apples, and all other goods in connec-
tion with my business in Brampton, including wagons^
aleigh, harness and hay, brides other goods in cellar,
storehouse, bam, (horse excepted), and agree to take in
-payment for said stock of goods, &c., &c., one hundred
4ieres of land, being lot 5, concession 3, township St. Vincent,
<sounty Grey, at present occupied by one Richard White,
being lot shown to me by Mr. W. White: possession of said
land to be given on or before the first day of January, 1888*
joid possession of store and stock (excepting dwelling) to be
had soon as papers in connection with transfer of land is
<x>mpleted, and all stoc^k and goods sold from this date to
be accounted for by me. Kent of store to be at the rate
of two hundred dollars per year, payable monthly ; and
further agtee to pay the sum of $M>0, one half in three
months from date and half in six months from date ;
and further agree to pay a certain mortgage on said farm
of two thousand five hundred dollars, bearing si^ and three-
quarters per cent, interest All arrears and interest on
said mortgage to be paid up to darte. Possession of dwel-
Digitized byVjOOQlC
818 THE ONTARIO REPORXa [VOL
Judgment, jjug ^ be had soon as Mr. Tomalin can conveniently
FerguMii, J. arrange to move. A correct account of all goods from this
hour to be kept and accounted for by me, and further
agree to include in stock certain stock of groceries and
other goods just bought by me in Toronto.
" Joseph Tomalin.
" F. B. McMahon.
" Brampton, 10th Nov., 1888, 4 o'c. p.m.".
Sometime after the date of this document McMahon
signed upon the same paper what has been called an
acceptance, in these words :
" I hereby agree to purchase the above mentioned stock
on the terms aforesaid, and to convey the land intendea to
be taken in exchange.
" F. B. McMahon."
He also executed an assignment (which is endorsed on
the same paper) of all his interest in the document to the
plaintiff. This bears date the 10th November, 1888, but
the evidence shews that the fact took place long after the
day.
On the part of the defendant it was contended that
where the question is, whether or not the memorandum is
sufficient to satisfy the requirements of the statute, evi-
dence of the surrounding facts and circumstances at the
time of the signing of it ia not admissible for the purpose
of ascertaining the proper meaning to be given to the
language employed. This contention was, I think, quite
erroneous. The authorities are abundant to shew that
evidence of such facts and circumstances can be given in
evidence : Macdonald v. Longhottom, 1 £111. & Ell. 977 ;
the same case in Error, ih. 987 ; Spicer v. Cooper, 1 Q. B.
424 ; NeweU v. Badford, L. R. 3 C. P. 62, in the last of
which reference is made to the Vandenbergh v. Spoon^fr
L. R 1 Ex. 816.
In Blackburn on Sales at p. 47, it is said that
precisely the same evidence is admissible to shew what
the writing refers to, when it is a memorandum of a
bargain within the statute, as would be admissible to
Digitized byVjOOQlC
XIX.] WHITE V. TOMALIN. 519
explain it if it were a memorandum of a bargain not Judgment,
within the statute ; but when it is ascertained to what the Fargasoo, J.
writing refers, the statute steps in, &c. The same subject
is discussed somewhat in Benjamin on Sales, 4th ed., p. 198.
It is said (Blackburn on Sales, p. 47) that the gene-
ral rule seems to be, that all facts are admissible which
tend to shew the sense the words bear with reference to
the surrounding circumstances, concerning which the words
were used. But while this is so, no parol evidence can be
received to vary or add to the memorandum.
The writing in the present case employs the word
" agree," but is only an offer. It can be no more than an
offer. This offer is not made to any one. It is not in any
manner addressed to any one. It is signed by the defen-
dant and by McMahon. The latter may have signed as
a witness or otherwise. He is not named or mentioned in
the memorandum, nor does the memorandum specify any-
thing or any act to be done by him. His name constitutes
no part of the writing signed by the defendant. No parol
evidence of intention can be given or received, and, so far
as the writing has concern, it seems to me that any other
person would have as high a right or as much authority to
accept the offer of the defendant as McMahon.
The writing is, I think, not a memorandum that is
sufficient as a memorandum of an " agreement" under the
provisions of the fourth section, or a note or memorandum
of a " bargain" under the provisions of the seventeenth
section of the statute. It is l^aid that the fourth section is
construed more rigorously than is the seventeenth section,
but, in either case, it is settled, I think, that it is indis-
pensable that the memorandum should show not only who
is the person to be charged, but also who is the party in
whose favour he is charged. The name of the party to be
charged is required by the statute to be signed so that
there can be no question as to the necessity of his name
in the writing ; but it is said that the authorities have
equally established that the name or a sufficient descrip-
tion of the other party is indispensable, because without
66— VOL. XIX. O.R.
Digitized by VjOOQIC
520 THE ONTAEIO REPOBTS. [VOL.
Judgment, it no contract is shewn, inasmuch as a stipulation or
Ferguson, J. promise by A. does not bind him save to the person to
whom the promise was made, and until that person's name
is shewn it is impossible to say that the writing contains
a memoi-andum of the bargain : Benjamin, pp. 202 and 203.
In WilliamaY. Lake, 2 Ell. & Ell. 349, the memorandum
was held insufficient under the 4th section, because the
name of the person for whom the document was intended
did not in any way appear upon the face of it, so that it
did not contain the names of both the parties to the con-
traci
In Williams v. Byrnes, 1 Moo. P. C. N. S. at 196,
196, it is said ** The words require a written note of a
bargain or contract * * . This language cannot be
satisfied unless the existence of a bargain or contract
appear evidenced in writing, and a bargain or contract
cannot so appear unless the parties to it are specified,
either nominally or by description, or reference." There is
one passas^e in that case occurring at p. 198, that I am
willing to say that I cannot understand or reconcile with
other parts of the judgment
In the case Rossiter v. MiUer, 3 App. Cas. at p. 1147, Lord
O'Hagan says, " The parties to a contract in writing must,
no doubt, be specified,but it is not necessary that they should
be specified by name." And in the same case. Lord Black-
burn, at p. 1153, says: "And though the construction by
which it is held that there can be no memorandum of the
agreement unless the writing Shews who the parties are, is
now vnveterateyii is not necessary that they should be named.
It is enough if the parties are sufficiently described tofix who
they are without receiving any evidence of that character
which Sir James Wigram in his Treatise calls evidence
Ho prove intention as an independent fact.'" The judg-
ment of Sir Qeorge Jessel, M.R., in the case Williums ▼.
Jordan, 6 Ch. D., at p. 520, referring to and following
Wa'i^er v. WiUington, 3 Drew. 523, is to the same effect.
There the letter containing the offer was addressed " Sir,"
but the learned Judge was unable to ascertain who waa
meant by the word " Sir."
Digitized byVjOOQlC
XIZ«} WHITE V. TOHAUN. 521
There are other authorities that might be referred to Judgment,
showing the same thing, but it does not appear to me to Ferguson^ J.
be necessary further to pursue the matter here.
In the present case, the offer signed by the defendant
does not name, or in any way, designate the person to
whom the offer is supposed to be made, and such person
cannot be ascertained without introducing extrinsic parol
evidence, adding to the memorandum, which cannot he done.
In this respect the case seems to me clearly different from
the case Richard v. StilkoeU, 8 0. R. 511, in which the parol
eyidence received was simply, as it appears to me, in the
nature of evidence shewing the contents of a lost docu-
ment. The envelope on which the name and address of the
" other party " had been written by the sender was lost.
As said in the judgment, if the letter sealed up had been
carried into Court the letter and envelope would be con-
sidered as one paper, the paper that had been sent to and
received by the ** other party." And further, suppose the
old method of sending letters had been adopted, the super-
scription containing the name and address of the ** other
party " would have been actually upon the same paper as
the offer, and could not have been lost unless the offer itself
had been lost, and if all had been lost parol evidence show-
ing the contents of the lost document could surely have
been given, and it cannot make any difference that only
part was lost.
The supposed acceptance by McMahon, as I have already
said, does not in ray opinion help the case. The offer does
not show that it was made to bim, and there is no further
or subsequent writing signed by the defendant.
At the time of the making of the supposed assignment
to the defendant McMahon had not, I think, anything, or
any right (in the face of a plea setting up the statute) to
assign, and if so this cannot help the plaintiff.
I concur in the judgment of the Chancellor, being of the
opinion, for the reasons that I have endeavored to state, that
tbememorandumreliedon by the plaintiff isfatally defective.
BoBEBTSON, J., concurred.
Q. A. B.
Digitized by VjOOQIC
522 THE ONTARIO REPORTS. [YOIi*
[QUEEN'S BENCH DIVISION.]
Brigqs y. Semmens ET AL.
Way—JBfOuement^Severance of tenetnetU by cUvMe—SetuonaiUe etyojfmaU
of porta devised — Necessary rights oj way.
Upon the severance of a tenement by devise into separate parts, not only
do rights of way of strict necessity pass, but also rights of way necessaiy
for the reasonable enjoyment of the parts devised, and which had been
and were up to the time of the devise used by the owner of the entirety
for the benefit of such parts.
Statement. This was an action brought to try the right claimed by
the defendant McDonough to use a certain way and to
remove as a cloud upon the plaintiff's title a grant by the
defendants Sarah and A. W. Semmens to McDonough, of
the way in question, and was heard before Street, J.,
at Hamilton, without a jury, on the 9th October, 1889.
The facts are fully set out in the judgment of Street, J.
Lynch'Stav/aton and 0*Heir, for the plaintiff.
I* Teetzel, for the defendants Sarah and A. W. Semmen&
J. W. Neshitt and Martvn Malone, for the defendant
McDonough.
October 12, 1889. Street, J. :—
The accompanying sketch shews the position of the
property.
Digitized by VjOOQIC
XIX]
BRIGGS y. SEMMENS.
523
r
o
H
Dwelling Hottse
0.
Defendant's
Dwelling House
Shed
3 FBET
68 FBBT
CATHARINE
66 FBET
STREET
>
cj
o
a
>
in
H
W
w
H
Digitized by
Qoo^^
524 THE ONTABIO REPOBTS. [YOIs^
Judgment. At the trial I disposed of certain questions of fact aad
Street, J. Iaw which were in dispute, and it is now not necessary
that I should refer to them, save in so far as they bear
upon the decision of the remaining questions.
Hannah Bell died in the year 1885, being owner in fee
of lots 139 and 144, at the corner of Augusta and Oatharine
streets in the city of Hamilton. She lived for many
years before and down to about the time of her death in
the house on lot 144 marked dwelling-house A.; her son-
in-law, Charles Barlow, had for several years occupied the
easterly part of lot 139, at the comer of the two streets
above mentioned, and had fenced in the part occupied by
him (surrounded by dark lines upon the sketch) having a
frontage of 63 feet on Catharine street and 66 feet on
Augusta street; the whole frontage of lot 139 upon
Catharine street is 66 feet. The remaining three feet of
the Catharine street frontage, and the nine feet of lot 144
adjoining it on the south, were left as an alley or lane with
a gate upon Catharine street, widening out at the west end
so as to afford access to the rear part of the parcel of land
now owned by the defendant ; a gate opened from the
vest end of this lane into the defendant's land. The pro-
perty now owned by the defendant was constantly occupied
during Mrs. Bell's lifetime by tenants to whom she from
time to time let it, and to whom she always gave the right
when letting the premises to them of using the lane for
the purpose of taking in their coal and wood, and they all
did in fact use this lane for that purposa The dwelling--
house now owned by the defendant was bounded on the
east by the land occupied by Barlow ; there was a vacant
space to the west of it between it and the dwelling-house
C. of between nine and ten feet in width, all but about
two and a half feet of which belonged to the parcel of
land let with that dwelling house ; a gate opened from
this upon Augusta street, and the plaintiff endeavonred to
shew that a lane or roadway had been left between the
two houses to be used by the tenants of those two houses
jointly. I found upon the evidence however that thia
Digitized byVjOOQlC
XIX.] BRIGGS V. SEMMENS. 625
roadway always belonged exclusively to the tenants of Judgment.
the house C, although with their permission the tenant of street, J.
the other house had now and then made use of it. No
gateway for waggons led from the defendant's land to the
land let with house C, but a small gateway existed through
which the tenant under Mrs. Bell of the defendant's land
passed in order to draw water from a well sunk near the
comer of house C, which was used for supplying water to
both houses.
In 1885 Mrs. Bell died, and by her will she made the
following provisions :
'* Sixth. I give and devise and direct that the easterly
63 feet of lot 139, on the south-west comer of Catharine
and Augusta streets shall go to and belong to my daughter
Jane Barlow ; and I give and devise and direct that the
41 feet of said lot 139 immediately adjoining the said 63
feet shaU go to and belong to my daughter Sarah Semmens ;
and I give and devise and direct that the remainder of
said lot 139, containing 36 feet, more or less, of the west-
erly part thereof, shall go to and belong to my daughter
Mary Ann Hilmer.
" Seventh. I give and devise and direct that the part of
lot 144 now occupied by me, situate on the west side of
Catharine street, * * shall go to and belong to my son
John Bell."
On 28th April, 1886, Sarah Semmens and her husband
conveyed to the defendant McDonough the 41 feet of land
devised by the will to Sarah Semmens, adding to the
description of the land granted the words : " Together with
the right of way over and across a certain roadway run-
ning from Catharine street into the rear portion of said
premises ; " and also granting the alleged Augusta street
roadway. The insertion of the latter roa-dway was, how-
ever, satisfactorily accounted for.
On 25th April, 1889, Jane Barlow and her husband
conveyed to the plaintiff the easterly 66 feet of lot 139,
" Together with such right to use the alley to the south of
the lands hereby conveyed as the said parties of the first
part are now entitled to."
Digitized byVjOOQlC
526 THE ONTARIO REPORTS. [VOL
Judgment. The defendant McDonough having insisted upon his
Street, J. right to use the alley from Catharine street to the rear of
his land, this action was brought to try the right
It will be seen from the description of the lands devised
in the will, that the devise to Jane Barlow covers the whole
easterly 63 feet of lot 139, and includes in that description
the portion of the lane leading from Catharine street, which
gives access to the gate opening from it into the defend-
ant's land. The land devised to Jane Barlow is not made
subject in terms to any right of way, nor is any right of
way over this lane devised in terms to Sarah Semmens.
The question must, therefore, be whether the circumstances
are such as to require the will to be construed as devising
to Sarah Semmens by implication the right of way which
her grantee, McDonough, claims over the lands devised to
Jane Barlow.
I think that the question here is governed by the de-
cision in Pearson v. Spencer, 3 B. & S. 761. That case,
decided in 1863, has been sometimes referred to as having
been decided upon the ground that the way there in
question was a way of necessity, but the judgment does
not so put it. The testator in that case owned a farm ;
certain fields of this farm, called B., he had let to a tenant,
and the remainder he retained for himself ; the portion
B. was surrounded by the lands of other persons except
where it adjoined the land retained by the testator. The
road used by the tenant of B. led from the highway through
the land retained by the testator until it reached a fence
bounding B. ; it followed this fence on the testator's side
of it for some distance, then re-entered the testator's land,
and after passing through it, finally ended in the farm
yard of B. The testator devised to one son the fields
called B. and to another son the fields which he had
retained in his own possession, making no reference to
roads. The latter devisee admitted his brother's right to
the road until it reached the fence bounding his land, but
contended that from that point his brother should make a
road through his own laiid B., and this was the whole
Digitized byVjOOQlC
XIXj BRIGQS V. SEMMENS. 627
question between them. It was held in the Exchequer Judgment.
Chamber that the devisee of B. portion of the farm was street, J.
entitled to use the road in the same position as it was in
the testator's lifetime ; Erie, C. J., saying of the devise of
B. portion: ''It falls under that class of implied grants
where there is no necessity for the right claimed, but
where the tenement is so constructed as that parts of it
involve a necessary dependence, in order to its enjoyment
in the state it is in when devised, upon the adjoining tene-
ment. There are rights which are implied, and we think
that the farm devised to the party under whom the
defendant claims could not be enjoyed without dependence
on the plaintiff's land of aright of way over it in the cus-
tomary manner.*'
That case cannot, I think, be distinguished from the
present, for, like the present case, it involved rights under
a will containing none of those general words which in
other cases have assisted in the construction of the devise.
Polden V. Bastardy L. R. 1 Q. B. 156, was decided in the
Exchequer Chamber in 1865, two years after Pearson v.
Spencer, smd the judgment of the Court there was also
delivered by Erie, C. J. It was a case also between two
devisees who took adjoining properties under the same
will, the defendant, the devisee of one of the properties,
claiming a right which had been exercised during the life-
time of the testator by the tenants of it, to take water from
a well upon the other property. The will contained no
general woixls, and the right was held not to exist, upon the
ground that the right to go to a well and take water is
neither a continuous easement nor an easement of necessity.
No reference is made to Pearson v. Spencer, and I think
it is plain that in speaking of an easement of necessity
Erie, C. J., does not mean a way of necessity in the strict
sense of the term, but an easement necessary in order to
enjoyment of the property devised in the state it is in when
devised ; and he again asserts the opinion that such ease-
.ments upon a severance of tenement will pass by implica-
tion of law without words of grant.
67 — ^VOL XIX. O.R
Digitized byVjOOQlC
528 THE ONTARIO REPORTS. [VOI*.
Jndgment. In Thomas v. Omn, 20 Q. B. D. at p. 281, the principle
Street, J. is reasserted that such an implication may arise in the case
of a formed road made over an alleged servient tene-
ment to and for the apparent use of the dominant tenement.
To the same effect is the language of Lord Campbell in
Ewart V. Cochrane, 4 Macq. at p. 122, and that of Eay^
J., in Brown v. Alabaster, 37 Ch. D. at p. 507.
In Harris v. Smith, 40 XJ. C. R. 83, a question of the
same character came up on a demurrer. What was really
decided in that case was that the right of way claimed by
the defendant was not so described in the pleadings as to
bring it within any of the classes of easements which had
been held to pass by implication without words apt for the
purpose. Construing the term "easement of necessity"
in the same manner as that in which it was used by
Erie, C. J., in Pearson v. Spencer and Polden v. Bas-
tard, there appeara to be nothing in the opinions ex-
pressed by the members of the Court of Appeal in
Harris v. Smith inconsistent with the English cases to
which I have referred.
In order to define the particular class to which the pre-
sent case belongs and to distinguish the decisions which I
think apply to it, from the numerous ones upon the same
branch of law which do not apply to it, I recapitulate here
its characteristics.
Both parties claim under the same instrument, that
instrument being a will ; there are no general words used
from which any intention to pass rights or easements can
be gathered ; the easement claimed is a right of way hav-
ing a gate at each end ; it is not a way of necessity in the
strict sense of the term, but the tenement of the defendant,
with which it has been for many years used, is so con-
structed as that parts of it involve a necessary dependenoe,
in order to the enjoyment of the tenement in the state it
was in when devised, upon the adjoining tenement of the
plaintiff for the right of way claimed.
I am ot opinion, therefore, that under the devise to Sarak
Semmens in the present case there passed by implication.
Digitized byVjOOQlC
XIX.] BBIGOS y. SEMMEK& 529
to her a right to use the lane leading to her land from Jadgment.
Catharine street, because the nse of that lane was neces- street, J.
sary in order that she might enjoy the land devised to her
in the state in which it was at the time of the devise.
This right passed with her conveyance of the land to the
defendant, and the defendant is entitled to assert it. I
have not overlooked the fact that the will gives to Sarah
Semmens three feet of the land which is fenced in with
the land devised to Jane Barlow and a portion of her shed.
Had a portion been taken away by the testatrix from
Jane Barlow's lot and given to Sarah Semmens, sufficient
to make a new lane, it is possible that a question might
have arisen as to whether it had not been intended that
this should be given for the purpose of a new and indepen-
dent road ; but the strip given, being only three feet in
width, cannot give any assistance to such a contention.
The action must, therefore, be dismissed with costs.
The owner of dwelling-house A. on the south side of the
lane in question, not having been made a party to the
action, will still be at liberty to contest the defendant's
right to use it if so advised, and this judgment will not
preclude him from so doing.
The plaintiff appealed to the Divisional Court from this
judgment.
The appeal was argued before Armour, C. J., and Fal-
CONBRIDGE, J., on the 6th February, 1890.
Mo88, Q. C, and Lynch'Sixtnjmton, for the plaintiff. The
plaintiff proved a possessory title before the death of Mrs
Bell to the easterly portion of lot 139, with a frontage on
Catharine street of 66 feet The fact of Mrs. Bell
having put Charles Barlow in possession of the 66
feet, as proved, and the other evidence admitting his
ownership, established an admission of title in Barlow by
Mr& Bell, and established a conventional line between.
Barlow and Hannah*Bell at the northerly limit of lot 139.
The evidence did not disclose any necessity for an implied
right of way over the way in question, and even if it
Digitized byVjOOQlC
^30 THE ONTARIO REPORTS. [VOI..
Ai^gTunent. should be held that the plaintiff's only title is under the
will of Mrs. Bell, there can be no right of way, as claimed,
implied from the terms of the will. If there is any implied
grant of a quasi easement or way of necessity arising from
the devise of the forty-one feet to Mra Semmens, it would
be over the alley- way between the lands devised to Mrs*
Semmens and Mrs. Hilmer. There is no evidence that
the proper enjoyment of the lands of the defendant
McDonough is so necessarily dependent upon the use of
the alley as to support the judgment.
They referred to Findley v. Pedan, 26 0. P. 488 ; Pearson
V. Spencer, 1 B. & S. 571 ; 3 B. & S. 761 ; Harris v. 8wA4h»
40 U. C. R. 33; BreU v. Clawaer, 5 C. P. D. 376 ; Langley
V. Hammond, L. R. 3 Ex. 161 ; Polden v. Bastard, L. Bw 1
Q. B. 156 ; Maughan v. OasH, 5 O. R 518 ; Young v.
Wilson, 21 Gr. 144, 611 ; 8hq>herdson v. McGuUough, 46
U. C. R. 573 ; Watts v. Kelson, L. R 6 Ch. 166.
J, W, Neshitt, Q.C., (with him Martim, Malons), for the
defendant McDonough, contra, referred to Brown v.
Alabaster, 37 Ch. D. 490.
McBrayne, for the defendants Sarah and A. W. Semmens.
June 27, 1890. The judgment of the Court was de-
livered by
Armour, 0. J. : —
The judgment of my brother Street is, in my opinion,
right and ought to be affirmed.
It was contended that Barlow had acquired a title
by possession to the three feet claimed as part of the
right of way and in dispute as part of the right of
way in this action, but this contention is untenable,
for he fenced it out into the alley-way, and the owner
of it, Mrs. Bell, always occupied and used it as much
as he did, and consequently her «title to it was not
extinguished.
It was ako contended that, by agreement with Mra.
Digitized byVjOOQlC
XIX.] BBIGOS v. SEMMENS. 53t
Bell, Barlow had become the equitable owner of the Jadgment.
land devised to his wife by Mrs. Bell, nnd was entitled Apmour, O.J.
to a conveyance thereof from Mrs. Bell, but this was
not established in my opinion by the evidence, and no
such case was made b^' the pleadings, and it cannot be
done now.
The question therefore is whether the devise by the
will of Mrs. Bell to Sarah Semmens of the forty-one
feet carried with it by implication the right of way in
question ; and this involves a question of fact as well as
one of law; the question of fact being, was this right of
way necessary to the reasonable enjoyment of the land
devised to Mrs. Semmens ; and the question of law being,
if such, did it pass by implication under the devise.
The evidence plainly shews that this right of way
was necessary to the reasonable enjoyment of the land
devised to Mrs. Semmens, and the learned Judge has so
found, and I adopt and concur in his statement of facts
set forth in his judgment, and find them to be entirely
supported by the evidence.
Being such, did this right of way pass by implication
to Mrs. Semmens under the devise to her of the forty-
one feet ? I am of opinion that it did, and that upon
the severance of a tenement by devise into separate parts,
such as was effected by the will of Mrs. Bell, not only
do rights of way of strict necessity pass, but also rights
of way necessary for the reasonable enjoyment of the
parts devised, and which had been and were up to the
time of the devise used by the owner of the entirety
for the benefit of such parts.
** By the grant of a ground, is granted a way to it ; i. e,,
all usual ways ; and unless there be an usual way, then a
way of necessity will pass :'* Sheppard's Touchstone, 89.
"I say nothing of what is a way of necessity," said
Mansfield, 0. J., " I know not how it has been expounded,
but it would not be a great stretch to call that a necessary
way, without which the most convenient and reasonable
mode of enjoying the premises could not be had :" Morris
V. Edgington, 3 Taunt, at p. 31.
Digitized byVjOOQlC
582 THE ONTARIO REPOBTS. [VOI^.
Judgment In Bavlow V. Bhodes, 3 Tyr. 280, Bayley, B., said, at p. 287,
Armour, C. J. tl^at " the way " there in dispute, " was not essential to the
enjoyment of the defendant's premises, and therefore
could not pass to him without apt words/'
In Hinchliffe v. KinnovZ, 5 Bing. N. 0. 1, the Court
held that under the description contained in the lease the
coal shoot and the several pipes passed to the lessee as a
constituent part of the messuage or dwelling-house itself,
and as there was over an adjoining tenement of the lessor
a passage by which this coal shoot and the pipes oould,
be approached, and the jury found that the passing and
repassing over this passage was not merely convenient
but necessary for the use of the coal shoot and of the
pipes and of the repairing and amending the same and the
side or wall of the house, the Court held that the right of
passing and repassing to and from this coal shoot and pipes
passed to the lessees as incidental to the enjoyment of that
which was the clear and manifest subject matter of the
demise.
In Pheysey v. Vicary, 16 M. & W. 484, no judgment was
given, but in the course of the argument Parke, B., said :
" Is the way contended for by the plaintiff to be con-
strued as of absolute necessity for access to property in
its strict sense, as in the older cases, or as necessary to the
convenient enjoyment of his dwelling-house, with reference
to its condition at the time the testator had the user of it,
as put in Morris v. Edgingtan, by Sir James Mansfield,
who says, ' It would not be a great stretch to call that a
necessary way, without which the most convenient and
reasonable mode of enjoying the premises could not be had.
One or other of the ways there in question was essential
to the use of the house, and the Court ruled that the most
convenient of them was that way of necessity to which the
party was entitled. That decision is confirmed in Barlow
V. BhodeSy which shews that the way asserted in Morris
V. Edgimgton might be so claimed as a way of necessity."
And Alderson, B., said . " Had this been not a dwelling
house, but a field used for tillage, the way which would
Digitized byVjOOQlC
:xik.] BRiGGS y. semmens. M&
pas3 must be such as would enable the owner to use the J^dgm^^w
field in every possible way, e,g,, to get waggons, &c. in. Armom;, C.J.
Thus, in this case of a dwelling-house, must not the way be
such as would enable him to get conveniently to every
part of it ?** * * " There may be a question whether,
instead of ordering the entry of a verdict for the defendant,
or of a non-suit, according to the leave given at the trial, we
should grant a new trial, to try whether the way claimed
was necessary to the convenient occupation of the plain-
tiff's house."
In Olave v. Harding, 27 L. J. Exch. 286, Pollock, O.B.,
said ; " It cannot be denied that if a man builds a house,
and there is actually a way used, or obviously and manifestly
intended to be used, by the occupiers of the house, the mere
lease of the house would carry with it the right to use the
way, as forming part of its construction. ♦ * My
learned brethren undoubtedly do not entertain quite the
same view on that subject, as to the mode of acquiring
a right of way under such circumstances." And Bram-
well, B. said, " With regard to the right of way, I desire
to say, that although, if in my opinion it was necessary
to resort to the ground taken by the Lord Chief Barom
I should agree with him upon it, the ground of my
decision is different, and it is this: the plaintiff's title
was derived from the lease, and unless the lease granted
the right of way it did not exist. It did not grant
the right in terms, and the only way in which it could grant
it was, that the condition of the premises at the time when
the lease was granted shewed that it was intended that the
Tight of way should be exercised upon the principle of
law I have adverted to, that by the devolution of the tene-
ments originally held in one ownership, a right of way
to a particular door or gate would, as an appareat and con-
tinuous easement, pass to the owners and occupiers of both
of them. But I think that the way in question was not
a continuous and apparent easement within that principle
of law ; and, therefore, I arrive at the conclusion that there
was no evidence of the right of way alleged in this cade.
Digitized byVjOOQlC
534 THE ONTARIO REPORTS. [VOI.^
Judgment. J found my opinion upon the condition of the premises at
Annour, O.J. the time the lease was granted, there being then only exca-
vations for foundations, with openings which were wholly
of an uncertain character, and would have been equally
appropriate for a door, a window, or any other of the pur-
poses to which such an opening might possibly be applied.
The plaintiff 's claim to the right of way depending upon
the lease, and the position of the premises at the time it
was granted, no question of intention can enter into the
decision. The right is not granted in terms, nor by impli-
cation, as a continuous and apparent easement ; therefore
it was not granted at all, and there was no evidence of it."
In Worthington v. GriTason, 2 El. & El. 618, Wightman,
J., said : " The principle of that case (Pyei* v. Carter, 1 H.
& N. 916) would have been applicable to the present, had
there been any proof that the way now in dispute was a
way of necessity. But such proof is wholly wanting.**
And Crompton, J., said : ** It is said that this way passed,
as being an apparent and continuous easement. There
may be a class of easements of that kind, such as the use
of drains or sewers, the right to which must pass, when
the property is severed, as part of the necessary enjoy-
ment of the severed property. But this way is not such
an easement."
In Pearson v. Spencer, 1 B. & S. 671, the Court said:
" We do not think that, on a severance of two tenements,
any right to use ways, which durinrr the unity of posses-
sion have been used and enjoyed in fact, passes to the
owner of the dissevered tenement, unless there be some-
thing in the conveyance to shew an intention to create the
right to use these ways de novo. We agree with what is
said in Worthington v. Oimaon, that in this respect there
is a distinction between continuous easements, such as
drains, &c., and discontinuous easements, such as a right
of way."
The plaintiff in that case conceded that the defendant
had a right to use the road until it came to Cod Bridge,
hut contended that when he reached that point where the
Digitized byVjOOQlC
XIX.] BBIOGS V. SEMMEKS. 636
road was only separated from the defendant's farm by a Jndgm«it.
fenee, the defendant ought to pass through the fence into Armour, C. J.
his own field, and after that,fto adopt the language of the
plaintiff as a witness, the defendant was to *' road himself."
The jury found that the Fold Way, which was the name of
the road after it passed Cod Bridge, was a convenient way,
but that it was not a necessary way ; meaning that the
defendant could occupy his farm without using the road
further than Cod Bridge.
The Court held that the defendant was entitled to the
Fold Way, because he was entitled to a way of necessity,
and that the ground on which a way of necessity was
created was that a convenient way was impliedly granted
as a necessary incident, and the Fold Way was such con-
venient way. The Court of Exchequer Chamber, 8
B. & S. 761, did not agree with this decision, although
it affirmed the judgment. In delivering the judgment
of that Court Erie, C. J., said : " We have been much
struck with the argument of Mr. Mellish, in which he
contended that, if this right of way were taken as a right
of way of necessity simply, the way claimed by the defen-
dant could not be maintained ; because we are inclined to
concur with him that a way of necessity, strictly so called,
ends with the necessity for it, and the direction in which
the plaintiff says the way ought to go would so end. But
we sustain the judgment of the Court below on the con-
struction and effect of James Pearson's will taken in
connection with the mode in which the premises were
enjoyed at the time of the will. The testator had a unity
of possession of all this property; he intended to create two
distinct farms with two distinct dwelling-houses, and to
leave one to the plaintiff and the other to the party under
whom the defendant claims. The way claimed by the
defendant was the sole approach that was at that time
used for the house and farm devised to him. Then the
devise of the farm contained, under the circumstances, a
devise of a way to it, and we think the way in question
passed with that devise. It falls under that class of
68 — VOL. XIX. O.R.
Digitized by VjOOQIC
536 THE ONTABIO REPORTS. [TOL.
Judgment, implied grants where there is no necessity for the right
Armour, C.J. claimed, but where the tenement is so constructed as that
parts of it involve a necessary dependence^ in order to its
enjoyment in the state it is in when devise .1, upon the
adjoining tenement. There are rights which are implied,
and we think that the farm devised to the party under
whom the defendant claims could not be enjoyed without
dependence on the plaintiff 's land of a right of way over
it in the customary manner."
In Ewart v. Codirane, 4 Macq. 117, the rhemcellor, Lord
Campbell, said : '' I consider the law of Scotland as well as
the law of England to be, that when two properties are
possessed by the same owner, and there has been a sever-
ence made of part from the other, anything which was
used, and was necessary for the comfortable enjoyment of
that part of the property which is granted, shall be cod-
sidered to follow from the grant, if there are the usual
words in the conveyance. I do not know whether the
usual words are essentially necessary; but where there are
the usual words I cannot doubt that that is the law. In
the case of Pyer v. Carter , that is laid down as the law of
England, which will apply to any drain or any other ease-
ment which is necessary for the enjoyment of the property.
♦ * * Then as the subjects of the grant were then
possessed, the tanyard along with this gutter to the hole
was so enjoyed, and it was necessary for the reasonable
enjoyment of the property. When I say it was necessary,
I do not mean that it was so essentially necessary that the
property could have no value whatever without this
easement, but I mean that it was necessary for the con-
venient and comfortable enjoyment as it existed before
the time of the grant. Then that being so, it seema
to me that this easement passed by the conveyance." And
Lord Chelmsford said : " I agree with him (the Lord Chan-
eellor) also in thinking that the right of the pursuers can-
not be placed either upon the natural right or upon thetvf
ipei et faoti, but that it must arise from an. implied grant;
and the implication of grant must result from the evidence
Digitized by VjOOQIC
XIX.] BRIGGS v. SEMMENS. 537
in the case shewing the use and enjoyment of this drain is Jndgment.
necessary to the enjoyment of the tanyard * * The Armour, C.J.
question arises whether by the conveyance to Drynan in
1819 he did not impliedly convey to him that drain, the
use and enjoyment of which, by the act of the parties
themselves, had been shewn to be necessary to the enjoy-
ment of the tanyard. I can come to no other conclusion
than that it was essential to the enjoyment of the tanyard
and therefore that we must imply a grant to Drynan when
the tanyard was conveyed to him in 1819."
In Polden v. Bastard, L. R. 1 Q. B. 156, Erie, 0. J., in
giving the judgment of the Exchequer Chamber said:
" There is a distinction between easements, such as a right
of way or easements used from time to time, and easements
of necessity or continuous easements. The cases recognize
this distinction, an4 it is clear law that, upon a severance
of tenements, easements used as of necessity, or in their
nature continuous, will pass by implication of law without
Any words of grant ; but with regard to easements which
are used from time to time only, they do not pass, unless
the owner, by appropriate language, shews an intention
that they should pass."
I do not understand that the Chief Justice intended by
this language to decide that no right of way would pass
by implication of law without any words of grant, for he
had already decided the contrary in Pearson v. Spencer
with respect to the right of way there in dispute.
In Watts V. Kelson, L. R. 6 Ch. 166, Mellish, L. J., said
at p. 172 : " I am not satisfied that if a man construct a
paved road over one of his fields to his house, solely with
a view to the convenient occupation of the house, a right
to use that road would not pass if he sold the house
separately from the field."
See also the judgment of Bramwell, B., in Langley v.
Hammond, L. R. 3 Exch. 161 ; and of Lush, J., in Kay v.
Osdey, L R. 10 Q. B. 360 ; Barkshire v. Qruhb, 18 Ch.
D. 616 ; and Thomas v. Owen, 20 Q. B. D. 225.
In Bayley v. Great Western R. W. Co., 26 Ch. D. 434,
Digitized byVjOOQlC
538 THE ONTARIO KEPORTS. [VOL.
Judgment Bowen, L. J., said : " In considering this conveyance in
Armour, C.J. reference to rights like rights of way, and I put aside
apparent easements for the moment, the cases fall into two
classes — first of all, cases where rights of way arise by simple
implication, and, secondly, where they arise owing to the
express words of the conveyance. In the first class of
cases, uamely, cases of implication, it may be assumed, for
the moment, that there are no words which indicate an
intention of the grantor about the right of way, but we
are left to gather it from the fact that he has made a grant
of premises to which this right of way is, or is supposed
to be, annexed. The rule about rights of way which arise
from implication is simply this, that on a severance of two
properties, anything like a riglit of way, or any other ease-
ment which is used, and which is reasonably necessary
for the reasonable and comfortable use of the part granted,
is intended to be granted too. The principle is that the
grantor is assumed to have intended that his grant shall
be eSectual. When two properties are severed the parties
to the severance, both the man who gives and the man who
takes, intend that such reasonable incidents shall go
with the thing granted as to enable the person who takes
it to enjoy it in a proper and substantial way. This par-
ticular case is not a case of a way of necessity, though I do
not say there might not be ways which would pass by
implication as ways of necessity, even if they were only
reasonably necessary and not physically necessary."
See also the judgment of Chitty, J., in the same case.
The decision in Polden v. Bastard is, moreover, modi-
fied and controlled by the subsequent decision of the Court
of Appeal in Wheeldon v. Burrows, 12 Ch. I). 31, in
which Thesiger, L.J., in delivering the judgment of the
Court, said : "We have had a considerable number of cases
cited to us, and out of them I think that two propositions
may be stated as what I may call the general rules govern-
ing cases of this kind. The first of these rules is, that on
the grant by the owner of a tenement of part of that tene-
ment as it is then used and enjoyed, there will pass to the
Digitized byVjOOQlC
XIX.] BRIGQS v. SEMMENS. 639
grantee all those continuous and apparent easements (by Judgment,
-which, of course,! mean quaai easements) or, in other words, Armour, C. J.
all those easements which are necessary to the reasonable
enjoyment of the property granted, and which have been
and are at the time of the grant used by the owners of the
entirety for the benefit of the part granted. The second
propasition is that, if the grantor intends to reserve any
right over the tenement granted, it is his duty to reserve
it expressly in the grant." After referring to and discuss-
ing several cases, he further said : " These cases in no way
support the proposition for which the appellant in this
case contends; but, on the contrary, support the propositions
that in the case of a grant you may imply a grant of such
continuous and apparent easements or such easements as
are necessary to the reasonable enjoyment of the property
conveyed, and have in fact been enjoyed during the unity of
ownership, but that, with the exception which I have re-
ferred to of easements of necessity, you cannot imply a
aimilar reservation in favour of the grantor of land."
The first rule set out in this case includes such a right
of way as the one in dispute in this case, and this was so
held by the Court of Appeal in Ford v. Metropolitan and
District Railway Companies, 17 Q. B. D. 12, which was an
appeal from the judgment of Day, J., in favour of the plain-
tiffs in an action upon an award made under the Lands
Clauses Consolidation Act, 1845, and Bailway Clauses
Consolidation Act, 1845.
The plaintiffs occupied under a lease to them for seven
years, &om 25th March, 1880, three back rooms on the first
floor of a house and premises, No. 73 Great Tower street,
London. No right of way was demised with the rooms,
but the mode of exit was hy going downstairs to a passage
on the ground floor, and from thence through the front
hall or vestibule of the house into Great Tower street
The defendants, the railway companies, in execution of
the works authorized by their Acts of Parliament, pulled
down and took away the front part of the house, including
such hall or vestibule. The plaintiffs claimed compensa-
Digitized byVjOOQlC
540 THE ONTAiaO REPORTS. [YOL^
Judgment, tion in respect of the defendants having so pulled down
Armour, CJ such part of the house, and interfered with the plaintiffs'
right of way and other easements, and having rendered
their three rooms unfit for the purposes of occupation and
of the business carried on there by the plaintiffs.
It was contended that the plaintiffs had only a way of
necessity through the hall, the right to which ceased as soon
as the necessity for it ceased; that their landlords could have
done what the defendants did without being liable to an
action ; that the plaintiffs had no right to have such hall
kept for them ; that they had only the right to go across
the hall ; and their landlords had a right to interfere with
the hall as they pleased so long as sufficient space in it was
left to enable the plaintiffs to get through it to the passage
which led to the staircase to the plaintiffs' rooms.
Cotton, L. J., said : " I do not consider that any part of the
property of which the plaintiffs had a lease was taken
away, but some property to which they had a substantial
right granted to them by the owners and landlords of the
houses, namely, a right of going through the passage, being
a matter connected with the use and enjoyment of those
three rooms, was interfered with."
And Bowen, L. J., said : " What right of access had the
claimants through the hall in its original state, and what
title had they to complain if the hall, through which they
passed, was so altered as to change the physical character
of the access 7 Now, it seems to me, that the access to the
demised premises falls distinctly within the class of rights
alluded to in Wheddon v. Burrows. By the grant of
part of a tenement it is now well known there will pass to
the grantee all those continuous and apparent easements
over the other part of the tenement which are necessary
to the enjoyment of the part granted, and have been
hitherto used therewith. It was ^ said that this mode of
access was a way of necessity. That appears to me to be
an imperfect statement of its character. A right of way
of necessity is a right which arises by implication, but ita
true nature, and the distinctions which obtain between the
Digitized byVjOOQlC
XIX.] BRIGOS V. SEMMENS. 541
present right of access claimed and a right of way of neces- Judgm^t
sity is explained in Pea/rson v. Spencer, The present right, Armoar, C.J.
using the language of Lord Chief Justice Erie, falls under
that class of implied grants ' where there is no necessity for
the right claimed, hut where the tenement is so constructed
as that parts of it involve a necessary dependence, in order
to its enjoyment in the state it is in when devised,
upon the adjoining tenement.' It was therefore a private
right which the occupiers of those rooms were by law
entitled to make use of in connection with their property."
I refer also to the case of Brown v. Alabaster, 37 Oh.
D. 490, as a CAse very much in pointy being the case of
the severance of two properties previously held in entirety.
Brett V. Clowser, 5 C. P. D. 376, was referred to in the
argument, but the ffiLcts in that case have no relation to
the circumstances of this case.
The authorities to which I have referred, in my opinion,
amply support the proposition with which I set out, that,
upon the severance of a tenement by devise into several
parts, not only do rights of way of strict necessity pass, but
also rights of way necessary for the reasonable enjoyment
of the parts devised, and which had been and were up to
the time of the devise used by the owner of the entirety
for the benefit of such parts ; and so I am of opinion that
the devise by Mrs. Bell to Mrs. Semmens of the forty-one
feet carried with it by implication the right of way in
question.
The motion must, therefore, be dismissed with costs.
Digitized by VjOOQIC
M2 THE ONTARIO REPORTS. [VOI-
[CHANCERY DIVISION.]
StOTHART V. HiLLIARD ET AL.
WcUer and locUercoursea — EasemeiU — Prescriptive righbs — Dominant and
servient tenements — Lease of servient tenement — unity of possession —
Suspension qf easement — Joint owners of miU dam — injimction —
Damages.
One of two joint owners of a mill dam, each having a mill on the oppodte
sides of the river by which the dam was formed, was entitled to a
prescriptive right to the supply of water as furnished by the dam all
the way across the river and to dam back the water on to the plaintiff*B
land, but the other owner was not.
In an action to restrain both owners from backing the water to the
detriment of the plaintiff : —
^ Held^ that the dam as a piece of property was an entire thing and that
the plaintiff was not entitled to an injunction restraining the nse of the
water, his remedy being in damages against the owner not entitled to
the easement.
A right to an easement previously enjoyed cannot be acquired by the
lapse of time during which the owner of the dominant tenement has a
lease of the land over which the right would extend. Ihiring such
unitv of poBsessson the running of the Statute of Limitations is soa-
pended.
Statement. AcTlON for an injunction to restraiD joint owners of a
mill dam from damming back the water against the plain-
tiff's land, and for damages.
The defendant Hilliard was the owner of mills on the
west bank of the river Otonabee, at the town of Peter-
borough, and the defendants the Auburn Woollen Company
were the owners of mills on the east bank of the river.
The plaintiff's land was situated on the west bank of the
river above the defendant Hilliard's mills.
In 1833 a wing dam was erected for the purpose of
supplying with water the mills on the west side. This
dam raised the water against the plaintiff's land (which
was then unpatented) to the same height as the present
dam. In 1886 the rectory of Peterborough was created
and included the plaintiff's land. In 1838 the old wing
dam was replaced by a dam somewhat lower down the
stream. This dam was washed away about 1860 and was
succeeded by the dam complained of. In 1848 one Ben-
son, the then owner of the mills on the west side of the
Digitized byVjOOQlC
XIX.] STOTHART V. HILLIARD. 548
river, obtained from the then rect6r a lease for twenty Statement
years of the strip of land rynning along the water's edge,
in respect of which damages were now claimed. In 1866
the defendant Hilliard obtained from the then rector a
lease of said strip of land for twenty-one years. This
lease expired in 1887, and this action was commenced in
December, 1889.
The defendant Hilliard pleaded a prescriptive right to
an easement under R. S. O. ch. Ill ; that his co-defendants
on the other side of the river had a right to back the water
in the manner complained of, and that it was not in his
power to take down the dam ; that the first and subsequent
dams had been built before the eyes of the owners of plain-
tiff's land, who stood by and encouraged the defendants to
build large and extensive mills ; that the plaintiff's lands
were greatly increased in value thereby. The defendant
Hilliard further pleaded not guilty by statute, R. S. 0. ch.
118, sees. 15, 16.
The defendants the Auburn Woollen Company relied on
the Real Property Limitation Act and pleaded twenty and
forty years' exercise of the easement as of right.
The plaintiff replied that by reason of the leases to Ben-
son and Hilliard no easement could be acquired against the
owners of the land.
The action was tried at the Chancery Sittings at Peter-
borough on 1st June, 1890, before Boyd, C.
Moss, Q.C., and B, E, Wood, for the plaintiff. The right
to use the dam was conferred by the leases. Sec. 41 of R. S.
•0. ch. Ill makes provision for disabilities. When property
is underlease no right can be acquired against the owners.
Acquisition of right by prescription is founded on pre-
sumption of grant. There can be no prescription when
there is no person capable of making a grant. The de-
fendants the Auburn Woollen Company have not proved
that they are joint owners of the dam with the defendant
SHilliard, and the presumption is that they claim under him.
69— VOL. XIX, O.R.
Digitized byVjOOQlC
544 THE ONTARIO SBPORTS. [VOL
Argoment^ They referred to Wi/ndiip v. Hudspeth, 10 Ex. 5 ; Bright
V. Walkei% 1 C. M. & R 2li ; Qutram v. Maude, 17 Ch. D.
391 ; Harhidge v. Warwick, 3 Ex. 552 ; Ladymm v.
Orave, L R. 6 Ch. 768.
D. W. DuvMe and C. J. Leonard, for the defendant
Hilliard, contended that the plaintiff was estopped from
claiming damages, as he had stood by and encouraged, for
many years, the expenditure of large sams of money in
the erection of the mills and dams which had produced the
result he now complained of ; and that, as a matter of £Eu;t,
his property was largely increased in value thereby ; that
the defendants the Auburn Woollen Company had a
right to maintain the dam in its present condition ; and
that the defendant Hilliard could not take down the same,
or his half thereof, the dam being an entire thing.
Wallace Nesbitt and K M, Dennistoun, for the Auburn
Woollen Company, argued that the leases to the defendant
Hilliard and his predecessors in title could not prejudice
the Auburn Woollen Company, who were not privies there-
to ; that there was evidence of uninterrupted exercise of
the easement as of right for twenty and forty years res-
pectively ; that a portion of the dam being situate on the
land of the Auburn Woollen Company, the presumption
was that they were joint owners of the dam with the de-
fendant Hilliard, and that the onus of proving the contrary
. lay on the plaintiff.
They referred to Wivship v. Hudspeth, 10 Ex. 5;
Magdalen Hospital v. Knotts, 4 App. Cas. 324.
Moss, Q. C, in reply, referred to O'Hare v. McGormck,
30 U. C. R. 567.
June 6, 1890. Boyd, C. :—
While there is much subtle and difficult law involved in
the details as argued, there appears to be one reasonably
clear ground which will suffice to dispose of the case.
This though not presented on the pleadings is yet involved
in the undisputed facts brought out at the trial
Digitized byVjOOQlC
2IX.] STOTHABT V. HILLIABD. 545
The convement starting point is the date of the patent Judgment,
of the land now owned by the plaintiff — which is the Boyd, C.
alleged servient tenement — that is, 16th January, 1836.
Any user of the land before this by the construction of
the wing dam and penning back water thereby is not
materia], because there was unity of title as to the land on
which the dam was built, and the land affected thereby, so .
that no easement as such existed.
After patent the first dam erected on the land now own-
ed by Hilliard, the defendant, (claimed to be the dominant
tenement) was in 1838. That has been continued ever since,
with slight and inmiaterial intermissions, to the present, and
has had the effect of damming back water on the pledntiff's
land, to some extent.
It does not seem to be of much importance whether the
Otonabee at the place in question is a navigable or non-
navigable stream — but the point of its being a navigable
stream is not pleaded, and, as the matter may be one of
nicety, I did not take all the evidence offered on this head,
because this issue was not on the record.
Now the land was patented as lot 17 in con. 2, broken
front, and upon the evidence it is a lot which is bound-
ed by the river. That would carry the lot to the edge of
the stream or to the mid-thread of the stream in its natur-
al state and flow. But the dam maintained by the defend-
ants has had the effect of deepening the water in front of
the plaintiff's land, and so necessarily to raise it higher,
along the water's edge, to his appreciable detriment.
The land was patented as glebe land appurtenant to the
rectory at Peterborough, and the title vested in the rector
and his successors as a corporation sole, with the usual
qualifications attaching to such ecclesiastical property by
the English law. Thus as to title it remained till 1863,
when was passed the Act 27 Vic. ch. 87, empowering the
fee simple of this rectory land to be sold.
Now, assuming the enjoyment of a servitude by the land
of the defendant against this glebe, it would not import a
prescriptive right against the fee simple, and according to
Digitized byVjOOQlC
^46 THE ONTARIO REPOETS. [VOL
Jndgment. the decisions could not affect more than the particular in-
Boyd, C. cumbent for the time being. In other words, as laid down
in HiU V. McKinnon, 16 U. C. R at p. 218, each incum-
bent was only entitled to hold during his incumbency, and
could not alienate the fee, however he might affect his own
rights by his laches or acquiescence in the servitude. His
• successor was not thereby affected or prejudiced. And as all
prescription as its underlying principle implies a grant, it
follows that the enjoyment up to 1863 cannot have any
foundation in a grant, because an actual grant of the ease-
ment in perpetuity or in fee would have been invalid.
On the Peterborough side of the river mills were erected
and using the water from the dam as early as its erection ;
on the other side of the river the first mill was put up in
1842 — but both are in the same plight as to this easement
up to 1863 ; so that a line may be drawn at this date prior
to which no such prescription as now claimed had aiisen, or
could arise.
As to the defendant Hilliard, the next fact is that he, be-
ing owner of the land on which the dam is built, became
in 1866 lessee for twenty-one years of the land now owned
by the plaintiff. That lease was current till November,
1887, and as a consequence between these two dates {ie.
from 1866 till 1887) there was such unity of possession in
both dominant and servient tenements as caused a suspen-
sion of the easement : Lady man v. Ghrave, L. R. 6 Ch. 763.
Upon the facts, then, Hilliard had enjoyed this easement,
qud easement affecting the fee of the plaintiff's land, for
three years, from 1863 to 1866, and again for two year8>
from 1887 to 1889, when (in December) this action was
begun.
The plaintiff purchased the glebe lot in 1875, but could
not get possession till the lease to the defendant Hilliard
had terminated, and then he brings his action some two
years after. His right appears to be established as against
Hilliard.
But the defendants the Auburn Company are not
ttffected by their co-defendant's unity of possession, and
Digitized byVjOOQlC
XIX.] STOTHART V. BILLIARD. 547
as to them the easement has been enjoyed as of right con- J^d^Q^t*
tinuously and uninterruptedly for the next twenty years Boyd, C.
before action, and indeed actually from 1842.
The better opinion appears to be that if the user be be-
gan adversely to the owner of the servient estate, no inter-
mption will arise because subsequently a lease is made of
the servient tenement, provided the enjoyment be contin-
ued: Washburn's Easements, p. 179, sec. 65, 4th ed.;
Goddard on Easements, i3ennett's ed., p. 114; Gale on
Easements, p. 200, 5th ed.
Upon the evidence I think the right deduction is that
the defendants are all joint owners — tenants in common —
of the dam, as they are and have been jointly interested
in its maintenance and use. As a piece of property the
dam is an entire thing, and I do not see that the half on the
Peterborough side should be taken down and the other
half allowed to remain.
The Auburn Company and those from whom they claim
have been in the actual enjoyment of the water in a par-
ticular way by means of this dam since 1842, and this
establishes a right so to use the water. Therefore it appears
to me that to interfere with this dam would give the
defendants the Auburn Company less than they have a
right to, which is the supply of water as furnished by the
existing dam all the way across the river.
Compensation may be made in damages to the plaintiff
for the injury he sustains from the action of Hilliard, which
cannot be very serious, as it involves no more than secur-
ing him in working the quarry, which is of questionable
value. This may be arrived at by many comparatively
inexpensive devices for keeping out the water.
This result, upon the merits also, I consider more desir-
able than to interfere with the vast expenditure of money
in improvements which has taken place on the river on the
faith of this dam being a legal construction to utilize the
waters of the Otonabee.
The plaintiff is forty-six years of age, and has been all
along since he can remember cognizant of the developement
Digitized by VjOOQIC
^48 THE ONTARIO REPOBTS. [VOt.
Judgment, and US6 of the river at this point, and I was but faintly
Boyd, 0. impressed with the merits of his claim at the trial
As to the Auburn Company, the action is dismissed
with costs.
As to Hilliard, judgment is for the plaintiff to recover
damages to be ascertained by the Master with costs of
action. I am willing to hear the parties, fixing each a sum
for damages in order to assist in determining how the costs
of the reference should be disposed of.
G.A.&
Digitized by VjOOQIC
:XIX.] WELLBANKS V. HENET. 549
[CHANCERY DIVISION.]
Wbllbanks V. Heney.
JFraudtUerU preference— Agreement to nipply mcUenal for manufacture^
the goods mannjaetured nevertheUss to remain the property of the
eupfiier of the material — Defeating and delaying creditors.
It appeared od the trial of an interpleader iasne, that the claimant had
agi^ed in writing with the execution debtor, an insolvent, to famish
material to the latter for the manufacture of carriages, from time to
time, for one year, it being provided that no property in such goods
should pass, but that notwitnstandin^ any improvement or work upon
tiiie same, or change of form or addition thereto or use thereof, the
same and every part thereof should be and remain the goods and pro-
perty of the cUimant.
The material was supplied and manufactured into carriages by the execu-
tion debtor, which were seized by the defendants, execution creditors
of his, and the claimant claimed the same, more being owing to him for
the material supplied than the value of the goods seized: —
Meld, reversing the decision of Armour, C. J., that the above agreement
was not one which could be said neoeesarily to have tiie effect of
defeating or delaying creditors, and in the absence of fraud the clainoant
was entitled to succeed on the issue : —
Hdd, also, reversing the decision of Armour, C.J., that the fact that the
daimant, thinking that the above asreement was lost, from time to time
took mortgages from the execution debtor upon the canriages manufactur-
ed by him, made no difference ; for even if this had the effect of vesting
the property therein in him that could only be subject to the lien of the
claimant to be paid out of them. Moreover the mortoages having been
taken, not to supersede the original writing, but under the error that '
'^t being lost (as supposed) would be no longer available, the rights of
the parties were still subject to the original agreement.
This was an interpleader issae wherein Hiram Wellbanks Statement
affirmed and Heney and Lacroix denied that certain goods
and chattels, to wit : five top buggies, one surrey, and one
cutter, on March 10th, 1890, seized in execution by the
sheriff of the county of Prince Edward under a writ of
/I fa. tested September 15th, 1886, issued upon a judgment
recovered by Heney and Lacroix in an action against
Frederick W. Adams were, or some part thereof was, at
the time of said seizure, the property of the said Hiram
Wellbanks as against Heney and Lacroix.
The facts of the case are sufficiently set forth in the
judgment of Ferguson, J. It is desirable, however, to
set out verbatim the material provisions of the agreement
of September 22nd, 1888, therein referred to. This agree-
Digitized byVjOOQlC
550 THE OKTABIO REPORTS. [VOL-
Statement. ment was made between Hiram Wellbanks, of the first
part, and Frederick W. Adams, of the second part, and
proceeded as follows : —
" Whereas said party of the first part is a hardware merchant carrying
on said hnsiness at said town of Picton, and the party of the second pari
is desirous of procuring from said party of the first part materials to be
used in the construction and making of carriages and vehicles of different
kinds from time to time as he may require same within one year from the
date of these presents.
And whereas the said party of the first part has agreed to supply and
furnish such of said materials as he has in stock or may obtain for such
purposes, to said party of second part, to the extent of not more than $500
as the same may be required from time to time during said term, upon the
execution and delivery of these presents, the several agreements and con-
ditions whereof are well and truly to be observed and perfcnrmed.
Now, therefore, this agreement witnesseth that the said party of the
first part shall supply and furnish for the use of the party of the second
part, in the construction of said carriages and vehicles from time to time
during said term, the said goods and materials as the same may be required
and ordered by the said party of the second part at the regular retail
prices of the same respectively *
But and it is hereby witnessed that no property, title, interest or owner-
ship in or to the said goods or merchandise or any of them shall pass to,
vest in, or belong to said party of second part, but that notwithstanding
any act of dehvery or retaining possession of the same or any part thereof
by said party of second part, and notwithstanding any improvement or
work upon same or change of form or addition thereto or use thereof, the
same and every part thereof shall be and remain the goods and property
of said party of the first part.
• ••«•*•*
In case the party of the first part shall consent to a sale of any of the
said goods or carriages, the price thereof or the securities to be taken
therefor shall be paid and transferred forthwith to the party of the first
part, to the extent of the amount then due and owing to said party of the
first part on account of said goods and merchandise theretofore supplied
to the party of the second part, and the property, title, and ownership of
said carriages and vehicles, both during construction and at and after
completion shall be and remain in said party of the first part.
Provision that if party of second part removes or parts with possession
of the said goods and carriages contrary to the terms of this sgreement
party of first part may forthwith seize and remove all said goods and
carriages, and for that purpose enter into any premises where they may
be found.
Provision that party of first part may at any time that he shall deem
Buoh action necessary and proper for his protection take possession of said
goods and carriages and remove the same, accounting to tiie party of the
Digitized byVjOOQlC
XIX.] WELLBANES V. H£N£T. 551
second part for his disposal thereof as occasion may require, and the rights Statement.
of said parties respectively demand."
In witness whereof, etc.
The issue came on for trial on April 22nd, 1890, before
Armour, C. J., at Picton, who subsequently delivered
judgment upon it as follows : —
Armour, C. J. — ^I find that Frederick W. Adams be-
came insolvent in the year 1886, to the knowledge of the
plaintiff, and has ever since continued to be, and still is
insolvent to such knowledge. I am of opinion that the
bargain made between the plaintiff and the said Frederick
W. Adams, and evidenced by the instrument of the 22nd
day of September, 1888, had the necessary effect of delay-
ing and defeating creditors, and that this appears from its
very terms, and that it was therefore void as against
creditors. The effect of it was to enable the said Frederick
W. Adams to get the benefit of the profits he derived from
turning the materials supplied to him by the plaintiff into
carriages, and preventing his creditors from obtaining the
benefit of such profit. If such an agreement were to be
held valid as against creditors, any debtor desirous of so
doing, and having a friend willing to supply him, might
go on for years making money and living in style and
setting his creditors at defiance. I think that the defen-
dants are entitled to succeed upon this ground ; but I also
think that they are entitled to succeed upon another
ground. The goods supplied by the plaintiff to Adams, were
delivered to Adams, and the price thereof charged to Adams
by the plaintiff in his books ; all that was necessary for the
plaintiff to do, therefore, to make the goods the goods of
Adams was to exercise his intention to that effect. The
plaintiff thinking, as%e said, that;the instrument of the 22nd
of September, 1888,]was lostjfrom time to time took mort-
gages from Adams upon the carriages manufactured by him
from the materials supplied to him by the plaintiff, and the
taking of these mortgages was evidence that the plaintiff
had, before taking them, exercised the intention that the
70— VOL. XIX. O.R.
Digitized byVjOOQlC
652 THE ONTARIO REPORTa [VOL.
Jadgment goods mortgaged should become the property of Adams, and
Armour, C.J. that the property in them had passed to Adams before
Adams mortgaged them to the plaintiff, and the defen-
dants' execution being in the sheriff's hands all the time
from 1886, attached upon the goods the moment the
property in them passed to Adams and before mortgages
could or did attach.
In my opinion, therefore, the verdict and judgment mnst
be entered for the defendants with the costs of the inter-
pleader proceedings if I have the disposal of such costs.
The plaintiff now moved before the Divisional Court by
way of appeal from the judgment, and the motion was
argued on June 14th, 1890, before Boyd, C, and Fer-
guson, J.
a H. Widdifield, for the plaintiff. The Chief Justice
thought that the taking of the chattel mortgage was evi- |
dence of an intention that the goods should pass to Adams.
It does not appear under the circumstances that this was so.
It IB shewn that he lost the agreement and thought that he
would lose his goods thereby, and that was why he took
the mortgage. Under all the cases the judgment should
not be sustained on that ground. The agreement does not
come within the Chattel Mortgage Act : Banks v. iJoWtwow,
15 0. R. 618. Thetransaction was bond .^ on behalf of
the plaintiff. The property never would have existence but |
for the agreement. Banks v. Robinson turns on the point j
that the goods never vested in the debtors. There was no |
misleading of creditors in this case. The evidence shews
that the plaintiff furnished everything to Adams. Adams
put in nothing but work. Macaiday v. MoTshaU, 20 U. C.
R. 273, is almost exactly in point.
Alcorn^ Q. C, for the defendants. The sole question is
whether Adams had property in the goods. We rely on
the j udgment of Armour, C. J. LBOYO, C— If the property
did not pass to Adams, there is nothing for the execution
to work upon.] But I argue that the agreement cannot
Digitized byVjOOQlC
XIX.] WELLBANK8 V. HENET,;] 668
be supported. It was a case of ordinary sale on credit, and Argoment.
the property passed. The taking and the registration of
the chattel mortgage shews this. There is no discrimina-
tion in the agreement between materials and labour. The
agreement is that the whole completed vehicle shall be
the plaintifiiB. The Chief Justice finds notice to plaintiff
of insolvency of Adams from 1886 to the present'time, and
therefore this case is not within Johnson v. JTop«, 17 A.R.
10, or Lamh v. Yowng, 19 O. R. 104.
Widdifiddy in reply. This agreement was made not to
protect the debtor's property, but the plaintiff's own
property.
June 80th, 1890. Ferguson, J. :—
This is an interpleader issue in which the claimant of
the goods is the plaintiff, and the execution creditors are
the defendants. The goods are several buggies, a surrey,
and a cutter. These are claimed by the claimant under an
agreement with Adams, the execution debtor, dated the
22nd day of September, 1888, which is filed and marked
Ex. A. It provided that the plaintiff, a hardware mer-
<^ant, should furnish materials to Adams for the manufac-
ture of articles of this character for the Use of Adams in
the construction of such articles from time to time for the
period of one year, and to the extent of $600. It also
provided that no property, title, interest or ownership in
such goods or merchandise should pass to, vest in, or belong
to Adams, but that notwithstanding any improvement or
work upon the same, or change of form, or addition thereto,
or use thereof, the same and any part thereof should be
and remain the goods and property of this plaintiff. There
are many other provisions of the agreement, but I do not
see the necessity of setting them forth here.
The material was supplied under the agreement, and
worked up, or manufactured by Adams. The goods in
question are some of the productions.
The writs of the defendants (execution creditors of
Digitized byVjOOQlC
554 THE ONTARIO REPOKTS. [VOI*^
Judgment. Adams), had been and were continuously in the hands of"
Fergason, J. ^® sheriff from the year 1886. Before this agreement of
September, 1888, the plaintiff and Adams had been dealing
under a verbal agreement, which, so far as known, was of
a character somewhat similar to this written one, but at
this period J^ the plaintiff became dissatisfied, and said to
Adams that he must have a writing or something to this
effect. A chattel mortgage, as to which there is now no
dispute or difficulty, was given respecting what was past,
and this agreement entered into for the one year then in
the future.
The goods in question have been sold by the sheriff and
the proceeds -^amount to $398.00. The amount of the
present claim of the plaintiff in respect of goods provided
or furnished Adams under the agreement is said to be
$450, or thereabouts, and it is said that there are some
notes in the hands of the plaintiff amounting to some
$250, the position of which does not appear to be very
clear, but looking at the terms of the agreement one would
infer not unreasonably, I think, that these are notes given
for manufactured articles sold, which have not yet been
paid or satisfied and for anything that is known may not
be.
At one time under the supposition that this writtea
agreement had been lost a chattel mortgage was made in
favour of the plaintiff. He does not now however claim^
anything under or by virtue of this mortgage, the agree-
ment having been found.
It was said that the agreement was eventually found in.
the custody of Adams, and it was contended that its being
lost or mislaid was only a pretence, and that this making
of the chattel mortgage for that reason should be consider-
ed in the same light as the making and accepting of such
a document under ordinary circumstances, and further
that the effect was to defeat any right the plaintiff had
upon the agreement. All I desire to say upon this imme-
diate subject is that the evidence shews that this was the
reason why this chattel mortgage was made, and the act
Digitized byVjOOQlC
XIX.] WELLBANKS V. HENET. 555
and the reason for doing it do not appear to me unreason- Judgment
able under the circumstances. The plaintiff wanted some Ferguson, J.
writing to be able to shew manifesting his right or sup-
posed rights in the matter. This was the reason for hja
getting this agreement in September, 1888. This being
lost, the paper it was thought proper to get was this mort-
gage. Upon the agreement being found the plaintiff might
I think rest upon the agreement and not upon the mort-
gage, for if the agreement had not been lost or supposed
to have been lost the mortgage would never have existed
at all.
The agreement is one I think that might lawfully be
made. Fraud has not been found. I think that nothing
of the kind should under the circumstances and on the
facts disclosed be inferred.
The learned Judge was of the opinion that the agree-
ment had necessarily the effect of hindering and delay-
ing the creditors of Adams. I am unable to see that
such was the necessary effect of it. Adams was in
Insolvent circumstances and unable to pay his debts
in full, but I do not think this agreement was a sale,
assignment, or transfer of goods or property within the
meaning of the statute, which necessarily had the effect
of hindering or delaying creditors.
If the goods had not been supplied by the plaintiff
one would say looking at the evidence, that in all pro-
bability the property in question would never have
existed at alL I am unable to arrive at the conclusion
that this agreement should be held void as against
creditors of Adams.
The question to be tried, or rather which was tried,
is defined in Black v. Drowillard, 28 C. P. 107.
If by the agreement the goods were the property of
the plaintiff the defendants' execution did not attach
upon them. If owing to the manner of dealing with
the property or the mode of dealing with it, the pro-
perty in the goods is considered to have passed to
Adams as was contended, this could only be subject
Digitized byVjOOQlC
666 THB ONTARIO REPORTS. [TOL.
Jndgment. to the plaintiff's claim and charge upon it, which daiin
Fergoaon, X exceeds the value of the property, the amount of
money arising upon the sale of it. Adams had not the-
right to sell or dispose of the property without paying
or satisfying the plaintiff's claim, and it was only his
right that could be seized under the defendant's execu-
tions, and this would seem to have been of no value.
It may be that there is still room for some cavil
owing to the position of the notes before alluded to, but
I do not see that the information afforded us is suffi-
ciently certain or definite to enable us further to deal
with the differences between the parties even if this
could be done upon the trial of an issue, such as the
present one is.
I am of the opinion that the judgment should be for
the plaintiff in the issue with costB.
Boyd, C. ;—
The Judge does not find fraud, nor is there any evidence
to shew this, and it should not be inferred
If the writing of September, 1888, governs, the property
the sberifi seized did not pass to the debtor Adams, and
the execution did not attach. The necessary effect of the
agreement cannot be to defeat and delay creditors, because
there were no seizable assets of Adams which would be in
existence, but for this agreement to supply materials on
the part of Wellbanks. If the dealing of the parties as
indicated in one aspect of the case, by the finding of the
learned Judge had the effect of vesting property in the
carriages in the debtor Adams, that could only be subject to
the lien and claim of Wellbanks to be paid out of thent
This would feJl under the weU-established doctrine that the
execution creditor can render exigible property seized only
so far as the debtor has a beneficial interest therein. As
between Wellbanks and Adams, the latter could not hold
the carriages without satisfying the claim of Wellbanks
for the price of the very things out of which the property
seized was made.
Digitized byVjOOQlC
XIX.] WELLBANKS V. HBNEY. 567
Again, in the absence of fraud, I think that a fair
explanation is given why the last mortgage was taken.
It was not to supersede the original writing, but under
the error that that being lost (as supposed) it would be
no longer available. This being so, the rights of the parties
were still subject to the original agreement which repre-
sents a manner of dealing that is legally permissible,
although it is open to the observations which were made in
Banks v. Robindon, 15 0. R. 618, as to desirability of
making public bargains of this kind which may have the
effect of misleading creditors.
I have dealt with the case as presented at the trial and
on the argument before us. The debt of the plaintiff
Wellbanks against Adams appears to be over $700, the
agreement of September, 1888, is to secure the plaintiff to
the extent of $500 only, but it is said that the goods
seized herein being sold have realized $398, so that there
is not enough to answer the privileged claim. The evidence
has not been so given as to enable us to discriminate more
critically as to the rights of the parties in respect of the
subject matter in this interpleader.
As the result I think the judgment should be entered for
the plaintiff, with costs.
A. H. F. L.
Digitized by VjOOQIC
568 THE ONTARIO REPORTS. [VOL.
[CHANCERY DIVISION.]
Straughan V. Smith.
Sedttctum—Action by brother^ Low oj wrvice— Infant dtfendant— Non-
appointment oj guardian — RuUs £61, SIS,
In an action for sednction it appeared that the i>laintiff was the brother
of the girl aedaoed ; and that the girl, though in thje service of another
person, yet (by agreement with her mistress, entered into at the time
of her engagement) was at liberty to perform, and did perform certain
services at home for the plainti^ under contract with him for which
she received compensation : —
Held, that the plaintiff was entitled to maintain the action.
JRi^t V. Faux, 4 B. & S. 409, specially referred to ; Thompson v. Ron, 5
H. & N. 16, distinguished.
It also appeared that the defendant was not quite of age, and that no
• guardian had ever been appointed, but that the fact of infancy was
well-known to the defendant's parents and to the solicitor and oounsel
who appeared for him at the trial, and no objection on this ground was
taken till this motion before the Divisional Court : —
Held, that under Rules 261 aud 313, the appointment of a guardian was
not imperative ; the Court had a discretion ; and in this case the judg-
ment obtained against the defendant at the trial should not be mter-
fered with.
Fumival v. Brooke, 49 L. T. N. S.'134, foUowed.
Statement THIS was an action brought by one Bobert Straughan
against James Jack Smith, claiming $1,000 damages, for
the seduction of his sister, Elizabeth Straughan, whom he
alleged in his statement of claim, before, and at the time
and since the seduction, lived with him, the plaintiff, and
worked for him as his servant.
The defendant denied the seduction, and that Elizabeth
Straughan was the plaintiff's servant, and alleged that no
relation of master and servant subsisted between the plain-
tiff and his sister at the times aforesaid.
The action came on for trial at the Hamilton Spring
Assizes on March 10th, 1890, before Falconbridqe, J.
The evidence shewed that at the time when the seduc-
tion took place Elizabeth Straughan was in the service of
Mr. and Mrs. Smith, the parents of the defendant, but
under an arrangement with them made at the time of the
hiring by Mrs. Smith, she used to go to the house of the
plaintiff and do household work for him under a contract
Digitized byVjOOQlC
XrX.] STRAUGHAN V. SMITH. 669
with him, the nature of which will be found referred to in Statement,
the argument of counsel.
The defendant was an infant, but no guardian had been
appointed in the action.
In the course of his charge to the jury the learned Judge,
Falconbridge, J., made the following observations :
This is an action of sedaction, one differing in its aspects from actions
of the kind which are usually brought into Court. As a general rule,
the action is brought by the father of the girl ; in this case the action is
brought by the brother — the father and mother of the girl being dead,
iiaving been dead some years. The foundation in theory of the law of
the action of seduction, even when brought by the father, is loss of service;
the daughter is presumed to be the servant of the father ; and the action
is broaght as a rule by the father, for loss of service, although the dam-
ages are seldom if ever confined to the mere pecuniary loss suffered by the
father. As the law stood for many years, the father had to prove some
acts of service, however slight, in order to maintain his action ; but in
the present state of the law, when the father brings action he is not ob-
liged to prove any acts of service ; but the relation of master and servant
is presumed by the law to exist There is a further provision of the law,
that where the father and mother are dead, or not able to bring the action,
another person can bring the action, under the same circumstances as the
action could have been brought by the father at common law. In other
words, when it is brought as in this case, by the brother, there must be
some evidence upon which to found the relation of master and servant.
Kow, you heard the discussion by the learned counsel, at the close of
the plaintiff* case — ^and I have determined to leave it to you, ruling, for
the purposes of this trial, that there is upon the evidence of the plaintiff,
and of his sister, suiiicient to justify me in finding that there were acts of
service performed by the sister for the brother, — that, in other words, he
is entitled to be considered as her master for the purposes of this action.
The defence then rests upon two grounds — First, the defendant says that
-the sister was not in any sense the servant of the plaintiff; and, secondly,
he says he is not the father of the child. I do not know I can refer it to
you, as regards the service, in any better way than I have done, by telling
you if you accept the statements of the condition of affairs in the house,
if yon believed that she used to go there in the evenings^he says that as
much as ^ye nights in the week his sister came there— that she used to
do acts of service, such as scrubbing, washing, cooking, mending, and
other acts of service— it is said here in evidence that she did all this in
pursuance of an arrangement made with Mrs. Smith at the time she hired
^ take the place of her sister who had had to return home sick ; it is said
t£at such an arrangement was made, and no evidence is put before you
to contradict that, by which she was to be at liberty to go there in the
evenings. The girl said that when she made the arrangement with Mrs.
Smith,— '' I told her I would have to go home to do work in the even-
71 — VOL. XIX, O.R.
Digitized byVjOOQlC
S60 THE ONTABIO BEPORT& [VOL.
Statement, ings ; that was the nndentanding.'' If you believe those statements ; if
yon accept those facts placed before you, unoontradicted as they are ; if
yon believe also that she did work upon the alternate Sunday evenings
when she was at her brother's house ; if you believe the statements made
here as to what she did, — ^then there is endenoe upon which yon wUl be
justified, under my ruling as to the law, in finding that he was her master.
The jury brought in a verdict for the plaintiff, with
9500 damages.
The defendant now moved to set aside this verdict, and
for a new trial ; and the motion came on for argument on
June 23rd, 1890, before Boyd, C, and Ferguson, J.
Bruce, Q.C., for the defendant. The defendant is an infisuit,
and the action has proceeded without a guardian. Then
there is the other question, viz., whether the plaintiff is en-
titJed to maintain the action. We say the plaintiff is not
entitled to maintain the action : Fountain v. McSwee%
4 P. R. 240 ; Macatday v. NeviUe and Macaulay, 5 P. R.
235 ; Carry. Cooper, 1 B. & S. 230 ; Con. Rule, 260 ; Hyne
V. Bum, 13 P. R. 17 ; Simpson on Infants, 2nd ed, p. 486 ;
Wade V. Keefe, 22 L. R. Jr. 154 ; Thompson v. Ross, 5 H. &
N. 16 ; McKersie v. McLean, 6 O. R. 428 ; MarUey v. Field,
7 C. B. N. S. 96 ; Jert^ v. Hutchinson, L. R. 3 Q. B. 599;
Postlethtvaite v. Pa/rkes, 3 Burr. 1878 ; Ogden v. Lancashire,
15 W. R. 158 ; Eist v. Faux, 4 B. & S. 409.
Ca/rscaUen, Q.C., for the plaintiff. As to the infancy of
the defendant, Rules 260, 261 do not in the case of personal
tort require imperatively the appointment of a guardian.
An infant is not as of course entitled to have proceedings
set aside on the ground of infancy : James v. AsweU, 11
Jur. N. S. 562. The defendant should have raised the
question at the trial. His infancy is a question of fact
which the jury should have been called on to pronounce
upon. An infant sued in tort or in contract is in the same
position. In Fumival v. Brooke, 49 L T. N. S. 134, the
Court refused to set aside a judgment against an infant. The
defendant was personally served, and appeared by solicitor.
The plaintiff was entitled to assume that the defendant
was of age. It was for the defendant to set up his-
Digitized byVjOOQlC
XIX.] SIBAUGHAN V. SMITH. 661:
infancy. No point was made at the trial. There are no Argument
merits. It is entirely within the discretion of the Court.
[Bnice, Q.^C., Ca/rr v. Cooper, 1 B. & S. 220, shews that it
was the duty of the plaintiff to apply to appoint a guardian
when the fact of infancy came to his knowledge.] If the
proceedings are set aside the Court should impose terms of
payment of all C06t& As to right of the plaintiff to maintain
the action, the plaintiff is in loco pare^Uis to his sister. It
appears from the evidence that the plaintiff had assumed
a liability for payment of the passage money of himself
and his brother and sisters from Elngland to Canada, and
it was agreed that the plaintiff should take up house, and
that his brother and sisters including the seduced girl
should contribute by their wages to support the house and
enable the plaintiff to pay the passage money. This sister
also did cooking and work about the house for the plaintiff.
At the time she was seduced the obligation subsisted. The
plaintiff is not bound to prove any contract of hiring and
service. In Abemethy v. McPherson, 26 C. P. 616, many of
the cases referred to by counsel for the plaintiff are reviewed.
There can be a divided service : Rist v. Faux, 4 B. & S:
409. The relationship of master and servant was con-
stituted by this arrangement sufficiently to enable the
plaintiff to maintain the action. I refer also to Howard
V. CrowtJier, 8 M. & W. 601 ; Harper v. Luffldn, 7 B. & S.
387 ; Harri8 v. Butler, 2 M. & W. 539.
Brace, in reply. If there are to be two masters, they
both must join as plaintiffs. Rules 260 and 261 in our
Consolidated Rules of Practice are new rules, and not the
same as the English Rules.
Jane 30th, 1890, Boyd, C. :—
The evidence shews that at the time of living with Mr&.
Smith it was stipulated and agreed that the girl should be
at liberty to do service for her brother, which differs the
case from Thompson v. Roaa, 5 H. & N. 16, where the-
pennission was occasional and at any time revocable.
Digitized by VjOOQIC
562 THE ONTARIO REPOHTS. [vOL.
Judgment Here it was in effect a portion of time exempted from
Boyd, C. that to which Mrs. Smith was entitled, which was occupied
with service rendered to the brother -as head of the
Straughan family. The services rendered to this brother
were under contract with him for which she received com-
pensation by means of a family arrangement detailed in
the evidence. There seems to be as much evidence, and
of the same kind as in Rist v. Fav^x, 4 B. & S. 409.
On the ground of infancy I am not disposed to interfere.
We may follow FumivaL v. Brooke, 49 L»T. N.S. 134, which
shews that the Judges have a discretion whether or not to
interfere in cases of infancy, according to circumstances.
This is rested there partly upon the phraseology of the
English orders, and ours, though different in form, are
on this point identical I refer to those numbered 261
and 313, in which *' may" is used as in the order under
consideration in Fuimival v. Brooke, Such diacretion,
however would, apart from rules and orders, appear to he
inherent in the Court : See Wright v. Hunter, 1 L. J. 0. &
(E. B.) 248. There is no reason to believe, or indeed sus-
pect that the interests of this infant were not carefully
considered and protected. The solicitor who appeared and
defended him, and the counsel who acted at the trial for
him, and the parents with whom the girl seduced and the
defendant resided, all knew of his infancy and did all
that was deemed advisable to exculpate and exonerate him.
No good purpose would be served by a rechxwiffi of this
case before another jury. The judgment will therefore be
affirmed with costs.
Ferguson, J. : —
I do not see that the verdict should be disturbed on the
alleged ground that the relationship of master and servant
was not shewn«
The evidence shews that the understanding at the iiice
of the hiring of the girl by Mrs. Smith, was that she was
to go home at nights, and attend to the work there, and
Digitized byVjOOQlC
XIX.] STBAUQHAN V. SMITH. 563
there is evidenca that the work to be done at home was Judgment,
done under a contract or agreement. With respect to Fergiuon, J.
this imnaediate subject the case resembles more nearly the
case of Rist v. Faux, 4 B. & S. 409, than any other that I
have seen, and I think it clearly distinguishable from
Thompson v. Rosa, 5 H. & N. 16, on the ground that in
that case the assistance given to the parent at the work by
which the parent earned a livelihood was by the permis-
sion of the master ; whereas in the present case it was a
part of the understanding and agreement at the time of
the hiring with Mrs. Smith, that this work might be done
at home, and as against Mrs. Smith there was the right
to do it without permission.
Then as to the other ground, that of the infancy. The
case of Fumivcd v. Brooke, 49 L. T. N. S. 134, was an
appeal from the refusal at Chambers to set aside a judg-
ment obtained by the plaintiffs for default of appearance.
As in the present case the defendant was an infant, but
almost of age. The Rule then in force in England is
referred to in the judgment of the Court. The words in
that Rule were " may apply," and the Court held that they
were permissive, and that there was a discretion. The
learned Judges said that they had perfect discretion,
remarking that the word "must" was not used in the
Rule, and under the circumstances of the case refused to
exercise the discretion in relief of the infant defendant.
The words in our Rule 261 are : " there may be a guar-
dian appointed," &c. If it were not for the authority
of that case {Fumival v. Brooke), I should have in-
clined to the view that the position of a plaintiff in such
circumstances would be this : that he would be driven to
make the application or not further proceed with the
action. But assuming that the discretion existed under
the English Rule, one does not see any good reason why it
should not exist under our Rule. Then assuming that the
discretion does exist, this is surely a case in which it should
not be exercised in favour of the defendant, who is so
nearly of full age, and who has, no doubt, availed himself
Digitized byVjOOQlC
564 THE ONTABIO REPORTS. [VOL.
Judgment, of all the advantageH, in fact, of a full defence to the action.
Fergowm, J. -^^ leBst, these advantages have been made available for
him, and the chances of a result in his favour have once
been had. For these reasons I agree in the judgment of
the Chancellor.
A. H. F. L.
[CHANCERY DIVISION.]
Morris v. Martin.
CkcUtel mortgage— Mortgage of goods to secure imfe barring dower— Pou*
ment of moneif into Court — Chattel Mortgage A c^—InUrpUader—R, 8. 0.
1887, ch. ijS5, see. 6.
A husband executed to his wife a chattel mortgag[e to secure her agaiost
loss by reason of her having barred her dower in certain mort^pges of
land. The goods were seized by his execution creditors, claimed by
her, and sola pending interpleader proceedings. The husband was siul
livinff : —
Meld, uiat the money, the proceeds of the goods, must remain in Conit
to abide further order, so that the wife could have the same secniity
that she had by the mortgage ; and if she should not hereafter become
entitled to the money, it would be available to the husband's crediton.
Held, also, that the chattel mortgage was valid, notwithstanding any-
thing in R. S. 0. 1887, ch. 125, sec. 6.
Statement THIS was interpleader issue between A* W. Morris &
Bro., and the Merchants' Bank of Canada affirming,
and Jean Martin denying that certain goods and chattels
claimed by Jean Martin, seized in execution by the sheiifi
of Kent under a writ of fi. fa. tested May 30th, 1889, and
other subsequent writs, were at the time of seizure the
property of A« W. Morris & Bro., and the Merchants Bank
as against Jean Martin.
The defendant to the issue, Jean Martin, was the wife
of one Colonel Martin, and claimed the goods under a
chattel mortgage given to her for the purpose of securing
her from any loss which she might sustain by reason of her
having barred her dower in lands comprised in a mortgage
given by her husband to F. B. Stewart, on November l7th,
1888, to secure him against liability in respect of certain
Digitized byVjOOQlC
SIX.] MORRIS V. MARTIN. 565
Aoies which he had endorsed for Colonel Martin. The8t»teinmt.
drcumstances of the case sufficiently appear from the judg-
ments of Street, J., and of Ferguson, J. It may be added,
however, that the mortgage of November 17th, 1888, was
a second mortgage, Stewart holding a prior mortgage upon
the same property in which Jean Martin had barred her
dower.
The issue was tried at Chatham, on April 14th, 15th,
and 16th, 1890, before Street, J.
Douglas, Q. C, for the plaintifik
Christie, for the defendant.
April 16th, 1890. Street, J. :—
I have had an opportunity of considering the matter
thoroughly, and I do not see that I need call upon Mr.
Christie in the view that I take of the matter. There is
no doubt, I think, that Colonel Martin was really insolvent
at the time he gave this mortgage to Mr. F. B. Stewart, '
•on November l7th, 1888. He had a large amount of
real estate, and also a large amount of personal estate, but
he owed a large amount of money. The money was
becoming due immediately, and therefore was a debt which
had to be provided for immediately. The assets were
^fcfisets which were not quickly realizable; so that if he
had been called upon to pay his liabilities he was unable
to do so. His only chance was to obtain renewals of the
notes upon which he was liable to the Merchants' Bank ;
his other debts were not very considerable. I think he
may readily have thought that if he obtained renewals of
those promissory notes from the Merchants' Bank he
would obtain time in that way to sell his lands, and so to
raise funds in that way for the payment of all his debts.
So when he was pressed, as I think he was pressed, by
Mr. Stewart, to give this mortgage, that appealed to be the
only means of saving himself from immediate insolvency*
Digitized byVjOOQlC
566 THE ONTAKIO REPORTS. [YOU
Judgment. In his view it was highly important that he should be able
Street, J. ^ obtain renewals of the notes. Mr. Stewart was very
anxious, apparently, to get this mortgage. He pressed for
it, and he evidently, because he did press for it, thought
there was a margin in the property sufficient to secure him,
or to secure him in a great measure for the renewals of
these notes. That being the feeling of Colonel Martin and
of Mr. Stewart, Colonel Martin brought his wife in to
execute the security to Mr. Stewart ; his wife had already
executed a number of mortgages, ajid possibly fearing
that her husband's difficulties were increasing, refused to
execute the mortgage when she was asked to do so, and she
went away and consulted a lawyer with regard to it. They
all went away that day, she refusing to sign the mortgage.
They came in another day ; on that other day she asked
her husband, before signing the mortgage, to pay her some-
thing for signing the mortgage ; he said he had no money
that he could apply in that way. Then it was suggested,
and I think, from the evidence, by Mr. Chiistie, the solici-
tor who was acting for Colonel Martin and for Mr. Stewart,
* that her husband might give her a chattel mortgage,
and that was ultimately agreed to. The chattel mort-
gage recites the agreement on her part to execute the
mortgage of the land, barring her dower in it upon her
getting a chattel mortgage upon these chattels, to secure
her against any loss that she might sustain by reason of
executing the mortgage of the real estate. As the real
estate has turned out, it seems doubtful whether her dower
at that time was worth anything. The highest estimate
that has been put upon the surplus over the prior mortgages
is $2,000 ; and that I should think would be the outside, at
all events^ that would be realized over the mortgages
which were in existence before that of November 17th,
1888; but at that time there was a reasonable expec-
tation that a much more considerable sum would be
realized out of the lands. Mr. Stewart seems to have been
of that opinion ; Colonel Martin I think undoubtedly was r
imd Mrs. Martin probably did not know very much about
Digitized byVjOOQlC
XIX.] MORRIS V. MARTIN. 567
it; but believed, because she was asked to join in the Judgment,
mortgage, that her dower was worth something. That street, J.
belief on her part and on their parts would be perfectly
good consideration for the giving to her of security
against any loss that she might sustain by releasing what
they seem to have all thought was a valuable property ;
that is to say, her dower in the equities of redemption.
I think that the arrangement that was come to was the
one that was suggested by Mr. Christie and the one which
was embodied in the chattel mortgage. The parties seem
undoubtedly to be very confused about that. Colonel
Martin says absolutely that the agreement was that his
wife was to own all these chattels. Mrs. Martin says in
the box, that she was to have security for her dower ; and
she says in the box also, that if she lost nothing by joining
in the mortgage that the chattels would go back to her
husband ; but she has also said on other occasions, when
she was examined before, that the chattels were to be hers,
I think I may reasonably put all this down to the confu-
sion between what was the agreement at the time and
what appears to be the ultimate outcome of the agreement;
that the ultimate outcome of the agreement appears to be
that she will get nothing, that she will lose everything
that she has conveyed, and that therefore the chattels will
belong to her, as would undoubtedly be the result if she
lost anything equal to the value of the chattels by reason
of her having joined in the mortgage. However, that
seems to me to be the only difficult point in her rights. I
think she acted in perfect good faith in the matter, and
that she only gave up her dower and signed the mortgage
upon the terms that she was to get this chattel mortgage
to secure her against loss.
Then it is urged that the amount of liability that she
incurred is not stated in the chattel mortgage, (a) It was
a case, I think, in which it was impossible to arrive at the
amount of the liability that she incurred ; so that if it
were necessary that the amount of liability that she in-
(a) See R. S. O. 1887, ch. 125, i. 6.
72— VOL. XIX. O.R.
Digitized by VjOOQIC
568 THE ONTARIO REPORTS. [vOL.
Judgment, curred should be stated in the chattel mortgage, then the
Street, J. chattel mortgage, it appears to me, does Dot come mider
the Chattel Mortgage Act at all They have stated in the
chattel mortgage, as nearly as they can, the amount of the
liability that was to be incurred ; and that was the only
thing they could do. I do not think it was ever intended
that no chattel mortgage should be given at all under such
circumstances ; so that if it could not be within the Act,
then it must be without the Act.
The rights of the execution creditors, therefore, I think
were to sell the property only subject to her rights under
the chattel mortgage. They have taken the opposite view,
and have sold the property clear of her rights. They had
no right to do that in my judgment, and I think that issue
must be found against the execution creditors, the plain-
tiSs in the case, and that they should pay the costs.
• • • « « •
I have not overlooked the fact that the chattel mortgage
is dated on the IStb of Movember, and that the mortgage
of real estate is not dated until November 17th. The
chattel mortgage is signed by both parties on the after-
noon of November 13th, but it does not deem to have
been completed and the affidavit of bona fides does not
seem to have been executed until the 17th. The 17th I
should treat then as the day of execution, really, of the
chattel mortgage.
The judgment should contain an order for the payment
out of the money in Court ; and I have stayed the entry of
Judgment until after the 4th day of the next sitting of
the Divisional Court for the disposal of any motion to
be made to the Divisional Court at such sitting ; so the
money cannot be got out till after this is disposed of.
The pldntiffs to the issue, the execution creditors, now
moved before the Divisional Court by waj' of appeal from
this decision.
The motion came on for" argument on June 12th, 1890,
before Bon), C, and Ferguson, J.
Digitized byVjOOQlC
XIX.] MORRIS V. MARTIN. 569
M088, Q. C, for the plaintiffs. The husband making a Argument,
second mortgage to the same mortgagee without any
further bar of dower, the lands might be sold and the wife
would have no daim. [Boyd, C. — Her dower would take
priority over the second mortgage would it not ?] I submit
not. In such case the husband does not die seized ; the
land is sold in the life time of the husband. Re Croakm^,
16 O. R. 207, does not decide the point. [Ferguson, J. —
I remember at the time of Re Croakery, thinking I had
•overlooked a real point in Sorenson v. STnart, 9 O. R. 640,
and that the Chancellor's view was entirely right.] We
think that on the evidence there was no real bond fide
intent to secure her, but the intent was to secure the goods
against the creditors. She is not entitled to anything
unless it is shewn that she sustained a loss. It is of no
•consequence to her in one way when the sale takes place.
[Boyd, C. — If the land were sold under the mortgages the
surplus, if any, would be paid into Court to answer the
•daim of the wife.] But it is only by the lands being sold
■and the prior mortgage satisfied that it can be a^scertained
whether there will be any surplus. [Boyd, C. — The points
«eem to be was there any tangible value in what she gave
up, and was the arrangement honestly entered into ? She
had inchoate dower in what was conveyed, what its value
was is another thing. Can you have any higher right
4igainst the goods than you would have had against the
Jands ?] At the very outside all she could be entitled to
would be to have the money impounded to see if she
•survives her husband. [Boyd, C. — Assuming bona fides
the fund would have to remain in Court to abide results.]
[Ferguson, J. — Is there no way of ascertaining the valu3
of her inchoate right of dower, and distributing the money ?]
I think not, except by consent We say that on the facts,
as they ought to be found, it amounted to a voluntary gift
by the husband to her at a time when he was not in a
position to make a voluntary gift. That this was a device
by which he would be able to live on his place, and hold
it against his creditors.
Digitized byVjOOQlC
570 THE ONTARIO REPORTS. [VOL.
Argument. C, J^ Holman, contra The issue is whether certain
goods or some part thereof, were at the time of the seizure
the property of the execution creditors. We say there
was default because they have not protected her right of
dower. Be it worth what it may we are entitled to have
it protected. There was default here. Our position is
then the mortgage is in default, under the mortgage
we are in possession of these goods, and have a lien on
them. [Boyd, C — But your rights as dowress not having
accrued, you should not have a present right to the goods.]
I think I can establish from the evidence that the right of
dower bore a fair proportion to what we received. We
were to have our right of dower preserved and to have the
mortgage discharged. [Ferguson, J. — Your mortgage,
supposing it to be all right, was a security to secure to
you a right which may never arise. If it never accrues,
this property is the property of the debtor. Let the pro-
perty then remain to indemnify you, but if your client
should die first, why should not the creditors get the
property ?]
M088, Q. C, in reply. The money should be kept under
the eye and under the control of the Court until we see
whether she survives her husband. It all comes back to
the same question. Assuming that there is default, —
though I maintain failure to indemnify against loss is the
only default, — but assuming that there is default, surely
the rights are then to ascertain what loss she has suffered
by the default ; and that can only be such dower as she has
lost by signing, and that cannot be ascertained until these
contingencies happen.
June 30th, 1890. Ferguson, J. :—
In this case the judgment is in favor of the defendant who
is the claimant in the interpleader issue. It directs the pay*
ment of the costs by the plaintiffs the execution creditors*
It also directs the payment out to the defendant of the
moneys in Court. The only part of the judgment that I
Digitized byVjOOQlC
3IX.] MORRIS V. MARTIN. 571
think is not correct is the part directing the payment of the Judgment,
moneys to the defendant. Ferguson, J i
The chattel mortgage under which the defendant claims
was for the purpose of securing her against loss, damages,
costs, &c., that she might sustain or be put to by reason of
her executing certain mortgages for the purpose of barring
her dower. This I think states substantially what
appears, though many more words are employed in the
mortgage.
Her husband is still living and it does not appear
that the defendant has yet sustained any such loss or
damage. The money in Court represents, as I under-
stand, the property embraced in the chattel mortgage.
Should it turn out that the defendant never becomes
entitled to dower out of the lands, it is difficult to per-
ceive that she will sustain loss or damage by reason of
her having so executed the mortgage thereon, and not-
withstanding some arguments in respect of certain
breaches of stipulations in the mortgage under which
iier claim is, I think the matter should be looked at
according to its substance, and in the way that I have
stated.
The money should, I think, remain in Court to abide
further order. In this way the defendant will have the
same security that she had by the mortgage ; and if she
does not become entitled to the money I see no good
reason why it should not be available to the creditors of
her husband who was the owner of the property mortgaged
to her.
With this variation I think the judgment should be
affirmed.
I agree in the disposition of the costs made by the
Chancellor.
Boyd, C. :—
The mortgage is good only to the extent to which the
wife had valuable interest as inchoate dowress in land
wherein she barred her dower.
Digitized by VjOOQIC
572
TH£ ONTAHIO BEPOBTS.
[VOL.
Judgment I think the money represents her claim for dower and
Boyd, C. should be deposited in Court to abide the provisions of the
Dower Act, unless the parties can agree as to a division.
The motion against the judgment as made fails and the
plaintiff should pay the costs of it to the defendant
A. H. F. L
Statement
[CHANCERY DIVISION.]
KeYES V. KiRKPATRICK.
Bankruptcy arid insolvency — Assignee for creditors — Power of auignee to
compromise claims — Leave to creditor to bring actior^—B. 8, 0. {1887)
ch. 124.
A plaintiff, a creditor, serv^ed a notice on an assignee for creditors, par-
soant to R. S. O. (1887), ch. 124, sec. 7, sub-sec 2, requiring him to
take proceedings to set aside a certain bill of sale made by the insolvent
and afterwards served on him a notice of motion for an order giving
him, the creditor, permission to bring the action. After being served
with this notice, however, the assignee, believing that he had authorify
to do so, with the approval of a majority of the inspectors and credi-
tors present at a meeting called for the purpose, made a settlement
with the grantee of the bill of sale, which settlement, it also appeared,
was advanti^^eoiis to the estate. The plaintiff then, pursuant to hia
notice of motion, obtained an order from a Judge, giving him leave to
bring this action impeaching the bUl of sale, without, however, the
settlement being brought to the notice of the Judge : —
Held^ that the settlement was valid and binding.
This was an action brought by John E. Keyes, assignee
for the creditors of one John W. McCormick, under an
assignment made to him on September 18th, 1889, and was
for the purpose of having a certain memorandum or bill of
sale, dated August 28th, 1889, whereby the said McCormick
professed to make a transfer of certain goods and chattels
to the defendant, declared fraudulent, preferential and void
as against the plaintiff and the creditors of John McCormick.
The action was commenced on February 12th, 1890.
The defendant pleaded that before the commencement
of this action, on November 25th, 1889, the plaintiff and
himself settled and compromised aJl differences and dis-
putes between them with regard to the bill of sale in
Digitized by
Qoo^^
XIX.] KEYES V. KIRKPATRICK. 573
question, the terms of the said compromise being contained Statement,
in a written document of that date, and this settlement
was duly proved at the trial.
It appeared that at a meeting of creditors on September
28th, 1889, a resolution was carried under which the
inspectors and assignee were to confer with the^defendant
and see if a settlement could be arrived at as to his claim
under the bill of sale in question, and report to the credi-
tors the result of their deliberations.
This action was really brought by a creditor named
Hanning, who had, on November 27th, 1889, obtained an
order allowing him to proceed in the name of the assignee,
he having first, in accordance with R. S. O. 1887, ch. 124,
sec. 7, sub-sec 2, served a notice on the assignee requiring
him to take these proceedings. This notice was served on
the assignee before the compromise with the defendant
was effected.
The other facts of the case material to the present report,
sufficiently appear from the judgments.
The action came on for trial at the Berlin Spring A&sizes,
1890, before Falconbridge, J., who gave judgment as
follows :
" I do not think I can get over Johnston v. Hope, 17 A.
R 10. It seems to me it has not been proved that the
defendant Kirkpatrick had knowledge that McCormick
was insolvent and unable to pay his debts ; and therefore
the action must be dismissed. I do not think the assignee
had any right to attempt to deal with his claim, in face of
the notice of motion actually pending ; and, as far as the
defendant i^as concerned, he had a right to make a reason-
able settlement, if he could. Action dismissed with costs."
The plaintiff now moved before the Divisional Court by
way of appeal from this decision on June 28rd, 1890, before
Boyd, C, and Ferguson, J.
Du Vemet, for the plaintiff (a).
(a) As the judgments of the Divisional Court entirely torn upon the
oompromise before action, only that part of the argument having reference
thereto is here reported. — Rkp.
Digiljzed by VjOOQIC
574 THE ONTARIO REPORTS. [VOL.
Argament Tf . Cossda, Q.C., for the defendani The plaintiff has no
remedy at all and cannot sue. The assignee and the defen-
dant made a settlement before suit The estate is honnd
by the compromise, which the action if successful would
upset : Anon v. Odpcke, 5 Hun 245, shows that a trustee
can compromise claims for the benefit of creditors. See
also Leaning v. Lady Murray, 13 Ch. D. 123 ; Yate Lee's
Law of Bankruptcy, 3rd ed. p. 475.
Du Vernet, in reply. R. S. 0. 1887, ch. 124, sees. 16, 17,
sub-sec. 2, shew that a meeting of creditors was necessary,
or the intervention of the County Judge. Besides the
alleged compromise was made after the application for the
order allowing the action to be brought. I refer to In re
Jai^ns V. Cook, 29 Gr. 303.
June 30th. 1890. Boyd, C. :
The evidence shews that a compromise was arrived at
between the assignee and the defendant in regard to the
claim now in litigation. This was in pursuance of a reso-
lution of creditors duly called, by which it was left to the
inspectors and assignee to see if a settlement could be
arrived at, and report to the creditors the result of their
deliberations. Two of the three inspectors and the assignee
approved of the terms of settlement arrived atv and it is well
proved that it was in the circumstances the best thing to do.
The solicitor of the assignee says that he thought the set-
tlement was a good one, and in the interests of the estate.
There was a meeting of creditors called, who approved of
the action taken, and other creditors being spoken to, also
sanctioned what was done. It is not very clear whether
the meeting was in all respects formal, but the fair result
of the evidence is, that with the exception of the creditor
now suing in the name of the assignee, there was a general
consensus in favour of the compromise. The amount
involved was $200, of this every one, including the said
creditor, agreed that the defendant was entitled to $50.
As a part of the settlement the assignor gave up to the
Digitized byVjOOQlC
XIX.] KEYES V. KIRKPATRICK, 575
estate his claim for exemption to the extent of $100, which Judgment.
left only $50 under discussion. The chattels in dispute Boyd, O.
consisted of horses, the keep of which averaged $7 or $8 a
week, and a speedy settlement was for this and other reasons
deemed advisable. Now, the statute R. S. 0. 1887, ch. 124,
cannot be so read as to justify a compromise by the body of
<;reditors, and the prosecution of an action in the name of
the assignee by one creditor to impeach the subject-matter
of that which was compromised. The attack here is on a
bill of sale, but before action the assignee had settled the
claims of the creditors, and executed a release to the defen-
dent. That release is attacked on various grounds in the
defence, but not I think successfully. It would be unjust
to hold the bill of sale invalid on the one hand, and on the
other hand for the creditors to retain the benefit of the
SlOO exemption conceded to them by the insolvent.
The action of the inspectors and the majority of the
creditors in effecting a compromise under the Act must
bind a dissentient creditor unless he takes direct steps to
impeach it for some satisfactory reason. I do not see that
it matters that notice of motion had been given by the
creditor under sec. 7, sub-sec. 2, if the order made by the
Judge was without notice of the compromise actually and
bond fide effected prior thereto. The second meeting of
creditors was on November 9th ; notice of motion to the
assignee for the use of h^s name on November 20th;
release executed November 25th ; order to bring the action
November 27th, and action begun February 12th, 1890.
No information was laid before the Judge who made the
order of the pendency of the compromise proceedings, nor
was he aware of the release given by the assignee. That
release must work a disqualification in the right of action
in the assignee's name if it was a valid and honest release,
and of that I entertain no doubt. For this reason I think
the judgment should be affirmed with costs.
73 — ^VOL. XIX. O.K.
Digitized by VjOOQIC
576 THE ONTAfilO BBP0BT8. [VOL^
Jndgmeut. FERGUSON, J. : —
Ferguson, J.
This is an action by an assignee for the benefit of credi-
tors of one McCormick, to set aside a transaction made
between McCormick and the defendant. The assignee had
made a settlement of the matter, and as shewn by the
evidence, had given a release, and was unwilling to bring
the action until an order under the provisions of the Act
was obtained by one of the creditors. It appears that the
settlement and release took place after the notice of motion
to obtain the order, and it is contended that pending such
notice this should not have been done. I fail to perceiv^e
the soundness of this contention ; for if it is correct and
full effect is given to it, it seems to me that any creditor
might at any time by giving such a notice stop or materi-
ally impede the proceedings for the winding up of an estate
by an assignee for creditors. It was not, I think, to be
assumed by the assignee that because a notice was given,
an order would be made ; and if the conduct of an assignee
is honest, and in all other respects good, though during
the pendency of such a notice, I do not see that it would
be void or bad simply by reason of the notice.
After a perusal of the evidence in this case, I am of the
opinion that the conduct of the assignee touching the
settlement and release, was honest and in perfect good
faith, and I cannot say that it appears that it was un-
authorized. It also appears, I think, that the effect was
not disadvantageous to the estate, which, however, seems
to have been so small that it was not easily possible that
each creditor could have been very severely injured.
At the first meeting of creditors there seems to have
been, as a witness puts it, a great lukewarmness amongst
the creditors, and they seemed to think that nothing could
be " made out of this thing ; " but there seems to have been
general instructions to the assignee to do the best he could,.
and afterwards two of the inspectors told the assignee that
what he was purposing to do was the best thing he could
do. A second meeting of the creditors was called. It is
Digitized byVjOOQlC
XIX.] KEYES V. KIRKPATBICK. 677
said, however, that a quorum did not attend. Whatever Jndgmen
that may mean, I do not see how an assignee can compel Ferguson,
the attendance of creditors at a meeting. Looking at the
'whole of the evidence I think it may fairly be said that
the settlement was honorably made by the assignee, he
believing that he had authority to make it, and I incline
strongly to the opinion that the authority was sufficient ;
that it was not disadvantageous to the estate, but the
contrary of this; and besides the assignee obtained by it SlOO
worth of exemptions which would not otherwise have been
available to the estate; and seeing that there was in fact some
authority, that all was done under the belief that there
was all necessary authority, I think it would not be a
proper thing under such circumstances to hold the settle-
ment bad, and if it is so held to be good this action must
faU.
There may be other and different reasons why the action
cannot succeed, but this one seems to me sufficient.
I think the judgment should be affirmed.
A. H. R L.
Digitized by VjOOQIC
578 THE ONTARIO REPORTS. [VOL
[QUEEN'S BENCH DIVISION.]
Black v. Ontario Wheel Company.
Master and servant— Accident to aervatU — Fall of elevator— NigUgaut—
Master's knowledge oj defects— Want of reasonabU cart — Cbmnum tans
liability — * * Workmen s Compensationjor Injuries Act " — Factories Ad^
B. 8. O. ch. 808, sec. IS, sub-sec, 4.
In an ftction by a workman against his employers to recover damages for
injuries sustained owing to the falling of the ca^ of an elevator in the
defendants' factory, the negligence charged was in the manner in which
the heads of the bolts were held, and in the nature of the safety catch
used upon the cage.
There was no evidence to shew that the defendants were or should have
been aware that the bolts were improperly sustained. They had em-
ployed a competent contractor to do this work for them only a few
weeks before, and it was not shewn that the alleged defect might
readily have been discovered.
Held, that the defendants were not liable upon this hoad : —
Murphy v. Phillips, 35 L. T. N. S. 477, distinguished.
The safety catch was made for the defendants by competent persoDS, and
there was no evidence that it was not one which was ordinarily used :—
Held, that the defendants were not liable upon this head unless there was
a want of reasonable care on their part m using the appliance which
they used ; and it was no evidence of such want of reasonable care
merely to shew that a safety catch of a different pattern was in use ten
years previously by others, or even that it was at present in use, and
that a witness thought it might have prevented the accident ; aod as
no negligence was shewn, the defendants were not liable either at com-
mon law or under the Workmen's Compensation for Injuries Act
By sec. 15, sub-sec. 4, of the Factories Act, R. S. O. ch. 206, "All ele-
vator cabs or cars, whether used for freight or passengers, shall be
provided with some suitable mechanical device, to be approved by the
inspector, whereby the cab or car will be securely held in the event of
accident," &c.
There was no evidence to shew whether this particular safety catch had
been approved by the inspector : —
Hdd, that the onus was upon the plaintiff to prove that the catch had not
been approved ; and if it had neither been approved nor disapproved,
the question still was whether the catch usea were of such a ^laracter
and pattern as to make the use of it unreasonable.
Statement T^is Was an action to recover damages for injuries
sustained by the plaintiff owing to the falling of the cage
of an elevator in the defendants' factory, and was tried
before Armoub, C. J., with a jury, at the Spring Assizes,
1890, at Kingston.
The plaintiff at the time he received his injuries was a
workman in the defendants' employ, and appeared to have
been lawfully in the elevator when the cage fell The
Digitized byVjOOQlC
XIX.] BLACK V. ONTARIO WgEEL CO. 57^
case of the plaintiff as to the cause of the falling of the Statement,
cage was that certain bolts which passed through the floor,
and upon which was suspended a portion of the machinery
for working the elevator, were not suflSciently secured by
washers under their heads, or otherwise ; that in conse-
quence the heads were drawn through the floor upon which
they rested ; the machinery was thrown out of gear ; a
number of cogs upon one of the wheels were broken off*,
and the cage was allowed to come down with great
violence, causing the plaintiff^s injuries. It is not necessary
to examine the theory set up by the defendants as to the
cause of the accident. It was shewn that the machinery
for working the elevator had been put in to the defendants'
factory by a firm of independent contractors, whose busi-
ness it was to do work of that character ; it had only been
in use for a few weeks before the accident occurred. The
floor through which the bolts passed and upon which they
were suspended was a thick pine floor ; after the accident
hickory instead of pine was used and washers were put
under the heads of the bolts.
It was shewn that a safety catch formed part of the
cage of the elevator but that it failed to work, the reason
given being that the rope by which the cage was suspended
neither broke nor became slack during its descent, so that
the catch was never loosened. A witness was called who
stated that in a factory in which he had been employed
some ten years before, a safety catch was made and used,
worked by a governor similar to that used with the safety
valve in many steam engines and which came into opera-
tion upon any increase in the speed of the descent of the
cage without regard to the slackening of the rope. It was
not shewn whether or not the safety catch used by the
defendants had been approved by the inspector under
section 15 of the Factories Act, ch. 208 R. S. O. It was
contended on the part of the plaintiff that, as this catch
had not worked so as to prevent this accident, the factory
was an unlawful one within the meaning of that Act, or
that at all events there was negligence on the part of the
defendants in using it.
Digitized byVjOOQlC
580 THE ONTARIO REPORTS. [VOL.
Statement. At the conclusion of the plaintiff's case the learned
Chief Justice entered a nonsuit, being of opinion that
there was no evidence to go to the jury of negligence on
the part of the defendants.
At the Easter Sittings of the Divisional Court 1890, the
plaintiff moved to set aside the nonsuit and for a new
trial upon the law and evidence.
The motion was argued before the Divisional Court,
(Falconbridoe and Street, JJ.,) on 26th May, 1890.
Britton, Q. C, for the plaintiff. The defendants are
liable at common law. Murphy v. PhUlips, 35 L. T. N. S.
477, shews that where the employer ought to know of the
defect, and the injured employee did not know it, the
latter can recover. The plaintiff is entitled to recover
under the Workmen's Compensation Act, B. S. O. ch. 141,
as amended by 52 Via ch. 23 (0.). The defendants are
also liable under the Factories Act» R. S. O. ch. 208, sea 15.
There was evidence to go to the jury under any one of
these. It was well known to the superintendent of the
defendants' works that the plaintiff and other employees
were in the habit of using the elevator. The cause of the
elevator falling was the wheels getting out of mesh. They
got so by hangers being put through the floor. This was
negligence. Then the want of safety catches was a defect
under the Factories Act. The fact of the accident happen-
ing at all is evidence of negligence to be explained:
Cataraqni Bridge Go. v. Holcomb, 21 U. C. R. 273 ; WUmot
V. Jarvis, 1 2 U. C. R. 641. Apart from the statutes there
was evidence to go to the jury to shew that the superin-
tendent could have discovered by a reasonable examination
that this elevator was not secure. The plaintiff shews
that an accident happened, and proves a sufficient cause
for it existing. It is like the case of an engine emitting
sparks and the grass being found on fire. If there is any
evidence at all the case should go to the jury : Madden v.
Digitized byVjOOQlC
ilX.] BLACK V. ONTAEIO WHEEL CO. 581
Mamilton Forgvng Co., 18 0- R. 56 ; LeMay v. Catiac^iaoi Argument.
Pacific R. W. Co., ib. 314; McOibbon v. Northern R. W.
€o,, 14 A. R. 91.
E. D. Armati/r, Q. C, for the defendants. The plaintiff
must establish, 1st, what the duty is, and, 2nd, that it has
been neglected. To suggest a theory is not enough.
There is no positive evidence that the cause assigned by
the plaintiff was the cause of the accident. The cause
itssigned is suggested as a theory by just one witness.
The plaintiff should establish it positively. So far from
hift being able to do so, it is a mechanical impossibility that
the accident was caused as alleged. The cases cited, with
regard to the doctrine res ipsa loquitur do not apply
to a case of master and servant. The plaintiff' has not
made out his ca83 when he has shewn that an accident
.happened in a factory ; he has to^hew a duty and a breach.
A servant takes a risk that strangers do not take. See
Roberts & Wallace on the Duty and Liability of Employ-
ers. The statutes do not carry the case any further.
Knowledge on the part of the master and ignorance on the
part of the servant are necessary to constitute a cause of
;action : Oriffiihs v. London and St, Katharine Docks Co.,
13 Q. B. D. 259. Where it is alleged that some other person
than the employer was negligent, the case comes under
the statute only in certain specified cases. In this case the
negligence was that of the contractors, for which we are
not responsible. See sec. 6 of 52 Vic eh. 23 (O.). The
defendants are not for ever and ever responsible for the
fault of the contractors. The absence of safety catches
was not the cause of the accident at all.
Britton, in reply.
June 21, 1890. The judgment of the Court was de-
livered by
Street, J. — (after stating the facts as above) : —
The plaintiff contends that the defendants are liable at
common law, and under the Workmen's Compensation for
Digitized by VjOOQIC
582 THE ONTABIO REPORTS. [VOI^
Judgment. Injuries Act, ch. 141, R. S. O., and also under ihe Factories
Street, J. Act, ch. 208, R. S. O.
In order to render the defendants liable at common l&iir,
it is necessary to shew negligence on the part of the em-
ployer, and ignorance on the part of the workman. The
negligence relied upon here is, firstly, the manner in which
the heads of the bolts were held ; and, secondly, the nature
of the safety catch used upon the cage of the elevator.
There was no evidence to shew that the defendants
were aware that the bolts were improperly sustained, nor
of any facts from which it can be said that they should
have made themselves aware of the fact. They had em*
ployed a competent contractor to do this work for them
only a few weeks before, and it is not shewn, but rather
the contrary, that the alleged defect was one which might
readily have been discovered. The case differs in this
respect from that of Murphy v. Phillips, 35 L. T. N. S.
477, relied on by the plaintiff, where the employer was
held to be guilty of negligence because he did not replace
or repair a chain which had been constantly used for many
years, and was plainl}- and visibly in a dangerous state.
With regard to the nature of the safety catch used by the
defendants, it was made for the defendants by compe-
tent persons, and there is no evidence that it was not one
which was ordinarily used.
The evidence upon which it is sought to charge the de-
fendants with negligence in regard to its use is that of A.
H. Black, a brother of the plaintiff, who stated that ten
years before the trial he had been employed by a firm in
Toronto who manufactured and sold a safety catch worked
by a governor, which he said would have prevented this
accident. This witness had had no experience in such
matters for the ten years preceding the trial: there is
therefore no evidence that this particular device has been
adopted ; for all that appears it may have gone into disuse
for some defect of its own. The question in such cases
must always be whether there was a want of reasonable
care on the part of the defendants in using the appliance
Digitized byVjOOQlC
XIX.] BLACK V. ONTARIO WHEEL CO. 68$
which they used It is no evidence of such want of reason- Judgment
able care merely to shew that a safety catch of a different streeu, J.
pattern was in use ten years ago by others, or even that
it is at present used by some persons, and that a witness
thinks it might have prevented the particular accident
which here took place. " The line must be drawn in these
cases between suggestions of possible precautions and evi-
dence of actual negligence such as ought reasonably and
properly to be left to a jury :" Grafter v. Metropolitan R.
W. Co., L. R 1 C. P. 300, at p 304 ; Walsh v. Whiteley,
21 Q. B. D. 371.
I am of opinion, therefore, that the plaintiff could not
have succeeded at common law, because I can find no
evidence of negligence on the part of the employer.
The 1st sub-sec. of the 3rd sec. of the Woikmen*s Com-
pensation Act, ch. 141, R. S. O., as amended by sec. 3 of ch.
23, 52 Vic. (O.), provides that " Where personal injury is
CJiused to a workman by reason of any defect in the condition
or arrangement of the ways, works, machinery, plant, build-
ings, or premises connected with, intended for, or used in
the business of the employer," the workman shall have
the same right of compensation against the employer as if
the workman had not been a workman of nor in the
service of the employer, &c.
Sub-sec. 1, of sec 5 of ch. 141, as amended by sec. 8 of
ch. 23, 52 Vic., provides that a workman shall not be
entitled under the Act to any remedy against the employer
under sub-sec. 1 of sec 3 of ch. 141, "unless the defect
therein mentioned arose from or had not been discovered
or remedied owing to the negligence of the employer or of
some person entrusted by him with the duty of seeing that
the condition or arrangement of the ways, works, machin-
ery, plant, building, or premises are proper."
To entitle the plaintiff to succeed under this Act it is
necessary therefore to shew negligence on the part either
of the employer or of some person entrusted by him with
the duty above mentioned.
I have already given my reasons for thinking that no
74 — VOL. XIX. O.R.
Digitized byVjOOQlC
584 THE ONTARIO REPORTS. [VOL.
Judgment, negligence was shewn on the part of the employers. For
Street, J. the same reasons I must hold that no negligence was shewn
on the part of any one else employed by them. The negli-
gence alleged in connection with the bolts was in fact on
the part of the contractors who put in the machinery for
working the elevator and not on the part of the defendants
or any of their workmen or employees, and the negligence
alleged in connection with the safety catch was not proved.
There remains the question of the defendants' liability
under the Factories Act,ch. 208, R. S. O.
The 4th sub-sec. of the 15th sec. of that Act provides
that " All elevator cabs or cars, whether used for freight or
passengers, shall be provided with some suitable mechani-
cal device to be approved by the inspector, whereby the
cab or car will be securely held in the event of accident to
the shipper, rope, or hoisting machinery, or from any
similar cause."
There was no evidence offered as to whether this par-
ticular safety catch had been approved by the inspector
or not ; if it had been approved by the inspector, then the
factory would not be an unlawful factory even although
the catch had failed to act ; so that it seems that the
onus should be upon the person alleging that the factory
was an unlawful one to prove that the catch had not
been approved by him. If, however, there were a safety
catch there which had neither been approved nor disap-
proved by the inspector, the plaintiff must be driven back
to the question whether the catch used were of such a
character and pattern as to make the use of it unreason-
able. The employer is not made an absolute insurer of
the safety of his employees either under the Factories Act
or the Workmen's Compensation Act.
For these reasons I think the nonsuit was right, and
that the motion to set it aside should be dismissed with
costs.
Digitized by VjOOQIC
XIX.] HEPBURN V. TOWNSHIP OF ORFORD. 585
[QUEEN'S BENCH DIVISION,]
Hepburn v. Township of Orford et al.
WcUerand watercourses— ** Ditches and Watercouraes Act, J88S"—Work
not in accordance with award — Remedy under sec, IS— Costs,
Where an award has been made under the ** Ditches and Watercourses Act,
1883, " the only remedy for the non-completion of the work in accordance
'with the award is that provided by sec. 13 of the Act.
Murray v. Dawson^ 17 C. P. 688, followed ; and O' Byrne v. Campbell,
15 O. R. 339, distiuguished.
No other or greater costs were allowed to the defendants than if they had
snccessfnlly demurred instead of defending and going down to triaL
The plaintiff by his statement of claim alleged : (1) Statement.
That he was the owner and occupier of the south one-
quarter of lot 16 in the 4th concession of the township of
Orford, in the county of Kent. (2) That the defendant
McEillop was the owner and occupier of the adjoining
east one-quarter of the same lot, and also of the south half
of lot 17 in the same concession. (3) That the defendant
Allison was the owner and occupier of the north half of
lot 17, across the northerly part of which the Canada
Southern Railway ran. (4) That the defendant Campbell
was the owner and occupier of the adjacent lot 16 in the
3rd^concession. (5) That the defendants the township of
Orford were a municipal corporation which had charge of,
and jurisdiction and control over, and for the purposes of
this action were the owners of, a public highway or road
running between the 3rd and 4th concessions and between
the lands owned by Campbell and those owned by the
other defendants. (6) That for many years pa^t these
lands and rond had been drained, so far as they
were drained, by a natural depression or watercourse
running across the lands of the plaintiff and of the defen-
dants McKillopand Anderson in a north-easterly direction,
and thence under and past the railway, and this water-
course had been somewhat improved from time to time by
excavations therein for the purpose of making a ditch or
drain, but as the lands became cleared and improved, and
Digitized byVjOOQlC
586 THE ONTARIO REPORTS. [VOI-
Statement the road more travelled, they required more and better
drainage than was atforded by this watercourse and the
ditch or drain therein. (7) That on or about the 4th
October, 1886, the engineer of the township, appointed
under the provisions of the Ditches and Watercourses Act,
made an award for the deepening and widening of the
ditch or drain. (8) That by this award the defendants
were required greatly to enlarge and improve this ditch
or drain, and to make and straighten the course for
the water of the size and dimensions mentioned in the
award, and all of such work was to be done by the
defendants along, from, and below and north-easterly of
the plaintiff's land, and within the time limited in the
award. (9) That some of the defendants appealed from
this award, and on or about the 17th November, 1886,
the Judge before whom the appeal was tried slightly
amended the Award, but otherwise confirmed it. (10)
That if the drain or ditch had been made by the de-
fendants as provided for in the award, or in the award
as amended on appeal, it would have effectually drained
the plaintiff's lands. (11) That the defendants aasumed
and pretended to act and do work under and in pursu-
ance of the award as amended on appeal, but they did not
construct the drain as required thereby, and did not make
it within the time specified and required, or of the size or
dimensions or in the course specified, and by reason thereof
the plaintiff was deprived of the drainage of his land to
which he was entitled, and he thereby suffered great loss
and damage to his crops and lands, and he was deprived
of the use and benefit thereof, and the value of his farm
was not enhanced as it would have been if such work had
been done and the drain completed by the defendants. (12)
That part of the drain required by the award and amend-
ments extended upwards, through, and across and above the
plaintiff's land, and that portion was properly constructed
within the time limited, and by reason thereof the water
was carried down upon the plaintiff's land more rapidly
and in greater quantities than theretofore, and the loss
Digitized byVjOOQlC
XIX.] HEPBURN V. TOWNSHIP OF ORFORD. 687
and damage occasioned by the delay and default of the Statement
defendants was much greater than it otherwise would
have been. (13) That the defendants, so far as they
acted under and in pursuance of the award, did the
-work in a careless, negligent, and unskilful manner, and
by reason thereof the drain was less serviceable for the
purpose for which it was intended, and the plaintiff did
not receive the benefit therefrom to which he was entitled,
and by reason thereof he had suffered great loss and
damage. (14) That the plaintiff had from time to time
requested the defendants to make the respective poji^ions
of the drain allotted to them respectively by the award
as provided therein, but that they had neglected and
refused so to do.
The prayer of the statement of claim was for a declara-
tion that the plaintiff was entitled to have the drain
made, completed, and maintained by the defendants ; for
damages; and that the defendants might be ordered to
make and complete the drain.
The defendants answered separately, but it is unnecessary
to set out their statements of defence.
Issue was joined, and the cause was heard at the sittings
at St. Thomas on the 3rd December, 1888, by Ferguson,
J., who at the close of the plaintiff's case dismissed the
action with costs, upon the facts therein appearing, with-
out saying anything as to the question of jurisdiction ;
and counsel saying that there should be only one set of
costs. His Lordship said : " I think I will leave that to
the taxing officer. I say nothing about it. The action is
dismissed with costs."
At the Hilary sittings of the Divisional Court, 1889, the
plaintiff moved to set aside the judgment and to enter
judgment for the plaintiff, or for a new trial, on the
grounds : (1) That the judgment was contrary to law and
■evidence, &c. (2) That the plaintiff's claim was proved
at the trial, the evidence of the engineer and other witness-
^sses shewing the ditch or drain in question to be incom-
Digitized byVjOOQlC
688 THE ONTARIO REPORTS. [vOL.
Statement, plete according to the award made by the engineer and
the amendments thereto, under which the drain should
have been constructed ; and in consequence of the award
not being carried out the plaintiff sustained damages, and
should have been awarded the same at the trial or by a
reference to ascertain them.
The motion was argued before Armour, C. J., and
Falconbkidge. J., on the 15th February, 1889.
AyUsworth (with him N. Mills) for the plaintiff. The
Ditches and Watercourses Act of 1883 was the one in
force when the award was made. It is said that the
plaintiff's only remedy is under sec 13* of that Act (sec.
15 of R. S.0. 1887 ch. 220) ; but that provides only for the
building of the drain, not for compensation or redress for
actual damages already suffered. O'Byme v. Campbell,
15 O. R. 339, shews that this action lies. On the evidence
given by the plaintiff the case could not have been with-
drawn from a jury. The plaintiff is entitled to the relief
which he asks, a declaration of his right to have the water
flow through the lands of the defendants, and a mandatory
order to have the work completed, as well as damages.
W. R. Meredith, Q.C., for the defendants the township
of Orford and the defendant Campbell. The plaintiff has
no remedy by action. Without the statute the plaintiff
would have no right to have the water carried over the
defendants' lands, and so his rights are entirely governed
by the statute. I refer to Mm^i^iy v. Dawson, 17 C. P. 588.
*13. The engineer shall, at the expiration of the time limited by the
award for the completion of the work, inspect the ditch or drain, if re-
quired in writing so to do by any of the parties interested, and if he finds
the work or any portion thereof not completed in accordance with the
award, he may let the same, in sections, as apportioned in the award, to
the lowest bidder therefor, taking such security for the performance
thereof within the time to be limited, as he may deem necessary, but no
such letting shall take place till after four clear days' notice in writing of
the intended letting has been posted in at least three conspicaous placea
in the neighbourhood of the work, and notice thereof is sent by registered
letter to such parties interested in said award as are non-resident in
said municipality, but if the engineer is satisfied of the bona fides of the
persons doing the M'ork, and there is good reason for the non-completion
thereof, he may, in his discretion, extend such time.
Digitized byVjOOQlC
XIX.] HEPBURN V. TOWNSHIP OF ORFORD. 589
McKiUop, for the defendant McKillop. Argument.
Charles MacDonald, for the defendant Allison.
Aylesworth, in reply.
June 27, 1890. The judgment of the Court was deliv-
ered by
Armour, C. J. : —
I do not agree with the conclusion arrived at by the
learned Judge at the close of the plaintifli's case upon the
facts then proved, but I think that sufficient was proved
in the plaintiflf's case to compel the defendants to go into
evidence in their defence, and consequently I would be in
favour of granting a new trial were we of opinion that
this action was maintainable in point of law.
The award was made under the " Ditches and Water-
courses Act, 1883," and we think that the only remedy
open to the plaintiff for the work not being completed in
accordance with the award, which is what he complains
of in his statement of claim, was the remedy provided by
section 13 of that Act.
We think that this case is governed by Murray v. Daw-
son, 17 C. P. 588, and is not distinguishable in principle
from it, and it was not intended by anything that was
said in 0*Bryne v. Campbell, 15 O. R. 339, to affect the
principle so laid down.
We think, therefore, that this action must be dismissed ;
but as this question might have been raised by demurrer
without the expense of a trial, no other or greater costs
will be taxed to the defendants than would have been
taxed to them had they simply demurred to the statement
of claim and the demurrer had been decided in their
favour ; and whether or not there should be only one set of
costs we leave to the taxing officer.
Digitized by VjOOQIC
590 THE ONTARIO REPORTS. [VOL.
Judgment FaLCONBRIDGE, J. : —
Fakonbridge
^' I agree that plaintiff's only remedy is that provided by
section 13 of the ''Ditches and Watercourses Act, 1883/' and
I concur in my lord's disposition of the motion.
Digitized by VjOOQIC
XIX.] ONTARIO NATURAL GAS CO. V. SMART. 691
[COMMON PLEAS DIVISION.]
The Ontario Natural Gas Company v. Smart et al.
AND
In re The Ontario Natural Gas Company and the
Corporation of the Township of Gosfield South.
MtaucipcU corporations — Mineral gas— B. S. 0. ch. 184, «fic- ^^^ — Form oj
by-lato — Indemnity — Bight to reservoir.
Mineral gas is a " mineral" within the meaning of sec. 565 of the Mimi-
cipal Act, R. S. O. ch. 184.
A lease under that section should be of the riffht to take the minerals,
and not of the highway itself. The lease in this case was of a portion
of the highway, * * for the purpose of boring for and taking therefrom oil,
gas, or other minerals!: " the quantity of land was no more. than was
necessary for the company's purposes, and the rights of the public
were fully protected : —
Held, that the practical difference here was so small as not to constitute a
ground for quashing the by-law.
The council before passing the by-law, insisted on an indemnity from the
gas company against any costs and damages that might be incurred by
reason of the passing of same : —
HeUl, that under the circumstances, this could not be deemed to be evi-
dence that it was not passed in the public interest.
The plaintiffs, by first sinking a well on the land near the defendants, did
not thereby acquire the right to restrain the defendants from using the
reservoir lying under the said land.
This was a motion for an injunction to restrain the statement,
defendants, including the corporation of the Township
of Gosfield South, from proceeding with the sinking of
a well upon one of the concession lines in that town-
ship for the purpose of obtaining natural gas.
There was also a separate motion on behalf of the same
plaintiffs and Mr. R. A. Coste, to quash a by-law of the
corporation of the township of Gosfield, passed for the
purpose of giving to certain persons a lease of the right
to bore for natural gas upon the road allowance in
question.
On May 31, 1890, the motion was argued.
Robinson, Q.C., and H, 8. Oaler, for the plaintiffs.
Aylesworth, Q.C., for the defendants, other than Walker.
W. H. Blake, for the defendant Walker.
75 — VOL. XIX. O.R.
Digitized by VjOOQIC
592 THE ONTARIO REPORTS. [VOLu
Judgment. June 5, 1890. Street, J. :—
Street, J.
It appears from the evidence that some months before
the passing of the by-law in question, the plaintiffs sank
a well near the road in question for the purpose of obtain-
ing natural gas and were successful in doing so. For a
time they supplied it to one or two manufacturers, but
owing to some defect in the piping, which they used to
conduct the gas from the mouth of the well, the gas took
fire and burned for several days before it could be
extinguished. This happened some ten months ago, and
the plaintiffs have' ever since been unable, for lack of
money, to lay pipes to conduct the gas to where it is
wanted for consumption, and the well has remained
covered and closed in during all that period.
The defendants, other than Hiram Walker & Sons, who
are made defendants merely because they hold the land in
trust for the plaintiffs, and other than the township of Gos-
field, are members of a partnership called the Kingsville
Citizens Natural Gas Company, formed for the purpose of
finding and supplying natural gas to the people of Kings-
ville. They bored one or two wells in different parts of the
township, but so far have failed in striking any vein of
gas. Then they applied to the township council to
exercise the power contained in sec. 665 of the Municipal
Act R. S. 0. ch. 184. The council, accordingly, gave the
notices required by that section of their intention to pass
a by-law enabling them to exercise their powers under it.
The passing of the by-law and the right of the council
to pass it, were contested by the plaintiffs. The council
appear to have doubted whether natural gas was a mineral
within the meaning of the section, and whether they had
power to authorize anyone to take it from under the road.
A very strong and widespread feeling, however, seems to
have prevailed in the township in favour of the peissing of
the by-law ; and the council finally passed it, first taking
a bond from the applicants to indemnify them against any
expense to which they might be put by reason of their
doing so.
Digitized byVjOOQlC
XIX,] ONTARIO NATURAX GAS CO. V. SMART. 593
The by-law authorizes the granting of a lease to certain Judgmant.
members of the Kingsville Gas Company, of a portion of the street, J.
highway 30 feet in width and 110 feet in length for one
year, at the rental of $1, " for the purpose of boring for
and taking therefrom oil, gas, or other minerals in, upon, or
under the said part of said land or highway." Then follow
certain stipulations for the protection of public travel
■along the highway. The by-law goes on to provide for a
renewal for four years of the lease at the annual rent of
-$50, at the lessees' option.
Under the lease, which has been made pursuant to this
by-law, the defendants, the Kingsville Gas Company, have
erected a derrick and machinery for boring a well with the
object of trying to obtain gas, and had already proceeded
to the depth of 400 to 600 feet, when an injunction was
moved for in the present action, since which time the work
has been stayed, by an undertaking on the part of the
•defendants, pending the completion of the material for and
^igainst the motion.
The well of the defendants is only 205 feet from that
of the plaintiffs, and the indications so far are that the
strata in the two wells, at the depth of 300 feet at all
events, are identical
The main objection taken to the by-law and to the
rights of the KingsviUe Company is, that natural gas is
not a mineral within the meaning of the 565th section of
the Municipal Act ; and that the council had therefore no
right to pass the by-law.
I have referred to the meaning given to jthe word
^' mineral " in many dictionaries and also in the current
works upon mines and mining, and to the discussions in a
number of cases in which the question has been considered.
See MacSwinney on Mines, pp. 11 to 17 ; Bainbridge on
Mines, 4th ed., pp. 1 to 6 ; Hartwell v. Camman, 3 Morri-
son's Mining Reports, 229 ; the cases collected in Earl of
Ro88e V. Wainman, 10 Morrison's Mining Reports, pp. 398
to 421 ; Allison and Evans Appeal, 11 Morrison's Mining
Reports pp. 142 to 151 ; Johnston's Appeal, 15 Morrison's
Mining Reports, 556 ; Dunham v. Kirkpatrick, 101 Penn.
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594 THE ONTARIO BEPORTS. [VOI^
Judgment. 36 ; Hext V. Gill, L. R. 7 Ch. 699 ; Lord Proiost cmd
Street, J. Magistrates of Olosgowv. Farie, 13 App. Cas. 657; Earl
of Jersey v. Guardians, <fec., of Meath Poor Law Union^
22 Q. B. D. 555. 558; Elwes v. Brigg Gas Go,, 33 Ch. D.
662.
In most, if not all of the cases to which I have referred,
the word was used in connection with a context which
threw some light upon the meaning and sense in which it
was to be intei-preted ; for it appears to be a word which
is capable of a very extended meaning when full scope
may properly be given to it. For example in the report
of the Geological survey of the State of Pennsylvania
refened to in Dunham \. Kirkpatrick, 101 Penn., at p. 41,
the mineral products of the State are classified as follows,
" Petroleum, coaJ, natural gas, building stone, flagstone,
building-brick clay, fire clay, limestone, iron ore, mineral
paint, and mineral water." In that case however, the
context of the deed in which the word " minerals " was
used was held so to control its meaning as to prevent its
extending to petroleum oil.
In Hext V. Gill, L. R. 7 Ch. 699, Hellish, L. J., stated, at p.
712, the result of the authorities to be that "a reservation of
minerals includes every substance which can be got from
underneath the surface of the earth for the purpose of
profit, unless there is something in the context or in the
nature of the transaction to induce the Court to give a
more limited meaning,"
This definition although criticised by Lord Halsbury in
Lord Provost and Magistrates of Glasgow v. FaHe, 13 App.
Cas. 657, received the suppoit of Lord Herschell in the
same case, and was afterwards warmly approved by the
Court of Appeal in the Earl of Jersey v. Guardians of the
Poor of Meath Poor Law Union, 22 Q. B. D. 555.
It appears therefore, that the word is capable of a con-
struction which would make it include natural gas ; and
the question is whether it is to be taken to have been used
in section 565 of the Municipal Act in its widest, or in a
more restricted sense.
That section is as follows: *'The corporation of any
Digitized byVjOOQlC
XIX.] ONTARIO NATURAL GAS CO. V. SMART. 595
township or county, wherever minerals are found, may Judgment,
sell, or lease, by public auction or otherwise, the right to street, J.
take mineriils found upon or under any roads over which
the township or county may have jurisdiction, if consid-
ered expedient so to do."
Sub-section 3 of the section provides that " The deed of
-conveyance, or lease to the purchaser or lessee under said
by-law, shall contain a proviso protecting the road for
public travel, and preventing any uses of the granted rights
interfering with public travel."
There is absolutely nothing in this enactment which
appears to control or restrict what the Legislature ex-
pressed or to explain what they meant when they gave
the corporations mentioned in it the right to deal with
" minerals."
I have been able to discover no reason why it should
be held that the intention was to restrict the word
used to any particular class or variety of minerals;
if the township can grant the right to mine for iron or
«alt or oil, why should they not do so for gas ? It is
answered in the words of Chief Justice Gibson in Schuyl-
kill V. Moore, 2 Wh. 477, that " the best construction is
that which is made by viewing the subject of the contract
as the mass of mankind would view it, for it may be
safely assumed that such was the aspect in which the
parties themselves viewed it ;" and it is urged that the
mass of mankind would not view natural gas as being a
mineral. On the other hand it is said by Lord Macnagh-
ton in Lord Provost v. Farie, 13 App. Cas. 657, above
referred to, at p. 690, that it has been laid down that
the wdrd *' minerals " when used in a legal document or
in an Act of Psurliament, must be understood in its widest
signification unless there be something in the context or
in the nature of the case to control its meanin^^. I think
myself bound by the authorities to give to the word when
used in this Act its widest signification, and to hold that
the council had power to pass the by-law in question.
A further objection taken to the by-law was, that in
authorizing the granting of a lease of a portion of the-^ j
Digitized by VjOOQIC
596 THE ONTARIO REPORTS. [VOL^
AidgmeHt. highway itself, it was going beyond the power conferred
tireet, J. by section 665, which authorizes only a lease of the right
to take the minerals and not a lease of the highway itself »
The lease which the by-law authorii^s is certainly in form
a lease of the highway, but it is expressed to be " for the
purpose of boring for and taking therefrom oil, gas, or
other minerals," &c. The by-law does not strictly follow
the power given by the Act, but the practical diflference
in the present case seems to be so small that I do not>
think the by-law should be quashed on account of the
excess. The quantity of land authorized to be taken
appears from the evidence to be no more than is necessary
for the carrying on the works, and would be necessarily
exclusively occupied by them, and the right of public
travel over the highway is protected and provided for.
The objection would have been serious had the by-law
provided for the leasing of any considerable piece of the
highway.
The fact that the council insisted upon an indemnity
against costs and damages is urged as a circumstance
shewing that the by-law was not passed in the public
interest, and should therefore be quashed, and Peck and
Corporation of Oalt, 46 U. C. R. 211, is cited in support of
this contention.
The fact that an indemnity has been insisted upon by a
council as a condition precedent to the passing of a by-law
is undoubtedly a circumstance entitled to much weight
where there is reason to suspect that they have acted
otherwise than in the public interest in passing it ; but it-
is by no means conclusive. The evidence here shews that
a very wide-spread and perhaps exaggerated belief pre-
vailed in the neighborhood of these wells as to the advan-
tage likely to arise to the community from this discovery
of gas. It is not difficult to suppose that the members of
the council shared in the belief that the development of
the discovery was of the highest importance to the com-
munity of which they were the representatives ; but they
appear to have entertained some doubts, which can hardly
Digitized byVjOOQlC
XIX.] ONTARIO NATURAL GAS CO. V. SMART. 697
be treated as unreasonable, as to whether or not natural Judgment.
gas was a mineral within the meaning of the statute, and street, J.
finding the applicants for the by-law willing to give them
an indemnity they took it and passed the by-law. I can-
not find that they are to be blamed for having done so,
there being nothing to shew that they did so for the pur-
pose of shirking any proper enquiry or of consulting
private interests.
The by-law must therefore, I think, be sustained upon
all the grounds taken ; and, being sustained, there appears
to be no ground upon which the injimction can be continued.
I think it would be impossible to hold that the plaintiffs,
by being the first persons to discover the reservoir of gas
under their own land, can have acquired any right to
restrain other persons from sinking wells upon their own
lands for the purpose of reaching the portion of the reservoir
which lies under them.
If the highway had been land upon which no one was
entitled to put down such wells, it is possible that the
plaintifi*s might have been entitled to trea;t it as a belt of
land protecting their well, and to have restrained its being
used for an unlawful purpose ; but, holding as I do, that
the sinking of wells upon it is lawful, I am, I think,
compelled to hold that the plaintiffs have no right to
prevent its being used for that purpose.
The motion to set aside the by-law, and the motion to
continue the injunction, must therefore both be dismissed
with costs.
It is certainly a matter to be regretted that these two
companies should be unable to arrive at a settlement of
their differences when a settlement would appear to be
manifestly advantageous to both. The plaintiffs' company
are useless to the public, because although they have
plenty of gas they have no money; the defendants com-
pany are useless to the public because they have money
but no gas ; it appears to be a very possible result of their
refusal to agree, that in a short time neither company will
have either gas or money.
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598 THE ONTARIO BEPORTS. [VOL.
[CHANCERY DIVISION.]
Boyd v. Johnston.
Vendor and pureh(uer^Exc?iange of landa—Lands subject to mortgage^
LiabUity ofpwrchaatr to pay^
A purchaser of an equity of redemption U bound as between, himself and
his vendor to pay off the incumbrances, and this quite irrespectiTe of
the frame of the contract between the parties.
Where therefore lands were exchanged oetween the plaintiff and defen-
dant which were subject to certain mortgages, the defendant was held
bound to pay off those on the lands conveyed to him, and to protect
the plaintiff from liability thereon.
Statement. THIS was an actioD tried before Boyd, C, without a
jury, at Barrie, at the Chancery Spring Sittings of 1890.
Wcdter Cassels, Q.C., and A. Skinner, for the plaintiff.
Pepler, Q.C., for the defendant.
An agreement was entered into between the plaintiff
and the defendant for the exchange of land, and in pursu-
ance thereof the plaintiff conveyed to the defendant part
of lot 28 in the eighth concession of St. Vincent and the
west half of lot 19 in the fifth concession of Euphrasia ;
and the defendant conveyed to the plaintiff the east half
of the west half of lot 15 in the seventh concession of St.
Vincent. The exchange was of the equities of redemption
in the said lots, the lots being at the time incumbered by
mortgages, namely, lot 28 by a mortgage of $3050, the
west half of lot 19 by a mortgage of $450, and the east
half of the west half of lot 15 by a mortgage of $2600, the
latter mortgage including another lot not forming part of
the lands exchanged.
There was a dispute between the plaintiff and the defen-
dant as to what took place when the agreement for the
exchange was entered into as to the mortgages, the defen-
dant claiming that the agreement was that he was to be
exonerated from the payment of the mortgages on the lands
conveyed to him by the plaintiff, whereas the plainwft
Digitized byVjOOQlC
XIX.] BOYD V. JOHNSTON. 599
claimed that the agreement was that the mortgages were Statement,
to be assumed by the defendant.
The defendant put in evidence a release, subsequently
drawn up by him, and which he procured the plaintifi to
sign, exonerating the defendant from such payment. No
<jon8ideration was shewn to have been given by the defen-
dant to the plaintiff for the release, and the plaintiff stated
that he did not understand its nature, and that it was the
giving up of his right of indemnity.
The learned Chancellor reserved his decision and subse-
quently delivered the following judgment :
June 5th, 1890. Boyd, C. :—
The first Chancellor of the Court declared the rule
of law applicable to this case in Thompson v. Wilkes,
5 Gr. 594, in these words ; " It is clear that the purchaser
of an equity of redemption is bound as between himself
and his assignor to pay off the incumbrances, and that
quite irrespective of the frame of the contract between
the parties. * * The doctrine is not confined to mort-
gage transactions, which are but the particular instances
of the application o£ the general rule that the purchaser
of an estate subject to incumbrances is bound to indemnify
the vendor against them, even though no covenant to that
effect has been entered into ; and it does not proceed upon
any technicality whatever, but upon clear principles of
reason and justice :" p. 695.
The transaction in this case is manifested by the deeds
of exchange, and by that from the plaintiff to defendant
the land is conveyed subject to the mortgage for S3,050
and $450. As between] plaintiff and defendant, therefore,
it was the duty of the defendant to pay off these mort-
gages and thus protect the plaintiff from all liability thereon.
The passage I have cited shews that the form of dealing
is not regarded. That answers what was so much discussed
here as to whether the land was bought as the equity of
redemption: it is not very material in this case to de-
76 — VOL XIX. o.R.
Digitized byVjOOQlC
•00 THE ONTARIO REPORTS. [VOI..
Judgment, termine who is right; but I rather think that as the
Boyd, C. conveyance was of the land subject to the mortgages, the
subject-matter really dealt with between these parties was
the equity of redemption. There was no new contract
made regarding the mortgages — that was left to be dealt
with in the original contract between mortgagor and mort-
gagee. But the incident attached by law to this manner
of dealing is, that the purchaser (subject to the mortgage)
becomes surety to the seller for its payment.
The rule in question, which originated in a dictum of
Lord Eldon in Waring v. Ward, 7 Ves. 332, was acted on
in a late case before Huddleston, B., which is noted in the
Solicitors' Journal of June 30, 1888, but I do not find it
reported : Aehby v. Jenner, 32 Sol. J. 670, 576.
Proof was attempted of some understanding that the
purchaser was to be exonerated from payment of these
mortgages, but as against the deeds contemporaneously
prepared by the solicitor of the parties, and the denial of
the plaintiff, it would not be safe to detract from the effect
of these conveyances.
There was then no consideration for the release by the
plaintiff subsequently procured by the defendant. The
plaintiff was thereby made to give up^a valuable right of
indemnification without] consideration, which satisfies me
that he did not appreciate or understand what he was doin^.
This being so, his right to relief is established, and judg-
ment should pass in his favour as prayed, with costs.
Digitized by VjOOQIC
XXX.] REGINA V. CLARKE. 601
[COMMON PLEAS DIVISION.]
Reqina V. Clabke.
Intoodeating Umors^Liqwor License Aet^ R. 8. 0. ch, 19J^ sec. VO—SeUing
liquor tmhotU licenae — Conviction — ImprieonmetU forthwith on mm-
payment of fine
The defendant, being prevent in Coart on a charge which was disposed of,
uras, withont any summons haying been issued, charffed with another
offence, namely, of selling liquor without a license. The information
"was read over to him, to whicn he pleaded not guilty, and evidence for
the prosecution having been given, ne thereupon asked for and obtained
an enlargement till the next day, when, on his not appearing, he was
convicted in his absence, and fined $60 and costs, and m defamt of pay-
ment forthwith, without any distress having been directed, imprison-
ment was awarded : —
Held, that under the circumstances the issuing of a summons was waived.
Heldy also, that the conviction in awarding miprisonment in default of
payment, was properly drawn, for by sec. 70 of R. S. O. ch. 194, under
which the conviction was made, there is no power to dvect distress.
This was a motion for the discharge, under a writ of Stattment.
habeas corpus, of the prisoner who was confined in the
common gaol for the county of York, upon the grounds
set out in the judgment
June 17, 1890, S. A, Jones supported the motion.
Currie, contra.
June 23, 1890. MacMahon, J. :—
The prisoner was convicted on the 27th of May, 1890,
by two justices of the peace for the city of Toronto, (sit-
ting in the absence of the police magistrate) for selling
liquor without a license and fined $50, and also the sum
of $2.55 for costs, and if not paid forthwith, imprisonment
for three months.
The grounds upon which the defendant's release was
asked were :
1. That no information or complaint was laid in writing
against him as required by sec. 94 of the Liquor License
Act, R. S. O. ch. 194.
2. That the conviction took place in his absence, and
without a summons or warrant being issued requiring him
to appear ; and
3. That the conviction is bad, because it awards impri- j
Digitized by VjOOQIC
602 THE ONTARIO REPORTS. [VOL.
Judgment, sonment, whereas a warrant of distress should have been
MaoMahon, issued and a return made of no sufficient distress, before
'^' awarding imprisonment.
From the affidavit of Inspector Archibald (the prose-
cutor in the case,) it appears an information in writing had
been laid against the prisoner, and such information was
read over to him and he pleaded " not guilty" to the
charge. He was present in Court, and bad been convicted
on a charge of drunkenness, but discharged, it being a first
offence of that kind ; and Inspector Archibald says he told
Clarke he might as well remain, as he had laid an
information against him for selling liquor without a license,
and that Clarke remained in Court, and after the evidence
for the prosecution had been given, the prisoner asked
for an enlargement until the followingr day to enable him
to procure the attendance of witnesses for the defence,
which was granted ; but the prisoner not appearing on
the following day, the conviction took place in his absence.
The prisoner having appeared and pleaded to the infor-
mation, and asked and obtained an adjournment of the
hearing waived the issuing of a summons which, after all,
is only designed for bringing a defendant before the Court
in order that he may plead to the information : Regina v.
Roe, 16 O. R 1, at p. 3.
Section 70 of R. S. 0. ch. 194, under which the prisoner
was convicted, makes no provision for distress in default
of payment of the penalty and costs for a first offence.
Mr. Jones contended that the justices should have issued
a warrant of distress before committing the prisoner to
gaol. It is only in cases of first convictions under section
70, that magistrates are allowed to inflict, or a defen-
dant is permitted to escape imprisonment by the payment
of a money penalty ; for a second or any subsequent
offence the only penalty is that of impiisonment. It is,
I think, clear that the magistrates could not have legally
ordered distress. See Regina v. Lynch, 12 O. R 372.
The motion for discharge must be refused, and the pris-
oner remanded to the custody of the keeper of the com-
mon gaol for the county of York.
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XIX.] M'PHEE V. M'PHEE. 603^
[COMMON PLEAS DIVISION.]
McPhee V. McPhee et al.
Bills of exchange and promissory notes^Non-negotidble promissory note —
Endorsement of— Character in which endorsement is made.
Where a non-negotiable promissory note, given for money lent to a firm, is
made by one member thereof and endorsed by the other, the character
in which the endorsement is made, will be implied from the purposes
for which the note is given, the endorsement obtained, and the particu-
lar circumstances of the case, which were here held to make such
indorser liable as guarantor.
This was an action tried before MacMahon, J., without Statement.
a jury, at Ottawa, at the Spring Assizes of 1890.
The defendants, who were brothers, carried on business in
partnership, and the plaintiif, who was the wife of the defen-
dant Alexander McPhee, had, during the existence of the
partnership, lent the firm money amounting in the aggre-
gate to the "sum represented by the two promissory notes,
set out in the statement of claim, which were given to the
plaintiff by the defendants when she separated from her
husband in .1882, and was leaving for Manitoba, as evi-
dencing the amount of the indebtedness of the partnership
to her.
The defendant Alexander McPhee did not appear to the
writ, and judgment had been entered against him.
McVeity, for the plaintiff.
O'Oara, Q. C, for the defendant, E. Ronald McPhee.
June 29, 1890. MacMahon, J. :—
The contest at the trial was in relation to the pro-
missory note referred to in the two paragraphs of the
statement of claim being a non-negotiable note made by
the defendant Alexander McPhee, and on the back of
which the defendant E. Ronald McPhee had indorsed his
name. At the trial I allowed plaintifl's counsel to amend
the statement of claim by alleging that by such indorse-
Digitized byVjOOQlC
604s THE ONTARIO BEPOBTS. [VOI^
Judgment ment the defendant £. Ronald McPhee had rendered him-
MacMahon, self liable to the plaintiff as a maker, or as a guarantor,
'^' or as a surety for the maker, or on an account stated.
Where the defendant had the benefit of the plaintiff's
money, the inclination should be to prevent an honest
claim being defeated except upon clear legal grounds. So
that if the defendant occupies towards the plaintiff any
of the characters mentioned in the statement of claim, ix.,
as maker of a note, or as guarantor, or as surety for the
maker, or as a party to an account stated, the plaintiff is
entitled to recover.
On 14th February, 1888, the defendant, E. Ronald McFee,
received notice of dishonour of the note.
Skilbeck v. Porter, 14 U. C, R. 430, was an action on
a non-negotiable promissory note on which the defen-
dants had endorsed their names, and the note was proved
to have been given for money lent to the maker by the
plaintiffs in the defendants' presence, and for which they
had agreed to become security.
Robinson, C.J., in giving judgment, held that as there
had been no dealings between the plaintiffs and defen-
dants, by which the defendants had been otherwise liable,
nothing to form the basis of an account, the endorsing of
the defendants' names on the note did not supply evidence
of an account stated in a transaction of that kind. And
that learned Judge referred to OovZd v. Coombs, 1 C. B.
543, as a case shewing where there have been dealings
and transactions between the parties what will be regarded
as evidence of an account stated between them.
I have not been able to find a decision in England or in
our own Courts, where a person who has put his name on
the back of a non-negotiable note has been sued as guar-
antor or surety for the maker. In the United States such
cases have not been infrequent.
The inclination of the judicial mind in England is to
hold that where a person puts his name on the back of
such a note, evidence may be given outside the note itself
to establish his liability as a maker.
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XIX.] M'PHEE V. M'PHEE, 60*
In Jackson v. Slipper, 19 L. T. N. S. 640, the defendant Jndgn«nt>
had placed his name on the back of a non-negotiable MacMahoa,
promissory note, which had been signed in the usual way '^•
by another person as maker, and made payable to the
plaintiff as payee. In an action by the payee against the
defendant as joint maker of the note, it was held that the
document of itself was not sufficient evidence of the defen-
dant's intention to make him primarily liable upon the
note as one of the makers.
Bovill, C.J., in giving judgment in that case, said : " By
writing his name on the back the defendant did not intend
to make himself primarily liable, and it becomes necessary
therefore for the plaintiff to establish his liability as that
of the maker by other evidence than that of the document
itself."
In Randolph on Commercial Paper, vol. 2, sec. 830, it is
said : "If a note so endorsed " (i.e. by one who Ls not a party
to it) " at the time it is made, is non-negotiable, it is said
that the indorsement must be a guarantee, since endorse-
ment in its stricter sense applies only to negotiable instru-
ments. And such endorser, as a guarantor, would not be
entitled to formal presentment and notice of dishonour. In
other cases, such an endorser has been held to be an origi-
nal maker or guarantor, according to the intention of the
parties ; or to be a joint maker, and, as such not entitled to
notice of dishonour; or at least presumptively a joint
maker."
If the defendant can be regarded as a guarantor of the
particular note sued on, presentment for payment was not
necessary : Hitchcock v. Humfrey, 5 M. & O. 559 ; Walton
V. Maacall, 13 M. & W. 452.
In McMvZlen v. Rafferty, 89 N. Y. R. 456 (1882) it was
held that where one Hughes had executed and delivered
to the plaintiff a non-negotiable note made payable on
demand, upon the back of which the defendant had writ-
ten his name, although the defendant did not in a com-
mercial sense become an indorser, but could be treated by
the plaintiff either as maker or guarantor, and in either
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606 THE ONTARIO REPORTS. [VOL.
Judgment, capacity the cause of action accrued against him imme-
MaoMahon. diately upon the execution of the note, and without
•^* demand.
In Richards v. Warring, 1 Keys 576, a decision of the
Court of Appeal for New York, the head note is : '* The
indorser of a non-negotiahle note is not entitled to notice
of demand of, and of non-payment by the maker thereof.
By indorsement before delivery, or before negotiating it,
he may be treated as maker."
To the like effect is Cromwell v. Hewitt, 40 N. Y. R. 491.
In Moffatt V. Rees, 15 U, C. R, at p. 531, Robinson, C.J.,
in his judgment makes use of language applicable to the
points involved in the consideration of this case : " It is
implied by the Court and jury from the purposes for which
the note was given and the indorsement obtained, shewing
who was to be the person paid, and were the persons relied
upon for paying, and shewing also that all the parties
concerned knew these facts and the relation to which they
severally stood, not in point of law only, but as regarded
the understood liability to pay."
I have had some difficulty having regard to our statute
R. S, 0 ch. 123. sec. 8, as to whether the endorsement can
be considered simply as a guarantee, no words having been
written over the defendant's signature shewing in what
character he was endorsing this note. But my idea is that
it is not requisite, to hold the defendant to be a guarantor,
that the character in which he endorsed the note should
precede his signature, and I am strengthened in this view
by the remarks of Robinson, C.J., in Skilbeck v. Porter ^
14 U. C. R. 430, at p. 433, already quoted, and by the
cases cited from the American Reports.
There will be judgment for the plaintiff against the
defendant E. Ronald McPhee for the sum of 81,281.82,.
with full costs of suit.
Counsel for defendant abandoned the counter-claim at
the trial, so there will be judgment for the plaintiff dis-
missing the counter-claim with costs.
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XIX.] TORONTO BELT LINE R. W. CO. V. LAUDER. 607
[COMMON PLEAS DIVISION.]
The Toronto Belt Line Railway Company v. Lauder.
Haihoays and railway companiea — Warrant for possession of land — i?. S.
0. ch, 170, siib'Sec, 28, sec. 20,
The application for a warrant for poesession of land required by a railway
company under sub-sec. 23 of sec. 20 of R. S. O. ch. 170, should be
made to the County Judge and not to a Judge of the High Court. Z^
Part L of the R. S. U. ch. 109, does not apply to the applicants, a com-
pany incorporated under a local Act, 52 Vic. ch. 82 (0.), though under
Dominion control, as bein^ a railway for the general advantage of
Canada, it being only applicable to railways constructed or to be con-
structed under the authority of a Dominion Act.
This was a motion for a writ of prohibition to the Statement.
County Judge of the county of York to prohibit him from
issuing a warrant of possession for certain land.
An application was made to the learned County Court
Judge of York for a warrant of possession under sub-sec-
tion 23 of section 20, R S, 0. ch. 170. This application
was resisted upon the ground that " the Judge" referred to
in such sub- section meant a Judge of the High Court, and
not of the County Court.
The learned County Court Judge ruled against the
objection, but stayed proceedings that this motion might
be made.
June 24, 1890. Delamere, Q.C., for the motion.
Edgar, Q.C., contra.
June 28, 1890. Rose, J. :--
I am of the opinion that the objection is not well taken.
Section 20 of R S. 0. ch. 170, provides for obtaining
possession of the lands required for the purposes of the
railway. It provides for notice to be served on the party
interested which is to contain an offer of compensation.
This sum may be accepted, when, upon payment or deposit
of such sum in the manner provided by sub-section 23,
the right to take possession immediately vests, and if
opposition is made, then a warrant may be applied for.
77 — ^VOL. XIX. o.R.
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608 THE ONTARIO REPORTS. [VOL.
Judgment, If the party interested is absent from the country or is
Rose, J. unknown, the Judge of the County Court may order the
publication of a notice : sub-sec 3.
In such a case the sum may be accepted, and sub-sec-
tion 23 applies as above. In any case, if the offer is not
accepted, then " the Judge," i.e., the Judge of the County
Court, may appoint an arbitrator, and proceedings are
taken to ascertain the value of the land, and on payment
or deposit of the amount awarded, possession may be had
under sub-section 23.
I cannot doubt that the Judge to whom application is
made for the purpose of initiating proceedings, must be
the Judge to whom application must be made to carry
them into effect.
Then sub-sec. 4, recognizes that " the Judge" is the Judge
of the County Court, for it provides for a Judge of the
High Court acting when the Judge of the County Court
is interested in the lands taken.
The references to the High Court and the Judges thereof,
in the section, do not raise any doubt in my mind ; and I
think the objection fails.
But on the argument a further point was taken. The
company was incorporated by ch. 82 of 52 Vic. (O.) It
admittedly will be a connecting railway, thus bringing it
under Dominion control, as a work for the general advantage
of Canada. But it is argued that under Re St CaOiarines
and Niagara Central R. W, Co. and Barbeau, 15 O. R,
583, Part I. of the Dominion ASt does not apply, the argu-
ment being that sec. 3 of ch. 109, the Dominion Railway
Act, only makes applicable Part 1. of that Act to ^ every
railway constructed or to be constructed under the
authority of any Act passed by the Parliament of Canada;"
and that this railway is to be constructed, not under such
authority, but under the authority of an Act of the Legis*
latureof Ontario.
Certainly there is nothing in the language of section 3
as above referred to, to make applicable Part L of ch.
109 to this railway.
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"XIX.] TORONTO BELT LINE R. W. CO. V. LAUDER. 609
On page 686 of the same volume is found a report of an J^^difment
application to my learned brother Ferguson for an injunc- Rose, J.
tion restraining an application to the Judge of the County
Court for a warrant of possession, which was granted.(a)
The facts of that ewe were different in that that railway
iieas governed by ch. 60 of 50 & 61 Vic. (D.), which
Applies to that railway alone. The real ground upon which
the learned Judge seems to have decided, was that there
117SS no sufficient notice given as provided by the Ontario
Act.
Darling v. Midland R W. Co., 11 P. R. 32, a decision of
the learned Chancellor, was cited on the argument. It is also
referred to by my brother Ferguson, and seems to be a
decision in the applicant's favour.
CUgg V. ChuTid Trunk R W. Co., 10 0. R. 708, a deci-
sion of the Common Fleas Division in which I concurred,
was referred to by my brother Ferguson in Barbeau v. 8t
Catharines and Niagara Central R. W. Co., 15 O. R 686, at
p. 692. While the general language there used seems also
in the applicant's favour, I desire, for reasons hereinafter
given, to have the decision in that case confined to the
facts then before the Court
I have come to the conclusion that Part I. does not
refer to this railway, and that the provisions of ch. 170 do
apply, and for the following reasons:
By sec 23 of 62 Vic. ch. 82, (O.), incorporating the com-
pany, it is declared that, " all the provisions of the Rail-
way Act of Ontario except as varied by this Act, shall
apply to the said company."
By sec 3 of R. S. C, ch. 109, this railway is expressly
•excluded from the operation of Part I., as it is declared
to apply to railways ** constructed, or to be constructed,
under the authority of any Act passed by the Parliament
of Canada."
By sub-sec. 3 of sec. 3 the provisions of Part XL are
made applicable to " all railway companies and railways
(a) Barbeau ▼. SL Gatharines and Niagara Central R. W. Co., 15 O. £.
£86.
Digitized byVjOOQlC
610 THE ONTARIO REPORTS. [VOL.
Judgment. wiOvm the legislative authority of the Parliament of
Row, J. Canaday except Government railways."
By sub-sec. 4 the provisions of sees. 107 to 119 are
niade applicable to " ott railway companies operating a
line or lines of railway in Canada, whether otherwise
vdtiiin the legislative authority of the ParHament of
Canada or not"
It seems clear that when certain sections are made
applicable to all railways, certain others to all with specific
exceptions, and the remaining sections to a still more
limited class, the railways not included within such limited
class are most expressly excluded.
But as if it was not to be doubted that Part I. did not
apply to railways incorporated under Provincial Acts we
find that it is enacted by sec. 116 that, " The provisions of
sub-sections thirteen and fourteen of section six in Part
I. of this Act shall also apply to every company incor-
porated under any Act of any Provincial Legislature in
any case in which it is proposed that such railway shall
cross, intersect, join, or unite with a railway under the
legislative control of Canada."
If by sec. 121, which declares all " crossing railways '' to
be works for the general advantage of Canada, railways
such as the one in question were brought under the pro-
visions of Part I., sec. 116, would, so far as I can see, be
quite idle and unnecessary. So far as I have observed this
section has not been referred to in the previous cases.
Sub-sees. 13 and 14 of sec. 6 provide for crossing or
uniting with other railways, and for the approval of the
railway committee.
I am lead the more readily to this conclusion by the
expressed opinion, or perhaps suggested opinion, of Osier,
J.A., in Bowen v. Canada Southern R, W, Co., 14 A. K 1, at
p. 10, where he says : " I will say that I am not convinced
that the defendants are subject to Part I. of the Act.
As to their main line and Welland and other branches
they were incorporated by Ontario Acts, and although they
are now subject to Dominion legislation alone, having been
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XIX.] TOKONTO BELT LINE B. W. CO. V. LlUDER. 611
declared to be a work for the general advantage of Canada, Judgment.
I do not concede that the provisions of their special Acts Rose, J.
Are thereby necessarily superseded."
There can, it seems to me, be no doubt that any general
legislation of the Dominion Parliament or legislation in
terms suflSciently general to affect all railways, must apply
to and govern this railway ; but that, of course, cannot
make applicable legislation which in terms excludes pro-
vincial railways.
And with such diversity of opinion, I think I am at
liberty to act on my own view of the law.
I cannot prohibit the learned Judge unless I am clear
lie has not jurisdiction ; and having come to the conclusion
that he and he alone has jurisdiction, I must refuse the
order.
The motion must be dismissed, with costs.
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612 THE ONTARIO REPOBTa [vOL*
[COMMON PLEAS DIVISION,]
In Re John Wesley Pabkeb.
MharadUim-^unior Judge of CowUy Oowrt—R. 8. O, eh, 14^^ see, 5—
JfUticM^Proof aa to^StcUe officers— Deposition taken m o&wnce qf
accused— IdentUy of forged note—Poufer to remand for fitrther em-
denee.
The expresaion, ''all JudgeB, &c.y of the Ooiinty Court," contained in
sec. 5 of the Extradition Act, R. S. C. ch. 142, indndee the Junior
Jndffe of said Court.
On a cnarjj;e of foi^ery of a promissory note, alleged to have been com-
mitted in the S&te of Kansas, the justice before whom the deposi-
tions were made was certified to be a justice of the peace, with power
to administer oaths : —
Held, that he was a magistrate or officer of a foreign state within sec. 10
of the Act ; and also that it was not necessary that he should be a
federal and not a state officer ; and further that the depositions need
not be taken in the presence of the accused.
The depositions failed to shew that the note, alleged to be forged, was
produced and identified by the deponents or any of them : —
Held, that this constituted a valid ground for refusing extradition ; and
that there was no power to remand the accused to have further evi-
dence taken before the extradition Judge as to such identification.
Statement. The prisoner was committed by the Judge of the Coonty
Court of the county of Middlesex, for extradition, for
forgery, committed in the state of Kansas.
A writ of habeas corpvs was issued returnable before a
Judge of the High Court in Chambers; and a writ of
certiorari was also issued to bring up all the papers and
proceedings before the said Judge.
On the return of the writs, the writs and return thereto
were filed, and the discharge of the prisoner moved for on
the grounds set out in the judgment.
May 20, 1890, B. M. Meredith,{oT prisoner.
Ayleaworth, Q. C, and McKiUop, contra.
May 20 1890. Rose, J. :—
I think the objection that a junior Judge of the County-
Court is not embraced within the term " all Judges * *
of the County Courts'' in sec. 5 of K S. C. ch. 142 fails.
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XIX,] IN RE JOHN WESLEY PARKER. 613
If the argument were entitled to prevail, then under ch. Judgment.
138, a junior Judge would not be entitled to either travell- Rose, J.
ing or retiring allowance.
The second objection was that there was no evidence of
the forgery, the original note not having been produced to
the deponents whose depositions were produced and acted
upon or before the committing Judge.
Practically the only evidence taken before the learned
Judge was to identify the prisoner, and though it was ad-
mitted that the note was in the possession of the witness
examined for such purpose, he did not communicate the
fact to the counsel for the prosecution, who supposed that
it was not in Canada.
The depositions do not shew that the note was produced
or shewn to the deponents, or any of them. On the con-
trary, it is quite consistent with their evidence, that a copy
only was used at the time, and that they spoke from their
recollection of a note seen at some former period ; and I
may say the language used is inconsistent with any witness
then having the note before him at the time of his exam-
ination.
The evidence of one of the makers of the note, whose
signature is admittedly genuine, was :
" I executed and delivered to one J. W. Parker, » ♦ ♦ my pro-
xniasory note of that date, of which the following is a true copy," &c. * *'
"I have since the execution and delivery of the said note seen and
inspected the same, and that my father James Knight never signed the
same," &c.
The holder of the note gave evidence
"That * * said J. W. Parker sold and endorsed to me a pro-
missory note of which the following is a tme copy. * * That said note
now is in the same condition," &c.
The language used in the several depositions is similar.
In Spears on the Law of Extradition, 3rd ed., p. 260,
the case of In re Faritz, 7 Blatch. 345, is referred to, in
which Judge Blatchford " held that when the charge is
forjery, and whereby the deponents from abroad put in
evidence under the Act of June 22, 1860, it appears by
Digitized byVjOOQlC
614 THE ONTARIO REPORTS, [vOL.
Judgment their depositions that the forged papers were produced to
Rose, J. and deposed to by the witnesses giving the depositions, it
is not necessary that the proper papers should be produced
here before the commissioner/' Such a case, as the Judge
remarked, " stands precisely as if the witnesses had been
examined in person before the commissioner, and the
alleged forged papers had been produced to them before
him."
In Clarke's Law of Extradition, 3rd ed., that learned
author, at p. 213, speaking of the practice in the United
States, says, '' If the depositions shew that the documents
alleged to have been forged have been produced to the
deponent, such documents need not be produced before the
magistrate."
It is of course beyond question that according to our
law evidence would not be received in the absence of
the document unless its absence were explained and foun-
dation laid for secondary evidence.
In Be. Parker, 9 P. R. 332, Mr. Justice Osier discharged
the prisoner because .the evidence was insufficient without
the hearsay evidence appearing in the depositions.
In Clarke, at p. 218, it is stated that, " although by the
English statute depositions may be received in lieu of oral
testimony, the general English rules of evidence must be
observed. Thus no hearsay evidence, no statements of
the prisoner after threats or promises held out to him,
could be received."
In my opinion the evidence before the learned Judge
was not competent evidence to shew forgery, and the
prisoner is entitled to his discharge unless there is power
bo set aside the commitment, and remand the prisoner back
to custody that a further examination may be held upon
the original warrant.
Upon such questions I will hear argument if the counsel
for the prosecution think the power can be shewn to exist
Reference may be had to Sir Edward Clarke's work at
p. 214, where he states ihe practice in the United States to
be as follows : "And if the commitment be set aside the
Digitized byVjOOQlC
XrX.] IN RE JOHN WESLEY PARKER. 615
prisoner may be remanded back to custody, that a farther Judgment,
examination may be held upon the original warrant of Rose, J.
ajrest"
And see judgment of Wilson, C. J., in ArscoU v. LiUey,
11 O.K. 153, at p. 161.
It will be noted that Sir Edward Clarke does not suggest
that any similar practice exists in either England or Canada
under the Acts regulating e!s:tradition proceedings.
I have not considered the question, as I have not heard
argument upon it.
It becomes necessary to examine the remaining objec-
tions to see if any of them are valid for, if so, it will not
be necessary to further consider the power to remand.
The third objection was, that the certificate of the
Secretary of State showed that the justice of the peace
before whom the depositions were taken had a civil
jurisdiction only.
I think the fact does not so appear. He is certified to
be a justice of the pea<;e ; and further, that he has certain
powers which might be exercised in either civil or criminal
matters, i,e., "to administer oaths." As justice of the
peace, he would be a " magistrate or officer of a foreign
state" within sec. 10 of ch. 142.
The fourth objection was, that the certificate required
by section 10 must be that of a federal and not a state
officer. No authority was cited in support of such pro-
position, and I do not think it is the proper construction
to be put upon the statute. See also Re Lee, 5 O. R. pp.
583, 691-3.
The words of section 10 are, as above quoted, and the
interpretation clause, sec. 2 of the same Act, sub-sec. 10
(e) defines " foreign state" as including *' every colony,
dependency, and constituent part of the foreign state."
This objection, in my opinion, fails.
It was further objected that the depositions were not
taken in support of any charge in the foreign state, but
merely of the charge made in Canada.
With, I think, two exceptions this is not supported in
78 — VOL. XIX. O.R.
Digitized byVjOOQlC
1
616 THE ONTARIO REPOBTS. [VOI^
Judgment, fact ; and, even as to the two depositions taken after the
-BioBeyJ. charge here, they were in my opinion properly received^
In Re Cov/nhaye, L.R, 8 Q.B. 410, at p. 416, Blackburn, J-,
said: " We are, I believe, also all agreed that section 14
makes depositions properly authenticated evidence in pro-
ceedings under the Act, whether they are taken in the
particular charge or not, and whether taken in the presence
of the person charged or not ' In most European States,
I believe, it is not the practice to take the depositions in
the presence of the accused ; at all events, the law is indif-
ferent in the matter. I would add that it is for the
magistrate to give what weight he thinks proper to depo-
sitions so taken." Sec. 14 is similar to sec. 10 of ch. 142.
This also disposes of the next objection, that the deposi-
tions were taken in the absence of the accused, and without
notice.
I think there is nothing in the seventh objection, that
the depositions do not shew forgery, if the evidence were
otherwise competent or sufficient. McPheeter's evidence
was particularly referred to by counsel for the accused. In
my opinion the facts stated by him would have to be
submitted to a jury, if the evidence had not been open to
the objection I have given effect to.
The remaining objection (eighth) is that the learned
Judge improperly refused evidence to shew th&t there was
no forgery, and that the charge was the outcome of a con-
spiracy.
I think this objection untenable. Assuming that evi-
dence had been given, which, if understood and believed,,
would warrant a finding of forgery — ^then even if conspiracy
had been shewn — whatever that may mean in this case, or
if evidence had been given raising a doubt as to whether
the accused was guilty, the Judge could not have refused
to commit, for it would make no matter what was the
motive in prosecuting if the prosecution was well founded,
so long as the evidence of a political charge was not raised,
nor could the Judge have tried the question as to whether
the accused was or was not guilty. See Clarke on Extra-
dition, pp. 215, et seq.
Digitized byVjOOQlC
XIX.] IN BE JOHN WBSLEY PARKER. 617
If by Monday next, the counsel for the prosecution does Judgment.
not obtain an appointment to hear argument on the ques- Rose, J.
tion of remand, the order will go for the discharge of the
prisoner.
June 30, 1890. In pursuance of my former judgment
herein, I was attended by Mr. Shepley, Q. C, for the
prisoner, and Mr. Aylesworth, Q. C, for the prosecution,
-who delivered very able and instructive arguments on
the right or power to remand the prisoner for the
purpose of the learned extradition Judge hearing further
evidence as to the identity of the note.
I have considered the statutes and cases referred to.
No case has been found by counsel after careful search,
where, either in extradition proceedings or proceedings in
ordinary cases before a magistrate, a remand has been
made for the purpose of opening the case to receive further
evidence ; and I am of the opinion that no such power
exists, at least in extradition cases, which is all that it is
necessary for me to decide in this case.
First, in such cases the authority to arrest and detain
the prisoner, is only under the Extradition Act, no offence
having been committed against the Queen's Peace. See
Re John Anderson, 11 0. P. 1, and cases there cited —
I may particularly refer to Ex p. Besaet, 6 Q. B. 481,
p. 61, judgment of Eichards, J., and many other plfiwes in
the judgments.
The authority conferred on the extradition Judge must
be exercised in the manner pointed out by the statute, and
thus is limited.
It seems to me to follow that the extradition Judge
having brought the ofiender before him, heard the evidence,
adjudicated, and committed him to prison, informed him of
his right to apply for a writ of habeas corpus, and trans-
mitted the evidence to the Minister of Justice, has com-
pletely discharged his duty, has finished his work, and is-
fijunetus officio.
Can he then of his own motion, by reason of any inhe-
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618 THE Ol^ARIO REPOBTS. [VOL.
Judgment, rent jurisdiction, call the prisoner and the prosecuting and
Rose, J. defending counsel before him, inform them that he has dis-
covered that the committal has been on insufficient e vidence,
and open up the ease to receive further evidence ? Can
he do so on the application of the prosecution ? If so,
where is the authority for the exercise of such power
to be found ? When iirst was it exercised ? If such power
exists how often may it be exercised ? When can the
accused know that the prosecution is closed and the evi-
dence all in ?
I considered in McNdbb v. Oppeniieiniei\ 11 P. R. 214,
and Re Doyle v. Henderson, 12 P. R. 38, the limitation on
the power of a judicial officer in civil cases to open up pro-
ceedings after judgment, and referred to some cases therein
cited.
In criminal matters I see every reason for still greater
strictness in limiting such power.
If the learned extradition Judge has no such power, then
what power have I ? I am not sitting as an extradition
Judge, and, if I were, before I could hear any evidence, I
must bring the accused before me, and proceed in the
manner pointed out by the statute. But the Act confers
no power on me to open up proceedings, and hear further
evidence in aid of the committal, or to support a committal
founded upon insufficient evidence, and so it confers on
me no power to direct the learned extradition Judge to
open up proceedings, and hear such evidence.
Nor can I conceive that I have any power under the
Juibeaa corpus proceedings. The case is not one within
the ordinary jurisdiction of the Court. I have no original
jurisdiction over it, and cannot institute or continue any
proceedings save as I am by statute empowered. In this
respect the case widely differs from one where the offence
is against the Queen's Peace.
Then why should I remand ? If I refuse to discharge
what further is to be done ? If no further evidence is to
be taken, then is the accused to remain a prisoner on a
committal unsupported by evidence ? As a judge acting
Digitized byVjOOQlC
XIX.] IN RE JOHN WESLEY PARKER. 619
on the return of the writ of habeas corpus, I must dis- Judgm nt.
charge the prisoner if no sufficient cause of committal Rose, J.
or detention be shewn.
I see no assistance to the application from the argument
that there may be a remand to enable a proper warrant of
committal to be made out. Admitting that such may be
the ease ; I do not say it is the law, but assuming it to be
so, there is a manifest distinction.
There would be a proper arrest and subsequent judgment
of committal. The record would not be made out in accord-
ance with the fact, and it would be only affording an oppor-
tunity to return a record of the fact as it really existed.
The accused would properly be in custody. Nothing
would have been done to entitle him to his discharge, and
all the judge in the habeas corpus proceedings would do
would be to say I do not discharge you, but reoiand you
to enable a proper record to be made out. It may be that
after return is made to the writ, it would be too late to
obtain such an order. I do not say how that may be.
In Re Warner, 1 U. C. L. J. N. S., 16, Hagarty, J., held
that the jailer might return a valid commitment received
before or after the receipt by him of the habeas corpus.
See also Be Carmichady 1 U. 0. K J. N. S. 243, as to
detention under a writ issued after discharge from custody
under a prior defective commitment.
I think I am deciding according to the principles found
in the cases to which I have referred.
The head note in Ex p. Besset, 6 Q. B. 481, is : "On habeas
corpus and motion to discharge from such imprisonment
for an offence committed abroad, the warrant being defec-
tive, the Court (assuming that they could look into the
depositions referred to by the warrant) cannot on their
own authority remand the prisoner as a person charged
with a crime."
In Re Anderson the head note is, ^ Held also, that
when a prisoner was brought before the Court upon a writ
of habeas corpus under our statute, the warrant of com-
mitment upon which he was detained, appearing on its face
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THE ONTABIO REPORTS. [VOL.
Judgment ^o be defective, the Court, before whom such prisoner was
Rose, J. brought, had no authority to remand him, such power only
being possessed by the Court at common law, and the
prisoner not being charged with any offence for which he
could be tried in this Province."
It will be observed that now there is no question about
the power to look at the depositions. See Begivu v.
Morton, 19 C. P. 1.
In Re Kefi^mott, 1 Chamb. Rep. 253, at p. 257, Sullivan, J..
upon an application made by counsel for the prosecution to
have the prisoner detained until more perfect evidence could
be obtained against him from the United States, held that —
without deciding the question whether the committing^
magistrate might properly detain upon evidence amounting
only to a ground of suspicion for the purpose of other testi-
mony being imported into the case so as to bring it within
the treaty, — it would not be right for him to make any such
order from the return of the writ of certiorari and haheas
corpvs; that it appeared to him that the prisoner was
fully convicted upon insufficient evidence, and therefore
was entitled to be discharged.
In Reginxi v. Tubhee, 1 P. R, 98, at. p. 103, Macaulay, C. J.,
is reported to have said thathe did not doubt the competency
of the Judges '^ to hear additional evidence in further in-
vestigation of the case." The report is given in the third
person, and may not be an accurate statement of the
learned Judge's language. Moreover, there is no authority
cited, and the observation is merely an ohiber.
In Re Lewis, 6 P. R. 236, at p. 238, Gwynne, J., said:
" / might, I think, properly remand the prisoner for the
purpose of giving an opportunity to the prosecutor to
produce properly certified copies of depositions."
His language, which I have italicised, shews that we have
not even an opinion from the learned Judge, but merely
the record of a passing thought, entitled however to every
respect coming from so careful and able a lawyer.
JSx p. Krane, 1 B. & C. 258, was cited ; but that was a
recommittal under the ordinary jurisdiction of the Courts
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XIX.] IN RE JOHN WESLEY PARKER. 621
it appearing that a crime had been committed, and that Judgment,
an investigation had not been made. Hose, J.
On the other hand in Re Timaon, L. R. 5 Ex. 257,
it was said that "when a prisoner is brought up on a
writ of habeas corpus and the return shews a commitment
bad on the face of it, the Court will not, on the suggestion
that the conviction is good, adjourn the case for the pur-
pose of having the conviction brought up and amending
the commitment by it."
As to powfer to recommit at the hearing in ordinary cases
where the the warrant is defective, see Church on
Habeas Corpus, p. 365.
In any event I do not feel justified in establishing a
precedent, which many Judges, of far greater experience,
having had the opportunity, have not made.
In my opinion' the prisoner must be discharged.
It having been suggested on the argument that the pro]
«ecution desired to apply to the learned extradition Judge
to issue further process, and desired an expression of
opinion from me that would remove any hesitation on the
part of that learned Judge to interfere out of respect to
my judgment, I desire to say that if the prosecution can
find any method according to law enabling the learned
Judge to take other or further proceedings in the matter
of the complaint, I am sure he will feel quite free to act.
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622 THE ONTARIO REPORTS. [VOL
[COMMON PLEAS DIVISION.]
ReGINA V. DOWSLAY.
Justice of the peace-- Procedure before — Proof of municipal hy-lau>^R,S.O.
ch. 184, ««c- ^^^•
On the trial of a charge of being a transient trader without a license coniruy
to a ipunicipal by-law, no copy thereof certified by the clerk to be a
true copy, and under the corporate seal, as required by sec. 289 of R
S. O. en. 184, was given in endence. A by-law stated by the solicitor
for the complainant to be the original by-law, was, howeyer, read to
the defendant in Court : —
Held, that the requirements of section 289 not haying been complied with,
the conyiction was inyalid, and must be quashed.
Statement. Tbis was a motion to quash the conviction of the defen-
dant on a charge that he being a transient trader in
the village of Delta, in the county of Leeds, did offer for
sale and sell goods and merchandise without the license
therefor by law required, contrary to a certain by-law of
the municipality.
Tn Easter Sittings of the Divisional Court, June 21,
1890, (composed of Galt, C.J., and MacMahon, J.,) Ayks-
worth, Q.C., supported the motion.
Marsh, Q.C., contra.
June 27, 1890. Galt, G.J. :—
There were several objections raised but it is only
necessary to consider the first, viz : There was no proof
before the said justices of the peace, at the time of the said
charge, of the existence of the said by-law under which the
conviction in question is alleged to have been made.
This is not disputed, so far as formal proof of the by-law
is concerned. By sec. 289 of ch. 184, "A copy of any by-law
written or printed without erasure or interlineation, and
under the seal of the corporation, and certified to be a true
copy by the clerk and by any member of the council, shall
be deemed authentic." This was not done.
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XIX.] EEQINA V. DOWSLAY. 62S
What took place, as stated by Mr. Lawson, who acted as Judgment
solicitor for the complainant, is as follows : " That at the calt, C.J.
trial of such prosecution, the said by-law was in Court and
portions of it were read to the said defendant, particularly
that portion which related to the taking out of licenses
and the penalty for not doing so." In an affidavit filed on
this application, Mr. Lawson states, *' T had the said original
by-law with me in Court, and at the request of the said
parties I read portions of the said by-law in the presence
and hearing of said justice."
It is manifest from the foregoing, that no copy of the
said by-law authenticated in the manner provided by the
Act was produced ; and I fail to see how the justices of the
peace could act on the production of a paper not by any
officer of the municipality, but by the solicitor of the com-
plainant, and alleged by him to be the original by-law, and
it is not shewn that this paper was under the seal of the
corporation.
This conviction will be quashed, with the usual order
for the protection of the magistrate and of the informant ;
but as the latter had a pecuniary interest in the penalty, he
must pay the costs. of the defendant,
MacMahon, J., concurred.
79— VOL. XIX. O.R.
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1
624 THE ONTARIO REFOBTS. [VOL.
[COMMON PLEAS DIVISION.]
The Attorney-Genebal, ex rel Richard Hobbs v. The
NiAGABA Falls Wesley Park and Clifton Trjlmwat
Company.
Injunction — Strut railway — OpenUing on Sunday — Ji, S. 0. eh, 171—
Bighi to restrain.
The defendants, by letters patent issued under the Street Rulwsv Act,
B. S. O. ch. 171, were authorized to baild and operate (on all days
except Sundays) a street railway, &c. On an information laid to restnin
the operating the railway on Sunday : —
Beldf per Galt, C. J., that an information would not lie for the Act did
not prohibit running cars on Sunday : —
Per Ross, J., that the information would lie, for the authority to opente
the railway *' on all days except Sundays " implied a prohibition againife
working it on Sunday : —
Per MACMAHoy, J., that the information would not lie, for no private
right or right of property was involved nor any injury of a publicnatare
done, and the interference of the Court will not be exercised merely to
enforce performance of a moral duty.
Statement. This was an action tried befoie MacMahon, J., without
a jury, at St. Catharines, at the Autumn Assizes for 1888.
The action was brought to obtain a perpetual injunction
restraining the defendants from in any way operating their
line and running their cars on Sunday.
The learned Judge delivered the following judgment, iij
which the facts are fully stated.
MacMahon, J. : —
The defendant company is incorporated by Letters
Patent under "The Street Railway Act, 1883." (R. S.O.
ch. 171), by which it was authorized to build and
operate a street railway in the town of Niagara Falls and
township of Stamford, and village of Niagara Falls in the
county of Welland.
The 4th section of the Street Railway Act under which
the defendants' charter was granted, is as follows: "Such
company shall, subject to any provisions contained in
the charter or in its by-laws, have authority to construct,
Digitized byVjOOQlC
3LIX.] ATTORNET-GEKERAL V. NIAGARA FALLS TRAMWAY 00 625
maintain, complete, and operate (on all days except San- Judgment
days) * * a double or single iron railway * * for MacMahon,
the passage of cars, carriages and other vehicles adapted "^
to the same, upon and along such of the streets in any
municipality to which its charter extend, as the council
of the municipality may by by-law authorize ; ♦ ♦ and to
take, transport and carry passengers upon the same, by the
force or power of animals, or by such other motive power
as the company thinks proper, and as the municipal council
authorizes ; and to construct and maintain all necessar}"^
works, buildings, appliances and conveniences connected
therewith."
The charter was granted in the year 1886, and at the
time the action was commenced had been in operation for
over two years, during which period the company had
been operating the railway on Sundays, carrying passen-
gers between its termini. In his evidence, the informant,
Rev. Richard Hobbs, states that the railway runs by Wesley
Park, and that when religious services are held there, the
people attending use the railway, and that some of the
passenger traffic performed by the railway on Sundays
would require to be done by hackmen. He (Hobbs) does
not complain of any injury occasioned to his property by
the railway being operated on Sundays. And neither in
the statement of claim is it alleged, nor in the evidence
is there the slightest proof furnished, that a public nuisance
has been created by reason of the railway running its cars
on that day.
It is admitted that the railway company was indicted
at the General Sessions of the Peace for the county of
Welland in June, 1888, for a violation of the Lord's Day
Act
The effect of what was urged before me on behalf of the
company is, that this is not an action by a person asking
that the railway be enjoined because of the infringing of
a private right; and that it is only where some public
interest is involved, or where there is a complaint that an
injurj' of a public nature is being done, that the Attorney-
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626 THE ONTARIO REPORTS. [VOI^
Judgment. General should interfere; and there was not even a
MacMahou, scintilla of evidence showing injury to the public, or that
'^' the public interests required to be protected as against the
acts of the defendants. It was also urged that the CJourt
had no jurisdiction to enforce the performance of any moral
duty except so far as the same is concerned with the
rights of property.
By the Act under which the charter is granted to the
company authority is given to operate its railway on any
day except Sundays ; and the argument is that there is a
prohibition against the railway being operated on Sunday.
The argument of defendants' counsel is that this is a
prohibition, the violation of which the Court will not
restrain by injunction, because no rights of property are
involved ; and what is asked here is merely the enforce-
ment of a moral obligation preventing the company from
operating its railway on Sundays.
So far as the charter of the company is concerned it
makes no difference whether the incorporation is effected
by means of a special Act, or under a general Act.
Lord Justice James in Attorney-General v. Great Eastern^
Railway Go,, 11 Ch. D. 449, at p. 484, said : " And it is, in my
judgment, to be considered, for the purposes of this action,
that there is no real difference between a body of share-
holders incorporated by special Act of Parliament for the
purpose of making and working a railway, and a body of
shareholders incorporated under the general law (now
applicable to large associations) for the purpose of establish-
ing and working any other industrial enterprise. So far
as the first has compulsory powers it must not abuse them;
so far as it has statutory duties it cannot delegate them ;
so far as it is under any statutory prohibition or direction
it must not violate the one or neglect the other. But even
in these cases it is only where some public mischief is
done, or where, in respect of something intended for the
public protection, there is misfeasance or non-feasance,,
that the Attorney-General ought to interfere."
The case of Attorney General v. Shrewsbury (Kingaland)
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XIX.] ATTORNEY-GENERAL V. NIAGARA FALLS TRAMWAY CO. 627
Bridge Co,, 21 Ch. D. 752, was cited by the plaintiflf to Jndgment.
shew that the Attorney Qeneral can maintain an action on MacMahoo,
behalf of the public to restrain the commission of an act *'^*
without adducing any evidence of actual injury to the
public. .
An examination of that case shows that what is meant
as stated by Fry, J., at p. 757, is that there need be no
evidence of any actual injury, but there must be evidence
that the defendants were doing certain illegal acts, which
tend in their nature to injure the public; and the illustra-
tion as to what is intended, is given in the head-note,
" such as any interference with a public highway or a
navigable stream."
Turner, L. J., in Attorney- General v.Shef^eld Oaa Con-
wmers Co., 3 DeG. M. & G. 304, at p. 320, said : '^ It is on
the ground of injury to property that the jurisdiction of this
Court must rest." And the same learned Judge in the
case of The Emperoi' of Austria v. Day and Koasvih, 3 DeG.
F. & J. 217, at p. 253, said : "I agree that the jurisdiction
of thisOourt in a case of this nature rests upon injury to
property actual or prospective, and that this Court has
no jurisdiction to prevent the commission of acts which
are merely criminal or merely illegal, and do not affect any
rights of property."
The railway company are the owners of the track which,
during the time the charter has to run, is vested in them ;
and what has been done was done in dealing with their own
property; and it is because of their dealing with the railway
in violation of the Lord's day or Sunday, the plaintiff asks
for the intervention of the Court to restrain such use by
the defendants of their property on that day.
The authorities are clear upon the question that the
Comt only exercises its jurisdiction in cases of the char-
acter stated where it is shewn that injury has been done ;
or that injury to property is threatened by the act of a
defendant. What has been done by the defendants in
running their cars on Sundays, may be illegal as a violation
<A the Lord's Day Act, and for such illegal act they may
Digitized byVjOOQlC
628 THE ONTARIO REPOBTa [YOIs.
jndgment be criminally liable ; but as what was done does not affect
MacMahon, proprietary rights, this Court is powerless to grant reliefl.
J- The question for adjudication here, is put in a couple of
short sentences in Kerr on Injunctions, 3rd ed., p. 5 : " The
Court has no jurisdiction to restrain or prevent crime, or to
enforce the performance of a moral duty, except so £Eur as
the same is concerned with the rights to property. * *
But if an act which is criminal touches also the enjoy-
ment of property, the Court has jurisdiction, but its inter-
ference 18 fouTided solely on the ground of injury to pro-
perty"
It is not pretended there was any injury to the general
public or to the property of the general public ; and it is
only in such cases, as put by Lord Justice James in the
passage already quoted: "Where some public misduef
is done, or where in respect of something intended for the
public protection there is misfeasance or non-feasance, that
the Attorney-General ought to interfere."
In this case the public require no protection, because
there has not, on the evidence in this case, been either mis-
feasance or non-feasance on the part of the defendants.
The defendants may be guilty of a violation of the
Lord's Day Act — in respect to which I express no opinion
— ^but the present action is not the means by which such
violation can be punished.
The action will be dismissed with costs.
In Hilary Sittings, 1889, a motion was made to set aside
the judgment entered for the defendants, and to enter
judgment for the plaintiff.
In Hilary Sittings of the Divisional Court (composed of
Galt, C. J., Rose and MacMahon, JJ.), February 8, 1890,
W. M, Douglas^ supported the motion. By the defendants''
charter authority is granted to operate the railway on
all days except Sundays. By thus excepting Sunday, ii
prohibits the working of the railway on that day. The
working of the railway on Sunday is also a breach of the
Digitized byVjOOQlC
XIX.] ATTOBNET-QENEHAL V. NIAGARA FALLS TRAMWAY CO. 629
Lord's Day Act> R S. 0. ch. 203. The object is to provide Argument.
for the peace and quiet of Sunday. It is also against public
policy, as interfering with the rights of the public in the
use of the highway, and it is not necessary to shew actual
damage : Attorney-General v. Great Eastern R. W. Co., 5
App. Cas. 473 ; Attorney- Genei^al v. Cockermouth Local
Board, L. R 18 Eq. 172; A ttomey -General y. Great
Northern R. W. Co., 1 Dr. & Sm. 154 ; Patterson v. Bowes,
4 Gr. 170, 193 ; Attorney-General v. Shrewsbury {Kings-
land) Bridge Co., 21 Ch. D. 752; ColTnan v. Eastern
Counties R. W. Co., 10 Beav. 1 ; Ware v. Regent* s Canal
Co., 3 DeG. & J. 212, 228 ; Mayor, ike, of Liverpool v.
Charley Water Works Co., 2 DeG- M. & G. 852, 860 ; Bonner
V. Great Western R. W. Co., 24 Ch. D. 1 ; United States v.
Union Padfic R W. Co., 98 U. S. 569, 571 ; Kerr on
Injunctions, Black, ed., sec. 185, 531-2.
Hill, (of Niagara Falls) contra. The granting of injunc-
tions in any case is a matter of discretion : DoheHy v.
AUmjam,, 3 App. Cas. 709 ; Kerr on Injunctions, Black, ed.,
170, 531. The Court will not interfere unless some private
right is being infringed, or some public interest is involved,
or there is a complaint that an injury of a public nature
is being done, and their interference is necessary for the
public good. The defendant's charter does not prohibit
the running of trains on Sunday. It merely provides for
the running of trains on other days. The running of
trains on Sunday is an act outside of the charter, and so
long as no rights of property are aflFected the Court will
not interfere merely to enforce what may be deemed a
moral obligation. There must be an interference with
property or proprietary rights, and there is clearly noth-
ing of the kind here. One of the principal uses of the
railway on Sunday is carrying persons to and from
Church. The majority of the people there desire that
the railway should be run on Sunday.
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630 THE ONTARIO REPORTS. [VOL.
Judgment. June 27, 1890. Oalt, C. J. :—
Gait, C. J.
This action is brought to obtain a perpetual injunction
to prevent the defendants from operating their line on
Sunday.
By section 4 of R S. 0., ch. 171. (under which the defen-
dants are incorporated,) "Every such company shall, sub-
ject to any provision contained in the charter, or in its by-
laws, have authority to construct, maintain, complete and
operate (on all days except Sundays)" their railway.
It is to restrain them from*using their railway on Sun-
day this injunction is sought. It is to be observed there
is no prohibition as to the use on Sunday ; the eflFect of the
statute is, that the provisions of the Act empower the
company to use the railway on every day except Sunday ;
consequently, if they run their railway on Sunday and
thereby commit a nuisance or an offence of any kind, they
are not protected by the Act, but are liable ; or, if by so
doing, they injure any right of property they are liable ;
it might also be urged that they are not on Sundays enti-
tled to claim the privileges conferred on them by the 6th
section as respects other vehicles, but I do not see anything
in the Act restraining them from using their railway on
Sunday.
The cause of action, as stated in the statement of
claim, is based entirely on the ground that by their
charter and the Act of Parliament, the defendants are
forbidden to operate their cars on Sunday — there is no
allegation of any other ground ; the charter was not pro-
duced at the trial; an abstract therefrom was read, and
in this no reference is made to not running the railway on
Sunday; but that is of no consequence, as unquestionably
the charter must have been subject to the provisions under
which it was issued ; there is no allegation of any inJQ^
to property.
It appears to me the only question before us, is as to the
conetruction of the Act of Parliament, for if the defendants
are not prohibited from running their cars on Sunday, ^^
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XIX.] ATTORNEY -GENERAL V. NIAGARA FALLS TRAMWAY CO. 631
action must fail, as this is the only ground on which the Judgment
pladntiff claims an injunction. Gait, C. J
In my opinion, there is no such prohibition.
Under the circumstances, it is unnecessajry to consider
the question whether the Court has or has not jurisdiction
to restrain by injunction what may be considered a breach
of a moral duty where no injury to property is even
alleged.
Rose, J. :—
The facts are fully set out in the judgment of my learned
brother MacMahon, by whom the case was tried.
In my opinion the authority to operate the railway " on
all days except Sundays," implies a prohibition against
working on Sunday.
The fair meaning of such language appears to me to be
that the company was granted its corporate powers on
condition that it should operate its railway on six days
only, i,e., to say that it might operate its railway on all
days except the seventh was but another form of words
for saying that it might operate its railway on six days
only.
If so the company was by the terms of its charter and
the Act of Parliament under which the charter was granted
prohibited from operating the railway on Sundays, and
working on Sundays was in violation of the terms of the
charter, and doing an illegal act ; or, as put by James, L. J.,
in the case of the AUomey-Oeneral v. Oreat Eastern R.
W. Co., 11 Ch. D. 449, at p. 483 : " Where a company
entrusted with large powers is deliberately violating an
express enactment, or disregarding an express prohibition
of the Legislature, it is really committing a misdemeanor,
and ought to be at once stopped."
The case of Ashbury Railway Carriage and Iron
Co. V. Riche, L. R. 7 H. L. 653, is referred to in Attorney^
Oeneral v. Oreat Eastern R, W. Co., L. R 5 App. Cas. 473, at
p. 481, by Lord Blackburn as follows : " That case appears
80 — VOL. XIX. O.B.
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<32 THE ONTARIO BEPOBTS. [VOL.
Judgment, to me to decide at all events this, that where there is an
Bom, J. Act of Parliament creating a corporation for a particular
purpose, and giving it powers for a particular purpose, what
it does not eaypreaaly or impliedly authorize iatobe taken
to be prohibited ; and, consequently that the Great Eastern
Company, created by Act of Parliament for the purpose of
working a line of railway, is prohibited from doing anything
that would not be within that purpose."
And, at p. 486, Lord Watson referring to the same case
said : '' That principle, in its application to the present case
appears to me to be this, that when a railway company
has been created for public purposes, the Legislature must
be held to have prohibited every act of the company which
its incorporating statiUes do not vxirran;t either expresdy
or by fair implication/'
Not only in my judgment does the Act in question pro-
hibit by not warranting, but also prohibits by the use of
language the fair meaning and effect of which include a
prohibition.
If I am right in my first proposition it follows upon the
authorities that the Attorney-General has the right to
come to the Court and obtain an order restraining such
prohibited and illegal act
It is immaterial whether the proceeding is ex officio or
on relation. See Attomey-Qen^ercd v. OrecU Northern -B.
W. Co,, 1 Dr. & Sm. 164, at p. 161, and Attorney-Genei-al v.
Great Eastern R W. Co., 11 Ch. D. 449; at p. 500.
And it is not necessary in such a case to shew injury to
the public or individuals.
During the argument in the case of Attomey-GeTieral v.
Great Eastern B. W. Co., 11 Ch. D. at p. 475, Baggallay
L. J., said to counsel : '' Assuming that the Act of Parlia-
ment prohibited the company from doing some particular
thing, but they did it, and no injury aiises either to indi-
viduals or the public generally in respect of what has been
done, do you say that the Attorney-General in that case
ought not to interfere ?" To which counsel replied, " No;
because it is to be assumed that the doing of an Act which
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XDL] ATT0BNET-G£NERAL v. NIAGARA FALLS TRAMWAY CO. 63ft
Parliament has prohibited, must be injurious to the Judgment
public." Rose, J.
In the same case, at p. 483, James, L. J., referring to
the case of the Attorney -Qeneral \SJ}reat Western R. W.
Co., L. R. 7 Ch. 767, where the company prohibited from
opening its line until it was passed by an engineer, was
restrained from^disregarding^such prohibition, said : " The
company was, of course, restrained from this violation of
an express compact withjthe Legislature."
I am not overlooking the limitation he places upon the
duty of the Attorney-General to interfere, in the conclud-
ing words of his judgment, pp. 484, 5 ; but, taken in con-
nection with the argument in the case and the citations I
have made, it seems to me that he does not mean to cut
down the force and effect of his previous language.
At p. 500, Baggallay, L. J., says : " It is the interest of
the public that the law should in all respects be respected
and observed, and if the law is transgressed or threatened
to be transgressed, * * it is the duty of the Attorney-
General to take the necessary steps to enforce it, nor does
it make any difference whether he sues ex officio, or at
the instance of relators.*'
And to the like effect, Bramwell, L. J., at p. 502 : '' I
have no doubt, also, that if a thing is prohibited by the
statute, creating a corporation, the doing of that thing is
unlawful, and may be restrained. * * My doubt is,
where there is no prohibition, and the act is not contrary
to any duty towards or in violation of any right of the
public," &c.
I also refer to the judgment of Jessel, M. R, in the same
case, at p. 458, where he deals with the same question, and
states what he deems in that case to be " against the public
interest."
I do not see that the case of the AUomey-Oeneral v.
Shrewsbury [Kin^sUmd) Bridge Co,, 21 Ch. D. 752, is
against this view. On the contrary I read it as in affirm-
ance of it, assuming as I have here found, a prohibited
act, and a presumption that the doing a prohibited act-
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€84 THE ONTARIO KBPORTS. [VOL.
Judgment, must be injurious to the public. I refer to the opinion of
Rose, J. Lord Hatherley cited by Fry, J., at p. 766, from the judorment
in Attoimey-OeTierdi v. Ely, Haddenham cmd Suttcn
B. W. Co,, L. R. 4 Ch. 194, 199 : " The question is, whether
what has been done has been done in accordance with the
law ; it not, the Attorney-General strictly represents the
whole of the public in sajnng that the law shall be observed.**
Even if it could be successfully argued that the act here
complained of was not prohibited, it certainly would be
against the terms of the contract, and that amounts in
effect to the same thing. See the case above referred to of
Attomey-Oentral v. Oreat Northern M. W. Co., 1 Dr. & Sm.
154.
I have not entered into the question of the prohibition
being against running on the Lord's Day or Sunday. The
day may have been and no doubt was excepted, because it
was deemed to be in the public interest that the road should
not be operated on that day ; but my conclusion would
have been the same had the excepted day or prohibited
day been Monday or any other day of the week.
The applicants for the charter knew that it was granted
on the express terms that Sunday should be excepted from
the days on which it should be operated ; and it seems to
me a breach of good faith, having obtained the charter, to
disregard its provisions.
In my opinion the motion must be allowed, and the
perpetual injunction granted as prayed.
The company must pay all the costs. For a collection
of the cases reference may be had to Kerr on Injunctions,
3rd ed., pp. 185, 531, 532. Sparhawk v. Union PasseTiger
R. W. Co., 54 Penn. 401, may be referred to as containing
an interesting discussion of Sabbath observance.
MacMahon, J. : —
I have had an opportunity of perusing the judgment of
jny learned brother Rose, dissenting from the view ex-
j)ressed in my judgment delivered after the trial But I
Digitized byVjOOQlC
XIX] ATTORNET-GENEBAL V. NIAGARA FALLS TRAMWAY CO. 635-
have not been able to satisfy myself that I was in error Judgment.
in holding that no case had been made out for the inter- MacMahon^
ference of this Court to restrain by injunction the defend- '^'
ant company from running its trains on Sunday.
It is quite clear from the judgment of the House of Lords
in the Askbury Railway Carriage and Iron Co, v. Riche,
Li. R. 7 H. L. 653, and Attorney General v. Great Eastern
IL F. Co,, 5 App. Cas. 473, at p. 481 : " That where there
is an Act of Parliament creating a corporation /a?' a par-
ticular purpose, and giving it powers for that particular
purpose, what it does not expressly or impliedly authorize
is to be taken to be prohibited."
Then what is the nature or character of the Acts com-
mitted by a corporation and not authorized by its charter
for which it will be restrained by injunction at the instance
of the Attorney- General ?
It will be necessary to consider the nature of the alleged
prohibited acts for which corporations have been sought *
to be enjoined in the cases referred to in the judgment
of my learned brother to see if .any of them are authority
for the proposition contended for by the relator, that the •
Court can by injunction, restrain a corporation where the
illegal acts complained of have no tendency to injure pro-
perty, or which do not in their nature tend to injure the
public. And also that the Court can aid the enforcement
of the criminal law by granting an injunction to restrain
crime ; or, in like manner, enforce the performance of a
moral duty.
Attorney-General v. Great Western B. W. Co., L, R.
7 Ch. 767, is referred to by James, L. J., in Attorney- General
V. Great Eastern B. F. Co,, 1 1 Ch. D., at p. 483, where he said :
" In the case of Attorney-General v. Great Western B W.
Co., the railway company was prohibited by law from
opening a line before it was passed by an engineer ap-
pointed by the Board of Trade, a provision intended for
the safety of peoples' lives, and they were going to dis-
regard that prohibition, and it was no answer for them to
say that the line was safe, that no mischief could arise*^
Digitized byVjOOQlC
^36 THE ONTARIO REPORTS. [vOL
Judgment. The Company was, of course, restrained from this violation
M&cMahon, of an express compact with the legislature."
^' The judgment in that case is put expressly on fche
ground that it was for the protection of the public, that
the Board of Trade should exercise its powers of causing
a proper inspection before the line was allowed to be opened.
James, L. J., at the same page \4t83), summarises the
case of Attomey-OeneraZ v. Cockermouth Local Board,
L. R. 18 Eq. 172, as follows: "The board were doing
works which would or might probably poison a running
stream, in direct violation of the law, which prohibited
them from committing a nuisance. These seem to me to
be good illustrations of the cases in which it is essential
for the protection of the public and of individuals that
the Attorney-General should interfere."
He also points out, at pp. 483-4, that in Attomey-Oenerd
V. Great Northern iZ. W. Go., 1 Dr. & Sm. 154, at p. 161,
Vice-Chancellor Kindersley, proceeded " on the ground that
it was a matter of grave dam^ige and injury to the publkJ*
What Kindersley, V. C; said in his judgment, was:
" Wherever the interests of the public are damnified, by a
company established for any particular purpose by Act
of Parliament, acting illegally and in contravention of the
powers conferred upon it, I conceive it is the function of the
Attorney-General to protect the interests of the pvMic by
an information."
In Ashbury Railway Carriage and Iron Co. v. Ri^,
L. R 7 H. L. 653, at p. 672, the question raised was, whether
the contract entered into was ultra vires of the corporation.
It was held that the contract being bej^ond the objects
of the memorandum of association, it was beyond the
powers of the company to make the contract.
In Attomey-Oeneral v. Great Eastern R. W. Co., 11
Oh. D. 449, where it was sought to restrain the Great
Eastern Railway Company from leasing rolling stock to
another railway company on the ground that such contract
was under the Railway Clauses Consolidation Act, ultra
vires, it was held by the Court of Appeal, (Baggallay,
Digitized byVjOOQlC
XIX.] ATTORNET-GKNERAL V. NUGARA FALLS TRAMWAY CO. 687
J., dissenting) that such letting was not uUra vires ; and, Judgmaot.
«ven if it had been, that no such case of public mischief was MacMahon,
«hewn as would entitle the Attorney General to interfere ; ^'
the mere fact that a proceeding is vXtra vires, not being
sufficient for that purpose unless injury to the public is
shewn.
The meaning which should be attributed to the language
of Lord Justice James in that case must be gathered from
all he said in relation to the point I am now considering.
He said, at p. 482 : " In my judgment, where the matter is
a mere matter of ultra vires, that is, whether the managing
partners of a concern are or are not doing something outside
their charter, Act of Parliament, or deed of settlement, •
there ought to be some plain and sufficient public mischief
shewn to warrant a suit on behalf of the Sovereign or the
pubUc."
And in a later clause in his judgment, at p. 484, he again
deals with the question in the passage quoted by me in my
former judgment : " And it is, in my judgment, to be con-
sidered, for the purpose of this action, that there is no real
difference between a body of shareholders incorporated by
special Act of Parliament for the purpose of making and
working a railway, and a body of shareholders incorporated
under the general law (now applicable to large associations)
for the purpose of establishing and working any other
industrial enterprise. So far as the first has compulsory
powers it must not abuse them ; so far as it has statutory
•duties it cannot delegate them ; so far as it is under any
statutory prohibition or direction it must not violate the
one or neglect the other. But even in these cases it is
only where some public mischief is done, or where, in respect
of something intended for the public protection, there is
misfeasance or non-feasance, that the Attorney-General
ought to interfere."
This passage appears to have been inserted to prevent
any misconception as to what meaning should be attached
to any prior language in the judgment. It was in effect
usaying : Where a company is violating any express enact-
Digitized byVjOOQlC
THE ONTARIO REPORTS. [VOL.
Jadgment. ment, or disregarding any express prohibition whereby
MaoMahon, some public mischief is done, or where in respect of some-
^' thing intended for the public protection there is misfeas-
ance or non-feasance, then the Attorney-General ought to
interfere.
When that case {Attomey-Oeneral v. Oreat Eastern R
W. Co.,) was before the House of Lords Lord Blackburn
referred to the point raised as to whether the case was one
proper for the intervention of the Crown and said — 5 App.
Cas. at p. 485 : " The second point, which is whether or not
the case is a proper one for the Attorney-General to inter-
fere in, and to what extent the powers of the Attorney-
General in such cases go, is one I consider of great import-
ance, and whenever it becomes necessary to decide that
question I should desire to look into it very carefully, and
to consider carefully what was the proper doctrine to be
applied to such a case."
See also the judgment of Lord Chancellor Truro, in
Attomey-Oeneral v. Birrmnghaniy and Oxford Junction
R. W. Co., 3 McN. & Q. 453. at pp. 461-2.
In Morawetz on Corporations, 2nd ed., sec. 1041, it is
said : " The fact that a corporation is about to exceed its
chartered powers, or to commit any other unlawful act,
is not alone a suflSicient ground for the interference of
chancery at the suit of a person who is not a member of
the company. * * A court of chancery has no juris-
diction to issue an injunction, at the suit of the prosecut-
ing officer of the State, to restrain a corporation from
exceeding its chartered powers, or from doing acts other-
wise illegal, unless it be shewn that such axits are injurious
to the public, and that the remedy by injunction is required
on equitable grounds. There is no reason why chancery
should enjoin a corporation from committing a breach of
the law in any case in which similar relief would not be
granted against an individual, A court of equity has
clearly no general jurisdiction to act as a conservator of
the laws, or to enjoin the commission of crimes and mis-
demeanors, at the suit of the Attorney-General. It is
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XIX.] ATTORNEY-GENERAL V. NIAGARA FALLS TRAMWAY CO. 63&
difficult to perceive then why equity should interfere to Judgm^t.
prevent a bare tusurpation of corporate authority, or any MacMahon,
other mere breach of the law, from being committed by an
incorporated company."
And, at section 1040, the same author says: " It is well
settled that the courts of equity have no jurisdiction,
unless it be conferred by statute, to decree dissolution of a
corporation hy forfeiture of its franchises, either at the
suit of an individua], or at the suit of the Sbate. The
State alone can insist on a forfeiture of franchises, and the
State has an adequate remedy at law, by jtto wai^ranto, to
obtain a judgment of forfeiture and dissolution."
I adhere to my former opinion, and think the motion
should be dismissed with costs.
81— VOL. XIX. O.R.
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640 THE ONTARIO REPORTS. [VOL.
[C50MM0N PLEAS DIVISION.]
HOWARTH V. KiLGOUR.
^De/amcUion— Libel— Letter partly libfllona—PubUctUion on privUeged
Zl^^^r:^ occasion — Malice.
The plaintiff and one S. had been in partnership, S. having retired and
left the country. Subsequently the plaintiff made an assigoment for
the benefit of creditors. The de^ndant was a creditor and was
appointed one of the inspectors of the estate. S. wrote a letter to one
F. relative to the plaintiff's business, a portion of which the plaintiff
claimed to be libellous, the remainder being admittedly privileged. F.
forwarded the whole letter to the defendant who shewed it to his oo-
inapector, a creditor, and also to another creditor.
In an action against the defendant for the publication : —
ffeldy that the occasion of the publication was privileged, and that the
privilege attached to the whole letter, it having been shewn only to
persons equally interested with the defendant in the matter.
Statement. This action was tried before Street, J., and a jury at
the Toronto Winter Assizes of 1890.
The plaintiff and one Montgomery Smith, had been in
partnership in Toronto carrying on business under the
name of the Howarth Paper Company. Montgomery Smith
had retired from the partnership and gone to Indiana.
On the 4th of July, 1889, an assignment was made by
the plaintiff Howarth of the estate and effects of the
company for the benefit of creditors to Clarke, Barber &
Co., the defendant being a creditor, and appointed one of
the inspectors of the estate, and Mr. Gillean, manager of
the Canada Paper Co., also creditors, being another of the
inspectors.
Montgomery Smith on the 10th of July, wrote from
Frankford, Indiana, to one Fisher, a letter which was for-
warded to the defendant, containing the following passage:
" What do you think of a man who would claim $100
for setting fire to his own warehouse and take it, also
pocket half the insurance money ? This is what Howarth
did." The publication of which, by shewing the letter to
Gillean the other inspector, to Mr. Gain a creditor, and to a
Mr. Service, a former bookkeeper of the Howarth Company,
who was a creditor (but whose claim against the estate
Digitized byVjOOQlC
XIX.] HOWARTH V. KILGOUR. 641
was a privileged one), was charged as the libel against the Stotemcni.
defendant.
On the occasion of shewing the letter to Service, he
{Service) went to the defendant, and said Smith thought
of making an offer for the estate, and the defendant said
it was surprising Smith would make an offer after writing
s, letter like the one in question.
The whole of Smith's letter to Fisher was as follows:
"I have just received notice that the Howarth Paper Company have
assigned, and being interested like yourself, I would like to give you a
few pointers ; if I can be of any use to the creditors interested, I am at
their service. First, I will say that Howarth had no cause to fail except
to make money, and tried to get me to join him in his dirty work. When
I refnsed he went for me, and I came out |3,750 short. This money went
into his pocket. Now I am told Mrs. Howarth has a claim for money put
in the business, which is wrong. She did not put in a cent ; it is J. G.
Howarth's money and put in in her name. I think you can easily set
aside this claim and any other which is not genuine. Howarth has plenty
of money to pay creditors in full, and I think, under the circumstances,
it would be a pity to give this man a settlement less than 100 cents on
the $, as he has been scheming for some time. What do you think of a
man who would claim $100 for setting fire to his own warehouse and
take it, also pocket half the insurance money ? This is what Howarth did,
besides other moneys disappeared out of the business which he alone can
account for. This letter is open to others, and I enclose my address in
case you wish to correspond on other matters."
Nothing turned upon the remainder of the evidence, the ma-
terial portion thereof relating to publication by the
defendant being already referred to.
At the close of the plaintiff's case the learned trial Judge,
being of opinion, upon the authority of Warren y. Warren,
1 C. M. & R. 250, that the part of the letter shewn by the
defendant to his co-creditors, was not privileged, it was
agreed that judgment should be entered for the plaintiff
for $10, subject to the legal question to be argued on the
motion to set aside the judgment.
The learned Judge thereupon directed that judgment be
entered for the plaintiff for $10 and full costs.
The defendant moved on notice to set aside the judgment
entered for the plaintiff, and to have the judgment entered
in his favour.
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642 THE ONTARIO REPORTS. [VOL.
ArgmiMiit. In Easter Sittings of the Divisional Court (composed of
Galt, C. J., and MacMahon, J.), May 23, 1 890, Wallace Nes-
hUt and Roaf, supported the motion. The commmiication
was made by the defendant bond fide in a matter in which
he had an interest, namely, the winding up of the estate,
and it being a communication which had been received by
the defendant from the plaintiff's late partner, it was the
duty of the defendant to communicate it to parties who,
like himself, were interested, and it was so only communi-
cated, namely, to the inspector and creditors. The commu-
nication under these circumstances was clearly privileged,
and the onus of proving malice is cast on the defendant,
and he has failed to prove any. They referred to Warren
V. Warren, 1 C. M. & R. 250 ; Wilcocka v. Howell, 5 0. R
360; Todd v. Dun, 15 A. R. 85.
Joshua Denovan, contra. The defendant cannot avail
himself of the doctrine of privilege, for the occasion was not
privileged, the communication having being made to persons
other than those interested. The pinmd facie inference of
malice was not removed, and judgment was therefore
properly given for the plaintiff: Colmn v. McKay, 17 0.
R. 212 ; SpiU v. Maule, L. R. 4 Ex. 232 ; WeUa v. Lindop,
14 O. R. 275, 279-80; Dawkina v. Lord Paulet, L. R 5 Q.
B. 94.
June 27, 1880. MacMahon, J. :—
* It was not contended that the other matters contained
in the letter were not proper subjects for disclosure by
the defendant to others having a common interest with
him as creditors of the plaintiff's estate ; and as to such
matters a communication coming from a former partner
of the plaintiff who represented his having an interest in
the estate, it would be deemed a duty incumbent on the
defendant as an inspector of the estate to inform the
creditors of such other matters. If so, does the privilege
attaching to the other subject-matters not also create a
privilege as to the clause in the letter charged as being
libellous f That is : was the defendant in the performance
Digitized byVjOOQlC
XIX.] HOWARTH V. KILGOUR. 648
of his duty as inspector in communicating with the credi- Judgment,
tors bound to prevent the clause forming the foundation MacMahon,
for this action from being seen and read by them ?
Townshend on Libel, 4th ed., sec. 209, p. 300, in treating
of communications made as a duty or supposed duty on the
part of the person making them says : " Privileged com-
munications comprehend all statements made boiid fide
in performance of a duty, or with a fair and reasonable
purpose of protecting the interest of the person making
them, or the interest of the person to whom they are made.
A communication made bond fide upon any subject matter
in which the party communicating has an interest, or in
reference to which he has a duty, is privileged, if made to a
person having a corresponding interest or duty, although it
contain criminatory matter, which, without this privilege,
would be slanderous and actionable."
In Davies v. Snead, L. R. 5 Q. B. 608, Blackburn, J., says,
at p. 611, that: "Where a person is so situated that it
becomes right in the interests of society that he should tell
a, third person certain facts, then if he bond fide and without
malice does tell them it is a privileged communication."
This was held by Brett, J., in Waller v. Loch, 7 Q. B. D.
619, at p. 622, to be the true rule, as " it leaves out all
misleading words, saying nothing about * duty.'"
The position of the defendant in this case is similar to
what would be that of the assignee of the estate who had
received a communication warning him that the debtor
had prior to his bankruptcy or insolvency been secreting
his goods or disposing of them fraudulently, and that the
money obtained from such fraudulent disposition was still
retained by the insolvent debtor. The assignee in such
•case could not escape from the obligation he owed the
■creditors as their representative to disclose the information
received, in order not only that their present interests might
be protected, but to put them on their guard as to their
future dealings with the insolvent debtor. The defendant
-as inspector having received this communication stands
relatively in the like position as does the assignee to the
creditors of the plaintiff's estate.
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644 THE ONTARIO REPORTS. [vOL.
Judgment It is said that the performance of a duty is always com-
MaoMahon, pulsory ; and that one cannot forego the performance
^' thereof, because to omit the performance of a duty is to
take away a right somewhere, either in society, or an
individual, the right to have such duty performed : Town-
shend on Libel, sec. 39.
It would seriously cripple the actions of those entrusted
either in the capacity of assignees or inspector with the
control over estates of debtors, and make the performance
of the duties connected with such positions extremely
hazardous were it to be held that it was not the province
and the duty of a person, situated as the defendant was, to
communicate the contents of a letter like Smith's to the
creditors of the estate, and that he could only do so at the
risk of being mulcted in damages for libel.
** In all these cases the duty referred to need not be one
binding at law ; any ' moral or social duty of imperfect
obligation' will be sufficient. (Per Lord Campbell, in Har-
rison V. Bvsh, 5 E. & B. 344.) And it is sufficient that the
defendant should honestly belieye that he has a duty to
perform in the matter, although it may turn out that the
circumstances were not such as he reasonably concluded
them to be : Whifeley v. Adams, 15 C. B. N. S. 392.''
Odger's Law of Libef, 2nd ed., 199.
In Blagden v. Bennett, 9 0. R. 593, the late Chief Justice
Cameron, in his judgment, after citing a number of autho-
rities on the question of privilege, says, at p. 601 : "These
observations seem to shew that though matters may clearly
be defamatory if written or spoken by a person having an
interest in the matter to one also interested, whether
the interest be in connection with a public or private
subject, the protection of privilege is thrown round the
communication, and in the absence of malice an action will
not lie in reference to such defamatory matter."
The communication having been made on a privileged
occasion, rebuts the pri/md facie inference of malice arising
from the publication, and throws upon the plaintiff the
onus of proving malice in fact : Wright v. Woodgate, 2 C.
M. & R. 573.
Digitized byVjOOQlC
XIX.] flOWARTH V. KILGOUR. 645
The case of Warren v. Wai^en, 1 C. M. & R. 250, relied Judgment
upon by the plaintiff, does not assist us in determining the MacMahon,
question involved in the present action. That case, which *'^-
was an action brought against the writers of the libellous
letter, merely decided that privilege attached to that
portion of the letter written by the defendant to the man-
ager in Scotland of property in which the plaintiff and
defendant were jointly interested, as to the conduct of
the plaintiff in reference to such property ; but that privi-
lege did not attach to a charge contained in such letter
against the plaintiff with reference to his conduct to his
mother and aunt.
In the judgment of the House of Lords in Hamon v.
FaLle, 4 App. Cas. 247, at p. 251, the following passage from
Toogood V. Spyring, 1 C. M. & R 181, 193, is cited as
being still the rule in such cases as the present, "In
general, an action lies for the malicious publication of
statements which are false in fact, and injurious to the
character of another (within the well-known limits as to
verbal slander), and the law considers such publication
as malicious, unless it is fairly made by a person in the
discharge of some public or private duty, whether legal or
moral, or in the conduct of his own affairs, in matters
where his interest is concerned."
Baron Parke, in Toogood v. Sftfringy also makes use of the
following language : " If fairly warranted by any reason-
able decision or exigency, and honestly made, such com-
munications are protected for the common convenience
and welfare of society ; and the law has not restricted the
right to make them within any narrow limits."
See also Coochead v. Richards^ 2 C. B. 569 ; Blackham
V. PugK 2 C. B.611 ; Tuaon, v. Evans, 12 A. & E. 733;
Clarice v. Molyneux, 3 Q.B.D. 237; Todd v. Dun, 15 A.R. 85.
The motion must be absolute to set aside the judgment
directed to be entered for the plaintiff, and to enter judg-
ment dismissing the plaintiff's action withcosts— of course
including the costs of the present motion.
Galt, C. J., concurred.
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646 THE ONTARIO REPORTS. [VOI-
[COMMON PLEAS DIVISION.]
Reoina V. Watson.
" PiMic maUh Act:' R' S. O. cA. SOS.—" Owner or agent ''—Meaning of—
Plumber,
By the 6th clause of a city by-law passed under the < ' Public Health Act,"
R. S. O. ch. 205, it was providea that before proceeding to constnict,
reconstruct, or alter any portion of the drainage, ventiUtion, or water
system of a dwelling house, &c. , " the owner or his agent constructuig
the same " should file in the city engineer's office an application for a
permit therefor, which should be accompanied with a specification or
abstract thereof, &c. ; and by the 11th clause, that after the approval
of such plan or specification no alteration or deviation therefrom would
be allowed, except on the application of the ** owner or of the agent of
the owner " to the city engineer.
By sec. 22 of the " Public Health Act," owner is defined as meaniiigthe
person, for the time being, receiving the rents of the lands on his own
account, or as affent or trustee of any such person who would so reodve
the same if sudi lands and premises were let : —
Hild, that the agent intended by the Act and coming within the terms of
the by-law, meant a person acting for the owner as trustee, or in some
such capacity, kc., and did not include a plumber employed by the
owner to reconstruct the plumbing in his dwelling house.
Statement. This was a motion to quash a conviction made by Hugh
Miller, and R J. FlemiDg, two justices of the peace, sitting
in the absence of the police magistrate of the city of
Toronto.
The conviction was under by-law No. 2238 of the city
of Toronto, known as the " plumbing by-law " and imposed
a fine of $3 and costs on the defendant, because he did
unlawfully construct a portion of the drainage, ventilation
and water system of a dwelling house on MacDonald
Avenue, owned by T. Q. Ward, without first filing in the
office of the city engineer an application for a permit
therefor, contrary to said by-law.
The complainant was the inspector of plumbing for the
city.
The defendant was a plumber, and the work performed
was under a contract with Ward, the owner, who had not,
nor had the defendant, filed an application or obtained
a permit as required by the by-law.
The 6th clause of the by-law under which the convic-
tion was had provided :
Digitized byVjOOQlC
XrX.] REQINA V. WATSON. 647
• * Before proceeding to construct, re-construct or alter any portion of Statement,
the drainage, ventilation or water system of a hotel, tenement, warehouse,
dwelling house or other huilding, the owner or his agent comtrueting the
same shodlJUe in the office of the city engineer an application for a per-
mit therefor, and such application shall be accompanied with a specifica-
tion or abstract thereof in a blank form prescribed and supplied for this
purpose, stating the nature of the work to be done, and giving the size,
kind and and weight of all pipes, traps and fittings, together with a des-
cription of all closets and other fixtures, and a plan with the street and
«treet numbers marked thereon and showing the drainage system under-
ground."
In Easter sittings, of the Divisional Court, (composed of
<}alt, C. J., and MacMahon, J.), June 5, 1890, T. W.
Howard supported the motion. The by-law is drawn
up under the "Public Health Act," R. S. O. dh. 205. The
vrord "agent" means a person acting for the owner
^as trustee or in some such like capacity, and not a
plumber called in to perfoi-m the plumbing work. See
-aJso clause 16 of the by-law contained in schedule " A"
to the Act.
F, Mowat, contra. The term "agent" used in the by-law
includes a plumber. The plumber is employed by the
owner to draw the plans and to construct the drain and to
do the work. He is the person on whom the owner relies
that the work will be properly done and the requisites of
the Act will be carried out, and certainly he is the proper
person to be held chargeable with any breach in the
<5arrying out of the terms of the Act. The conviction
here is a valid conviction and should not be interfered with.
June 27, 1890. MacMahon, J. :—
Unless the defendant can be considered the agent of the
owner of the building, where the construction or re-con-
struction, &c., is to take place, he cannot be convicted under
this by-law.
What was urged by the counsel for the city was that
the words " or his agent constructing the same," mean that
the plumber who is employed by the owner, should be
<;onsidered as the agent of the latter for the purpose of
82 — VOL. XIX. o.R.
Digitized byVjOOQlC
648 THE ONTARIO REPORTS. [vOL.
Judgment, filing the application for the perniit together with a speci-
MacMahon, fication showing the nature of the work to be done, &c
^' The "Public Health Act/* R. S. 0. ch. 205, sec. 2, sub-
sec. 1, defines the word "owner" as meaning "the person
for the time being receiving the rent of the lands or pre-
mises * * whether on his own account or as agent
or trustee of any other person, or who would so receive
the same if such lands and premises were let"
Under the eleventh clause of the by-law :
'* After a plan or specification haa once been approved, no alteration or
deviation from the same will be allowed except on a written application
of the owner, or of the agent of the owner, to the city engineer. "
Looking at the " Public Health Act," the by-law itself^
and having regard to the reason of the thing, they are all
against the contention that a man employed to do a job of
plumbing to a dwelling or other building should be regarded
as, or should be called upon to act compulsorily, as the agent
of the owner of such building in preparing a specification,
&c., and asking for a permit that the work might be done
for the owner of the building.
The plans and specifications of a building— -including the
plumbing — may have been, and they generally are prepaid
by an architect, and all the plumber has to do is to follow
the plans and specifications in carrying out his contract,
under the architect's supervision, who is the custodian of
the plans, &c. Or, the plumber, instead of being a con-
tractor to do that part of the work at a lump sum, may
do it by day work. In none of these cases could it be
possible to regard the plumber as agent of the owner for
the purpose claimed.
The "agent" intended by the Act, must be a person
acting for the owner as trustee, or in some such capacity
in connection with the construction, re-construction, or
alteration of drainage, &c., of any building. Where the
owner is absent, and therefore cannot be reached, the agent
who authorizes on his behalf the construction, &c., of the
drainage &c., without a permit, is the person who must be
prosecuted.
Digitized byVjOOQlC
XIX.] REGINA V. WATSON. 64&
A in England has B as his agent in Toronto, who for his Judgment.
principal, the owner of property, is erecting a building, MacMahon,
and contracts with C, a plumber, to construct the drainage, '^•
&c., of such building ; it must be the agent of the owner
of such building who is liable to be prosecuted in the
event of application not being made for a permit under
the by-law.
The conviction must be quashed, and 1 see no reason
why the defendant should not have his costs from the
informant.
There must be the usual order protecting the magistrates
and ofHcers.
Galt, C. J., concurred.
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€60 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION].
Baker v. Fisher.
Sale oj (foods— Intention of purcha&er to set of a claim againH vendor —
Fraud,
The plaintiff with the intention of parting with the posMSsion and pro-
perty in certain flour made an aDBolnte sale of same, on apparently^
short terms of credit, to defendant, who withheld from plaintiff his
intention to pay for the flour by setting up a claim he had acquired
against the plaintiff : —
Heui, that this did not constitute a fraud on the defendant's psrt so ss to
entitle the plaintiff to disaffirm the contract and replevy the floor.
Statement The plaintiff, a merchant in Kingston, sold to the defen-
dant, carrying on business in the same place, a quantity of
flour and rolled oats at a price agreed on. The goods were
delivered to the defendant and payment of the price
demanded, but defendant set up that he had the right to
set off against the price of the goods an account due by the
plaintiff to a firm of Johnston & Barclay, which had been
assigned to the defendant. The plaintiff claimed that the
sale was for cash, and that as the defendant procured the
said goods to be delivered to him with the design of not
paying for them in cash, but of so setting off the said
account, he was guilty of such a fraud as entitled the plain-
tiff to rescind the contract A demand was made by the
plaintiff for the goods, and on defendant's refusal to deliver
same the plaintiff brought replevin therefor.
The action was tried before Armour, C. J., and a jury, at
Kingston, at the Spring Assizes of 1890.
At the close of the plaintiff's case the learned Chief
Justice dispensed with the jury. He found that there had
been a complete delivery of the goods, aud a passing of the
property therein, and that therefore replevin would not lie,
and he entered a verdict for the defendant.
A motion was made on behalf of the plaintiff to set aside
the judgment entered for the defendant, and to enter judg-
ment for the plaintiff.
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XIX.] BAKER V. FISHER. 661
In Easter Sittings, of the Divisional Court (composed of Argument.
Galt, C. J., and MacMahon, J.,) May 30, 1890, Smythe, Q.C.,
supported the motion. The sale was for cash on delivery of
the gooda The defendant withheld from the plaintiff the
fraudulent intention that he did not intend to pay cash, and
determined to get hold of the goods and then setoff the claim
dne by the plaintiff to Johnston & Barclay. This constitu-
ted such a fraud as entitled the plaintiff to disaffirm the con-
tract and replevy the goods. The contract was voidable ab
initio, and therefore no property in the goods passed to the
defendant. No man is bound by a bargain into which he has
been induced to enter by a fraud, because assent is necessary
to a valid contract, and there is no real assent when fraud
and deception have been used as instruments to control
the will and influence the assent. He referred to Kerr on
Fraud, 2nd ed., p. 1 ; Broderick v. Broderick, 1 P. Wms. 239 ;
Benjamin on Sales, 4th ed., p. 402 ; Oswego Starch Factory
V. Lendrum, 57 Iowa 673 ; Fair v. Mclver, 16 East 130 ;
ElaTid V. Karr, 1 East 375 ; Mayer v. Niaa, 1 Bing. 311 ;
Oroom V. West, 8 A. & E. 758, 761 ; Load v. Oreen, 15 M.
& W. 216 ; Earl of Bristol v. WUsmore, 1 B. & C. 514 ;
Davis V. McWhiHer, 40 U, C. R. 598 ; Be Central Bank--
Wells and McMurchy's Case, 15 O. R. 611 ; Wood v. Mc-
Alpine, 1 O. R, 234, 242.
J. M, Machar, contra. There was a complete delivery
of the goods and the property therein passed to the defen-
dants. The plaintiff cannot shew a case in which it has
been held that under circumstances similar to the present
the plaintiff has been allowed to rescind the contract and
replevy the goods. The cases cited by the other side
are all cases of bankruptcy where rights of creditors
intervened : Eland v. Ka/rr, 1 East. 375.
June 27, 1890. MacMahon, J. :—
Where the vendor has been induced to part with the
possession and property in goods, by the fraudulent device
of the vendee, the contract is voidable at the option of the
Digitized by VjOOQIC
652 THE ONTARIO REPORTS. [VOL
J.
Judgment, vendor and he may sue in trover, and thus disaffirm the
MacMahon, contract Until disaffirmance the person having posses-
sion and property in the goods may part with them for
valuable consideration when the election of the vendor to
disaffirm will be too late.
There was an absolute sale in the present case and in-
tention on the part of the plaintiff to part with the posses-
sion and property in the flour, &c., forming the subject
matter of the contract. But what was contended by Dr.
Smy the for the plaintiff was, that the wilfully withhold-
ing by the defendant of his intention to pay for the flour
by setting up the claim of Johnston & Barclay against
the purchase money, was such a fraud as entitled the plain-
tiff to disaffirm the contract, and replevy the flour, dting
for this Fair v. Mclver, 16 East 130.
That was a case where third persons holding the accept-
ance of a trader, who was known to be in bad circumstances,
agreed with the defendants, as a mode of covering the
amount of the bill, that it should be indorsed to them, and
that they should purchase goods of the trader which were
to be paid for by note at three months (before which time
the trader's acceptance would be due) without communicat-
ing to the trader that they were the holders of the accept-
ance. The trader having become bankrupt, in an action
by his assignee to recover the value of the goods sold and
delivered to the defendants, it was held that as the debt
claimed to be due by the bankrupt to the defendant
was due to the latter not for his own benefit, but as trustee
for another, the right of set-off did not exist. To allow a
set-off under the circumstances would be against the policy
of the bankrupt laws, as permitting a fraud upon the
other creditors of the bankrupt. To the like effect is
Lackington v. Comhcf^, 6 Bing. N. C. 71.
Eland v. Karr, 1 East 375, was an action of assumpsit
for goods sold and delivered, to which defendant pleaded
a set-off of more money due to him from the plaintifi.
Replication that the goods were agreed to be paid for in
ready money ; which was holden bad on demurrer being
Digitized byVjOOQlC
:XIX.] BAKER V. FISHER. 653
no answer to the plea. The Court decided that as at the Judgmeot.
time of the commen^^ement of ike plaintiff's action there MacMahon,
was a debt due from the plaintiff to the defendant, the •^•
latter was entitled under the statute 2 Qeo, IL to set it off.
The judgment in Eland v. Karr, 1 East 375, was followed
in Mayer v. Nia^, 1 Bing. 311, where the defendant who had
ordered goods for ready money, paid for them by returning
to the vendor's agent a bill accepted by the vendor which
had been due and dishonoured before the goods were
ordered ; the agent at first refused to take the bill, but
ultimately carried it home to the creditor, who retained it.
The vendor having become bankrupt, his assignee brought
an action to recover the value of the goods. It was held
that the transaction was equivalent to payment, no fraud
being established : which must mean that it was not
established that the purchase was made with knowledge
of the vendor s bad circumstances, and with the design of
obtaining a fraudulent preference over the other creditors
of the vendor, as was the case in Fair v. M elver.
In the case in hand, there was merely the price fixed at
which the plaintiff agreed to sell, and defendant to buy, one
hundred bags of flour ; no time being mentioned for pay-
ment. It is true that after twenty-four bags had been
delivered the plaintiff desired to obtain payment for that
quantity, which the defendant refused ; and upon the
whole quantity being delivered wanted the defendant's note
at five days for the agreement.
The plaintiffs had prior to the transaction in question
other dealings in which the defendant purchased on short
terms of credit, and in the present instance the plaintiff
was willing to accept, and urged the defendant to give
his promissory note for the amount of the purchase,
shewing he was willing to extend to the defendant at least
a short term of credit for payment of the purchase. After
thus negotiating and dealing, it would be overturning all
rules regarding contracts between vendor and purchaser,
to hold that there was such fraud that the plaintiff could
elect to disaffirm the contract and replevy the goods.
Digitized byVjOOQlC
664 THE ONTARIO REPORTS. [VOL.
Jndgment. It may be that the defendant has no legal right to sefc-
MacMahoD, off the claim or chose in action said to have been assigned
^' to him by Johnston & Barclay. If he purchased it, it
was subject to all the equities attaching to it in the hands
of the assignors.
That, however, is not a matter we are called upon to
deal with in the present motion.
There being — as found by the learned Chief Justice who
tried this case — ^no fraud, the plaintiff's motion must be
dismissed with costs.
Galt, C. J., concurred
Digitized by VjOOQIC
XIX.] LAWSON V. ALLISTON. 655
[COMMON PLEAS DIVISION.]
Lawson V. Aluston.
Mumcipal corpardtions— Obstruction on highway— Digging well under B,
8. O. eh, 184y sec, 4^9, subs, 4^ — Negligence — Contributory negligence
The defendants, for the purpose of sinking a well in one of the public
streets of the village, to procure water for public purposes, under the
power conferred by sec. 489 of the Municipal Act, had erected a derrick
in the said street without placing a hoarding round it. The plaintiff had
driven into the village past the derrick without its appearing to affect
the horse, the derrick not then being at work, but on attemptiug to
pass it on her way home, while the derrick was at work and making an
unusual noise, the horse took fright and ran away, the plaintiff being
thrown out of the carriage, and severely injured. The jury found that
the derrick was of a nature to frighten horses, and that the defendants
had not taken proper precautious to guard against accidents, and that
there was no contributory negligence on the plaintiff's part : —
Held, that the defendants were liable for the injury sustained by the
plaintiff.
This was an action brought by the plaintiff to recover statement,
damages against the defendants, the municipal corporation
of the village of AUiston, for an accident sustained by the
plaintiff by reason of a horse she was driving taking
fright at a derrick erected in one of the streets of the
village for drilling a well for supplying water for the use
of the village.
The evidence, so far as material, is set out in the judg-
ment of MacMahon, J.
The action was tried before Dean, J., Judge of the
County Court of Victoria, sitting for Rose, J., and a
jury, at Barrie, at the Spring Assizes of 1890.
The jury found for the plaintiff with $1,500 damages,
and judgment was entered in her favour.
The defendants moved on notice to set aside plaintiff 's
judgment and to enter judgment for them, or for a new
trial, or to reduce the amount of the verdict.
In Easter Sittings of the Divisional Court, (composed of
Galt,C. J., and MacMahon, J.), June 4, 1890, Lount, Q.C.,
supported the motion. The defendants were rightfully on
83 — VOL. XIX. O.K.
Digitized by VjOOQIC
656 THE ONTARIO REPORTS. [VOL.
Argument, the highway doing work in the way ordinarily done for
sinking wells of that kind, the work being done in the
discharge of their duty, and for the benefit of the public,
the well being sunk, and the machinery erected, for the
purpose of obtaining a supply of water for fire protection.
There was a sufficient part of the road left for the use of
the public to travel on. To enable the plaintiff to succeed
she should have shewn that there was negligence on the
defendants' part, which she failed to do. The plaintiff
moreover was guilty of contributory negligence. She
knew of the derrick, in fact could only have avoided seeing
it by shutting her eyes, and that it was of such a nature as
would frighten a horse, and yet with such knowledge, she
drove the horse, a spirited one, one which would likely take
fright ab such an object, past it ; whereas she could have
avoided it by driving along another road; and further,
she was warned not to drive past it, but persisted in doing
so; and also the evidence shews she was incapable of
managing the horse : Jones v. Orand Trunk R. W, Co., 16
A. R. 47 ; Hovje v. Hamilton and North Western R.W, Co.,
3 A. R. 336 ; Vara v. Orand Trunk R, W. Co,, 23 C. P.
143.
J. A, McCarthy, contra. There was clearly evidence
of negligence to go to the jury. It is not denied that
the defendants were lawfully on the highway, but what
the plaintiff claims is that they should have exer-
eised care so as to guard against accidents. This could
have been done either by closing up the street, putting up
a hoarding around the derrick, or putting up a notice
warning the public of the existence of the derrick. There
W€LS no evidence of contributory negligence on the plain-
tiff's part. The horse was a gentle one, and one which a
lady could drive without any risk. The accident was
not caused by the appearance of the derrick but in
the working of it. The plaintiff had driven past the
derrick in the forenoon without the horse being in the
least frightened by it, and it was when driving home,
while the machine was working, that the accident hap-
Digitized byVjOOQlC
XIX.] LAWSON V. ALLISTON. 657
pened. The plaintiff had no reason to think that this Argument.
would cause the horse to take fright, and as she only dis-
covered the fact as she was driving past, she had no means
of avoiding the happening of the accident : Maw v. Tovm-
shvpa of King and Albion, 8 A. R. 248 ; Oordon v. City of
Bdleville, 15 0. R 26 ; Smith on Negligence, Black ed.,
sec. 6 ; Shearman and Rediield on Negligence, 2nd ed.,
sec. 366 ; Rounds v. Corporation of Stratford, 26 C. P. 11.
June 27, 1890. MacMahon, J. : —
The defendants, the municipal corporation of the village
of AUiston were, under the provisions of sec. 489, sub-sec.
42, R S. 0. ch. 184, causing an Artesian well to be drilled
and put down on the comer of one of the principal streets
in the village, as a public well, and had contracted with
one Hobson, who had sunk a number of such wells, for
putting down the same.
From the evidence at the trial, it is difficult to describe
the machine for drilling, and the manner of its working ;
but from a photograph produced, and the explanation of
<K>unsel during the argument, I gather that the machine
consists of a derrick about twenty-eight feet high, to the
top of which a large hammer is raised by means of a wind-
lass worked by horse power, and it is through the hammer
dropping on the drill that the boring is carried on.
There is a side-walk ten or twelve feet wide on the
street in front of an hotel called the " Revere House " and
a few feet from the walk the excavation for the well had
been made, the surface earth from the excavation being
thrown towards the middle of the street, so that making
an allowance for the side- walk on the opposite side of the
street, would leave about thirty-five feet of unobstructed
roadway for public travel.
The plaintiff and Miss Loblow had driven into AUiston
in the morning and had passed the drilling machine
which was not then working, and no notice of the machine
was taken by Miss Loblow, who was driving, nor by the
horse so far as the occupants of the vehicle could discern.
Digitized byVjOOQlC
658 THE ONTAIIIO REPORTS. [vOL.
Judgment. After being in the village for a few hours shopping
M*cMahon, they were returning home, and Miss Loblow and the
^' plaintiff were in the buggy, in front of a baker's shop, pro-
mising to remain there for a Mrs. Hip well who intended
making some purchases at the baker's and then purpased
driving out with them. At this time the drilling machine
was working, and it looked, according to plaintiff's evidence^
so frightful, and made such a noise that she urged Miss
Loblow to drive on at once and pass the machinery, so
that the horse should not continue to see it while waitingfor
Mrs. Hipwoll. Miss Loblow started the horse, which was
then about 150 feet from the machine, and when nearly
opposite the machine the horse shied, and becoming
unmanageable bolted to the side of the street opposite to
that upon which the machine was erected, overturned the
bugijy into the ditch, and injured the plaintiffs ankle so
seriously that for many months she was unable to use her
foot.
One of the principal grounds urged by the defendants
and upon which they rely as entitling them to judgment
is, that they were acting in the discharge of their duties as
a corporate body in sinking the well for public purposes,
the well being sunk and machineiy erected to obtain a
supply of water for fire protection for the village, and that
the evidence shews there was a sufficient portion of the
roadway left open for travelling purposes, and the case of
Hotve V. Hamilton and North Western R, W. Co.,
3 A. K 3*S6, was cited as shewing that where the corpor-
ation having the machinery rightfully in the highway
were using it in the way ordinarily used for sinking wells
of that kind, there was no evidence of negligence which
should have been submitted to the jury.
In Ho 'e V. Hamilton and North Western R. W. Go.^,
the corporation of the city of Hamilton had under R. S. 0.
(1877) ch. 165, sec. 21, allowed the defendants to run their
railway along Ferguson Avenue in that city, and Howe
who was driving along Barton street, which crossed
Ferguson avenue on a level, found a freight train across
Digitized byVjOOQlC
XIX.] LAWSON V. ALLISTON. 659
the street facing southward, and stopped his horse about Judgment.
150 feet from it. A pilot engine came down to assist the MacMahon,
train up grade to the south, but, the pilot being in want '^'
of firewood the train moved to the north to allow the pilot
engine to go to the woodshed which was situated to the
north of Barton street. The train had moved only to the
other side of Barton street about fifteen or twenty feet
when Howe attempted to cross, but the horse shied at the
pilot engine which had remained stationary and Howe
was thrown out and injured.
In the judgment of Burton. J., at p. 341-2, he discusses
the legal position of a corporation having the right by
Legislative authority to use the highway in relation to the
rights of the general travelling public, as follows: *'And
they " (the railway company) " are bound so to use the privi-
lege as not necessarily or unreasonably to interfere with
those who have also a right to use the highway, and not
to leave their locomotive or cars, when not in use for the
actual working of the railway, upon thehighway ; but the
Legislature having authorized the company to construct
their railway upon the public streets without imposing
upon them any express restrictions, or requiring any pre-
cautions against danger, must be held to have intended
that persons who have to use the streets so used and
crossed, should take the risk incident to that state of things,
and we must be careful not to render the privilege accorded
to them by the Legislature valueless by imposing upon
them liabilities which it was not intended they should bear."
The defendants having lawful authority to use the road
for the purpose of sinking the well, and to use the
machinery necessary for that purpose, the question is : Was
it negligence on the part of the corporation in permitting
the derrick and machinery to remain on the highway
without a hoarding around the same, when the working
of a windlass and the falling of a hammer from a high
elevation created unnatural noises and produced unnatural
49ights likely to frighten horses on the highway ?
Li Howe V. Hamilton and North Western R. W. Co., as
Digitized byVjOOQlC
660 THE ONTARIO REPORTS. [VOI..
Judgment, stated in the judgment of Burton, J., at p. 312, there ^as-
MacMahon, ^^ complaint "that the company has exhibited any want
J* of care or skill in the running of its trains, or in the
management of its locomotives, as by blowing off steam
and thereby frightening the plaintiff" Howe's " horse, but
by negligently and improperly leaving a locomotive upon
the street when not in use." And the Court held, that
negligence could not be imputed to the railway company
for so leaving the locomotive.
While the machine was not in motion drilling the well
it does not appear to have frightened the particular
horse behind which the plaintiff was being driven on
the day the accident occurred, because in passing into
the village it was not noticed that the horse exhibited
signs of fear or uneasiness at the mere sight of .the derrick.
It was while the machinery was in motion the horse
became restive and unmanageable.
Under the powers given by the Municipal Act, the
defendant corporation was carryinsr out that which the
Act authorized in drilling the well, and if the damage to
the plaintiff did not arise from any negligence in the use of
the machinery by which the work was being done, the
corporation should not be held liable.
The questions put by the learned trial Judge to the
jury and their answers thereto areas follows :
" 1st. Did the plaintiff act as a reasonable, careful person
would do in driving past the machinery ? Yes."
" 2nd. Was the machinery such as a reasonable man
might expect would frighten horses ? Yes."
'* 3rd. If it was : — Did the defendants take such means
as reasonable, careful men would take to prevent horses-
being frightened ? No."
In Wharton on Negligence, section 836, it is said : " We
have already when treating of casual connection, noticed
that it is one of the incidents of the employment of horses
on a highway that they should be frightened by extra-
ordinary sights and sounds. Those who negligently and
unnecessarily therefore place on a highway instruments
Digitized byVjOOQlC
XIX,] LAWSON V. ALLISTON. 661
likely to cause such alarm are liable for the consequences Judgment.
if damages of this kind result " ; citing Hill v. New River MacMahon,
Co., 9 B. 4; S. 303 ; Jiidd v. Fargo, 107 Mass. 261 ; Jones J-
V. Hcmaatonic R W. Co., 107 Mass. 261.
The statement contained in the special case in Hill v.
Neiv River Co., 9 B. & S. 303, is as follows : The New River
Company in the exercise of the powers given them by the
Act incorporating the company, caused a stream of water
to spout up on a public highway to a height of about four
feet from the level of the road in a place within the limits
of the said Act. The jet of water was left open and
unf enced and was likely to afiright horses driven along
the road. Whilst the plaintiflTs carriage was being driven
along the highway between the spouting stream and the
ditch, the plaintiff's horses seeing the spouting stream were
frightened by it, and swerving aside fell into the ditch, and
the carriage and horses thereby suffered damage.
Mellor, J., gave the judgment of the Court, saying, at
p. 305, there is no authority on the point reached by this
case, but he thought the action was rightly brought against
the New River Companjr since the spouting water was
really the efficient cause, the causa causans of the accident ;
that but for the negligence of the defendants, the accident
would not have happened, and that which they did may
fairly be termed the proximate cause of the injury to the
plaintiff.
Lush and Hannen, JJ., concurred.
In Jones v. Housatonic R. W. Go,, 107 Mass. 261, the
defendants were held liable for injuries sustained by a
traveller driving a horse upon a highway with due care,
through a fright of the horse occasioned by a derrick
which the corporation maintained, projecting over the high-
way so as naturally to frighten passing animals, although
it was maintained for the purpose of loading and unloading
freight on the cars.
Upon the ground of plaintiff's contributory negligence,
numerous reasons are assigned by the defendants as dis-
entitling her to recover, the principal reasons being : That
Digitized byVjOOQlC
662 THE ONTARIO REPORTS. [VOL.
Judgment, she knew of the location of the machinery yet took the
MacMahon, ^isk of driving past; that she could have avoided the
'^' accident by driving along other streets ; th&t she was
warned not to ride past the machine but persisted in so
doing and assumed the risk ; that the evidence shews tibe
driver was incapable of controlling the horse.
Miss Loblow who was driving the horse, it is urged by
the defendants, should not have attempted to pass the
machine if she was driving a horse she knew or supposed
she was incapable of controlling ; that is a horse known as
not being a road -worthy horse, a horse easily frightened,
and when frightened difficult to control, and requiring the
strong arm and the vigilance and experience of a man
fiw^customed to driving horses where there were unusual
gatherings of people, to be able to successfully control an
animal in passing a machine or obstacle of that character
in the street.
The evidence relied upon by the defendants in support
of the plaintiff's contributory negligence is that of William
Loblow, the owner of the horse in question, who said at
the trial :
" Q. Yoa own this horse the young ladies were driving ? A. I do.
Q. How long have yoa had him ? A. About eighteen montha.
Q. At that time ? A. No, about eleven months.
Q. What age was the horse? A. About ten years old.
Q. Used to driving in single harness ? A. Yes.
Q. And did you know the horse was taken out that day ? A« I was not
aware until after the accident.
Q. Your sister told us that she had never driven the horse alone before.
Did you give any leave to take the horse ? A. I lent the horse to my
brother the day before.
Q. But not to your sister ? A. No.
Q. Was the horse a horse for the sister to drive in that place? A
Well, I think she was.
Q. A gentle horse ? A. Yes, gentle.
Q. Quite a safe horse to drive past this ? A« I would not say she was
a safe horse to drive past that.
Q. You would not consider the horse a horse for your aiater to drive
past that place ? A« Ko.
Q. And your sister would not reaUy have driven that horse by you
permission if you had known it? A. She would, but not past that
machinery.*'
Digitized byVjOOQlC
XIX.] LAWSON V. ALLISTON.
Mrs. Hipwell who owned the horse for five years prior Judgment,
to Loblow purchasing him, says she drove the horse more MacMahon,
or less during her ownership, and that the horse was a fit ^'
horse for a lady to drive and had been driven by her
niece for considerable distances without a bit being in its
mouth.
The question of the contributory negligence was fairly
left to the jury who found that the plaintiff did not act
unreasonably, i,e., she acted reasonably in driving past the
machine.
It is no defence to the plaintifi's action that there was
another available road which the plaintiff could, if she had
chosen, have taken : Wharton on Negligence, 2nd ed., sec.
997, and cases there cited
While agreeing that the plaintiff is entitled to recover,
we consider the damages awarded as altogether excessive
in view of the injury the plaintiff has sustained which was
the spraining of her ankle, no doubt causing some pain for
a time and disabling her from employment for at least
eighteen months. She was during the period of her last
employment receiving $30 per month out of which she
paid her board. After the accident the doctor's bill was
for merely a nominal sum — a few dollars — and at the time
of the trial, seven months after being injured, she was
walking, about with the aid of a cane.
If the plaintiff consents to reducing the damages to $700
the motion will be dismissed with costs, including the
oosts of this motion ; and. if not, then there will be a new
► trial at the risk to her of the costs of the new trial in the
event of her not recovering a sum in excess of $700. The
plaintiff to have fifteen days in which to make her election.
Galt, C. J., concurred.
84 — VOL. XIX. O.R.
Digitized by VjOOQIC
664 THE ONTARIO REPORTS. [TOU
COMMON PLEAS DIVISION.]
Regina V. Lynch.
Justice of the peaee—Ahaenee of police magiHrate^Trial of offence wnder
B.S.C. ch, 157 — Alternative puniehment — Imprisonment for more than
3 months— B.S.C. ch, 178,
By sab-s. 2, of sec. 8 of the R.S.C. ch. 157, any looee, idle, or diaorderly
person, or vammt, shall upon summary conviction before two jnstices
of the peace be deemed foilty of a misdemeanour, and liable to a fine
not exceeding $50, or to imprisonment not exceeding six months, or to
both. By sec. 62 of B.S.C. ch. 178 the justices are authorized to issue
a distress warrant for enforcing payment of a fine ; and, if iasaed, to
detain the defendant in custody, under sec. 62, until its return ; and!, il
the return is *' not sufficient distress," then to imprison for three months.
Two justices of the peace for the city of Toronto, in the absence of the
police magistrate for the said city, convicted the defendant for an
offence under said Act, and imposed a fine of ^50, and, in default of pay-
ment forthwith, directed imprisonment for six months unless the fine
were sooner paid : —
Held, that under the said sub-sec. the justices had jurisdiction to adjudi-
cate in the matter ; and that it was not necessary to consider the effect
of an agreement entered into between the police magistrate and one of
the justices to assist him in the trial of offences : —
JETeld, also that the conviction was bad, for under B.S.C. ch. 157 there wai
no power to award imprisonment as an alternative remedy for non-pay-
ment of the fine ; while under R.S.C. ch. 178, imprisonment could only
be awarded after a distress has been directed and default therein ; and
furthermore the imprisonment in such case could only be for three months.
Statement A writ of habeas coi'Tpus was obtained on behalf of the
prisoner who was confined in the common gaol ajb Toronto,
(but whose presence on the return of the writ was dispensed
with), on a conviction made against him by John Baxter
and Robert J. Fleming, two justices of the peace for the
city of Toronto, for vagrancy.
A writ of certiorari was granted in aid of the AoJow
corjfua.
Upon the return of the writs an order niai was obtained
to quash the conviction and to discharge the prisoner from
custody, upon the grounds :
1. That the magistrate had no jurisdiction, as John
Baxter, one of the convicting justices, had no right to sit
as he was acting in his business capacity as a justice of the
peace under an agreement for remuneration for his services,.
Digitized byVjOOQlC
XIX.] BEOINA V. LYNCH. 665^
received through the police magistrate of the city of Statement.
Toronto.
2. That several offences were included in one conviction*
And 3, that the 2nd sub-sec. of sec. 8 of R. S. C. ch
157, under which the conviction took place, only authorizes
the convicting justices to impose a fine not exceeding {50,
or imprisonment without hard labour for any term not
exceeding six months, or to both ; whereas the conviction
imposed a fine of $50, and if said sum was not paid forth-
with the defendant was ordered to be imprisoned in the
common gaol at Toronto without any previous award of
distress, for the space of six months, unless the same
should be sooner paid.
The conviction was that " John Baxter and R. J. Fleming
two justices of the peace for the city of Toronto acting in
the absence of and at the request of George Taylor Denison
Esquire, police magistrate in and for the city of Toronto,
for that he the said James Lynch is a person, who not
having visible means of maintaining himself, lives without
employment, and thus is a loose, idle, and disorderly per-
son and vagrant, within the Act respecting offences against
public morals and public convenience,'' and a fine of $50
was imposed, and, in default of payment forthwith, directed
the said James Lynch to be imprisoned in the common
gaol, and there kept for the space of six months unless the
said sum should be sooner paid.
On the 15th January, 1890, the police magistrate,.
George Taylor Denison, wrote to John Baxter the follow-
ing letter:
Under the statute, as you are aware, a justice can act for me at my
request in aU matters within the jurisdiction of a justice of the peaces
The city council have placed at my disposal $760 per annum to pay for
such assistance as I may require to aid me with minor cases. I wish to-
know whether you would accept this sum of $750 per annum and act at
my request to try cases within your power as a justice of the peace. The
remuneration I know is small, but the amount of work imposed on you
will be light. One or two hours in the afternoon should usuaUy suffice
and give me more time for serious cases, it being understood that when a
rush of work came on we should both work at high pressure in order to
prevent such a state of affiurs as we saw last summer, when for months the
Digitized byVjOOQlC
666 THE ONTARIO REPORTS. [VOL
Statement, congestion of business was such as to canse great hardship to smtots in
the Ck)art.
If you decide to accept this it will be necessary, as yon will readily
perceive, for you to resign from the council, as the pay will come through
me but from it. I should like you to be ready to commence work by 1st
February.
Please let me know your decision in the matter as soon as possible."
To this John Baxter replied :
'* I have received your letter, and, having considered the matter care-
fully, have decided to accept the offer you have made me."
At the time the proceedings in this case were taken and
conviction made the police magistrate was absent) in
England.
In Easter Sittings of the Divisional Court, (composed of
Gat.t, C. J., and MacMahon, J.) June 2, 1890, DuVemd
supported the order. The convicting magistrate, John
Baxter, had no jurisdiction to trj'^ the offence. Section 6
of the Act respecting police magistrates, R S. 0. ch. 72,
provides that no justice of the peace shall " act in any
case for a town or city where there is a police magistrate,
except * * in the case of the illness, absence, or at the
request of the police magistrate." The magistrate here
did not come within any of the exceptions. His appoint-
ment was not merely to sit during the illness or absence
of the police magistrate, but to assist the magistrate in
disposing of business even though he might be present,
and the meaning of '' request'' is, that there must be a request
in each case and not a general request to act for him as
here. The contract entered into between the police magis-
trate and the justice of the peace was illegal as the police
magistrate had no power to appoint an assistant police
magistrate, which is what the contract here amounted to;
and also the appointment amounted to a sale of an office,
and was therefore void as opposed to public policy as well
as to the statute of 5 & 6 Edw. VI., Megina v. Mercer, 17
XJ. C. R. 602. [The Court were of ophiion that the justice of
the peace had jurisdiction to act in this particular case. It
was one in which two magistrates had jurisdiction under
Digitized byVjOOQlC
XIX.] REGINA V. LYNCH. 667
sec. 8, sub-sec. 2 of the R. S. C. ch. 157. The Court Argument,
expressed no opinion as to the legality of the eon-
tract entered into between the police magistrate and the
magistrate John Baxter]. Then as to the conviction itself.
It is for more than one offence : Regina v. Gravelle, 10 O. R.
735 ; Regina v. Spain, 18 O. R. 583. [The Court were of
opinion that it was only for one offence, and overruled this
objection.] The last objection is clearly fatal to the con-
viction as there is no power to award imprisonment as an
alternative remedy for non-payment of the fine ; and more-
over imprisonment can only be for three months : Regina
V. Walker, 7 O. R. 186 ; Regina v. Bell, 13 C. L. J. N. S.
200 ; Regina v. Mackenzie, 6 O. R. 165. Evidence was
also improperly admitted of a previous conviction. The
conviction should have been proved : Regina v. Organ, 11
P. R 479.
D-ymond, for the Attorney-General, contra. The only
objections left to be answered are the third and fourth,
namely, as to the alternative of punishment by imprison-
ment, and as to the admission of the prior conviction.
If the Act authorizes a fine to be imposed, or imprisonment,
or both, certainly the imprisonment can be awarded in the
alternative, as this would be for the benefit of the defen-
dant. The evidence of the former conviction was properly
admitted.
Gurry, for the magistrate, relied on the arguments put
forth on behalf of the Attorney-General.
June 27, 1890. MacMahon, J. : —
During the argument we disposed of the first and second
grounds, holding they were untenable, for the reasons
then stated.
As to the third ground. By the sub-section referred to
(sub-sec. 2 of sec. 8) the magistrates have a wide discretion
in inflicting a penalty upon conviction. They may fine
only ; or they may award imprisonment ; or they may
fine and imprison. But if there is the imposition by the
Digitized by VjOOQIC
<68 THE ONTARIO REPORTS. [VOL
Judgment, magistrates of a fine only by way of penalty, the authority
MacMabon, of the justices does not extend to enable them to award
'^^ alternatively, that for non-payment of the fine, the defen-
dant should be imprisoned.
There being by the Act under which the defendant was
convicted no mode of raising or levying the penalty the
justices are authorized by R. S. C. ch. 178, sec. 62 to issue
a distress warrant for the purpose of enforcing the same ;
and it is only after default of distress where a fine only is
inflicted that imprisonment can be awarded : Begina v.
Walker. 7 O. R. 186.
By sec. 65 of the above Act where a justice issues a dis-
tress warrant he may order the defendant to be detained
in custody until the return of the warrant of distress.
Where the necessity exists for issuing a distress warrant
under sec 62, if the warrant is returned that no sufficient
distress can be found, then under sec. 67 of the same Act
the longest term of imprisonment for which the justices
can commit a defendant is the period of three months.
The conviction in this case is therefore also bad upon
the ground that the imprisonment awarded thereby is
excessive.
In Regina v. Belly 13 C. L. J. N. S. 200, a conviction
for keeping a house of ill-fame, founded upon the same sec-
tion of tlie Act as the conviction I am now considering, and
where as in this case the justices imposed a fine, and
directed imprisonment in default of payment, was by
Harrison, C. J., held bad. See also in Re Slater and FeK«,
9 U. C. L. J. 21.
In Regina v. Mackenzie, 6 0. R. 165, a conviction under
the Indian Act, of 1880, (now R. S. C. ch. 43, sec 94) for
giving intoxicating liquor to an Indian, imposed a fine and
costs, and in default of immediate payment, imprisonment.
Section 94 of that Act provides as punishment for the
offence, imprisonment, or fine, or fine and imprisonment;
and the conviction was therefore held bad by Mr. Justice
Rose as the Act does not authorize a fine, and in default
of payment, imprisonment.
Digitized byVjOOQlC
XIX.] ABELL v. MORRISON. 669
On the third ground of objection taken, the conviction of Judgment
the defendant is clearly bad, and must be quashed without MacMahon,
'Costs, and the defendant discharged from custody. *'*
There will be the usual order for protection to the
magistrate and officers.
Galt, C. J., concurred.
[CHANCERY DIVISION.]
Abell V. Morrison.
RegUtry A ct —A eiual notice — Imputed notiee-^Rditf on ground of mistake
—Subrogation--R. S. 0. 1887, ch. 114, «cc. 80,
The plaintiff registered a lien against certain lands. On the day
before such registration the defendant, an intending purchaser, had
searched the registry and found only two incumbrances registered
against the property. Shortly after the defendant completed his pur-
chase, and having paid off the two incumbrances^ registered discharges
thereof with his deed of purchase, but as he did not make a further
search, he did not discover the plaintiff's lien : —
i7e/(f, affirming the decision of Faiconbridge, J., that the defendant was
entitled to stand in the place of the incumbrancers whom he had paid
off, and to priority over the plaintiff's lien.
The Registry Act does not preclude inquiry as to whether there was
knowledge in fact ; and the Court was not compelled as a conclusion of
law to say that the defendant had notice of what he was doing, and so
could not plead mistake.
Broum ▼. McLean, 18 0. R. 533, specially considered.
This was an action brought to enforce a lien upon land Statement.
under the following circumstances :
The defendant George Morrison, intending to purchase
some lands of Margaret Morrison, his sister-in-law, searched
the registry office on December 18th, 1887, and found that
the only incumbrances registered against the land were
two mortgages.
On December 19th, 1887, the plaintiff who had sold an
engine to the husband of Margaret Morrison under a con-
tract giving him a lien on the latter's lands, and also a lien
upon the lands of Margaret Morrison, registered his lien
against the lands in question.
Digitized byVjOOQlC
670 THE ONTARIO REPORTS. [vOL.
Statement On December 24th, 1887, the defendant George Morrison
without again searching the registry, paid off the prior
mortgages out of money borrowed by him on a fresh mort-
gage of the lands, and accepted a deed of conveyance to
himself, thus carrying out his purchase ; and on the follow-
ing day he registered the two discharges and his deed, and
his subsequent mortgage.
The plaintiff now brought this action against Margaret
Morrison, and her husband, and George Morrison, claiming
that the effect, of discharging the two prior moitgages was
to let in his subsequent lien, which he now sought to
enforce against the lands.
George Morrison defended the action denying that at
the time of the sale to him of the lands in question he had
any knowledge of the transaction between the plaintiff
and his co-defendants, and claimed a declaration that the
plaintiff stood in no better position than he did at the time
when his (the plaintiff's) agreement with Margaret Morrison
and her husband was registered, and that he was entitled
to stand in the position of the encumbrancers whose claima
he paid &s between himself and the plaintiff, and entitled
to all the priorities of the said encumbrancers.
The action was tried on November 30th, 1889, at To-
ronto, before Falconbridge, J.
Z, Lash, Q.C., and Lav^on, for the plaintiff.
McKay, for the defendant.
May 30th, 1890. Fal(X)Nbridge, J. : —
I find the issue joined on the amended statement of
defence in favour of the plaintiff.
The principal contest was as to George Morrison's claim
to be subrogated to the rights of the encumbrancers whose
claims he paid.
I find as a fact that at the time of the sale and convey-
ance to him he had no notice or knowledge of the agree-
Digitized byVjOOQlC
XIX.] ABELL V. MORRISON. 671
ment between the plaintiff and the other defendants. 1 find Judgment.
that he paid his money and discharged the prior mortgages FalcoDbndge,
under the mistaken belief that he was getting a good title '^•
in fee simple unencumbered, and to adopt the language of
my brother Street in Brown v. McLean, 18 O. R. 533,
" that he is not disentitled to relief by reason of the fact
that by using ordinary care" (in this case by a subsequent
search in the Registry office) " he might have discovered
the defendant's execution, because the defendant has not
been in any way prejudiced by the mistake."
The defendant is entitled to a declaration tliat he is
entitled as between the plaintiff and himself to stand in the
position of the encumbrancers whose claims he paid.
I refer to Brown v. McLeav, and cases there cited, and
to Hammond v. Barker y 61 N. H. 53 ; Smith v. Dins moor j
119 111. 656. The Revised Statute of Illinois 1889, is
similar to ours, p. 342, sec. 30 : Young v. Morgan, 89 111.
199 ; Fisher v. Spohn, 4 C. L. T. 446.
If I had been obliged to hold that the plaintiff was
entitled to priority, I would have endeavored to give effect
to the counter-claim by treating the money paid by the
defendant as paid for the plaintiff's use under a mistake
of facts.
The defendant will have his costs of defence and counter-
claim, and the plaintiff will have costs of the issue found in
his favour.
The plaintiff now moved before the Divisional Court by
way of appeal from the above judgment.
The motion came on for argument on June 21st, 1890,
before Boyd, C, and Robertson, J.
Langton, Q.C., for the plaintiff [after stating the facts.]
[Boyd, C— Was not the case of The Tvust and Loan
Co, V. Cuthbert, ]3 Gr. 412, one of the same kind ?]
I submit not. The intention of the parties is manifest
from the documents.
85— VOL. XIX. O.R.
Digitized by VjOOQIC
672 THE ONTARIO REPORTS. [VOL.
Argument. [BoYD, C. — George Morrison does not, as he might have
done, have the mortgages assigned to him.]
We say what was done was done according to their in-
tention. Our rights are as they were left by the act of
George Morrison. The money was Margaret Morrison s
purchase money.
[Boyd, C. — She couldn't have controlled the money ; put
it in her pocket and let the mortgages stand.]
Why should the person whom George Momson's
course of conduct has benefited, and who is an innocent
party, not benefit by it ? There are cases shewing he
should. Brown v. McLean, 18 0. R. 533, is the case of an
execution. Where the registration of discharges is in
the order in which they are here, the effect is to revest
the property in the mortgagor. Fisher v. Spohn, 4
C. L. T. 446, is hard to understand. The discharge was
held to increase the estate of the owner of the equity
of redemption, not that of the person who had a charge
as a judgment creditor. This is what in Brown v. McLean,
Street, J., disagreed with. In other words the discharge
which the statute makes revest an estate in a particular
person, may be moulded by the Court and made to vest
the estate in whoever the Court might think should have it.
[Boyd, C. — You can't conceive that George MoiTison
intended to give you priority.]
He would not have gone into the transaction at alL I
admit he had no actual notice, but in law he had notice.
[Boyd, C. — Cannot it be held that he had notice for all
the })uri)0ses of the Registry Act ?]
The Act is for the purpose of giving parties the priorities
they get in the registry office.. His intention was to do
what he did do, and he did it with the notice which the
Registry Act gives him of our claim. George Morrison has
his remedy under his covenant against incumbrances. That
is all he can be taken to have intended to secure for himself.
Whatever the American cases relied on by the learned
Judge show, they are not law here : Toulmin v. SU^re, 3
Mer. 210, at p. 224, is one of the earliest English cases.
Digitized byVjOOQlC
XIX.] ABELL V. MORRISON. 673
This case has been held in subsequent cases to have gone Argument
somewhat too far, but the law appears to be found in
Adams v. Angdl, 5 Ch. D. 634. In both Fisher v. Spohn,
and Brown v. McLean, the learned Judge proceeded solely
on the ground of mistake, and the cases are based on that.
In Brown v. McLean, the learned Judge relied on some cases
I rely on : I also refer to Watson v. Dowser, 28 Gr. 478. No
doubt we are not injured by the same amount remaining
ahead of us that there was before, but that is no reason why
we should not get any advantage which we properly can get.
The American cases relied on are taken from Sheldon on
Subrogation, and the passage on p. 2 shews tbey cannot be
taken as safe guides for us ; Banta v. Garmo, 1 Sandf.
(S. Y. Ch.) 383 ; WestfaU v. Hintze, 7 Abb. N. Cas. 236 ;
Sandf ord v. McLean, 3 Paige 120. These shew that it is
only when a person is in the position of a surety or some
such position as that that subrogation applies. The cases
in Illinois which will no doubt be referred to are not in
harmony with those in other States. See also Taylor v.
Oriswold, 2 Greene Ch. R. (N. Jersey) 239 ; Parry v.
Wright, 1 Sim. & Stu. 379. It is not said here that there
was any mistake as to what the parties were doing. The
mistake that there was no mortgage on the property
whereas there was one is not such that it can be relieved
against as against innocent parties. The three American
cases on which the learned Judge relies all differ in some
respects from this. In Smith v. Dinsmoor, there was
some evidence of an intention on the part of the parties
which the instruments did not carry out.
(7. Moss, Q. C.„ contra. George Morrison mortgaged other
property of his to raise money to pay off the prior mortgages.
We do not dispute that the plaintiff is entitled to the
priority which he had at the time of the payment off of
those mortgages. If the hardships are to be looked at,
there is nothing in favour of the plaintiff, who by being
left to his present position is not injured. This case is
almost on all fours with Brown v. McLean, 18 O. R. 533.
The cases cannot be fairly distinguished. It is said that
Digitized byVjOOQlC
674 THE ONTAMO REPORTS. [VOL.
Argument, l^y reason of the Registry law notice is to be imputed. But
there is no more imputed notice than there is of writs in
the sheriff's oflSce. In either case the party if affected at
all is affected in the same way. Street, J., points out that
in cases when the effect of a mistake is not to put the other
party in a prejudiced position, then the party making the
mistake is not to be held to the consequences of the mis-
take in the same way as in other cases. As to the cases
of which Tovlmin v. Steere, 3 Mer. 2] 0, and Adams v.
Angelly 5 Ch. D, 634, are instances, these are not cases of
purchases of the equity of redemption by one who was not
a prior incumbrancer, but they are instances of the effect
of the legal estate held by the mortgagee being vested in
the holder of the equity of redemption. The law, as laid
down in Toulviin v. Steere, did not apply to the owner of
an equity of redemption, and it was so held in Watts v.
Syr)ies, 1 DeG. McN. & G. at p. 244. And in Mayhew on
Merger, at p. 143, reference is made to these cases. There
can be no doubt that if the mortgages had been conveyed
to George Morrison himself, or to a trustee for him, there
could have been no contention on the part of the plaintiff
here. I submit the present position makes no difference.
In Howes v. Lee^ 17 Gr. 459, referred to bj^ Street, J., a
person was relieved, who acted very much as was done
here. In Hart v. McQuesten, 22 Gr. 133, there is a full
discussion of the whole law in regard to merger by the
acquisition by the owner of the incumbrance of the equity
of redemption, and reference is made in Barker v. EccUsy
18 Gr. 440, to the position of the subsequent incumbrancer,,
who, it is pointed out, is put in no worse position by his
mortgage not being preferred. There is no reason for sup-
posing that George Morrison had any desire to prefer this
plaintiff, and that being so, there is no reason why the plain-
tiff should be held to have any better or superior equity to
this defendant. The Illinois cases referred to by the learned
Judge, are very strong in favour of this view. I submit
that under the law of this countr3^ a person paying money
not for the benefit of the person claiming a benefit under
Digitized byVjOOQlC
XIX.] ABELL V. MORRISON'. 675
it, is to be held to have paid it only in that way: Argument.
BuchaTian v. McMiUleriy 25 Gr. 193; Smith v. Drew, 25
Gr. 188, and many other cases, lay down the same rule. A
person making a payment is not to be held as making it
for all purposes, but it may be held as made in the way
most favourable to the ends of justice.
McKay, on same side. The evidence shews that if there
was any negligence on either side, it was as much on the
plaintiff's part as on the defendants. Here it is not the
party who made the encumbrance who paid it off, as would
tippear to have been the case in the decisions cited on the
other side. The Court should find some way of preventing
the plaintiff gaining the unfair advantage he seeks.
Langton, in reply. In Howes v. Lee, 17 Gr. 459,the person
who sought to eject was the mortgagor. Equity would
not relieve him from the payment of his own encumbrance.
I don't dispute the principle of that case. If there is an
intention manifested not to discharge the mortgage that
intention will be respected. But where there is no such
intention, the merger takes place. Here there was no
intention to the contrary. I refer to Vance v. Cummings,
13 Gr. 25.
June 30th, 1890. Boyd, C. :—
The decision in Brown v. McLean, 18 O. R. 533, followed
in this case by Falconbridge, J., is one which rests on
broad grounds of equity, of which many examples are to
be found in the books. I may refer to the Trust and Loan
Co. V. Guthbert, 14 Gr. 410, where earlier cases are collected
in the note. The great weight of American authority is in
support of the judgment now in appeal as to which I may
cite Pomeroy, Equity Jurisprudence Vol. 3, sees. 1211
and 1212,and in particular a case oiCohh v. Dyer, 69 Me. 494.
Unless this case can be distinguished from that in 18 O. K,,
the judgment should be affirmed. Mr. Langton endeav-
oured to make a substantial distinction by contending that
this being a registered title it must be held that the def en-
Digitized byVjOOQlC
676 THE ONTARIO REPORTS. [VOIw
Judgment, j^j^t jjg^ a^ g^ fg^^ notice of the plaintiffs lien which wsa^
Boyd, c. registered on December 19th, 1887. The defendant searched
the register for the purpose of purchasing on the day
before, and carried out his purchase on the 21st December,
the deed being registered next day, and also the discharges
of the prior mortgages. The defendant did not mean to
give priority to this lien of which he knew nothing in fact,
and the strongest evidence of this is the fact of the
mortgages being discharged instead of being assigned to
accompany the title.
The mistake on which relief was granted in Broivn v.
McLean, arose from the failure to search for executions in
the sheriffs office. The negligence was much greater there
than here, where precaution was taken to make search, but
not at the very last moment. The fault was comparatively
venial, and if the relief was rightly administei'ed in the
earlier case, it was so here a fortiori. The Registry Act
which declares (sec. 80) that registration shall constitute
notice does not preclude enquiry as to whether there was
knowledge in fact, and the Act itself (sec. 82) makes the
distinction between actual notice and the implied or
imputed notice which in certain cases flows from registra-
tion. I do not feel compelled as a conclusion of law to say-
that this defendant had notice of what he was doing, and
so cannot plead mistake. He has proved mistake and has
brought himself within the equitable doctrine which
resuscitates the discharged mortgages for his advantage.
Judgment should in my opinion be affirmed with costs.
Robertson, J., concurred.
A H. F. L.
Digitized by VjOOQIC
XIX.] EDMONDS V. HAMILTON PROVIDENT i; LOAN SOCIETY. 677
[QUEEN'S BENCH DIVISION.]
Edmonds rt al. v. Hamilton Provident and Loan
Society.
Mortgagor and mortgagee — Application oj insurance moneys— Accelera-
tion clause in mortgage — Election not to claim whole principal— U.S. 0.
ch, 102, sec. 4i sub-«ec. S — Interest, time of comtnencement — Mortgage
account — Rectification o/mortffage — Laches — Agreement — LoccU agerU
and appraiser, powers of— Wrongful sale under power in martga^e —
Illegal distress — Measure of damages.
Upon a motion for an interim injunction the defendants filed an affidavit
and statement shewing that they had applied insurance moneys received
by them, in respect of loss by fire of buildings upon land mortgaged to
them by the plaintiffs, upon overdue instalments of principal, and an
insurance premium paid by them ; and in their statement of defence
they also stated their position in a way inconsistent with that which
they afterwards took, viz., that the insurance monev was applicable
upon the whole principal, which, by virtue of an acceleration clause in
the mortgage, had become due : —
Held, that the defendants had made their election, so far as the effect of
the default and the application of the insurance money was concerned,
not to claim the whole principal as having become due by reason of
the default; and that they must apply the insurance money, as
required by R. S. O. ch. 102, sec. 4, sub-sec. 2, upon arrears of principal
and interest.
Corham v. Kingston, 17 O. R. 432, approved and followed.
Interest can be claimed by mortgagees only from the time the money is
actually paid out by them.
Method of taking a mortgage account shewn.
Rectification of tne mortgage deed as to the time of the first payment of
principal was refused where it was sought by the mortgagors at a time
when the paymeut in any event was long past due, and the mortgacees,
without fraud, had acted upon the mortgage as executed, and without
notice of the intention of the mortgagors to have the payment fixed
for a later period ; and where also there was really no agreement
upon which to found the rectification, the defendants' local appraiser
and agent to receive applications having uo express or implied authority
to make such agreements.
For wrongful proceedings under power of sale in a mortgage, illegal dis-
tress upon cnattels, and consequent wrongs : —
Hdd, that the plaintiffs were entitled to recover more than their mere
money loss.
This action was tried at the Picton Assizes, on April 23rd, Statement.
1890, before Armour, C. J., without a jury. It was brought
for the rectification of a mortgage from the plaintiff Leonard
Edmonds, and his wife, the plaintiff Harriet Edmonds, to
the defendants, and to recover damages owing to the
plaintiff's' property having been illegally offered for sale,
and their chattels unlawfully distrained by the defendants.
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1
678 THE ONTARIO REPORTS. [VOL.
Statement. The defendants counter-claimed against these two plaintiffs
for the amount secured by the mortgage in question.
The material facts shewn were as follows : On 13th
June, 1887, the plaintiffs Leonard Edmonds and his wife
applied to the defendants, in writing, for an advance of
$3,000 upon the security of ceitain property of the wife,
situate in the township of Athol, repayable as follows : —
$100 on 1st December in each year, together with the
interest on all principal due. Applicants to have the privi-
lege of paying $100 to $500 with each payment in any
year, to reduce principal; first payment to fall due on the 1st
December, 1887. Upon the application was a notice that
the mortgage would bear date on the first day of the month
on which the application should be accepted, and that the
payments must be made in accordance with the terms of
the mortgage ; also that the mortgage deed would be reg-
istered immediately after it was executed, but that the
money would not be paid over until the title should be
approved by the solicitor.
The application came before the defendants' board of
directors on 14th June, 1887, and was indorsed by them
as follows : " Agreed to lend $2,700 for ten years at six
and-a-half per cent., repaying $100 yearly in reduction of
principal, with the privilege of paying as high as $400."
Upon this a mortgage was drawn and sent by the solici-
tors for the company to the local appraiser for the com-
pp.ny, one J. T. Brown, who had taken and forwarded the
application.
A letter dated 23rd June, 1887, was then written by
Brown to the company, in which he returned the mort-
gage to the company and asked them to correct it in some
particulars. One of the objections was that by the terms
of the mortgage as drawn (and so drawn in accordance
with the application), the first instalment of principal was
made payable on 1st December, 1887. Another objection
was that the interest was made payable half-yearly,
instead of yearly, which was not in accordance with the
terms of the application. The solicitor on June 28th,
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XIX.] EDMONDS V. HAMILTON PROVIDENT Ai LOAN SOCIETY. 679
1887, sent to Brown a new mortgage in a letter, in which Statement,
he said : " Re Edwards — I send you a new mortgage. The
terms are, interest yearly on 1st December each year ; but
the first payment of interest is to be on 1st December,
1887, and yearly thereafter; mortgagor is to pay SlOO
yearly on account of principal, and has the privilege of
paying up to 8^00; as soon as mortgage is executed,
send it to the registrar and order abstract."
The terms of the mortgage as drawn by the solicitor
were as follows : " $2,700, with interest at six and-a-half
per cent, per annum, payable yearly, and compound inter-
est as hereinafter ; the said principal sum to be paid as
follows : the whole sum then outstanding to be due and
payable on 1st July, 1897, repaying in the meantime $100
yearly in reduction thereof, with interest on all unpaid
principal in the meantime, calculated from the first day of
July, 1887, at the rate aforesaid, payable yearly on each
first day of July, till the whole principal money and inter-
est are paid ; the first of such payments of interest,
amounting to $87.75, to be paid on the first day of
December, A. D. 1887 ; together with interest at the rate
aforesaid upon all arrears of principal and interest, or
either, from the accruing of such arrears until the date
when the same are fully paid, whether said last
named date shall be before or after the expiration
of the mortgage term. Provided that in default of
the payment of any portion of the money hereby secured,
the whole principal and interest hereby secured shall
"become payable. The said mortgagors covenant with the
said mortgagees that the mortgagors will insure the
buildings on the said lands in the sum of not less than
$800 currency. The mortgagors do attorn to and become
tenants at will to the mortgagees, at a rent equal in amount
to the interest hereby reserved, payable at the times men-
tioned in the above proviso: Provided that the mortgagees
may distrain for arrears of interest : Provided that the
mortgagees may distrain for arrears of instalments : Pro-
vided that the mortgagees, on default of payment for one
86 — VOL. XIX. O.K.
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680 THE ONTARIO REPORTS. [VOL.
Statement, month, may on two weeks* notice, or without any notice,
enter on and lease or sell the said lands." There were, in
addition to these, some ordinary and some special provisoes
and conditions not affecting the present question. The
mortgage was dated on 1st July, 1887. On receiving it.
Brown took it to the mortgagors, who objected again to it,
saying that they could not pay any part of the principal
during the month of July, whereupon Brown, without fur-
ther authority or consultation so far as appears, struck out
the word " July," where it is last used in the terms of pay-
ment, and inserted the word "December" in its stead. He
appeared also to have changed the figures S87.75 to
S73.12; but that alteration did not. become material.
He then forwarded the mortgage, with these alterations, to
the registr}'^ oflSice, and it was transmitted thence to the
solicitors, who made no objection to the alterations. The
company had much diflSculty in paying off the prior incum-
brances and getting a satisfactory title. They paid off a
lien held by the Waterous Engine Company on 26th Sep-
tember, 1888, which amounted to $637 10
On 20th Dec, 1887, they paid C. S. Wilson 2,025 00
costs of Wallaceburg agent 10 00
cost of mortgagees' solicitors 31 90
Making a total of 82,704 00
One of the cheques made payable to Wilson was drawn
on 27th September, 1887, for $1,200, and the other for
$825 was drawn on 8th November, 1887 ; but both re-
mained in the possession of the company's agents until
20th December, 1887.
On 19th April, 1888, the company received $48 from
the plaintiff Leonard Edmonds, and sent him a receipt
for it, with a statement as follows :
Instalment due December, 1887 $143 87
Balance charges closing loan 4 00
Interest on arrears 4 00
$151 87
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XIX.] EDMONDS V. HAMILTON PROVIDENT ib LOAN SOCIETY. 681
Less paid as above and interest allowed . . 77 26 Statement.
Balance in arrears S74 62
On 22nd June, 1888, the plaintiff sent the company a
further sum of $4, for which they sent him a receipt
and statement as follows :
Balance of instalment due December, 1887 . . $74 62
Interest in arrears 80
$75 42
Less paid as above 4 00
$71 42
On 19th November, 1888, they sent him a notice claim-
ing 873.10 as due for arrears, and notified him that unless
the amount were paid before 1st December, 1888, they
would take proceedings.
The company held an insurance upon the buildings in
accordance with the covenant in the mortgage, and in
December, 1888, some buildings were destroyed by fire.
$358 was paid by the insurance company to the defendants
in respect of this loss, on the 8th January, 1889, out of
which they deducted $33 for the premium which they had
paid ; and one of the principal questions in this action was
whether the company should apply the balance of this
insurance money upon the mortgage money generally, or
upon the principal alone, or upon the arrears of interest
as well as principal. Tt was said on the part of the plain-
tifi* that he had intended to rebuild the buildings which
had been destroyed, but had been discouraged by the com-
pany. The plaintiff' was called in reply as to this, and
stated that he told the defendants' inspector that he would
put up just as good a building as was burned if the defen-
dants would refund the insurance money, and that he
replied that it did not make any difference whether the
building were put up again or not ; that he did not want
it there. In March, 1889, the defendants gave the plain-
tiffs notice of their intention to exercise the power of sale
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682 THE ONTAKIO REPORTS. [vOL.
Statement, in their mortgage; and in May, 1889, the property was
offered for sale, but no bidders appeared. On 1st July,
1889, the defendants issued a warrant to one Buehan&n, a
bailiff, to distrain the goods of Harriet Jane Edmonds and
Leonard Edmonds upon the lands in question for $369,
being part of the arrears due upon the mortgage above
mentioned. On 2nd August, 1889, the bailiff seized some
horses, cattle, implements, and crops upon the place, most
of which were claimed by the plaintiff Leslie Edmonds, a
son of the other plaintiffs, as his property.
The plaintiffs thereupon brought this action,and obtained
ex parte an injunction to restrain the defendants from selling
the goods seized, which was afterwards dissolved, and the
goods were given up to them, upon their paying $100 into
Court to the credit of this action.
The learned Chief Justice reserved his decision, and after-
wards, on 14th May, 1890,delivered the following judgment :
" The decision of the learned Chancellor in Corkam v.
Kingston, 17 O. R. 432, is binding upon me, and I must
follow it; and following it, I find that at the time the
defendants took proceedings for the sale of the mortgaged
lands, and at the time they distrained for arrears of prin-
cipal and interest, there was nothing in arrear upon their
mortgage, either for principal or interest, and such pro-
ceedings and distress were therefore wholly illegal, wrong-
ful, and unjustifiable. And I assess the damages sustained
by the plaintiffs by reason of such illegal, wrongful,
.and unjustifiable proceedings and distress, at the sum
of $600, and I direct judgment to be entered for the
plaintifls against the defendants for that sum, with fall
costs of suit. And I direct that the defendants do pay
eto the plaintiffs the costs of and incidental to the pro-
ceedings for, and of and incidental to, the injunction here-
in ; and I direct that the money paid into Court by the
plaintiffs be paid out to them, with any accrued interest
thereon. I have not distributed the damages assessed
among the plaintiffs, but can do so if they desire it"
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XIX.] EDMONDS V. HAMILTON PROVIDENT ib LOAN SOCIETY. 683-
The defendants, at the Easter Sittings of the Divisional Argument.
Court, 1890, moved against this judgment, upon the ground
that the evidence shewed that the plaintiffs Leonard
Edmonds and Harriet, his wife, were in default at the
time of the distress ; that the mortgagees could not in
any case be compelled to apply insurance moneys in pay-
ment of arrears of interest; that the damages assessed
were excessive ; and that the defendants were entitled to
judgment against the mortgagors upon their counter-claim.
The motion was argued on 4th June, 1890, before the
Divisional Court (Falconbridge and Street, JJ.)
CreraVy Q. C, for the defendants. The whole of the
mortgage money became due when an instalment was in
default. The receipt of the insurance money could not
deprive the defendants of the right to call for the whole
of the money. If the insurance money was applied at
all, it was applied on the whole sum, and not merely on
arrears. The defendants had the right so to apply it if
they chose: Trtust and Loan Go. v. Drennan, 16 C. P.
321 ; R. S. O. ch. 102, sec. 4. But they never made any
application of the money at all, and cannot now be obliged
to apply it on the interest in arrear. In Corham v. King-
ston, 17 O. R. 432, the mortgagees received the insurance
money before anything was due upon the mortgage, and
the money had to be applied on the instalments as they
fell due. The damages awarded the plaintiffs are excessive.
There was no special damage ; no interruption in the enjoy-
ment of the property.
P. C. Macnee, for the plaintiffs. The mortgage should
be rectified according to the understanding and agreement
of the parties. Nothing was actually advanced on the
mortgage till the 20th December, 1887, and as the $100
instalments were to be paid yearly, nothing would be due
till the 20th December, 1888. The defendants did make
an application of the money. By their statement put in
on the motion for an interim injunction they shewed how
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684 THE ONTARIO REPORTS. [vOL.
Argument, they had applied the money, and gave the plamtiffs
credit for J126. When they assume to apply the money
on principal not yet due, they vary the contract I refer
to R S. O. ch. 107, sec. 5, sub-sec. 16; Con. Rule 359;
Corham v. Kingston, 17 O. R 432 ; Davidson's Precedents,
vol. 2, part 2, p. 367 ; Jones on Mortgages, 3rd ed., sees.
409, 410. " Due " means " overdue :" Am. and Eng. Cycl.
of Law, vol. 6, p. 36. On the question of appropriation
of payments, I refer to Cromwell v. Brooklyn Fire Ins,
Co., 44 N. Y. 42; Gordon v Ware Savings Bank, 115
Mass. 588 ; Colebrook on Collateral Securities, p. 132 ; 38
Albany L. J., 188 ; 21 Central L. J. 473.
Crerar, in reply, referred to Oree7i v. Heward, 21 C. P.
531 ; Austin v. Story, 10 Gr. 306.
June 27, 1890. The judgment of the Court was de-
livered by
Street, J. : —
The original written proposal of the mortgagors to the
defendants was that $100 should be paid on account of
the principal on 1st December in each year, and that the
first payment of principal should come due on 1st Decem-
ber, 1887, being nearly six months after the date of the
application. They say now that they did not intend this ;
that they intended the first payment to become due on 1st
December, 1888. Upon their objecting to the terms of the
mortgage as originally drawn, the solicitors for the defen-
dants prepared and sent to Brown, their appraiser, another,
which ])rovided in effect that the interest should be paid
annually on 1st December, commencing 1st December,
1887 ; and that the instalments of principal should become
due on 1st July in each year, commencing 1st July, 1888.
Brown took this to the mortgagors, and they again object-
ed, saying that they could not pay anything in the sum-
mer. Thereupon Brown, without further communication
with the solicitors, struck out the word " July'* and sub-
Digitized byVjOOQlC
XIX.] EDMONDS V. HAMILTON PROVIDENT A LOAN SOCIETY. 686
stituted for it the word " December," intending, I suppose, Judgment.
to effect what the moi-tgagors proposed and desired, viz., street, J.
that the first instalment of principal should not become
due until 1st December, 1888. As altered by him, however,
the result has been to make the first instalment of prin-
cipal payable on the 1st December, 1887, instead of 1st
December, 1888. In this form Brown forwarded the mort-
gage to the registry office, and in this form it remains to
the present day. The defendants appear to have accepted
the mortgage in its altered form, and to have acted upon
it ever since in that form. The mortgagors now ask to
have the mortgage reformed, so that it shall read as pro-
viding that the first payment of principal should become
due on 1st December, 1888, instead of 1st December, 1887.
I think the plaintiffs are too late in coming to ask for a
rectification of the terms of the mortgage at this late date,
in respect of a payment which, in any event, is long past
due, when the mortgagees, without fraud, have acted upon
the mortgage as executed, and without notice of the inten-
tion of the mortgagors in making the alteration. But if
the objection of laches were out of the question, 1 can
find nothing upon which to found a judgment for
rectification. It is not attempted to be shewn that the
defendants, or their solicitors, ever agreed, before the exe-
cution of tlie mortgage, to any terms but that the instal-
ments of principal should commence on 1st July, 1888 ; nor
that after the return of the mortgage to them in its
altered form, they ever assented, or were asked to assent,
to any alteration other than that shewn by the mortgage
itself as altered, viz., that the instalments of principal
should commence on 1st December, 1887, in accordance
with the terms of the proposal ; unless, therefore, it can be
shewn that Hrown, the appraiser, who agreed to the alter-
ation postponing the first payment until 1st December*
1888, had authority to make such an agreement, the very
foundation for a rectification of the writing, namely, an
agreement httween the parties, is wanting. There is no
evidence o\ any such authority on his part; the course of
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686 THE ONTARIO REPORTS. [VOL.
Judgment, business between him and the mortgagors must have
Street, J. given them to understand that he was an agent only to
receive applications, not to make agreements for the defen-
dants; the mortgagors apply through him for a loan of
$3,000 ; he forwards the application, and the company
agrees to lend only $2,700 ; they object to the terms of the
first mortgage sent for signature ; he sends it back in order
that a new one may be drawn, and then, for the first time,
he undertakes to alter it. In the absence of any evidence
of express authority on his part to make agreements to
bind the company to any particular terms of payment, 1
think it clear that he must be treated as having no implied
authority to make such agreements ; and that the alleged
verbal agreement between him and the mortgagors, which
was never in fact put into writing, and never in any way
communicated to or ratified by the defendants, should not
be treated as affecting their rights.
Taking the mortgage then for the purposes of this action
as it stands, as governing the rights of the parties, it is
necessary to calculate the amount which was overdue upon
it at the time of the seizure, in order to ascertain the actual
position of the parties at the time the insurance money
was paid, and also at the time of the seizure. The defen-
dants, in my opinion, can claim interest only from the time
the money was actually paid out by them. The account
will I think stand thus :
PRINCIPAL. IHTERKST.
Due 1st. Dec, 1887 SlOO 00
Interest on $637.10 from 26th Sep.,
1887, to 1st Dec, 1887 «7 30
Interest on S107.30 from 1st Dec,
1887, to 19th April. 1888 2 52
9 82
Cash paid 19th April, 1888 48 00
38 18 Bal. 38 18
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IIX,] EDMONDS V. HAMILTON PROVIDENT A LOAN SOCIETY. 687
PRINCIPAL. INTEREST Judgment.
Bal. prin. overdue 19th April, 1888. 61 82 Street, J.
Interest od $61.82 to 1st Dec, 1888. 2 40
Principal due 1st Dec, 1888 100 00
Interest on $2032.90 from 20th Dec,
1887, to 1st Dec, 1888 125 00
Interest on $537.10 from 1st Dec,
1887, to 1st Dec, 1888 34 91
Interest on $324.13 (being $161.82
+ $162.31) from 1st Dec, 1888,
to Jan. 8, 1889, when insurance
money paid 2 20
$161 82 $164 51
So that at the time they received the insurance mouey,
there was actually payable to them, under the terms of
their mortgage, for principal $161 82
And for interest 164 51
Total sum in arrear 8th January, 1889 $326 33
In addition to this, the defendants paid two insurance
premiums : one of $33, upon a date not shewn ; and the
other of $33.50, on 10th December, 1888, which was can-
celled for some reason in April, 1889, and a rebate of
$21.34 of the premium was allowed. Assuming both
these payments to have been made after 1st December,
1888 (and one of them certainly was), they would not be-
come repayable to the defendants, under the terms of the
Act respecting Short Forms of Mortgages, until 1st Decem-
ber, 1889, when the next instalment of interest became
due, so that both of them should not, and perhaps neither
of them should, be dedicted from the $358 insurance
money received on 8th January, 1889. In one event, the
balance left unpaid, after deducting the insurance money,
would be $1.33 ; in the other event, there would be a bal-
ance of the insurance money left in the hands of the mort-
gagees, after wiping out all the arrears. I think the onus
of proof Ueing upon the mortgagees to justify their dis-
87 — VOL. XIX. O.R.
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€88 THE ONTARIO REPORTS. [VOL
Judgment, tress, we must treat them as having not shewn that the
Straet, J. insurance moneys were insufficient to satisfy the arrears.
Upon the motion for injunction an affidavit and state-
ment were tiled on behalf of the defendants, purporting to
shew in what manner they had applied the insurance
money which they had received. In this statement they
charged the mortgagors with the overdue instalments of
principal and interest in separate columns, deducted the
insurance money from the $200 overdue principal, and
brought down a balance of $125 at the credit of the mort-
gagors in the " principal" column of the statement, and a
balance of $224 at the debit of the mortgagors in the
" interest " column, after applying the $48 and the $4 paid,
both on account of interest. They thus shew $125 in
their hands out of the insurance money which they have
not applied at all.
In the face of this statement, I do not think they can
now be allowed to say that the whole principal was over-
due b}' the terms of the mortgage, because of the default
in payment of the instalments ; and that therefore they
have the right to apply the insurance money upon the
overdue principal and distrain for the overdue interest
They have made their election, so far as the effect of the
default and the application of the insurance money is con-
cerned, not to claim the whole principal as having become
due by reason of the default. In the sixth paragraph of
their statement of defence they state again their position
in a way which is inconsistent with their present sugges-
tion that the whole principal was then due.
Under the 4th sec. of ch. 102, R S. O., *' An Act respect-
ing Mortgages of Real Estate," the rights of mortgagor
and mortgagee are in certain respects defined with regard
to the proceeds of insurances upon mortgaged buildings
which have been destroj'ed by fire. By the 1st sub-sec.
the mortgagee is entitled to require the mortgagor to apply
any insurance moneys which he has received, in rebuild-
ing ; and by the 2nd sub-sec. a mortgagee may reqture
that all money received on an insurance be applied in or
Digitized byVjOOQlC
XIX.] EDMONDS T. HAMILTON PROVIDENT ib LOAN SOCIETY. 689
towards the discharge of the money due under his mort- Judgment.
gage. Street, J.
The resulb of these two sections seems to be that when
a mortgagor receives insurance money he may be com-
pelled by the mortgagee either to rebuild with it or to
allow the mortgagee to receive it, at his option ; and that
when a mortgagee receives insurance money himself, he
has the right to apply it upon his mortgage.
In Gorham v. Kingston, 17 O. R 432, the Chancellor
has construed the 2nd sub-sec as compelling a mortgagee
who applies it on his mortgage at all, to apply it first on
overdue instalments, whether of priucipal or interest ; and
I follow that construction. The result here is that the
defendants, having received the insurance money, having
declined to devote it to replacing the buildings which were
burned, and having elected without any special stipulation
to apply it on their mortgage, must apply it as the Act
requires, viz., in payment of arrears. When so applied, it
leaves no arrears, and the proceedings under the power of
sale and by distress warrant were unauthorized and illegal.
The damages have been assessed by the learned Chief
Justice at S600. I think this is a somewhat larger sum
than I should have put them at, but I am unable to say
that it is excessive.
The mortgagors have had their farm oflFered for sale by
the defendants at public auction when there was nothing
due upon the mortgage. It is plain from the evidence
that they have been put to great worry and annoyance ;
their whole possessions have been illegally distrained;
they paid 845 for possession money, and were obliged to
raise $100 by chattel mortgage to pay into Court, to pre-
vent the sale of their chattels ; they were prevented by
the proceedings under the power of sale from putting in
some of their crops, owing to their uncertainty as to
whether they would be allowed to reap them. It is evi-
dent that these are wrongs which entitle the plaintiffs to
recover more than the mere money loss which they have
given rise to : Bayliss v. Fisher, 7 Bing. 163 ; Brewer v. Dew,
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690 THE ONTARIO REPORTS. [VOL.
Judgment, n M. & W. 625 ; D088 v. D088, 14 L. T. N. S. 646. The
StrMt, J. ^00 damages should be apportioned as follows :
To the plaintiffs Leonard Edmonds and wife*. S300
To the plaintiff Leslie Edmonds 300
$600
The motion should be dismissed with costs^ and judg-
ment should be entered for the plaintiffs as above upon
their claim with costs; and the counter-claim should be
dismissed with costs.
Digitized by VjOOQIC
ilX.] REGINA V. MENARY. 691
[QUEEN'S BENCH DIV^ISION.]
Regina V. Menart.
Vtwtice of the pe€ice— Summary convidion—" Liquor License Act" If* S, O.
ch. 194 — O fence atgainst see, 49— Arrest in lieu of summons — Remand
hy one justice only — Powers 0} justices under sec, 70— Distress warrant
— ImprisonmerU upcn non-payment qfjine and costs — Admission of no
distress —Costs of conveying to gaol — Power to amend conviction —
Evidence — Saving clause, sec. 105.
The defendant was convicted before two jastices of the peace of sellin|r
liqnor without a license, contrary to sec. 49 of the " Liquor License Act,
R. S. O. ch. 194. A conviction was drawn up and filed with the clerk
of the peace in which it was adjudged that the defendant should pay a
fino and costs, and if they were not paid forthwith, then, inasmuch as
it had been made to appear on the skdmission of the defendant that he
had no goods whereon to levy the sums imposed by distress, that he
should be imprisoned for three months unless these sums and the costs
and charges of conveying him to ffaol should be sooner paid. An
amended conviction was afterwards drawn up and filed, from which the
parts relating to distress and the costs of conveying to gaol were
omitted. A warrant of commitment directed the gaoler to receive the
defendant and imprison him for three months unless the siud several
sums and the costs of conveying him to gaol should be sooner paid.
Upon a motion to quash the convictions and warrant : —
acid, that the mode adopted for bringing the defendant before the justices
was not a ground for quashing the conviction ; and semhle, also, that it
was not improper to arrest him instead of merely summoning him : —
£[eld, also, that the fact that the defendant was remanded by only one
justice could not affect the conviction.
-Semhle, that the justices had no power under R. S. O. ch. 194, sec. 70, to
issue a distress warrant or to make the imprisonment imposed depend-
ent upon the payment of the fine and costs ; but as this objection WM
not taken by tne defendant, no effect was given to it : —
Held, also, that the justices had the right to draw up and return an
amended conviction in a proper case : —
Held, also, that if the justices were bound to issue a distress warrant, the
insertion of the words relating to the admission of the defendant that
he had no goods, was proper ; and if they had no power to issue a
distress warrant, these words were mere surplusage and did not vitiate
the convictioD : —
Held, also, that if the justices had no power to require the costs of con-
veying him to gaol to be paid by the defendant, the conviction was
amendable, as and when it was amended ; for the amendment was not
of the adjudication of punishment : —
Held, lastly, that having regard to sec. 105 of R. S. O. ch. 194, and to
the evidence before the justices, the convictions and warrant should not
be quashed.
The defendant was convicted at Brampton, in the county Statement
of Peel, of selling liquor without a license. Under a writ
of certiorari the clerk of the peace of the county returned
two convictions, the original conviction filed with him on
Digitized byVjOOQlC
692 THE ONTARIO REPORTS. [YOL.
Statement, the 9th of November, 1889, and an amended conviction
filed with him on the 18th of November, 1889. The
original conviction was as follows: *'Be it remembered
that on the 30th day of October, A.D. 1889, at the town
of Brampton, in the county of Peel, William Menary is
convicted before the undersigned two of Her Majesty's
justices of the peace in and for the said county, for that
he, the said William Menary, on the ninth day of October,
A.D. 1889, at the township of Caledon, in the county of
Peel, unlawfully did sell liquor by retail without the
license therefor by law required (not being a sale under
legal process, or for distress, or sale by assignee in insol-
vency), contrary to section 49 of the "Liquor License
Act of Ontario," Joseph Foster, inspector of licenses, being
the informant; and we adjudge the said William Menary
for his said offence to forfeit and pay the sum of fifty
dollars to be paid and applied according to law, and also
to pay to the said Joseph Foster the sum of eight dollars
and eighty cents for his costs in this behalf; and if the said
several sums be not paid forthwith [then, inasmuch as it
has now been made to appear to us, on the admission of
the said William Menary, that the said William Menary
has no goods or chattels whereon to levy the said several
sums by distress] we adjudge the said William Menary to
be imprisoned with hard labour in the common gaol for
the county of Peel, at Brampton, in the said county, and
there to be kept for the space of three months, unless the
said sums [and the costs and charges of conveying the
said William Menary to the said common gaol] shall be
sooner paid."
The amended conviction was similar to the original,
leaving out the words in brackets.
Thewarrantof commitment was also returned upon habeoB
carpus, which commanded the keeper of the said common
gaol to receive the said William Menary into his custody in
the said common gaol, there to imprison him at hard labour
for the space of three months " unless the said several sums
[and the costs of conveying him to the said common gaol,
Digitized byVjOOQlC
XIX.] REGINA V. MENART. 69S
amounting to the further sum of ] shall be sooner paid Statement.
imto you the said keeper and for so doing this shall be your
sufficient warrant."
On the 21st day of December, 1889, C. B. Jackes, for
the defendant, obtained an order nisi calling upon the
convicting justices to shew cause why the convictions of
the said William Menary and the warrant of commitment
founded on the said convictions, or one of them, should not
be quashed, on the following grounds : —
1. The arrest of the prisoner in the first instance was
illegal, and a summons should have first been issued under
the ** Liquor License Act."
2. The warrant committing the prisoner was bad, because
only signed by one magistrate.
3. Chapter 74, Revised Statutes of Ontario, sec. 1, is
uUra vires because it seeks to apply the criminal law of
Canada for the enforcement of a provincial statute.
4. Even if the said statute were m^ra vires, it could not
apply until '' a penalty or punishment is imposed " ; none
such was imposed in this case until after conviction, and
the Dominion Statute could not be used before.
5. Sec. 103 of the "Liquor License Act" does not incorpo-
rate the Dominion Act, the " Summary Convictions Act,"
but only refers to the forms therein as guides.
6. The prisoner being so arrested and remanded was
not legally before the justices and the whole proceedings
afterwards were null and void.
7. No warrant of distress was issued and no evidence
given to support the allegations of no distress in the con-
victions.
8. There are two convictioas for the same offence on
the same day, and on the same information and evidence,
which is illegal, and it is impossible to say on which the
warrant of commitment is founded.
9. Joseph Foster, the license inspector, was sworn, he
being the informant, but his evidence was not taken down
because it negatived the case for the prosecution.
Digitized by VjOOQIC
694 THE ONTARIO BEPORTS. [VOL.
Argument. jQ, The justices refused to. permit the prisoner to give
evidence on his own behalf.
11. It does not appear that the prisoner was asked to
plead to the charge.
12. There is no proper adjudication or minute of the
convictions.
13. The convictions are bad, because thej direct payment
of the costs of conveying prisoner to gaol in addition to the
penalty and costs of prosecution, and there is no evidence
that prisoner did not come within see* 49 of the '' Liquor
License Act."
r
14. The warrant of commitment ia bad and does not
correspond with form " I " of the '* Liquor License Act," nor
the convictions.
15. The said warrant is inimical because (a) it states
prisoner is " on convicted" (6) before one of Her Majesty's
Justices of the Peace, (d) it refers to "the Liquor Act," and
there is no such Act ; (e) it is bad because it commands
detention of prisoner until payment of costs of his con-
veyance to gaol, (/) because it does not direct to whom
the money is to be paid.
On the 4th June, 1890, Langton, Q. C, shewed cause and
Allan Caasels supported the order nisi, before Armour^ C.
J., and Faloonbridge, J.
The following cases were referred to : Reg. v. Ferris, 18
O. R. 476 ; Reg. v. Grant, ib. 169 ; Reg. v. Higgins, ib.
148; Reg. v. Elliott, 12 O.K. 624; Reg. v. Lyndi, ib.
372; Reg. v. CantiUon, 19 O. R 197 ; Reg. v. Flory, 17
O. R. 715.
June 27> 1890. The judgment of the Court was
delivered by
Armour, C.J. : —
The mode adopted to bring the defendant before tbe
justices is not a ground for quashing the conviction, bat I
Digitized byVjOOQlC
:XIX.] REGINA V. MENARY. 695
am far from saying that he was not properly brought Jndgmant.
before them. See R. S. O. eh. 74, sec. 1. Armour, C. J.
Nor can the fact that the defendant was remanded by
only one justice affect the conviction. See R. S. O. ch.
74. sec. 1, and R. S. C. ch. 178, sec. 6.
I doubt very much the power of the justices to issue a
distress warrant under R. S. O. ch. 194, sec. 70, or to make
the imprisonment thereby imposed dependent upon the
paj'ment of the fine and costs; and if it were necessary for
me to determine this it would require further considera-
tion.
It seems to me that their only power is to impose the
fine thereby authorized, and in default of payment thereof
to impose the alternative punishment of imprisonment,
and that they have no power to issue a distress warrant
or to make the imprisonment dependent upon the pay-
ment of the fine and costs.
If the fine is ordered to be paid forthwith, as in this case,
and it is not so paid, there is then the default in payment
which calls for the alternative punishment of imprison-
ment under that section.
There was only one offence, and it is plain that there
was only one conviction for the offence.
The first conviction drawn up and returned to the clerk
of the peace being thought to be erroneous, the justices
drew up and returned an amended one, as they had the
right, provided the facts before them justified it, to do.
If the justices were bound to issue a distress warrant,
the insertion of the words '* then, inasmuch as it has been
made to appear to us, on the admission of the said William
Menary, that the said William Menary has no goods or
chattels whereon to levy the said several sums by distress *'
was proper: if they had no power to issue a distress
warrant, these words were mere surplusage and did not
vitiate the conviction.
If the justices had the power to require the costs and
charges of conveying him to gaol to be paid by the
defendant, then these words were properly inserted in the
88 — VOL. XIX. O.R.
Digitized byVjOOQlC
696 THE ONTARIO REPOBTS. [YOL.
Jadgment. oonvictioD. But if they had no such power, I am of
Armour, C.J. opinion that the conviction was amendable, as and when
it was amended, for they were not amending their adjudi-
cation of punishment, which was the imposition of the
fine and, in default of payment, of the imprisonment, but
merely the proceeding by which payment of the fine was,
according to their view of the law, to be enforced. See
McLeUan v. McKinnon, 1 0. R 219 ; Reg. v. Bennett, 3
O. R 45 ; Seg. v. Dunning, 14 0. R 52 ; Reg. v. Lake, 7
P. R 215 ; Reg. v. SiUixm, 42 U. C. B. 220; Rex v. ElmU,
2 Ld. Raym. 1514.
In this particular case there were no costs or char^ of
conveying the defendant to gaol, nor were there any such
required to be paid by the commitment.
In the view that I am inclined to take of the provision
of section 70, as above stated, the justices could not make
the imprisonment dependent on the payment of the fine
and costs, but this is an objection which has not been
taken by the defendant, and, as making it so dependent is
if erroneous, altogether in favour of the defendant, I do not
think that I ought to give effect to it.
There is no doubt that the defendant was guilty of the
offence of which he was convicted, and that he was prop-
erly convicted of it, and having regard to the provisions of
sec. 105 of the Act R S. O. ch. 194, we do not think that
the conviction or warrant ought to be quashed.
The order nidi will, therefore, be discharged with costs.
Digitized by VjOOQIC
XIX.] QUEEN V. BIRCHALL. 697
[CHANCERY DIVISION.]
Queen v. Birchall.
Courts — Chancery Divisional Court- -Jurisdiction— Criminal matters —
B. S. O. 1887, c. 44f «. eg—ConsolidcUed Rule gl8— Marginal Rule
480,
On a motion to make absolute a rale nin in a criminal matter before the
Chancery Divisional Court : —
Heldy per JBoYD, C, that tlie Court had jurisdiction to entertain the mat-
ter, for the Divisional Sittings of the High Court of Justice are now
the equivalent for the former sittings in fml Court in term at common
law, or for the purpose of rehearing in Chancery, and the criminal
jurisdiction vested in the High Court not exerciseable by a single Judge
is by the effect of legislation to be administered by Judges composing
any of these Divisional Courts. Each Division is to follow the same
practice, and therefore the Chancery Division is empowered to use the
criminal practice and procedure which was formerly peculiar or limited
to the Common Law Courts : —
Held, per Ferouson, J., that the Court had not jurisdiction to entertain
the matter, inasmuch as it was a Divisional Court sitting under the
provisions of Cons. Rule 218 ; and had, therefore, only power to exercise
the jurisdiction of the High Court for the purposes referred to in R. S.
O., 1887, ch. 44, sec. 62, and not the power to exercise the full jurisdic-
tion of the High Court, such as, semble, would be possessed by a division
of the Court sittings under the provisions of old marginal Rule 480.
There were no rules of Court whereby it had been ordered that any
criminal business should be transacted and disposed of by this Divisional
Court of the High Court, for the purpose of which it would be neces-
sary to exercise any part of the criminal jurisdiction of the High Court..
This was a motion to make absolute rules nisi, calling Statement,
upon C. W. Bunting, managing director of the Mail Print-
ing Company, and David Creighton, Manager of the
Empire, to show cause why they should not be committed
or otherwise punished for contempt of Court in publishing
in the respective issues of their newspapers, a despatch
from Lockport, N. Y., which counsel for Reginald Birchall,
who was then in Woodstock gaol awaiting his trial for the
murder of Benwell, alleged would have the effect of
prejudicing his client upon his trial.
The despatch in question related to the finding of a large
trunk, and alluded to an opinion of a chief of police that
Birchall intended to enclose the body of his victim in it
and send it over Niagara Falls.
Digitized byVjOOQlC
698 THE ONTARIO REPORTS. [VOL.
Argument. The motion was argued on June 24th, 1890, before the
Chancery Divisional Court, composed of Boyd, C, and
Ferguson, J.
HeUrauth, for the motion.*
W. R. Meredith, Q. C, for the defendant. Bunting.
H. Casaels, for the defendant, Creighton. These are
criminal proceedings : O'Shea v. O'Shea, 15 P. D. 59 ; but
the Chancer}" Division has no criminal jurisdiction at all.
The Judicature Act, R. S. O., 1887, ch. 44, sec. 35, gives to
the High Court of Justice the jurisdiction of all the old
Courts. But sec. 163, and Con. Rule 1, provide that noth-
ing shall affect criminal procedure. R S. C. ch. 174, sees.
259-264, gives power in Crown cases reserved, but there
is no other authority or enactment which gives jurisdic-
tion. Begifia v. Beemer, 15 O. R. 266, shews that this
] )ivisional Court has no power. The High Court of Jus-
tice Chancery Division is not the Chancery Divisional Court
'I'he sittings of the High Court of Justice are the old term
sittings, and the Chancery Divisional Court sittings do
not follow the old terms : Con. Rule 216. This Divisional
Court is a substitution for the old rehearing : Con. Rule
218. Con. Rule 219» shews what Divisional Courts can
do.
HeUmuth, in reply. This Division has been in the
habit of entertaining criminal matters: Regina v. Logan,
16 O. R. 335 ; Regina v. Webster, ib. 187 ; Regina v. Fee,
13 O. R. 590.
June 26th, 1890. Boyd, C. :—
The High Court of Justice for Ontario consists of three
divisions: the Queen's Bench Division, the Common Pleas
Division and the Chancery Division, and this mainly for
convenience in the distribution of business, R. S. O. 1887,
c. 44, sees. 3, 60.
*The judgments of the Court turning solely upon the question of juris-
diction, only that part of the argument is reported which relates to that
question. — Rkp.
Digitized byVjOOQlC
XIX.] QUEEN V. BIRCHALL. 699
The High Court has all such powers as by the law of Judgment.
England are incident to a Superior Court of civil and Boyd, 0.
criminal jurisdiction, and shall hold plea in all and all
manner of actions and causes civil and criminal and may and
shall proceed by such process and course as are provided
by law, and as shall tend with justice and despatch to
determine the same: ib, s. 20.
The High Court possesses all the jurisdiction formerly
vested in or capable of being exercised by the Court of
Queen's Bench and Common Pleas and is a combination
of these and other Courts ennumerated in sec 35.
By sec. 57, subject to Rules of Court, the High Court and
the Judges thereof shall have power to sit and act at any
time and at any place for the transaction of any part of
the business of the Court, or for the discharge of any duty
which by statute or otherwise is required to be discharged:
Subject to this provision the Divisional Sittings of the
High Court are to be at Toronto. All causes and matters
may be distributed among the several divisions : Sea 60.
Business is to be disposed of by one Judge as far as
practicable, but other business as ordered by Rules of
Court shall be transacted by the Divisional Courts of the
High Court.
Divisional Courts is synonymous with " divisional sit-
tings of the High Court," when two or three Judges sit
for the disposal of business, that not being of the compe-
tence of a single Judge of the Court comes properly before
a full Court or a Court in banc.
Divisional Courts are constituted for the transaction of
the business of any of the divisions of the High Court,
and all arrangements required for holding any Divisional
Courts of the High Court for any purpose authorized by
the Act, shall be made under the direction and superinten-
dence of the Judges of the High Court : R. S. O., 1887,
ck 44, sec 64.
The Divisional sittings of the Court are now the equiva-
lent for the former sittings in full Court in term at Com-
mon Law, or for the purpose of re-hearing in Chancery : and
Digitized byVjOOQlC
700 THE ONTARIO REPORTS. [VOL.
Judgment, ^he criminal jurisdiction vested in the High Couit, not exer-
Boyd, C. cisable by a single Judge, is bj'^ the effect of legislation to
be administered by Judges composing these Divisional
Courts : Dixon v. FarreVy 18 Q. B. D. at pp. 49, 51, indi-
cates this, though the Act is different in England. I
cannot trace in the constitution of the Court a further
separation of powers as suggested in Regvna v. Beemer, 15
O. B. 266, by which the sittings of the Judges of any
division in Court is to be distinguished from the sittings of
the Divisional Court. By sec. 63, Divisional Courts are if
practicable to include one Judge, at least, attached to the
particular division of the Court to which the cause, out of
which the business in hand arises, has been assigned, bat
this is not essential. Apart from the sittings for the trials
of causes under sec 89, the only rules made under sec. 57,
are for the sittings of Divisional Courts : Rule 216, 217,
218, 219.
The discharge of particular lines of civil business, is
regulated by these rules, but this does not affect the
criminal jurisdiction and procedure of the High Court, the
latter of which is not subject to Provincial control : B. N.
A. Act, sec, 9, sub-sec. 27.
If criminal jurisdiction is not vested in and exerciseable
by the Judges holding the Divisional Sittings of the High
Court of Justice, I see no other tribunal that can exercise
such jurisdiction according to the present constitution and
organization of the Provincial Courts.
General criminal jurisdiction is possessed by the High
Court of Justice for Ontario by virtue of concurrent enact-
ments of the Legislature of Ontario and the Parliament of
the Dominion, the one establishing the Courts as of crimi-
nal jurisdiction, and the other recognizing it in that char-
acter : R S. C. ch. 174, sec. 270. By this section the
criminal practice and procedure is to be the same as before
the constitution of the High Court, but as I understand
^ each division is to follow the same practice : this would
empower the Chancery Division to use the criminal prac-
tice and procedure which was formerly peculiar or limited
to the common law Courts.
Digitized byVjOOQlC
XIX.] QUEEN V. BIRCH ALL. 701
Ferguson, J. : — judgment.
This Court is, as I understand the matter, a Divisional
Court of the Chancery Division, sitting under the provisions
of Con. Rule 218.
The original Marginal Rule 480, provided for the sit-
tings of the High Court of Justice, saying that there
should be three in every year, Michaelmas, Hilary, and
Easter Sittings, the terms of such sittings corresponding
with the periods at which the Courts of common law had
theretofore sat in Term ; but these provisions of the Rule
were not to apply to the Chancery Division, (by sub-sec.
<*. of the Rule) except when the Judges thereof should be
of opinion that the business of the division was such as to
render such provisions necessary or convenient for the due
despatch of business, and should give notice to that effect.
Section 9 of the original Act was substantially the same
as section 35 of R S. O., 1887, ch. 44, and the provision is
that the High Court shall have generally all the jurisdic-
tion which, prior to the 22nd day of August, 1881, was
vested in or capable of being exercis^ed by the Court of
■Queen's Bench, Court of Chancery, Court of Common
Pleas, and Court of Assize, Oyer and Terminer, and Goal
delivery, (whether created by commission or otherwise)
and the High Court shall be deemed to be, and shall be a
continuation of the said Courts respective!}'', (subject to the
provisions of the Act) under the said name of " The High
Coui-t of Justice for Ontario." The original Marginal
Rule 480, manifestly I think, contemplated that the sit-
tings of the High Court should be by Divisions. The
special provision respecting the Chancery Division, shows
this, I think, and it would follow that each Division of the
Court sitting at the times mentioned in the Rule, would
have and be capable of exercising the jurisdiction of the
High Court, but the Chancery Division would not sit at
these times unless by a compliance with the provisions of
sub-sec. c. of the Rule (before referred to). Sub-sec. d.
of the same Rule, provided that Divisional Courts of the
Ferguson, J.
Digitized byVjOOQlC
702 THE ONTARIO REPOIITS. [VOL.
Jadgment High Court were to sit at such further and other times a&
Fergiiaon» J* might be directed by the High Courts or as might seem
necessary for the due despatch of business.
The original Act, after providing for the distribution of
the business, provided by section 29, that all business that
might, from time to time, be so ordered by rules of Court,
should be transacted and disposed of by Divisional Courts
of the High Court, which should for that purpose, exercise
all or any part of the jurisdiction of the High Court
This section 29, together with sections 30 and 31, provided
for the constitution of the Divisional Courts, and that any
number of them might sit at the same time. These sec-
tions were substantially the same as sections 62, 63, and
64 of R. S. 0. 1887, ch. 44 ; and I think it plainly appears
that under these provisions the Divisional Courts could
only exercise the jurisdiction of the High Court so far as
it should be necessary so to do in transacting and disposing
of the business ordered to be done by or assigned to them
respectively. The jurisdiction to be exercised by them,
being thus limited and differing in extent from that juris-
diction exercisable by each Division of the Court sitting
under the provisions of the original Marginal Rule 480,
sub-sees. a. and &., which would, as I have said, be in my
opinion, the full jurisdiction of the High Court
By the Con. Rule 216, thd language of the original
Marginal Rule 480, has been changed, and the provision
now is for the sittings of the Divisional Courts at the
times mentioned, which are the same times as in the origi-
nal Rule, and the exception as to the Chancery Division is
the same as before. Con. Rule 217, provides for sittings
of the Divisional Courts of the Chancery Division at three
periods in i^ach year, which are different from the times
mentioned in Rule 216, and Con. Rule 218 provides that
the Divisional Courts of the High Court are to sit at such
further or other times as may be directed by the High
Court, or as in the opinion of the Judges of the Division
may be necessary for the due despatch of business ; and
as I have said, it is under this provision that the present
Digitized byVjOOQlC
XIX.] QUEBN V. BIRCHALL. 703
sittings of the Divisional Court of the Chancery Division Judgment.
takes place, and the sitting is a sittings of a Divisional Ferguson, j.
Court having only power to exercise the jurisdiction of
the High Court for the purposes referred to in the 29th
section of the original Act, and in section 62 of K S. 0.
1887, ch. 44, and not the power to exercise the full juris-
diction of the High Court, such as I think would be
possessed by a Division of the Court sitting under the I
provisions of the original Marginal Rule 480, sub-sees. '
a. and b. I am not aware of any Rules of Court whereby
it has been ordered that any criminal business shall be
transacted and disposed of by this Divisional Court of the
High Court, for the purposes of which it would be neces-
sary to exercise any part of the criminal jurisdiction of
the High Court, even if it be assumed that power exists
to make any such Rules, and I do not perceive any way in
which this Divisional Court can have or possess a criminal
jurisdiction unless it is derived through the High Court.
The Chancery Division, might, I think, if circumstances
arose rendering it necessary so to do, have exercised the
powers given by sub-sec. c. of the original Rule 480, and
held sittings at the times mentioned in the earlier part of
the Rule, in which case the Division so sitting could, I
think, have exercised any part of the jurisdiction of the
High Court. Any difference in this respect that may have
arisen by the passing of Con. Rules 216 and 217, it does
not seem necessary now further to discuss.
The other Divisions of the High Court are not in the
same position with regard to criminal jurisdiction, because
for one reason at least, the former Courts of Queen's Bench
and Common Pleas had criminal jurisdiction, but the for-
mer Court of Chancery had not.
The matter now before us, is shewn by the authorities
to be in its nature a criminal matter, and for reasons that
I have endeavoured to give, I am of the opinion, (although,
owing to the complicated character of the various pro-
visions of the laws on the subject, not without some doubt)
that this Court has not a criminal jurisdiction, and there-
89 — VOL. XIX. O.K.
Digitized byVjOOQlC
704 THE ONTARIO BEPORTS. [VOL
Judgment fore not the jurisdiction necessary to deal with and dispose
Ferguson, J. of these matters. As a consequence, the matters should, I
think, drop.
It appears that some matters in their nature of a crimi-
nal character, have heretofore been dealt with in this Court ;
but in those instances no question as to jurisdiction was
raised. Some of them too were offences against provisions
of Acts of the Provincial Parliament, if my recollection is
correct.
A. H. F. L
Digitized by VjOOQIC
XIX.] MARTIN V. MAGEE. 705
[CHANCERY DIVISION.]
Martin v. Magee et al.
Vendor and Purehtuer — Title — " DevoltUion of Estates Act " — Ovlstanding
mortgage — Matters of conveyancing and Tnatters of title — JR. S. O.
1887, c. 108.
On a sale of lands the purchaser objected to the title on the fipronnds (1)
that there was no evidence that a certain mortgage haa been dis-
charged and (2) that title being dedaced through the devisee of a per-
son who had died since the coming into force of the " Devolution of
Estates Act/' R. S. O., 1887, c. 108, the le^al estate was outstanding in
the executor of such person. It appeared that all debts of the testa-
tor had been paid : —
Held, that both matters were matters of conveyancing, and not of title.
•Under the *' Devolution of Estates Act," where debts have been paid, or
where there are no debts, executors will hold the bare legal estate for
the devisee of the land of the deceased.
This was an action brought by John M. Martin against Stat«niGnt-
the executors of the will of Catharine Sheppard, claiming
to recover back a deposit of $225, paid by him on account
of a contract of purchase at auction of certain lands, entered
into by him on April 20th, 1889, upon the ground of cer-
tain alleged misrepreseutations as to the property made by
the auctioneer at the time of sale, and also upon the ground
that the defendants did not exhibit a good and sufficient
title in them to the said lands, and were unable or unwil-
ling to do so. He also set up that he had demanded from
the defendants repayment of the deposit or a reduction of
the purchase money ; but that the defendants had refused
to repay the same or reduce the purchase money, and had
declared the same forfeited.
The defendants pleaded that the plaintiff should have
accepted their title to the lands, the same being a market-
able one, and denied that there were any misrepresenta-
tions as alleged, and claimed that they were entitled to
retain the deposit as forfeited.
The action came on for trial before Ferguson, J., at
Toronto, on November 26th, 1889.
It appeared that the plaintiff had delivered requisitions
«on the title, one of which called for evidence that a certain
Digitized byVjOOQlC
706 THE ONTARIO REPORTS. [VOL.
Statement, mortgage dated April 27fch, 1859, had been discharged,
and another was as follows :
8. The lands of H. C. Sheppard vested in his executor:
required a conveyance from his executor.
It also appeared that the conditions of sale called for
payment at the time of sale of a deposit of 10 per cent,
and of the balance of the purchase money within two weeks
after the sale ; and that two of the conditions of sale were as
follows :
4. The vendors wshall furnish a Registrar's abstract of
title, and such title deeds as may be in their possession
only, together with a deed of the property ; the purchaser
is to verify the title at his own expense, and to be at all
further expense arising out of the purchase.
6. If the purchaser fails to comply with the conditions
aforesaid or any of them, the deposit and all other pay-
ments made thereon, shall be forfeited and the premises
may be rc-sold, &c.
It also appeared that on or about June 21st, 1889, the
vendors served the plaintiff with a written notice forfeit-
ing the deposit for non-compliance by the plaintiff, with
the conditions of sale, and of intention to re-sell, and look
to the plaintiff for any loss on such re-sale.
The other material facts are sufficiently referred to in
the judgments.
At the conclusion of the evidence, the learned Judge
gave judgment against the plaintiff, so far as the alleged
misrepresentations at the time of sale were concerned,
finding that no such misrepresentations had been proved;
but reserved his judgment as to the remaining questions
arising in the case. Afterwards he gave judgment upon
them as follows :
Ferguson, J. — In considering the remaining questions
it is proper to bear in mind that the plaintiff brings the
action claiming repayment of the deposit made by him at
Digitized byVjOOQlC
XIX.] MARTIN V. MAGEE. 707
the time of his purchase, and it rests upon him to shew Judgment,
all those things that are necessary to entitle him to such Ferguson, J.
repayment.
The contract provides for the payment by the purchaser
of the deposit of 10 per cent, of the purchase money, and
for payment of the remainder by him within the time
stated, and that after such payment he should be entitled
to a conveyance, and to be let into possession. The ven-
dors were to furnish a Registrar s abstract and such title
deeds as might be in their possession only, together with
a deed of the properly, and the purchaser was to verify
the title at his own expense, and be at all further expense
arising out of the purchase ; and should the purchaser fail
to comply with the conditions or any part of them, the
deposit and all other payments made were to be forfeited,
and the lands might be resold.
In Fry on Specific Performance, 2nd ed., sees. 1366 and
1367, et seq,, the duties of the vendor and purchaser
towards one another are stated generally. It is there,
amongst other things, said that the vendor is bound to
show a good title to the property sold, and upon being
paid the purchase money and any interest upon it that
may have become payable, to execute and procure the exe-
cution by all other necessary parties (if any) of a proper
deed of conveyance, vesting the legal estate in the pur-
chaser, and to put him in possession of the property ; and
that on the other hand the purchaser is bound, as soon as
either the vendor has shown a good title or he (the pur-
chaser) has accepted such title as the vendor shows or has,
to pay the purchase money and any interest upon it that
may have become payable.
The plaintiff, the purchaser, having failed in his con-
tention in respect to the alleged misrepresentations at the
time of the sale, seeks to make out that a good title was not
shown, and he relies on two matters only, namely that
the evidence to show that the S200 mortgage dated in
1859, and payable six months after date, is not a charge
was insufficient; and that the estate devolved upon
Digitized byVjOOQlC
708 THE ONTARIO REPOBT& [VOL.
Judgment. Blackburn, the executor of the last will of Herbert C.
Ferguson. J. Sheppard, a former owner of the property, and was there-
fore outstanding.
As to the mortgage ; in Dart on Vendors and Purchasers,
at pp. 323 and 324, it is said : " But in a modem case,
where the vendor, who was not bound to convey the estate
by any particular day, deduced a good title to the equity
of redemption, the existence of mortgages affecting the
property, was held not to be a defect of title, although
they were not mentioned in the contract, and no notice
had been given of the intention to pay them off. In equity,
as a general rule, mortgages and other incumbrances, are
considered merely matters of conveyance."
It was said that there was evidence which the plaintiff
might have seen going to show that this small mortgage
had been satisfied; but even supposing that such is not
the fact, and that it is an actual encumbrance on the pro-
perty or part of it, it would not, according to the author-
ities, I think, be a defect of title. As to the other objec-
tion, it is said by the same author, (Dart) at pp. 322 and
323 : " So, if the legal estate be outstanding, the abstract
must show in whom it is vested ; or that the vendor can
get it in ; but when it is shown that the legal estate can
be gpt in, the abstract is perfect ;" and at p. 324 : " At any
rate it may be considered that the title is perfect, when-
ever it appears that under the contract the purchaser either
already has, or will necessarily before the time fixed for
completion, be able to acquire an immediate and indispu-
table right to the legal and equitable estates ; even although
the absence of parties, or other circumstances, may con-
siderably delay the conveyance." It is said this executor
is quite willing to make the conveyance of the estate
that devolved upon him ; and if he were not, surely there
exists the right to compel him to do so.
In the present case, the vendor was not bound to furnish
any abstract of title but what is called a registrar's ab-
stract, and this he did. The purchaser, as if he had the
right so to do, furnished requisitions and objections as to
Digitized by VjOOQIC
XIX.] MAKTIN V. MAGEE. 709
the title, all of which are satisfied or dissipated, but the Judgment.
two in question, and both parties understood perfectly Ferguson, J.
what were the differences, and the only differences between
them.
I am of the opinion that, notwithstanding these two
objections, and all that was urged in regard to them, a
good title appeared, and that these objections rest upon
matters of conveyancing and not matters of title.
The plaintiff states his case basing his right to relief
upon the alleged misrepresentations, saying that by them
he was induced to bid for the property as he did, and that
otherwise he would not have done so ; that he demanded
repayment of the deposit or a reduction of the purchase
money, which the defendants refused ; and then in the 8th
paragraph, he " further says," that the defendants did not
exhibit a good and sufficient title to the lands ; and that
they were unable and unwilling to do so, and that he was
not bound to carry out his purchase unless the defendants
shewed a good title.
I have before referred to the terms of the contract as it
relates to the making or furnishing title.
At the close of the trial I disposed of the matter of
the alleged misrepresentations, and I have now to say
whether or not this 8th paragraph of the statement of
claim is true ; and I am of the opinion, for the reasons
I have stated, that this paragraph has not been shewn to
be true, but the contrary thereof, it appears that it is
untrue. When the plaintiff made the demand which he
alleges, and upon which he relies, he avowedly disaffirmed
the contract, and being wrong in his reasons for doing this
which were, as I understand his pleading, confined to the
alleged misrepresentations inducing the contract — ^he can-
not complain that this was treated as a breach by him.
Nor can he rely upon any issue foreign to his pleading,
such as the one as to whether the conveyance offered him
was sufficient or not. Under the circumstances the defen-
dants were not, I think, bound to tender him any convey-
ance at alL Surely when a man has demanded back the
Digitized byVjOOQlC
710 THE ONTABIO REPORTS. [VOL.
Judgment, deposit and declared that he will not perform the contiBct
Ferguaon, J. unless it is changed, and this on the alleged but false
ground that he was defrauded in the making of the con-
tract, he cannot say that there was not a failure on his
part to comply with the conditions of the contract.
Then upon failure by the plaintiff to comply with the
conditions of the contract, or any of them, the right to for-
feit the deposit and re-sell the property, arose according to
the terms of the contract itself.
No question arises as to the manner in which the foi^
feiture was declared. The plaintiff says it was declared,
and the defendants say the same thing.
I am of the opinion that the plaintiff has failed to
make out the case on which he has relied, and that the
action should be dismissed with costs, and the registration
of the lis pendens vacated; if any order as to this is neces-
sary, any additional costs occasioned in doing this will
also be paid by the plaintiff.
Judgment accordingly.
The plaintiff now moved before the Divisional Court by
way of appeal from the above judgment.
The motion came on for argument on June 16th, 1890,
before Boyd, C, and Robertson, J.
E, D. Armour, Q.C., and D. Macdonald, for the plaintifi.
The point we take is that no title was made out. First,
there is an outstanding mortgage, and no discharge ; and
secondly these defendants could not make title, because the
title was devised originally by RCSheppard to his mother,
and by her to these defendants her executors. The executors
of H. C. Sheppard took the legal estate, and there is nothing
to shew that these defendants ever had a title. The defen-
dants sold as executors. It was devised to them in trust
for sale. Besides the vendors were to give a deed by the
fourth condition, and before they can forfeit for our not
accepting their deed they must shew that they tendered a
proper deed. Re Reddan, 12 O. R. 781, shews that under the
Digitized byVjOOQlC
XIX.] MARTIN V. MAGEE. 711
^'Devolution of Estates Act" R. S. O. (1887),ch. 108, real estate Argument,
becomes of the same nature as personalty, and we contend
assent of the executor is required before it vests in a devisee.
There was here no evidence of the consent of the executors
of H. C. Sheppard to the devise to his mother. It is moreover
necessary for a devisee before he can make a sale of property
devised to shew that it was not wanted for the purpose
of paying debts. The devisee has not full title till he or
she has the assent of the executor, and in addition evidence
that the executor won't want the property for payment of
debts. It can be followed into the hands of a purchaser :
Chamherlen v. Clark, 1 O. R. 135. The executor of H. C.
Sheppard had a perfectly good right to sell this to some-
body else. If we were paying it into his hands it would
be all right, but we are not. There may be such a thing
as a question of conveyance, which is a question of evidence
^so ; for example, proof of a fact essential to title may be
required, which then becomes a question of title : Fry on
Specific Performance, 2nd ed. sees. 1357, 1363. On the
question of the position of a legatee (that of devisee being
now the same, as we contend) : see Wentworth on Office of
Executors, pp. 67, 69 ; Bac Abr. Tit. Executors and
Administrators, L. 3 ; Doe v. Ouy, 3 East. 120, and cases
therein cited; Deeka v. Strutt, 5 T. R. 690; Lewin on
Trusts, 8th ed., p. 477; Dix v, Burford, 19 Beav. 409;
Chamberlain Y, Chamberlain, 1 Ch. Gas. 2bQ\ Traill y,
BvM, 22 L. J. Ch. 1082 ; Yovmg v. Holmes, 1 Str. 70 ; Doe
v. Stiirgea, 7 Taunt. 217. Above all they did not offer us
a proper conveyance, and they had no right to forfeit
the deposit
Hoyles, Q. C, and ChishoVm, for the defendants. The
real point at the trial was misrepresentation and fraud,
which the plaintiff charged ; but Ferguson, J., found in
effect that the plaintiff put an end to the contract on base-
less grounds, and had not made out his case of fraud. If
they had asked in their requisitions for evidence as to debts
of H. C. Sheppard, they would have got it. [Boyd, C. —
Had you the right to cancel because the plaintiff wanted
90— VOL. XIX. O.R.
Digitized byVjOOQlC
712 THE ONTARIO REPORTS. [VOL.
Argument. ^}^q executor to join ?] That was not the case. It was the
misrepresentations, and a repudiation by the plaintiff him-
self on that ground : Re Reddan, is qualified by Re NixoUy
13 P. R. 314. We submit that the fair construction of the-
" Devolution of Estates Act" is, that lands are not made per-
sonalty for all purposes. [Per Curiam. Reid v. MiUei\
24 U. C. R. 610.] The will operated and the title passed
to the devisee, and we have both the legal and equitable
estate. That is the reasonable way to construe the statute.
The law does not allow following of chattels : Williams on
Executors, 7th ed., p. 1379, though it may compel a legatee
to refund. The same reference shews that an executor
cannot retract his assent in all cases. At p. 1377, assent
may be presumed. Williams on Executors, at p. 3374,
shews that the executor could ,be compelled to give his assent
by a Court of Equity, and such assent would have relation
back to the death of the testator ; i6., pp. 1379-80. Assent
creates no new title, but perfects that under the will :
Roper on Legacies, 4th ed., p. 844. The matters raised are
mere matters of conveyance : Roe v. Oeddea, 18 Gr. 217 ;
Camberwell and South London BvMding Society v. HoUo-
way, 13 Ch. D. 763. We also cite Ava/me v. Brovm, 14
Sim. 303; Kitchen v. Palmer, 46 L. J. Ch. 611.
Armour, in reply. We are not bound to take the title
if we shew the vendors had no title. The issue of title
was just . as important in this case as the issue of fraud.
It is said that there was no requisition made for proof of
payment of debts ; but the defendants were bound to
satisfy themselves as to that and get us a conveyance.
The vendors have only a qualified title and cannot force
it on us. As to the construction of the "Devolution of Estates
Act," I never argued that it turned everything into person-
alty. It puts the title in the same person and makes it
subject to the same powers of disposal, i. «., in executors^
In Re PUling'a Trusts, 26 Ch. D. 432.
June 30th, 1890, Boyd, C. :—
The only point that seemed of importance at the close of
the argument was whether or not the plaintiff* was justified
Digitized by VjOOQIC
XIX.] MARTIN V. MAGEE. ^ 713
in refusing to complete because of want of title in the Judgment,
vendors. The title offered was that of the devisee of the Boyd, C.
owner, and apart from the eflfect of the " Devolution of
Estates Act" that title was unquestionably good. The
owner Sheppard died February 10th, devising the land to
his mother. She died ten days afterwards and her repre-
sentatives exposed for sale the property by auction on
April 20th of the same year. The land by section 4 devolved
upon and became vested in the executors of Sheppard as
assets for the payment of his debts. These being paid, or
there being no debts, the executors would hold the bare
legal estate for the devisee of the land. In other words,
subject to the payment of debts, the beneficial interest in
the land passes to the devisee, and she can make title as
the real owner. Of course if the pa3rment of the debts
will exhaust the land and other assets there is no beneficial
interest ; but if the debts fall short of this in amount the
matter is in practically the same condition as with regard
to any other incumbrance, i.e., upon the charge or incum-
brance being satisfied (which can be done out of the
purchase money) the clear title can be conveyed. In this
latter case the question is considered one of conveyance
and not of title. As a fact in the present case the debts
had been satisfied and the executor was a bare trustee for
the vendor. This fact was not communicated to the pur-
chaser, and in ordinary circumstances the duty of com-
munication would rest on the seller, but here the conditions
of sale provide against this by the fourth condition which
reads : [The Chancellor set out the condition as above.]
If enquiry had been made by the purchaser he would
have learned of this state of facts which shews title in the
defendant.
This line of attack was apparently a subsidiary one, and
there appears to be no reason for disturbing the present
judgment, which should therefore be affirmed with costs.
Robertson, J., concurred.
A. H. P. L,
Digitized by VjOOQIC
714 THE ONTARIO REPORTS. [VOL.
[COMMON PLEAS DIVISION.]
Regina V. Smith.
Criminal law — Separate indictments for tahiiig unmarried girl outofcoiitrol
o/fatfur, and seduction — Separate offences.
The prisoner was convicted under B. S. C. ch. 162, sec. 44, the Act
relating to " offences against the person," for unlawfully taking an
unmarried girl under the age of sixteen yean out of the possession and
against the will of her father. On the same day the prisoner was again
tried and convicted, under R. S. C. ch. 157, sec. 3, tne Act relating to
" offences against public morals," for the seduction of the said girlbeins
previously of chaste character and between the ages of twelve and
sixteen years of age : —
Held, that the offences were several and distinct, and that a conviction
on the first indictment did not preclude a conviction on the second one.
Statement. At the Spring Assizes 1890 for the comity of Grey, the
prisoner was convicted before Robertson, J., on two separate
indictments : the first indictment was for unlawfully taking
one Ellen Jane Darby, an unmarried girl nm^^T the age of
sixteen years, out of the possession and against the will of
David Darby her father.
On the same day the prisoner was afterwards tried
and convicted for having unlawfully seduced and of ha\ing
illicit carnal knowledge of and connection with the said
Ellen Jane Darby, she, the said Ellen Jane Darby, then
being a girl of previously chaste character above the age
of twelve years, and under the age of sixteen years.
The learned Judge at the conclusion of the first trial
sentenced the prisoner to imprisonment in the Central
Prison for the period of twenty-three months.
At the conclusion of the second trial when motion for
judgment was made by counsel for the Crown, it was
objected on behalf of the prisoner as a reason why judg-
ment should not be pronounced, that the defendant had
already been convicted and sentenced on the conviction
under the first mentioned charge, which conviction had been
found on evidence which established the same facts and
circumstances on which he had been convicted on the last
Digitized byVjOOQlC
XIX.] BEGIN A V. SMITH. 715-
mentioned charge, and that therefore the latter conviction Statement,
should be quashed and the prisoner discharged.
The learned Judge stated : " After argument I deter-
mined to reserve the question raised for the consideration
of the Justices of the Common Pleas Division, and there-
fore postponed the judgment until such question has been
considered and decided."
In Easter Sittings, June 6th, 1890, the case was argued
before Galt, C. J., and MacMahon, J.
A, H. Dymondy for the Crown.
No one appeared for the prisoner.
June 27, 1890. Galt, C. J. :—
The same question arose in the case of Bex v. Handleyy
reported in 5 0. & P. 565. The prisoners were indicted
on two charges, the first for shooting at B. an inn keeper,
and the second indictment for night poaching. The
counsel for the prisonei*s submitted that " as the two in-
dictments were in reality founded on the same identical
transaction, the prosecutor ought to be put to elect which
he would proceed upon, and abandon the other."
Mr. Justice Parke : " These are quite distinct offences,
and the one cannot by possibility merge in the other. I
think therefore the prosecutor is not bound to abandon
either."
The present is a much stronger case. The first indict-
is under R. S. 0. ch. 162, sec. 44. " Offences against the
person." The second is under R. S. C. ch. 157, sec, 3.
" Offences against public morals." They are several and
distinct offences.
MacMahon, J. : —
I fully agree with his Lordship the Chief Justice.
A previous conviction can only be pleaded in bar to a
subsequent indictment for the same offence of which the
defendant has previously been convicted : 2 Hale 251.
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716 THE ONTARIO REPORTS. [VOL
Judgment. Upon the trial of the prisoner under the second charge,
MacMahon, in addition to the evidence given on his trial under the
'^' first indictment, evidence was required to be given of the
seduction and the illicit carnal knowledge and connection
before a conviction could be had on the second indictment.
liegina v. Prince, L. R 2 C. 0. R. 154, was a prosecution
for unlawfully taking an unmarried girl under the age of
sixteen years out of the possession and against the will of
her father ; and in Shirley's Criminal Law, 19, the author
referring to that case draws attention to the fact '* that it
is not merely the seducer who is punished for this offence,
but any person who takes the girl from her house for
purposes inconsistent with the exercise of the control of
her proper guardian."
As precluding any question that the offences charged in
the two indictments are two distinct offences, it is only
necessary to point out that the abduction may have been
designed and carried out from motives which appeared to
the abductor highly meritorious.
In Regina v. Booth, 12 Cox C. C. 231, tried in 1872, the
defendant persuaded a girl of fifteen to leave her father
for a comfortable home.
Mr. Justice Quain in summing up said, at p. 232:
• • "His motives, his philanthropy, and the fact
that she" the girl ''was willing to go, have nothing to
do with the question before you. * * That a man should
interfere in another's household, invade the sanctity of his
home and deprive parents of their child from motives
of philanthropy, would be a most dangerous doctrine. * •
The real issue for you to try is simply this : Was the girl
induced to leave her father's house by Booth ? "
See also as to questions arising out of a plea of auterfois
acquit: Regina v. Magrath, 26 U, C. R 385, where a
number of authorities on the point are reviewed by
Draper, C. J.
The same rules apply generally to the plea of awterfois
convict as apply to a plea of atUerfoia acqvbit And where
the latter plea is pleaded the test is : Was the prisoner
Digitized byVjOOQlC
JXIXj REGINA V. SMITH. 717
placed in jeopardy a second time for the same offence, and Judgment
would such plea to the second indictment avail as a defence MacMafaoa,
thereto ? '^•
The clearest and most instructive decision arising out
of a plea of auterfoia acquit is that contained in the
judgment of Mr. Justice Buller in Rex v. Vandercombey
and AbboU, 2 Leach C. C, (4; ed.), 708, at p. 717. The
judgment was given on a demurrer to a special plea of
auterfoia acquit in bar to an indictment for burglary with
intent to commit a felony, and was argued before all the
judges of England.
The prisoners had been indicted for a burglary in which
the felony was laid as having been actually committed
and on their trial on that indictment were acquitted. They
were afterwards indicted for the same burglary laid with
intent to commit the felony ; and it was held that a plea
of auterfoia acquit could not be pleaded to the second
indictment, for they were two distinct and different offences.
Buller, J., said: "It is quite clear, that at the time
the felony was committed, there was only one act done —
namely, the breaking into the dwelling-house. But this
fact alone will not decide this case ; for burglary is of two
sorts : First, breaking and entering a dwelling-house in the
night time, Siud atealiTig goods therein; Secondly, breaking
and entering a dwelling-house in the night time with intent
to commit a felony, although the meditated felony, be not,
in fact, committed. The circumstance of breaking and
•entering the house is common and essential to both the
species of this offence; but it does not of itself con-
stitute the crime in either of them ; for it is necessary
to the completion of burglary, that there should not
■only be a breaking and entering, but the breaking and
entering must be accompanied with a felony actually
<5ommitted or intended to be committed. (See Dobb'a
Caae, 2 East C. L. 513); and these two offences are so
•distinct in their nature, that evidence of one of them
will not support an indictment for the other. In the
present case, therefore, evidence of the breaking and enter-
Digitized byVjOOQlC
718 THE ONTARIO REPORTS. [YOU
Judgment ing with intent to steal, was rightly held not to be suffi-
MacMahon. cient to support the indictment charging the prisoner with
*^* having broke and entered the house, and stolen the goods
stated in the first indictment ; and if crimes are so distinct
that evidence of the one will not support the other, it is
as inconsistent with reason, as it is repugnant to the rules
of law, to say that they are so far the same that an acquit-
tal of the one shall be a bar to the prosecution for the
other."
There must be judgment for the Crown affirming the
conviction.
Digitized by VjOOQIC
XIX.] HOWARD V. CORPORATION OF ST. THOMAS. 719
[COMMON PLEAS DIVISION.]
Howard v. The Corporation of the City of St.
Thomas et al.
Municipal corporations— House being moved coming in contact with tele-
phone wire across street, loosening bricks and injuring passer by — Liability.
O. was moving a house twenty-five feet high along one of the streets in
a city, having obtained the authority of the city engineer to do so,
when by reason of its coming in contact with a wire, of the existence of
which O. was fully aware, stretched by a telephone company, with-
out any authority from the city, across the street, the wire being nine-
teen and a half feet from the ground, though the company's Act of
incorporation required it to be at least twenty-two feet, the wire was
torn from its fastenings, loosening some bricks, which fell on the plain-
tiff severely injuring him : —
dd, that no liability attached either to the city or the telephone com- •
pany, and that 0. was alone liable for the damage sustained by the
plaintiff.
Decision of Street, J., at the trial, varied.
This was an action tried at St. Thomas, at the Spring Statement.
Assizes for 1889, before Street, J., who delivered the
following judgment in which all the facts are stated.
May 4, 1889. Street, J. :—
The defendant, Oliver, was moving a house along
William street, in the city of St. Thomas — he had obtained
authority to do so from the city engineer. The house
was being drawn along the street by several pairs of
horses. The defendants, the Bell Telephone Company,
without any authority from the city, had stretched a wire
from a roof of a stable to a house on the opposite side of
the street, and this wire was only 19J feet from the
ground. The defendant, Oliver, had notified the Tele-
phone Company of his intention to remove the building,
and their employees were present intending to lift their
wires, but left just before the accident without doing so.
The house was drawn by the horses against the wire.
The wire was torn from its fastenings, and brought down
a quantity of bricks from the roof of the stable upon the
91 — VOL. XIX. O.R.
Digitized byVjOOQlC
720 THE ONTABIO EEPORTS. [VOL.
Judgment, head of the plaintiff who was lawfully standing upon the
Street, J. street, and severely injured him.
The action was brought originally against the city cor-
poration alone. They applied to have the other defendants
added as defendants under sec. 531, of the Municipal Act
and the plaintiff included them all in his statement of
claim as being guilty of negligence and liable directly to
him. The wire in question had been in the same position
for upwards of a year before the accident happened; and
the juxy found that the defendants, the city, should have
known of its position.
They also found that the defendant, Oliver, was making
a reasonable use of the highway in drawing the house in
question along it: that the telephone wire was not a
sufficient distance above the level of the street to allow,
the street to be used safely for all reasonable purposes:
that the Telephone Company were guilty of negligence
in not having the wire properly fastened to poles : (8) that
the city engineer had authority to give the permission to
move the building : that ihe city ought to have required
the Telephone Company to stretch their wire higher above
the street than it was in fact stretched : that the Tele-
phone Company had no authority from the city to stretch
their wire across the street in question : that the city had
notice of the fact that the building was being removed
along William street a sufficient time before the accident
to have enabled them to have the wires raised or removed,
and that they were guilty of negligence in not seeing that
the obstructions were removed before granting the permit
to move the building ; and that the defendant Oliver was
guilty of negligence in not seeing that the Telephone
Company removed the obstructions.
Upon these facts and findings I think it is to be taken
that the damage was caused jointly by the three defend-
ants. The defendants the corporation of the city of St
Thomas are liable because they allowed William street to
be obstructed for upwards of a year, and at the time of
the accident, by the wire which caused the damage : that
Digitized byVjOOQlC
XIX.] HOWARD V. CORPORATION OF ST. THOMAS, 721
the defendants the Bell Telephone Company are liable Jndgm^t.
because they unlawfully created the obstruction which street, J.
caused the damage ; and that the defendant Oliver is liable
for drawing his building against the wire without taking
proper care to have it removed : Lynch v. Nurdin, 1 Q. B.
29.
The defendants the corporation of St. Thomas ask that
they may have their remedy over against the other
defendants under sec. 531 of the Municipal Act.
I think this is a case in which that relief should not be
given to them. They had evidently assumed to control
the moving of the house in question by giving permission
to Oliver to move it, and the jury have found them guilty
of negligence in not seeing that the obstructions were
removed before granting the permit. Under these cir-
cumstances it cannot, in my opinion, be said that it has
been established in this action that the damages were
sustained by reason of the obstruction placed by the
defendants the Telephone Company: the damages here
were caused by the combined effect of the obstruction, the
negligent acts of the city corporation and the negligent
acts of the defendant Oliver. The negligence found against
the city deprives them of the right to say that the damage
was caused by the act of the Telephone Company. So far
as the defendant Oliver is concerned it does not appear
possible that such relief could in any case be given against
him, because he did not create any obstruction upon the
street: on the contrary, the jury have found that he was
making a reasonable use of the highway in drawing the
house along it ; but the effect of their finding against him
is that in driving his horse along the highway he did not
take proper care to avoid an obstacle which he should
have seen if he did not.
I have not overlooked the fact that the jury have found
in answer to the question " at what sum do you estimate
the damage ?" that they estimate the damage at "$125 to
the father and $375 to the son " who was injured, $500 in
all, adding the words " to be paid equally by the city and
Digitized byVjOOQlC
722 THE ONTAKIO REPORTS. [VOL.
Judgment, the Bell Telephone Company" thus declaring in their
Street, J. opinion that the defendant Oliver should pay no damages.
I think, however, that I must reject this part of their
answer as surplusage and treat the damages as assessed
against the persons liable to pay under the facts as found.
I direct judgment to be entered for the plaintiff George
F. Howard for $125 and for the plaintiff John Howard
for S375, against all the defendants with full costs of the
action. Judgment to be stayed until the fifth day of the
next Sittings of the Divisional Court
The defendants the corporation of the city of St. Thomas
moved on notice to set aside the judgment entered for the
plaintiff and to enter the judgment in their favour, or to
have the judgment varied so as to recover from their
co-defendants, the Bell Telephone Company, the amount
of the damages and costs recovered against them, together
with their own costs of defence.
The defendants, the Bell Telephone Company, also moved
on notice to set a^ide the judgment entered against them
and for a new trial, or to vary the judgment by giving
them similar relief against their co-defendants.
In the Michaelmas Sittings of the Divisional Court,
(Galt, C. J., Rose, and MacMahon, JJ.), November 25,
1890, the motions were argued.
Ermatinger, Q.C., for the defendants the corporation of
St. Thomas,
Colin Macdougall, Q.C., and 8. O. Wood, for the defen-
dants the Bell Telephone Company.
Doherty, for the defendant Oliver.
G. T. Blackstock, Q.C., and Crothers, for the plaiiitiff.
June 27, 1890. MacMahon, J. : —
The jury having assessed the damages in favour of
George F. Howard (the father) at $125, and in favour of
John Howard (the infant) at 8375, adding to their finding-
Digitized byVjOOQlC
XIX.] HOWARD V. CORPORATION OF ST. THOMAS. 723
that it was to be paid equally by the city and the Tele- Judgment,
phone Company, the learned trial Judge ignored the latter MacM»hoD«
part of the finding, treating it as surplusage, and directed *^-
that judgment be entered against all the defendants for
the damages found by the jury, with full costs.
There are two motions before us. The first on behalf of
the defendants the city of St. Thomas, to have the action
dismissed as against them, because they were not the
proximate cause of the accident ; that there was no evi-
dence that William street was out of repair at the time of
the accident, within the meaning of section 531 of the
Municipal Act ; that there was no evidence of authority to
the city engineer on which to found question No. 8 and
that such question involved a question of law which
should not have been submitted to the jury ; or to have
the said judgment varied so as to recover from their co-
defendants the amount of damages and costs which the
plaintiff may recover against them, together with their own
^osts of defence.
Second. A motion by the defendants ''The Bell Telephone
Company," for a new trial, or to have the judgment of Mr.
Justice Street varied by providing for the recovery against
their co-defendants any damages and costs which the
plaintiffs may recover, on the ground that the company
was not guilty of any negligence rendering it responsible
for the result of the accident. '
As the questions to be considered are purely legal, the
evidence taken at the trial was dispensed with on the
motion, the Court being furnished with the questions sub-
mitted to the jury and their answers, together with the
judgment of the learned trial Judge,
By R S. 0. ch. 184, sec 631, sub-sec 1 " Every public
road, street, bridge and highway shall be kept in repair by
the corporation, and on default * * the corporation
* * shall be civilly responsible for all damages
sustained by any person by reason of such defiskult," &c.
Then under the 4th sub-sec '' In case an action is
brought against any municipal corporation to recover
Digitized byVjOOQlC
724 THE ONTARIO REPORTS. [VOL.
Judgment damages sustained by reason of any obstruction * *
MacMahon, in a public highway, street," &c., " left or maintained by
'^- another corporation or by any person other than a servant
or agent of the municipal corporation, the last mentioned
corporation shall have a remedy over against the other cor-
poration or person for.and may enforce payment accordingly
of the damages and costs, if any, which the plaintiff in the
action may recover against the municipal corporation,"
under the circumstances provided for in that section.
Under the Act incorporating the defendants, " The Bell
Telephone Company of Canada," 43 Vic. ch. 67, sec. 3 (D.)
the company is authorized to construct its lines of tele-
phone across any public highways, provided the company
" shall not interfere with the public right of travelling on
or using such highways, streets," fee; and that in cities and
towns the company " shall not erect any pole higher than
forty feet above the street, nor affix any wire less than
twentj'-two feet above the surface of the street • * with-
out the consent of the municipal council having jurisdiction
over the streets of the said city," &c.
By 45 Vic. ch. 71 (O.) conferring certain powers on the
said Telephone Company a like provision is made as to the
height of the poles and the wires erected and affixed
in cities and towns, as in the Dominion Act.
At the time the plaintiff John Howard was injured it
does not appear that any by-law regulating the affixing
of telephone wires any particular height had been passed
by the council of St Thomas.
The by-law of the city passed in 1882 appointing a city
engineer does not provide what his duties shall be.
The permit for the removal of the building was given to
William Lodge, employed to remove it, and is dated 14th
April, 1888.
If the defendants the city of St Thomas, are liable to
the plaintiff, it is by reason that the injury he suffered is
ascribable to some neglect of duty cast upon it by the
section of the Municipal Act to which reference has been
made.
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XDL] HOWARD V. CORPORATION OF ST. THOMAS. 725
What is " keeping in repair" a street or highway has Judgment,
been variously defined ; but these various definitions do MftcMahon,
not disagree materially as to the meaning which should be '^*
attached to the words.
"Keeping in repair" has been said to be equivalent to
keeping free from obstructions and defects against which
due care can guard. " To keep free from obstruction to
the free user of the highway."
In Taum of Portland v. Qriffiihs, 11 S. C. R 333, an
action for negligence in not keeping the streets of Portland
in repair by reason of which the plaintiflf (Griffiths) was
injured, Gwynne, J., in his judgment, at p. 341, says: "The
gist of this species of action is negligence on the part of
the defendants in committing such a breach of duty which
they owed to the public ajs subjected them to a conviction
on an indictment as for a public nuisance, from which
breach of duty the plaintiff suffered the peculiar private
damage complained of, without any negligence on her own
part contributing to the happening .of the injury."
In Harrison's Municipal Manual, 4th ed., p. 480, the
question is asked : " Then what is repair ? " and is thus
answered; "It is impossible to give a definition which
will apply to all cases. In general terms non-repair may
be said to be any defect in a highway which renders it
unsafe for ordinary travel," citing Castor v. Corporation
of Uxhridgey 39 U. C. R. 113 ; Hixon v. City of Lowed,
13 Gray 59 ; Barber v. City of Boxburg.'ll Allen 318.
In Castor v. Corporation of Uxbridge, sv/pra, telegraph
poles intended for the construction of their line bad been laid
by a telegraph company upon the highway, encroaching
upon the travelled portion ; it was held that the municipal
corporation was responsible for damage caused to travellers
by obstructions placed upon the highway by wrongdoers, of
which the corporation had or ought to have knowledge;
and the road is out of repair when by the existence of such
obstructions it is rendered unsafe or inconvenient for travel
Adopting the language employed in Castor v. Corpora-
lion of Uxbridge, as a fair and reasonable interpretation
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726 THE ONTABIO REPORTS. [VOL
Judgment, to p\it upon the 531st section of the Act as to the liability
HAcM«bozi, imposed upon the corporation of St. Thomas, then was
*^' the existence of the obstruction which caused the accident
such as rendered the highway or street unsafe or incon-
venient for travel? — ^by which must be understood the
ordinary user of the highway by the travelling public.
It was not urged that the street was not in proper
repair for ordinary travel, or that the user of the highway
was in anywise impeded for ordinary traffic.
The assumed defect in the highway caused by the
alleged obstruction with which the city is charged as per-
mitting to exists is, if a defect at all, one of a very peculiar
nature, and may be properly designated as sui generis,
Mr. Justice Gwynne, in 1873, in Rimgland v. Carpora-
tion of Toronto, 23 C. P. 93, at p. 99, adopts the reasoning
of the Court in Merrill v. InhaMtanis of Hampden, 26
Maine 234, that such a state of repair as would exempt the
city from liability to an indictment, would also exempt them
from liability in a civil action ; and he refers to the language
of the then section of our Act to support his view. Har-
rison, C. J., in 1878, in Biums v. Corporation of Toronto,
42 U. C. R 560, at p. 565, thought that the then, and
also the present section of the Act, was differently ex-
pressed from the section being interpreted by the Court
in Rin^land v. Corporation of Toronto, and thought the
construction of Gwynne, J., too narrow. And in 1875, Hag-
arty, C. J., in Boyle v. Corporation of Dundas, 25 C. P. 420,
at p. 424, while he could see no substantial difference in the
legal effect of the two sections, and while seeing much to
recommend the view of Gwynne, J., said that our Courts
had not adopted this as a rule of decision.
The present Chief Justice of this Division, when
Bwms v. Corporation, of Toronto, was before him at nisi
priua, adopted the view of Gwynne, J. And in 1885,
in Town of PoHland v. Oriffi^ths, 11 S. C. R. 333, at p. 341,
it will be seen from the quotation already made from the
judgment of Gwynne, J., that he adheres to the opinion
expressed by him in Ringland v. Corporation of Tot'onfo.
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:xrX.] HOWARD V. CORPORATION OF ST. THOMAS. 727
There has not, in my opinion, been any negligence on Judgment,
the part of the corporation of St. Thomas, which should MaoMalicHi,
render them either criminally or civilly liable, unless we ^'
<;oald reach the conclusion that the liability attaches to
them for the injury and damage to the plaintiffs by reason,
&s it is alleged, of the corporation allowing the wire to
remain suspended across the street at nineteen and a half
feet, when the law requires that it should be at least
twenty-two feet above the street's surface.
The telephone company is by law allowed to have their
wires across the street, and if from neglect on the part of
that company in the hanging of the wires an injury hap-
pens, unless such affixing and maintaining caused such a
defect or want of repair in the street as would render it
unfit for the ordinary public travel, the city could not be
held liable.
The cause of the accident was not by reason of the wire
being only nineteen and a half feet above the surface of the
street; but because the moving building was twenty-five feet
high so that if those moving it impelled it against the wire
the wire must have strained and eventually broken whether
twenty-two or nineteen and a half feet high. The lowering
of the wire below the height prescribed by the statute was
not therefore the cause of the bricks being detached from
the chimney of Penwarden's hotel to which the wire was
attached, the falling of which bricks therefrom caused the
injury complained of.
The granting of a permit for the removal of the house
along the street cannot, in my opinion, make any difference
in the obligation of the city. The mere granting of a
permit adds nothing to the obligation which the city owes
to the public using the street.
I cannot therefore discover any principle upon which the
<city can be held liable to the plaintiffs by reason of the
injury sustained.
The telephone company by its charter is assumed to
provide poles not exceeding a certain height upon which
to string its wires, and to string its wires at a minimum
92 — VOL. XIX. O.K.
Digitized byVjOOQlC
728 THE ONTARIO REPORTS. [VOI-
J.
Jndgment. height of twenty-two feet above the surface of the streets.
MaoMahon, So that as long as it complied with the charter in these
particulars and did not interfere with the public right of
travelling on or using such highways and streets, it was
lawfully in occupation of such highways for the purpose
for which its Act[of incorporation was granted.
If the house had not been propelled against the wire the
wire would not have been strained and so detached the
bricks that fell and injured John Howard. And if the
telephone company had its wii*es on poles along the street
instead of attacliing it to a building there would be no
danger of such an injury being inflicted as that for which
the plaintiffs are suing.
Had a storm blown a tree across the wires detaching the
bricks and thus causing the injury complained of there
could be no question as to the liability of the telephone
company to the plaintiffs. In view of the findings of the
jury that the telephone company was guilty of negligence
in not having its wires properly fastened to poles, then
does the fact, that the defendant Oliver caused the build-
ing to be impelled against the wire and so detached the
bricks, alter the position of the company so as to free it
from liability to the plaintiffs ?
The principle in the law . of negligence upon which
liability for damages depends^in the class of cases we are
now called upon to consider, is thus put in Wharton on
Negligence, 2nd ed., sea 134, " Supposing that if it had not
been for the intervention of a responsible third party the
defendant's " (the telephone company) '' negligence would
have produced no damage to the plaintiff, is the defendant "
(telephone company) "liable to the plaintiff?" This question
must be answered in the negative, for the general reason
that casual connection between negligence and damage is
broken by the interposition of independent responsible
human action. I am negligent on a particular subject
matter as to which I am not contractually bound.
Another person, moving independently, comes in, and either
negligently or maliciously so acts as to make my negli-
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XTX] HOWARD V. CORPORATION OF ST. THOMAS. 729
gence injurious to a third person. If so, the person Jpdgment.
so intervening acts as a non-conductor, and insulates my MacMahon,
negligence, so that I cannot be sued for the mischief which •'•
the person so inten^ening directly produces. He is the
one who is liable to the person injured. I may be liable
to him for my negligence in getting him into difficulty, but
I am not liable to others for the negligence which he alone
"was the cause of making operative." The learned author
gives, in section 143. the following apt illustration of the
principle enunciated : " Where A makes a fire negligently,
but no mischief would result were it not from the negli-
gence of B, who by tampering with the fire causes it to
spread to C's field. Here C has no claim against A, sup-
posing B is a free and rational agent."
For the reasons stated, I think the motions of the defen-
dants the city of St. Thomas and the Bell Telephone
Ciompany must be made absolute setting aside the judg-
ment entered against them, and to enter judgment dis-
missing the action against them with costs, including the
costs of the motion.
The defendant Oliver did not move against the judgment
directed to be entered against him.
Rose, J.: —
Assuming that the wire was an obstruction which the
municipality should'not have permitted to exist, and that,
therefore, as against the city and the telephone company,
it was unlawfully in its position, yet if the defendant
Oliver knowing that it was there, wittingly, and in that
sense, wilfully, drove against it causing the damage com-
plained of, I cannot see that any of the defendants other
than he can be held liable. The cavsa cauaans was not
the presence of the wire but the wilful act of Oliver.
Then does it appear that such was the fact as to Oliver ?
It was admitted that the work of moving the house
" was being performed at the time the accident took place,
the defendant Oliver being also present and assisting in
Digitized byVjOOQlC
780 THE ONTARIO REPORTS. [VOL.
the work ;** also that the house was twenty-five feet high ;
and it was found that the wire was nineteen and a half feet
liigh. It was further found that Oliver was guilty of negli-
gence " in not seeing that the company removed all obstruc-
tions as they were supposed to do after lieing instructed by
Oliver;" and it appears from the facts,stated in the judgment
of my learned brother Street, that he, Oliver, had notified the
company to lift the wires: that the men had been present
to do so, but had left just before the accident occurred.
He, therefore, knew that the house could not pass with-
out the wire being lifted, and without waiting for it to be
raised up, drove against it.
In my opinion the judgment against the city and
company must be set aside. The judgment against the
defendant Oliver will stand. It was not moved against^
The plaintiff must pay the costs of the motion, and the
action as to these two defendants, the city and the com-
pany, will be dismissed with costs
Galt, C. J., concurred.
Digitized by VjOOQIC
XIX.] BRIDGES V. ONTARIO ROLLING MILLS CO. 731
[COMMON PLEAS DIVISION.]
Bridges v. The Ontario Rolling Mills Company.
Master and servant — ** Workman's Compensation for Injuries Act " — D^ect
in machinery— Negligence — Contributory negligence.
The lower blade of a pair steam shears was attached by a bolt to an iron
block, called the bed plate, some eight inches thick, upon which ^he
iron to be cut was put, and along the face thereof, where the workman
stood, was a guard, three inches high, under which the iron was placed
and pushed forward to the shears, Sie only danger beiu^ when the iron
became too short to allow the guard to be any protection. The bolt
was too lonff, projecting outwards about four and a half inches, which
it was urged was a deroct in the machine, making it dangerous, and
the cause of the accident to the plaiutifif, but the evidence failed to
shew it was insufficient for the purpose for which it was used, or
likely to cause injury by reason of its length. The plaintiff, who had
previously seen others working at the macnine, was put to work at it
himself, and had worked several times at it prior to the accident with-
out injury or fear of any, the accident being caused by the piece of iron
he was holdiu? becoming too short to hold outside of the guard, and in
attempting to nold it down with another piece his fingers got jammed
and crushed. Evidence was given that the accident could have been
avoided by the use of tonffs. No instructions were given plaintiff
except a warning not to let ms fineers set too close to the shears : —
Heidi that defendants were not liable lot the accident, there being no
evidence that the bolt was insufficient for the pui*pose for which it was
used to bolt the under side of the shears to the bed-plate, or that from
its length it was likely to injure a person working at the machine.
Quaere, whether there was evidence of contributory negligence on the
plaintiff's part.
This was an action tried before Falconbridge, J., and ag^^^nj^nt.
jury, at Hamilton, at the Spring Assizes, 1890.
The action was brought under the " The Workmen's Com-
pensation for Injuries Act/* to recover damages for the
loss of the plaintiff's fore-finger of his left hand.
The accident by which the plaintiff lost his finger hap-
pened while he was cutting steel scmp at a shears operated
by steam in the defendants' mill.
The alleged defect in the construction of the machinery
was that one of the bolts which held the lower blade of the
shears in position, improperly, by the negligence of the
person whose duty it was to see the shears were in proper
condition, projected outwards from the bed on which the
shears were secured about four and one half inches. And
that while cutting said steel scrap, and without any want
of care on his part, the plaintiff received the said injury to
Digitized byVjOOQlC
732 THE ONTABIO REPORTS. [VOL.
Statement, his finger through the same being crushed between the said
steel plate and the said projecting bolt.
It was also alleged there was negligence on the part of
the defendants in not instructing the plaintiff in the use of
the machine, he not being a skilled mechanic at that kind
of work.
The learned trial Judge nonsuited the plaintiff on the
ground of contributory negligence as disclosed by the
evidence on his behalf ; and also holding that the bolt was
not a defect within the meaning of the Act.
The plaintiff moved on notice to set aside the nonsuit,
and for a new trial.
In Easter Sittings, of the Divisional Court, (composed of
Galt, C. J., and MacMahon, J.,) June 6th, 1890, Bicknell
supported the motion. The bolt was a necessary part of
the machine, and its extending out or protruding through
the bed plate as it did, was a defect in the machine ; but
even if not defective in construction, it was under the
circumstances under which it was used, calculated to cause
injury to those who used it. The plaintiff was not a skilled
mechanic, but a mere labourer, doing what he was told to
do, and had no previous experience of this work, except
on one or two previous occasions, and then he merely did
what he was told to do. His only instructions were to put in
the scrap straight, and not to put his fingers too near the
shears. He carried out those instructions, but as the piece of
scrap iron became short it was of course impossible to keep
his fingers from coming close to the shears, and no instruc-
tions were given him how to act after the piece became
short, and in consequence of the defective character of the
machine, it then became most dangerous. The immediate
danger should have been pointed out to the plaintiff:
Heske v. Samuelson, 12 Q. B. D. 30 ; Cripps v. Judge^ 13
Q. B. D. 583; Yarviouth v. France, 19 Q. B. D. 647;
Faley v. Oarnett, 16 Q. B. D. 52. It is said he was guilty
of contributory negligence in not using tongs, and that he
could have got them from the blacksmith's shop ; but the
Digitized byVjOOQlC
XIX.] BRIDGES V. ONTARIO ROLLING MILLS CO. 783
defendants' themselves say they were not necessary, and Argument,
therefore it cannot be deemed to be contributory negli-
gence in not using what the defendants did not consider
essential. The onus of proof of contributory negligence is on
the defendants, and is a question for the jury, and on the evi-
dence submitted to them they would have found for the
plaintiff: Wakdin v, Lovdon cmd South Western R. W,
Co,f 12 App. Cas. 41 ; McLaren v. Canada Central K W.
Co., 32 C. P. 324, 343; Orizzle v. Frost, 3 F. & F. 622 ;
Corcoran v. East Surrey Iron Works Co., 5 Times L. R.
103.
Wallace Neshitt, contra. This case shews how far the
attempt can be made to push the Act, and to hold employ-
ers liable. To render the defendants liable here, it would
be necessary to read the Act as making employers insurers
against the carelessness of their workmen. The evidence
shews that so long as the slightest attention is paid in
feeding the machine, there is no danger. Danger can only
arise through a want of care. The instructions given to
the plaintiff were to be careful in feeding the machine, and
to see that the fingers did not get jammed; and it is
•difficult to see what other instructions could be given.
There was no defect in the machine, and so the learned
Judge held. The plaintiff was clearly guilty of contribu-
tory negligence. His own witnesses stated that any
man of ordinary common sense could use the machine
without danger. The learned Judge properly withdrew
the case from the jury on this ground: Pearson v.
Cox, 2 C. P. D. 869 ; Sayer v. Hatton,! Cab. & E. 492 ;
Slattery v. Dublin, Wicklow, Jlsc. R. W. Co., 3 App. Cas.
1155 ; Goyle v. Great Northern R. W. Co., 20 Ir. C. L. R.,
(1887), 409, 417 : Walsh v. Whiteley, 21 Q. B. D. 371, 878 ;
Hamilton v. Groesbeck, 19 O. R. 76, 82 ; Morgan v. Hutch-
in^, 6 Times L. R. 214 ; Davey v. London and North
Western R. W. Co., 12 Q. B. D. 70; McEvoy v. Waterford
Steamship Co., 18 Ir. C. L. R. (1886), 159 ; Cohen v. Metro-
politan R. W. Co., 6 Times L. R. 146.
Digitized by VjOOQIC
734 THE ONTARIO REPORTS. [VOL.
Judgment. June 27, 1890. MacMahon, J. :—
The lower part of the shears was attached by bolts to an
iron block called the bed-plate of the shears, some eight
inches thick, upon which the iron or steel to be cut
is placed, and along the face of this block next to which
the workman is standing there is a guard about three
inches high, and under this the iron or steel is put when
being fed, and as it is pushed forward over the bed-plate
the upper half of the shears worked by a lever comes
down and cuts the iron &c., into scraps. So long as the
piece of metal to be cut is covered by the guard, — i.e., eight
inches long, — ^it is not claimed there is any danger in using
the machine ; but the ground of action here is that it was
dangerous when the metal to be fed to the shears became
so short that the guard offered no protection, and that it
was while cutting steel into pieces of three inches in
length, and the metal was shorter than the space between
the guard and the shears that the accident happened.
The plaintiff states that in order to cut the steel into
such short pieces he did not use his hand to hold the metal
while it was being fed to the shears, but used a longer
piece of metal to keep the piece being fed to the shears on
the bed-plate, and at the same time push it to the shears,
and that the piece he intended to cut when the upper part
of the shears came down upon it was thrown up, and the
piece of metal in his hand being pressed down, his finger
was caught between it and the bolt, and so injured.
Where there is any dispute as to the facts, or the infer-
ence to be drawn from the facts, where the point to be
decided is whethe-- the plaintiff has been guilty of con-
tributory negligence conducing to the accident, is a question
for the jury,
There is no dispute as to the material facts in this case.
The work of cutting the metal by means of the shears was
a very simple process, and the plaintiff had, prior to being
put to work thereon, seen others do the work, and when
he was told to go to work at cutting scrap he was wajned
Digitized byVjOOQlC
XIX.] BRIDGES V. ONTARIO ROLLING MILLS CO. 735
by the manager to be very careful and not put his fingers Judgment.
too near the shears or he might be injured. And the MaoMahon,
plaintiff had, on several occasions prior to the accident, *^'
worked on the shears without any accident, and apparently
without fear of any accident occurring.
There appears to have been no instructions given as to
any particular method to be adopted when feeding the
metal to the shears after becoming too short for holding
by the hand outside the guard ; but from the evidence of
the witnesses called for the plaintiff instead of adopting
the method of holding down the piece being fed with
another piece, and pushing it forward in that waj', he
should have gone to the blacksmith's shop and procured a
pair of tongs and so fed the short pieces of metal to the
shears. The evidence of these witnesses is also to the
effect that most of the shears in Canada have no guards
attached to the bed-plate.
It is difficult to conceive how the accident could have
happened to the plaintiff by the bolt being there as he
states. It is conceivable that his fingers should be crushed
between the bar he was holding in his hand and the guard.
But I propose to rest my judgment upon the ground that
there was no defect in the machinery by reason of the
bolt projecting through the bed plate as stated.
As stated in Heake v. Samudaon, 12 Q. B. D. 30, the
Act applies to a case where the machine though not
defective in its construction is under the circumstances for
which it is used calculated to cause injury to those using
it. In that case the injury was caused by the falling of a
piece of coke from a lift used in a blast furnace, and the
evidence was that the accident arose either from the sides
of the lift not being fenced so as to prevent coke from
falling over, or from the lower platform not being roofed
so as to protect those working on it from falling coke ;
and the Court held the defendants liable for such defect.
So also in the case of Cripps v. Judge, 13 Q. B. D. 583,
where the plaintiff, a workman, was injured by reason of
the breaking of a ladder which was being used to support
93 — VOL XIX. o.R
Digitized byVjOOQlC
736 THE ONTARIO REPORTS. [VOL.
Judgment, a scaffold. The ladder was insufficient for the purpose for
MacMahon, which it was being used and the scaffold and ladder had
*^' been placed and were being used under the directions of
the defendants, and it was held that under the circuna-
stances there was evidence that the plaintiff had been
injured by reason of a defect in the condition of the plant.
In both the above cases relied upon by plaintiff's counsel
there was a defect in the plant or machinery for the pur*
poae for which it was being used, and so likely to result
in injury to those working about it. In the present case
there is no defect in the bolt for the purpose for which it
was being used, the only evidence as to its being a defect
was that it was too long; but there (vas no evidence
shewing that it was insufficient for the purpose for which
it was being used to bolt the under side of the shears to
the bed-plate ; or that from its length it was likely to
injure a person working at the machine, or that it had
caused injury to anyone until the alleged injury thereby
to the plaintiff.
As said in Hamilton v. Oroesheck, 19 O. R. 76, 82, the
defect must be an inherent defect, a deficiency in something
essential to the proper user of the machine.
As shewing what is a defect within the meaning of the
Act the Court of Appeal in WaUh v. Whiteley, 21 Q- B.
D. 371, at p. 379, after referring to the cases up to that date
(1888), summarizes them as follows : " They are all cases
where there was evidence of a defect shewing negligence
of the employer. In Heske v. Samuelson, the lift was
good, but there was negligence in not providing what was
necessary to prevent the coke falling off; the machine was
defective as used for coke. In Crippa v. Judge, the ladder
was used for a purpose for which it was unfit, and was
so used under the personal superintendence of one of the
defendants. In Weblin v. Ballard, 17 Q. B. D. 122, there
was evidence that the ladder was not in a proper condition
for the purpose for which it was being used, and the
employer knew this. In Thomas v. Qtmrtermaine, 17 Q.
B. D. 414, 18 Q. B. D. 685, there was no defect, and it
Digitized byVjOOQlC
XIX.] BRIDGES V. ONTAKIO ROLLING BOLLS CO. 737
"was held that there must be a defect shewing negligence Jp^gmwit
in the employer in order to bring the case within the Act. ifAcMahoD,
It is not shewn there was any defect in the shears by ^'
reason of the bolt being too long, nor is there any evidence
of negligence on the part of the defendants. See Cohen v.
JUetropolitcm R. W. Co,, 6 Times L. R. 146.
Kite V. London TraTmvay Co., (as reported in the London
Times)* was referred to on the argument, and report handed
in to us by counsel, is very much in point, and I therefore
append the judgment in full : (the learned Judge set out the
judgment infra, f
In the more recent case of Morgan v. Hutchins, 6 Times
L. R. 219, it was held that the absence of fencing around
dangerous machinery used by children or young persons
constitutes a " defect " in the condition of the machinery
within the meaning of the section of the Employers
Liability Act of 1880. But it appeared that the Inspector
of Factories had in 1885 warned the defendants against
employing young persons at the machine, as if the cogs
were not covered it was dangerous to adults and far too
♦Reported in the * ' Times, " 30th January, 1890, but not published in the
Times Law Reports.
tThlB was an appeal from the Lambeth County Court.
The action was brought under the ^Employers* Liability Act by the
plaintiff who was a sawyer engaged in the workshops of the defendants.
While working with a steam planing machine under the orders of the
defendants' foreman, the piece of wood which he was planing flew out of
his hand, and his hand was brought into contact with the machine, and
so much lacerated that some of his fingers had to be amputated.
The jury found that the planing machine could, by the use of blocks or
^ards, be used so as to protect the hands of the workmen using it, and
that this company were negligent in not providing such blocks or guards.
They further found that the plaintiff did know of the danger of using the
machine, and had spoken to the foreman about it, and that he voluntarily
undertook the work at the foreman's request. They were also of the
opinion that the accident did not happen either in consequence of any
defect in the machinery, or from any careless user of it by the plaintiff,
but they thought it might have been prevented by the use of blocks or
guards. They assessed the damages at £100.
The Judge held on these findings that judgment must be entered for
the defendants, on the ground that the plaintiff knew of the danger and
Digitized byVjOOQlC
738 THE ONTARIO REPORTS. [VOL
Jadgment. much SO for youths under sixteen to be employed at The
MacMfthon, person injured in it was a boy thirteen years old.
^* This is not a case in which if it had gone to the jury on
the evidence adduced on behalf of the plaintiff and the
jury had found in his favour that it could be permitted ta
stand. See Pritchard v. Lang, 5 Times L. R. 639.
The motion must be dismissed with costs.
▼olnntarily ineorred it ; and he was. further of opiiu<Ki that there was no
evidence on which the jury could find that the defendants were n^ligent
in not providing blocks or guards, or that it was customary to do so.
The plaintiff appealed.
Hr. Bcuaett Hopkins^ appeared for the plaintiff
Mr, O. E. Lyon, for the defendants.
The Court dismissed the appeaL
Lord Justice Fst said that the Judge was quite right. There was no
evidence of negligence on the part of the defendants. The negligence
relied upon by the plaintiff was that the defendants did not provide him
with a guard to protect his hand when using the machine. There was no
evidence whatever thab the guard could be used when this particular work
was being done, and the defendants adduced evidence to shew that it was
impossible to use it then. There was, therefore, an entire deficiency of
evidence to support the finding of the jury. Then it was said that the
defendants ^were guilty of negligence in taking a working sawyer and
putting him to work this dangerous machine, but the evid^ice shewed
that he had been taught by the foreman how to use it^ and that he had
used it several times before without any accident.
Mb. JuancB Mathew concurred.
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XIX.] M'mCHAEL V. WILKIE. 739
[COMMON PLEAS DIVISION.]
McMlCHASL v. WiLKIE ET AL.
Btuband and wtft — Punhoit hy wife tubyect to mortgagt^StparaU eaUUe
— LidbUUy of w\fe to indemnify grantor.
A married woman to whom land is conveyed, subject to incnmbranoe,
whether by way of purchase or exchange, is boand to indemnify her
grantor against the payment of such incumbrance, and the property so
conveyed to her is separate estate with respect to which sucn ooligation
arises.
Decision of MaoMahok, J., reversed.
This was an action tried before MacMahon, J., with- Statement,
out a jury, at Toronto, at the Winter Assizes of 1889.
The learned Judge reserved his decision, and subse-
quently delivered the following judgment in which the
facts are fully stated :
August 1, 1889. MacMahon, J. : —
In August, 1884, the defendant Wilkie mortgaged to
the plaintiff certain real estate in Manitoba to secure the
payment of $500 in three years, and interest at eight per
cent., which had not been paid.
In March, 1885, the defendant Wilkie exchanged the
lands mortgaged to the plaintiff, and other lands in Mani-
toba subject to the mortgages existing thereon, with the
defendant Morton, for lands on Oerrard street, in Toronto,
subject to the mortgages thereon existing, and there was
much more due on the mortgages on the Morton property
than on the property mortgaged by Wilkie.
It is alleged in the statement of claim that it was agreed
between the defendants Wilkie and Morton that each
should pay the mortgages on the properties which each
took in exchange for the other, and save and indemnify
each other in respect of and from the payments thereof; and
that Wilkie bad paid off the encumbrances on the property
conveyed by the defendant Morton; and Wilkie claims
Digitized byVjOOQlC
740 THE ONTARIO REPORTS. [VOLi
Jwdgment, that the defendant Morton should pay the encumbrancer
MacMahon, on the land which he had mortgaged to the plaintiff.
^' llie plaintiff also sets up in his statement of claim that
at the time he took the said mortgage it was to have been
made by the defendant UcCord; and, upon his agreeing to
become liable for the amount secured, the plaintiff accepted
the mortgage from Wilkie, and by an agreement, dated the
7th of April, 1885, McCord covenanted to pay to the
plaintiff the said sum of $500, and interest at eight per
cent., at the times agreed upon by the mortgage.
The plaintiff claims that all the defendants are liable to
him for the payment of the $500 and interest as stated.
The defendant Wilkie in his statement of defence sets up
that in pursuance of the agreement for exchange between
himself and the defendant Morton the latter conveyed to
him her property agreed to be exchanged for the expressed
consideration of $9,000, subject to three mortgages thereon,
which he agreed to assume and pay off; and he re-
tained that sum out of the purchase money for the
purpose of paying off said mortgages, which he did pay
and satisfy : that, in consideration of $4,600, he (Wilkie) in
April, 1885, conveyed to the defendant Mary S. Morton, the
two properties in Manitoba agreed to be exchanged, (one of
which is the property mentioned in the plaintiff's state-
ment of claim) the said mortgages on which the defendant
Morton agreed to assume, and out of the said purchase
money she retained the amount necessary to pay off said
mortgages ; and that, in pursuance of such agreement, the
defendant Morton paid to the plaintiff the interest on the
mortgage sued on up to the time of the maturity thereof
but has since refused to pay either principal or interest on
said mortgage.
The defendant Wilkie claims that an order should be
first made against the defendant Morton for the payment
of the mortgage debt and interest herein ; or, if he should
be ordered to pay the same, that the defendant Morton
should be decreed to repay the same to him.
The defendant Morton says she is a married woman ;
Digitized byVjOOQlC
XIX.] M'MICHAKL V. WILKIE. 741
and that if she agreed to indemnify the defendant Wilkie, Judgment,
she did not thereby become liable to the plaintiff as claimed. MacMalioii»
She also alleges that notice of intention to exercise the *^*
power of sale under the mortgage was served upon her,
and that this action was brought without first obtaining
the order required by R. S. O. ch. 102, sec. 30.
The consent of the defendant McCord was filed, ad-
mitting that the plaintiff was entitled to judgment against
him. The plaintiff is entitled to judgment against the
defendant Wilkie on his covenant.
There will therefore be judgment for the plaintiff against
the defendants Wilkie and McCord for the sum of $500,
with interest thereon at eight per cent., from the 11th
February, 1887, together with the full costs of suit.
The offer of the defendant Morton, after describing
the Gerrard street property and enumerating the encum-
brances thereon, when the same were payable, and the
rates of interest on the different mortgages, stated :
"I agree to give, and the abore properties to be taken subject as abore
to $5,400, in even exchange for the lands in Manitoba (describing them).
The first parcel 260 acres being subject to a mortgage for |500, bearing
interest at eight per cent. * * and the second parcel, 320 acres, being
subject to a mortgage for $800, bearing interest at seven per cent. * * "
which was signed B. Morton, attorney for M. S. Mokton.
The offer of the defendant Wilkie, was in these
terms :
'< Toronto, March 11, 1886.
'*I hereby accept the attached offer of Mr. B. Morton of his Gerrard
street property for my Manitoba lands, each property subject to the en-
cambrances thereon named."
The deed from Wilkie to Morton of the land covered by
the plaintiff's mortgage, is expressed to be in consideration
of $2,000. " To have and to hold subject to the reservations,"
&c., ''expressed in the original grant thereof from the
Crown, and subject also to a certain mortgage on the said
lands to one Charles McMichael * * of $500, falling
due in three years from the date thereof, and bearing inter-
est at eight per cent, per annum." Quiet possession, free
from all encumbrances except as above stated.
Digitized byVjOOQlC
742 THE ONTARIO REPORTS. [VOI^
Judgment The consideration mentioned in the deed of the other
MaoMahon, parcels is 9%o60, with habendum same as in above deed
^' subject to a mortgage for $800 and interest.
Counsel for Mrs. Morton urged that she by these con-
veyances had assigned to her the equity of redemption in
the lands — in fact that as between Wilkie and Mrs. Morton
there was merely an exchange of the equities in theae
different properties ; and that as the assignee of such equity
she could not be made liable for the payment of the
encumbrance.
From the agreement and the conveyances it must be
taken that the conveyance from one party to the other
of their respective lands subject to respective encumbrances
then existing thereon, was considered and accepted by the
parties as an equal exchange.
As to the effect of an exchange where one of the parties
thereto covenants to pay off an encumbrance created by
him on the property which he conveyed, see Seney v.
Porter, 12 Gr. 546.
The case of Re Crozier — Parker v. Glover, 24 Or. 537,
was cited as an authority entitling the plaintiff to judg-
ment against the defendant Morton. That case, as pointed
out by Mr. Armour, was an administration suit, and I
would prefer considering the decision in that case as being
founded upon the ground stated by Proudfoot, V. C, at p.
545, " for the whole real and personal estate goes to the
same person, and by his will the testator has chai^ged his
whole estate with his debts. As it seems this is to be con*
sidered a debt, then he has charged it on all his estate,
and the plaintiffs must take the estate with the charge"
than upon the other grounds stated in the judgment
Nichols V. Waiaon, 23 Gr. 606, and Clarkaon v. Scott,
25 Or. 33, are but for the exceptional circumstances con-
nected with Re Crozier, opposed to the latter authority.
It appears to me that darkaon v. Scott is the authority
which should be followed ; and in doing so I must hold that
the plaintiff is not entitled to judgment against the defai-
dant Morton.
Digitized byVjOOQlC
XIX.] M'MICHAEL V. WILKIE. 748
Where a mortgagor who has absolutely assigned his J«<|^m»*-
equity of redemption is sued by the mortgagee, he is MftcBAahon,
entitled on paying the mortgage money to a reconveyance
to himself: Kinnaird v. Trollope, 39 Ch. D. 636-6*5.
Were it not for the other grounds, to which I shall pres-
ently refer, as relieving the defendant Mrs. Morton from
all personal liability to discharge the encumbrance on the
lands conveyed to her by Wilkie, I should have held on
the authority of Caw/pheU v. JBoWnsoTi, 27 Gr. 634, and
the cases there cited, that Wilkie was entitled to judg-
ment against her, indemnifying him against all damages
by reason of his having to pay the plaintiff the amount of
the mortgage money and interest as represented by the
judgment in this action.
The agreement under which the exchange of properties
between the defendants Wilkie and Morton was effected,
was executed under a power of attorney from Mrs. Morton
ix> her husband Benjamin Morton, under which he is em-
powered as her attorney to '' sell and absolutely dispose of
all or any part or parts of my real estate, lands and here-
ditaments by public auction, tender or private contract,
either together or in parcels, for such price or prices as to
my attorney may deem expedient; and for that purpose to
sign, seal, execute and deliver all agreements, contracts,
<K)nveyances and other documents nece&sary , and to receive
and take the purchase money therefor, or any part thereof,
■and to give good receipts, acquittances and discharges
therefor ; and generally to act in relation to the said real
estate, lands and hereditaments as fully and effectually in
all respects as I could do if personally present, hereby
ratifying and confirming, and agreeing to ratify and confirm
whatsoever my said attorney shall do in the premises by
virtue of these presents."
The conveyance to the defendant Wilkie of the Gerrard
street property, was executed by Benjamin Morton as
attorney for his wife, he joining in the conveyance as a
party thereto.
There is nothing in the power of attorney authorizing
94 — VOL. XIX. o R.
Digitized byVjOOQlC
744 THE ONTARIO REPORTS. [VOL.
Judgment the attorney to bind Mrs. Morton in any way so that she
could be called upon to indemnify Wilkie against the pay-
ment of the encumbrance created b}'^ him on this property.
Wilkie must be taken to have notice of the limited
authority of the agent, as the agreement and deed were
executed by Morton in that capacity.
The defendant Morton pleaded she was a married woman
at the time the contract was entered into.
The plaintiffs have not replied that she has separate
estate, nor was there any evidence that such separate estate
existed, 30 that, until that is proved, no judgment could be
given in favor of the defendant Wilkie over against the
defendant Morton indemnifying him (Wilkie) against the
payment ot^the mortgage money and interest
The last case under the Married Woman's Property Act
is Moore v. Jackson, in the Court of Appeal (not ye^
reported)* where Burton, J.A., says: " To enable the plain-
tiff, therefore, to recover he was bound to allege and prove
the existence of some separate property at the time of
entering into the alleged contract; and having failed to do
so, has not made out a case for recovery."
As to the notice of sale. I do not think the plaintiff was
too late in answering the letter of the solicitor of Mrs.
Morton, and is bound by the offer made and accepted.
There will be judgment for the plaintiff" against the de^
fendants Wilkie and McCord, as stated ; and there will
be judgment for the defendant Morton dismissing the action
against her with costs.
The defendant Wilkie moved on notice to set aside the
judgment dismissing the action as against the defendant
Morton, and to enter judgment in his favour as against her.
In the Michaelmas Sittings of the Divisional Courts
(composed of Galt, C. J., Rose and MacMahon, J.J.) 1889^
J. B. Clarke, Q. C, supported the motion.
McMichael, Q. C, for the plaintiff, and E, D. Armom\
Q. C, for the defendant Morton, contra.
*Smce reported 16 A. R. 431.
Digitized byVjOOQlC
XIX.] M'MICHAEL V. WILKIE. 745
June 27, 1890. EosE, J. :— Judgm«nt.
The facts are fully set forth in the judgment of ray
learned brother MacMahon.
The pleadings have not been amended according to leave
granted, nor is there any record of the order directing the
trial of the issue mised between the defendants Wilkie
and Morton.
Assuming, however, that it has been stated that Mrs.
Morton had separate estate, and further assuming that tlie
trial of the issue between the two said defendants was
directed, then the only question for our consideration is
whether Mrs. Morton is liable to pay the plaintiff's
mortgage so as to free Wilkie from his liability. The
plaintiff accepts the judgmentdismissing the action against
Mrs. Morton, and the judgment in the plaintiff's favour
against Wilkie and McCord, has not been moved against.
With reference to Wilkie's claim against Mrs. Morton,
the facts may be stated very briefly. In 1885, Mrs. Morton
purchased from Wilkie land in Manitoba for an expressed
consideration of $2,000, subject to the plaintiff's mortgage
for S500. If she had then been a ferm/^ sole there would
have arisen immediately upon her becoming owner of the
estate an obligation to indemnify the vendor against the
personal obligation to pay the money due upon the ven-
dor's transaction of mortgage : Waring v. Wwrd, 7 Ves.
337, cited in Campbdl v. Robinson, 27 Gr. 634, at p. 635.
The obligation to pay arises upon the creation of the
ownership as stated in Jones v. Kearney, 1 D. & W. 155,
also cited in Campbell v. Robinson, at p. 636 : " If I
create an incumbrance on my estate and sell, and no en-
gagement be entered inte with respect te that incumbrance,
but I convey the estate subject to it, the purchaser is bound
in equity to indemnify me against such incumbrance."
And in Waring v. Ward, such obligation was said to
arise upon receipt of possession and profits.
Then here Mrs. Morton took a conveyance of the land
subject to the mortgage. The estate vested in her ; the
Hose, J.
Digitized byVjOOQlC
746 THE ONTARIO BEPORTS. [VOL
Judgment. $2,000 were paid — that it was by exchange of land seems
Roae, J. quite immaterial, see Seney v. Porter, 12 Gr. 546 — surely
she had separate estate with respect to which she might
reasonably be deemed to have contracted.
Of course if Wilkie against whom judgment has gone,
paid the debt, he would be entitled to enforce the security
against the land, but as pointed out in Campbell v. Robin-
son, at p. 636, he had also the clear right to call upon Mrs.
Morton to pay the debt.
The following cases may be referred to, for although none
of them decides the point in question the discussion of
the principles may be interesting in the consideration
of the point now under investigation : Dobbin v. Dobbin,
11 0. R 534 ; Corby v. Gray, 16 0. R. 1 ; Dominion Loan
and Inveatmsnt Co, v. Kilroy, 14 A. R 468; LeaJc v.
Driffidd, 24 Q. B. D. 98, and cases there cited.
See also Ambroee v. Fraaer, 14 0. R 551, at pp. 554-5,
as to liability of a married woman arising by implication
of law in the absence of contract.
In my opinion there must be judgment in favour of
Wilkie against Mrs. Morton for the amount of the debt
and costs of this action which he is called upon to pay,
except in so far as they have been increased by his de-
fending the plaintiff's claim.
In the view I have taken of the matter I have not found
it necessary to consider the question raised as to the power
of attorney, because it seems to me clear Mrs. Morton must
be held on the evidence to have accepted the deed in its
terms.
I quite agree with my learned brother that the defence
of notice of sale given previous to the action, failed
Qalt, C. J., concurred with Rose, J.
MacMahon, J., dissented, adhering to the judgment
delivered by him at the trial.
Digitized by VjOOQIC
XDL] BELAND v. L'UNION ST. THOMAS. 747
[COMMON PLEAS DIVISION.]
Beland v. L'Union St. Thomas.
BifMvoUinl socieiy—Expulwm of member withatU notice—KcUurcU jtuiice.
A society, inoorporated under the Benevolent Societies' Act, for affording
assistance to members in case of illness or death, by one of its roles
povided for the expulsion of any member who '' kept irregular and
intemperate conduct " after notice to amend. On complaint made to
the society that the plaintiff, a proprietaiy member, was suilty of such
conduct, notice was sent him directing him to amend or oe subject to
expulsion, and a resolution was subsequently passed expelling hun, and
bis name was erased from the society's books. No notice of the in-
tention to move for his expulsion was ^ven, or any opportunity afforded
him of being present and explaining his conduct : —
Held, that the expulsion was illegal as being contrary to natural justice,
and the resolution therefor null and void.
This was an action brought by the plaintiff claiming an sutement.
order for the rescission of a resolution expelling the plain-
tiff from the society, and to restrain the defendants from
so doing, and for damages.
The action was tried before BosE, J., and a jury at
Ottawa, at the Spring Assizes of 1890.
/. McVeity, for the plaintiff.
JJT. F. Belcourt, for the defendant
The defendant society was incorporated under R. S. O.
ch. 172, the " Act respecting Benevolent, Provident and
other Societies," with the object of providing relief for a
member in case of sickness, and assistance to his widow or
orphans, in case of death.
According to the rules of the society a person on becom-
ing a member was bound to pay an initiation fee, and
thereafter a certain weekly sum, and a further sum upon
the death of any member, and thereby became entitled in
case of sickness or death, to the benefits and advantages
provided for by the rules.
By-law 79 provided for the expulsion of any member
who " kept irregular and intemperate conduct," and con-
tinued therein after notice to amend.
Digitized by VjOOQIC
748 THE ONTARIO REPORTS. [VOL.
Statement In the year 1877, the plaintiff became a member of the
society, and continued as such, paying all fees and dues
required of him up to the time of his expulsion.
On the 3rd December, 1888, the plaintiff was named by
another member, to the president as • infringing the rales
by " keeping irregular and intemperate conduct," where-
upon the president brought the matter before the execu-
tive committee which met on that day. At a meeting of
the executive committee, held on the 10th December, the
plaintiff's case was taken up, and it was decided to notify
him to amend his conduct or be subject to expulsion ; and
at a meeting of the society held on the same day, the sec-
retary was directed to so notify the plaintiff, which he
did. The matter was then handed over to a committee of
enquiry.
No further action was taken in the matter until the 16th
September, 1889, when at a meeting of the society held ofi
that day, the committee of enquiry reported that the
plaintiff had not amended his conduct, and recommended
his expulsion. This was voted on and carried on a divi-
sion, and the plaintiff was accordingly expelled, and his
name erased from the books of the society.
The notice above mentioned was the only one sent to
the plaintiff, and he was not present or called upon to
attend any of the meetings when his case was under con-
sideration, the resolution expelling him being passed in
his absence without any knowledge of the proceedings
about to be taken in the matter, and without an oppor-
tunity of answering the charge.
After the 3rd December, 1888, the plaintiff had attended
three or four of the meetings of the society, but no refer-
ence was then made to his case, either by himself or any
of the members then present.
On the 7th October, 1889, the plaintiff's solicitor wrote
to the society demanding the plaintiff's reinstatement, and
on the refusal of the society to comply therewith, this
action was brought.
The plaintiff in his evidence expressly denied the charge.
Digitized byVjOOQlC
XIX.] BELAND V. L'UNION ST. THOMAS. 749
The defendant set up that the plaintiff was expelled Statement
under the rules ; and that the society had sole jurisdiction
in the matter, and that this Court had no power to inter-
fere.
At the close of the case, the learned Judge reserved his
decision, and subsequently delivered the following judg-
ment.
May 2, 1890. Rose, J. :
It is clear that the plaintiff has an interest in the pro-
perty of the club, i,e., the moneys contributed, collected and
deposited or invested for the benefit of the members. See
Baird v. Wells, W. N. March, 1890, p. 65, and cases there
cited of Forbes v. Eden, L. R 1 H. L. Sc. 569, at p. 581,
and Rigby v. Connol, 14 Ch. D. 482, at p. 487.
So the Court has jurisdiction to enquire into the pro-
priety of the plaintiff's expulsion.
The sole question is whether the plaintiff was entitled
to notice of the intention to move for his expulsion.
The rule of the Society, 79, does not in terms provide
that notice shall be given ; but, as stated in Kerr on Injunc-
tions, Black, ed., sec. 563, "It would be a denial of natural
justice if a decision was come to expelling a man without
giving him an opportunity of stating his case and defend-
ing his conduct. Where the conduct of one of its members
is impugned, notice ought to be given to that member that
his conduct is about to be inquired into, in order that he
may have an opportunity of stating his case and defend-
ing his conduct."
This language is welJ warranted by the cases cited. I
refer especially to the case of Fisher v. Keane, 11 Ch. D.
353, which I am unable to distinguish in principle from
the present case.
Here the plaintiff denies the truth of the charge. I have
not to enquire into that ; but it shews that he ought not to
have been convicted without an opportunity of making his
defence.
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750 THE ONTARIO REPORTS. [vOL.
Judgment. Although no rule may have been violated by not giving
Roae, J. him notice of the intention to move for his expulsion, and
although the action of the society may have been bond
fide and nothing appears to justify any question as to bona
Jides, yet, in my opinion, the expulsion without notice was
contrary to natural justice, and the resolution declaring it
null and void.
Mr. Belcourt urged that the concluding paragraph of
rule 79 gave the power to expel without notice. I think
it refers to a case of relapse after the charge of misconduct
referred to in the preceding portion of the rule.
Even if it did so provide, it would not make the action
any more consistent with natural justice.
There must be a declaration that the expulsion was
illegal, and the resolution null and void. The plaintiff
remains, therefore, as he has always been, notwithstand-
ing such action, a member of the society, and entitled to
all the rights and privileges of membership.
The order for an injunction will go restraining the
society from interfering with his right of membership.
The plaintiff must have his costs, but I do not think it
a case for damages.
END OF VOL. XIX.
Digitized by VjOOQIC
A DIGEST
OF
ALL THE CASES REPORTED IN THIS VOLUME
BKNO DECISIONS IN THK
QUEEN'S BENCH, COMMON PLEAS, AND CHANCERY
DIVISIONS.
OF THE
HIGH COURT OF JUSTICE FOR ONTARIO.
AGQUIESGENGE.
See Company, 1.
ACTION.
By wife against husband^ a relations
JOT fahe repre8entatio7}s and con-
tpir€tcy to bring about th^ marriage^]
- See Husband and Wipe, 3.
ADMINISTRATORS.
See Executors and Administba-
TOBS.
ADVANCES
Security for present and future,]
— See Mortgage, 2.
AGENT.
Powers of as to insurance,] — See
Insurance, 5.
95 — VOL. XIX. O.K.
AGREEMENT.
For participation in projits,]-
See Partnership, 1.
ALIENATION.
Restraint on.] — See Will, 2.
ALIMONY.
Registration of judgment for —
Assignment by defendant for general
benefit of creditors — Priorities — P.
S. 0. ch, 44, sec. SO— P. S. 0. ch.
124j sec. 9.] — The precedence given
to an assignment for the general
benefit of creditors by R, S. O. ch.
124, sec. 9, over "all judgments and
all executions not completely exe-
cuted by payment " does not extend
to a judgment for alimony registered
under R. S. O. ch. 44, sec. 30, against
the lands of a defendant prior to the
registration of an assignment by
him ; and the plaintiff in such a
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DIGEST OF CASES.
[vol.
judgment is not obliged to rank
with the other creditors of the
defendant. Abraham v. Abraham
et at., 256.
ANIMALS FBEiB NATURiB.
Property in by owner of land
wJiere found.^ — See Game.
See, also, Husband and Wife, 1.
ASSESSMENT AND TAXES.
Life Insurance Company^Head
office and branch office—Meaning of
''branch " or ''place of business " in I
Assessment Act-— Assessment of in-
come at branch office — "Personal
property''— P^ S, 0. 1887, ch, 193,
sec, 2, sub-sec. 10, sees, 34-3o,y-T\i%
defendants were a life insurance
company with their head office at
H., in this Province, and transacted
business by agen s in K., who re-
ceived applications for insurances
which they forwarded to the head
oftice, from which all policies issued
ready for delivery, the premiums on
the same also being collected by the
agents in K. In an action by the
corporation of the city of K, to re-
cover taxes, assessed against the
defendants on income, it was con-
tended that the defendants' only
place of business was in H. and
that their business was of such a
nature that they could not be
assessed at K., and that they had
elected under R S. O. 1887, ch.
193, sec. 35, sub-sec. 2 to be assessed
at H. on their whole income.
Held, reversing the decision of
Ferguson, J., 18 O. R. 18, that the
agency at K. was not a branch
business within the meaning of sec.
35 above referred to, and that the
premiums received year by year at
K. were not assessable there.
The ultimate profit represents the
year's taxable iucome under the
statute, but this could only be ascer-
taiued by placing the sum total of
gains and losses against each other,
together with the result of the
volume of business done at the head
office, and no distinct integral paii
of this income was referable to the
K. agency.
Semble, also, that notwithstand-
ing sub-sec. 10 of sec. 2, *' personal
property " in sections 35 and 36 of
the above Act is intended to cover
only something readily and specific-
ally ascertainable, and " income" aa
intangible and invisible entity is not
to be i-ead into these provisions of
the Act.
Lawless v. Stdliva/n, 6 App. Cas.
373, specially referred to. The Cor-
poration of the City of Kingston v.
The Canada Life Assurance Com-
pcmy, 453.
ASSIGNEE.
Action by to set amde a mortgage
to a creditor,] — 6'ee Bankruptcy and
Insolvency, 1.
Power of assignee for creditors to
compromise claims,] — See Bark-
BUPTCY AND INSOLVENCY, 4.
ASSIGNMENT.
For the benefit of creditors,}Se6
Bankbuptcy and Insolvency, 2.
BANKBUPTOY AND INSOL-
VENOT.
1. Insolvent debtor — Mortgage to
creditor— Action by assignee under
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XIX.]
DIGEST OF CASES.
753
B. S. 0. eh, 124^ to set uside— Notice
4yr knowledge of iiMolvency.']
Heldy following Joh/nson v. Hope^
17 A. R. 10, that an assignee for the
benefit of creditora under H. S. O.
•ch. 124, suing to set aside as void a
mortgage of real estate made by his
assignor when in insolvent circum-
stances, to a creditor, must, in order
to succeed, establish that the creditor
kuew at the time he took the mort-
gage that the mortgagor was insol-
vent and unable to pay his debts
in full. LaTnb v. Young^ 104.
2. Assignment for benefit of credi-
tors^ R, S. 0, ch. 124 — Valuing
security — Guaranty, coTistruction
of J] — A deceased person, of whom
the plaintiff was executor, gave the
defendant a guaranty in respect of
goods sold and to be sold to another,
in the following terms : — "I hereby
undertake to guarantee you against
all loss in respect of such goods so
sold or to be sold, provided I shall
not be called on in any event to pay
a greater sum than $2,500."
The principal debtor, being in-
debted to the defendants in (5,500,
made an assignment under H. S. O.
ch. 124, and the defendants filed a
claim with the assignee but did not
in the affidavit proving the claim
state whether they held any security
or not. At a later date the plaintiff
paid the defendants the $2,500 and
filed a claim with the assignee. The
dividends from the estate were in-
sufficient to pay the balance of the
defendants' claim : —
Held, that the guaranty was not
a security which the defendants were
required to value under the Act,
and that the omission from their
claim of a piece of information which
could not affect it did not render it
invalid : —
Held, also, that this was a guar-
anty, Dot of part, but of the whole
of the debt, limited in amount to
$2,500, that is, a guaranty of the
ultimate balance after all other
sources were exhausted; and the
plaintiff was not entitled to rank
upon the estate in respect of the
$2,500, nor to recover any part of
any dividend which the defendants
had received,
H(^son V. Bass, L. R 6 Ch. 792,
distinguished ; and JSUis v. Emman-
uel, 1 Ex. D. 157, followed. Mwrtin
V. McMuUen et al, 230.
[ReTexMd Iff the Dirioioiial Coart.]
3. Insolvent debtor — Mortgage to
creditor — Preference — Notice or
knotvledge of insolvency — R, S. 0, ch.
12^9 sec. 2.] — A farmer mortgaged
his farm to secure a debt due by Mm
to the mortgagee and a small sum ad-
vanced at the time the mortgage
was made. He knew at the time he
made the mortgage that he was
unable to pay his debts in full, and
that he was giving the mortgagee a
preference over his other creditors.
The practical effect was that the
mortgagee was paid in full, and that
the rest of the creditors received
nothing. The mortgagee, however,
was not aware at the time he took
the mortgage that the mortgagor
was in insolvent circumstances.
Held, following Johnson v. Hope,
17 A R. 10, that the mortgage was
not void against creditors, under sec.
2 of R. S. O. ch. 124. Gibbons v.
McDonald et al., 290.
4. Assignee foAr creditors — Power
of assignee to compromise claims —
Leave to creditor to bring auction. —
R. S. 0. (1887) ch. 12l]-'A plain-
tiff, a creditor, served a notice on an
assignee for creditors, pursuant to
R. S. O. (1887), ch. 124, sec. 7, sub-
sec. 2, requiring him to take pro-
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DIGEST OF CASES.
[VOL.
ceedings to set aside a certain bill of
sale made by the insolvent and after-
wards served on him a notice of
motion for an order giving him, the
creditor, permission to bring the
action. After being served with
this notice, however, the assignee,
believing that he had authority to
do so, with the approval of a major-
ity of the inspectors and creditors
present at a meeting called for the
purpose, made a settlement with the
grantee of the bill of sale, which
settlement, it also appeared, was ad-
vantageous to the estate. The plain-
tiff then, pursuant to his notice of
motion, obtained an order from a
Judge, giving him leave to bring this
action impeaching the bill of sale,
without, however, the settlement
being brought to the notice of the
Judge : —
Hddy that the settlement was valid
and binding. Keyes v. Kirhpatrick,
672.
had been converted into flour which
had been sold and the proceeds^
which were less than the value of
the shortage paid to the administra-
tor:—
Heldy that the bank was entitled
to the purchase money of the flour.
Re GoodJeUoWy Tradei^a' Bank v.
Goodfdlow, 299.
BANKS AND BAKKIKG.
Warehouse receipt — Wheat con-
verted into flour — FoUovnng moneys
representing suckfljour — R. S. C ch.
120, sec, 56.'] — A miller gave a
warehouse receipt to a bank on some
wheat " and its product " stored in
his mill for advances made to him
and died insolvent about two months
after. During this period wheat
was constantly going out of and
fresh wheat coming into the mill.
Just before his death the bank took
possession and found a large short-
age in the wheat which had com-
menced shortly after the receipt had
been given and had continued to a
greater or less degree all the time.
In the administration of his estate
it appeared that during the period
of the shortage some of the wheat
BENEVOLENT S0GIET7.
Eocptdsion of member tmthoui
notice — Naturaljustice. ] — A Society,
incorporated under the Benevolent
Societies' Act, for affording assist-
ance to members in case of illness or
death, by one of its rules provided
for the expulsion of any member
who **kept irregular and intemper-
ate conduct " after notice to amend.
On complaint made to the society
that the plaintiff, a proprietary
member, was guilty of such conduct^
notice was sent him directing him
to amend or be subject to expulsion^
and a resolution was subsequently
passed expelling him, and his name
was erased from the society's books.
No notice of the intention to move
for his expulsion was given, or any
opportunity afforded him of being
present and explaining his con-
duct : —
Held, that the expulsion was il-
legal as being contrary to natural
justice, and the resolution therefore
null and void. Beland v. UUnum
St. Thomas, 747.
BILLS OF EXCHANGE AND PBO-
MISSOBT NOTES.
1. j^otes given /or purchase o/pa^
tent — -Endorsement qjf words *^ given
for a patent righi'^ — Necessity for as
bettveen maker and payee — Waiver —
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XIX.]
DIGEST OF CASES.
755
B, S, C, ch. 123, sees, 12-U.]— The
statute R. S. 0. ch. 123, sees. 12-U,
which i*equires notes given for the
purchase of a patent right, before
being issued, to have the words
" given for a patent right," written
or printed thereon, provides that
the endorsee or transferee of a note
with such words thereon shall have
the same defence as would have ex-
isted between the original parties,
and subjects to indictment, any one
issuing, selling or transferring such
notes without such words written
thereon.
One of the plaintiffs gave two notes
to the defendant for the purchase
money on the assignment of a pa-
tent right on which the required
words were written. These notes
were subsequently cancelled, and in
lieu thereof the notes in question
were given, made by both plaintiffs
without having the said words there-
on : —
ffdd, that the notes were enforce-
able by defendant, these words not
being required as between maker
and payee, and, even if they were,
the makers had the right to and did
waive having the same thereon.
Girvin v. Bv/rk, 204.
2. Nonr^egotiahle promissory note
— Endorsement of — Character in
which endorsement is made.] — Where
a non-negotiable promissory note,
given for money lent to a fii*m, is
made by one member thereof and
endorsed by the other, the character
in which the endorsement is made,
will be implied from the purposes for
which the note is given, the endorse-
ment obtained, and the particular
circumstances of the case, which
were here held to make such indor-
ser liable as guarantor. McPhee v.
McPhee et al., 603.
BILLS OF SALE AND CHATTEL
MORTGAGES.
Mortgage of goods to secure ivife
barring doiver — Payment of money
into Qov/rt — Chattel Mortgage Act —
Interpleader— B, S, 0. 1887, ch, 126,
sec. G.] — A husband executed to his
wife a chattel mortgage to secure her
against loss by reason of her having
barred her dower in certain mort-
gages of land. The goods were seized
by his execution creditors, claimed
by her, and sold pending intei'pleader
proceedings. The husband was still
living : —
Held, that the money, the pro-
ceeds of the goods, must remain in
Court to abide further order, so that
the wife could have the same secur-
ity that she had by the mortgage ;
and if she should not hereafter be-
come entitled to the money, it would
be available to the husband's
creditors : —
Held, also, that the chattel mort-
gage was valid, notwithstanding any-
thing in R. S. O. 1887, ch. 125, sec.
(». Morris v. Martin, 564.
BOND.
For performance of drUies as Beg-
M^ror.]— 5'ee Registry Laws, 2.
BONDHOLDERS.
Bights of to property of Baiiway
Companies,] — See Railways, 5.
Breach of promise of manriage,'] —
See Husband and Wipe, 2.
BY-LAW.
Authorizing the taking of gravel
without specif yinglands,] — See Muni-
cipal COBPORATIONS, 2.
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DIGEST OF CASES.
[vol.
Froof o/!] — Set Justice op the
Peace, 1.
See alsoMuNICIPALCORPORATIONS,
3. Tavebns and Shops.
OASES.
Brwjffn V. McLean, 18 O. E. 633,
specially considered.]— /S'tf* Registry
Laws, 3.
Croskery, Re, 16 O. R. 207, fol-
lowed.]— See Dower.
Corfiam v. Kingston, 17 O. R.
432, approved and followed.] — See
Mortgagor and Mortcuoeb.
Dominion Bank v. Oliver , 7 O.R.
432, followed.] — See Mortgage, 2.
EUis V. Emmanuel, 1 Ex. D. 167,
followed.] — See Bankruptcy and
Insolvency, 2.
Fletcher v. Rylands, L. R. 1 Ex.
282 ; L. R. 3 H. L. 330, applied.]
— See Husband and Wife, 1.
Fumival v. Brooke, 49 L. T. N. S.
134, followed.] — i^e^ Seduction.
Harper v. Charlesivorth, 4 B. <fe C.
674, considered.] — See Landlord
and Tenant.
Henderson v. EUley, 14 O. R. 149,
cited and relied on.] — See Partner-
ship, 3.
Hobson V. Boss, L R. 6 Ch. 792,
distinguished.] — See Bankruptcy
AND Insolvency, 2.
Johnson V. Hope, 17 A. R. 10,
followed.] — See Bankruptcy and
Insolvency, 1, 3.
Lawless v. Sullivan, 6 A pp. Cas.
373, sjiecially referred to.] — See As-
sessment AND Taxes.
Moore, In re, McAlpine v. Moorey
21 Ch. D. 778, distinguished.] — See
Executors and Administrators.
Murphy v. Phillips, 35 L. T. N. S.
477, distinguished.] — See Mastbb
AND Servant, 2.
Murray v. Dawson, 17 C. P. 688,
followed.] — See Water and Wateb-
COURSBS, 3.
O'Byrne v. Campbell, 16 O. R.
339, distinguished]— ^'(ee Water and
Watercourses, 3.
Regina v. Wright, 14 O. R. 668,
followed.] — See Conviction.
Rist V. Faux, 4 B. & S. 409, spe-
cially referred to.] — See Seduction.
Thompson v. Ross, 6 H. & N. 16^
distinguished.] — See Seduction.
Wells V. Maxwdl, 32 Beav. 652^
followed.] — See Sale of Land, 1.
CHATTEL MORTGAGES.
See Bills of SiVLE and Chattel
Mortgages.
COMPANY.
1 . Winding-up proceedings — In-
fant stockholder r^mdiaiing liability
as contributory — Laches — Aoquies-
CCWC6.]— The petitioner's father signed
her name to a stock subscription
book of a bank, paid the calls, and
received the dividend cheques, which
were endorsed by her at her father's
request, the moneys being received
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DIGEST OF CASES.
757
by him. The Bank was put into
liquidation by winding-up proceed-
ings, and the order f on call against
oontributories was made three
months before she canre of age.
A year after the liquidation com-
menced she took proceedings to have
her name removed from the list of
oontributories : —
jkeldy that she was not liable as a
contributory, and that her name
must be removed from the list. Be
Centred Bank and Hogg, 7,
2. Director — Fiduciary capacity
— Pv/rchaae by director of property
of company sold under mortgage —
Liability to account — Breach of trust
— Winding-up Act, Dominion wnd
Provincial — Constitutional law — B.
S. C. ch. 129, sec, 83— B, S. 0,
1887, ch, 188,]—^ director of a
joint stock company, having a judg-
ment and execution of his own
against the property of the company
acting in good faith, purchased the
same at a sale by mortgagees, under
a power of sale for $8,400, and sold
it in the following year for $23,000 :
Held, in winding-up proceedings,
that he could not purchase • for his
own benefit, but held the land as
trustee for the company, and was
accountable for any profit received
on a re-sale, and . by reason of his
refusing to pay over or account for
such profits, and in fact by his ap-
pearing as a bidder ac the sale and
so damping the bidding, was guilty
of a breach of trust within R. S. C.
ch. 129, sec. 83.
Semble, notwithstanding the Act,
52 Vic. ch. 32 (D.), amending the
Dominion Winding-up Act, the
Ontario Winding-up Act, R. S. O.
1887, ch. 183, does not apply to a
company incorporated in Ontario
where application to wind up is made
on the ground of insolvency, because
local legislatures have no jurisdiction
in matters of bankruptcy or insol-
vency. Be Itoth Clay Brick Manu-
facturing Company — Turner's Case,
113.
COMPENSATION.
Default in payingJ] — See R\il-
«-ATS, 1.
CON. RULES.
218.]— See Courts.
261, 313.]— See Seduction.
CONTRACT.
Statute of Frauds — Extrinsic
parol evidence as to parties — Specific
performance.] — Although extrinsic
parol evidence may be given to
indentify one of the parties, it can-
not be given to supply information
as to the person to whom an offer in
a memorandum required to be in
writing by the Statute of Frauds
was made or for whom it was in-
tended.
And where an offer, signed by the
defendant, to exchange a stock of
goods for land did not in any way
designate the person to whom it was
supposed to be made or for whom
it was intended, and such person
could not be ascertained without
extrinsic parol evidence adding to
the memorandum : —
Held, not to be an agreement in
writing within the statute so as to
entitle the plaintiff to specific per-
formance : —
Held, also, that an acceptance of
the ofier beneath the defendant's
signature, signed by the plaintiff 'a
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DIGEST OF CASES.
[vol*
assignor, did not cure
Wkite V. TcyiTudin, 513.
the defect. I See also Liquor Licbnsr Act —
Nboligeitcb — Waters and Watebt
COURSES, 3.
CONTEIBITTORY NEaLIGENOE.
iSec Municipal Corporations, 4.
OONVIOTION.
Imposition of costs of commitment
and conveying to jail — Offence
against Ptcblic Health Act, R, S. 0,
cL 205,] — A conviction for carrying
on a noxious and offensive trade
contmry to R. S. O. ch. 205, the
Public Health Act, imposed in de-
fault of sufficient distress to satisfy
the fine and costs imprisonment in
the common gaol for fourteen days,
unless the fine and costs, including
the costs of commitment and con-
veying to jail were sooner paid.
He^, following Eegina v. Wright,
14 O. R. 668, that the imposition of
the costs of commitment and convey-
ing to jail was unauthorized, and
that sec. 1 of R. S. O. ch. 74, not
referred to in that case, did not
affect the question. Eegina v.
Rowlin, 199.
See Intoxicating Liquors — Jus-
tice OP the Peace, 2, 3 — Liquor
License Act.
CORPORATIONS.
See Company — Municipal
po RATIONS — Prohibition, 1.
ODUNTY OOURTS.
'' AU Judges'' of the County
Court in R. S, C. ch, 1^2, see. 5,
includes Junior Judge.] — See Ex-
tradition, 2.
COR-
OOSTS.
0/ conveying to jaiL] — See OoN-
vicTioN — Justice op the Peace, 3
COURTS.
Chcmcery Divisional Court — t/ur-
isdiction — Criminal matters — R. S.
0. 1887 ch. Uy sec. 62--Consoli'
datedRule 218— Marginai Rule 4S0.]
— On a motion to make ahsolute a
rule nisi in a criminal matter before
the Chancery Divisional Court : —
Held, per Boyd, C, that the Court
had jurisdiction to entertain the
matter, for the Divisional Sittings
of the High Court of Justice are
now the equivalent for the former
sittings iu full Court in term at com-
mon law, or for the purpose of re-
hearing in Chancery, aud the crim-
inal jurisdiction vested in the High
Court not exerciseable by a single
Judge is by the effect of legislation
to be administered by Judges com-
posing any of these Divisional
Courts. Each Division is to follow
the same pittctioe, and therefcHie the
Chancery Division is empowered to
use the criminal practice and pro-
cedure which was formerly pecaliar
or limited to the Common Law
Courts: —
Held, per Ferguson, J., that the
Court had not jurisdiction to enter-
tain the matter, inasmuch as it was
a Divisional Court sitting under the
provisions of Cons. Rule 218 ; and
had, therefore, only power to exercise
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DIGEST OF CASES.
759
the juripdiction of the High Court
for the purposes {i*eferred to in B.
S. O., 1887, ch. 44, sec. 62, and 4iot
the power to exercise the full juris-
diction of the High Court, such as,
semble, would be possessed by a
division of the Court sittings under
the provisions of old marginal? Rule
480. There were no rules of Court
whereby it had been ordered that
any criminal businessj should be
transacted and disposed of by this
Divisional Court of the High Court,
for the purpose of which it would be
neces.sary to exercise any part of the
■criminal jurisdiction of the High
Court. Queen v. BirchaU, 697.
GOVEBTTJRE.
Removal of disability of.] — See
Limitation op Actions.
CREDITOR.
See Judgment Creditor.
CRIMINAL LAW.
1. Pleading — Libel-Justification
— Particulars — Motion to quash plea
— R. S. C. ch. 17 J^ sec 2,; sub-sec
(c): sec, 14s.'] — To an indictment
for libel, the language of which was
couched in vague general terms, the
defendant pleaded that the words
4ind statements complained of in the
indictment were true in substance
-and in fact, and that it was for the
public benefit that the matters
charged in the alleged libel should
be published by him : —
Held^ that the plea was insufficient
because it did not set out the par-
ticular facts upon which the defen-
dant intended to rely ; and that the
96— VOL. XIX, O.K.
omission from 37 Vic. ch. 38, sec. 5,
(R. S. C. ch. 163, sec. 4) of the
words " in !the manner required in
pleading a justification in an action
for defamation," which were con-
tained in C. S. U. C. ch. 103, sec. 9,
had not the efiect of altering the
rule : —
Ueld^ also, that this was a case in
which the Court should in the exer-
cise of its discretion quash the plea
upon a summary motion, without
requiiiDg a demurrer, a course per-
mitted by sec. 143 of R. S. C. ch.
174, as interpreted by sec. 2, sub-sec.
(c). Regiiia v. CreiglUony 339.
2. Rape — Croum case reserved —
Evidence to go to, jufy.\ — On a
Crown case reserved it is not proper
to reserve the question whether
there is sufficient evidence in sup-
port of the criminal charge, that
being a question for the jury :
whether there is any evidence is
a question of law for the Judge.
The evidence against the prisoners
here was the uncorroborated evidence
of the woman charged to have been
raped which, in view of admissions
made by her, and the circumstances,
was unsatisfactory : —
Heldy that the evidence was prop-
erly submitted to the jury, but the
Court directed that the attention of
the executive should be called to the
case. Regvna v. Hermwn Lloyd^
George Lloyd and Albert Lloyd, 352.
3. Separate indictments for taking
U7imnrried girl out of control of
father, and seduction — Separate
offences.] — The prisoner was con-
victed under R S. C. ch. 162, sec.
44, the Act relating to *' offences
against the person,'' for unlawfnUy
, taking an unmarried girl under the
age of sixteen yean* out of the pos-
session and against the will of her
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DIGEST OF OASES.
[TOL.
father. On the same day the pris-
oner was again tried and convicted,
under R. S. C, ch. 157, sec. 3, the
Act relating to *< offences against
jjublic morals/' for the seduction of
the said girl being previously of
chaste character and between the
ages of twelve and sixteen years of
age.
iTcW, that the offences were sev-
eral and distinct, and that a convic-
tion on the first indictment did not
preclude a conviction on the second
one. Regina v. Smithy 714.
OX7BTE8Y,
Tenant by the.]-
OF Limitations.
See Statute
DAMAGES.
AgreemeTit /or sale of land — 06-
structiofh to land by railway company
— Rights of vendor amd purchaser as
to iiamages.] — The plaintiff was in
possession ot certain lands under an
oral agreement of purchase at $450,
payable in bricks deliverable as de-
manded, of which $100 worth had
been demanded and delivered. The
defendants, without making any
compensation or taking any steps
under the statute therefor, built
their railway in front of the land so
as to interfere with the plaintiff's
right of access, whereupon this action
was brought, and damages recovered
by the plaintiff, he being treated as
entitled to the whole estate in the
land and the injury permanent, re-
ducing the value of the land.
Held, that the company were tres-
passers, and could not justify the
acts complained of under the statute :
that substantial damages, on proof
of them, were recoverable for the
disturbance of the possession; bat
in a first action only nominal djuna-
ges for the injury to the reversion.
Held, therefore, that the damages
here were not properly assessed, and
a new trial was directed.
Semhlcy that the damages for in*
jury to the reversion belonged to the
vendor j and leave was given to add
him as a party plaintiff.
The position of a vendee under a
contract for sale of land considered.
Mason v. The South Norfolk R. W.
Co,, 132.
See Kbw Trial — Waters and
Watercourses, 2— Mortgagor ani>
Mortgagee.
DEATH.
Of co-plaintiff between verdict and
judgment,] — See New Trial.
DEED.
Registration of subseque^U deed^
priority of.] — See Registry Laws, 1.
DEFAMAnON.
1. Libd — Article referring to ad-
vertisement published contempomne^
atuly — Fair criticism — Eviderwe —
PlairUiffs case — Piroduction of ad-
vertisement — New trioL] — The
plaintiffs brought a written adver-
tisement to the defendant for the
purpose of having it published in his
newspaper, but the defendant re-
fused to insert it, and the plaintifis
took it away intimating that it would
be immediately published in another
newspaper. It was so published;
and on the day of its publication an
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DIGEST OF CASES.
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article, written before its pablica-
tion, appeared in the defendant's
newspaper, referring to it as unfit
for publication. The plaintiff sued
the defendant for libel The trial
Judge told the jury that if the article
was nothing more than a fair criti-
cism of the advertisement, it was
not libellous. It was objected that
the defendant was not entitled to
criticise the advertisement because
it had not been published before the
article criticizing it : —
Held^ that this was not a valid
objection.
The trial Judge ruled that the
plainti£G3 were bound to produce and
put in as part of their case the
written advertisement referred to by
the defendant in the article com-
plained of; and the plaintifiB, though
protesting, accepted the ruling and
put in the evidence : —
Held, that the ruling was wrong ;
but that the plaintiffs were not en-
titled to a new trial, the only injury
to the plaintiffs being to let the
defendant's counsel have the last
word with the jury. Graham et al. v.
McKimm, ^75
2. Lihd — LeUer partly libelloua —
PtMioation on privileged occasion —
Malice], The plaintiff and one S.
had been in partnership, S. having
retired and left the country. Sub-
sequently the plaintiff made an as-
signment for the benefit of creditors.
The defendant was a creditor and was
appointed one of the inspectors of
the estate. S. wrote a letter to one
F. relative to the plaintiff's business,
a portion of which the plaintiff
claimed to be libellous, the remain-
der being admittedly privileged. F.
forwarded the whole letter to the
defendant who shewed it to his co-
inspector, a creditor, and also to
another creditor.
In an action against the defend-
ant for the publication : —
Held, that the occasion of the pub-
lication was privileged, and that the
privilege attached to the whole letter,
it having been shewn only to persons
equally interested with the defend-
ant in the matter. Ro^DaTth v.
Kilgour, 640,
DELAY.
In moving to quash hy-law.] — S^e
Taverns and Shops.
DEPOSITIONS.
TaJcen in the absence of the
accused!] — See Extradition, 2.
D£VISE.
See Will.
DEVOLUTIOHt.OF ESTATES AOT.
R. S 0. ch, 108, sec, 4, sub-sec 2
— Election hy will — Time of will
taking effect.] — An election by a
widow to take her distributive share
in lieu of her dower under sec. 4,
sub-sec. 2 of "The Devolution of
Estates Act," may be made by will,
which as to such election speaks
from the time of its execution, and
not from the time of her death. Be
Ingolshy. 283.
See Vendor and Purchaser, 2.
DIBEOTOB
Purthasing companies property. '\
— See Company, 2.
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DIGEST OF CASES.
DITOHES AND WATEBOOUBSES
AOT, 1883.
See Waters and Watebcourses, 3.
DIVISION OOUBTS.
See Game — Prohibition, 2.
DIVISIONAL OOUBTS.
See Courts.
DOMIOILE.
See Infant.
DONATIO MOBTIS CAUSA
Sufficiency o/!] — See Will.
DOWEB.
Equity of redemption.'] — There
<jan be no dower in land of which
the husband had merely acquired the
equity of redeiD]:)tion, and which he
had parted with.
Re Croaker y, 16 O. R. 207, fol-
lowed. Gardner v. Broum, 202.
Mortgage of goods to secure wife
barring dower.] — ^ea Chattel Mort-
<3A6ES.
EASEMENT.
See Waters and Watercourses,
2.-WAY.
ELECTION.
f^\By win to take under the Devolvr-
iion of Estates Act.] — See Devolu-
tion OP Estates Act.
[vol.
"S EQUITY OF BEDEMPnON.
See Dower.
EVIDENCE.
Power to re?nand for further. 1 —
See Extradition, 2.
See also Criminal Law, 2. —
Defamation, 1. — Extradition. 1.
— Husband and Wife, 4. — Insub-
ANCE, 1, 5. — Justice of the Peace.
— Mortgage, 2. — Railways, 2.
EXCHANGE.
Of lands.] — See Vendor and
Purchaser.
EXECUTION.
Free grants and homesteads — Ex-
emption from execution — Interest of
original locatee as mortgagee after
alienatio7i,] — The defendant was lo-
catee of certain lands under the Free
Grants and Homesteads Act, R S.
O. ch. 25, and duly obtained patents
therefor. Afterwards he and his
wife sold and conveyed parts of the
land, he taking back mortgages to
secure the purchase money : —
Held, that the mort^a^es were not
interests in the land eK*impt from
levy under execution within the
meaning of sec. 20, sub-sec. 2.
The exemption extends to the
land or any part thereof or interest
therein so. long as it is held by the
original location title, whether be-
fore or after patent ; but where there
has been a valid alienation, a mort-
gage taken by the original locatee
does not vest in him qud locatee.
The word "interest" used in the
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DIGEST OF CASES.
763
sub-section does not extend to the
chattel interest of a mortgagee. Cann
▼. Knott et fix., 422.
EXEOTJTOBS AND ADMINISTRA-
TOBS.
Removal of executor — Trustee Act^
1850.] — An executor cannot be re-
moved from his position, where any-
thing remains to be done appertain-
ing to his office, even although the
will provides for his continuance as
a trustee thereunder after his duties
as executor have ceased, and he has
acted as trustee by investing part of
the trust moneys.
In re Moore, Mc Alpine v. Moore,
21 Ch. D. 778, distinguished. Be
Bush, 1.
EXEMPTION.
From execution of free grant and
homestead,] — ISee Execution.
EXPULSION.
Of member from a Society,] — See
Benevolent Society.
EXTRADITION.
Forgery — Evidence.] — A cargo of
oats was received at an elevator for
the S. Co., of which the prisoner was
a member, and also secretary and
financial manager with power to sign
notes, etc. On the day of their re-
ceipt a clerk of the S. Co., who was
authorized so to do, prisoner having
nothing to do with the buying and
selling of the grain, signed an order
for the delivery of 19,886 bushels
of the oats to a railway company,
consigned to the S. Oo.'s agents in
New York, on whom two drafts were
drawn by the S. Co., signed by the
prisoner, which were accepted and
paid. Warehouse receipts transfer-
able by endorsement, were given to
the S. Co. for these oats, though irfter
the delivery thereof to the railway
company, and were allowed to re-
main with the S. Co. , without any
demand being made for their cancel-
lation. Subsequently, the prisoner,
in the name of the S. Co., discoun-
ted two promissory notes at a bank,
and endorsed the warehouse receipts
as security for the payment thereof,
the notes containing a statement
that the receipts were pledged as
such security with authority to sell,
etc., in default of payment.
Held, in extradition proceedings,
that the endorsement to the bank of
the receipts did not constitute for-
gery. In re Sherman, 315.
2. Junior Judge of County Court —
i?. ^S'. C. ch. 142, sec. 5 — Justices —
Proof as to— State officers — Deposi-
tion taken in absence of accursed —
Identity of forged note — Power to
remand J or further evidence^ — The
expression, ** all Judges, <fec., of the
County Court," contained in sec. 5
of the Extradition Act, R. S. C. ch.
142, includes the Junior Judge of
said Court. On a chan»e of forgery
of a promissory note, alleged to have
been committed in the State of
Kansas, the justice before whom the
depositions were made was certified
to be a justice of the peace, with
power to administer oaths : —
Held, that he was a magistrate or
officer of a foreign state within sec.
10 of the Act ; and also that it was
not necessary that he should be a
federal and not a state officer ; and
further that the depositions need not
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DIOEST OF CASES.
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be taken in the presence of the ac-
cused.
The depositions failed to shew that
the note, alleged to be forged, was
produced and identified by the de-
ponents or any of them : —
HMy that this constituted a valid
ground for refusing extradition; and
that there was no ponrer to remand
the accused to have further evidence
taken before the extradition Judge
as to such identification. In re John
Wesley Farker, 612.
FAOTOBIES AOT.
See Master and Servant, 2.
FORGEBT.
Identity of forged note,] — See Ex-
tradition, 2.
iS^ also Extradition, 1.
FRAUDS, STATUTE OF.
See Contract.
FBAXTDULENT PBEFEBENCE.
Agreement to supply nuUericU for
manufacture, the goods manufactured
nevert^ieless to remjain the property
of ike supplier of the material — De-
feating and delaying creditors.] — It
appeared on the trial of an inter-
pleader issue, that the claimant had
agreed in writing with the execu-
tion debtor, an insolvent, to furnish
material to the latter for the manu-
facture of carriages, from time to
time, for one year, it being provided
that no property in such goods
should pass, but that notwithstand-
ing any improvement or work upon
the same, or change of form or ad-
dition thereto or use thereof, the
same and every part thereof should
be and i-emain the goods and pro-
perty of the claimant
The material was supplied and
manufactured into carriages by the
execution debtor, which were seized
by the defendants, execution credi-
tors of his, and the claimant claimed
the same, more being owing to him
for the material supplied thau the
value of the goods seized : —
Held, reversing the decision of
Armour, C. J., that the above agree-
ment was not one which could be
said necessarily to have the effect of
defeating or delaying creditors, and
in the absence of fraud the claimant
was entitled to succeed on the is-
sue:—
Held, also, reversing the decision
of Armour, 0. J., that the fact that
the claimant, thinking that the
above agreement was lost, from
time to time took mortgages from
the execution debtor upon the carri-
ages manufactured by him, made no
difference ; for even if this had the
effect of vesting the property there-
in in him that could only be subject
to the lien of the claimant to be paid
out of them. Moreover the mort-
gages having been taken, not to
supersede the original writing, but
under the error that that being lost
(as supposed) would be no longer
available, the rights of the parties
were still subject to the original
agreement. Wellba^iks v. Heney,
549.
FSEE GRANTS AHD HOME-
STEADS.
See Execution.
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DIGBST OF CASES.
765
GAME.
FercB naturce — Property of oumer
of land in deer found thereon — 29 dc
SO Vic, ch. 122— R. S. 0, ch, 221,
sec. 10 — Construction of — Prohibi-
tion— Division Court-- Undisputed
faUs — Error in law — Misconstruc-
tion of statutes.^ — The defendant
killed upon his own land, which ad-
joined that of the plaintiffs and was
unfenced, a deer, one of the progeny
of certain deer, imported by the
plaintiffs and defendant, and allowed
to run at large upon the land : —
Held, that the deer was feroe natu-
roB and, having been shot by the
defendant upon his own land, be-
longed to him : —
Held, also, that neither the Act
incorporating the plaintiffs, 29 <& 30
Vic. ch. 122, nor R. S. O. ch. 221,
sec 10, vested the absolute property
in the deer in the plaintiffs.
Prohibition was granted to a Di-
vision Court where there were no
facts in dispute and the J udge in the
inferior Court applied a wrong rule
of law to the facts and grounded his
judgment upon a misconstruction of
the Acts above referred to. Re Long
Point Company v. Anderson, 487.
GENERAL AVERAGE.
See Insurance, 4.
GUARANTY.
Construction of.] — See Bankrupt-
cy AND Insolvency, 2.
GUARDIAN.
Non-appointment of to infant de-
/endant.]'-See Seduction.
HIDES'
General Inspection Act — **Any-
thhig done under this Act" — R. S, C.
ch. 99, sees. 26, 96, 104— Action
against inspector of hides — Pleading
— General issue.] — In an action
against a government inspector of
leather and raw hides for fraudu-
lently grading and branding incor-
rect weights and qualities on hides : —
Held, that "anything done under
this Act," in R. S. C. ch. 99, sec. 26,
has the same meaning throughout
the section, and means ** anything in-
tended to be done under this Act '*;
and the defendant not appearing to
have acted maldjide, or to have in-
tended not to perform his duty under
the Act, was entitled to the protec-
tion of this section, though he had
not pleaded the general issue in
terms, inasmuch as he had in effect
stated that what he did was done
under the Act.
Semhle, that full effect may be
given to sections 96 and 104 of R.
S. C. ch. 99, by holding that up to
five per cent, of any deficiency or
excess in the weight of certain kinds
of leather the inspector is protected
against any action, and as to any
excess he is entitled to any defence
open to him under the Act or other-
wise. Grant v. Cidha/rd, 20.
HIGHWAY.
Obstruction on.] — See Municipal
Corporations, 4.
HUSBAND AND WIFE.
1. Animals — Liability of wife of
owner of aniirud ferce naturce for
escape from lier separate property —
Negligence.] — A bear belonging to
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DIGISST or CA3I5
[tol.
pr«ibU^^ the «^|«rat« f.TOpertr of
fak w fe. ihe o'.h*^ lUzif^A^kUX^ where
It bad ^J^ten cr.t. tired V|T him without
o^jjectK^n f roHi hfrr. and atucked atd
mjiired th*r plaint iff on a public
street: —
//«W. that the wife havine nnder
R. H. O. ch- 132, s«ai. 3 and U, aii
the riifhtii of tifen*^ W-« in respiect
i>f her >>ejiarat^ profi^^rtj, might hare
had the bear removed therefrora,
and not havinjr doue soahe wa8 liable
to the plaintiff for the injury eom-
plaine^l of. I
The principile of FUlfher r. Ry-
UfuU, L. R I Ex. 282, L. R 3 H.
L. 330, applied. Shavo et aL y, Jfc- '
Orearj/ et al,, 39.
2. Acti&n f(/r breach ofpTomi9e of ^
marriage — Xonsutt — Release by '
promuee,] — In an action for breach ,
of proTiiiw; of marriage the plaintiff's
evidence was that after promising to •
marry her in 1^*85, the defendant in
March, 1 H86, visited her and refm- ,
diated his promise, whereupon she i
ordered hirn out of her house, and
refused afterwards to renew the en-
gagement. The trial Judge non-
suited the plaintiff on the ground
that this amounted to an absolute
release, and that the relationship
Vjetween the {jarties was terminated.
IJeldf that the defendant having
previously violated his engagement,
the matter should have been left to
the jury, who might have reasoned
that the plaintiff chose to consider
the connection at an end, and that
she was not willing to subject her-
self to the pain and mortification of
being again deceived. Reynolds v.
Jamieso7if 235.
3. Action by wife €igain8t htts-
baruVn relatives — FcUse representor
tions and conspiracy to bring about
-.pe^Wjm£ .
'ie pi>'«'\. — Accarc •■
wcsian ^.xisi^ zm it
and bn^i^r •:< **er
daiEA^isi tyr £kLse
made to her t« jre rarriaize aa to
the eharainer ar.d rrAT«:*aI scanding
of fcer hi*b«i>i. ^rA f-x- entering
into a fraudileni cTKistincj to in-
duce tl^ p'.a:nri^ t«> ecier into the
marria^ oocimct : —
HeUL that the acttxi betnv with-
out precedent and cootzary to pub-
lic pc'licy was nc< maintaiziable.
Brenn^n t. Br^nmnk ei aL. 327.
4. Adranee ofmamey frxfm wife to
husband — Fresumf^ion of gifi —
OntLS — CorrrJtioratire erid'^noe — R.
S. O, 1SS7, ch. 67, sec. 70.}--Where,
in administration proceedings^ the
widow of the deceased claimed from
the execator re[Ayment of certain
moneys paid by her, at her hus-
band s request, out of her separate
profierty, on preminuLs payable on
policies on his life, which she swore
were to be repaid to her : and it
appeared that the moneys were paid
by a third person who held them to
the use of the claimant ; that she
acquiesced in the payment of them
with great reluctance ; and that she
had no claim to any part of the
policy moneys, which were wholly
at the disposition of the deceased : —
Held, that under these circum-
stances the ontLs was on the executor
to prove that the moneys were a
gift to the deceai$ed, and it was not
necessary for the claimant to pro-
duce corroborative evidence that
the moneys were to be repaid in
order to recover.
In order to make out that money
paid by a wife to her husband was a
gift, it is necessaiy to prove it either
by direct evidence or by such a course
of dealing between the husband and
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DIGEST OF CASES.
767
wife as shews that the money was
8o paid to him as a gift. Elliott v.
JBuaseU, 413.
5. Purchase by mfe attbject to
mortgage — Separate estate — Liabil-
ity of wife to indermiify grantor.'] —
A married woman to whom land is
conveyed, subject to incumbrance,
whether by way of purchase or ex-
change, is bound to indemnify her
grantor against the payment of such
incumbrance), and the property so
conveyed to her is separate estate
with respect to which such obliga-
tion arises.
Decision of MacMahon, J., re-
versed. McMichael v. Wilkie et al.y
739.
See Limitation op Actions.
INCOME.
Assessmerhi of at branch office.] —
See Assessment and Taxes.
INDICTMENT.
See Oriminal Law, 3.
INPANT.
Domicile in Quebec — Tutors in
Quebec entitled to have infa/n€s money
in Ontario paid over to tJiem.]
Held, that the duly appointed
tutors in the Province of Quebec of
an infant domiciled and residing
there, which Province had also been
the domicile of the father at his
death, were entitled to have paid
over to them from the Ontario ad-
ministrators of the father's estate,
there being no creditors, money
coming to the infant from said estate,
97 — ^VOL, XIX. 0.R,
which had been collected in Ontario.
Hanrahan v. Hamrohan^ 396.
See Company, 1 — Seduction —
Trusts and Trustees, 1.
INJUNCTION.
Street Eailway — Operating on
Sunday— E. S. 0. ch. 171 --Right to
restrain.] — The defendants, by let-
ters patent issued under the Street
Railway Act, R. S. O. ch. 171, were
authorized to build and operate (on
all days except Sundays) a street
railway, &c. On an information
laid to restrain the operating the
railway on Sunday :
Held, per Qalt, C.J., that an in-
formation would not lie, for the Act
did not prohibit running cars on
Sunday ;
Per Rose, J., that the information
would lie, for the authority to oper-
ate the railway "on all days except
Sundays'* implied a prohibition
against working it on Sunday :
Per MagMahon, J., that the in-
formation would not lie, for no pri-
vate right or right of property was
involved nor any injury of a public
nature done, and the interference of
the Court will not be exercised mere-
ly to enforce performance of a moral
duty. The Attorney-General, ex rel
Richard Hobbs v. The Niagara Falls
Wesley Park and Clifton Tramway
Co., 624.
Without qtuuhing by-law.] — See
MuKlciPAL Corporations, 2.
See also Railways, 1 — Waters
AND Watercourses, 2.
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DIGEST OF CASES.
[VOL.
INNKEEPER.
Sale of stallion under R. S. 0.
ch'. 154y far keepy dhc, — Lien —
Revival of — Tavei*n License — Owner
of] — An innkeeper, claiming to
act under R. ' S. O., ch. 164,
sold by public auction a stallion
belonging to the plaintiff, a boarder
at his inn, to enforce a lien thereon
for the keep and accommodation
thereof.
Held, that the lien existed and
the sale was authorized.
After the lien accrued the plaintiff
removed the stallion and subsequent-
ly brought it back to the inn.
ffeld, that the lien revived on the
return of the stallion.
Under sec. 12 of R. S. O. ch. 194,
the person receiving a tavern license
is assumed to have satisfied the
license commissioners that he is the
true owner, but, notwithstanding,
it can be shewn that the licensee
was merely the agent of another
who was the real owner of the busi-
ness. Huffman v. WaUerhouae aitd
Broddij, 186.
INSPECTION AOT.
See Hides.
INSURANCE.
1. Life — Provision for payment
in case of " total disability " — Con-
structio7i of provision— Evidence.]
The plaintiff, who was a farmer
had his life insured by the defend-
ants, and there was a clause in the
policy or certificate of insurance
providing that in case of "total
disability '' of the insured the in-
surerers would pay him one-half of
the amount of the insurance. About
two years after effecting the insur-
ance the plaintiff conveyed his farm
to his son, reserving to himself and
wife certain benefits, but continued
to work upon the farm for about a
year thereafter, when he was at-
tacked by bronchitis and asthma.
In an action to recover one-half
the amount of the insurance the
evidence shewed that plaintiff was
totally disabled, permanently and
for life, from doing manual labour,
and that the diseases from which he
suffered were the proximate and
immediate cause of his disability.
A medical witness said that he con-
sidered the plaintiff's condition at-
tributable to a considerable extent
to his advanced years, he being
about seventy : —
Held, that total disability to work
for a living was what was intended
to be insured against, and disability
from old age was not excluded, and
the evidence shewed that the plaintiff
came within the terms of the certi-
ficate. The arrangement made by
the plaintiff with his sou after the
certificate was issued could have no
effect upon the prior contract of in-
surance. Dodds V. Canadian Mutual
Aid Association^ 70.
2. Fire — Interim receipt — Powers
of local agent — Approval by company
— Indorsements on application —
Non-repudiation — Prior insurance
— Eighth statutory condition — As-
sent of company — Election not to
avoid — Extension.] — The plaintiff
had for some years insured his mill
and machinery therein with the
defendants, the policy having been
effected through one of their local
agents, there being also another in-
surance with another company. The
plaintiff, desiring additional insur-
ance thereon, signed an application
therefor, for a portion thereof
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DIGEST OF CASBS.
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through the same agent, on which
was an indorsement, of which he
was unaware, and to which his
attention was not called, that where
steam was used for propelling pur-
poses the propo^l was required to
be submitted to the defendants be-
fore the interim receipt was issued.
The agent issued the interim receipt
to the plaintiff at the time of the
proposal, as was his practice, recog-
nized by the defendants. The appli-
cation, which contained a statement,
without the names of the companies,
of the amount of additional insur-
ances effected elsewhere and also
the amount of the prior insurance,
was sent by the agent to the defend-
.ants, but was mislaid by them after
they had made from it certain ex*
tensions on the policy, which had
Also been foi'warded to them for
ihat purpose.
About two months after the date
of the inteiim receipt the defend-
ants wrote their agent declining to
continue the risk on the inteiim
receipt, retaining however the por-
tion of the premium earned, at the
same time re-insuring half the risk.
Of this the plaintiff was not in-
formed, nor was any portion of the
premium repaid him : —
Hdd^ that the indorsements formed
no part of the application signed by
the plaintiff, and that the agent was
acting in the apparent scope of his
authority, and was to be deemed
primd facie to be the agent of the
company; and as the defendants
never repudiated the contract, but
merely determined to put an end to
it and treated it as a subsisting con-
tract, they were liable upon it.
Under the 8th statutory condition
the defendants claimed that they
were not liable upon the receipt be-
•cause there was prior insurance in
another company, and their assent
did not appear in and was not in-
dorsed on the policy, or that they
were not liable upon their earlier in-
surance because of the subsequent
insurance in other companies with-
out their assent : —
Held, that the application and the
interim receipt constituted the. con-
tract of insurance, and as in this
contract the total amount of insur-
ance was truly stated, and the con-
tract continued to be binding until
after the loss occurred, the defend-
ants must be considered to have as-
sented to such insurance, and would
be compellable to make their assent
appear in or to have it indorsed on
their policy if such policy were
issued : —
Hddj also, that the prior insur-
ance was voidable, not void, and
that the defendants, after the subse-
quent contract was entered into in
which the total amount of insurance
was stated, and after they knew that
it was entered into, had elected not
to avoid the prior insurance, but to
treat it as still subsisting by extend-
ing it.
tSemble, that the defendants, hav-
ing assented to the insurance stated
in the contract of insurance, could
not assert that the effecting such in-
surance had the result of avoiding
the prior insurance effected by their
policy. Cockbum et cU, v. Tlie British
America Assurance Company, 2jf^5.
3. Muttiallnsurance Companies — >
Statute law — Retrospective operation
—63 Vic. ch. 44, sec. 4 {0.)—B. S. 0,
1887, ch. 167, sec. 132. Held, that
53 Vict ch. 44, sec. 4 (0), substitut-
ing a new section for R. S. O. 1887,
ch. 167, sec. 132, is retrospective in
its o[)eration, and applies to premium
not^ given before its passing as well
as to those given afterwards. Re
Saugeen Mutual Fire Insurance
Company — KnechtePs Case, 4^7.
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DIGEST OF CASES.
[VOU
4. Marine — General average con-
tribuUion — Attempt to rescue vessel
and cargo — Common danger — Aver-
age bond — Acijvstment — Expendi-
ture—Liahility of owners of cargo.\
— A vessel loaded with coal stranded
under stress of weather, and was
abandoned as a total loss to the
underwriters, the plaintiffs. The
owners of the cargo, the defendants,
proposed to unload at their own
expense, but the plaintiffs refused to
permit this and would not allow the
defendants to get the cargo without
singing an average bond. Upon
this the defendants signed a bond
which was ex fade imperfect, and
the plaintiffs took steps to save
vessel and cargo by one expedition.
They failed to rescue the vessel, but
saved the larger part of the cargo.
They now claimed upon adjustment
contribution from the defendants for
the expenditure incurred, which was
in excess of the value of the salvage:
Held^ that the vessel and her
cargo were not when stranded in a
common danger, and the expenditure
was not for the preservation and
safety of both ship and cargo, but
for the deliverance of the vessel
alone ; that the average bond signed
did not bind the defendants to pay
more than they were rightly liable to
pay, and the adjustment was no
obstacle to the determination of the
real liability ; and that the defend-
ants were liable only to pay what
they would have paid to recover the
cargo by their own exertions. West-
vm Assurance Co, v. Ontario Coal
Co., 462.
5. Fire — Unoccupied building —
Special condition — Reasonableness
— Information given to ctgent of in-
surance company, but not in appli-
cation— Potvers of agent — Evidence
— Rejection of,] — The defendants
issued a policy of insurance against
fire dated 23rd April, 1889, upon a
house of the plaintiff.
The application signed by the
plaintiff stated that the house was
occupied as a residence by the plain-
tiff's son. A ffre took place on the
14th November, 1889, at which
date and for six months previously
the house had been unoccupied.
One of the special conditions indors-
ed upon the policy was that if a
building became vacant or unoccu-
pied and so remained for ten days,
the entire policy should be void.
The plaintiff and his wife swore that
when the agent came to him and
drew the application he asked the
plaintiff if there was anyone in the
house at the time, and the plaintiff
told him that his son was living
there at the time, but was going to
leave in about two weeks, and asked
if that would make any difference,
and was informed by the agent that
it would not By a clause in the
application the plaintiff agreed that
no statement made or informationi
given by him prior to issuing the
policy to any agent of the defend-
ants should be deemed to be made
to or binding upon the defendants
unless reduced to writing and incor-
porated in the application ; and on
the margin of the application there
was a notice shewing that the powers
of agents were limited to receiving;
proposals, collecting premiums, and
giving the consent of the defendants
to assignments of policies : —
Held, that the special condition
referred to was not an unreasonable-
one, and that the agent had no
power to vary it ; and an action to
recover the amount of the loss was
dismissed.
The plaintiff at the trial sought to
give evidence of certain transactions
between the agent of the defendants.
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DIGEST OF CASES.
771
and a brother of the plaintiff for the
purpose of shewing that the plaintiff,
having become aware of them before
the application made by him, was
justified in believing that the defen-
dants did not regard the condition
as to occupation as a material one:—
Heldf that this evidence was pro-
perly rejected. Feck v. Agricultural
his. Co., 494.
INSURANCE MONETS
Application of.] — See Mortgagor
AND Mortgagee.
INTEREST.
From what time to be ctUotved on
sale of land. — See Sale of Land, 1.
See also Trusts and Trustees, 1.
— Mortgagor and Mortgagee.
INTOXICATINa LIQUORS.
Liquor License Act, R. S. 0. ch.
194, *^c« ^^ — Selling liquor unthout
license — Conviction — Imprisonment
forthwith on non-payment of fine.] —
The defendant, being present in
Court on a charge which was dis-
posed of, was, without any summons
having been issued, charged with
another offence, namely, of selling
liquor without a license. The in-
formation was read over to him, to
which he pleaded not guilty, and
evidence for the prosecution having
been given, he thereupon asked for
and obtained an enlargement till the
next day, when, on his not appear-
ing, he was convicted in his absence,
and fined $50 and costs, and in de-
&ult of payment forthwith, without
any distress having been directed,
imprisonment was awarded :
Held, that under the circumstan-
ces the issuing of a summons was
waived.
Held, also, that the conviction in
awarding imprisonment in default of
payment, was properly drawn, for
by sec. 70 of R. S. O. ch. 194, un-
der which the conviction was made,
there is no power to direct distress.
Regina v. Clarke, 601.
JXTDGMENT CREDITOR.
Right to garnish earnings of Rail-
way Company.] — See Railways, 5.
JURISDICTION.
To grant a new trial between ver-
dict and judgment after death of co-
plaintiff.] — See New Trial.
JUSTICE OF THE PEACE
1. Procedure before — Proof of
m>unicipal by-law — R. S. 0. ch. 184$
sec. 289.] — On the trial of a charge
of being a transient trader without
a license contrary to a municipal by-
law, no copy thereof certified by the
clerk to be a true copy, and under
the corporate seal, as required by sec.
289 of R S. O. ch. 184, was given
in evidence. A by-law stated by
the solicitor for the complainant to
be the original by-law, was, however,
read to the defendant in Court : —
Held, that the requirements of
section 289 not having been com-
plied with, the conviction was in-
valid, and must be quashed. Regina
V. Dowslay, 622.
2. Absence of police magistrate —
Trial of ofencevmder R.S.C. ch. 157
— Alternative punishment — Impri-
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DIGEST OF CASES.
[TOL.
ionm&nlfoT more tha/a S months — R,
S. (7. ch. 178,]— By Bubnsec. 2, of sec.
8 of the R. S. C. ch. 167, any loose,
idle, or disorderly person, or vagrant^
shall upon summary conviction be-
fore two justices of the peace be
deemed guilty of a misdemeanour,
and liable to a fine not exceeding
$50, or to imprisonment not exceed-
ing six months, or to both. By sec.
62 of R. S. 0. ch. 178 the justices
are authorized to issue a distress
warrant for enforcing payment of a
fine ; and, if issued, to detain the
defendant in custody, under sec. 62,
until its return ; and, if the return
is '^not sufficient distress/' then to
imprison for three months. Two
justices of the peace for the City of
Toronto, in the absence of the police
magistrate for the said city, convict-
ed the defendant for an offence under
said Act, and imposed a fine $50,
and, in default of payment forthwith,
directed imprisonment for sixmonths
unless the fine were sooner paid : —
jffeldy that under the said sub-sec.
the justices had jurisdistion to ad-
judicate in the matter ; and that it
was not necessary to consider the
effect of an agreement entered into
between the police magistrate and
one of the justices to assist him in
the trial of ofiences : —
Held, also that the conviction was
bad, for under R S. 0. ch. 157 there
was no power to award imprison-
ment as an alternative remedy for
non-payment of the fine; while under
R. S. C. ch. 178, imprisonment could
only be awarded after a distress has
been directed and default therein ;
and furthermore the imprisonment
in such case could only be for three
months. Regina v. Lynah^ 664.
3. Summary conviction — ^^Liquor
LiccTiseAct" R. 8, 0. ch. 194—
Offence against sec, 49 — Arrest in
lieu of summons — Remamd by one
justice only — Powers of justices
under sec, 70 — Distress warrant —
Imprisonment upon nonpayment of
Jme and costs — Admission of no
distress — Costs of conveying to gaol
— Power to amerid conviction — Evi-
dence— Saving clause, sec, 105,] —
The defendant was convicted before
two justices of the peace of selling
liquor without a license, contrary to
sec. 49 of the *' Liquor License Act,"
R. S. O. ch. 194. A conviction
was drawn up and filed with the
clerk of the peace in which it was
adjudged that the defendant should
pay a fine and costs, and if they
were not paid forthwith, then, inas-
much as it had been made to appear
on the admission of the defendant
that he had no goods whereon to
levy the sums imposed by distress,
that he should be imprisoned for
three months unless these sums and
the costs and charges of conveying
him to gaol should be sooner paid.
An amended conviction was after-
wards drawn up and filed, from
which the parts relating to distress
and the costs of conveying to gaol
were omitted. A warrant of com-
mitment directed the gaoler to re-
ceive the defendant and imprison
him for three months unless the
said several sums and the costs of
conveying him to gaol should be
sooner paid.
Upon a motion to quash the con-
victions and warrant : —
ffdd^ that the mode adopted for
bringing the defendant before the
justices was not a ground for quash-
ing the conviction ; and semhle, alao,
that it was not improper to arrest
him instead of merely summoning
him : —
Beld, a,ho, that the fact that the
defendant was remanded by only
one justice could not affect the con-
viction.
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DIGEST OF CASEa
773
Semble, that the justices had no
power under R. S. O. ch. 194, sec.
70, to issue a distress warrant or to
make the imprisonment imposed de-
pendent upon the payment of the
fine and costs ; but as this objection
was not taken bj the defendant, no
effect was given to it : —
Held, also, that the justices had
the right to draw up and return an
amended conviction in a proper
case : —
Heldy also, that if the justices
were bound to issue a distress war-
rant, the insertion of the words re-
lating to the admission of the de-
fendant that he had no goods, was
proper ; and if they had no power to
issue a distress warrant, these words
were mere surplusage and did not
vitiate the conviction : —
Held, also, that if the justices had
no power to require the costs of con-
veying him to gaol to be paid by the
defendant, the conviction was amen-
dable, as and when it was amended;
for the amendment was not of the
adjudication of punishment : —
Held, lastly, that having regard to
sec. 105 of R. S. O. ch. 194, and to
to the evidence before the justices,
the convictions and warrant should
not be quashed. Eegina v. Menary,
691.
See Prohibition, 1.
LANDLORD AND TENANT.
Encroachment by tenant on adjoin-
ing land — Tide by possession — Ac-
tion of trespass — Intruder on Crown
landsX—A. lessee of a lot had for
more that twenty years exercised acts
of ownership over part of a lot ad-
joining, and now claimed to have ac-
quired title from his landlord by pos-
session to the said part, and brought
this action of trespass against the
present owner of the rest of the said
adjoining lot : —
Held, that his action must be dis-
missed, for although a tenant taking
in land adjacent to his own by en-
croachment, must, as between him-
self and his landlord, be deemed
primd facie to take it as part of the
demised land, yet that presumption
will not prevail for the landlord's
benefit against third persons.
The result of the cases appears to
be that where a person is in posses-
sion with the assent of the Crown,
paying rent ; or where a person is a
purchaser, although the patent has
not issued, such person can maintain
trespass against a wrong-doer, but
this was not the present plaintiff's
possession.
Harper v. Cha/rlestjoorih, 4 B. & C.
574, referred to and specially con-
sidered. Brwyea v. Rose, 433.
LAOHES.
See Company, 1.
LEASE.
Reasonable terms of building leaseJ]
-See Trusts and Trustees, 2.
LIBEL.
See Defamation.
UOENSE OOMMISSIONEBS.
See Mandamus.
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DIGEST OF CASES.
[VOI^
LIEN.
Mechanics* lien — Prior mortgage
— Svhsequent lien — Increase of sell-
ing valtie of land — Priority.] —
Where there is a registered prior
mortgage affecting land and build-
ings, and a mechanic's lien for subse-
quent work thereon, the mortgage
retains its priority to the extent of
the value of the security before the
work began, in respect of which the
lien attaches, and the lien has pri-
ority only to the extent of the ad-
ditional value given by the subse-
quent improvements.
And where the owner of a mill
subject to a mortgage, intending to
have certain improvements effected,
which although as regards the work
of a lien holder were fully carried
out, were otherwise only partly com-
plete and left the mill in an un-
finished state: —
Held, that the lien holder was not
entitled to priority for the work
done, it not clearly appearing that
the selling value of the property had
been increased thereby.
Where, in a consent judgment in
in the usual form in lien cases, a
reference was made to a local regis-
trar of the Court : —
jffeldf that an appeal lay from his
report, it appearing from the whole
judgment that the reference was to
him as Master. Kennedy et cU. v.
ffaddou) et al., 240.
Revival o/.] — See Innkeeper.
Priority of] — See REaiBTBT
Laws, 3.
See also Railways, 1.
LIMITATION OF AOTIONS.
Husband and wife — Removal of
disability of coverture — R. S, 0., eh
111, sees. 4, 4S—Ti4le by posseseion
— Right of entry — Mortgagor bar-
ted, m>ortgagee not] — A husband and
wife were married in 1841, In
1865 the wife acquired three ad-
joining lots of land by conveyance
from a stranger. The defendant
was put in possession of the lands in
1869 by the husband, and in 1870
one of the lots was conveyed by
them to him. In 1881 the husband
and wife mortgaged the unconveyed
lots which were afterwards pur-
chased by the plaintiff at a sale
under the power of sale in the
mortgage. The defendant remained
in possession of all the lots until
1888. In an action of trespass : —
Held, (in this affirming the judg-
ment of Rose, J.), that the wife's
disability of coverture having been
removed in 1876 by 38 Vict ch. 16
sees. 1 and 5 (R. S. O. ch. Ill, sees.
4 and 43), the Statute of Limitations
ran against her from that time, and
that the defendant had acquired a
good title by possession against her: —
Heldf however, that a new right
of entry accrued to the mortgagee^
and that the statute did not com-
mence to run against him until (as
the earliest possible period) the time
of the execution of the mortgage,
less than ten years before action, and
that the plaintiff claiming under him
was entitled to succeed.
Semble, per Ferguson, J. The
plaintiff, as purchaser under the
power of sale, acquired a "new
title " at the time of such sale, at
which time the Statute began to ran
againt him.
The effect of the " Married Wo-
man*s Property Act, 1869," as to
property not excepted thereby, is
that all interference on the part of
the husband during their joint lives
is ended. Cameron v. Walker, 212.
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DIGEST OF CASES.
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LIMITATIONS, STATUTE OF.
Lartda — ffeirs-at-law — Tenant
by curtesy of equitable estate — jBe-
demption jtuigment — Mortgage —
Power of sale.^ — In an action for
redemption ana possession against a
mortgagee by the tenant by the cur-
tesy and the heirs of a deceased mort-
gagor who were infants when posses-
sion was taken by the mortg'igee, it
appeared that the right of the tenant
by the curtesy had been barred by
the statute as against the mortgagee
but that of the heirs had not : —
Held^ that the heirs were entitled
to redeem subject to the right of the
mortgagee and those claiming under
him to hold possession during the
life of the tenant by the curtesy
whose estate had by virtue of the
statute become vested in 'the mort-
Proper judgment where in such
circumstances the heirs-at-law take
proceedings for redemption of the
lands during the life of the tenant
by the curtesy. Anderson et al. v.
Hamma et al,, 58.
See Limitation of Action&
LIQUOR LICENSE AOT.
B. S. 0. ch. lOi^Adjudicatuynr—
Conviction — Imprisonment loithout
prior distress^ Costs of conveying to
jail.^ — ^The adjudication on a second
ofTence under the " Liquor License
Act," without providing for distress,
directed immediate imprisonment in
default of the payment of the fine
and costs ; and the conviction drawn
up under it was in similar terms.
After the issue of a writ of certiorari,
but before its return, an amended
conviction was returned providing
for distress being first made : —
98 — ^VOL. XIX. O.R.
i7e2cf, that the. adjudication and
conviction made under it were void
for not providing for distress ; and
that the amended conviction could
not be supported, because it did not
follow the adjudication.
Semble, that had the amended con>
viction been in other respects good it
would not have been void under the
Liquor License Act for including the
costs of conveying to jail. Begina
V. CantUlon, 197.
See Intoxicating Liquobs — Jus-
tice OF THE Peace, 3.
MANDAMUS.
Taverns and shops — License
Commissioners — Notice of action
—R, S. 0. ch. 194.'\—A man-
damus will not be granted to compel
a board of license commissioners to
issue a license to a person to whom
one has been granted, but not issued
by the retiring commissioners, where
they have not completed their func-
tions, their acts having been reversed
by their successors in office.
A notice of action is necessary in
an action for damages against a board
of license commissioner acting un-
der R, S. O. ch, 194, Leeson v.
The Board of License Commissioners
of the County of Dufferin et ah, 67.
See Municipal Corpobations, 1.
MASTER AND SERVANT.
1. Injury to workmanhy unguard-
ed saw — Action for negligence —
^^ Moving,** meaning of in sec. 16 of
Factories Act, R. S. 0. ch. 208—
" Defect,** meaning of in sec. 3 of
Workmen*s Compensation for In-
juries Act, R. S. 0. eh. i^.]— By
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DIGEST OF CASES.
[vol.
sec. 15 of the Factories Act, R S.
O. oh. 208, it is provided that all
belting, shafting, gearing, fly-wheels,
drums, and other moving parts of
the machinery shall be guairded : —
jffeld, that the word ''moving" is
used in its transitive sense, and sig-
nifies '^propelliDg," and that no duty
is imposed by the section upon
owners of saw mills to guard the
saws which are propelled by the
moving parts of the machinery.
By sec. 3 of the Workmen's Com-
pensation for Injuries Act, R. S. O.
ch. 141, where personal injury is
caused to a workman by reason of
any defect in the condition of the
ways, works, machinery, or plant
connected with or used in the busi-
ness of the employer, the workman
shall have the same right of compen-
sation and remedies against the em-
ployer as if he had not been engaged
in his work : —
Held, that the want of a guard to
a saw was not a defect within the
meaning of this provision.
Such a defect must be an inherent
defect, a deficiency in something
essential to the proper user of the
machine.
And where a workman in a saw
mUl was injured by being thrown
against an unguarded saw, and it
was shewn that a guard would have
prevented the injury : —
Held, that an action for negligence
was not maintainable against the
owners at common law, nor by virtue
of either of the above mentioned
statutes. Hamilton v. Groesbeck et
al,, 76.
2. Accident to servant — Fall
of elevator — Negligence — Master^ a
knotuledge of defect8 — Want of
reasonable care — Common law
liability — '* Workmen* s Compemor
tion for Injuries Act*'— Factories
Act, R. S. 0. ch. 208y sec 15, sub-
sec. 4. — In an action by a workman
against his employers to recover
damages for injuries sustained ow-
ing to the falling of the cage of an
elevator in the defendants' factory,
the negligence charged was in the
manner in which the heads of the
bolts were held, and in the nature
of the safety catch used ui>on the
cage.
There was no evidence to shew
that the defendants were or should
have been aware that the bolts were
improperly sustained. They had
employed a competent contractor to
do this work for them only a few
weeks before, and it was not shewn
that the alleged defect might readily
have been discovered.
Held, that the defendants were
not liable upon this head : —
Murphy v. Phillips, 35 L. T. N. S.
477, distinguished.
The saPety catch was made for
the defendants by competent per-
sons, and there was no evidence that
it was not one which was ordinarily
used: —
Held, that the defendants were
not liable upon this head unless
there was a want of reasonable care
on their part in using the appliance
which they used; and it was no
evidence of such want of reasonable
care merely to shew that a safety
catch of a different pattern was in
use ten years previously by others,
or even that it was at present in
use, and that a witness thought it
might have prevented the accident;
and as no negligence was shewn,
the defendants were not liable either
at common law or under the Work-
men's Compensation for Injuries
Act.
By sec. 15, sub-sec 4, of the
Factories Act> R. S. O. ch. 208,
'* All elevator cabs or cars, whether
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DIGEST OF CASES.
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used for freight or passengers, shall
be provided with some suitable
mechanical device, to be approved
by the inspector, whereby the cab or
car will be securely held in the event
of accident," <bc.
There was no evidence to shew
whether this particular safety catch
had been approved by the inspec-
tor :—
Held, that the onus was upon the
plaintiff to prove that the catch had
not been approved ; and if it had
neither been approved nor disap-
proved, the question still was
whether the catch used were of such
a character and pattern as to make
the use of it unreasonable. Bl<xck
V Ontario Whed Compamy^ 578.
3. '* Workmen^ 8 CompensaHonfor
Injuries Act" — Defect in machinery
— Negligence — Contributory negli-
gence!]— ^The lower blade of a pair of
steam shears was attached by a bolt
to an iron block, called the bed
plate, some eight inches thick, upon
which the iron to be cut was put,
and along the face thereof, where
the workman stood, was a guard,
three inches high, under which the
iron was placed and pushed forward
to the shears, the only danger being
when the iron became too short to
allow the guard to be any protection.
The bolt was too long, projecting
outwards about four and a half
inches, which it was urged was a
defect in the machine, making it
dangerous, and the cause of the
accident to the plainti£^ but the
evidence failed to shew it was in-
sufficient for the purpose for which
it was used, or likely to cause injury
by reason of its length. The plain-
tLQT, who had previously seen others
working at the machine, was put to
work at it himself, and had worked
several times at it prior to the acci-
dent without injury or fear of any,
the accident being caused by the
piece of iron he was holding becom-
ing too short to hold outside of the
guard, and in attempting to hold it
down with another piece his fingers
got jammed and crushed. Evidence
was given that the accident could
have been avoided by the use of
tongs. No instructions were given
plaintiff except a warning not to
let his fingers get too close to the
shears r —
Hdd, that defendants were not
liable for the accident, there being
no evidence that the bolt was in-
sufficient for the purpose for which
it was used to bolt the under side of
the shears to the bed-plate, or that
from its length it was likely to
injure a person working at the
machine.
QuoBrCj whether there was evi-
dence of contributory negligence on
the plaintiff's part. Bridges v. The
Ontario Boiling Mills Company,
731.
MINERALS.
Mineral gas,] — See Municipal
CORPOiUTIONS, 3.
MOBTGAGE.
1. Pofoer of sale tcithotU notice —
Action to recover land toithout leave
required by sec. SO, R, S. 0. ch, 102,]
— A power of sale in a mortgage
authorized a sale without any notice.
Defiiult having been made in the
payment of the mortgage moneys,
notice of sale was given exercis^le
forthwith. Shortly afterwards an
action was brought by the mort-
gagees for the possession of the mort-
gaged premises without the leave of
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[VOL.
a Judge, as required by sec, 30, of
K S. O. ch. 102, having been first
obtained.
Held, that the Act did not apply,
there being no proviso for notice in
the mortgage. Canada Permanent
Building Society v. Teeter ei al. 156.
2. Secwrity for present amd future
advances-^ PaymerU — Land held in
suretyship — Giving time by renewals
— Rdea^e of land — Parties — Credi-
tors' rights — Evidence."] — One of the
defendants, who was the husband of
another of the defendants, mortgaged
certain lands to the plaintifi, a mem-
ber of a mercantile firm, to secure
an existing indebtedness to the firm
and future advances. Subsequently
the husband, by the advice of the
plaintiff, conveyed his equity of re-
demption in the lands to his wife,
subject to the mortgage. At the
time of this conveyance, the debt due
the plaintiff's firm was represented
by notes under discount which, as
they fell due, were retired by the
firm, the husband making part pay-
ments thereon, procuring fresh goods
from the firm, giving renewals for
the balances and getting delivery up
of the original notes, the wife not
being consulted as to these dealings,
and rights against her not being
reserved. The husband subsequently
made an assignment under R. S. O.
ch. 124.
In an action for that purpose the
conveyance to the wife was declared
fraudulent and void as against
creditors, but not as against the
creditors' assignee, it having been
made before the Assignment and
Preferences Act : Fergusony. Kenney,
16* A. R. 272.
In the present action on the plain-
tiff's mortgage, it was held by the
Court of Appeal that the plaintiff
was estopped from disputing the
validity of the conveyance to the
wife, and that the mortgaged lands
were not chargeable with advances
made after notice of such convey-
ance, and the action was referred
back to an Official Referee (16 A,
R. 522).
On a second appeal from the
Referee's report : —
Held, that the course of dealing of
plaintiff's firm did not operate as a
payment of the original notes or
debt : Dominion Bank v. Oliver j 17
O. R. 432, followed. But
Hddf that the wife, at the time of
the conveyance to her, became a
surety in respect of the lands, and
that the 'renewal of the notes by the
plaintiff's firm discharged the lands
from liability.
Heldy also, following the judg-
ment in Blackley v. Kenmey, supra^
that the mortgage was not a secarity
for advances made after the convey-
ance to the wife, nor could the plain-
tiff's firm claim as simple contract
ci*editors against the lands, nor oonld
the creditors' assignee, who was a de-
fendant in this action, claim on behalf
of the other creditors, whether execu-
tion creditors or otherwise, they not
being parties to this action.
A certified copy of the certificate
of the Court of Appeal of the result
of an appeal in an action is not evi-
dence of the judgment therein in
another action between different
parties. Blackiey v. Kenney et oL^
169.
3. Eight to consolidate.] — The
plaintiffs who were the mortgagees
under three mortgages from the
same mortgagors on different lands,
were held entitled only to consoli-
date in respect of the mortgages in
default when action brought to en-
force them, and as the amouot due
on one of the mortgages had been
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779
tiien paid, and there was then no
default as to it, the right to consoli-
date it was refubed. The Scottuh
American Investment Co. v. Tenncmt,
263.
To creditor. '\ — See Bahkbuptct
AND InSOLYENOY, 1, 3.
Liability ofpn/rchaser oflamde stib-
ject to a mortgage to pay off.^ — See
Vendor and Purchaser, 1.
TaJdng account and rectification
of.'\ — See Mortgagor and Mort-
gagee.
Wife purchasing subject to.] — See
Husband and Wife, 5.
See, also, Statute of Limitations.
MOBTGAGOB AND MOBT-
GAGEE.
Application of insurance moneys —
Acceleration cUmse in mortgage —
Election not to claim whole principal
— R. S. 0. ch. 102, sec. 4, sulhsec.
2 —Interest, time of commencement —
Mortgage ctccount — Eectification of
mortgage — Laches — Agreement —
Local agent and appraiser, powers
of — Wrongful sale wnder power in
mortgage — Illegal distress '- Measure
of damages.] — Upon a motion for an
interim injunction the defendants
filed an affidavit and statement shew-
ing that they had applied insurance
moneys received by them, in respect
of Joss by fire of buildings upon land
mortgaged to them by the plaintiffs,
upon overdue instalments of princi-
pal, and an insurance premium paid
by them ; and in their statement of
defence they also stated their posi-
tion in a way inconsistent with that
which they afterwards took, viz.,
that the insurance money was ap-
plicable upon the whole principal,
which, by virtue of an acceleration
clause in the mortgage, had become
due: —
Held, that the defendants had
made their election, so far as the ef-
fect of the default and the application
of the insurance money was con-
cerned, not to claim the whole prin-
cipal as having become due by reason
of the default; and that they must ap-
ply the insurance money, as required
by R. S. O. ch. 102, sec. 4, sub-sec.
2, upon arrears of principal and in-
tei-est
Corham v. Kingston, 17 O. R.
432, approved and followed.
Interest can be claimed by mort-
gagees only from the time the money
is actually paid out by them.
Method of taking a mortgage ac-
count shewn.
Rectification of the mortgage deed
as to the time of the first payment
of principal was refused where it
was sought by the mortgagors at a
time when the payment in any event
was long passed due, and the mort-
gagees, without fraud, had acted
upon the mortgage as executed, and
without notice of the intention of
the mortgagors to have the payment
fixed for a later period ; and where-
also there was really no agreement
upon which to found the rectification,,
the defendants' local appraiser and
agent to receive applications having,
no express or implied authority to
make such agreements.
For wrongful proceedings under
power of sale in a mortgage, illegal
distress upon chattels, and conse-
quent wrongs : —
Held, that the plaintiffs were en-
titled to recover more than their
mere money loss. Edmonds et al,
V. Hamilton Provident and Loam^
Society, %11.
See Limitation of Actions.
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DIOEST OF CASBS.
[VOL.
MUNICIPAL OOBPOBATIONS.
1. Ptiblic Health Act, R, S. 0. ch.
205, sec, 49 — PaymerU Jot services
of physician — Judgment against
local board of hecUth as a corpora-
tion— Order upon treasurer o/mv/ni-
cipality — Mandamus,^ — Section 49
of the Public Health Act, R. S. O.
•ch. 205, provides that "The trea-
surer of the municipality shall forth-
with upon demand pay out of any
moneys of the municipality in his
hands the amount of any order given
by the members of the local board,
or any two of them, for services per-
formed under their direction by vir-
tue of this Act."
A physician recovered judgment
in a Division Court against a town-
ship local board of health, sued as a
corporation, for services performed
in a small-pox epidemic.
It appeared that the physician had
been appointed medical health officer
of the municipality by the council,
but that before suing the board he
had brought an action against the
municipal corporation for his ser-
vices, in which he failed.
Upon motion by the physician for
a mandamus under sec. 49 to com-
pel the members of the board to sign
an order upon the treasurer of the
municipality for the amount of the
judgment recovered : —
Held, that, although it might be
difficult to conclude that a board of
health is constituted a corporation
by the Act, yet the judgment of the
Division Court practically decided
that this board might be sued as such,
and, not being in any way impeach-
ed, it could not be treated as a
nullity. As there appeared to be no
other remedy, the applicant was en-
titled to the mandamus. Re Derby
and the Local Board of Health of
South Plantagenet, 51.
2. By-law authorising taking of
gravel toithout specifying lands —
Illegality— R. S, 0. ch. 184, ««c. 650,
sub-sec. 8; sec 338 — Injunction with-
out quashing hy-law.'\ — By sea 550,
sub-sec. 8, of R. S. O. ch 184, the
council of every township is author-
ized to pass by-laws for searching for
and taking such timber, gravel, stone,
or other material or materials as may
be necessary for keeping in repair
any road or highway within the
municipality : —
Held, that the meaning of this
section is that the council may, as
necessity arises for their doing so,
exercise the right to take gravel, kfi.,
from any particular parcel or parcels
of land, having first declared the ne-
cessity to exist and chosen and de-
scribed the land from, which the
material is to be taken, by a by-law ;
and therefore a by-law, purporting
to be passed under this section, which
authorized and empowered the path-
masters and other employees of the
corporation to enter upon any land
within the municipality when ne-
cessary to do so, save and except
orchards, gardens, and pleasure-
grounds, and search for and take
any timber, gravel, &c., was upon
its face illegal, because it purported
to confer upon its officers wider and
more extensive powers than the sta-
tute authorized : —
Held, also, notwithstanding the
the provisions of sec. 338 of K. S. 0.
ch. 184, that the plaintiff was enti-
tled without quashing the by-law to
an injunction to restrain the defen-
dants from proceeding to enforce the
rights they claimed under this by-
law, by entering upon his lands.
Rose V. Township of West Wawanosh
et al., 294.
3. Mineral gas—R. S. 0. eh. 184,
sec. 566 — Form of by-law — Indem-
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DIGEST OF CASES.
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niiy — Bight to ra^erwir.] — Mineral
gas is a " mineral " within the raaen-
ing of sec. 565 of the Municipal Act,
R. S. O. ch. 184.
A lea6e under that section should
be of the right to take the minerals,
and not of the highway itself. The
lease in this case was of a portion of
the highway, "for the purpose of
bdring for and taking therefrom oil,
gas, or other minerals : " the quan-
tity of land was no more than was
necessary for the Gom[)any's pui po-
ses, and the rights of the public were
fully protected :
Hddy that the practical difference
here was so small as not to consti-
tute a ground for quashing the by-
law.
The council before passing the
by-law, insisted on an indemnity
from the gas company against any
costs and damages that might be
incurred by reason of the passing of
same :
Heldf that under the circumstan-
ces, this could not be deemed to be
evidence that it was not passed in
the public interest.
The plaintiffs, by first sinking a
well on the land near the defendants,
did not thereby acquire the right to
restrain the defendants from using
the reservoir lying under the said
land. The Ontario Natural Gas
Co, V. Sinari et at. and In re Tlie
Ontario Natv/ral Gas Co. and the
Corporation of the Tovmship of Gos-
Jield South, 391.
4. Obstruction on highway — Dig-
ging well under R. S. 0. ch, 184., ^^c-
489, sub-sec. 42 — Negligence — Con-
tributory negligence.^—The defend-
ants, for the purjK>se of sinking a
well in one of the public streets of
the village, to procure water for
public purposes, under the power
conferred by sec. 489 of the Muni-
cipal Act, had erected a derrick in
the said street without placing a
hoarding around it. The plaintiff
had driven into the village past the
derrick without its appearing to
affect the horse, the derrick not then
being at work, but on attempting to
pass it on her way home, while the
derrick was at work and making an
unusual noise, the horse took fright
and ran away, the plaintiff being
thrown out of the carriage and se-
verely injured. The jury found that
the derrick was of a nature to fright-
en horses, and that the defendants
had not taken proper precautions to
guard against accidents, and that
there was no contributory negligence
on the plaintiff's part : —
Held, that the defendants were
liable for the injury sustained by tie
plaintiff. Lawson v. Alliston, 655.
5. House being moved coming in
contact with teleplwne wire across
street, loosening bricks and injuring
passer by — Liability.^ — O. was mov-
ing a house twenty-five feet high
along one of the streets in a city,
having obtained the authority of the
city engineer to do so, when by reason
of its coming in contact with a wire,
of the existence of which O. was
fully aware, stretched by a telephone
company, without any authority
from the city, across the street, the
wire being nineteen and a half feet
from the ground, though the cora-
])any's Act of incorporation required
it to be at least twenty-two feet, the
wire was torn from its fastenings,
loosening some bricks, which fell on
the plaintiffseverely injuring him : —
Held, that no liability attached
either to the city or the telephone
company, and that O. alone was
liable for the damage sustained by
the plaintiff.
Decision of Street, J., at the trial,
varied. Howard v. Tlie Corporation
(ffSt. Thomas et al, 719.
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DIGEST OF CASES.
[VOU
NEGLIGENCE.
Mistake in compounding medicine
— Physician — Druggist — Costs."] —
A physician wrote a prescription for
the plaintiff and directed that it
should be charged to him by the
druggist who compounded it, which
was done. His fee, including the
charge for making up the prescrip-
tion, was paid by the plaintiff. The
druggist's clerk by mistake put prus-
sic acid in the mixture, and the plain-
tiff in consequence suffered injury.
Held^ that the druggist was liable
to the plaintiff for negligence, but
the physician was not.
Under the circumstances of the
case no costs were awarded to or
against any of the parties. Streeton
V. Holmes et o/., 286.
Evidence of,] — See Railways, 2.
See, also. Master and Servant,
2. — Municipal Corporations, 4.
NEW TRIAL.
Action /or negligence — Death
between verdict arid judgment —
Damages — Jurisdiction — Bail-
ways and railway companies —
Level crossing — Liability.] — Where
in an action for damages against a
railway company, one of the parties
to whom damages were awarded,
who was an infant, died after ver-
dict and before judgment, and the
verdict was now moved against, on
the ground of excessive damages : —
ffeld^ that the Court to prevent
injustice, had power to grant a new
trial, which was ordered unless the
damages given to the deceased child
were reduced to a sum commensur-
ate with the expense caused to the
mother's estate by its illness and
maintenance. Sihbald v. Grand
Trunk R. W, Co. et ah — Trem^yne
V. Grand Trunk E, W. Co. et al.
164.
See Defamation — Prohibition, 2.
NOTICE
Of action,] — See Mandamus.
Of dissoluUan,] — See Partner-
ship, 2.
Of insolv&ncy.] — See Bankruptcy
AND iNSOLVENCnr, 1, 3.
Oj trust in transfer of shares.] —
See Shares.
See also Master and Servant, 3-
— Registry Laws, 3.
PABTNEBSHIP.
1. Agreement jor participation in
profits — Construction of— Relation-
ship of parties — Joint business —
Debtor and creditor.] — The plaintiffs
sued G. and W. for the price of
goods sold to the firm of P. W. G. &
Co., and the principal question in
the action was whether W. was an
actual partner in the firm ; the evi-
dence failing to shew that he was an
ostensible partner and as such liable
to third persons : —
Held^ that the true test to be
applied to ascertain whether a part-
nership existed was to determine
whether there was a joint business,
or whether the parties were carrying
on business as principals and agents
for each other.
G. and W. did not intend to create
a partnership between them. G.
was carrying on business in the
name of P. W. G. & Co., as a dealer
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DIGEST OF CASES.
783
in pianos and organs, and, being in
want of money, applied to W. for a
loan ; he did not ask W. to become
his partner, nor did W. suggest it,
but G. proposed to give W, half the
profits of his business if W. would
lend him $500.
The money was advanced and the
following receipt was given by G. :-
" Toronto, 13th February, 1888.
Received from W. the sum of
$500 to be used for carrying on the
business of dealers in pianos and
organs, in return for which I hereby
agree to give the said W. one-half
of the profits of the said business,
after all expenses have been paid,
including the sum of $10 a week,
which is to be charged as wages to
G., this arrangement to continue
until the 1st day of January, 1889,
and to be continued thereafter if
desired by Mr. W. The said W.
reserving a claim upon instruments
in the store to the value of $500,
and he can also at any time demand
the said sum upon giving one
month's notice, in which case this
agreement would be at an end,"
W. made a subsequent advance of
$500 to G., and on the 14 th of April,
1 888, a receipt was given fcr such
advance dbntaining an agreement to
pay ''over and above the agreement
of the 13 th of February, interest at
at the rate of eight per cent per an-
num."
This receipt was at the request of
W. signed **P. W. G. & Co., p. P.
W. G. sole partner of said firm " : —
Heldy that these documents did
not establish that the business was
the joint business of G. and W. or
that they were carrying it on as
principals or agents tor each other ;
but that they did establish that the
true relation was that of debtor and
creditor ; and W. was therefor© not
liable to the plaintiffs. MendeUshon
99— VOL. XIX. O.R.
Picmo Company v. Graham and
West, 83.
2. Dissolution — Want of public
notice — Credit given to firm after
dissolution — j^o previous dealings
with firm — Liahility of retiring
partner. '\ — The plain tifiBs received
from their traveller an order for
goods from the firm of C. Bros.,
hotel-keepers. Before they deliver-
ed the goods they became aware by
means of a mercantile agency that a
partnership had existed under the
name of C. Bros., and that S. L. C.
was one of the members of it, and
they were at the same time informed
that the partnership still existed.
They shipped and charged the goods,
and also goods subsequently ordered,
to C. Bros. As a matter of fact^
however, the partnei-ship did not
exist at the time the first order was
given, S. L. C. having retired from
die business, and the plaintiffs had
had no dealings with the firm while
it was in existence. No public
notice was given of the dissolution ;
S. L. C. continued to live at the
hotel except when he was absent on
his own business: the lamp with
the name of 0. Bros, continued at
the door ; the liquor license in the
name of C. Bros, continued to hang
in the bar-room ; and letter-paper
with the heading " C. Bros., pro-
prietors " continued to be handed to
customers.
Held, that where a known mem-
ber of a firm retires from it, atid
credit is afterwards given to the
firm by a person who has had no
previous dealings with it, but has
become aware as one of the public
that it existed, and has not become
aware of his retirement, the retir-
ing member of the firm is liable
unless he shews that he has given
reasonable public notice of his re-
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DIGEST OF GASES,
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tirement ; and, as such notice «rafl
not given here, S. L. C. was liable,
not only for the goods first, but for
those subsequently, ordered, no no-
tice of the retirement having ever
been given. C, P. Reid d: Co. v.
Coletnan BroUierSy 93.
3. Change of firm — Novation —
Privity,] — A certain firm was in-
•debted to the plaintiffs. Another
firm, bearing the same name, but
•composed of different individuals,
assumed its liabilities, as between
itself and the former firm and con-
tinued the business and made certain
payments to the plaintiffs, and also
asked for time to pay the balance.
There was no evidence of any assets
of the first firm being taken over by
the second : —
Held, that the above was not
sufficient to create a new obligation
s& between the plaintiffs and the
new firm.
Henderson v. KUley, U O. R. 149,
and in api^eal before the Supreme
Court, uni"eported, cited and relied
on. Tlie Canadian Bank of Com-
jnerce v. George Marks et aL, 4^0,
4. Dissolution- Pending contract']
— The defendants contracted to de-
liver lumber to a firm of three part-
ners. Before delivery the firm was
dissolved, and the defendants refused
to carry out their contract.
In an action brought in the indi-
vidual names of the three partners,
for damages for non-delivery : —
Held, that the dissolution of the
firm was no justification in law for
the defendant's refusal to carry out
their contract McCraney et al. v.
McCool et al.y 470.
PAYMENT.
WJien cash payment to be made on
sale of land,] — See Sale of Land, 1.
PLEADma.
Motion to qtutah pUa to indict^
merit,] — See Criminal Law, 1.
See also Hidbs.
PLEDGE.
Of shares of stock for a loan,]-
See Shakes.
POSSESSION.
Time to take possession on sale of
land,] — See Sals of Land, L
Tide by,] — See Landlord and
Tenant.
Unity of] — See Waters and
Wateboourseb, 2.
POWEB OF SALE.
See Statute op Limitations.
PRACTICE.
As to appeal from report of local' ^
registrar.] — See Lien.
PRECEDENT.
Want of for action,] — See Hus-
band and Wife, 3.
PREFERENCE.
See Fraudulent Preference.
PRESCRIPTION.
Rights by.] — See
Watercourses, 2.
Waters and
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DIGEST OF GASES.
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FBINOIPAL ANDrAQENT.
See Agent.
PBI0BIT7.
Of registered judgmenit for aMmo-
ny over aeeigrvmentfor tlie benefit of
eredUore,] — See Alimony.
Of mortgage over meehaniee lien
which does not increase the selling
value of the land.] — See Libn.
PBIVILBOED COMMUNICATION
See Defamation.
PROHIBinON.
1. Justices of the Peace — R, S. C.
ch, 174, *^c*' ^^7 ^40 — Corporation
— " Person'' in B. S. G, ch. i, sec 7,
sub-sec. 22.1 — A writ of prohibitioti
may be issued to a justice of the
peace to prohibit him from exercis-
ing a jurisdiction which he does not
possess.
The word " person" in R. S. C. ch.
1, sec. 7, sub-sec. 22, includes any
oorporation "to whom the context
can Apply according to the law of
that part of Canada to which such
context extends/' but as justices of
the peace have not now and never
had jurisdiction by the criminal pro-
cedure to hear charges of a criminal
nature preferred against corpora-
tions : such word does not include
corporations in cases where a justice
of the peace is attempting to exer-
cise such a jurisdiction.
A justice of the peace cannot com-
pel a corporation to appear before
him, nor cau he bind them over to
appear and answer to an indictment ;
and he has no jurisdiction to bind
over the prosecutor or person who
intends to present an indictment
against them. Re Chapman arid the
Corporation of the City of London^
and Re Chapman and the Water
Commissioners of the City of Lon'
don and the Corporation of the City
o/Londony 33.
2. Division Courts — New trial
granted after fourteen days from
trial\ — Ajol action was tried in a
Division Court with a jury on the
15th January, when they found for
the plaintiff with a recommendation
that plaintiff should pay his own and
defendant's costs, whereupon judg-
ment was entered for the plaintiff
with costs reserved. On January
24th the Judge directed "judgment
for plaintiff with costs on verdict of
jury." On February 5th an appli-
cation was made for a new trial
which was granted on February 16th.
Heldy that the application for the
new trial was too late not having
been made within fourteen days from
the trial as requii*ed by sec. 145 of
the Division Court Act^ R S. O. cL
51 ; and a prohibition was therefore
directed. BUmd v. Rivers^ 407.
See Game.
PUBLIC HEALTH ACT.
R. S. 0. ch. 205— ''Owner or agent''
— Meaning of plumber.'] — By the 6th
clause of a city by-law passed under
the " PubUc Health Act," R. S. O.
ch. 205, it was provided that before
proceeding to construct, re-construct,
or alter any jiortion of the drainage,
ventilation, or water system of a
dwelling hpuse, &c., " the owner or
his agent constructing the same "
should file in the city engineer's
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office an application for a permit
therefor, which should be accom-
panied with a specification or ab-
stract thereof, &c. ; and by the 11th
clause, that after the approval of
such plan or specification no altera-
tion or deviation therefrom would
be allowed, except on the application
of the "owner or of the agent of
the owner " to the city engineer.
By sec. 22 of the " Public Health
Act,'' owner is defined as meaning
the person, for the time being, re-
ceiving the rents of the lands on his
own account, or as agent or trustee
of any such person who would so
receive the same if such lands and
premises were let : —
HM^ that the agent intended by
the Act and coming within the
terms of the by-law, meant a person
acting for the owner as trustee, or
in some such capacity, &c., and did
not include a plumber employed by
the owner to re-construct the plumb-
ing in his dwelling house. Regina
V. Watson^ 646.
BAILWA7S.
1. Defatdt in payment of com-
pensation mjoneya — Rights of land-
owners — Injunction — Order for
possession — Vendor^ s lien — Order
for sale — Remedies.^ — Held^ that
where a railway company had failed
to pay the balance of compensation
awarded to land-owners in accord-
ance with a judgment obtained for
the same, although it had entered
into possession and was operating its
railway over the lands, the land-
owners were entitled to an order
declaring them to have a vendor's
lien on the lands for the amount^
with such provisions as were neces-
sary to realize by means of a sale ;
but they were not entitled to an
injunction to i-estrain the defendants
from operating the railway on the
lands, nor to an order for delivery
up of possession.
Allgood V. Merryhent and Darling-
Urn R, W, Co., 33 Ch. D. 571, dis-
tinguished. The Lincoln Paper
MUls Company v. 7^ Sl Catharines
and Niagara Central R. W, Co.,.
106.
2. Accident — Negligence — Evi-
dence of— Defective brake — Lateni
defect — Conjecture.^ — Action by
plaintifiT to recover damages for the
death of her husband by reason of,
as was alleged, a defective brake on '
a car on defendants' railway on
which deceased was employed as a
brakeman : —
Held^ that there could be no re-
covery, for the evidence failed to
shew how the accident happened,
the contention that it was the de-
fective brake being mere conjecture ;
and, even it had been the cauRe, it
would have been no ground of li-
ability, for under the defendant's
rules it was the deceased's duty to
examine and see that the brakes
were in proper working order and /
report any defect to the conductor;
and if he made the examination he
apparently discovered no defect as
he made no report, a latent defect
being no evidence of negligence ; and
and if he omitted to make such ex-
amination, etc., then the accident
would be attributable to his own
negligence. Badgerow v. The Grand
Trand Trunk Railway Co., 191.
SemhlCy that where a railroad
crosses a public highway at a level
crossing, and it is open to observa-
tion that the highway is in a danger-
ous state, liability will rest upon the
operating company for resulting
accident, even although a difiTerent
Digitized by
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XIX.]
DIGEST OF CASES,
787
•company was responsible for the
original faulty construction of the
railway roadbed which led to the
unsafe condition of the highway.
SibbcUd V. Grand Trunk E. W, Co.
€t cU,; Tremayn v. Grand Trunk
B. W, Co, et al,, 164.
4. Comnum carriers— Carriage of
goods — Warehousing — Terminaiixm
of liability — Privity of contact] —
Under a condition in a railway ship-
ping bill the delivery of goods was
to be considered complete and the
responsibility of the company to ter^
minate when the goods were placed
in the company's warehouse at their
destination.
The goods were carried to the
station at the place of delivery and
were placed in the company's shed
there used for the purpose of storing
goods, where they were subsequently
destroyed by fire. The station was
some five miles distant from the
village where the plaintiff's place of
^business was : —
Held, that the station was the
•destination of the goods and not the
village : that the shed was a ware-
house within the meaning of the
condition : and that after the goods
were placed there the company's lia-
bility was at an end.
Goods were sent by another rail-
way company and were carried by it
to its crossing point with defendants'
line when the goods were delivered
over to defendants to be carried to
the plaintiff : —
Held, that an action for the loss of
the goods was not maintainable by
plaintiff against defendants as there
was no pnvity of contract between
them. Richardson v. Canadian
Pacific Railioay Company, 369.
5. Bondholders' rights to property
4>f — Judgment creditors^ right to gar-
nish earnings — Rec6iver.^ —So long
as a railway company is a going con-
cern, bondholders whose bonds are a
general charge on the undertaking
have no rights even although in-
terest on these bonds is in arrear, to
seize, or take, or sell, or foreclose any
part of the property of the company.
Their remedy is the appointment
of a receiver.
The bondholders of the defendants
in this case were held not entitled to
the moneys claimed by them, which
were the earnings of the road depo-
sited in a bank, and which had been
attached by judgment creditors of
the road.
Decision of Boyd, C, 18 O. R
581, reversed. Phelps v. The St.
Catharines and Niagara Central
Railway Company, 601.
6. Warramifor possession oflamd —
RS,0, ck 170, sub-sec, 23, sec, 20,]
— The application for a warrant for
possession of land required by a rail-
way company under sub-sec. 23 of
sec 20 of R S. O. ch 170, should be
made to the County Judge and not
a Judge of the High Ck)urt
Part I. of the R S. C. ch. 109,
does not apply to the applicants, a
company incorporated under a local
Act, 52 Vic. ch. 82 (O.), though
under Dominion control, as being a
railway for the general advantage of
Canada, it being only applicable to
railways constructed or to be con-
structed under the authority of a
Dominion Act. The Toronto Belt
Zdne Railway Company v. Lauder,
607.
As trespassers,] — See Damages.
RAPE.
See Criminal Law, 2.
Digitized by
Google
788
DIGEST OF CASES.
[VOL.
BEOEIVEB.
See Railways, 6.
BE0I8TBATI0K.
0/ judgment for aHmony.^ — *3^
Alimony.
REQI8TB7 LAWS.
1. Begistration of subsequent deed
— PHoHty — Proof of valuable can-
sideration.] — Registration of a sub-
sequent deed will not give priority
over another unregistered deed from .
the same grantor, prior in point of
time, unless a valuable consideration
for the former is proved. Mere
production or registration of the
instrument by the party claiming i
under it is not sufficient proof for I
this purpose. Barber et al, v. J/c-
Kay et al, 46.
2. Bond for performance of duties
of ojffke of Registra/r— Payment to
municipality of portion of fees —
Liability o? sureties — B, S. 0, ch,
IIJ^ sees. IS, 107.] — Action upon a
bond of the defendants as sureties
for a Registrar of deeds, dat^d 8th
January, 1886, to recover the por-
tion of fees received by him which
he should have paid over to the
plain tiffs under the Registry Act,
R. S. O. ch. 114, sec. 107.
The bond was in the form pre-
scribed by schedule A. of the Act,
and was conditioned for the perform-
ance of the duties of the Registrar's
office and against neglect or wilful
misconduct in office to the damage
of any person or persons.
The form was prescribed before
the introduction of the provisions
now contained in sec. 107 of the
Registry Act, which by sec. 13
makes provision for the giving of
special security for the payment oi
moneys under sec 107 : —
EMf that the bond given by the
defendants must be taken to be re-
stricted to the performance by the
Registrar of the duties imix>8ed upon
him other than the duty imposed by
sec. 107 j and the action was dis^
missed. Co^inty of Middlesex v.
Smallman et aL, 349.
3. Begistry Act — Actual notice —
Imputed notice — Belief on ground of
mistake— Subrogation^-B.S. 0.1887,
ch. IIJh sec. m]— The plaintiff
registered a lien against certain
lands. On the day before such
registL-ation the defendant, an intend-
ing purchaser, had searched the
registry and found only two incum-
brances registered against the pro-
perty. Shortly after the defendant
completed his purchase, and having
paid off the two incumbrances,
registered discharges thereof with
his deed of purchase, but as he did
not make a further search, he did
not discover the plaintiff's lien : —
Held, affirming the decision of
Falconbridge, J., that the defendant
was entitled to stand in the place of
the incumbrancers whom he had
paid off, and to priority over the
plaintiff's lien.
The Registry Act does not pre-
clude inquiry as to whether there
was knowledge in fact; and the
Court was not compelled as a con-
clusion of law to say that the defen-
dant had notice of what he was do-
ing, and so could not plead mistake.
Broum v. McLean^ 18 O. R. 633,
specially considered. AbeU v. Mor-
rison, 669.
RIGHT OF WAY.
See Way.
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XIX.]
DIGEST OF CASES.
789
SALE OF OOODa
IfUention ofpurchcuer to set-off a
daim against vendor — Fraud,^ —
The plaintiff with the intention of
parting with the possession and pro-
perty in certain flour made an abso-
lute sale of same, on apparently
short terms of credit, to defendant,
who withheld from plaintiff his in-
tention to pay for the flour by setting
up a claim he had acquired against
the plaintiff : —
Hdd^ that this did not constitute
a fraud on the defendant's part so
as to entitle the plaintiff to disaffirm
the contract and replevy the flour.
Baker v. Fishery 660.
SALE OF LAND.
1. Agreement — When payment to
he made — TiUe — Prior mortgage —
Time to taJee possession — Interest] —
In an agreement for the sale of land
it was provided that the cash pay-
ment should be made and the mort-
gage for the balance given, '* so soon
as the solicitors for the purchaser |
shall be satisfied with the title :"—
Heldy that the meaning of the con-
tract was that payment was not to
be required, until such title was
shown as would justify the purchaser
in taking possession, and following
Wells V. Maxwell, 32 Beav. 552, that
no satisfaction being given as to a
prior mortgage affecting the land
until two years after the agreement,
the purchaser could not prudently
take possession until then, and in-
terest on the purchase money should
only be allowed from that time. Jie
McLean and Walker, 161.
2. Title to Umd-^Private Acts —
BquilahlA interest —- Person not
named in Private Act — Canada
Agency Association — Colonial Secu-
rities Company— 32 Vic. ch, 62, sec.
6, {0,)S6 Vic. ch. 121, sec. 6, (0.)
—R. S. 0., 1887, ch. 1, sec. 8, sub-s.
4-7.] — On a reference as to title to
land, it appeared that one H. en-
trusted certain moneys to a Loan
Association to invest for her on
mortgage, under an agreement that
the Association should guarantee to
lior payment of interest at seven per
cent, and in consideration thereof
should retain to their own use all
interest over that rate. The mort-
gage, which recited the said agree-
ment, was taken to the trustees ap-
pointed by the Association, and was
made iu 1861. By 32 Vict. ch. 62,
sec. 5, (O.) all lands, mortgages, <kc.,
held by trustees of the Association
were to be deemed vested in the C.
S. Company, so that the same might
be sold, assigned, &c., by the latter.
Subsequently the mortgagor released
his equity of redemption to the C.
S. Company, in full satisfaction of
the mortgage moneys, but not so as
to merge the mortgage. By 36 Vic.
ch. 121, sec. 5, (0.) all lands mort-
gages, &c., held by the C. S. Com-
pany, were to be deemed vested in
the C. T. Company, so that the same
might be sold, assigned, kc, by the
C. T. Company. Afterwards the
latter company conveyed the lauda
to the vendor.
Hdd, that, inasmuch as the above
Acts made no mention of H., the
vendor could not make a good title
free from her claim, who, unless the
moneys advanced by her had been
repaid, was in equity substantially
the owner of the mortgage, and i
she chose to adopt the act of the
trustees in taking a conveyance of
the equity, then of the hind. Mack-
lin V. Bowling, 441.
Digitized by
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790
DIGEST OF CASES.
SEDUOTION.
Action hy hrotJier — Loss of
service — Infant defendant — ^on-
appointment of guardian — Rules
261^ 313 J\ — In an action for seduc-
tion it appeared that the plain-
tiff was the brother of the girl se-
duced ; and that the girl, though in
the service of another pei*son, yet
(by agreement with her mistress,
entered into at the time of her en-
gagement) was at liberty to perform,
and did perform certain services at
home for the plaintiff, under conti*act
with him for which she received com-
pensation :
Heldy that the plaintiff was enti-
tled to maintain the action.
Rist v. Faux, 4. B. & S. 409, spe-
cially referred to ; Thompson v. Ross,
6 H. & N. 16, distinguished.
It also appeared that the defen-
dant was not quite of age, and that
no guardian had ever been appointed,
but that the fact of infancy was well-
known to the defendant's parents
and to the solicitor and counsel who
appeared for him at the trial, and no
objection on this ground was taken
till this motion before the Divisional
Court :
Held, that under Rules 261 and
313, the appointment of a guardian
was not im|)erative; the Court bad a
discretion ; and in this case the judg-
ment obtained against the defendant
at the trial should not be interfered
with.
FurnivaZ v. Brooke, 49 L. T. N. S.
1 34, followed, Straughan v. Smith.
558.
8HABES.
Pledge of for loan — Transfers "in
trust" — Pledge by transferee for
larger loan — Jiotice of trust — Right
to redeem — Measure of value,] —
[vol.
Certain shares not numbered or
capable of identification, transfemble
on the books of a company, were
ti-ansferred by the plaintiff to
brokers, " in trust " as security for
the payment of a loan. The plain-
tiff's transferees afterwards trans-
ferred the shares to others as security
for other and larger sums doe by
them than were due by plainUff to
them. Each transfer subsequent to
that of the brokers was made ** in
trust."
The plaintiff was aware that the
brokers were raising money on his
shares, but was assured by them
that he could i^eem his stock on
jtayment of the amount due by him.
The brokers bein^' unable to re-
deem the shares, in an action by the
plaintiff against the last tranaferaes,
who had sold them for a large sum
after tender by plaintiff of amount
due by him, to compel them to
account for their value : —
Held^ that the form of the transfer
to the last holders was sufficient to
put them on enquiry, and that they
were chargeable with notice of the
facts and of the plaintiff's rights in
regard to the shares ; and that he
was entitled to the value of the stock
after payment of the amount he had
borrowed on it from the brokers,
and that the value of the shares was
to be taken at their highest market
value between plainti£ tender and
the conclusion of the trial herein.
Duggan v. The London and Cana-
dian Loan and Agency Companv et
al., 272.
SPEOIFIO PEBFOBMAHGB.
Discovery of want of tiUe^Repur
diation on other grounds^ Canirol
of title — Fraud,]~-To an action for
specific performance of an agreement
Digitized by
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XIX.]
DIGEST OF CASES.
791
for the exchange of lands the agree-
ment was admitted, the only defence
being fraud and a repudiation there-
for. A month prior to the trial,
the defendant ascertained that the
plaintiff 's wife and not the plaintiff
Wiis the owner of the land, and that
she had executed a deed thereof to |
be delivered to the defendant. No
claim for repudiation was made on
the ground of want of title. At the
trial the defendant was allowed to
amend by setting up that neither at
the time of the agreement nor at the
commencement of the action was the
plaintiff the owner of the land, with-
out any averment that on the dis-
covery thereof the defendant repu-
diated on such ground ;•—
Hddi that the amended defence
constituted uo answer to the action,
and that the defendant not having
repudiated when he ascertained the
plaintiff had no title, it was suffi-
cient if the plaintiff made title on
the reference therefor. Paisley v,
WUUy 303,
Of building lea8e,]^See Trusts
AND Tbustkes, 2.
STATUTES.
C. S. U. C, ch. 103, sec. 9.]— iS«€ Crim-
inal Law, 1.
29 ft 90 Vic. ch. 122.]— S'ee Game.
32 Vic. ch. 62, sec 5 {Oyi—See Sale
OF Land, 2.
36 Vic. ch. 121, sec. 5 (0).]~^ee Sale
OF Land, 2.
37 Vic. ch. 38, sec. 5 (D.)]^See Crim-
inal Law, 1.
38 Vie. ch. 16, sees. 1, 5 {0,)}—8ee
Limitations of AcnoNS.
46 Vicch. 27, sec. 1 3 (0.)]-^«e Waters
AND WaTXROOURSES, 3.
100 — VOL. XIX. O.R.
R. S. C. ch, 1, sec. 7, sub-sec. 22,}See
Prohibition, 1.
R. S. C. ch. 99, sees. 26, 96, 104.]— .ffw
Hides.
R. S. C. ch. 109, pt. 1.] — ^e« Rail-
ways, 6.
R. S. C. ch. 120, sec. 56,}^8ee Banks
AND Banking.
R. S. O. ch. 123, sees. 12-14.]— ^ee
Bills of Exchange and Promissory
Notes, 1.
R. S. C. ch. 129, sec. 83.]— ^ee Com-
pany, 2.
R. S. C. ch. 142, sees. 5, 10.]~-^« Ex-
tradition, 2.
R. S. C. ch. 167, sec. 3.]— Sec Grim-
INAL Law, 3.
^R. S. C. ch. 157, sec. 8, sub-sec. 2.}—
See Justice of the Peace, 2.
R. S. 0. ch. 162, sec. 44.]— ^ce Crim-
INAL Law, 3.
R. S. C. ch. 163, sec. 4.]— S'ee Criminal
Law, 1.
R. S. G. ch. 174, sec. 2, sub-sec. (e); 143.]
— <9e6 Criminal Law, 1.
R. S. C. ch. 174, sees. 80, 140.]— ^e<f
Prohibition, 1.
R. 8. C. ch. 178, sec. 62.]— i9ee Justice
of the Peaob, 2.
R. S. 0. ch. 1. sec. 8, sub-sec. 47.]—
See Sale of Land, 2.
R. S. O. ch. 25, sec. 20, sub- sec. 2.]—
See ExECunoK.
R. 8. O. ch. 44, sec. 30.}— ^m Aumont.
R. 8. 0. ch. 44, sec. QZJ—See Courts.
R. 8. 0. ch. bl.y-See Prohibition, 2.
R. 8. 0. ch. 61, sec 10.]— i9ee Husband
AND Wife, 4.
R. & 0. ch. 74, sec. 1.]— 5ee Convic-
tion.
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DIGEST OF CASES.
[vol*
R. S. 0. oh. 102, sec. 90.']See Mort-
OAQB, 1.
R. S. O. ch. 104, 800. 4. tab-sea 2.]—
See MoRTOAGOB and Mobtqaokb.
R. S. 0. ch. 108.]— ^«e Vendob and
PUBCHASEB, 2.
R. S. 0. oh. 108, 860. 4, sab-8ec. 2.]—
See DsvoLunoM of Estates Act.
R. S. -O. oh. Ill, 8008. 4, 43.]— iSee
Limitation ov Actions.
R. S. 0. ch. 114, 8608. 13, 107.]-^ee
Rkoistbt Laws, 2.
R. S. 0. oh. 114» 860. 80.]— iSM Rkois-
TBT Laws, 3.
R. & 0. ch. 124.]— i^e* Bankruptcy
AND InSOLVBNOT, 1, 2.— MOBTOAOX, 2.
R. S. 0. ch. 124, sec. 2.}— i^ee Bank-
RijPTCY AND Insolvency, 3.
R. S. 0. ch. 124, 860. 7, 8ub-8eo. 2.]—
See Bankbuptot and Insolyxncy, 4.
K. S. 0. oh. 124. 860. 9.]— ^ee Alimony.
R. S. 0. oh. 12$, 860. Q,]—See Bills or
Sale and Chattel Mobtgages.
R. 8. O. oh. 132, 8608. 3, 14.]-i9ee
Husband and Wnrs, 1.
R. S. 0. oh. 141, 860. 3.]— <S^ee Masteb
AND Sbbyant, 1.
R. S. 0. cb. 154.]— i9ee Innkeeper.
R. S. 0. oh, 167, 860. 132.]— 5ee In-
SUBANCE, 3.
R. S. O. ch. 170, 860. 20, sub-sec. 23.]
—See Railways, 6.
R. S. 0. ch. nL}—8ee Injunction.
R. S. 0. ch. 183.]— flfee Company, 2.
R. S. O. ch. 184, 86c. 289.]— ^e« Jus-
tice OE THE Peace, 1.
R. S. O. oh. 184, 860. 489, sub-soc. 42.]
— See Municipal Cobpobations, 4.
R. 8. O. ch. 184, 860. 550, sab-seo. 8.] |
— See Municipal Corporations, 2.
R. 8. O. cb. 184, 860. 565.]— ^e« Muni*
ciPAL Cobpobations, 3.
R. 8. O. ch. 193, 860. 2, sab-sec 10,
8608. 34, 35, 36.]— ^6« Assessment and
Taxes.
R. 8. O. ch. 194.]— See Liquob License
Act. — Mandamus.
R. S. O. oh. 194, 860. 12.]~5ee Inn-
KEBPEB.
R. S. O. ch. 194, 8608. 49, 70, 105.]—
See Justice ot the Peace, 3.
R. 8. O. ch. 194, 860. 70.]— See Intoxi-
cating Liquors.
R. 8. O. oh. 205.]— See Conviction.
R. 8. O. ch. 205, 8608. 6, 11, 22.]-See
PuBUC Health Act.
R. 8. O. cb. 205, 860. 49.]— See Muni-
cipal Cobpobations, 1.
R. 8. 0. ch. 208, 860. 15.]— See Master
AND Sebvant, 1.
R. 8. 0. ch. 208, 860. 15, sub-aoc 4.]—
See Masteb and Servant, 2.
R. 8. 0. cb. 221, 860. 10.]--See Game.
52 Vic. ch. 32 (D.)]— See Company, 2.
52 Vic. ch. 82 (0.)]— See Railways, 6.
53 Vic ch. 44, soc. 4 (O.)}— See Insub-
ANCE, 3.
Statute of LimitaiianaJ]
Limitations Statute of.
See
Statute of Frauds,"] — See Frauds^
Statute or.
STOCK AND STOOKHOLDEB^
See Sharks.
STREET RAILWAY.
Operating on Sunday. "] — See Ih-
junction.
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XIX.]
DIGEST OF CASES.
793
SUBBOGAnON.
See Beoistbt Laws, 3.
SUNBAT.
Restraining street railway from
operaHng cm.] — Sse Injunction.
SUBET7.
See Registry Laws, 2.
TAVEBNS AND SHOPS.
By-law fixing license fee in excess
oftiiOO — Delay in moving to quash,']
— ^A by-law requiring amonnts to be
paid for tavem license fees in excess
of $200, directed, as required, the
votes of the electors to be taken
thereon. The by-law was passed on
the 25th February, 1889, and on 8th
April, 1890, a motion was made to
quash it on the ground that the votes
of all the duly qualified electors had
not been taken thereon, but only
those of freeholders. By reason of
the by-law the number of licenses was
decr(»sed, and had the motion been
allowed it would have been too late
for the corporation to make any
change, by increasing the number of
licenses so as to make up the defi-
ciency, or to submit a new by-law.
The only evidence in support of the
motion was very weak and no per-
waa whose vote had been nrjeoted
complained. The applicant himself
was a tavemkeeper whohad obtained
a license for the year 1889, under
the by-law without any objection,
and had applied again for the cur-
rent year : —
The by-law being valid on its face
the Court, under the circumtances,
considering the lapse of time before
motion made, in the exercise of its
discretion refuse to interfere. Bonn
V. Broekville, 409.
Otvner of tavern license.] — See
Innkeeper.
See also Mandamus.
TELEPHONE.
Lialnlity of company in moving
objects coming in contact toitli toireSf
and causing damage. See Munt.ci-
PAL Corporations, 5.
TENANT BY THE CUBTESY.
See Statute of Limitations.
TIME.
Giving time by renevxds ofnotes^l
— See Mortgage, 3.
OftuUl taking effect.ySee De-
volution of Estates Act.
Delay in moving to qtiash by-lawJ]
— See Taverns and Shops.
TITLE.
By possession.] — See Limitation
OF Actions — Landlord and Ten-
ant.
Discovery of wam,t of.] — See Speci-
fic Performance.
See^ also, Sale of Land, 2.
TBV8TS AND TBV8TEES.
1. Investment of moneys left to in-
fonts by will — Deposit in savings
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DIGEST OF CASES.
[vou
^nk — LiabUity of trustee for legal
interest — Acquieecettjce of statutory
guardian of infants — Coato.] —
Where moneys are left by will to be
invested at the discretion of the ex-
ecutor or trustee, the discretion so
given cannot be exercised otherwise
than according to law, and does not
wan-ant an investment in personal
secuiities or securities not sanctioned
by the Oourt And
Held^ that an executor and trus-
tee who deposited funds so left in
trust for infants, at three and a half
or four per cent interest, in a sav-
ings bank, did not conform to his
duty ; and his failure to do so ex-
posed him to pay the legal rate of
interest for the money, although he
.acted innocently and honestly ; and
the acquiescence of the statutory
guardian of the infants, not being
for their benefit, did not relieve him.
Held^ also, that defendant was not
entitled to costs out of the fund, but
that he should be relieved from pay-
ing costs. Spratt et al, v. Wilson,
28.
2. Provisions of wUl — Implied
powers of trustees — Reasonable build-
ing lease — Specific performance of
agreement for.] — The plaintiffs were
trustees under a will, holding the
legal estate in the property devised
And bequeathed, in trust to maintain
themselves and their children, with
remainder over to the children upon
the death of themselves ; with power
to absolutely convey the property
and to exclude any child from par-
ticipating in the remainder : —
ffeldy that that the plaintiffs had
implied power to make all reasonable
leases. The plaintifis made an agree-
ment for a building lease to the defen-
dant of part of the trust estate for
twenty-one years, with a provision
for compensation to the defendant at
the end of the term for his improve-
mentci, and the draft lease settled
provided that the plaintifik should
at th(*. end of the term pay for such
improvements or renew the lease for
a further term of twenty-one years: —
Beld^ that the [iro visions of the
agreement and lease were reasonable,
and bound the trust estate, and that
the plaintiffs were entitled to specific
performance. Brooke st al. v. Brown^
124.
3. Breaches of trust — Taking se-
curities in name of one of tux) joint
trvAtees — Pledging securities for ad-
vance— Misapplication of moneys ad-
vanced — Following securities in
hands of pledgee,] — One of two joint
trustees assumed to lend trust mon-
eys on the security of mortgages on
land, taking the mortgages to him-
self alone ''as trustee of the estate
and effects of J. C, deceased.'' These
mortgages were hypothecated by him
to, and moneys were advanced to him
by, the defendants, ostensibly to meet
an unexpected call by one of the
beneficiaries ; but the moneys were
not so applied, nor otherwise for the
benefit of the estate, and they were
not required for any such purposes
under the terms of the wi'l creating
the trust.
In an action by the other trustee
and two new trustees, who were also
beneficiaries, appointed in his stead :
Held, that he had been guilty of
two breaches of trust, and that the
plaintiffs were entitled to follow the
trust securities and to make the de-
fendants account for all moneys
received by them thereunder. Cum-
ming et al. v. Landed Banking and
Loan Co., 426.
Breach of by director.]— See CJoM-
PANY, 2.
See also Will, 2.
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XIX.]
DIGJSST OF CASES.
795
VENDOR AND FUBGHA8EB.
1. Exchange of lands — Lands
mtbfeet to mortgage — Liability of
purchaser to pay.] — A purchaser of
an equity of redemption is bound as
between himself and his vendor to
pay off the incumbrances, and this
quite irrespective of the frame of
the contract between the parties.
Where therefore lands were ex-
changed between the plaintiff and
defendant which were subject to
certain mortgages, the defendant
was held bound to pay off those on
the lands conveyed to him, and to
protect the plaintiff from liability
thereon. Boyd v. Johnston, 598.
2. Title — "Devolution of Estates
Act " — Outstanding mortgage — Mat-
ters of conveyomcin^ and matters of
titl^—E, S, a 1887, c. 108,]--0n a
sale of lands the purchaser objected
to the title on the grounds (1) that
there was no evidence that a certain
mortgage had been discharged and
(2) that the title being deduced
through the devisee of a person who
had died since the coming into force
of the " Devolution of Estates Act,"
R. S. O., 1887, c. 108, the legal
estate was outstanding in the execu-
tor of such person. It appeared
that all debts of the testator had
been paid : —
Held, that both matters were
matters of conveyancing, and not of
titl&
Under the " Devolution of Estates
Act," where debts have been paid,
or where there are no debts, execu-
tors will hold the bare legal estate
for the devisee of the land of the
deceased. Martin v. Magee et al.,
706.
Mights of as to damages under
agreement for sale of land,] — See
Damages.
See also Sale of Land, 2.
VENBOB'S LIEN.
/iee Railways, I.
VOLUNTARY OONVETANOB.
Transaction improvidently carried
out and vntliovU professional advice
— Setting aside.] — One of the plain-
tiffs was the owner of a farm valued
at about $4,500, and being, as was
also his wife, old and feeble and in-
capable of doing much manual labor,
and also illiterate, negotiated with
the defendant, the wife*s nephew, a
young man, with the object of effect-
ing an arrangement for their support
and maintenance. The defendant
without permitting the husband
plaintiff to obtain independent ad-
vice induced him and his wife to
execute a deed to defendant, the lat-
ter giving them back a life lease.
The consideration of the deed was
natural love and affection $1, and the
life lease. The habendum and cove-
nants for quiet enjoyment were made
subject to the lease and the covenants
therein. The annual rental in the
! lease was $1 with a covenant for quiet
: enjoyment, and a s)>ecial covenant
by defendant to support and main-
tain the plaintiffs, on performance
of which he was to have the proceeds
of the land. The defendant was
also to pay $30 in cash yearly, and
provide plaintiff with a horse and
vehicle and house room. On failure
by defendant to perform such provi-
sions plaintiffs were to have the pro-
ceeds of the land on giving defendant
two months notice in writing, and
if the default still continued plaintiffs
were to be at liberty to take steps
to eject defendant. The deed did
not contain any power of revocation
in case of defendant's default :
Meld, under the circumstances, the
deed and life lease must be set aside.
ffagarty v. Bateman, 381.
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796
DIGEST OF GA8E8.
[vol.
WAIVER.
See Bills of Exchakgb and Pso-
HissoRT Notes, 1.
WABEHOUSE.
See Railways, 4.
WABEHOUSE BEOEIPTS.
See Banks and Banking.
WATERS AND WATEROOUBSES
1. Definition of tocUercourw — Star-
face-wcUer.'] — A watercourse entitled
to the protection of the law is con-
stituted if there is a sufficient natu-
ral and accustomed flow of water to
form and maintain a distinct and
defined channel. It is not essential
that the supply of water should be
continuous or from a perennial living
source. It is enough if the flow ari-
ses periodically from natural causes
and reaches a plainly-defined chan-
nel of a permanent character. Beer
V. Stroud, 10.
2. Easement — Prescriptive rights
— Dominant and servient tenements
— Lease of servient tenement — Unity
of possession — Suspension of ease-
ment— Joint owners of mill dam —
Injunction — Damages.] — One of two
joint owners of a roiU dam, each hav-
ing a mill on the opposite sides of
the river by which the dam was
formed, was entitled to a prescriptive
right to the supply of water as fur-
nished by the dam all the way across
the river and to dam back the water
on to the plaintifl*'s land, but the
other owner was not.
In an action to restrain both
owners from backing the water to
the detriment of the plaintifl" : —
Hdd, that the dam as a piece of
property was an entire thmg and
that the plaintiff was not entitled to
an injunction restraining the use of
the water, his remedy being in dam-
ages against the owner not entitled
to the easement.
A right to an easement previously
enjoyed cannot be acquired by the
lapse of time during which the owner
of the dominant tenement has a lease
of the land over which the right
would extend. During such unity
of possession the running of the Sta-
tute of limitations is suspended.
StothaH V. HiUiard et aL, 542.
3. "Ditches and Watercourses
Act, 188S"-^Work not in accordance
unth award — Remedy under sec IS
— Costs.] — Where an award has
been made under the " Ditches and
Watercourses Act, 1883," the only
remedy for the non-completion of
the work in accordance with the
award is that provided by sec. 13 of
the Act.
Murray v. Dawson, 17 C. P. 588,
followed ; and 0' Byrne v. Campbell^
15 0. R. 339, distinguished.
No other or greater costs were
allowed to the defendants than if
they had successfully demurred in-
stead of defending and going down
to trial. Hephwrn v. TotontJiip of
Orford et al, 585.
WAT.
Basement — Severance of tenement
by devise — Reasonable enjoyment of
parts devised — Necesaa/ry rights of
way.] — Upon the severance of a
tenement by devise into separate
parts, not only do rights of way of
strict necessity pass, but also rights
of way necessary for the reasonable
enjoyment of the parts devised, and
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XIX.]
DIGEST OF CASES.
797
which had been and were up to the
time of the devise used by the owner
of the entirety for the benefit of such
parts. Briggs v. Semmene et al,
522.
WIFE.
See Husband and Wife.
WILL.
1. Validitf/ qf— Instructions/or —
Mental and physical ca/padty of tes-
tator— Donatio moi'tis causa — Suffi-
ciency of.] — The testator when nearly
eighty years of age executed a will
de\asing the whole of his estate to a
son and daughter by his tii-st marriage
to the exclusion of his wife and other
children of the second marriage. At
the time of its execution he was on
his death-bed, staying with his daugh-
ter in the United States, having
shortly before left his farm in Onta-
rio without any notice to his wife
and other children. For some time
before he had been afflicted with a
complication of diseases rendering
him incapable of managing his farm,
and which resulted in his death
shortly after the execution of the
will in question. A will was pre-
pared by an attorney practising in
the place the testator was staying,
leaving everything to the daughter,
solely on the instructions of her hus-
band. On this being i-ead over to the
testator, who was lying in bed and un-
able to rise, suffering great physical
and mental prostration, he remarked
that it was not right, that he wanted
the son's name in it too. The will
in question was then prepared, and
after being read over to him, without
explanation as to the effect of the
language used, was executed by him,
with assistance, with great difficulty.
The attorney and medical man in
attendance were of opinion that he
had sufficient mental capacity to
make a will. The same attorney
had sometime before induced him to
refrain from making a similar will.
Shortly before the execution of the
will he had handed to his daughter
a bank deposit receipt which she had
transferred to her name, and partly
used, he stadng that he wanted her
to take care of him, and that he was
going to have a will drawn. From
the evidence it a{>peared that the
testator, as well as his daughter,
wei-e under the impression that the
will had reference to the deposit
receipt only : —
Held, (varying the judgment of
the trial Judge) that the will was
invalid, its execution under the cir-
cumstances of the testator's condi-
dition, and the absence of any ex-
planation to him of the effect of his
testamentary act, being a fraud on
the part of those concerned in pro-
curing its execution : —
Held, also, that the gift of the
deposit receipt was a valid donatio
mortis causa. Freeman v. Freeman^
141.
2. Bule in SlisUey^s Com —
Trust — Restraint on alienation by
sale hut not by mortgage — Buls
against perpetuities^] — A testator by
his will devised certain lands to his
son N. M., for life, and after his
decease to his heirs and assigns for-
ever, but subject to the payment
within three years out of the rents
and income of a sum of money
charged upon the lands therein
specified ; after his death the land
was to be sold provided N. M.'s
I youngest child then living was of
the age of twenty-one years, the
I proceeds thereof to be equidly divided
I between N. M.'s children at the
time of the sale : —
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798
DIGEST OF CASES.
Held^ affirming the judgment of
Steeet, J., at the trial, that under
the rule in Shelley's Case N. M. took
an estate in fee simple in the land,
but reversing it so far as it held that
there was a trust in favour of N.
M/s children.
Heldy also, that by the terms of
the will there was a restraint on
alienation by sale, but not by mort-
gage-
Held, lastly that the executoiy
devise in favour of N. M.'s children
was void as a violation of the rule
against perpetuities. Meyers v. The
Hamiltmi Provident and Loan Corn-
pant/, 358.
3. Devise — Forfeiture — Actual
possession and occupation — Posses
sion by servant, caretaker, or worker
on shares,] — S. M. had become en-
titled under T. C. S.'s will to certain
property called ** Clarke Hill," of
which T. C. S. was owner when he
died, and also to an undivided in-
terest in certain other property of
which T. C. S. was tenant in com-
mon. He also became entitled to a
legacy under the following clause of
A. H. S.'s will : « I will and direct
that so soon as S. M. * * can
and does take actual possession of
the real estate and property * *
under the will of T. 0. S. * *
my executors ♦ shall ♦ * so
long as he remains the owner and
actual occupant of the said real estate
pay over to him * * the annual
suin of 81^000 to enable, <kc." :—
Held, that this clause, read in con-
nection with the will of T. C. S.,
referred only to the land of which
T. C. S. was absolute owner, and not
to the land he owned as tenant in
common : —
Held, also, that actual possession
and occupation of the land by S. M.
was consonant with and satisfied by
the possession of a servant or care-
[VOL.
taker, or even a worker on shares,
and that S. M.'s temporary absence
from the mansion house on the pro-
perty, which was kept furnished and
in charge of a servant^ did not create
a forfeiture. Macklem v. Macklem
et al,, 482.
See Trusts and Trustees, 2.
WINDINCmP ACT (DOM.)
See Company, 1, 2.
wnromcmp act (ont.)
See Company, 2.
WORDS.
" Anything done under this Act"!
— See Hides.
" Bra7ich."]—See Assessment aki>
Taxes.
" Defect."]— See Master and Ser-
vant, 1.
" Given for a patent riffhL"]'-See
Bills of Exchange and Promissory
Notes, 1.
" Mineral,'^'] — See Municipal
Corporations, 3.
** Moving"] — See Master and
Servant, 1.
" Owner or agent " in E. S. 0. ch,
205, sec. 6.] — See Public Health
Act.
'* Person"]See Prohibition, 1.
*' Personal properiy."]^See As-
sessment AND Taxes,
" Place o/business."] — See AssESS-
AND Taxes.
''Total disability."]" See Insur-
ance, 1.
" Watercourse."] — See Waters
AND Watercourses, I.
w
WOUKMENS COMPENSATION
!FOB INJURIES ACT.
See Master and Servant, 1, 2, 3.
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