(fnntell IGaui ^rljool lOibraqj 
 
Cornell University Library 
 KEO 631914a 
 
 Annotations to the Revised statutes of O 
 
 3 1924 016 981 247 
 
ANNOTATIONS 
 
 TO THE 
 
 Revised Statutes of Ontario 
 
 1914 
 
 BT 
 
 FLETCHER CAMERON SNIDER, D.C.L. 
 
 TORONTO : 
 
 The Cabswell Company, Limited, 
 
 Law Publishers. 
 
 1914. 
 
I #> I 
 
 I? ,«' 
 
 /d^m 
 
 Copyright : Canada, 1914, by the Cabswell Co., Limited. 
 
i J I 'i 
 
 PREFAGE 
 
 In the preparation of this work, which has involved 
 a great deal of very exacting labour, a checking system 
 was adopted to eliminate mistakes as far as possible, but 
 it proved impossible in putting the work through the 
 press to re-check the citations in the proof, and doubt- 
 less a number of errors have crept in. I shall be very 
 glad to have these called to my attention so that they may 
 be corrected later. Arrangements are contemplated to 
 follow up in supplements judicial decisions and the 
 annual changes in the statutes, and these supplements 
 would afford opportunity to correct mistakes in the pres- 
 ent work. Owing to a printer's error, which had gone too 
 far to be completely corrected, in the citation of English 
 cases the calendar year is, in many cases, not within 
 brackets as it should be. I do not think any difficulty 
 will arise from this. 
 
 The abbreviations used are the usual ones. The pres- 
 ent rules of the Supreme Court of Ontario are cited as 
 " 1913 Rules." The former rules as " C. E." or " Con. 
 Rule." The edition of Holmested and Langton, so fre- 
 quently cited, is the present current 3rd edition. 
 
 It is to be hoped that the short bibliographies pre- 
 fixed to certain chapters may be of assistance in bring- 
 ing other annotations of the chapters in question in touch 
 with the present work. The references to text books may 
 also help. I desire to express my obligations to the late 
 W. George Eakins, Librarian of Osgoode Hall, for assist- 
 ance at "the inception of this work, and to Mr. Shirley 
 Denisen, K.C., for permission to make use of notes, 
 bearing chiefly on the Real Property Statutes. 
 
 Toronto, April, 1913. 
 
 F. C. Snider. 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924016981247 
 
TABLE OF GONTENTS 
 
 Table of date of commencement of reign of recent , 
 Sovereigns- , . xiii 
 
 Table of Calendar years and the corresponding 
 
 years of the reign of recent Sovereigns .... xiv 
 
 Table of Canadian Eeports xv 
 
 Comparative Chronological Table of Law Eeports 
 in the Courts of the Province of Ontario and in 
 the Supreme Court of Canada xvii 
 
 Table of Cases xxi 
 
 THE EEVISED STATUTES OF ONTAEIO, 1914. 
 
 OH. PAGE 
 
 1. The Interpretation Act 1 
 
 2. The Statutes Act 8 
 
 3. The Territorial Division Act 9 
 
 4. The Haliburton Act 9 
 
 5. The Eepresentation Act 9 
 
 6. The Ontario Voters' Lists Act 10- 
 
 7. The Manhood Suffrage Eegistration Act .... 16 
 
 8. The Ontario Election Act 16 
 
 9. Punishment for Personation 35 
 
 10. Controverted Elections 36 
 
 11. The Legislative Assembly Act 42 
 
 12. The Lieutenant-Governors ' Act 43 
 
 13. The Executive Council Act 43 
 
 14. The Public Service Act 43 
 
 15. The Public Officers' Act 44 
 
 16. The Sheriff's Act 44 
 
 17. The Public Officers Fees Act 46 
 
 18. The Public Inquiries Act 46 
 
 19. The Official Notices Publication Act 46 
 
 20. The Consolidated Eevenue Fund Act 46 
 
 21. The Provincial Loans Act 47 
 
 22. The Public Eevenue Act 47 
 
 23. The Audit Act 47 
 
 24. The Succession Duty Act 47 
 
VI TABLE OF CONTENTS. 
 
 CH. PAGE 
 
 25. The Law Stamps Act 56 
 
 26. The Mining Tax Act 56 
 
 27. The Corporations Tax Act 57 
 
 28. The Public Lands Act 57 
 
 29. The Crown Timber Act 66 
 
 30. The Forest Eeserves Act 69 
 
 31. The Bed of Navigable Waters Act 69 
 
 32. The Mining Act 70 
 
 33. The Metal Eefining Bounty Act 81 
 
 34. The Town Sites Act 81 
 
 35. The Ontario Public Works Act 81 
 
 36. The Public Works Peace Preservation Act ... 81 
 
 37. The Bureau of Labour Act 81 
 
 38. The Temiskaming and Northern Ontario Rail- 
 
 way Act 82 
 
 39. The Power Commission Act 83 
 
 40. The Highway Improvement Act 84 
 
 41. The Colonization Roads Act 84 
 
 42. The Provincial Aid to Drainage Act 85 
 
 43. The Municipal Drainage Aid Act 85 
 
 44. The Tile Drainage Act 85 
 
 45. The Department of Agriculture Act 85 
 
 46. The Agricultural Associations' Act 85 
 
 47. The Agricultural Societies Act 85 
 
 48. The Horticultural Societies Act 86 
 
 49. The Vital Statistics Act 86 
 
 50. The Queen Victoria Niagara Falls Park Act . 86 
 • 51. The Queenston Heights Park Act 86 
 
 52. The Provincial Parks Act 87 
 
 53. The Burlington Beach Act . . . 87 
 
 54. The Privy Council Appeals Act ' . . . 87 
 
 55. The Dominion Courts Act ". 89 
 
 56. The Judicature Act 90 
 
 57. The Extra Judicial Services Act 116 
 
 58. The County Judges Act .; 116 
 
 59. The County Courts Act J,:. 117 
 
 60. The General Sessions Act 127 
 
 61. The County Court Judges' Criminal Courts 
 
 Act 127 
 
 62. The Surrogate Courts Act 128 
 
 63. The Division Courts Act 143 
 
 64. The Jurors Act 169 
 
 65. The Arbitration Act 171 
 
 66. The Boards of Trade General Arbitration Act 182 
 
 67. The Boundary Line Disputes Act 183 
 
TABLE OP CONTENTS. Vll 
 
 CH. PAGE 
 
 68. The Lunacy Act 183 
 
 69. The Eeplevin Act 189 
 
 70. The Dower Act 190 
 
 71. The Libel and Slander Act 197 
 
 72. The Seduction Act 204 
 
 73. The Crown Administration of Estates Act . . 205 
 
 74. The Settled Estates Act 206 
 
 75. The Limitations Act 210 
 
 76. The Evidence Act 261 
 
 77. The Commissioners for Taking Affidavits Act. 266 
 
 78. The Costs of Distress Act 266 
 
 79. The Judges' Orders Enforcement Act 267 
 
 80. The Execution Act 267 
 
 81. The Creditors Relief Act 275 
 
 82. The Absconding Debtors' Act 278 
 
 83. The Fraudulent Debtors' Arrest Act 279 
 
 84. The Ontario Habeas Corpus Act 286 
 
 85. The Constitutional Questions Act 289 
 
 86. The Damage by Flooding Act 290 
 
 87. The Justices of the Peace Act 291 
 
 88. The Police Magistrates' Act 293 
 
 89. The Public Authorities' Protection Act 296 
 
 90. The Ontario Summary Convictions Act 301 
 
 91. The Crown Attorneys' Act 306 
 
 92. The Coroners' Act 307 
 
 93. The Dominion Commissioners of Police Act . . 309 
 
 94. The Constables' Act 309 
 
 95. The Police Constables' Bail Act 309 
 
 96. The Administration of Justice Expenses Act. 310 
 
 97. The Crown "Witnesses Act 311 
 
 98. The Estreats Act 311 
 
 99. The Fines and Forfeitures Act 313 
 
 100. The Niagara Falls Magistrates' Act 313 
 
 101. The Property and Civil Rights Act 313 
 
 102. The Statute of Frauds 315 
 
 103. The Mortmain and Charitable Uses Act 327 
 
 104. The Escheats Act 331 
 
 105. The Fraudulent Conveyances Act 332 
 
 106. The Powers of Attorney Act 337 
 
 107. The Swarms of Bees Act 337 
 
 108. The Aliens Real Property Act 338 
 
 109. The Conveyancing and Law of Property Act . 338 
 
 110. The Accumulations Act 352 
 
 111. The Petty Trespass Act 354 
 
 112. The Mortgages Act 354 
 
Viii TABLE OF CONTENTS. 
 
 CH. PAGE 
 
 113. The Estates Tail Act 361 
 
 114. The Partition Act 364 
 
 115. The Short Forms of Conveyances Act 366 
 
 116. The Short Forms of Leases Act 369 
 
 117. The Short Forms of Mortgages Act 377 
 
 118. The Accidental Fires Act 385 
 
 119. The Devolution of Estates Act 385 
 
 120. The Wills Act 400 
 
 121. The Trustee Act 419 
 
 122. The Vendors and Purchasers Act 437 
 
 123. The Quieting Titles Act 447 
 
 124. The Registry Act 453 
 
 125. The Custody of Documents Act 507 
 
 126. The Land Titles Act 508 
 
 127. The Ferries Act 522 
 
 128. The Millers' Act 523 
 
 129. The Water Privileges Act 523 
 
 130. The Rivers and Streams Act 524 
 
 131. The Saw Logs Driving Act 528 
 
 132. The Definition of Time Act 529 
 
 133. The Mercantile Law Amendment Act 529 
 
 134. The Assignments and Preferences Act ...... 535 
 
 135. The Bills of Sale and Chattel Mortgage Act . . 568 
 
 136. The Conditional Sales Act 585 
 
 137. The Factors Act ... 591 
 
 138. The Limited Partnership Act 595 
 
 139. The Partnership Registration Act 597 
 
 140. The Mechanics' and Wage-Earners* Lien Act. 598 
 
 141. The Woodman's Lien for Wages Act 621 
 
 142. The Public and other Works Wages Act 622 
 
 143. The Wages Act 622 
 
 144. The Master and Servant Act 624 
 
 145. The Trades Disputes Act 626 
 
 146. The Workmen's Compensation for Injuries 
 
 Act 626 
 
 147. The Apprentices and Minors Act 664 
 
 148. The Marriage Act 666 
 
 149. The Married Women's Property Act 670 
 
 150. The Married Women's Conveyances Act . . . 692 
 
 151. The Fatal Accidents Act .... '. 696 
 
 152. The Deserted Wives Maintenance Act 706 
 
 153. The Infants Act 707 
 
 154. The Illegitimate Children's Act 716 
 
 155. The Landlord and Tenant Act 717 
 
 156. The Apportionment Act 733 
 
TABLE OF CONTENTS. IX 
 
 CH. PAGE 
 
 157. The Law Society Act 735 
 
 158. The Barristers Act 736 
 
 159. The Solicitors Act 736 
 
 160. The Notaries Act 761 
 
 161. The Ontario Medical Act 762 
 
 162. The Anatomy Act 766 
 
 163. The Dentistry Act 767 
 
 164. The Pharmacy Act 768 
 
 165. The Ontario Land Surveyors Act 769 
 
 166. The Surveys Act 769 
 
 167. The Ontario Architects Act 773 
 
 168. The Stenographic Eeporters Act 773 
 
 169. The Chartered Accountants Act 773 
 
 170. The Stationary Engineers Act 773 
 
 171. The Veterinary Surgeons Act 773 
 
 172. The Ontario Cullers Act 773 
 
 173. The Innkeepers Act 774 
 
 174. The Embalmers and Undertakers Act 775 
 
 175. The Ontario Money Lenders Act 775 
 
 176. The Ontario Pawnbrokers Act 776 
 
 177. The Private Detectives Act 776 
 
 178. The Ontario Companies Aot 777 
 
 179. The Extra-Provincial Corporations Act .... 856 
 
 180. The Ontario Telegraph Act 861 
 
 181. The Timber Slide Companies Act 862 
 
 182. The Wharfs and Harbours Act 862 
 
 183. The Ontario Insurance Act 863 
 
 184. The Loan and Trust Corporations Act 907 
 
 185. The Ontario Railway Act 911 
 
 186. The Ontario Eailway and Municipal Board 
 
 Act 979 
 
 187. The Hydro-Electric Eailway Act 980 
 
 188. The Ontario Telephone Act 981 
 
 189. The Public Utilities Corporations Act 981 
 
 190. The Guarantee Companies Securities Act .... 982 
 
 191. The Cheese and Butter Exchanges Act 982 
 
 192. The Municipal Act 983 
 
 193. The Local Improvement Act 1072 
 
 194. The City and Suburbs Plans Act 1100 
 
 195. The Assessment Act 1100 
 
 196. The Statute Labour Act 1120 
 
 197. The Municipal Franchises Act 1121 
 
 198. The Municipal Drainage Act 1121 
 
 199. The Municipal Arbitrations Act 1135 
 
 200. The Municipal and School Accounts Audit Act 1136 
 
X TABLE OF CONTENTS. 
 
 OH. PAGE 
 
 201. The Firemen's Exemption Act 1136 
 
 202 The Public Libraries Act 1137 
 
 203. The Public Parks Act 1138 
 
 204. The Public Utilities Act 1140 
 
 205. The Municipal Electric Contracts Act 1144 
 
 206. The Highway Travel Act 1145 
 
 207. The Motor Vehicles Act 1145 
 
 208. The Snow Roads Act 1147 
 
 209. The Tolls Exemption Act 1148 
 
 210. The Toll Roads Act 1148 
 
 211. The Snow Fences Act 1150 
 
 212. The Traction Engines Act 1151 
 
 213. The Tree Planting Act 1152 
 
 214. The Travelling Shows Act 1152 
 
 215. The Liquor License Act 1153 
 
 The Lord's Day Act 1177 
 
 216. The Minors' Protection Act 1179 
 
 217. The Gaming Act 1180 
 
 218. The Public Health Act 1181 
 
 219. The Vaccination Act 1185 
 
 220. The Housing Accommodation Act 1185 
 
 221. The Milk Act 1185 
 
 222. The Milk, Cheese and Butter Act 1185 
 
 223. The Dairy Products Act 1185 
 
 224. The Bread Sales Act 1186 
 
 225. The Fruit Sales Act 1186 
 
 226. The Entry of Horses at Exhibitions Act 1186 
 
 227. The Debt Collectors' Act 1186 
 
 228. The Building Trades Protection Act 1187 
 
 229. The Factory, Shop and Office Building Act . 1187 
 
 230. The Maternity Boarding House Act 1192 
 
 231. The Children's Protection Act 1192 
 
 232. The Female Patients' and Prisoners' Protec- 
 
 tion Act 1193 
 
 233. The Juvenile Courts Act 1193 
 
 234. The Minors' Tobacco Sales Act 1194 
 
 235. The Egress from Public Buildings Act 1194 
 
 236. The Theatres and Cinematographs Act 1194 
 
 237. The Prevention of Accidents by Fires in 
 
 Hotels Act 1194 
 
 238. The Threshing Machines Act 1194 
 
 239. The Offensive Weapons Act 1195 
 
 240. The Counties Reforestation Act 1195 
 
 241. The Forest Fires Prevention Act 1195 
 
 242. The Fire Guardians Act 1195 
 
TABLE OF CONTENTS. XI 
 
 OH. PAGE 
 
 243. The Fires Extinguishment Act 1195 
 
 244 The Beach Protection Act 1195 
 
 245. The Beaches and Biver Beds Act 1195 
 
 246. The Dog Tax and Sheep Protection Act .... 1196 
 
 247. The Pounds Act 1197 
 
 248. The Injured Animals Act 1198 
 
 249. The Ontario Stallion Act 1198 
 
 250. The Natural Gas and Oil Wells Act 1198 
 
 251. The Steam Threshing Engines Act 1198 
 
 252. The Steam Boiler Act 1199 
 
 253. The Noxious "Weeds Act 1199 
 
 254. The Fruit Pest Act 1200 
 
 255. The Barberry Shrub Act 1200 
 
 256. The Ginseng Act 1200 
 
 257. The Bee Protection Act 1200 
 
 258. The Foul Brood Act 1200 
 
 259. The Line Fences Act 1201 
 
 260. The Ditches and Watercourses Act 1202 
 
 261. The Cemetery Act 1205 
 
 262. The Ontario Game and Fisheries Act 1205 
 
 263. The Protection of Birds Act 1206 
 
 264. The Wolf Bounty Act 3206 
 
 265. The Department of Education Act 3206 
 
 266. The Public Schools Act 1207 
 
 267. The Continuation Schools Act 1220 
 
 268. The High Schools Act 1221 
 
 269. The Boards of Education Act 1223 
 
 270. The Separate Schools Act 1223 
 
 271. The Industrial Schools Act 1226 
 
 272. The Special Classes Act 1226 
 
 273. The Schools for the Deaf and Blind Act 1226 
 
 274. The Truancy Act 1226 
 
 275. The Adolescent School Attendance Act 1226 
 
 276. The Industrial Education Act 1227 
 
 277. The School Sites Act 1227 
 
 278. The School Trust Conveyances Act 1227 
 
 279. The University Act 1228 
 
 280. The Upper Canada College Act 1228 
 
 281. The Agricultural College Act 1228 
 
 282. The Veterinary College Act 1228 
 
 283. The Mining Schools Act 1228 
 
 284. The College of Art Act 1229 
 
 285. The Eoyal Ontario Museum Act 1229 
 
 286. The Eeligious Institutions Act 1229 
 
 287. The Ontario Reformatory Act 1231 
 
Xll TABLE OF CONTENTS. 
 
 CH. PAGE 
 
 288. The Andrew Mercer Reformatory Act 1232 
 
 289. The Female Refuges Act 1232 
 
 290. The Houses of Refuge Act 1232 
 
 291. The District Houses of Refuge Act 1232 
 
 292. The Industrial Farms Act 1232 
 
 293. The Gaols Act 1233 
 
 294. The District Court Houses Act 1233 
 
 295. The Hospitals for the Insane Act 1233 
 
 296. The Private Sanitarium Act 1235 
 
 297. The Hospital for Epileptics Act 1235 
 
 298. The Sanatoria for Consumptives Act 1235 
 
 299. The Toronto General Hospital Act 1235 
 
 300. The Hospitals and Charitable Institutions Act 1235 
 
 301. The Prisons and Public Charities Inspection 
 
 Act 1236 
 
 LIST OF FORMS, TARIFFS, ETC., INCORPORATED 
 IN THE ANNOTATIONS. 
 
 Companies : 
 
 Departmental Circular as to the formation of 
 Companies with share capital under the 
 Ontario Companies Act 788 
 
 Joint Stock Company Conveyancing Tariff of 
 
 the County of York Law Association .... 756 
 
 Departmental regulations in regard to fees of 
 
 Joint Stock Companies 833 
 
 Departmental memorandum in regard to ap- 
 plications for licenses to Extra-Provincial 
 Corporations to carry on business in 
 Ontario 858 
 
 Approved Surety and Guarantee Companies . . 982 
 
 Forms : 
 
 List of Forms approved under the Succession 
 
 Duty Act 55 
 
 Forms re Voting on By-laws under Municipal 
 Act, see ' ' Municipal. ' ' 
 
 Forms in regard to Local Improvements, see 
 " Local Improvements." 
 
 Form of application for approval of Money By- 
 laws, see " Municipal." 
 
 »» 
 
TABLE OP CONTENTS. Xlll 
 
 Local Improvements : page 
 
 Forms approved by the Ontario Railway and 
 Municipal Board, under the Local Improve- 
 ment Act : 
 
 Petition for Local Improvement 1077 
 
 Clerk's certificate 1079 
 
 Declaration of Publication 1079 
 
 Declaration of Service 1079 
 
 Procedure By-law (S.ection 32) 1080 
 
 By-law (Section 23) 1082 
 
 Construction By-law 1082 
 
 Special Assessment Boll 1086 
 
 Debenture By-law, Sinking Fund Plan 1087 
 
 Debenture By-law, Instalment Plan 1090 
 
 Schedule to be attached to Debenture By-law. . . 1093 
 Consolidating By-law, Sinking Fund Plan . . 1094 
 
 Consolidating By-law, Instalment Plan 1096 
 
 Debenture, Instalment Plan, without coupons. 1098 
 Debenture, Instalment or Sinking Fund Plan . . 1098 
 Form of affidavit on application for approval of 
 By-law under Local Improvement Act, sec- 
 tions 43 and 44 1021 
 
 Form of application for approval of By-laws 
 under the Local Improvement Act : 
 
 Form A, "Works on Petition 1025 
 
 Form B, Works without Petition 1027 
 
 Form C, On the Initiative Plan 1027 
 
 Municipal : 
 
 Form of By-law approved by the Ontario Bail- 
 way and Municipal Board for taking the 
 votes of electors 1008 
 
 Form of By-law approved by the Ontario Bail- 
 way and Municipal Board for taking the 
 votes of electors upon a question 1009 
 
 Notice of proposed By-law for publication . . . 1010 
 
 Notice to be published with statement of ques- 
 tion submitted 1011 
 
 Form of application to the Ontario Railway and 
 Municipal Board for approval of bonus or 
 money By-law 1023 
 
£1v reign of recent sovereigns. 
 
 Tariffs : page 
 
 Tariff of Fees and Costs to Solicitor and Coun- 
 sel in respect of proceedings in the Surro- 
 gate Courts in non-contentious cases ..... 140 
 
 Tariff of Fees under the Division Courts Act. . 161 
 
 Conveyancing tariff of the County of York Law 
 
 Association 751 
 
 Conveyancing tariff of the County of Carleton 
 
 Law Association 753 
 
 Conveyancing tariff of the Hamilton Law As- 
 sociation 755 
 
 Joint Stock Company conveyancing tariff of 
 
 the County of York Law Association ..... 756 
 
 )ATE OP COMMENCEMENT OP REIGN OP RECENT SOVEREIGNS. 
 Sovereign. Date of Com. of Reign. 
 
 William IV June 26, 1830. 
 
 Victoria June 20, 1837. 
 
 Ddward VII January 22, 1901. 
 
 George V May 6, 1910. 
 
TABLE OF. BEIGN OF BECENT SOVEBEIGNS. 
 
 XV 
 
 TABLE 
 
 of Calendar years and the corresponding years of the reign of recent 
 
 Sovereigns. 
 
 1831 
 
 1 & 2 Wm. IV. 
 
 1874 
 
 1875 
 
 37 & 38 Vict. 
 
 1832 
 
 .... 2 & 3 
 
 38 & 39 " 
 
 1833 
 
 3 & 4 
 
 1876 
 
 39 & 40 " 
 
 1834 
 
 4 & 5 
 
 1877 
 
 40 & 41 " 
 
 1835 
 
 5 & 6 
 
 1878 
 
 41 & 42 " 
 
 1836 
 
 6 & 7 
 
 1879 
 
 42 & 43 " 
 
 1837 
 
 7 Wm. IV. & 1 Vict. 
 
 1880 
 
 ......43 & 44 " 
 
 1838 
 
 1 & 2 Vict. 
 
 1881 
 
 44 & 45 " 
 
 1839 
 
 2 & 3 " 
 
 1882 
 
 45 & 46 " 
 
 1840 
 
 3 & 4 " 
 
 1883 
 
 46 & 47 " 
 
 1841 
 
 4 & 5 " 
 
 1884 
 
 47 & 48 " 
 
 1842 
 
 5 & 6 " 
 
 1885 
 
 48 & 49 " 
 
 1843 
 
 6 & 7 " 
 
 1887 
 
 50 & 51 " 
 
 1844 
 
 7 & 8 " 
 
 1888 
 
 51 & 52 " 
 
 1845 
 
 8 & 9 " 
 
 1889 
 
 52 & 53 " 
 
 1846 
 
 9 & 10 " 
 
 1890 
 
 53 & 54 " 
 
 1847 
 
 10 & 11 " 
 
 1891 ..... 
 
 54 & 55 " 
 
 1848 
 
 11 & 12 " 
 
 1892 
 
 55 & 56 " 
 
 1849 
 
 12 & 13 " 
 
 1893 
 
 56 & 57 " 
 
 1850 
 
 13 & 14 " 
 
 1894 
 
 57 & 68 " 
 
 1851 
 
 14 & 15 " 
 
 1895 
 
 58 & 59 " 
 
 1852 
 
 15 & 16 " 
 
 1896 
 
 59 & 60 " 
 
 1853 
 
 16 & 17 *' 
 
 1897 
 
 60 & 61 " 
 
 1854 
 
 17 & 18 " 
 
 1898 
 
 61 & 62 " 
 
 1855 
 
 18 & 19 " 
 
 1899 
 
 62 & 63 " 
 
 1856 
 
 19 te 20 " 
 
 1900 
 
 63 & 64 " 
 
 1857 
 
 20 & 21 " 
 
 1901 
 
 1 Edw. VII. 
 
 1858 
 
 21 & 22 " 
 
 1902 
 
 2 
 
 1859 
 
 22 & 23 " 
 
 1903 
 
 3 
 
 1860 
 
 23 & 24 " 
 
 1904 
 
 4 
 
 1861 
 
 24 & 25 " 
 
 1905 
 
 5 
 
 1862 
 
 25 & 26 " 
 
 1906 
 
 6 
 
 1863 
 
 26 & 27 " 
 
 1907 
 
 7 
 
 1864 
 
 27 & 28 " 
 
 1908 
 
 8 
 
 1865 
 
 28 & 29 " 
 
 1909 
 
 9 
 
 1866 
 
 29 & 30 " 
 
 1910 
 
 10 Edw. VII. & 
 
 1867 
 
 30 & 31 *' 
 
 
 1 Geo. V. 
 
 1868 
 
 32 & 33 " 
 
 1911 
 
 1 & 2 Geo. V 
 
 1870 
 
 33 & 34 " 
 
 1912 
 
 2 & 3 
 
 1871 
 
 34 & 35 ** 
 
 1913 
 
 3 & 4 
 
 1872 
 
 35 & 36 " 
 
 1914 .... 
 
 4 & 5 
 
 1873 
 
 36 & 37 " 
 
 1915 .... 
 
 
XVI TABLE OF CANADIAN REPORTS. 
 
 TABLE OF CANADIAN EEPOETS. 
 
 Dominion of Canada. 
 
 1876-1914 Supreme Court Reports 49 vols. 
 
 1881-1914 Canadian Exchequer Court Reports 14 vols. 
 
 General Reports. 
 
 1828-1914 Canadian Reports, Appeal Cases 15 vols. 
 
 1855-1864 Canada Law Journal, old series 10 vols. 
 
 1865-1914 Canada Law Journal . .^ 50 vols. 
 
 1881-1914 Canadian Law Times 34 vols. 
 
 1902-1914 Canadian Railway Cases 16 vols. 
 
 1905-1914 Western Law Reporter 28 vols. 
 
 1906-1914 Eastern Law Reporter 14 vols. 
 
 1912-1914 Dominion Law Reports 17 vols. 
 
 Prince Edward Island. 
 
 1850-1872 Peters' P. E. I. Reports 1 vol. 
 
 1850-1882 Prince Edward Island Reports 2 vols. 
 
 Nova Scotia. 
 
 1834-1853 Thompson's Decisions 1 N. S. R. 
 
 1853-1855 James* Decisions 2 N. S. R. 
 
 1856-1859 Thompson's Reports 3 N. S. R. 
 
 1859 Cochran's Reports 4 N. S. R. 
 
 1860-1867 Oldright's Reports 5, 6 N. S. R. 
 
 1865-1880 Young's Vice-Admiralty Vol. 1. 
 
 1867-1874 Nova Scotia Decisions 7, 8, 9 N. S. R. 
 
 1873-1882 Ritchie's Equity Cases (Russell) Vol. 1. 
 
 1875-1879 Russell and Chesley 10, 11, 12 N. S. R. 
 
 1879-1895 Russell and Geldert 13-27 N. S. R. 
 
 1895-1907 Geldert and Russell 28-39 N. S. R. 
 
 Wallace (hitherto unreported) 40 N. & R. 
 
 1907-1914 Geldert and Russell 41-47 n. S. R. 
 
 New Brunswick. 
 
 1825-1835 Chipman's M9S 1 N. B. R. 
 
 1835-1839 Berton 2 N. B. R. 
 
 1840-1848 Kerr 3-5 N. B. R. 
 
 1848-1866 Allen 6-11 N. B. R. 
 
 1867-1871 Hannay 12-13 N. B. R. 
 
 1872-1877 Pugsley 14-16 N. B. R. 
 
 1878-1882 Pugsley & Burbidge 17-20 N. B. R. 
 
 1883-1914 N. B. Reports 21-42 N. B. R. 
 
TABLE OF CANADIAN BEPOBTS. XV11 
 
 1848-1891 Lower Canada Jurist Reports 35 vols. 
 
 1850-1867 Lower Canada Reports 17 vols. 
 
 1865-1868 Lower Canada Journal 4 vols. 
 
 1869-1891 Revue Legale 22 vols. 
 
 1874-1891 Quebec Law Reports 17 vols. 
 
 1895-1914 Revue Legale, N. S. ' 20 vols. 
 
 1892-1914 Quebec Official Reports, Q. B. and K. B.. . 23 vols. 
 1892-1914 Quebec Official Reports, S. C 45 vols. 
 
 Ontario. 
 
 1823-1827 Taylor's Reports 1 vol. 
 
 1829-1831 Draper's Reports 1 vol. 
 
 1831-1843 Upper Canada Reports, Old Series 6 vols. 
 
 1844-1848 Upper Canada Jurist 2 vols. 
 
 1844-1881 Upper Canada Reports 46 vols. 
 
 1846-1866 Error and Appeal 3 vols. 
 
 1848-1850 Common Law Chambers 2 vols. 
 
 1849-1881 Grant's Chancery Reports 29 vols. 
 
 1850-1881 Upper Canada Common Pleas 32 vols. 
 
 1850-1900 Practice Reports 19 vols. 
 
 1858-1872 Chancery Chambers Reports «. 4 vols. 
 
 1871-1879 Hodgins Election Cases 1 vol. 
 
 1876-1900 Appeal Reports 27 vols. 
 
 1882-1900 Ontario Reports 32 vols. 
 
 1884-1900 Ontario Election Cases 2 vols. 
 
 1898-1903 Clarke and Scully, Drainage Cases 2 vols. 
 
 1901-1914 Ontario Law Reports 30 vols. 
 
 1902-1914 Ontario Weekly Reporter 26 vols. 
 
 1906-1910 Mining Commissioners Oases (Price) . . 1 vol. 
 
 1909-1914 Ontario Weekly Notes 6 vols. 
 
 Western Provinces. 
 
 1875-1885 Manitoba Reports 1 vol. 
 
 1883-1914 Manitoba Law Reports 24 vols. 
 
 1890-1895 Western Law Times 6 vols. 
 
 1867-1914 British Columbia Law Reports 18 vols. 
 
 1885-1907 Territories Law Reports 7 vols. 
 
 1905-1914 Western Law Reporter ..... : . 29 vols. 
 
 1908-1914 Saskatchewan Law Reports 6 vols. 
 
 1908-1914 Alberta Law Reports 6 vols. 
 
 s.a, — B. 
 
xvm 
 
 CHEONOLOGlGAL TABLE OF LAW EEPOBTS. 
 
 P 
 
 w 
 
 'u 
 
 
 1-3 
 
 d 
 P 
 
 1M 
 
 CO 
 
 « "S 
 
 © s 
 
 p* c3 
 
 PS "s 
 
 3 
 
 o 
 u 
 
 E 
 fc 
 
 D. 
 3 
 CO 
 
 41 
 
 •a 
 
 c 
 
 rJ 
 fa 
 
 o 
 w 
 
 ►J 
 
 pa 
 
 H 
 
 © £ 
 o o 
 
 © ° 
 
 © .5 
 
 « § 
 
 u 
 
 o 
 
 <-" 
 
 w - 
 
 > "S 
 
 <3 
 
 
 
 
 ■3 
 
 
 
 
 H 
 
 
 
 
 rH 
 
 
 
 
 
 rd 
 Q 
 
 
 
 
 i-5 
 
 J 
 
 03 
 
 
 O 
 
 O 
 
 ai 
 
 
 rH 
 
 <N 
 
 rH 
 
 o 
 
 
 H P 
 
 rH (N CO 
 
 d Q 
 
 d d 
 p p 
 
 H 
 
 «< 
 PS 
 << 
 Ph 
 
 
 £> 
 
 
 rH eq 
 
 3 
 O 
 
 u 
 
 J3 
 
 rH ^ 
 
 ■£ "S CO «! 02 CO CO CO 
 O ° - 
 
 
 
 S 
 
 4-1 
 
 p-g-dcoooo 
 
 
 (d 
 
 © 
 
 c 
 
 ^ 5 Ph Pi Ph Ph «" Ph P3 Ph « Ph Ph 
 
 Ph 
 
 PhPh° 
 
 
 
 V»ddbDOdddQDO 
 
 d 
 
 d d !=> 
 
 
 
 
 
 
 
 
 >>gpDDPPPP'pppp 
 
 p 
 
 P P - 
 
 
 
 r"iQrH(NicCTji»««DrH<N:C'*»o 
 
 ?o 
 
 n » a 
 
 
 
 1>- rH 
 
 
 
 
 
 <N CO 
 
 
 
 
 
 00 00 CO 
 
 
 
 
 
 rHrHOJCCTPOOO"* 
 1 1 1 1 1 1 J 1 
 
 
 
 
 
 050JH(M«1050»rfia<Ot»CC 
 
 Ol 
 
 © rH <N 
 
 
 
 «NWMMMCI5M^<jirfH(^i 
 
 ■* 
 
 »o »o m 
 
 
 
 ooooooocaoocooooooonaoxoo 
 
 00 
 
 00 00 00 
 
CHRONOLOGICAL TABLE OF LAW EEPOETS. 
 
 XIX 
 
 o 
 
 O 
 
 O 
 
 o 
 
 J3 
 
 CO 
 
 J2 
 
 o 
 
 
 I 
 
 4 
 
 O 
 
 0- 
 
 w 
 
 M 
 
 66 
 ■4 
 
 M • 
 
 O 
 
 H 
 
 m 
 
 ■"J 
 
 o 
 
 v-t 
 
 c 
 o 
 J 
 o 
 z 
 o 
 tf 
 w 
 o 
 
 > 
 
 E-i 
 ■*! 
 OS 
 <! 
 ft 
 S 
 o 
 o 
 
 «1 
 
 O 
 
 °8 
 
 °3 
 
 W 
 
 H 
 
 cn 
 
 « 
 
 P3 
 
 Cm 
 
 (S3 
 ai 
 
 CO 
 
 (S3 
 
 (S3 
 
 « 
 
 Cm 
 
 {"- 
 
 CL, 
 
 xf 
 
 »o 
 
 CO 
 
 r-l rt rl n rH r-i r-i *~l rl i-< (N 
 
 Cu Oh' Cm Cm Cm Pi Cm' Cm fin' oi Cm Oh Ph Cm Cm' Cm CM Ch* Cm' Cm* On" 
 
 dddddddddddddd dddddd d 
 
 'PPPPtJrJtJ&rJtipPtiP P P £> p' PD P & 
 
 M^iO!BN80>OHff|»^i9<B NOOOO^" CO 
 
 — rHrHrHt-lrHrH rH -1 rl SN (N SN <N 
 
 (S3 
 
 03 (S3 
 
 P3 P3 
 
 ^ 03 S3 03* f4 (S3* ^ ^ 03 Q3 (S3 c4 «' 03 pq *~J ^ 03 p3 03 
 
 ^ddddd^^dddddd b^^ddd 
 
 r- 1 05 a 00 CI . . • 
 
 HppPppHHpppppp p" <N <N p p p 
 
 O w w ^» us <o t- -aa o — ' ©3 ?o ■«# w © s »" O ■- ■ cm 
 
 i— i>ini-l,-(T-<r1-,-,(N<N<NGN<NS>J IN IM tl CQ CO (O 
 
 03 
 
 d 
 
 P 
 
 rf 
 
 CO 
 
 CO 
 
 co 
 
 JS*fiO!ONM'aOHiflM'**ffl r- 00 OS © >-i <N CO 
 
 >q io ujioioujiaeoctotscsto » to » l- t* t- t- 
 
 » oo cos oo r oo »so oo m oo oo oo oo oo oo x oc oo oo 
 
XX 
 
 CHKONOLOGICAL TABLE OF LAW EBPOBTS. 
 
 03 03 
 
 d d 
 
 CO CO 
 
 05 
 
 03 2= 
 
 OS 
 
 P3 P3 O 03 03 ° 03 ° 03 03 03 ° 03 ° 03 0^ 
 
 O CO 00 — * 
 
 CO CO "» CO 05 ^ so - CO CO CO -_ CO ^ CO CO 
 
 W >J >o" N 00 OS H S5 ^i lO » N os o" W OS 
 
 s 
 
 a 
 
 I 
 
 00 
 
 H 
 85 
 
 2 
 
 III 
 
 05 
 
 l-i 
 
 H 
 85 
 
 <f 
 
 Eh 
 D 
 
 o 
 o 
 1J 
 o 
 55 
 o 
 
 85 
 
 w 
 
 o 
 
 H 
 f> 
 
 M 
 
 H 
 -4 
 85 
 •«f 
 
 s 
 
 o 
 o 
 
 03 
 
 03 pj 
 
 03 
 
 03 03 03 03 <j 03 p3 rt ^ 03" ^ 03 o3 03 ^ 03 
 
 <j -sj <j <i » < <i <j ^ <j ^-i <; < -< rH <^ 
 
 H M B <J KJ [• XICiO'NN^iotOt-Ci 
 I— I I— liHr- 1— , r- | r- (•— ■ 
 
 03 
 Ph". 
 
 03 03 
 
 - 0h" 
 
 00 
 
 OS 
 
 
 Oh CL, 
 PM a,' ° ^ CM Pi' Oh Oh' 
 
 d d ° ° d d d d 
 dd &tl dddd 
 
 . . t- 00 _. . . . 
 
 ■<*iinso''t-rs©— i<n 
 
 P3 03 03 
 P-i aJ cl| 
 
 O i— 1 <N 
 
 03 03 
 o « 
 
 03 P3 
 0- P^ 
 
 CO -^ «ft 
 
 03 03 
 
 P-i P*" 
 
 CO 
 
 03 p3 03 03 03 
 
 O d d d d 03 03 03 
 
 «o oo o i-i co 
 
 -COCOTH^>*£)£)£) 
 
 in £- cs" © (N ■* «rs to 
 coeoco^'ifiTt*'*^ 
 
 03 
 
 03 03 03 
 
 03 03 d 03 cm 
 
 O O *- O "I ° d ° 03 03* 03" °" 03 
 
 N^oaHnS2ood*d 
 
 ri »" * »" o" Co" W~ t-^ OS O' H N ^i 
 
 r- rt H « rt (N W-iM (S 
 
 ^ifteosooao- n m •* in o r~ no a o ^ n w >i 
 
CHRONOLOGICAL TABLE OF LAW REPORTS. 
 
 TTCi 
 
 P3 
 
 ^ 03 Pi p4 PS 
 
 ^ d q d d 
 
 N 00 CO CO 03 
 
 a" > oo ffl o 
 
 IN !N <N <N 10 
 
 P3 P3 
 
 P3 
 
 P3 03 03 
 
 03 03 ° O pj pi ° pi .« 03 ° '° ° pi 
 
 bd^^dd^ddd^^^d 
 
 ^>iaesTf«ooo 
 - in » ■*" e n oo" o - im w w" t-" a 
 
 I 
 Si 
 
 g 
 
 a. 
 
 Hi 
 
 o 
 
 H 
 
 m 
 <; 
 
 < 
 
 a 
 o 
 
 o 
 
 z 
 o 
 « 
 a 
 
 o 
 
 K 
 
 Eh 
 <i 
 
 P- 
 
 o 
 o 
 
 03 P3 03 fti 03 03 
 
 <j «i <i <i «j3 <i 
 
 « co ^ in <o n 
 
 CN CN <N CN IN (N 
 
 03 
 Pm 
 
 03 
 
 X 03 
 ^ &.' 
 
 00 OS 
 
 03 03 03 
 P3 03 03 & & & 03 
 
 03 03 03 
 « 03 > > > ^ ^ ^' ° ° ° ^ 03 
 
 ^dcd OOOM - M " 
 
 i vvw Os*oaMi8 
 
 OQftOBHH- i-l rH IN <M Q 
 
 H IM «" w" N «" -H SO" US x" "-h" ■*" to 
 i-H i-H i— i i— I <M (N C^ 
 
 • « d £' 
 
 £ £ » fc 
 
 * £ £ £ Be £ 
 
 Q Q M <J IO (O 
 
 h e) of n ^<" »n" 
 
 03 03 
 
 03 
 
 03 
 
 O pj pi 03 P3 C> 
 
 «C . . . <N 
 
 <n O O O O °° 
 
 io" s oo a o rt 
 
 IN IN m in n CO 
 
 03 03 03 03 
 
 03 P3 0i 03 H H «' « H 
 
 hidJhi 
 
 o o 
 
 h1h1 aj 
 
 OS " 
 
 J Jrij';'; .;os(n 
 
 IN ^ CO 00 H H m _ ' - - - ■ 
 
 p-T sc" us 
 
 H 51 IN N « O 
 
 05HCO«t»OWiOC-0 
 HHHHINOKSIflCO 
 
 IS CS N CO S) O HS«S)<flOIONB90- ' 33 CO *# 
 OJ0505C5050 OOOOOOOOOrHrti-H— i «H 
 
 co co to co ce a o)Oioi»aeiaffl©ft9iaoi» 
 
TABLE OF CASES 
 
 A. v. B., 97 
 
 Abbott, re, 49. 
 
 Abbott v. Abbott, 110, 276, 336. 
 
 Abbott and Metcalfe, re, 380, 381. 
 
 Abbott v. Minister of Lands, 65. 
 Abbott v. Saint John, 1102. 
 
 Abbott v. Trenton, 1121, 1140. 
 
 Abell v. Morrison, 493. 
 
 Abell v. Weir, 365, 460. 
 
 Abraham v. Abraham, 559. 
 
 Abraham v. Hacking, 679. 
 
 Accountant v. Marcon, 579, 580. 
 
 Accrington Corporation Steam 
 Tramways, 843. 
 
 Acheson v. Bastard School Trus- 
 tees, 1218. 
 
 Acton v. London U. T., 965. 
 
 Adams, re, 399. 
 
 Adams v. Blackwall, 730. 
 
 Adam's Case, 829. 
 
 Adams v. Fairweather, 242. 
 
 Adams v. Laomis, C94. 
 
 Adams and Perry's Contract, 428. 
 
 Adams v. Sutherland, 282. 
 
 Adamson v. Adamson, 224, 225, 252. 
 
 Adamson v. Etobicoke, 1040. 
 
 A Debtor, re, 532. 
 
 Adelaide v. Metcalfe, 1131. 
 
 Adey v. Trinity House, 119. 
 
 Adnam v. Sandwich, 211. 
 
 Adolphustown, re, 10, 11, 15, 16 
 17, 1105. 
 
 African Gold Concessions, Re, 798. 
 
 Agar Ellis, In re, 707, 715. 
 
 Agar v. Escott, 203. 
 
 Agnew v. Stewart, 307. 
 
 Agricultural Ins. Co. v. Sargeant, 
 532. 
 
 Agricultural L. & S. v. Liverpool L. 
 & G. Co., 894, 896, 899. 
 
 Agricultural Savings v. Webb, 357. 
 
 Aiken and Ray, re, 443. 
 
 Aikens v. Blain, 137. 
 
 Ainleyville v. Grewer, 1229. 
 
 Ainslie, re, 362. 
 
 Ainslie Mining Co. v. McDougall, 
 
 651. 
 Ainsworth, re, 736. 
 Aitken v. Fernando, 178. 
 Aitken, In re, 744. 
 Albertson v. Harpell, 243. 
 Albutt v. General Council of Medi- 
 cal Education, 763. 
 Aldam, re, 209. 
 
 Aldborough and Schmeltz, re, 1017. 
 Alderich v. Humphrey, 298. 
 Aldis v. Chatham, 1063. 
 Aldjo v. Hollister, 269. 
 Aldrich v. Aldrich, 145. 
 Aldrich v. British Griffin, 982. 
 Alexander, re, 133, 436. 
 Alexander v. Automatic Telephone 
 
 Co., 780, 799. 
 Alexander v. Bird, 57, 66. 
 Alexander v. Herman, 369. 
 Alexander v. Howard, 1132. 
 Alexander v. McKillop, 514. 
 Alexander v. Miles, 647. 
 Alexander and Milverton, re, 1019. 
 Alexander v. Simpson, 792. 
 Alexander v. Steinhart, 349. 
 Alexander's Timber Co., re. 319. 
 Alexander v. Toronto and Nipissing 
 
 Railway, 659, 698. 
 Alexandra Oil Co. v. Cook, 334, 539, 
 
 824. 
 Allan and Napanee, re, 1152. 
 Allan v. G. T. R., 649. 
 Allan v. McLean, 541, 543. 
 Allan v. McTavish, 236, 255, 437, 
 
 536. 
 Allan v. Place, 127, 269, 271, 576. 
 Allan v. Rever, 390. 
 Allard v. Cleveland Saw Mills, 632, 
 
 1190. 
 Allbutt v. General Council, 762. 
 Allen, re, 412. 
 Allen v. Aldbridge, 744. 
 Allen v. Bank of Ottawa, 537, 544. 
 Allen, re, Bassett v. Allen, 239. 
 
TABLE OF OASES. 
 
 XX111 
 
 Allen v. Bone, 741. 
 
 Allen v. C.P.R., 946. 
 
 Allen v, Edinburgh Life, 274. 
 
 Allen v. Fairfax, 120. 
 
 Allen v. Gold Reefs, 791, 806. 
 
 Allen v. Hamilton, 842, 852. 
 
 Allen, re, Hargraves v. Taylor, 328. 
 
 Allen, re, Horace B., 390. 
 
 Allen y. Jarvis, 736. 
 
 Allen and Napanee, re, 1070, 
 
 Allen v. New Gas Co., 643, 
 
 Allen v. Ontario and Rainy River 
 Ry., 916. 
 
 Allen v. Parke, 136, 427. 
 
 Allen v. Quebec Warehouse Co., 88. 
 
 Allen v. Rainy River Ry., 815. 
 
 Allen v. Sawyer-Massey, 635, 
 
 Allen v. Shehyn, 316. 
 
 Allen and Sons, Limited, re, 590. 
 
 Allinson v.. General Council, 762. 
 
 Allison, etc., re, 845. 
 
 Allison v. Breen, 236. 
 
 Allison v. McDonald, 531. 
 
 Allison v. Rednor, 217, 221. 
 
 Allstadt v. Gartner, 112. 
 
 Allworthy v. Clayton, 776. 
 
 Alman v. Oppert, 825. 
 
 Almonte and Ramsay, re, 1209, 1211. 
 
 Almonte Knitting Co., re, 956. 
 
 Alpha Co., In re, 805, 852. 
 
 Alston, re, 133. 
 
 Amalgamation Syndicates, re, 783, 
 835, 845, 850. 
 
 Amalgamated .Society of Ry. Ser- 
 vants v. Osborne, 786. 
 
 Amaranth & Dufferin, re, 1209, 1211. 
 
 Ambition Investment Society, re, 
 900. 
 
 Ambrose v. Fraser, 718. 
 
 Ameliasburg & Pitcher, re, 147, 1183. 
 
 American Abell Co. v. McMillan, 64. 
 
 American Concentrated Meat v. 
 Hendry, 728. 
 
 American Exchange v. Gillig, 854. 
 
 Ames, re, 207. 
 
 Ames v. Higdon, 359, 381. 
 
 Amsden v. Kyle, 390. 
 Amyot v. Sugarman, 146. 
 Ancaster y. Durrand, 1148. 
 Anctil v. Manufacturers Life, 875. 
 Anderson v. C. N. R., 967. 
 
 Anderson v. C. P. R., 949. 
 Anderson v. Colchester North, 1123, 
 
 1124, 1129. 
 Anderson v. Douglas, 321. 
 Anderson v. Elgie, 192, 356, 477. 
 Anderson v. Glass, 546, 548. 
 Anderson v. G. T. R., 954, 971. 
 Anderson v. Hanna, 224. 
 Anderson v. Hay, 686. 
 Anderson v. Henry, 728, 730. 
 Anderson v. Jellett, 522, 523. 
 Anderson & Kinrade, re, 307, 308. 
 Anderson v. Maiden, 1126. 
 Anderson v. Mikado, 647, 955. 
 Anderson v. Nobels Explosive Co., 
 
 278. 
 Anderson v. Northern Ry., 953. 
 Anderson v. Saugeen Mutual, 867, 
 
 903, 904. 
 Anderson v. Toronto, 1058, 1059, 
 
 1064. 
 Anderson v. Van Sittart, 1214, 1219. 
 Anderson & Vanstone, re, 287. 
 Andreas v. C. P. R., 951, 952. 
 Andrew v. Canadian Mutual, 157. 
 Andrews, re, 573, 883, 884. 
 Andrews v. Cawthorne, 1205. 
 Andrews v. Gas Meter Co., 807. 
 Andrews v. Mockford, 825, 827. 
 Andrews v. Salt, 715. 
 Andrews v, Waite, 248. 
 Angel v. Jay, 118. 
 Anglin v. Nickle, 925. 
 Anglo-American v. Morton, 897, 900. 
 Anglo-Italian Bank v. Daviee, 101. 
 Angus v. Widdifield, 1013. 
 Ankerson v. Connelly, 248. 
 Ann, re; Wilson v. Ann, 687. 
 Annany v. Turnbull, 274. 
 Annett, re, 186. 
 Anthony, re, 409, 418, 
 Antoine v. Duncombe, 768. 
 ApHn v. Stone, 405, 406. 
 Appleby, re, 5. 
 Appleby v. Myers, 605. 
 Archer, re, 328, 329, 331. 
 Archer v. /Severn, 435. 
 Archibald y. Hubley, 572, 574. 
 Archibald v. Lawlor, 234, 240. 
 Ardill v. Citizens Ins. Co., 896. 
 Argentina, The, 1060. 
 
XXIV 
 
 TABLE OP OASES. 
 
 Argles, re, 710. 
 
 Argles v. McMath, 374, 722. 
 
 Argles v. S. Eastern Ry. Co., 866. 
 
 Arkell v. Roach, 399. 
 
 Arkles v. G. T. R., 704. 
 
 Armitage v. Atty.-Gen., 452. 
 
 Armour v. G. T. R., 969. 
 
 Armour & Onondaga, ne, 13, 14, 17, 
 
 989, 992, 1012, 1013, 1015, 1172. 
 Armour v. Peterborough, 107. 
 Armour v. Smith, 450. 
 Armstrong Cartage Co. v. Peel, 84, 
 
 1060. 
 Armstrong v. Campbell, 59. 
 Armstrong v. C. A. R., 638, 661, 
 
 1064. 
 Armstrong v. Crawford, 78. 
 Armstrong v. Euphemia, 107. 
 Armstrong v. Hemstreet, 546. 
 Armstrong & James Bay Ry., re, 
 
 928, 930, 937. 
 Armstrong v. Johnston, 541, 544. 
 Armstrong v. Lancashire Fire, 865. 
 Armstrong v. Lye, 357, 492. 
 Armstrong v. Merchants Mantle 
 
 Mfg. Co., 550, 799, 800. 
 Armstrong v. Mich. Central, 946. 
 Armstrong & Toronto, re, 1012. 
 Arnold v. Cummer, 225. 
 Arnold v. Playter, 585, 586. 
 Arnold v. Toronto Railway, 700. 
 Arnold v. Van Tuyl, 125. 
 Arnoldi v. Gouin, 600, 601. 
 Arnot v. United African Land Co., 
 
 793. 
 Arnott v. Arnott, 328. 
 Arnprior v. U. S. Fidelity Co., 870. 
 Arscott v. Lilley, 289, 297, 300. 
 Arthur v. Central Ontario, 970. 
 Arthur v. G. T. R., 920, 922, 926. 
 Arthur R. C. Separate School Trus- 
 tees v. Arthur, 1224. 
 Artizan's Land & Mortgage Co., re, 
 
 819. 
 Ashburnham, re, 410. 
 Ashbury Railway Co. v. Riche, 783, 
 
 916. 
 Ashcroft v. Ashcroft, 110. 
 Ashcroft v. Tyson, 300. 
 Asher v. Whitlock, 220. 
 Ashford, re, 452. '! 
 
 Ashick v. Hale, 1147. 
 
 Ashland Co. v. Armstrong, 857. 
 
 Ashley v. Brown, 336, 538, 545, 565. 
 
 Ashman, re, 432. 
 
 Askew v. Manning, 1211. 
 
 Askin & Charteris, re, 308. 
 
 Askin v. London, 310. 
 
 Askwith, re, 1168. 
 
 Asphodel & Humphries, re, 1209. 
 
 Asselin v. Aubin, 64. 
 
 Asselin & Cleghorn, re, 101, 271. 
 
 Asseltine v. Shibley, 25, 27, 35. 
 
 Assets Co. v. Mere Rohi, 508, 513, 
 
 515, 517, 518. 
 Asshick v. Hale, 1147. 
 Assignments and Preferences Act, 
 
 re, 102, 289. 
 Association of Land Financiers, re, 
 
 852. 
 Astbury v. Astbury, 232, 240. 
 Astley & Tydlesley Coal Co., re, 174, 
 
 241. 
 Aston, re, 854. 
 Aston v. Innes, 495. 
 Astover Mines v." Jackson, 106. 
 Atcheson v. G. T. R., 650, 703, 939, 
 
 977. 
 Atchison Ry. v. Reesman, 648. 
 Athens High School Board and 
 
 Yonga and Escott, 1221. 
 Atkin v. Hamilton, 940. 
 Atkins, re, 410. 
 Atkinson, re, 397. 
 Atkinson v. Bradford, 225. 
 Atkinson v. Casserley, 562. 
 Atkinson v. Chapman, 1060. 
 Atkinson v. Dominion of Canada 
 
 Guarantee and Accident, 873, 
 
 874, 882. 
 Atkinson v. Farrell, 208, 371, 719. 
 Atkinson v. Morris, 407. 
 Atlantic and N. W. Ry. v. Judah, 
 
 928, 932. 
 Atlas Loan, re, 908. 
 Attenborough v. Solomon, 392, 397. 
 Attorney-General v. Ashton Gas Co., 
 
 813. 
 Attorney-General v. Brown, 51, 55. 
 Attorney-General v. Cameron, 52. 
 Attorney-General v. Cameron, 54, 
 
 55, 96. 
 
TABLE OP CASES. 
 
 XXV 
 
 Attorney-General v. Contois, 60. 
 
 Attorney-General v. Christie, 1229. 
 
 Attorney-General v. Churchill's Vet- 
 erinary Sanitorium, 773. 
 
 Attorney-General v. Devlin, 61, 62. 
 
 Attorney-General v. Garbutt, 60. 
 
 Attorney-General v. Great Eastern 
 Ry., 916. 
 
 Attorney-General v. Hargrave, 7, 71, 
 73, 74, 76, 513, 514, 515, 516. 
 
 Attorney-General v. Hill, 1104. 
 
 Attorney-General v. Jeffrey, 1229. 
 
 Attorney-General v. Jewish Col. 
 Ass'n., 49. 
 
 Attorney-General v. Lee, 48. 
 
 Attorney-General v. Lichfield, 1221. 
 
 Attorney-General v. Lovitt, 50. 
 
 Attorney-General v. Mersey Rail- 
 way, 920, 959. 
 
 Attorney-General v. McGowan, 60. 
 
 Attorney-General v. McNulty, 60, 
 349. 
 
 Attorney-General v. Mercer, 331. 
 
 Attorney-General v. Midland Ry., 
 211. 
 
 Attorney-General v. Newman, 48, 
 49, 50. 
 
 Attorney-General v. North Eastern 
 Ry., 912. 
 
 Attorney-General v. Nottingham, 
 1182. 
 
 Attorney-General v. Odell, 519. 
 
 Attorney-General v. Ontario, Sim- 
 coe and Huron, 956. 
 
 Attorney-General v. O'Reilly, 331 
 
 Attorney-General v. Price, 67. 
 
 Attorney-General v. Reed, 56. 
 
 Attorney-General v. Scully, 265. 
 
 Attorney-General v. Smith, 767. 
 
 Attorney-General v. Smith, Limit- 
 ed, 7. 
 
 Attorney-General v. Staffordshire, 
 1057. 
 
 Attorney-General v. Stuart, 52. 
 
 Attorney-General v. Totnlin, 77. 
 
 Attorney-General v. Toronto, 4, 
 
 1006, 1042, 1068. 
 Attorney-General v. Toronto Gener- 
 al Trusts, 54, 55, 713. 
 Attorney-General v. Toronto Junc- 
 tion Recreation Club, 262, 788. 
 
 Attorney-General r. Toronto Street 
 Ry., 963. 
 
 Attorney-General v. Vaughan Road, 
 1149. 
 
 Attorney-General v. Webster, 1021. 
 
 Attorney-General v. Wesley Park, 
 etc., Tramways, 1179. 
 
 Attorney-General v. Woodruff, 48, 
 50, 51. 
 
 Attorney-General for British Colum- 
 bia v. Attorney-General for 
 Canada, 522. 
 
 Attorney-General for Canada v. At- 
 torney-General for Ontario, 43, 
 102, 289, 331, 522, 528. 
 
 Attorney-General for Canada v. At- 
 torney-Generals of Ontario, Que- 
 bec and Nova Scotia, 62. 
 
 Attorney-General for Canada v. Tor- 
 onto, 1140, 1141. 
 
 Attorney-General for Quebec v. 
 Queen Ins. Company, 56. 
 
 Attorney-General for Quebec v. 
 Reed, 51. 
 
 Attorney-General for Ontario v. At- 
 torney-General for Canada, 89, 
 290, 536, 538, 1171. 
 
 Attorney-General for Ontario v. 
 Hamilton St, Ry., 91, 289, 290, 
 1177. 
 
 Attorney-General for Ontario v. 
 Mercer, 522. 
 
 Attorneys, re, 743, 745, 746. 
 
 Attwood v. Pettf 565. 
 
 Auffman v. Walterhouse, 1156. 
 
 Auger, re, 193, 194. 
 
 Auriferous Properties, re, 839. 
 
 Aurora Scrutiny, re, 13, 15, 989, 
 1014, 1016, 1017, 1172, 1173, 
 1174. 
 
 Austin v. Davis, 1170. 
 
 Austin v. Riley, 63, 64, 65, 77. 
 
 Auston, re, 389, 418. 
 
 Austrian Lloyd v. Gresham Life, 
 173, 174. 
 
 Automatic Self-Cleaning Filter v. 
 Cunninghame, 794, 809. 
 
 Automobile and Supply Co. v. 
 Hands, Ltd., 774. 
 
 Avery v. Cayuga, 157. 
 
 Avery v. Fortune, 242, 244. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Ayleni v, Lindsay, 750. 
 Axler v. London, Liverpool & Globe, 
 903. 
 
 B, re, 183. 
 
 Babcock v. Standish, 125. 
 
 Babe v. Board of Trade, 886, 893. 
 
 Baby v. Ross, 125, 126. 
 
 Backhouse v. Bonomi, 77. 
 
 Backus v. Smith, 243. 
 
 Bacon, re, Troovey v. Turner, 6S5. 
 
 Bacon v. Dawes, 1191. 
 
 Bacon v. G. T. R., 969. 
 
 Bacon v. Shier, 358. 
 
 Badams v. Toronto, 1059. 
 
 Badcock v. Freeman, 639. 
 
 Baddeley v. Earl Granville, 656, 
 
 1189. 
 Baden Machinery Co., re, 840, 845. 
 Badenach v. Inglis, 91, 129, 131, 402. 
 Badenfleld v. Massachusetts Mutual 
 
 Accident, 173. 
 Badgeley v. G. T. R., 976. 
 Badger, re, 207, 274. 
 Badgerow v. G. T. R., 934. 
 
 Baechler v. Baechler, 434. 
 
 Bagley, q.t. v. Curtis, 292. 
 
 Bagnall v. Durham Rubber Co., 657. 
 
 Bagnall v. L. & N. W. Ry., 943. 
 
 Bagnall v. Levinstein, 627. 
 
 Bagot Pneumatic Tyre Co. v. Clip- 
 per Pneumatic Tyre Co., 831. 
 
 Bagshaw v. Johnston, 617. 
 
 Bailey v. Bank ofHamilton, 535. 
 
 Bailey v. Barnes, 359, 381. 
 
 Bailey v. Birkenhead, 1. 
 
 Bailey v. Bleecker, 120. 
 
 Bailey v. Dawson, 320, 1178. 
 
 Bailey v. Du Cailland, 60. 
 
 Bailey v. Gillies, 316, 321. 
 
 Bailey v. Griffith, 832. 
 
 Bailey v. King, 255. 
 
 Baillie, re, 516. 
 
 Ba,in v. Anderson, 318. 
 
 Bain & Leslie, re, 221, 441. 
 
 Bainard v. M. C. R. R., €31, 
 
 Bainbridge v. Smith, 811. 
 
 Baines, re, 4. 
 
 Baines v. Woodstock, 1066. 
 
 Baird, Ex parte, 23. 
 
 Baird, In re, 393. 
 
 Baird v. Ross, 827. 
 
 Baker, re, Nichols v. Baker, 6. 
 
 Baker v. Atkinson, 730. 
 
 Bakei v. Courage, 261. 
 
 Baker v. Illingworth, 359. 
 
 Baker & Kelly, re, 178, 182. 
 
 Baker & Selmon's Contract, re, 446. 
 
 Baker v. Stuart, 352, 353, 389, 392. 
 
 Baker v. Sutton, 331. 
 
 Baker v. Townshend, 93, 171. 
 
 Baker v. Weldon, 202. 
 
 Baker v, Wilson, 668. 
 
 Baker v. Yorkshire Fire, 173. 
 
 Baker, Lees & Co., re, 744, 748. 
 
 Balaghat, In re, 832. 
 
 Baldocchi v. Spada, 543, 548. 
 
 Baldwin, re, 135. 
 
 Baldwin v. Chaplin, 100. 
 
 Baldwin v. Duigan, 481. 
 
 Baldwin v. Kingston©, 414. 
 
 Baldwin v. Peach, 211. 
 
 Baldwin v. Wanzer, 372, 375, 723. 
 
 Balfour v. Toronto Ry., 953. 
 
 Balkwell v. Beddoine, 580, 582. 
 
 Ball v. Bell, re, 148. 
 
 Ball v. Fraser, 292. 
 
 Ball v. G. T. R., 118. 
 
 Ball v. Tenant, 546, 549, 551> 561. 
 
 Ballagh v. Royal Ins. Co., 905. 
 
 Ballander v. Ottawa, 1047. 
 
 Ballentine v. Ontario Pipe Line Co., 
 835, 1142. 
 
 Balls, re, Trewby v. Balls, 239, 255. 
 
 Baltimore & Ohio Ry. v. Baugh, 
 644. 
 
 Balzer v. Gosfield, 1066. 
 
 Bancroft v. Milligan, 418. 
 
 Bank of B. N. A. v. Mallory, 430, 
 432. 
 
 Bank of Commerce v. British Amer- 
 ica Assurance Co., 901. 
 
 Bank of Commerce v. Rolston, 273, 
 274. 
 
 Bank of Commerce v. Toronto Junc- 
 tion, 1115, 1120, 
 
 Bank of England, c. Cutler, 798. 
 
 Bank of Hamilton v. Altken, 278. 
 
 Bank of Hamilton v. Anderson, 554. 
 
 Bank of Hamilton v. Baldwin, 254. 
 
TABLE OF CASES. 
 
 XXV11 
 
 Bank of Hamilton v. Durrell, 276. 
 Bank of Hamilton v. Kramer Irwin 
 
 Co., 532, 842, 845. 
 Bank of Hamilton v. Mervyn, 570. 
 Bank of Hamilton v. Noye Mfg. Co., 
 
 530. 
 Bank of Hamilton v. Shepherd, 151. 
 Bank of Montreal v. Campbell, 282. 
 Bank of Montreal v. Gilchrist, 119-. 
 Bank of Montreal v. Hoffner, 603, 
 
 614, 615. 
 Bank of Montreal v. Harrison, 56. 
 Bank of Montreal v. Livingham, 254, 
 
 255. 
 Bank of Montreal v. McTavish, 271. 
 Bank of Montreal v. Partridge, 280. 
 Bank of Montreal v. Stewart, 482, 
 
 488. 
 Bank of Montreal v. Sweeny, 801. 
 Bank of Montreal v. Thompson, 272, 
 
 357. 
 Bank of Ottawa v. McLaughlin, 151. 
 Bank of Ottawa v. Roxborough, 
 
 1133. 
 Bank of Syria, re, 810. 
 Bank of Toronto v. Beaver and Tor- 
 onto Mutual, 867. 
 Bank of Toronto v. Cobourg, etc., 
 
 Ry., 917. 
 Bank of Toronto v. Irwin, 337. 
 Bank of Toronto v. Keystone Fire 
 
 Insurance Co., 107, 108. 
 Bank of Toronto v. Lambe, 51. 
 Bank of Toronto v. McDougall, 581, 
 
 1180. 
 Bank of Toronto v. Nixon, 597. 
 Bank of U. C. v. Brough, 272. 
 Banks, In re; Weldon v. Banks, 318. 
 Banks v. Anderdon, 1224. 
 Banks v. Goodfellow, 184, 402. 
 Banks v. Robinson, 580. 
 Bank's Trusts, re, 418, 
 Bankers v. Small, 363. 
 Bannerman v. Lawyer, 1155, 1157, 
 
 1158. 
 Baptist Church of Stratford, re, 
 
 1230. 
 Barbeau v. St. Catharines, etc., Ry., 
 
 913. 
 Barbeau v. Piggott, 621. 
 Barber, re, 183. 
 
 Barber v. Armstrong, 1198. 
 Barber v. Cleave, 1201. 
 Barber v. Crathern, 556. 
 Barber v. McKay, 265, 466, 481. 
 Barber v. MacPherson, 575, 576. 
 Barber v. Meyerstein, 530. 
 Barclay v. Ancaster, 1058. 
 Barclay v. Lake Erie and Detroit 
 
 Ry., 639, 941. 
 Barclay v. Whitby, 1142. 
 Baretto v. Young, *04. 
 Bariatinski, re, 185. 
 Baring Gould & Kharpington, re, 
 
 182, 849. 
 Barker, re, 188, 744. 
 Barker v. Lewis, 170. 
 Barkworth v. Young, 417. 
 Barlow v. Terrett, 1184. 
 Barnard Argue Roth v. Alexander 
 
 Oil, etc., Co., 343. 
 Barnard v. Barton, 1157. 
 Barnardo v. McHugh, 710. 
 Barnes v. Bellamy, 734. 
 Barnes v. Boomer, 59. 
 Barnes v. Brown, 767. 
 Barnes v. Glentom, 240. 
 Barnes v. Queensland Bank, 382. 
 Barnes v. Young, 173. 
 Barnett, re, Dawes v. Ixer, 405. 
 Barnett v. Eastman, 734. 
 Barnett v. G. T. R., 971. 
 Barnett v. Howard, 679, 691. 
 Barnier v. Barnier, 227- 
 Baroness Hanover, re, 209, 353. 
 Baroness Wenlock v. River Dee, 916. 
 Barr v. McMillan, re, 158. 
 Barrett, re, 327, 328, 330, 331, 1231. 
 Barrie v. Gillies, 68. 
 Barrington v. Martin, 610, 612, 613. 
 Barrow in Furness Corporation, re, 
 
 429. 
 Barrow v. Isaacs, 373. 
 Barry v. Anderson, 366, 379. 
 Barry v. Bank of Ottawa, 592. 
 Bartells, re, 287. 
 Bartholomews Hospital v. Cambden, 
 
 250. 
 Bar-tlett v, Bartlett Mines, 624, 816, 
 
 820. 
 Bartlett v. Delaney, 65, 69, 105. 
 Bartlett v. Jull, 380, 381. 
 
XXV111 
 
 TABLE OF CASES. 
 
 Bartlett v, Thompson, 732. 
 Barton .v. Hamilton, 96, 984, 1074. 
 Barton v. Muir, 59. 
 Bartonshill Coal Co. v. Reid, 629, 
 
 641. 
 Bartram v. Birtwhistle, 815. 
 Bartram v. London Free Press, 200. 
 Baskarville v. Ottawa, 1066. 
 Basnett v. Moxon, 364. 
 Bassett v. Clarke Standard Mining 
 
 Co., 77, 78, 79, 80. 
 Bate v. C. P. R., 949. 
 Bateman v. County of Middlesex, 
 
 658, 1060. 
 Bateman v. Hunt, 350. 
 Bates v. Kesterton, 206. 
 Battershall, re, 327, 329, 330, 1139. 
 Batzold v. Upper, 263. 
 Baughart Bros. v. Miller, 123. 
 Bauman, re, 415, 416. 
 Baxter v. Turnbull, 273. 
 Bayfus v. Lawley, 413. 
 Baylis v. Juggins, 370. 
 Baynes v. Lloyd, 376. 
 Beacham, ex parte, 1147. 
 Beahan v. Neven, 703. 
 Beaird, re, 137. 
 Beal v. Kyte, 445. 
 Beal v. M. C. R. R., 944. 
 Beale, re, 413. 
 Beall v. .Smith, 185. 
 Beam, re, 873. 
 Beam v. Beam, 879, 886. 
 Beam v. Beatty, 105, 279, 280, 282, 
 
 283, 323, 395. 
 Beard, re, 188, 328. 
 Beard v. Ketchum, 258, 259. 
 Beardmore t. Toronto, 83, 84, 88. 
 Beardsley v. Lacey, 407. 
 Beasley v. Roney, 686. 
 Beattie v. Dinnick, 316. 
 Beattie v. Holmes, 145. 
 Beattie v. Mutton, 491. 
 Beattie v. Wenger, 538, 548, 553, 
 
 564, 565. 
 Beatty v. Bailey, 255, 256, 357, 510, 
 
 516. 
 Beatty & Finlayson, re, 63, 64, 268» 
 Beatty v. Haldan, 134. 
 Beatty v. McConnell, 1120. 
 Beatty v. Rumble, 730. 
 
 Beatty, Solicitor, re, 751. 
 
 Beaty, re, 564. 
 
 Beaty v. Gregory, 1230. 
 
 Beaty v. Shaw, 347, 357. 
 
 Beaudry v. Read, 815. 
 
 Beaudry v. Rudd, 899. 
 
 Beauharnois, 17. 
 
 Beaumont v. Kaye, 690. 
 
 Beaupre, re, 685. 
 
 Beavan, re, 255. 
 
 Bechtel v. Zinkann, 796. 
 
 Bechuanaland v. London, 592. 
 
 Beck v. C. P. R., 939, 969. 
 
 Beck v. Ontario Lumber Co., 526, 
 
 527, 862. 
 Beck v. Pierce, 690. 
 Beck Manufacturing Co. v. Valin, 
 
 526, 527. 
 Beckett v. Nightingale, 218. 
 Beckett v. Sutton, 364. 
 Beer v. Stroud, 920. 
 Beer v. Williams, 392, 397, 433. 
 Beeston v. Beeston, 1180. 
 Beeton, In re, 622. 
 Beeton Co., re, 844. 
 Begg & Dunwick, re, 996, 997, 1013, 
 
 1174. 
 Beland v. L'Union St. Thomas, 781. 
 Belanger v. Belanger, 129, 130, 185, 
 
 137, 395. 
 Belanger v. Riopel, 643. 
 Belcourt r. Crain, T38, 740, 758. 
 Belding Lumber Co., re, 549, 841, 
 
 855. 
 Bell, re, 184, 448. 
 Bell Bros. v. Hudson Bay Ins. Co., 
 
 902. 
 Bell v. Cape Breton Electric, 965, 
 
 974. 
 Bell & Blma, re, 997, 1012. 
 Bell v. Golding, 210, 242, 244, 367. 
 Bell v. Goodlson Thresher Co., 149. 
 Bell v. G. T. R., 952. 
 Bell v. Hamilton, 1063. 
 Bell v. Holtby, 363. 
 Bell v. Howard, 218. 
 Bell v. Lott, 298. 
 Bell v. Manning, 532. 
 Bell v. Ottawa Trust, 433. 
 Bell v. Robinson, 537, 547. 
 Bell v. Ross, 564. 
 
TABLE OP CASKS. 
 
 XXIX 
 
 Eell v. Stocker, 690. 
 
 Bell Telephone Co., re, 1101. 
 
 Ball Telephone Co. v. Chatham, 1067. 
 
 Bell Telephone Co. and Hamilton, 
 
 re, 1104, 1105. 
 Bell v. Walker, 493. 
 Bell v. Winnipeg Electric, 952, 972. 
 Bellamy v. Badgerow, 196. 
 Bellamy v. Porter, 152, 775. 
 Bellechasse, 35. 
 Bellerby v. Heyworth, 767. 
 Bellerby v. Rowland, 800. 
 Belleville Bridge Co. v. Ame'.ias- 
 
 burg, 7, 983, 1100, 1101, 1106, 
 
 1107. 
 Belleville Driving, etc., Association, 
 
 re, 796. 
 Belleville v. Judd, 1021. 
 Belleville R. C .School Trustees v. 
 
 Belleville, 1226. 
 Belfast Banking Co. v. Doherty, 323. 
 Belling v. Hamilton, 1060. 
 Benallack v. Bank of British North 
 
 America, 536, 542, 544, 548. 
 Bender v. Canada Southern, 937. 
 Benedict v. Van Allen, 596. 
 Benham's Trust, re, 133. 
 Benner v. Mail Printing Co., 199. 
 Bennett, re, 209. 
 
 Bennett, re, Clarke v. White, 418. 
 Bennett v. Alcott, 204. 
 Bennett v. Empire Printing Co., 
 
 201. 
 Bennett v. Eastman, 734. 
 Bennett v. Empire Printing Co., 
 
 200. 
 Bennett v. G. T. R., 946, 951, 953. 
 Bennett v. Havelock, 784, 809, 830. 
 Bennett v. O'Meara, 67. 
 Bennett v. White, 351. 
 Bennetto v. Bennetto, 364. 
 Bennetto v. Holden, 484, 693, 694. 
 Bennie v. Verrall, 654. 
 Benning v. Thibaudeau, 563. 
 Bennington, re, 397. 
 Benoit v. Jodoin, 34, 35. 
 Benor v. Canadian Mail Order, 815, 
 
 816, 839. 
 Benson v. Port Hope, etc., Ry., re, 
 
 924. 
 Bentley's Yorkshire Breweries, 808. 
 
 Beresford v. St. Albans, 1146. 
 Bergeson v. Tooke, 635, 1190. 
 Bergman v. Armstrong, re, 147, 565. 
 Bergman v. Bond, 766. 
 Berkinshaw v. Henderson, 779, 813, 
 
 824. 
 Berkley's Trusts, re, 435. 
 Berlin and Waterloo St. Ry. and 
 
 Berlin, re, 961, 963, 979. 
 Bernard v. Jarvis, 366. 
 Bernstein v. Lynch, 1145, 1147. 
 Berringer v. Hiscott, 136, 427. 
 Berry v. Gibbons, 208. 
 Berry v. Hall, 98. 
 Berry y. Scott, 321. 
 Berryman, re, 883, 884. 
 Berthier, 31. 
 Bertram v. Pendry, 579. 
 Bertram & Sons v. Hamilton & 
 
 Dundas Street Ry., 933. 
 Bessemer Gas Engine Works v. 
 
 Mills, 857, 861. 
 Bethell, re, 666. 
 Bethune, re, 403. 
 Bethune v. Caulcutt, 487. 
 Bethune v. Corbett, 271. 
 Bethune v. The King, 53, 55. 
 Beverly, In re, 386. 
 Bibby v. Davis, 1182. 
 Bickerton v. Dakin, 7, 616, 617. 
 Bickford v. Chatham, 1. 
 Bickford v. Grand Junction Ry., 
 
 918. 
 Bicknell v. G. T. R., 958. 
 Biddle v. Hart, 633. 
 Biehn v. Biehn, 366. 
 Biggar v. Crowland, 1061. 
 Biggar v. Dickson, 436. 
 Biggar v. Kemp, 350. 
 Biggart v. Clinton, 661. 
 Bigelow v. Craigellachie, 326. 
 Bigelow v. Powers, 98. 
 Bigelow v. Stanley, 470. 
 Biggs v. Evans, 593. 
 Biggs v. Freehold Loan, 384. 
 Billing v. Semmens, 634, 638, 1189, 
 
 1190. 
 Billings and C. N. Ry., re, 929. 
 Bingham & Wrigglesworth, re, 440, 
 
 442. 
 Birch, re, Hunt v. Thorn, 418. 
 
XXX 
 
 TABLE OP CASES. 
 
 Birch v. Birch, 98. 
 
 Bird v. Hopkins, 44. 
 
 Bird v. Hussey, etc., Co., Ltd.. 814. 
 
 Birkbeck Loan v. Johnston, 909. 
 
 Biskett v. Bisonette, 256, 260, 567. 
 
 Birkett v. Brewder, 605. 
 
 Birkett v. G. T. R., 648, 954. 
 
 Birkmyr v. Darnell, 315. 
 
 Birmingham Excelsior Money So- 
 ciety v. Haywood, 689, 691. 
 
 Birmingham v. Hurigerford, 1219. 
 
 Birmingham v. Malone, i5S, 734. 
 
 Birney v. Toronto Milk Co., 816. 
 
 Birtwistle v. HindJe, 1190. 
 
 Bisgood v. Henderson's Transvaal 
 Estates, 849. 
 
 Bisgood v. Nile Valley Co., 786, 848. 
 
 Bishop v. Balkis Consolidated; 323. 
 
 Bishop & Sons, Ltd., re, 850. 
 
 Bisley and T. H. & B. Ry., re, 933. 
 
 Bisnau v. Shields, 629. 
 
 Bisnett v. .Schrader, 145, 588. 
 
 Bist v. London South Western, 647, 
 955. 
 
 Black v. Coleman, 1112. 
 
 Black v. Drouillard, 586. 
 
 Black v. Imperial Book Co., 314. 
 
 Black v. Ontario Wheel CO., 1190.. 
 
 Black and Orillia, re, 1039. 
 
 Black v. Wilbe, 608. 
 
 Blackburn and District Benefit, re, 
 909. 
 
 Blackley v. Toronto Ry., 702, 703. 
 
 Blackmore v. Toronto St. Ry., 968, 
 972. 
 
 Blackwood v. R., 50. 
 
 Blades v. Higgs, 1206. 
 
 Blahoult v. Equitable Life, 880. 
 
 .Blain v. C. P. R., 945, 959. 
 
 Blain v. Peaker, 550, 552, 561. 
 
 Blair v. Assets Co., 367. 
 
 Blair v. Chew, 290. 
 
 Blair v. Duncan. 329. 
 
 Blake v. Gale, 433. 
 
 Blakeley v. Gould, 539. 
 
 Blaker v. Tillstone, 1184. 
 
 Blakey v. Smith, 1105, 1114, 1117, 
 1118. 
 
 Blamires v. Lancashire and York- 
 shire Ry., 640, 1190. 
 
 Blanchard Estate, re, 5i2. 
 
 Bland and Mohiin, re, 350, 443, 471. 
 
 Blasson v. Blasson, 420. 
 
 Blaybbrough v. Brantford Gas, 696 
 
 Bleeker v. Myers, 115. 
 
 Blenheim, re, 1040, 1076. 
 
 Blenkinsopp v. Ogden, 1189. 
 
 Blennerhassett v. Day, 241. 
 
 Blight v. Hartnall, 414. ' 
 
 Blight & Ockenden, re, 445. 
 
 Blight v. Ray, 599. 
 
 Blow, re, 250. 
 
 Blue v. Red Mountain Ry., 944. 
 
 Bluat's Trust, r<e-, 328. 
 
 Blye & Downey, re, 70, 71, 72, 74, 
 
 76, 78, 79. 
 Blyth v. Birmingham Water Works, 
 
 639. 
 Blyth v. Flodgate, 423. 
 B. of E. and Corporation of Perth, 
 
 re, 1223. 
 B. of E. of London v. London, 1222, 
 
 1223. 
 B. of E. for Windsor v. Essex, 1222. 
 Boardmah V; North Waterloo Ins. 
 
 Co., 897. 
 Boatwright v. Boatwright, 259. 
 Bobbett v. South-Eastern Ry. Co., 
 
 214. 
 Bobier v. Clay, 1169; 
 Bobier and Ontario Investment, re, 
 
 442. 
 Bochner v. Hirtle, 60. 
 Bodega Co., re, 812. 
 Bodwell v. McNiven, 317. 
 Boeckh v. Gowganda Queen, 97, 799, 
 
 827. 
 Bogart v. King, 1020, 1028, 1040, 
 
 1110. 
 Boggs, re, 188. 
 Boice v. O'Loahe, 236, 254„ 
 Boisseau v. C. P. R.. 648,) 953, 968. 
 Boland v. Toronto, 1113, 1117, 1119. 
 Boldrich v. Ryan, 573, 574, 580. 
 Bolduc v. C. P. R., 937. 
 Bolitho v. Gidley, 690. 
 Bolland v. Young, 114. 
 Bollander v. Ottawa, 1046. 
 Bolster, re, 54. 
 Bolton, re, 209. 
 
TABLE OF CASES. 
 
 XXXI 
 
 Bolton v. Curre, 423. 
 
 Bolton v. London School Board, 
 
 438. 
 Bolton Partners v. Lambert, 8§9. 
 Bolton v. Smith, 574. 
 Bombay Burmah Trading Corpora- 
 tion v. Shroff, 795; 
 Bomore Road (No. 9) re, 420, 856. 
 Bond, re, 209. 
 Bond v. Barrow Haeihltite Steel 
 
 Co., 807. 
 Bond v. Coinmee, 1176. 
 Bond v. Toronto Railway, 632, 650, 
 
 934, 972 ; 
 Bondy v. Fox, 494. 
 Bondy v. Sandwich, etc., Ry., 97l. 
 Bonn v. Bell Telephone Co., 1043. 
 Bonnin v. Neame, 174. 
 Bonson v. Bohsoh, 110. 
 Bonsquet v. Gagnon, 1182. 
 Book t. Book, 879, 881, 891. 
 Book v. Brooker, 270. 
 Boord v. African Consolidated Land 
 
 Co., 832. 
 Boorstein v. Moffatt, 316. 
 Booth, re, 395. 
 Booth t. Booth, 602, 611. 
 Booth v. C. P. R., 124. 
 Booth v. Girthwood, 1115. 
 Booth v. Mclntyre, 66, 923. 
 Booth and Merriam, re, 403. 
 Booth v. New Afrikander G. M. Co., 
 
 821. 
 Booth v. Prittie, 318. 
 Booth v. Toronto General Trusts, 
 
 680. 
 Booth v. Walkden Spinning Co., 
 
 843. 
 Booth's Estate, re, 387. 
 Booth's Trusts, In re, 427. 
 Borland's Trustee v. Steel, 795. 
 Born v. Turner, 247. 
 Bornstein v. Weinberg, 371. 
 Borough of Bathurst v. Macpherson, 
 
 964, 1065. 
 Boschoek Proprietary Co. v. Fuke, 
 
 792, 812. 
 Bosse v. Paradis, 743. 
 Bostick v. Head, 656. 
 Bostock v. Ramsay, 300. 
 Bostock v. Smith, 192, 196. 
 
 Boston v. Boston, 316. 
 Boston v. Lelievre, 8. 
 Bothamley v. Sherson, 411. 
 Bothwell, 21, 22. 
 
 Bottomley and A. 6. U. W., re, 888. 
 Bouchard v. Matthews, 638. 
 Boucher, re, 287. 
 
 Boucher v. Capital Brewing Co., 
 
 313, 1156, 1159, 1160, 1170, 1177. 
 
 Boucherett, re, Barne v. Erskine, 
 
 419. 
 Boughton v. Knight, 184. 
 Boultbee v. Burke, 260. 
 Boultbee v. Wills, 797. 
 Boulter V. Blake, 370. 
 Boulton, re, 736. 
 Boulton v. Blake, 733. 
 Boulton and Garfunkel, re, 447. 
 Boulton v. Jeffrey, 59. 
 Boulton v. Langniuir, 257. 
 Bound v. Lawrence, 628. 
 Bourgon v. Cumberland, 1158. 
 Bourn v. Salmon & Co., 370. 
 Boustead and Warwick, re, 440. 
 Boustead V. Whitmore, 672. 
 Boutellier f. Harper, 17. 
 Bowoher v. Clark, 759. 
 Bowden, re, 251. 
 
 Bowden, re, Andrew v. Cooper, 251. 
 Bower, re, 399. 
 Bower v. Barlow, 409. 
 Bowerman V. Hunter, 393, 396. 
 Bowermari v. Phillips, 535. 
 Bowes v. Holland, 595. 
 Bowie v. Gilmour, 1159, H70, 1177. 
 Bowles, re, 413. 
 Bowman v. Blyth, 292. 
 Bowman v. Watts, 391. 
 Bowman v. Thurman, 192. 
 Bown v. West, 58. 
 Boyce v. Edbrooke, 209. 
 Boyd v. Bilham, 268, 723. 
 Boyd v. Bobcaygeon P. S. Board, 
 
 1211. 
 Boyd v. Boyd, 398. 
 Boyd v. Link, 67. 
 Boyd v. Pawle, 363. 
 Boyd v. Richards, 102. 
 Boyd v. Sergeant, re, 147, 156, 529. 
 Boyd v. Spriggins, 761. 
 Boyd v. Toronto, 244. 
 
XXX11 
 
 TABLE OF CASES. 
 
 Boyer v. Gaffield, 241. 
 
 Boylan and Toronto, re, 1157. 
 
 Boyle v. McCabe, 516. 
 
 Boyle v. Rothschild, 798, 810, 982. 
 
 Boyle v. Smith, 1160. 
 
 Boyle and Toronto, re, 4, 983. 
 
 Boyne v. Smith, 1176. 
 
 Boynton v. Boyd, 578. 
 
 Boys' Home v. Lewis, 105, 250. 
 
 Bozzelli, re, 667. 
 
 Bracken, re, 209. 
 
 Bracken, re, Doughty v. Townson, 
 
 432. 
 Bradburn v. Edinburgh Life, 908. 
 Bradburn v. Great Western Ry., 
 
 660. 
 Bradburn and Turner, re, 428, 429. 
 Bradd v. Whitney, 961. 
 Braddeley v. Earl Granville, 640. 
 Bradenburg v. Ottawa Electric, 657. 
 Bradleiigh v. Raleigh, 1130, 1133. 
 Bradley v. Barber, 100, i20. 
 Bradley v. Elliott, 320. 
 Bradley's Estate, re, 396. 
 Bradley v. Gainsboro, 1112. 
 Bradley v. McDonell, 452. 
 Bradley v. Wilson, 154. 
 Bradshaw, re, 413, 466. 
 Bradshaw v. Duffy, 119. 
 Bradshaw v. London & Yorkshire 
 
 Ry., 699. 
 Bradshaw v. Widdrington, 240. 
 Bradt v. Dominion Grange, 895, 
 
 901, 904. 
 Brady v. Sadler, 61. 
 Braitibwaite v. A.-G., 856. 
 Bramley, re, 403. 
 Brampton and Longtown Ry., re. 
 
 854. 
 Brandon, re, 710. 
 
 Brandt v. Dunlop Rubber Co., 350. 
 Brannigan v. Brannigan, 634. 
 Brant Milling Co., re, 956. 
 Brashier v. Jackson, 292. 
 Brasier, re, 408. 
 Brassington, re, 407. 
 Braunstein v. Lewis, 678, 679, 682. 
 Brazeau v. C. P. R., 945, 959. 
 Brazil v. Johns, re, 150. 
 Bread Sales Act, re, 290. 
 Breakey v. Breakey, 668. 
 
 Breault v. Lindsay, 1059, 1064. 
 Breemer v. Oliver, 682. 
 Breen v. Toronto, 1070. 
 Breese v Knox, 544, 548. 
 Breeze v. Midland, 600, 611. 
 Brega v. Dickey, 456. 
 Breithaupt v. Marr, 277. 
 Brennan v. Brennan, 681. 
 Brennan v. G. T. R., 976. 
 Brennan and Ottawa Electric, re, 
 
 930, 931. 
 Brenner v. Toronto Railway, 952, 
 
 955, 964, 965. 
 Brethour v. Brooke, 378, 379. 
 Brett v. Rogers, 370. 
 Brett v. Toronto Railway, 771. 
 Brewer v. Canada Permanent, 490. 
 Brewer and Toronto, re, 1158. 
 Brewers, etc., Association v. Atty.- 
 
 Gen. for Ontario, 51, 1176. 
 Brewster v. Hendershot, 1229. 
 Brice v. Munro, 802. 
 Bridger, re, 331. 
 Bridges v. Real Estate Loan, 483, 
 
 488. 
 Bridgman, re, 207. 
 Bridgman v. Robinson, 587, 589. 
 Bridgewater Cheese Co. v. Murphy, 
 
 785. 
 Brienzi v. Samuel, 609. 
 Brierley v. T. H. and B. Ry., 930. 
 Briggs v. Freehold Loan, 250, 253, 
 
 378. 
 Briggs v. Lee, 602, 614. 
 Briggs v. Wilson, 261. 
 Brigham v. Banque Jacques Cartier, 
 
 562. 
 Bright v. McMurray, 233. 
 Bright v. River Plate, 178. 
 Bright and Sarnia, re, 1135. 
 Bright v. Walker, 246. 
 Brighton Brewery, In re, 817. 
 Brill v. Toronto Railway, 964. 
 Brillinger, re, 187. 
 Brillinger v. Ambler, 724, 729. 
 Brinkley v. A. G., 666. 
 Brirely v. H. and' B. Ry., 94. 
 Briscoe, re, 188. 
 
 Bristol Bank v. Midland Ry., 533. 
 Bristol Corporation v. Aird, 174. 
 Bristol v. Westcott, 373. 
 
TABLE OF CASES. 
 
 XXX111 
 
 Bristow, re, 100. 
 
 British and American Trustee and 
 
 Finance Corporation v. Couper, 
 
 800. 
 British Asbestos Co. v. Boyd, 792. 
 British Building Stone Co., re, 848. 
 British Canadian and Ray, re, 379. 
 British Columbia Lumber Co. v. Le- 
 
 berry, 602. 
 British Columbia Mills v. Scott, 
 
 635. 
 British, etc., Corporation v. Couper, 
 
 807. r 
 British Equitable v. Baily, 870. 
 British Medical and General Life 
 
 Association, re, 840, 864. 
 British Mortgage Loan Co., re, 1108. 
 British Nation Life, re, 853. 
 British Power Traction, re, 805. 
 British Seamless Paper Box Co., 
 
 re, 778. 
 Briton Medical and General Life 
 
 Association, re, 840, 864. 
 Broad, re, 413. 
 
 Brock v. Bennes, 212, 215, 228, 229. 
 Brock v. Cameron, 431. 
 Brock v. Crawford, 106, 464. 
 Brock v. McLean, 45. 
 Brock v. Ruttan, 270. 
 Brock v.- Toronto, 2. 
 Brockman, re, 742, 750. 
 Brockville, 19, 20\ 
 Brockville, etc., Road Co. v. Leeds 
 
 and Grehville, 3, 1150. 
 Brodericht v. Merner, re, 148, 156. 
 Brodie and Bowmanville, re, 1050. 
 Brohm v. Somerville, 1047, 1151. 
 Bronson and C. A. Ry., re, 929. 
 Brooke and Fremlin, r*e, 693. 
 Brooke v. Gibson, 216,' 217, 221. 
 Brooke v. Toronto Belt Line Ry., 
 
 922, 926, 931. 
 Brooker v. Mariposa, 1013. 
 Brooks t. Bockett, 739. 
 Brooks v. Honsen, 823, 826. 
 Brook's Mortgage, re, 358. 
 Brooks Sahford v. Lelier, 601, 614, 
 
 615. 
 Broome v. Speck, 824. 
 Broomfield v. Williams, 343. 
 
 Brophy and Gananoque, re, 1012. 
 Brothers of the Christian Schools v. 
 
 Minister of Education for On- 
 tario, 1224. 
 Broughton v. Grey, 1125,- 1126. 
 Broughton v. Stnallplece, 603. 
 Brouse v. Cram, 60. 
 Brouse v. Stayner, 451. 
 Brown, re, 447. 
 Brown v. Accrington Cotton Co., 
 
 643. 
 Brown v. Black, 740. 
 Brown v. Brown, 60, 263, 364. 
 Brown v. C. P. R., 971. 
 Brown v. Clendennafi, 514. 
 Brown v. Dimbleby, 691. 
 Brown and E. Flamboro, re, 1015, 
 
 1174. 
 Brown v. Feeney, 199. 
 Brown and Godwin, re, 732. 
 Brown y. G. T. R., 170, 651, 658, 
 
 696, 705. 
 Brown v. Great Western Ry., 934, 
 
 952. 
 Brown v. Grove, 546, 548; 
 Brown v. Harper, 323. 
 Brown v. Higgs, 412. 
 Brown v. Hose, 117, 120; 
 Brown v. Lennox, 372. 
 Brown v. London Ky!, 641, 964, 973, 
 
 * 976. 
 Brown v. McLean, 215, 235, 476. 
 Brown v. McNab, 1021. 
 Brown V; Nelson, 270. 
 Brown v. O'Dwyer, 367. 
 Brown and Owen Sound, re, 1031, 
 
 1069. 
 Brown v. Ruttan, 729. 
 Brown v. Security Life, 814. 
 Brown v. Skirrow, 404. 
 Brown v. Thomson, 235. 
 Brown v. Toronto, 107, 1062, 1064. 
 Brown v. Weir, 1141. 
 Brown v. Williams, 1198.' ' 
 Browne,' re; 888. 
 Browne v. Barber, 737. 
 Browne v. La Trinidad, 792. 
 Brownell v. Atlas Assurance Co., 
 
 Co., 902. 
 Browning, In re, 12. 
 
 b.a. — o. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Bruce v. McLay, 299, 454, 506, 507. 
 Bruce v. National Trust, 611, 612, 
 
 616. 
 Brulott v. G. T. R., 627, 646, 
 Brummol v. Wbarin, 247. 
 Brundle v. Toronto, 1003. 
 Brunnel v. C. P. R., 649. 
 Brunning v. Odhama, 332. 
 Brunskill v. Chumasero, 530. 
 Brutton and Blrney, In re, 821. 
 Bruyea v. Rose,. 59, 216. 
 Bruyere v. Knox, 484. 
 Bryan v. Whistler, 1205. 
 Bryans v. Moffat, 108. 
 Bryant, re, 390, 
 Bryant, re Porothy, 3i>5. 
 Bryant v. La Banque du People 337, 
 Bryson v. O. and Q. Ry., 672, 924. 
 Brussels and McKillop, re, 979, 981. 
 Brush v. Taggart, 297. 
 Bucke v. London, 1102. 
 Bucke v. New Liskeard, 1142. 
 Bucke v. New Liskeard, 835, 1043. 
 Buckland v. Buckland, 691. 
 Bucknall v. B. C. Power Co., 74, 
 Bucknall v. Mitchell, 90. 
 Bucovetsky v. Cook, 508, 517. 
 Buddeley v. Earl Granville, 644. 
 Buffalo, etc., Ry. v. Parke, 917. 
 Bugbee v. Clergue, 92, 105, 257. 
 Building Estates, Parbury's Case, 
 
 re, 838. 
 Building and Loan v. Betzner, 574. 
 Building and Loan v. Heimrod, 151. 
 Building and Loan v. Palmer, 548, 
 Building and Loan v. Poaps, 223, 
 
 482, 485, 487, 490. 
 Bulmer v. Buhner, 705. 
 Buhner v. Hunter, 335. 
 Bull, re, 418. 
 Bull v. Prank, 59. 
 Bull v. Shoreditch, 964, 1065. 
 Bullen v. Nesbitt, 346. 
 Bullen v. Wilkinson, 445. 
 Bull! Coal Mining Co. v. Osborne, 
 
 241. 
 Bullion Mining Co. v. Cartwright, 
 
 826. 
 Bullivant v. Manning, 914. 
 Bullock v. Dodds, 581. 
 Buluwayo Market, re, 811. 
 
 Bunn, ex p., 854. 
 Bunnell v. Gordon, 97. 
 Bunnell v. Shilling, 869, 878. 
 Bunting v. Bell, 598, 614. 
 Bunting t. Laidlaw, 918. 
 Bunting v. Williams, 279. 
 Bureh v. Flummerfelt, 219, 339. 
 Burdett Coutts v. True Blue Mine, 
 
 848. 
 Burdett v. Fader, 545. 
 Burford v. Burford, 1108. 
 Burford v, Oliver, 523. 
 Burford School Trustees v. Burford, 
 
 1214. 
 Burgess v. Booth, 713. 
 Burghes v. Atty.-Gen., 97. 
 Burke v. G. T. R., 937, 
 Burke v. Tilbury North, 1133. 
 Burkholder v. G. T. R., 705. 
 Buriand v. Earle, 89, 104, 816, 817, 
 
 915. 
 Burleigh v. Campbell, 66, 68. 
 Burley v. G. T. R., 639, 974. 
 Burman v. Ottawa Electric, 972. 
 Burnett and Durham, re, 179, 1032, 
 
 1034, 1035. 
 Burney v, Moore, 342. 
 BUrnham v. Gait, 382. 
 Burnbam v. Garvey, 247. 
 Burnham v. Peterborough, 530. 
 Burnham v. Simmons, 269. 
 Burns v. Burns, 58. 
 Burns v. Hall, 75. 
 Burns V. James Bay Ry., 931. 
 Burns v. Loughrle, 300. 
 Burns v. Toronto, 107, 1058. 
 Burns t, WUson, 541, 548, 557, 558. 
 Burridge, re, 184. 
 
 Burris v. Pere Maftqwette, 946, 949. 
 Burrett, re, 451. 
 Burritt v. Renitaan, 614. 
 Burroughs, re; Lynn v. Sexton, 440. 
 Burrows, re-, 411. 
 Burrows v. Campbell, 1111, 1119. 
 Burrows v, Mataibele Gold Reefs, 
 
 820, 821, 826. 
 Burson v. German Union, 867, 869. 
 Burtch v. C. P. R., 912, 950, 951. 
 Burton v. Bellhouse, 580, 582. 
 Burton v. BurtOn, 745, 746. 
 Burwell v. London Free Press, 198. 
 
TABLE OF OASES. 
 
 XXXV 
 
 Bury v. Famatina Development, 819. 
 
 Bush, re, 137. 
 
 Bush v. Fry, 593, 594. 
 
 Bush v. Park, 1233. 
 
 Buskey v. C. P. R., 946. 
 
 Butler v, Fife Coal Co., 975. 
 
 Butler and Henderson, re, 443. 
 
 Butler v. McMicken, 124, 236, 254. 
 
 Butler v. Rosenfeldt, 279. 
 
 Butler v. Toronto, 1183. 
 
 Butterknowle Colliery v. Bishop 
 
 Auckland, etc., Co., 244. 
 Byer v. Grove, 391, 396. 
 
 C, re, 710. 
 
 C. v. D., 425. 
 
 Cable v. Bryant, 243, 342, 343. 
 
 Cackett v. Keswick, 824. 
 
 Cadywold, re, 407. 
 
 Caffrey v. Phelps, 114. 
 
 Cahn v. Pockett's Bristol Channel 
 
 Packet Co., 594. 
 Calger, re, 889. 
 Calmely v. Beck, 622. 
 Cain v. Pearce, 220, 343, 523, 525. 
 Caine v. Birmen, 97, 669. 
 Calrney v. Beck, 622, 805. 
 Caisley r. Stewart, 322. 
 Calcatt and Elvin, re, 441. 
 Caldwell and Gait, re, 1021, 1070, 
 
 1157. 
 Caldwell v. Hall, 231. 
 Caldwell v. Hughes, 122. 
 Caldwell v. Mills, 631. 
 Caledonia and Haldimand, re, 1054, 
 
 1056. 
 Caledonia Milling Co. v. G. T. R., 
 
 943. 
 Caledonian Ins. Co. v. Gilmour, 173. 
 Caledonian Ry. v. Belhaven, 943. 
 Caledonian Railway v. Mulholland, 
 
 633, 639, 651. 
 Calgary and Edmonton Land Co., 
 
 re, 819. 
 Calgary and Medicine Hat Land Co., 
 
 808. 
 Callaghan, re, 451. 
 Calthorpe v. Trechman, 824. 
 Calverley v. Smith, 271. 
 Calvert v. Black, 192. 
 Cameron, re, 432, 450, 884, 1198. 
 
 Cameron v. Campbell, 238, 282. 
 Cameron v. Cusack, 335, 545, 565. 
 Cameron v. Daulphin, 1184. 
 Cameron v. Eager, 551. 
 Cameron v. Gibson, 570. 
 Cameron and Hagarty, re, 478, 1067. 
 Cameron V. Heighs, 682. 
 Cameron v. Hull, 441. 
 Cameron v. Royal Papers Mills, 627. 
 Cameron v. Smith, 256. 
 Cameron v. Walker, 234. 
 Cameron v. Wlgle, 932, 924, 925. 
 Campbell, re, 195, 196, 418. 
 Campbell v. Brooke, 1058. 
 Campbell v. Campbell, 188, 713. 
 Campbell v. C. P. R., 2, 944. 
 Campbell v. Clutf, 1045. 
 Campbell v. CroH, 277, 383. 
 Campbell v. Dunn, 883. 
 Campbell v. Ferguson, 348. 
 Campbell v. Fox, 479, 485. 
 Campbell v. Hally, 555. 
 Campbell v. Hill, 187. 
 Campbell v. Ontario Lumber Co., 
 
 654. 
 Campb'ell v. Patterson, 537. 
 Campbell v. Pugsley, 1147. 
 Campbell v. Shields, 345. 
 Campbell and Stratford, re, 1049. 
 Campbell v. Taxicabs Verrals, Ltd., 
 
 783, 787, 809. 
 Campbell v. Wallaceburg, 300, 1110, 
 
 1112. 
 Campbell's Estate, re, 49-. 
 Campden Charities, re, 1021. 
 Campeau v. May, 214. 
 Campsall v. Allen, 74, 79. 
 Canada Atlantic v. Moxley, 943. 
 Canada Atlantic v. Ottawa, 941. 
 Canada Carriage Co. v. Lea, 333. 
 Canada Company v. Mitchell, 1075, 
 
 1076. 
 Canada Consolidated Mineral Co. v. 
 
 Savoie, 98, 99. 
 Canada Life, re, 1104. 
 Canada Permanent v. McKay, 483. 
 Canada Permanent V. Ross, 439. 
 Canada Permanent v. Taylor, 64. 
 Canada Permanent v. Teeter, 360. 
 Canada Permanent v. Todd, 570, 
 
 573, 580. 
 
XXXVI 
 
 TABLE OF CASES. 
 
 Canada Sand Lime v. Poole, 617. 
 Canada Sand Lime v. Ottaway, 615. 
 
 616. 
 Canadian Southern v. Jackson, 650, 
 
 652, 914> 951. 
 Canada 'Southern v. Phelps, 943. 
 Canada Southern v. Town of Ni- 
 agara Falls, 243. 
 Canada Woollen Mills, Long's Case, 
 
 re, 846. 
 Canadian Bank of Commerce v. 
 
 Ralston, 268. 
 Canadian Bank of Commerce v. 
 
 Rogers, 857, 861. 
 Canadian Birkbeck v. Ryder, 489. 
 Canadian Building and Loan and 
 
 Hamilton, re, 1100. 
 Canadian Camera Co., re, 587. 
 Canadian Druggists v. Thompson, 
 
 780, 829. 
 Canadian Freight Association, re, 
 
 956. 
 Canadian Gas, Power, etc., Ltd., 
 
 Ridge's Claim, re, 843. 
 Canadian Gas Power v. Schofleld, 
 
 621. 
 Canadian General Electric v. Ta- 
 
 gona Water and Light, 803, 810. 
 Canadian Home Circles and Smith, 
 
 re, 892. 
 Canadian Mail Orders, Ltd., re, 829, 
 
 855. 
 Canadian McVicker Engine Co., re, 
 
 827, 829, 837. 
 Canadian Mutual Loan v. Nlsbet, 
 
 271. 
 Canadian Oil Co. v. McConnell, 149. 
 Canadian Oil Fields and Enniskil- 
 
 len, re, 1106. 
 Canadian Oil Fields v. Oil Springs, 
 
 1102, 1106, 1108. 
 Canadian Order of Foresters and 
 
 McHutcheon, re, 410, 880, 889. : 
 C. P. R. and Batter, re, 927. 
 C. P. R. v. Bay of Quinte, 942. 
 C. P. R. v. Blain, 88. 
 C. P. R. v.Boisseau, 951, 
 C. P. R. v. Brown Milling Co., 373, 
 
 924. 
 CP. R. and Byrne, re, 924, 925. 
 
 C. P. R. v. Carleton Place, 1015, 
 
 1039. 
 C. P. R. v. Chatham, 1074. 
 C. P. R. and Du Cailland, re, 930. 
 C. P. R. v. Falls Power Co., 1043. 
 C. P. R. and Gordon, re, 929. 
 C. P. R. v. G. T. R. 913, 942, 979. 
 C. P. R. v. James Bay Ry., 919. 
 C. P. R. v. The King, 652, 659, 940. 
 C. P. R. v. La Chance, 703. 
 C. P. R. v. Major, 922. 
 C. P. R. v. McBryan, 920. 
 C. P. R. and National Club, re, 386, 
 
 397. 
 C. P. R. v. Notre Dame de Bonse- 
 
 cours, 600, 913, 944. 
 C. P. R. v. Ottawa Fire Ins. Co., 
 
 779, 894, 944. 
 C. P. R. v. Rat Portage, 269, 551. 
 C. P. R. v. Robinson, 425, 696. 
 C. P. R. v. Roy, 943. 
 C. P. R. v. Site. Therese, 930, 932. 
 C. P. R. and Steelton, re, 1107, 
 
 1109. 
 C. P. R. Telegraph, re, 1101. 
 C. P. R. v. Toronto, 88, 440, 941, 
 
 1101, 1110. 
 C. P. R. v. "Vancouver, Westminster 
 
 & Yukon Ry., 942. 
 C. P. R. and Warren, re, 955. 
 C. P. R. v. Western Union, 921. 
 Canadian Ry. Accident v. Williams, 
 
 269. 
 Canadian Shipbuilding Co M re, 569, 
 
 .5-77, 586., 
 Cann v. Knott, 64. 
 Cannon, re, Oates v. Cannon, 251. 
 Canniff v. Bogert, 532. 
 Canning Jarrah Timber Co., re, 848. 
 Canty v. C. P. R., 975,. 
 Cap Rouge Pier Co. v. Duchesnay, 
 
 219. 
 Cape Breton Co., re, 824. 
 Capel v. Simes, 824. 
 Care v. Ontario Loan and Deb. Co., 
 
 483, 488. 
 Caradoc v. Ekfrid, 1127. 
 Caratal Mines, re, 794. 
 Carbery, re, 892. 
 Cardwell v. Breckenbridge, 245, 769. 
 
TABLE OF CASES. 
 
 XXX Vll 
 
 Cardno v. Cooper, 246. 
 
 Carew v. G. T. R., 937. 
 
 Carey v. Smith, 20, 25, 35, 313. 
 
 Carlton Place, re, 10, 12, 15, 16. 
 
 Carleton v. Ottawa, 941, 1034, 1037. 
 
 Carleton v. Ottawa P. S. Board, 
 1210. 
 
 Carling Brewing Co. v. Black, 432, 
 565. 
 
 Carlisle v. G. T. R., 949. 
 
 Carlish v: Salt, 446. 
 
 Carlyon v. Truscott, 206. 
 
 Carnahan v. Simpson, 646, 1189, 
 1190. 
 
 Carpenter v. Canadian Ry. Acci- 
 dent, 882. 
 
 Carpenter v. Solicitor to the Treas- 
 ury, 44. 
 
 Carr v. Corfield, 536. 
 
 Carr v. Lynch, 322. 
 
 Carr v. North Bay, 991, 1014, 1037, 
 1072, 1073. 
 
 Carr v. O'Rourke, 133, 136. 
 
 Carrick v. 'Smith, 470. 
 
 Carrol v. Great Western Ry., 937. 
 
 Carroll v. Beard, 587. 
 
 Carroll v. Burgess, 495. 
 
 Carroll v. Carroll, 366. 
 
 Carroll v. Fitzgerald, 255, 688. 
 
 Carruthers v. C. P. R., 969, 970. 
 
 Carruthers v. T. & Y. Radial, 971. 
 
 Carscallen v. Moodie, 582. 
 
 Carson v. Weston, 940. 
 
 Carswell, In re, 709, 710. 
 
 Carswell v. Lahgley, 564. 
 
 Carter v. ex p., 572, 854. 
 
 Carter, re, 416. 
 
 Carter v. C. N. O., 589. 
 
 Carter v. Carter, 110, 363. 
 
 Carter and Clapp, re, 99, 1173. 
 
 Carter v. Grassett, 247. 
 
 Carter v. Haswell, 411. 
 
 Carter v. Hunter, 1104, 1105, 1111, 
 1114, 1120. 
 
 Carter and Kenderdine, re, 446. 
 
 Carter v. Lee, 565. 
 
 Carter v. Stone, 559,' 560. 
 
 Cartwright v. Cartwright, 877, 885, 
 890. 
 
 Cartwright v. Diehl, 366. 
 
 Cartwright and Napanee, re, 997, 
 
 1019, 1028, 1140. 
 Cartwright v. Toronto, 1115, 1118. 
 Carty v. London, 963, 967. 
 Cary and Lott's Contract, re, 397. 
 Casci and Hill, re, 511. 
 Casey v. C. P. R., 953, 974. 
 Casey v. Jordon, 460, 479. 
 Cashman and Cobalt and James, 73, 
 
 79. 
 Caslar v. Grace Mining Co., 814. 
 Caspar v. Keachie, 237. 
 Casselman v. Brady, 426. 
 Casselman v. Hersey, 63. 
 Casserley t. Hughes, 537. 
 Cassidy, re, 133. 
 Cassidy q.t. v. Henry, 597, 598. 
 Casson v. Stratford, 1173. 
 Castle v. Kouri, 125. 
 Castings Co. v. Smith's Falls M. 
 
 Castings Co., 811. 
 Caston v. Consolidated Plate Glass, 
 
 626. 
 Caston v. Toronto, 1113, 1114. 
 Cathcart, re, 188. 
 Cattell, re; Cattell v. Cattell, 353. 
 Caughell and Brower, re, 182. 
 Cavanagh and Canada Atlantic, re, 
 
 925, 928, 929, 931. 
 Cavanagh v. Glendenning, 70. 
 Cavanagh v. Park, 662. 
 Cave v. Harris, 410. 
 Caverhill, re, 449. 
 C. B. C. Corset Co., re, 802, 839. 
 Cedar Lumber Products, re, 956. 
 Central Bank, re, 852. 
 Central Bank, re, 844, 845. 
 Central Bank v. Ellis, 293. 
 Central Bank, Henderson's Case, 
 
 re, 852. 
 Central Bank, Lye's Claim, re, 845. 
 Central Bank, Yorke's Case, re, 837. 
 Central de Kaap Gold Mines, re, 
 
 816. 
 Central Ry. of Venezuela v. Kisch, 
 
 822. 
 Central Trust Co. v. Algoma Steel 
 
 Co., 98. 
 Centre- Bruce, 39, 40. 
 Centre iSimcoe, 17, 42. 
 
XXXV111 
 
 TABLE OF CASES. 
 
 Centre Wellington, 24, 32, 34. 
 Cerri v. A. 0. F., 871, 874, 893. 
 Chalfield v. Cunningham, 379. 
 Challoner v. Lobo, 104, 1122. 
 Chamberlain, ex p., 448, 449, 450. 
 Chamberlain v. Clark, 235. 
 Chamberlain v. McDonald, 676. 
 Chamberlain and Stormont, re, 
 
 1221. 
 Chamberlen v. Clark, 430, 431, 432. 
 Chamberlin v. The King, 944. 
 Chambers, re, 403. 
 Chambers v. Jaffray, 262. 
 Chambers v. Jennings, 98. 
 Chambly, 31. 
 Champagne, re, St. Jean v. Simard, 
 
 425. 
 Champaigne y G. T. R., 950. 
 Chandler v. Bradley, 208. 
 Chandler v. Gibson, 347, 414. 
 Chandler-Massey v. G. T. R., 946. 
 Chandler-Massey v. Irish, 815. 
 Chandos v. Brownlow, 486. 
 Chan Dy Chea v. Atlantic Ry., 949. 
 Chantler, re, 169. 
 Chantler & the Clerk of the Peace 
 
 of the County of Middlesex, re, 
 
 113. 
 Chapiewski v. Campbell, 62, 63. 
 Chaplin v. Woodstock, 1220. 
 Chapman, re, 135. 
 Chapman v. Browne, 424. 
 Chapman v. Canadian Northern, 
 
 950. 
 Chapman v. Great Central Pree- 
 
 hold'Mines, 821. 
 Chapman v. Smelthurst, 785, 815. 
 Chappell v. North, 174. 
 Chappie, re, 760. 
 Chaput v. Robert, 598. 
 Charbonneau v. McCusker, 218, 356, 
 
 769. 
 Chard v. Rae, 130, 254, 699. 
 Charles v. Walker, 697. 
 Charlsworth, ex p., 852. 
 Charlevoix, 30, 32. 
 Charriere, re; Duret v. Charriere, 
 
 391. • 
 Chart, re, Bird v. Godfrey, 259. 
 Charter v. Watson, 233. 
 
 Chateauquay Northern Ry. v. Mont 
 
 real Park and Island Ry., 945. 
 Chateauquay, etc., Ry. v. Tren- 
 
 holme, 928. 
 Chatham v. C. P. R., 1105. 
 Chatham v. Dover, 1127. 
 Chatham National Bank v. McKeen, 
 
 846. 
 Chatterton, ex p., 740. 
 Chaudiere Machine Co. v. Canada 
 
 Atlantic Ry., 932, 967. 
 Cheese v. Keen, 256. 
 Cheeseborough, re, 878, 880, 890. 
 Chesterville P. S. Board, re, 1211. 
 Chetwynd's Settlement, re, 420. 
 Chevrier v. Trusts and Guarantee, 
 
 75, 316. 
 Chew v. Caswell, 67. 
 Chew v. Traders Bank, 587. 
 Chewett v. Great Western Ry., 932, 
 
 978. 
 Chicago Milwaukee Ry. v. Ross, 644. 
 Chicago and N. W. Granaries Co., 
 
 re, 804. 
 Chida Mines v. Anderson, 797. 
 Child v. Edwards, 112. 
 Chillman, re, 714, 715. 
 Chinnery v. Evans, 236. 
 Chinnock v. Marchioness of Ely, 
 
 321. 
 Chlsholm v. Barnard, 435. 
 Chisholm v. Chisholm, 713. 
 Chisholm & Logie, re, 743. 
 Chisholm and Oakville, re, 497, 500. 
 Chisholm v. Sheldon, 271, 273. 
 Chisholm's Settlement, re, 345. 
 Chittlck v. Lowery, 368. 
 Choate v. Ontario Rolling Mills, 635, 
 
 645, 653, 656, 1190. 
 Chorley Corporation v. Nightengale, 
 
 1052.' 
 Chowley v. Gas Co., 696. 
 Christie Brown v. Woodhouse, 90. 
 Christie v. Casey, 155, 734. 
 Christie v. Ovington, 419. 
 »Christie v. Richardson, 633. 
 Christie and Toronto, re, 1034, 1035. 
 Christin v. Christin, 582, 583. 
 Christopher v. Noxon, 811, 916. 
 Chrysler, re, 418. 
 
TABLE OF CASES. 
 
 XXXLX 
 
 Chrysler v. Sarnia, 1129. 
 Church, re, 434, 436. 
 Church v. Fenton, 1115. 
 Churchill and Hullett, re, 171, 177, 
 
 1210, 1211. 
 Church's Trustees v. Hibbard, 159, 
 
 285. 
 Churcher v. Johnston, 548. 
 Churchyard v. Studdy, 1206. 
 Cite de Montreal v. Eccl&lastiques 
 
 de St. Sulpice, 88. 
 Citizens' Electric Light Co. V. Le- 
 
 pitre, 637. 
 Citizens Ins. Co. and Henderson, re, 
 
 177. 
 Citizens Ins. Co. v. Parson, 895. 
 Citizens Ins. Co. V. Salterlo, 896. 
 City of London Electric Light Co. 
 
 v. London Corporation, 818. 
 City Bank v. Barrow, 594. 
 City and County Investment, re, 
 
 847. 
 City and County Investment Co., 
 
 In re, 785, 855. 
 City of St. John v. Macdonald, 523. 
 Clairmont v. Ottawa Electric, 702, 
 
 975. 
 Clare v. Dobson, 371. 
 Clare v. Joseph, 758. 
 Clark, re, 185, 416. 
 Clark v. Barber, re, 148. 
 Clark v. Bellamy, 250, 421. 
 Clark v. Bogart, 483. 
 Clark v. Bonnycastle, 61. 
 Clark and Chamberlain, re, 470. 
 Clark v. Hamilton Prov. Loan, 546. 
 Clark v. Harvey, 366, 379. 
 Clark v. Irwin, 729. 
 Clark v. Loftus, 866, 880, 881, 892. 
 Clark v. London General Omnibus 
 
 Co., 702. 
 Clark v. McDonald, re, 155, 160. 
 Clark v. Union Fire Ins. Co., 861, 
 
 864. 
 Clarke, re, 62, 187, 328, 737. 
 Clarke V. Bates, 582. 
 Clarke v. ChanVberlin, 363. 
 Clarke v. Farrell, 729. 
 Clarke v. Macdonell, 252. 
 Clarke v. Reid, 546, 725. 
 
 Clarke and T. G. & B., re, 928, 932. 
 Clarke v. Trask, 91. 
 Clarke v. West Ham, 958. 
 Clarkson V. Atty.-Gen., 561. 
 Clarkson v. Clarkson, 407. 
 Clarkson v. McMaster, 569, 576, 584. 
 Clarkson v. Ontario Bank, 536. 
 Clarkson v. Byan, 89. 
 Clarkson v. Severs, 560. 
 Clarkson v. Sterling, 537, 544. 
 Clarkson v. Wishart, 71, 74, 75, 269, 
 
 270, 274, 341, 343. 
 Clary v. British America, 902. 
 Clary v. Golden Rose Mining Co., 
 
 813. 
 Clary v. Lake Superior Corpora- 
 tion, 77. 
 Clapperton V. Mutchmoor, 315, 546, 
 
 565. 
 Clay and Tetley, re, 429. 
 Claystone and Hammond, re, 51?, 
 
 514, 520. 
 Cleary and Nepean, re, 13, 989, 997, 
 
 1174. 
 Clegg v. Great Western Ry., 654. 
 Clegg v. G. T. R., 913, 934, 936. 
 Clement, ex p., 854. 
 Clemens v. Berlin, 107. 
 Clement and Dixon, re, 176. 
 Clements v. L. & N. W. Ry., 659, 
 
 698. 
 Clements v. Matthews, 570. 
 Clemmow v. Converse, 538. 
 Clendenan, re, 512. 
 Clerque v. Murray, 88. 
 Clergy Society, re, 329. 
 Cleve v. Financial Corporation, 850. 
 Clifford, re, 410. 
 Clifford v. Holt, 248. 
 Clifford v. Timms, 767. 
 Clinton, re, 560. 
 Clinton Thresher Co., re, 602, 801, 
 
 . 838, 843. 
 Cllsdell v. Kingston & Pembroke 
 
 Ry., 956. 
 Cllsdell v. Lovell, 107, 108. 
 Close, ex p., 591. 
 Close v, Woodstock, 1132. 
 Closson V. Post, 137, 
 Cloves v. Awdry, 890. 
 Clow v. Clow, 345. 
 
xl 
 
 TABLE OF CASES. 
 
 Clowes, re, 409. 
 
 Clutterbuck, re, 353. 
 
 Clydesdale Bank v. Pa]ton, 323. 
 
 Coaker v. Willcocks, 727. 
 
 Coal Economizing Co., re, 824. 
 
 Cobban v. C. P. R. 958. 
 
 Cobban v. Lake Simcoe Hotel Co., 
 
 620. 
 Cobett v. Wood, 742. 
 Cobean v. Elliott, 222. 
 Cochrane, re, 413, 878, 880, 890, 891. 
 Cochrane v. Johnson, 450. 
 Cockburn, re, 242. 
 Cockburn v. Imperial Lumber Co., 
 
 528, 529. 
 Cockroft, re, 418. 
 Cockrell's Estate, re, 114. 
 Gocfcs v. Manners, 330. 
 Coe v. Coe, re, 626, 706. 
 Coe and Pickering, re, 1012. 
 Coffin v. N. A. Land Co., 219, 224, 
 
 225, 228. 
 Coglan v. Cumberland, 104. 
 Cogswell v. Grant, 256. 
 Cohen v. Bayley-Worthington, 363. 
 Cohen and Cohen, re, 750. 
 Cohen v. Hamilton St. By., 973. 
 Cohen v. Mitchell, 551. 
 Cohen's Executors and L. C. C, re, 
 
 386, 426. 
 Colchester v. Gosfield, 1123, 1127. 
 Cole v. Canadian Pire Ins. Co., 97, 
 
 174, 903. 
 Cole v. C. P. R., 634. 
 Cole v. Hall, 615. 
 Cole v. London Mutual, 171, 173, 
 
 182, 903. 
 Cole v. North Western Bank, 591, 
 
 592, 593, 594. 
 Cole v. Pearson, 604, 607. 
 Cole v. Porteous, 9,< 542. 
 Cole v. Racine, 537. 573. 
 Coleman, re, 135, 737. 
 Coleman's Depositories and Life 
 
 and Health Assurance Associa- 
 tion, re, 881. 
 Coleman v. Hill, 377. 
 Coleman and Jarron, Re, 415. 
 Coleman v. Kerr, 1213, 1214. 
 Coleman v. Toronto, 1047. 
 Coley, re, Hollinshead v. Coley, 411. 
 
 Coll v. Toronto Ry., 974 
 Collard and Duckworth, re, 345. 
 Collett v. London North Western, 
 
 950. 
 Collier v. Michigan Central, 650, 
 
 974. 
 Collier v. Union Trust, 712. 
 Collier v. Walters, 361. 
 Collinge, re, 208. 
 Collingwood Dry Dock Co., re., Wed- 
 
 dell's Case, 780. 
 Collins v. Blantern, 553. 
 Collins v. London General Omni- 
 bus Co., 968. 
 Collins v. Martin, 600. 
 Collins v. Smith, 318. 
 Colls v. Home and Colonial Stores, 
 
 247, 248. 
 Colvey v. Paterson, 320. 
 Colombine v. Penhall, 335. 
 Colonial Loan v. Longley, 348. 
 Colonial Securities Trust _Co. v. 
 
 Massey, 104. 
 Colquhoun v. Fullerton, 1061, .1064. 
 C'olquhoun v. Murray, 232. 
 Colquhoun's Trusts v. Colquhoun, 
 
 353. 
 Colthart, re, 187. 
 Colton v. Imperial and Foreign 
 
 Agency Co., 847. 
 Colver v. Swayzie, 332. 
 Colville v. Small, 350, 759. 
 Oommeford v. Empire Limestone 
 
 Co., 629, 646. 
 Commercial Travellers and June, re, 
 
 881. 
 Commissioners, etc. v. Colt, 2, 346. 
 Common v. McArthur, 778, 800. 
 Companies, In re, 777, 856, 857, 864, 
 
 865, 906, 907. 
 Coneter, re, 347. 
 Confederation Life and Clarkson. 
 
 re, 427. 
 Confederation Life v. Kinnear, 395, 
 
 693, 694. 
 Confederation Life v. Labatt, 101. 
 Confederation Life v. Toronto, 
 
 1104, 1108. 
 Condon v. Hamilton Steel & Iron, 
 
 647. 
 Conger, re, 412. 
 
TABLE OF CASES. 
 
 xli 
 
 Coniagas and Cobalt, re, 56, 70, 72, 
 
 77, 82, 343, 980, 1103, 1106, 
 
 1108, 1109. 
 Conley v. C. P. R., 946. 
 Conmee v. North American Ry. 
 
 Contraetlng Co., 746. 
 Conmee v. Weidman, 199. 
 Conn v. Smith, 556. 
 Connell, re, 185. 
 Connell V. Hickock, 570. 
 Connor v. Middagh, 1152. 
 Connor-Ruddy v. Robinson-Whyte, 
 -r- 485. "' ... 
 
 Conolly y. Steer, 5. 
 Conolly v. Murrell, 263. 
 Conrad v. Atlantic Ins. Co., 572. 
 ConrOy v. Peacock, 662. 
 Consolidated Bank' v.- Henderson, 
 
 681. 
 Consolidated South Rand Mines, re, 
 
 848, 849. 
 Consumers Gas Co. v. Toronto Ry.; 
 
 961. 
 Consumers Gas v. Toronto, 1100, 
 
 1106. : 
 Continental Oxygen Co., re, 805. 
 Converse v. 'Michie, 9. 
 Cook v. Belshaw, 603, 604, 612. 
 Cook t. Cook, 203.' 
 Cook v/Dodds, 533. 
 Cook t. Eshelby, 595. 
 Cook v. Grant, 252. 
 Cook v. North Metropolitan Tram- 
 ways; 628. 
 Cook v. Patterson, 104. 
 Cook v. Tate, 1201. 
 Cooke v. Midland G. W. Ry., 971. 
 Cooley v. Smith, 482. 
 Coolgardie Consolidated Gold Mines, 
 
 re, 783. 
 Coolidge v. Nelson, 480. 
 Coolidge v. Toronto Ry., 972. 
 Cooney v. Sheppard, 686, 687. 
 Cooper, re, 134, 307, 1178. 
 Cooper, re; Cooper v.'Vesey, 486. 
 
 511, 520. 
 Cooper v. Belsey, 208. 
 Cooper' v. Dixon, 546. 
 Cooper v. Hamilton Steel, 632, 650, 
 
 652, 656, 936. 
 
 Cooper v. Jack Canuck Pub. Co., 
 
 198. 
 Cooper v. Kendall, 258. 
 Cooper v. London St. Ry., 965, 966. 
 Cooper v. Simmonds^ 664. 
 Cooper v. Stuart, 64. 
 Cooper v. Wellbanks, 770. 
 Coots, re, 129, 874. 
 Cope v. Cope, 241; 
 Cope v. Crighton, 92, 97, 223, 480. 
 Copeland-Chatterson v. Business 
 
 Systems, 115. 
 Copeman and Dundalk, re, 1174. 
 Corbett, re, 187. 
 Corbett v. Corbett, 347. 
 Corbett v. Pearce, 627. 
 Corbett v. McNeil, 316. 
 Corbit, re, 353. 
 Corby v. G. T. R., 946: 
 Corby- v. Williams, 587. 
 Corcoran v. Montreal Rolling Mills, 
 
 637, 1190. 
 Corkett, re, 139. 
 Corneill v. Abell, 580. 
 Cornell, re, 206, 208. 
 Cornish v. Boles, 108. ; 
 Cornish v. Toronto St. Ry., 949. 
 Cornwall, re, 25, 29, 31, 32, 34, 37, 
 
 41, 42, 1143, 1144. 
 Cornwall Furniture Co., re, 801, 
 
 824, 829, 838, 839. 
 Cornwall v. Henson, 94. 
 Cornwallis West, re, 209. 
 Corporation v. Goodwin, 77. 
 Corsant, q. t. v. Taylor, 292, 296. 
 Cory, re, 135. ' 
 Cosbey v. Detlor, 219. 
 Cosmopolitan Life Association, re, 
 
 852. 
 Costa Rica Ry. v. Forwood, 817. 
 Costello v. Hunter, 263. 
 Cotg v. Halliday, 153! 
 Cotie v. Canada Turpentine Co., 
 
 636. 
 Cotter v. Darlington, 1209. 
 Cotter v. Sutherland, 1115. 
 Cotton v. Imperial, 849. 
 Cotton v. The King, 50. 
 Cotton v. Mitchell, 265. 
 Coulter v. Elvin, 317. 
 
xlii 
 
 TABLE OP CASES. 
 
 Coulter v. Equity Fire, 863, 864, 
 
 895, 900. 
 Coulter v. Smith, 672. 
 Coulthard v. Consett Iron Co., 702. 
 Counties Conservative Society, re, 
 
 910. 
 County Gloucester Bank v. Rurdy 
 
 Merthyr, 777. 
 County of Hastings v. Ponton, 56. 
 County Theatres v. Knowles, 174. 
 Coupland v. Hardingham, 630. 
 Coupland v. School Trustees of 
 
 Nottawasaga, 1207. 
 Court v. Walsh, 238. 
 Cousineau v. City of London Fire 
 
 Ins. Co., 904. 
 Coventry v. Annable, 508. 
 Coventry v. McLean, 721. 
 Cowan v. Allen, 389, 414. 
 Cowardlne v. Cowardlne, 706. 
 CowasjSe v. Thompson, 591. 
 Cowley v. Newcastle, 1. 
 Cox v. Adams, 680. 
 Cox v. Great Western Ry., 626, 650, 
 
 912, 950. 
 Cox v. Harper, 729. 
 Cox v. Hoare, 320. 
 Cox & Neve, re, 444. 
 Coxhead v. Mullis, 323. 
 Corworth & Henshall, re, 996, 997, 
 
 1007, 1012, 1015, 1018. 
 Coy v. Arndt, re, 149, 160. 
 Coyne v. Broddy, 252. 
 Coyne v. Lee, 579, 580. 
 Cozens, re, Green v. Brisley, 324. 
 Crabbe v. Little, 447. 
 Crabtree v. Griffith, 774. 
 Cradock v. Piper, 760. 
 Craig, re, 440. 
 Craig v. Cromwell, 607. 
 Craig & Leslie, re, 515. 
 Craig v. Malahide, 1042, 1196. 
 Craig v. McKay, 485, 542. 
 Craig v. Rankin, 1214. 
 Craig v. Templeton, 58. 
 Crain v. Ottawa Col. Inst., 3. 
 Cramp Steel Co., re, 840. 
 Crandell v. Mooney, 528. 
 Crane v. Hunt, 1169. 
 Crawford, re, 434. 
 
 Crawford v. Bank of Commerce,. 
 
 881. 
 Crawford v. Boyd, 406. 
 Crawford v. Brigg, 372, 373, 374. 
 Crawford v. Broddy, 103. 
 Crawford v. Ellice, 1129. 
 Crawford v. G. W. Ry., 957. 
 Crawford v. McGee, 541, 553. 
 Crawford v. Seney, 119. 
 Crawford v. Tilden, 600, 914. 
 Credit Valley Ry. v. Great Western 
 
 Ry., 942. 
 Credit Valley Ry Co. and Spragge, 
 
 re, 928. 
 Crevar, re, 360. 
 
 Crevar v. C. P. R., 610 612, 616, 617. 
 Creive-Bond v. Cape Breton, 425. 
 Cribbin and Toronto, 1139. 
 Cribbs v. Kynoch, 644, 645, 1188. 
 Criohton, re, 735, 762, 763. 
 Crickitt v. Crickitt, 684, 691. 
 Crippen, re,. 136. 
 Crippen v. Hitchner, 318. 
 Crocker v, Sowden, 695. 
 Croft v. Peterborough, 1005, 1013, 
 
 1065, 1172. 
 Crombie v. Overholtaer, 1178. 
 Crombie v. Voung, 332, 577. 
 Crone v. Crone, 232. 
 Cronkhite v. Imperial Bank, 370, 
 
 374. 
 Cronyn, re, 360. 
 
 Crookhaven Mining Co., re, 856. 
 Crooks v. Crooks, 251, 255. 
 Crooks v. Cummings, 407. 
 Crooks v. Ellice, 1134. 
 Croome, re, 1157, 1158. 
 Crosby v. Ball, 885, 893. 
 Crosby v. Leng, 698. 
 Croshaw v. Lyndhurst Ship Co., 
 
 843. 
 Croskerry, re, 192. 
 Cross, re, 35, 41. 
 Cross v. Law, 802. 
 Crossett v. Haycock, 693. 
 Crossley v. Lee, 590. 
 Crosson v. Bigley, 1178. 
 Crouch v. Credit Foncier, 592. 
 Crouch v. Pere Marquette, 942. 
 Crowe v. Adams, 681, 685. 
 
TABLE OF CASES. 
 
 xliii 
 
 Crowe v. Graham, 117, 143, 144, 
 
 153, 157, 159. 
 Crown Art Stained Glass v. Cooper, 
 
 605, 619. 
 Crown Bank, re, 783. 
 Crowther v. Cawthra, 399. 
 Crozier v. Tabb, 375. 
 Crumpe v. Crumpe, 414. 
 Crunden & Meux, re, 386. 
 Cuddabee v. Mara, 1202, 1204, 1205. 
 Cudder v. Rutter, 94. 
 Cudney v. Gives, 1178. 
 Cudova Union Gold Co., re, 844. 
 Cuenod v. Leslie, 690. 
 Cuffe, re, Fooks v. Cuffe, 391. 
 Culbertson v. MoCullough, 362. 
 Cull v. Roberts, 586. 
 Cullen v. Attorney-General, 49. 
 Cullerton v. Miller, 772. 
 Cullerton v. Logan, 1130. 
 Culloden v. McDowell, 269. 
 Cully v. Doe d. Taylerson, 230. 
 Cuming v. Brooklyn City Ry., 658, 
 
 665. 
 Cumming v. Landed Banking, 129, 
 
 134, 427. 
 Cummings, re, 447. 
 Cummings v. Carleton, 1033, 1054, 
 
 1056. 
 Cummings v. Dundas, 1063. 
 Cummings v. Harris, 774. 
 Cummings v. McDonald, 335. 
 Cummings v. Morgan, 569, 570. 
 Cummings v. Vancouver, 1057. 
 Cummins v. Moore, 297, 625. 
 Cunningham, re, 591. 
 Cunningham v. Can. Home Circles, 
 
 885. 
 Cunningham v. Cunningham, 128, 
 
 136. 
 Cunningham v. Foote, 249. 
 Cunningham v. Frayling, 419. 
 Cunnington v. Cunnington, 128, 
 
 138. 
 Curlette v. Vermilyea, 120, 123. 
 Currah v. Ray, 245. 
 Curran v. G. T. R., 642, 649, 652, 
 
 656, 705, 914, 936, 951, 976. 
 Curran re, James, 419. 
 Currie v. Currle, 239". 
 
 Currie v. Star Publishing Co., 199, 
 
 202. 
 Currie & Watson, re, 207. 
 Currier v. Friedrick, 61J, 615. 
 Curry, ex p., 291. 
 Curry, re, 176. 
 Curry, In re, 264. 
 Curry v. Curry, 264. 
 Curry v. MacLaren, 740, 758. 
 Curry v. Pennock, 373, 721. 
 Curtis v. B. U. R. T. Co., 319. 
 Curtis v. G. T. R., 948. 
 Curtis v. M. C. R. R., 649, 559. 
 Cushen v. Hamilton, 1049. 
 Cuthbert v. North American Life, 
 
 734. 
 Cutten v. Mitchell, 624. 
 Cutter v. Powell, 624. 
 Cycle Makers' Co-operative Supply 
 
 v. Sims, 847. 
 
 Dagenais v. Trenton, 1203. 
 Dagg v. McLaughlin, 634, 636. 
 Dahl v. St. Pierre, 95. 
 Daigle v. Temiscouata Ry., 969. 
 " Daily Telegraph " v. McLaughlin, 
 
 88. 
 Daldry v. Toronto Ry„ 973. 
 Dale, re, 105. 
 Dale & Blanchard, re, 10, 13, 998, 
 
 1013, 1107, 1108. 
 Dale v. Coal, 299. 
 Dale v. Hamilton, 316. 
 Dalglish v. McCarthy, 335. 
 Dallantonio v. McCormick, 646, 651, 
 Dalton v. Angus, 244. 
 Dalton v. Ashfleld, 1203, 1204. 
 Dalton v. Fitzgerald, 224. 
 Dalton v. South Eastern Ry., 701. 
 Dalton v. Time Lock, 780. 
 Dalton v. Toronto, 1135. 
 Daly, re, 139, 403. 
 Daly v. Buffalo, etc., Ry., 927. 
 Daly v. Robinson, 265. 
 Daly v. Webb, 1184. 
 Dame v. .Slater, 676. 
 Damper v. Bassett, 246. 
 Dana v. McLean, 542, 544. 
 Danaker v. Little, 120. 
 Danard v. Moore, 204. 
 
xliv 
 
 TABLE OF CASES. 
 
 Dancer v. Crabb, 407. 
 Dancey and A. O. U. W., re, 874. 
 Dancey v. G. T. R., 948. 
 Danger v. London St. Ry., 964. 
 Daniel v. Daniel, 583. 
 Daniels, re, 883, 884. ' 
 D'Aoust v. Bissett, 647. 
 D*Arcy v. Tamar, 841. 
 Dark v. Hepburn, 771. 
 Darke v. Canadian General Elec- 
 tric, 627, 646, 647, 650. 
 Darland v. Chadsey, 334. 
 Darley v. Tennant, 211. 
 Darling v. Hitchcock, 1. 
 Darling v. McLean, 532. 
 Darnar v. Busby, 282. 
 Darling v. Midland Ry., 912. 
 Darlington v. Roscoe & Sons, 425. 
 Darragh, g. t. v. Paterson, 291. 
 Darrant v. C. P. R., 934. 
 Dart v. Toronto Ry., 964. 
 Dartnell, In re, 310. 
 DAvignon v. Bomerito, 544. 
 Davenport v. R., 65. 
 Davey v. Foley Reiger, 245, 247. 
 David v. Britannic Merthyr Coal 
 
 Co., 642, 975, 1189. 
 Davids v. Newell, 247. 
 Davidson, re, 328. 
 Davidson v. Fraser, 546. 
 Davidson v. Garrett, 308. 
 Davidson v. Grange, 812. 
 Davidson v. Head, 151, 153. 
 Davidson v. Hill, 699. 
 Davidson v. MtoOlelland, 146, 682, 
 
 683. 
 Davidson v. McKay, 486. 
 Davidson v. Merriton Wood Co., 97, 
 
 554, 704. 
 Davidson v. Peters Coal Co., 633, 
 
 636. 
 Davidson v. Ross, 3. 
 Davidson v. Stuart, 637, 654. 
 Davidson v. Taylor, 157. 
 Davidson v. Waterloo Mutual, 899, 
 
 900. 
 Davies, re, Bills v. Roberts, 249. 
 Davies v. Badger Mines, 643, 649. 
 Davies v. Canadian Casualty, 905. 
 Davies v. Gas, Light & Coke' Co., 
 
 832. 
 
 Davies v. Gillard, 538. 
 
 Davies v. James Bay, 78, 928, 929. 
 
 Davies v. Jenkins, 580. 
 
 Davies, re McNichol's Case, 829. 
 
 Davies v. Sovereign Bank, 1003. 
 
 Davies Trusts, re, 413. 
 
 Davies v. Williams, 204. 
 
 Davis, Ex parte, 853. 
 
 Davis, re, 136, 329, 388, 494, 709, . 
 
 711, 1193. 
 Davis & Beamsville, re, 1021. 
 Davis v. Bowes, 596. 
 Davis v. Bro. Locomotive Engi- 
 neers, 882. 
 Davis v. Crown Point, 600, 601, 602. 
 Davis v. Cunningham. 
 Davis v. Davis, 715. 
 Davis v. Great Western Ry., 948. 
 Davis v. Henderson, 215. 
 Davis v. Hutchings, 424. 
 Davis to Jones and Evans, 427. 
 Davis v. Mann, 976. 
 Davis v. McCaffrey, 711, 714. 
 Davis v. Norton, 910. 
 Davis v. Ottawa Electric Ry., 948, 
 959, 977. 
 
 Davis v. Pitchers, 369, 376. 
 
 Davis v. Starr, 174. 
 
 Davis and Toronto, re, 1019. 
 
 Davis v. Town Properties, 376, 719. 
 
 Davis v. Treharne, 244.' 
 
 Davis v. Walker, 263. 
 
 Davis v. Williams, 1198. 
 
 Davis v. Winn, 103, 463. 
 
 Davys v. Buswell, 315. 
 
 Dawdy v. Hamilton, etc., Ry., 972, 
 974. 
 
 Dawkins v. Penshyn, 361. 
 
 Dawson v. Great Northern, 351. 
 
 Dawson v. Moffat, 677. 
 
 Dawson v. Niagara, etc., Ry., 657, 
 660, 699, 703, 704. 
 
 Dawson v. Sault Ste. Marie, 1116, 
 1221. 
 
 Day v. Crown Grain Co., '613. 
 
 Day v. Singleton, 441. 
 
 Deacon v. Chadwick. 105. 
 
 Deacon v. Driffil, 562. 
 
 Deacon v. Kemp Manure Spreader, 
 851, 855. 
 
 Dean v. Green, 4. 
 
TABLE OF CASES. 
 
 xlv 
 
 Deane v. Clayton, 1205. 
 
 Dearberg v. Letchford, 339. 
 
 De Beauvoir v. Owen, 211. 
 
 De Beers v. Howe,' 795. 
 
 De Beers v. Joint, etc., Co., 584. 
 
 Decue v. Wabash Ry., 953. 
 
 Dedford v. Boulton, 233. 
 
 Dedrich v. Anderson, 568. 
 
 Dedrick y. Ashdown, 589. 
 
 Deedes v. Wallace, 57, 59. 
 
 Deel§y v. Canadian Westinghouse, 
 
 1190. 
 Defoe, re, 223. 
 
 De Forrest v. Bunnill, 573, 574. 
 Defries v. Milne, 371. 
 De' Haynin, re, 421. 
 Delahanty v. M. C. R. B., 697, 945, 
 
 S48, 959. 
 De la Haye v. Gore of Toronto, 
 
 1214. 
 Delamatter v. Brown, 183, 371, 374, 
 
 1201. 
 Delaney v. C. P. R., 215, 217, 224, 
 
 231, 234, 235, 9-24. 
 Delany, re, 330. 
 Delap v. Robinson, 100. 
 Delaronde v. Ottawa Police, 864. 
 Delesdernier v. Burton, 148, B58, 
 
 664, 665. 
 Delves v. Gray, 95. 
 Delyea v. White Pine Lumber Co., 
 
 703. 
 Demers v. Nova Scotia Silvpr, 627, 
 
 646. . 
 Demorest v. Grand Junction Ry., 
 
 930. 
 Dendy v. Evans, 720: 
 Denham & Co., In re, 813. 
 De Nicols, re, De Nicols v. Curlier, 
 
 316. 
 Denison, re, 35, 206, 207, 208. 
 Denison v. Cunningham, 1198. 
 Denison v. Denison, 436. 
 Denison v. Leslie, 916. 
 Denison v. Maitland, 375, 721. 
 Denison & Wright, re, 985, 1172. 
 Denmark v. McConaghy, 56. 
 Denney v. Conklin, 350. 
 Dennie, re, 365. 
 Dennis v. Hoover, 733. 
 Dennison v. C P. R., 958. 
 
 Denny v. Bennett, 300. 
 
 Denny v. Standard Export Lumber 
 
 Co., 175. 
 Denton, re, 411, 416. 
 Derby and South Piantaganet, re, 
 
 1183. 
 Derinzy v. Ottawa, 1132. 
 De Rosaz v.. Anglo-Italian Bank, 
 
 849. 
 Derry v. Peek, 332, 822. 
 Deslongchamps v. Montreal St. Ry., 
 
 952, 973. . 
 D'Este, re, Poulter v. D'Este, 404, 
 
 412. 
 De Struver v. McGuire, 1170. 
 Detwiller, re, 395. 
 Deyereaux v. Kearns, 364. 
 De Verges v, Sanderman, 802. 
 Deverill v. Coe, 1114, 1117. 
 Devlin v. G. T. R., 957. 
 Devy v. Earl of Winchelsea, 531. 
 Dew v. Clark, 184, 402. 
 Dewar & Dundas, re, 732. . 
 Dewar and East Williams, 1007, 
 
 1117, 1174. 
 Dewar v. Goodman, 336, 718, 719. 
 Dewar v. Mintoff, 319. 
 Dewey v. Hamilton & Dundas Ry., 
 
 701, 977. 
 Dewhurst's Trusts, re, 183. 
 Dey v. McGill, re, 146. 
 Deyo. v. Kingston & Pembroke Ry., 
 
 648; .652, 697, 940, 954. 
 Diamond v. Waldron, re, 149. 
 Dibb v. .Walker, 224, 240. 
 Dicarllo V. McLean, 650. 
 Dick v. . iStandard Underground 
 
 Cable Co., 619. 
 Dickenson v. Barrow, 317. 
 Dickerson v. Radcliffe, 111. 
 Dicks, re, 879. 
 Dicks v. Sun Life, 883. 
 Dickson v re, 449, 708, 715; 
 Dickson & Graham, re, 732, 733, 814. 
 Diehl & Carrett re, 848. 
 Diesker v. Hess, 658. 
 Digby v. Thomson, 198. 
 Diller, re, 434. 
 Dilke'v. Douglas, 357. 
 Dillon & Cardinal, re, 996, 997, 1007, 
 
 1174. 
 
xlvi 
 
 TABLE OF CASES. 
 
 Dillon v. Mutual Reserve, 874. 
 
 Dilts v. Warden, 670. 
 
 Dingle v. ©oppin, 231. 
 
 Dingle v. Robertson, 199. 
 
 Dingman v. Austin, 685. 
 
 Dingman & Hall, re, 441. 
 
 Dini v. Fauquier, 130. 
 
 Dinner v. Humberstone, 523. 
 
 Dlnnick & MoCallum, re, 105, 1046. 
 
 Discoverers' Finance Co., re, 798. 
 
 Ditcham v. Worrall, 323. 
 
 Dive, re, Dive v. Roebuck, 423, 424. 
 
 DTvry v. The World, 262. 
 
 Dixon, Ex parte, 591. 
 
 Dixon v. Dalby, 774. 
 
 Dixon v. Dunmore, 95. 
 
 Dixon v. Georgas Bros., 313, 598. 
 
 Dixon v. Pritohard, 822. 
 
 Dixon v. .Smetslnger, 69. 
 
 Dixon v. Solicitor, 407. 
 
 Dobbyn v. Dicow, 657. 
 
 Dobner v. Hodgins, 120. 
 
 Dobson v. Sootheran, 732. 
 
 Dodge v. Smith, 220, 229, 254. 
 
 Dodge v. York Fire, 897. 
 
 Dodds v. A. O. U. W., 879, 883. 
 
 Dodds v. Consumers' Gas, 635. 
 
 Dods, re, 409. 
 
 Dodson v. G. T. R., 947. 
 
 Doe, re, 303. 
 
 Doe d. Anderson v. Todd, 329. 
 
 Doe d. Ausman v. Minthorne, 228. 
 
 Doe d. Baldwin v. Stone, 217. 
 
 Doe d. Bradt v. Hodgins, 695. 
 
 Doe d. Carter v. Barnard, 229, 230. 
 
 Doe d. Creen v. Friesman, 58. 
 
 Doe. d. Cronk v. Smith, 481. 
 
 Doe d. Crookshank v. Humberstone, 
 
 475. 
 Doe d. Dawn v. Horn, 230. 
 Doe d. Devine v. Wilson, 61. 
 Doe d. Eberts v. Wilson, 494. 
 Doe d. Ellis v. McGill, 426. 
 Doe d. Fitzgerald v. Finn, 211. 
 Doe d. Gallagher v. McConnel, 348. 
 Doe d. Hagerman v. Strong, 133. 
 Doe d. Haldane v. Harvey, 230. 
 Doe d. Hare v. Potts, 348. 
 Doe d. Henderson v. Seymour, 58. 
 Doe d. Hughes v. Dyebalt, 229. 
 Doe d. Kingston v. Rainford, 486. 
 
 Doe d. MajoF v, Reynolds, 481. 
 
 Doe d. Matlock v. Disher, 485. 
 
 Doe d. McDonnell v. Ratray, 215. 
 
 Doe d. Menle v. Campbell, 348. 
 
 Doe d. Methodist Episcopal Trus- 
 tees v. Brass, 1229. 
 
 Doe d. Perry v. Henderson, 215, 228. 
 
 Doe d. Phillpott v. Blanchfleld, 578. 
 
 Doe d. Prince v. Girty, 481. 
 
 Doe d. Rigge v. Bell, 315, 317. 
 
 Doe d. Russell v. Hodgkiss, 481. 
 
 Doe d. Sheppard v. Bayley, 219. 
 
 Doe d. Smith v. Leavens, 216. 
 
 Doe d. Spafford v. Breckenridge, 
 337. 
 
 Doe d. Thompson v. McKenzie, 45. 
 
 Doherty v. Macdonell, 1190. 
 
 Doidge v. Royal Templars, 782, 864, 
 866. 
 
 Dolan v. Macdermot, 328. 
 
 Doleman v. Ossett, 174. 
 
 Dolsen, re, 362, 475, 924, 925. 
 
 Dolson v. C. P. R., 938. 
 
 Dominion Bank v. Cowan, 537. 
 
 Dominion Bank v. Salmon, 569. 
 
 Dominion Bank v. Wiggins, 588. 
 
 Dominion Carriage Co. v. Wilson, 
 588, 593. 
 
 Dominion Coal v. Day, 654. 
 
 Dominion Express Co. v. Alliston, 
 105, 1102. 
 
 Dominion Express v. Niagara, 1102, 
 1103. 
 
 Dom. Imp. Co. v. Lally, 220. 
 
 Dominion Linen Mfg. Co. v. Lang- 
 ley, 846. 
 
 Dominion Provident, re, 906. 
 
 Dominion S. and I. Soc. v. Kit- 
 tridge, 489. 
 
 Donagh v. Longworth, 292. 
 
 Donahue v, Campbell, 1112. 
 
 Donaldson v. Dereham, 1032. 
 
 Donaldson" v. Wherry, 124. 
 
 Donelly v. Ames, 221, 229, 230. 
 
 Donelly v. Hall, 579. 
 
 Doner v. Ross, 432. 
 
 Donkin v. Pearson, 122. 
 
 Donly v. Holmwood, 2, 8. 
 
 Donnelly, In re, 512. 
 
 Donovan v. Bacon, 273. 
 
 Donovan v, Herbert, 226. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Donovan v. Hogan, 1111, 1119. 
 Doolittle t. Electrical Maintenance 
 
 Co., 149, 
 Doolittle v. Orillia, 525. 
 Dorland v. Jones, 1229. 
 Dorsey v. Dorsey, 135, 398. 
 Dorst v. Toronto, 1041. 
 Doucet v. Shawinigan Carbide, 641. 
 Doughty v. Firbank, 650. 
 Doughty v. Lonagunda Reefs, 786, 
 Douglas, re, 329. 
 
 Douglas v. Chamberlain, 603, 610. 
 Douglas v. Fox, 1152. 
 Douglas v. Hitch, 602. 
 Douglas v. Hutchinson, 274, 682. 
 Doulle v. Doelle, 281, 682, 683, 686, 
 
 887. 
 Doull v. Kapman, 555. 
 Dovaston v. Payne, 1197. 
 Dove v. Dove, 1110. 
 Dover and Chatham, re, 936, 1128. 
 Dover Coalfield Extension, re, 812, 
 
 816. 
 Dover t. Denne, 424. 
 Dovey v. Cory, 809. 
 Dowd, re, 344. 
 Dowd v. Hawten, 129. 
 Dowker v. Canada Life, 875. 
 Dowler v. Duffy, re, 158. 
 Dowling v. Pontypool, etc., Ry., 921. 
 Doyle v. Diamond Flint Glass Co,, 
 
 130, 636, 058, 699, 703, 704. 
 Doyle v. Lasher, 569. 
 Doyle ▼. Nagle, 412. 
 Drainville t. C. P. R., 958. 
 Drake v. Preston, 292, 297. 
 Drake v. Sault Ste. Marie, 526, 528, 
 
 920. 
 Drake v. Wigle, 345. 
 Drax, re, Saville v. Drax, 239. 
 Drennan v. Kingston, 1063, 1064. 
 Dresell v. Ellis, 684. 
 Drew v. Rexford, 1170. 
 Drewitt v. Hamilton, etc., Ry., 974. 
 Drewry v. Percfrval, 104. 
 Drinkwater ft Kerr, ve, 111, 360, 
 
 742. 
 Drulard v. Welsh, 60. 
 Drummond & Davies, re, 361, 363. 
 Duane & Finch, re, 1122. 
 Dublin ▼. Trumbleston, 211. 
 
 Duck v. Tower Galvanising Co., 
 
 805. 
 Duckwart v. Johnson, 701. 
 Duder v. Amsterdamsch Kantoor, 
 
 92. 
 Dudes v. Graham, 410. 
 Dudson, re, 362. 
 Duff v. Barrett, 532. 
 Duff v. Canadian Mutual, 868. 
 Dufferin, re r 37. 
 Dufferin v. Wellington, 1056. 
 Dufton v. Horning, 603, 610. 
 Duke of Bedford v. Trustees Bri- 
 tish Museum, 100. 
 Duke of Buccleugh v. Wakefield, 
 
 943. 
 Duke v. Great Western Ry., 948. 
 Duke v. Ulrey, 842. 
 Dumble v. Johnson, 494. 
 Dumphy v. Martineau, 637. 
 Dumphy v. Montreal, L. H. & P. 
 
 Co., 637, 961, 962. 
 Duncan, re, Terry v. Sweeting, 426. 
 Duncan, Fox & Co. v. N. & S. Wales 
 
 Bank, 530. 
 Duncan and Midland, re, 991, 992, 
 996, 998, 1012, 1013, 1015, 1017, 
 1018, 1038, 1172, 1173, 1174. 
 Duncan v. Rogers, 243, 244. 
 Duncombe, re, 872, 873, 887. 
 Dundas v. Hamilton Cataract Co., 
 
 920, 921. 
 Dundas, 27, 28. 
 Dundas St. Bridges, re, 1075, 1076,. 
 
 1108, 1124. 
 Dunderland Iron Ore Co., re, 808. 
 Dunham, re, 228, 447. 
 Dunham v. Clare, 696. 
 Dunlop, re, 1162. 
 
 Dunlop v. Canada Central Ry., 924. 
 Dunlop v. Canada Foundry, 643, 
 
 649, 650. 
 Dunlop & Druro, re, 1214. 
 Dunlop v. Usborne and Hibbert 
 
 Farmers Mutual, 898. 
 Dunn v. B. of E. for Toronto, 1221, 
 
 1222. 
 Dunn v. Dowling, 366. 
 Dunn v. McCallum, 611, 612, 617. 
 Dunn v. Windsor, 1216. 
 Dunne v. Byrne, 328. 
 
xlviii 
 
 TABLE OF OASES. 
 
 Dunne v. O'Reilly, 737. 
 
 Dunsford v. Michigan Central, 938. 
 
 Dunsmoor v. National Portland Ce- 
 ment, 951. 
 
 Dupont v. Quebec, 643. 
 
 Durand v. Asbestos and Asbestic, 
 636, 643. 
 
 Durand v. Kingston, 458. 
 
 Durant v. C. P. R., 649, 650, 934. 
 
 Durham v. Roberts, 349. 
 
 Dustan v. Imperial Gas Co., 815. 
 
 Duthie v. G. T. R., 955. 
 
 Duval v. O'Beirne, 198,. 261. 
 
 Dwyer and Port Arthur, re, 1040, 
 1107. 
 
 Dwyre v. Ottawa, 100, 1006. 
 
 Dyer. & Evans, re, 156, §60. 
 
 Dyment, re, 57. 
 
 Dyment v. Dyment, 108. 
 
 Dynes y. B. C. Electric, 949. 
 
 E. v. P., 205. 
 
 Eacrett v. Kent, 724, 725. 
 
 Eadie Douglas v. Hitch, 601, 615. 
 
 Eagle v. Meade, 627. 
 
 Eagles, re, 195. 
 
 Eaglesfield v. Londonderry, 810. 
 
 Earl, re, 878. 
 
 Earl of Devon's .Settled Estate, re, 
 
 224, 225. 
 Earl Sefton, re, 93, 188. 
 Earl de la Warr v. Miles, 242. 
 Earle v. Burland, 89,. 104, 816, 817, 
 
 915. 
 Earle v. Kingscote, 675, 681, 689, 
 
 690. 
 East Durham, 19. 
 East Elgin, 28, 30, 33, 42. 
 Fast Gwillimbury v. King, 1005, 
 
 1056. 
 East Hastings, 20. 
 East Indian Ry. v. Kalidas Muker- 
 
 jee, 945, 950. 
 East London, 27. 
 East Middlesex,; 16, 27, 28, 33, 39, 
 
 41. 
 East Northumberland, 31, 33. 
 East v. O'Connor, 1155, 1157, 1158. 
 East Presbyterian Church and Mc- 
 Kay, re, 1230. 
 East Simcoe, 16, 18, 29, 33, 994. 
 
 East Stonehouse v. Willoughby, 
 
 216, 224. 
 East Toronto, 26, 28, 33, 35, 42. 
 Eastern Construction Co. v. Nation- 
 al Trusts, 68. 
 Eastern Telegraph Co. v. Dent, 101, 
 
 372, 721. 
 Eastern Trust v. Boston Riofeard 
 
 son, 623. 
 Easton v. Isted, 245. 
 Eastwood, re, 365. 
 Eaton, re, 440, 888, 889. 
 Eaton v. Sangster, 697. 
 Eaves v. Nesbitt, 298, 300. 
 Eby v. McTavish, 588. 
 Eby Blain v. Montreal Packing Co., 
 
 350. 
 Eccles v. Mills, 718. 
 Eccles v. Paterson, 229." 
 Ecclesiastical Commissioners v. 
 
 North Eastern Ry., 241. 
 Eckersley v. The Mersey Docks, 
 
 178. 
 Eckhardt v. Lancashire Ins. Co., 
 
 905. 
 Eckhardt v. London Ins. Co., 904. 
 Eckroyd v. Radgers, 320. 
 Economical Mutual v. Berlin, 1103. 
 Eddy v. Ottawa City Passenger 
 
 Ry., 963. ' - 
 
 Ede v. Canada Foundry Co., 109. 
 Edelstein v. Schuler, 592. 
 Edger v. Furnivall, 417. 
 Edgerley and Hotrum, re, 443. 
 Edinburgh Life v. Bamhart, 368. 
 Edinburgh Street Tramway v. 
 
 Edinburgh, 963. 
 Edison G. E. Co. v. "Westminster 
 
 Tr. Co., 535. 
 Edmonds: v. Hamilton Provident, 
 
 358, 378. 
 Edmonton Mortgage Co. v. Gross, 
 
 359. 
 Edmunds v. Edmunds, 333. 
 Edmunds v. Tiernan, 615. 
 Edmunds v. Waugh, 231. 
 Edwards, re, 873, 886, 891. 
 Edwards v. Edwards, 414, 571, 577. 
 Edwards v. Pharmaceutical Society, 
 
 768. 
 Edwards v. Plcard,' 101, 270. 
 
TABLE OF OASES. 
 
 xlix 
 
 Egan v. Saltfleet, 1064. 
 
 Egerton v. Moore, 662. 
 
 Eggleston v. C. P. R., 969. 
 
 Eke v. Hart Dyke, 661. 
 
 Electric and Magnetic Co., re, 850. 
 
 Elgie v. Butt, 279. 
 
 Elgle v. Edgar, 349. 
 
 Elgin Loan v. London Guarantee, 
 
 870, 871, 910. 
 Elgin Loan v. National Trust, 424, 
 
 425. 
 Elgin Loan v. Orchard, 536. 
 Ellas v. Dunlop, 1158. 
 Elizabeth Jones, re, 135. 
 Elizabethtown v. Augusta, 1057, 
 
 1123, 1127, 1130. 
 Elmsley v. Harrison, 758. 
 Elmsley v. Madden, 329. 
 Ellen v. Topp, 665. 
 Elliott v. Brown, 694. 
 Elliott v. Hamilton, 558. 
 Elliott v. Queen City Assurance 
 
 Co., 264. 
 Elliott v. St. Catharines, 1019, 
 
 1073. 
 Ellis v. Siemens, 243. 
 Ellis v. Ellis, 259, 565, 628. 
 Ellis v. Glover, 377, 590. 
 Ellis and Pembroke, re, 993. 
 Ellis and Renfrew, re, 10, 13, 993, 
 
 996, 998, 1014, 1174, 1175. 
 Elliott v. Roberts, 257, 319. 
 Ellis v. Toronto Junction, 293, 294. 
 Ellis v. White, 343, 376. 
 Elwes v. Hopkins, 1146. 
 Emanuel v. Symon, 278. 
 Embree v. McCurdy, 91, 104. 
 Embury v. West, 575. 
 Emerson v. Bannerman, 574. 
 Emery, George D., Co. v. Wells, 88. 
 Ernes v. Ernes, 251, 253, 402. 
 Emmerson v. Maddison, 211. 
 Emmett v. Quinn, 371, 374. 
 Emmons v. Dymond, 122, 123. 
 Emperor of Russia v. Proskouria- 
 
 koff, 278. 
 Empey v. Carscallen, 170. 
 Empey v. Fick, 392. 
 Empire Accident Co., re, 803. 
 
 Empire Cream Separator v. Petty- 
 piece, 123. 
 Emuss v. Smith, 410. 
 Engel v. South Metropolitan Brew- 
 ery, 853. 
 Engeland v. Mitchell, 625. 
 England, re, 239. 
 England v. Webb, 857. 
 English and Colonial Produce Co., 
 
 re, 779, 823, 830, 831. 
 English & Mulholland, re, 119. 
 Enrick v. Yarmouth, 1150. 
 Ensch £ Zaretzky, re, 178. 
 Entner v. Benneweis, 204. 
 Equity Fire Ins. Co. v. Weston, 
 
 1073. 
 Equitable Fire v. The Ching Wo 
 
 Hong, 899. 
 Equitable Savings Loan, re, 855, 
 
 856. 
 Erb, re Aaron, 26, 553, 564, 566. 
 Erb v. Dresden P. S. Board, 1212, 
 
 1216. 
 Erdman v. Walkerton, 699, 1067. 
 Ericsson v. Elk Lake, 589. 
 Erie & Niagara Ry. Co. v. Rousseau, 
 
 214. 
 Erlanger v. New Sombrero Pos- 
 
 phate Co., 778. 
 Erly, re, 724. 
 Ernest v. Loma Gold Mines, 794, 
 
 795. 
 Errikkila v. McGovern, 1116, 1117, 
 
 1118, 1119. 
 Errington v. Court Douglas, re, 
 
 147. 
 Escalera Silver Lead Mining Co., 
 
 re, 808. 
 Espuela Land & Cattle Co., 843. 
 Essery v. Bell, 245, 343, 983, 1116, 
 
 1117. 
 Essery v. G. T. R., 925, 932, 967. 
 Essex Centre, re, 854. 
 Essex Terminal v. Windsor, Essex 
 
 and Lake Shore, 921. 
 Estates, Limited, re, 851, 852. 
 Ethel and Mitchell and Buller's 
 
 Contract, In re, 339. 
 Etherington, re, 882. 
 
 s.a. — D. 
 
1 
 
 TABLE OF CASES. 
 
 Euclid Ave. Trusts v. Hohs, 330, 
 680, 857, 861, 910. 
 
 Eustace, re, 433. 
 
 Evans, re, 134. 
 
 Evans, re, Evans v. Powell, 410. 
 
 Evans v. Chandler, 146. 
 
 Evans v. Hoare, 32Q. 
 
 Evans v. Levy, 373. 
 
 Evans v. Liverpool, 1042, 1083. 
 
 Evans v. Martiett, 591. 
 
 Evans v. Railway Passenger Assur- 
 ance Co., 882. 
 
 Evans v. Rival Granite Quarries, 
 584. 
 
 Evans v. Roberts, 570. 
 
 Evans v. Skelton, 374. 
 
 Everitt v. Raleigh, 1059. 
 
 Everly v. Dunkly, 122;. 
 
 Ewbank v. Halliwell, 406. 
 
 Ewing v. Dominion Bank, 88. 
 
 Ewing v. Hewitt, 1058. 
 
 Ewing v, Toronto, 1058. 
 
 Ewing v. Toronto Ry., 964. 
 
 Eyera v. Rhora, 131. 
 
 Eyre v. Countess of Salisbury, 713. 
 
 Eyre and Leicester Corporation, 
 175. 
 
 Eyre v. Saunders, 208. 
 
 Excelsior Life v. Employers' Lia- 
 bility, 175. 
 
 Exchange Bank of Canada v. R., 11. 
 App. Cas., 157, 561. 
 
 E^ohange Trust, re, 800, 801. 
 
 P. v. F., 714, 715. 
 
 Fahey v. Jephcott, 634, 640, 1187, 
 1189. 
 
 Fairbairn v. Sandwich South, 1122, 
 1131. 
 
 Fairbanks v. Saunders, 349. 
 
 Fairbanks v. Yarmouth, 942, 1060, 
 1063. 
 
 Fairclough v. Smith, 611. 
 
 Fairfield v. Ross, 701. 
 
 Fairgrieve v. O'Mullin, 319. 
 
 Fairhurst v. Liverpool Adelphi, 
 689. 
 
 Fairman v. Montreal, 928. 
 
 Fairweather v. Canadian Gen. Elec- 
 tric, 636, 656, 697. 
 
 Fairweather v. Lloyd, 317. 
 
 Fairweather v. Owen Sound Quar- 
 ry, 646. . 
 
 Falconbridge v. Hamilton, 45. 
 
 Falconer v. Jones, 638, 697. 
 
 Falkener v. Grand Junction, 91§. 
 
 Falkington v. Victorian Ry. Com- 
 missioners, 182. 
 
 Fallis v. Wilson, 334, 1036.. 
 
 Falls v. Bank of Montreal, 185. 
 
 Fanshawe, In re, 562, 741. 
 
 Farah v. Bailey, 60, 61, 95, 511. 
 
 Farah v. Capital Mfg. Co., 814, 830. 
 
 Farah v. Glen Lake Mining Co., 60, 
 61, 62, 95, 96, 106, 509, 510, 511. 
 
 Farewell v. Farewell, 405. 
 
 Farewell v. G. T. R., 947. 
 
 Farewell v. Jamieson, 723. 
 
 Farley, re, 873, 885. 
 
 Farlow v. Stevenson, 370. 
 
 Farmer v. G. T. R., 649, 660, 934, 
 968. 
 
 Farmer v. Livingstone, 6J. 
 
 Fanner and Reid, re, 440, 443. 
 
 Farmers Bank v. Big Cities Realty, 
 127. 
 
 Farmers' Loan, re, 435. 
 
 Farquerson v. Barnard, ete.. Gas 
 Co., 65, 78, 211. 
 
 Farquharson v. Imperial Oil Cq., 
 524, 525, 527. 
 
 Farquharson v. Knight, 66. 
 
 Farquharson v. Newbury Rural Dis- 
 trict Council, 1052. 
 
 Farrel v. Gallagher, 602, 605, 606, 
 607, 609. 
 
 Farrell v. G. T. R., 941. 
 
 Farrell v. Manchester, 826. 
 
 Farrow v. McPherson, 122. 
 
 Faulds, re, 707, 709, 710, 715, 1192, 
 1193. 
 
 Faulds v. Harper, 215, 234, 248. 
 
 Faulkner, re, 187. 
 
 Faulkner v. Greer, 342. 
 
 Faulkner v. Ottawa, 1041. 
 
 Fawcett v. Burwell, 348. 
 
 Fawcett v. C. P. R., 631, 648, 934, 
 954. 
 
 Fawcett v. Fawcett, 781, 864, 893. 
 
 Fawkes v. A. G., 486, 511, 518, 519, 
 520. 
 
 Fawkes v. Griffin, 281, 283. 
 
TABLE OP OASES. 
 
 Fawkes v. Swayzie, 126. 
 
 Fayne v. Langley, 622. 
 
 Fear v. Morgan, 244. 
 
 Fearnside v. Flint, 236. 
 
 Featherstone's Trusts, re, 416. 
 
 Federal Life Assurance Co. v. Hew- 
 itt, 876. 
 
 Federal Life v. Siddajl, 98, 103. 
 
 Federal Life v. Stinson, 560. 
 
 Fee v. Macdonald. 453, 459. 
 
 Felker v. McGuigan Cons. Co., 83. 
 
 Fenelon Falls v. Victoria Ry. Co., 
 771. 
 
 Fenuell v. McGuire, 533. 
 
 Fenny v. Cassom, 375, 721. 
 
 Fenske v. Farbacker, 321. 
 
 Fensom v. C. P. R., 57, 230, 969, 
 970, 1044, 1197. 
 
 Fenton, In re, 310. 
 
 Fenton and Simcpe, re, 984. 
 
 Fenwick, re, 407. 
 
 Fenwick Stobart & Co., In re, 831. 
 
 Fenwick v. Witham, 381, 469. 
 
 Ferass v. McDonald, 484. 
 
 Fergus and Copley, re, 308. 
 
 Ferguson, re, 568. 
 
 Ferguson v. Adams, 298. 
 
 Ferguson v. Anderson, 117. 
 
 Ferguson v. C. P. R., 971. 
 
 Ferguson v. Eyre, 108. 
 
 Ferguson v. Ferguson, 59, 252, 352. 
 
 Ferguson v. Gait School Board, 627, 
 632, 643, 645, 654. 
 
 Ferguson and Hill, re, 277, 359, 383. 
 
 Ferguson y. Kinnoull, 198. 
 
 Ferguson v. Provincial Provident, 
 872. 
 
 Ferguson's "Will, re, 399. 
 
 Ferguson v. Winsor, 499. 
 
 Ferrier v. Moodie, 218. 
 
 Ferris v. C. P. R., 946. 
 
 Ferris v. Chesterfield, 1220. 
 
 Ferris v. Fox, 148, 658, 664, 665. 
 
 Fawings v. G. T. R., 971. 
 
 Fewster v. Raleigh, 1134, 1135. 
 
 Feys v. McPehrson, 684. 
 
 Fichet v. Watson, 282. 
 
 Fidelity Trust Co. v. Buckner, 711, 
 877, 885, 893, 907, 
 
 Field v. Hart, 268, 551, 578, 580. 
 
 Fieldmarshall and Beamsville, 179, 
 
 1033, 1035, 1140. 
 Fields v. Ratherford, 764. 
 Fieldwick, re, Johnson v. Adamson, 
 
 680, 686. 
 Filby v. Hounsell, 320. 
 Filiatrault v. C. P. R., 952. 
 Filion v. R., 643, 646. 
 Finance and Issue v. Canadian Pro- 
 duce, 827. 
 Finch v. Combe, 408. 
 Finch v. Gilray, 215, 216, 222, 228, 
 
 229. 
 Finch v. Northern Navigation Co., 
 
 642. 
 Finch y. Underwood, 372. 
 Findley v. Fire Ins. €*>., of North 
 
 America, 872, 895, 9Q5. 
 Findley v. Hamilton Electric, 961. 
 Fingerhut and Barnick, re, 342. 
 Finlay v. Miscampbbell, 640, 1191. 
 Finlayson v. Mills, 357. 
 Finn v. Gosnell, 122. 
 Finn v. Miller, 604, 613. 
 Finn v. St. Vincent de Paul, 316. 
 First Natchez Bank v. Coleman, 102. 
 Fisken. v. He, 364. 
 Fisken v. McMwUen, 2^3. 
 Fisken v. Marshall, 887, 891. 
 Fisken v. Stewart, 125. 
 Fisher, ex p., 582. 
 Fisher v. Bradsnaw, 544, 581. 
 Fisher v. Fisher, 88,7. 
 Fisher and GrazebroQk, re, 209. 
 Fisher v. International Harvester 
 
 Co., 630, 659. 
 Fisher v. Murphy, 1146, 1147. 
 Fisher v. parry Sound Lumber Co., 
 
 1117, 
 Fitzgerald v. Barbour., 372, 373, 376, 
 
 721. 
 Fitzgerald v. Fitzgerald, 191. 
 Fitzgerald v. Mandas, 1110. 
 Fitzgerald v. Molsons Bank, 1030. 
 Fitzgerald v. Stapleford, 992. 
 Fitzgerald v. Wilson, 4, 1115. 
 Fitzgibbon v. Duggan, 272. 
 Fitzmartin and Newburgh, re, 18, 
 
 15, 998, 1014. 
 Fitzpatrick v. Evans, 626. 
 
lii 
 
 TABLE OF CASES. 
 
 Fitzpatrick v. Fitzpatrick, 188, 713. 
 
 Fitzpatrick and New Liskeard, re, 
 1032, 1034. 
 
 Fitzpatrick v. Wilson, 364, 365. 
 
 Fitzroy, re, 407. 
 
 Fitzroy v. Carleton, 1056. 
 
 Fitzroy v. Cave, 351. 
 
 Fitchett v. Mellow, 121. 
 
 Flaster v. Cooney, 203. 
 
 Flatt and Prescott, re, 984. 
 
 Fleck, re, 418. 
 
 Fleming, re, 185, 435. 
 
 Fleming v. Buchanan, 433. 
 
 Fleming v. C. P. R., 954. 
 
 Fleming v. Edwards, 539. 
 
 Fleming v. McCutcheon, 279. 
 
 Fleming v. Ryan, 561, 583. 
 
 Fleming v. Toronto, 972, 1075. 
 
 Fletcher, re, 385, 393, 394, 396. 
 
 Fletcher v. Baltimore & Potomac, 
 630. 
 
 Fletcher Estates, re, 427. 
 
 Fletcher v. Roblin, 235. 
 
 Fletcher v. Rodden, 238. 
 
 Fletcher v. Rylands, 83, 981. 
 
 Flett v. Way, 120. 
 
 Fleury v. Campbell, 261, 263. 
 
 Flick v. Brisbois, 303. 
 
 Flight v. Reed, 258. 
 
 Flight v. Thomas, 247. 
 
 Flint v. Woodin, 352. 
 
 Florence Mining Co. v. Cobalt Lake, 
 61, 70, 71, 72, 77, 89. 
 
 Flower v. L. & N. W. Ry. 659, 698. 
 
 Floyd v. Lyons, 370. 
 
 Flynn v. Industrial Exhibition, 660. 
 
 Foisy v. Lord, 227. 
 
 Foley v. Barber, 784, 811, 837. 
 
 Foley v. East Flamborough, 1059. 
 
 Foley v. Moran, 152. 
 
 Follett v. Sacco, 152. 
 
 Foott v. Bullock, 45. 
 
 Foran v. Mclntyre, 66. 
 
 Forte's Case, 854. 
 
 Forbes v. Forbes, 124, 126, 132. 
 
 Forbes v. Grimsby P. 8. Board, 
 1020, 1212, 1216, 1227. 
 
 Forbes v. M. C. Ry., re, 152. 
 
 Forbes v. Plympton School Trus- 
 tees, 1216. 
 
 Ford, re, 427. 
 
 Ford, re: Ford v. Ford, 398. 
 
 Ford v. Ager, 234. 
 
 Ford v. Allen, 231, 382. 
 
 Ford v. Gourlay, 657. 
 
 Ford v. Mason, 758. 
 
 Ford v. Metropolitan Ry., 933, 935, 
 
 968. 
 Ford v. Stier, 669. 
 Ford's Hotel v. Bartlett, 174. 
 Foreman v. Berlin and Waterloo 
 
 St. Ry., 965. 
 Foresters v. Regg, 352. 
 Forhan v. Lalonde, 602. 
 Formularo v. Forest City Laundry, 
 
 624. 
 Forrest v. Turnbull, 183, 218. 
 Forrestal v. McDonald, 585. 
 Forster, re, 131. 
 Forster v. Baker, 351. 
 Forster v. Hale, 316. 
 Forsyth v. Canniff, 1182. 
 Forsythe v. C. P. R., 974. 
 Fort Frances Assessment, re, 1107, 
 
 1109. 
 Fortier v. Chenier, 118. 
 Fortin v. Pound, 599. 
 Fortin v. Quebec Railway, Light & 
 
 Power Co., 637. 
 Forwood v. Toronto, 972. 
 Foss v. Harbottle, 794. 
 Foster, re, 365. 
 
 Foster v. Anderson, 95, 322, 444. 
 Foster t. Beall, 484, 491, 695. 
 Foster v. Coles, 807. 
 Foster v. Emmerson, 366. 
 Foster v. Emory, 153. 
 Foster and Great Western Ry, re, 
 
 928, 929. 
 Foster v. Hamilton, re, 1185. 
 Foster and Knapton, re, 241. 
 Foster v. Patterson, 215. 
 Foster and Raleigh, re, 1006, 1050. 
 Foster v. Reeves, 147. 
 Foster v. Reno, 1004, 1005, 1112, 
 
 1113, 1120. 
 Foster v. Rose, 766. 
 Foster v. Stokes, 1215. 
 Foster v. Toronto Railway, 6. 
 Foster v. Van Wormer, 285. 
 Foulger v. Arding, 370. 
 Foulkes, re, 323. 
 
TABLE OF CASES. 
 
 liii 
 
 Fountaine, re, Fountains v. Am- 
 herst, 249. 
 
 Fowler v. Vail, 2. 
 
 Fowlie v. Ocean Accident, 882. 
 
 Fox, ex p., 850. 
 
 Fox, re, Brooks v. Marston, 211. 
 
 Fox v. Cornwall St. Ry., 963. 
 
 Fox v. Williamson, 1196. 
 
 Foxwell v. Kennedy, 54, 129, 137, 
 389. 
 
 Poy v. Society of Notaries of Vic- 
 toria, 761. 
 
 Fralick v. G. T. R., 648, 649, 651, 
 912, 955, 975. 
 
 Fram v. Fram, 364. 
 
 Frampton v. Stephens, 192, 196. 
 
 Franchere v. Central Vermont Ry., 
 957. 
 
 Francis v. Huff, 127. 
 
 Frankel v. G. T. R., 946. 
 
 Frankenburg v. Great Horseless 
 Carriage Co., 826, 827. 
 
 Franklin v. Neate, 572. 
 
 Franklin v. South Eastern Ry., 701. 
 
 Fraser, re, 185, 186, 188, 265, 401. 
 
 Fraser, re; Lowther v. Fraser, 415. 
 
 Fraser v. Bank of Toronto, 579. 
 
 Fraser and Bell, re, 361. 
 
 Fraser v. Diamond, 1051. 
 
 Fraser v. Douglas, 510. 
 
 Fraser v. G. T. R., 953. 
 
 Fraser v. Green, 241. 
 
 Fraser v. Ham, re, 154. 
 
 Fraser v. Heaslip, 316. 
 
 Fraser v. Lazier, 571. 
 
 Fraser t. London St. Ry., 657, 703, 
 
 949. 
 Fraser v. McGibbon, 774, 775. 
 Fraser v. Mutchmoor, 343. 
 Fraser v. Pere Marquette, 944. 
 Fraser v. Robertson, 184, 186. 
 Fraser v. Sutherland, 481. 
 Frawley v. Hamilton Steamboat Co., 
 
 627, 646. 
 Frawley and Orillla, re, 1172, 117C. 
 Fray, v. Fray, 198. 
 Free v. McHugh, 1224. 
 Freed v. Orr, 274. 
 Freeham v Bank of Toronto, 582. 
 Freehold Loan v. Bank of Com- 
 merce, 581. 
 
 Preel v. Royal, 316. 
 
 Freel v. Robinson, 406, 408. 
 
 Freeman v. Canadian Guardian 
 
 Life Ins. Co., 801. 
 Freeman v. Chester, 178. 
 Freeman v. Freeman, 402. 
 French, J. A., Co., Ltd., re, 831. 
 Frere and Staneley, re, 175. 
 Freyer v. Ewart, 722. 
 Fricker's Case, 854. 
 Friel v. Ferguson, 299. 
 Friend, re, 257, 258. 
 Fritch v. Scheck, 60. 
 Frith and Osborne, re, 364. 
 Fritz v. Jelfs, 300. 
 Fritzley v. Germania Mutual, 896, 
 
 897, 871, 902, 905. 
 Frost, re, 135, 352. 
 Frost v. Greatorex, 353. 
 Frost v. McMillen, re, 150. 
 Frost and Wood v. Stoddart, 552. 
 Fruit Growers, re, 956. 
 Fry, re, Fry v. Fry, 418. 
 Fuentes v. Montis, 594. 
 Fulford, re, 434. 
 Fuller v. Anderson, 361. 
 Fuller v. White, 786. 
 Fuller v. White Feather, 848, 849. 
 Fullett v. Armstrong, 671. 
 Fulton v. G. T. R., 948. 
 Fulton and Mclntyre, re, 394. 
 Fulton v. M. C. R. R., 655. 
 Furlong v. Hamilton St. Ry., 964, 
 
 973. 
 Furness v. Mitchell, 672. 
 Fusilier, The, 6. 
 Fynn, In re, 707. 
 
 G., re, 509. 
 
 Gage v. Douglas, 551, 556. 
 Gagnon v. Haileybury, 1045. 
 Gaiser v. Niagara, etc., Ry., 971. 
 Gallagher v. Gallagher, 125, 285. 
 Gallagher v. Lennox, 1059, 1063. 
 Gallagher v. Toronto, 1040. 
 Gallinger v. Toronto Ry., 972, 973. 
 Gait, re, Scott v. Patterson, 1007. 
 Galusha v. G. T. R., 263, 971. 
 Galway, re, 389. 
 Gamble, re, 341, 411. 
 Gamble v. Great Western Ry., 949. 
 
liv 
 
 TABLE OP CASES. 
 
 Garbutt v. Winnipeg, 1142. 
 Gardiner, re, 353. 
 Gardner v. Brown, 192, 193. 
 Gardner v. Hodgson's Kingston 
 
 Brewery, 243. 
 Gardner v. Perry, 251. 
 Gareau v. Montreal St. Ry., 836, 
 
 1142. 
 Garing v. Hunt, 600, 601. 
 Garland v. Clarkson, 565. 
 Garland v. Toronto, 627. 
 Garner, re, 186. 
 Garner v. Grace, 641. 
 Garner v. Wingrove, 220. 
 Garnet* v. Perrand, 307. 
 Garrard v. Lord Lauderdale, 550. 
 Garrett v. Roberts, 114. 
 Garrison, re, 1232. 
 Garside v. King, 60, 460. 
 Garside v. Webb, 171, 176, 179, 182. 
 Garvin v. Edmondson, 823. 
 Gass v. Dickie, 317. 
 Gast v. Moore, 1107, 1111, 1116, 
 
 1117. 
 Gastonguay v. Savoie, 562. 
 Gates v Seagram, 103, 112, 113. 
 Gattward v. Knee, 405. 
 Gaul v. Elllce, 298, 300, 309. 
 Gault v. Sheppard, 340. 
 GaultMer v. Larose, 603, 612, 618. 
 Gaynor and Greene, re, 291. 
 Gearing v. Robinson, 599, 603, 620. 
 Geddes and Cochrane, re, 107, 181. 
 Geddes and Wilson, re, 758. 
 Gegg v. Bassett, 268, 270. 
 Geiger v. G. T. R., 977. 
 Gemmill v. Garland, 4. 
 Gemmell v. Nelligan, 192, 193. 
 General Accident Assurance Corpo- 
 ration, re, 420, 856. 
 General Contracting Co. v. Ottawa, 
 
 600, 617. 
 General Provident Assurance Co., 
 
 re, 854. 
 General Works Co., re, 839. 
 Gent and Eason's Contract, re, 427, 
 
 446. 
 Gentle v. Faulkner, 102, 721. 
 Gentles v. Canada Permanent, 381. 
 George v. Green, 105. 
 George v. Strong, 820. 
 
 ( 
 
 George v. Thomas, 668. 
 Georgetown v. Stimson, 1020, 1028. 
 Georgian Bay v. The Worfd, 200, 
 
 201. 
 German Date Co., 784, 835. 
 Gerow v. Hogle, re, 143. 
 Gerow and Pickering, re, 1002, 1019. 
 Gerson v. Simpson, 826. 
 Cibb v. McMahoh, 321. 
 Gibbon v. Gibbon, 408. 
 Gibbons, re, 683, 686. 
 Gibbons v. Oannell, re, 150. 
 Gibbons v. McDonaH, 538. 
 Gibbons v. McDougall, 380. 
 Gibbons v Srape, 36'*. 
 Gibbons v. Wilson, 54rt, 541. 
 Gibbs v. Great Western Ry., 626. 
 Gibbs v. Messer, 486, 511, 520. 
 Gibson, re, 1233. » 
 
 Gibson v. Gardner, 138, 436. 
 Gibson v. HaWes, 124, 126. 
 Gibson v. LeTemps, 597, 680, 682, 
 
 686. 
 Gibson v. Mackay, 763. 
 Gibson v. McDonald, 116, 305. 
 Gibson v. Midland Ry., 716, 940. 
 Gibson v. North Easthope, 1123, 
 
 1192, 
 Gibson and Toronto, re, 1031. 
 Gibson v. West Luther, 1128. 
 Gignac and Denis, re, 342. 
 Gignac v. Her, 538. 
 Gilbert v. Buzzard and Boyer, 1205. 
 Gilchrist, re, 452. 
 
 Gilchrist and Island, re, 366, 379. 
 Gilchrist v. G. T. R., 953. 
 Giles v. Almonte, 4, 995, 1175. 
 Giles v. Thames Ironworks, 653. 
 Giles v. Walker, 1199. 
 Giles and Wellington, re, 99, 1105. 
 Gill, re, 137. 
 
 Gill v. Great West Life, 866, 873. 
 Gillard v. Ballert. 568, 578. 
 Gillard v. Milligan, 559. 
 Gilleland v. Wadsworth, 493. 
 Gillespie v. Van Egmondt, 337. 
 Gillett v. Lumsden, 87. 
 Gillett v. Ripon, 531. 
 Gilllatt V. Gilliatt, 351. 
 Gillie v. Young, 863, 865, 869, 877, 
 
 879, 891, 893. 
 
TABLE OF CASES. 
 
 lv 
 
 Gillies V. McCamus, 108. 
 Gillies v. Temiskamihg and North- 
 ern, 67, 82, 913, 944. 
 Gillies v. Woods, 1213. 
 Gillins, re, Inglis v. Gillins, 410. 
 Gillrie, re, 710, 714. 
 Gilmae v. C. P. R., 946. 
 Gilmini v. Moriggici, 5, 254. 
 Gilmour and White, re, 380. 
 Gilmour v. Burk, 66. 
 Gilmour v. McPhail, 126. 
 Ging, re, 909. 
 Giovin&zzo v. C. P. R., 631, 6*9, 662, 
 
 700, 953, 975. 
 Girard v. Quebec and St. John Ry., 
 
 938. 
 Girdlestone v. O'Reilly, 1. 
 Girouard v. C. P. R., 941. 
 Gist, In re, Gist v. Timbrill, 399. 
 Givins v. Dafvill, 440, 442. 
 Gladdon v. Stoneman, 129. 
 Glamorganshire Banking Co., re, 
 
 853. 
 Glanville v. Straohan. 563. 
 Glasdif Copper Mines, re, 3'74. 
 Gleasoh v. Williams, 1170. 
 Gleeson v. Byrne, 366. 
 Glegg V. Bromley, 334. 
 Glen, re, 111. 
 Glengarry, re, 27, 28, 41. 
 Glenn v. Rudd, 319. 
 Glenwobd Lumber Co. v. Phillips, 
 
 67, 68, 27*. 
 Gliddon v. Yarmouth P. S. Trustees, 
 
 1218. 
 Glisse v. Taylor, '804. 
 Glossop v. Glossop, 812. 
 Gloster V. Toronto Electric Light, 
 
 637, 771, 961. 
 Gloucester v. Canada Atlantic, 911. 
 Glover v. Southern Loan, 381. 
 Glover v. Walker, 57, 66. 
 Gluckstein v. Barnes, 817, 839. 
 Glyn v. Howell, 227. 
 Glyiui, Mills & Co. v. Bast and West 
 
 India Docks, 530. 
 Glynn v. Niagara Palls, 301, 1062, 
 
 11*41. 
 Goble, re, 874. 
 
 Goddard v. Couleon, 606, 607. 
 Godden v. Toronto', 1045. 
 
 Goderich, re, 10. 
 Godfrey v. Poole, 334. 
 Godlonton v. Fulham, 723. 
 Godson and Toronto, re, 1004. 
 Godwin v. NeWcombe, 635, 653, 663, 
 
 1189, 1190. 
 Godwin v. Schweppes Lim., 343. 
 Goff v. Lester, 60, 460, 480, 482. 
 Gogatlty v. Hoskins, 445. 
 Gold Co., re, 793, 841, 850, 853. 
 Gold v. Maldaver, 811. 
 Gold and Rowe, re, 361. 
 Golden and Ottawa, re, 1158. 
 Goldfields and Harris-Maxwell Co., 
 
 Re, 796. 
 Goldie v. Harper, 587. 
 Goldie & McCulloch v. Uxbridge, 
 
 589, 590. 
 Goldschmldt v. Oberrhelnisohe Me- 
 
 tallwerke, 101. 
 Goldstein v. C. P. R., 958. 
 GoldsWorthy, In re, 707, "708. 
 Gonty and Manchester, re, 175. 
 Good, re> 329, 330. 
 Good and Shantz, 796. 
 Good v. T. H. & B., 614. 
 Gooderham, re, 134. 
 Gooderham v. Traders Bank, 366. 
 Gooderham v. Toronto, 498, 771. 
 Goodfellow, re, 534. 
 Goodhue, re, 1. 
 Goodieon Thresher Co. v. McNab, 
 
 1057, 1074, 1151, 1152. 
 Goodline v. Widdlfield, 775. 
 Goodman v. Boyes, 258. 
 Goodman's Trusts, re, 399. 
 Goodwin v. M. C. R. R., 703. 
 Goodwin v. B. & P. Ry. Co., 270. 
 Goodwin v. Ottawa, 1102, 1103, 1108, 
 
 1109. 
 Goodwin v. Parton, 260. 
 Goodyear V. Toronto and York Ra- 
 dial, 965. 
 Gorden v. Bouter, 45. 
 Gordon, re, 5'4, 434. 
 Gordon v. Denison, 29*6. 
 Gordon v. Goodwin, 1184. 
 Gordon v. Gordon, 684. 
 Gordon v. G. W. Ry., 957. 
 Gordon v. Handford, 324. 
 Gordon Mackay v. Union Bank, 547. 
 
lvi 
 
 TABLE OF CASES. 
 
 Gordon v. Matthews, 552. 
 
 Gordon v. Moose Mountain, 3, 65, 
 
 77, 81. 
 Gordon v. O'Brien, 148. 
 Gordon v. Royal College Dental 
 
 Surgeons, 767. 
 Gordon v. Rumble, 730. 
 Gordon v. Union Bank, 557. 
 Gormley v. Brophy Cains, Limited, 
 
 266. 
 Gosnell v. Toronto Ry., 964, 973. 
 Gosnell v. Toronto Ry., 973. 
 Gossling v. McBride, 282, 283. 
 Gough, re, 419. 
 Gould v. Burrett, 435. 
 Gould v. Erskine, 204. 
 Gould v. Ferguson, 740, 741, 757. 
 Goulding v. Deeming, 575. 
 Goulet, re, 417. 
 Government Stock v. Manilla Ry., 
 
 584, 804. 
 Gower v. Glen Woolen Mills, 646, 
 
 662, 1190. 
 Gowganda Queen v. Boeckh, 830. 
 Gowganda Mines v. Smith, 798, 799, 
 
 822, 829. 
 Grace v. Macdermott, 695. 
 Gracey, re, 684. 
 Gracey v. Toronto Real Estate Co., 
 
 678. 
 Graeme v. The Globe, 202. 
 Graham, re, 137, 179, 207, 427. 
 Graham v. Canada Life, 680, 686, 
 
 879, 886. 
 Graham v. Commissioners, 86, 1138. 
 Graham v. Graham, 131, 362. 
 Graham v. Great Western Ry., 952. 
 Graham v. Heenan, 66. 
 Graham v. Hungerford, 1219. 
 Graham v. Law, 192, 195. 
 Graham v. Meneilly, 451, 694, 695. 
 Graham v. Spettigue, 118. 
 Graham v. Williams, 599, 612. 
 Graham and Yardley, re, 731. 
 Grainger, re, 1192, 1193. 
 Grand Junction Ry. v. Midland Ry., 
 
 945, 962. 
 Granger, re, 288. 
 
 Grand Junction Ry. Co. v. Peterbor- 
 ough, re, 913. 
 G. T. P. v. Fort William, 933. 
 
 G. T. P. v. Rochester, 921, 922. 
 
 G. T. R. v. Ash, 926. 
 
 G. T. R. v. Beaver, 948. 
 
 G. T. R. v. Coupal, 928, 930. 
 
 G. T. R. v. Fort William, 922, 933. 
 
 G. T. R. v. Hainer, 697. 
 
 G. T. R. v. Hamilton Radial, 913, 
 
 942. 
 G. T. R. v. Jennings, 660, 703, 976. 
 G. T. R. v. Lindsay, etc., Ry. Co., 
 
 919, 926. 
 G. T. R. v. McKay, 952. 
 G. T. R. v. Ontario Dept. of Agri- 
 culture, 980. 
 G. T. R. and Petrie, re, 176, 181,, 
 
 931. 
 G. T. R. v. Port Perry, 1105. 
 G. T. R. v. Rainville, 104. 
 G. T. R. v. Robertson, 948. 
 G. T. R. v. Rosenberger, 950. 
 G. T. R. and Ste. Cunegonde, re, 
 
 925. 
 G. T. R. v. Sibbald, 940, 963. 
 G. T. R. v. Therrien, 913. 
 G. T. R. v. Toronto, 940, 979, 1052. 
 G. T. R. v. Vallicar, 214, 245, 919. 
 G. T. R. v. Washington, 936. 
 Grange, re, Chadwick v. Grange, 
 
 382. 
 Grant, re, 187, 879, 890. 
 Grant v. Acadia Coal, 643. 
 Grant v. Canada Life, 380. 
 Grant v. C. P. R., 943. 
 Grant v. Dunn, 611, 612. 
 Grant v. Ellis, 211. 
 Grant v. Grant, 730. 
 Grant v. Great Western Ry., 128. 
 Grant v. McDonald, 139, 255, 259. 
 Grant v. Maclaren, 139. 
 Grant v. Reid, 321. 
 Grant v. Reiner, 279. 
 Grant v. Robertson, re, 731, 732. 
 Grant v. West, 564, 565. 
 Grass v. Austin, 570, 580. 
 Grassi, re, Stubberfield v. Grassi, 
 
 406. 
 Grattan v. Ottawa Separate School 
 
 Trustees, 1216, 1217, 1219, 1224. 
 Gravel v. L'Union, St. Thomas, 781. 
 Gray, re, 361, 1037. 
 Gray v. Coughlin, 482, 488. 
 
TABLE OF OASES. 
 
 lvii 
 
 Gray v. Richmond, 358, 429. 
 
 Graydon and Hammill, re, 441. 
 
 Graystock v. Barnhart, 466. 
 
 G. N. W. Ry. v. Charlebois, 92. 
 
 G. N. W. Tel. Co. v. Montreal Tele- 
 graph Co., 921. 
 
 Great Northern v. Furness & Co., 
 921. 
 
 Great Northern Transit v, London 
 Assurance Co., 905. 
 
 Great Western Forest of Dean, re, 
 851. 
 
 Great Western Ry. v. Baby, 924, 928. 
 
 G. W. Ry. v. Bennett, 943. 
 
 Great Western and Chauvin, re, 920, 
 928. 
 
 Great Western Ry. v. Carpallo U. C. 
 C. Co., 78. 
 
 Great Western Ry. v. Dodds, 928. 
 
 Great Western Railway v. Fisher, 
 344. 
 
 Great Western Ry. v. Lutz., 225, 925. 
 
 G. W. Ry. v. Midland Ry., 923. 
 
 Great Western Ry. v. Warner, 929. 
 
 Great Ship Co., re, 843. 
 
 Great Torrington Commons Conser- 
 vators v. Moore Stevens, 770. 
 
 Green and Artkin, re, 380. 
 
 Green and Balfour, re, 93, 171. 
 
 Green v. Citizens' Ins. Co., 177. 
 
 Green v. Crawford, 145, 146. 
 
 Green and Flatt, re, 443, 474. 
 
 Green v. Kilgour Bros., 630. 
 
 Green v. McLeod, 264. 
 
 Green v. Patereon, 361, 363. 
 
 Green v. Ponton, 455, 457. 
 
 Green v. Provincial Insurance Co., 
 8. 
 
 Green v, Stevenson, 321, 489. 
 
 Green v. Toronto Ry., 964, 973. 
 
 Greene v. Castleman, 581. 
 
 Greenhalgh v„ Cowmaman Coal Co., 
 656. 
 
 Greenhow v. Wesley, 200, 201. 
 
 Greenlaw v. Fraser, 59. 
 
 Greenless v. Pioton P. S. Board, 
 1218, 1219. 
 
 Greenshields v. Bradford, 213. 
 
 Greenwood, re, Greenwood v. Sut- 
 cliffe, 416. 
 
 Greenwood v.. Leather Shod Wheel 
 . Co., 824, 825. 
 
 Greer v. Armstrong, 589. 
 
 Greer v. Faulkner, 78. 
 
 Greet v. Citizens' Ins. Co., 896, 903. 
 
 Grenier v. The Queen, 643, 659, 698. 
 
 Grenville v. Parker, 720. 
 
 Gresley, re, 416. 
 
 Greta Holme, 1060. 
 
 Greville Smith v. Tomlin, 986. 
 
 Grey, re, 714. 
 
 Grey v. Ball, 482. 
 
 Grey v. Ooucher, 484. 
 
 Grey v. Manitoba, etc., Ry., 913. 
 
 Grey v. Richmond, 421. 
 
 Greymouth Point, etc., Co., re, 818. 
 
 Griffin, re, 435, 881. 
 
 Griffith, re, 742. 
 
 Griffith v. Blake, 100. 
 
 Griffith v. Brown, 226. 
 
 Griffith v. Clay, 248. 
 
 Griffith v. G. T. R., 951, 976. 
 
 Griffith v. Howes, 873, 891, 892. 
 
 Griffith v. Hughes, 423. 
 
 Griffith v. Paget, 794, 848, 915. 
 
 Griffiths, re, 416, 761, 888. 
 
 Griffiths Cycle Corporation v. Hum- 
 ber Co., 319. 
 
 Griffiths v. Earl Dudley, 659, 660, 
 935, 968. 
 
 Griffiths y. Fleming, 875, 876. 
 
 Griffiths v. Grantham, 1209. 
 
 Griffiths v. London and St. Kathar- 
 ines Dock Co., 654. 
 
 Grills v. Farah, 97, 802. 
 
 Grimish v. Scott, 510. 
 
 Grimond v. Grimond, 329. 
 
 Grimshawe v. G. T. R. 930. 
 
 Grimshaw v. Toronto, 453, 479, 
 1030, 1035. 
 
 Grimwade v. Mutual Society, 827. 
 
 Grinnell v. Wells, 665. 
 
 Grinsted v. Toronto Ry., 948, 951, 
 977. 
 
 Groos, re, 406. 
 
 Grove v. Portal, 373. 
 
 Groves v. Wimborne, 80, 633, 634, 
 640, 642, 697, 975, 1189. 
 
 Grummett v. Grummett, 429. 
 
 Grundy Stove Co., re, 840. 
 
lviii 
 
 TABLE OF CASES. 
 
 Guaranty Co. v. Green Cove, 6. 
 
 Guay v. The Queen, 929. 
 
 Guest v. Hamilton, 1030. 
 
 Guest v. Linden, 618. 
 
 Guerin v. Manchester Fire, 894, 896, 
 
 897, 902. 
 Guild & Co. v. Conrad, 532. 
 Guimond v. Fidelity Phenix, 897. 
 Guinane, re, 568. 
 Guinness v. Land- Corporation of 
 
 Ireland, 784. 
 Gumm v. Hallett, 175. 
 Gummerson v. Bunting, 348. 
 Gundry v. Saihsbury, 759'. 
 Gundy v. Johnston, 561, 740, 758. 
 Gunn v. Burgess, 570. 
 Gunn v. Harper, 96. 
 Gunn v. Turner, 437, 438. 
 Gunning v. South "Western Traction 
 
 Co. 938, 939, 959, 969, 970. 
 Gunn's Case, 828. 
 Gurney, re, 251. 
 Gurney v. Behrend, 530. 
 Gurney v. Emmett, 199. 
 Gurofsky v. Harris, 335, 336, 545, 
 
 565. 
 Guthrie V. C. P. R., 243, 245, 937. 
 Guthro v. Foster Cobalt, 663. 
 Guy Major V. Canadian Flax Mills, 
 
 833. 
 Gwatkin v. Harrison, 802. 
 Gwynne Estate, re, 49, 54. 
 Gyorgy v. Dawson, 130, 699. 
 
 Haake v. Markham, 1209. 
 Habershon's Case, 839. 
 Hackett v. Toronto Ry., 973. 
 Hackney Furnishing Co. v. Watts, 
 
 723. 
 Haddington Island Quarry Co. v. 
 
 Huson, 382. 
 Hadleigh Castle Gold Mining Co., 
 
 793. 
 Hagar Voters' List, re, 986. 
 Hagen v. C. P. R., 124. 
 Hagerty, In re, 737, 
 Haggart Bros., r6, 777, 780, 829. 
 Haggerty v. Latreille, 69. 
 Hagle v. Laplante, 1194. 
 Hague, re, 193, 750. 
 Haig v. Haig, 227. 
 
 Haigh v. Toronto Ry., 972, 975. 
 Haight and London N. W. Ry., re, 
 
 178. 
 Haight v. Hamilton, 964, 973. 
 
 Haight v. Mcinnes, 582. 
 
 Haight v. Munro, 549. 
 Haight v. Wostman and Ward Com- 
 pany, 655. 
 
 Halleybufy Rink Co., re, 613. 
 
 Hainer v. G. T. R., 939, 948, 951. 
 
 Haisley v. Soiners, 1115. 
 
 Haist v. G. T. R., 704. 
 
 Haldimand, re, 24, 32. 
 
 Haldimand v. Bell Telephone Co., 
 1043. 
 
 Hale, re, Lilley v. Foad, 260. 
 
 Hale v. Hazlett, 585, 590. 
 
 Halfpenny v. Pennock, 572, 677. 
 
 Halifax v. McLaughlin Carriage 
 Co., 857. 
 
 Hall, re, 843. 
 
 Hall v. Brush, 1178. 
 
 Hall v. Caldwell, 215. 
 
 Hall Dare, re, 208, 363. 
 
 Hall v. Evans, 247. 
 
 Hall v. Fortye, 546. 
 
 Hall v. Hall, 403. 
 
 Hall v. Hatch, 271. 
 
 Hall v. Hill, 1115. 
 
 Hall v. Hogg, 613, 614, 618. 
 
 Hall v. Johnson, 643. 
 
 Hall v. Lannin, 552. 
 
 Hall v. McPherson, 108. 
 
 Hall v. Pilz, 616. 
 
 Hall v. Stisted School Trustees, 
 1216. 
 
 Hall v. Thompson, 532. 
 
 Halliday v. Armstrong, 566. 
 
 Halliday & Ottawa, re, 1191, 1192. 
 
 Halliday v. Rutherford, 121. 
 
 Halliday v. Zwick, 256, 260, 315. 
 
 Halpin V. Calder, 1211. 
 
 Halton, 21, 24, 25, 26, 28, 29, 35, 41. 
 
 Halton v. Bertram, 409. 
 
 Ham and Cameron, 442, 444. 
 
 Hambly v. Fuller, 1230. 
 
 Hamel v. G. T. R., 949. 
 
 Hamilton v. Aitken, 276. 
 
 Hamilton V. Barton, 1044. 
 
 Hamilton B. of E. and McNichol, 
 re, 1212, 1217. 
 
TABLE OP OASES. 
 
 lix 
 
 Hamilton Brass Mfg. Co. v. Barr 
 
 Cash and Package Carrier, 257. 
 Hamilton Bridge Works v. General 
 
 Contracting Co., 99, 616, 630. 
 Hamilton and C. O, F., re, 873. 
 Hamilton v. Chaine, 572. 
 Hamilton Distillery v. Hamilton, 
 
 1141. 
 Hamilton Estate, re, 434. 
 Hamilton v. Garner, re, 144. 
 Hamilton v. Groesback, 1191. 
 Hamilton v. Hamilton St. Ry., 956, 
 
 960, 961, 964. 
 Hamilton V . Hamilton, Grimsby & 
 
 Beamsviile Ry., 662. 
 Hamilton Mfg. Co. v. Hamilton 
 
 Steel and Iron Co., 842, 845. 
 Hamilton v. Harrison, 570, 572, 673. 
 Hamilton V. Perry, re, 673, 683. 
 Hamilton Powder Co. and Glouces- 
 ter, re, 1042. 
 Hamilton Provid<ent v. Carnell, 426. 
 Hamilton v. Raspberry, 1150. 
 Hamilton School Section, re, 1210. 
 Hamilton School Trustees V. Neil, 
 
 1213, 1217. 
 Hamilton Steamboat Co. V. Mackay, 
 
 342. 
 Hamilton Terminal, re, 500. 
 Hammersmith v. Brand, 2, 8. 
 Hammill v. Hammill, 403, 409. 
 Hammond v. Bank of Ottawa, 803, 
 
 804, 808. 
 Hammond V. G. T. R., 941, 974. 
 Hammond v. Keachie, 673, 674, 679. 
 Hammond and Waterton, re, 93, 
 
 171. 
 Hampden v. Buckinghamshire, 207. 
 Hampden v. Walsh, 1180. 
 Hampshire Land Co., re, 803, 831. 
 Hamren v. Mott, 1179. 
 Hanan v. Erlich, 319. 
 Hancock, re, Hancock v. Berry, 232. 
 Handley V. Archibald, 217, 219, 227. 
 Hands v. Tibs Law Society, 735. 
 Haney and Mead, re, 307. 
 Hankey, re, Smith V. Hankey, 430. 
 Hanley v. Brahtford, 1067, 1068, 
 
 1069. 
 Hanley v. Michigan Central, 945, 
 
 950. 
 
 Hanley v. T. H. & B. Ry., 926. 
 Hanna v. C. P. R., 951. 
 Hanna v. Coulson, re, 158. 
 Hanns v. Johnson, 300. 
 Hansen v. C. P. R., 954. 
 Hansford v. G. T. R., 703, 951. 
 Harbin v. Darby, 760. 
 Harbottle and Wilson, re, 308. 
 Harbury Bridge Coal, etc., Co., 793. 
 Harbury India Rubber Comb Co., 
 
 316. 
 Harcourt v. Burn®, 137. 
 Hard v. Palmer, 139. 
 Harding, re, 5, 448, 449. 
 Harding v. Cardiff, 923. 
 Harding v. Knowlson, 573. 
 Hardy Lumber Co. v. Pickerd River, 
 
 862, 945. 
 Hare v. Elms, 720. 
 Hare v. Proudfoot, 734. 
 Hargraft v. Keegan, 416. 
 Hargreaves and Thompson, rp, 440. 
 Hargrove v. Royal Templars, 104, 
 
 864, 871, 874, 883. 
 Harkness, re, 872, 878, 880. 
 Harkness and Allsopp, re, 677, 693. 
 Harkness v. Conmay, 366. 
 Harley, re, 434. 
 Harling V. Mayville, 1213, 1214, 
 
 1224. 
 Harlock v. Ashberry, 239. 
 Harman v. Ainslie, 373, 375. 
 Harmer V. Brantford Gas Co., 1143. 
 Harp v. O'Connor, 593. 
 Harpelle v. Carroll, 717, 718. 
 Harper, re, 286, 287, 288. 
 Harper v. Culbert, 336. 
 Harper v. Davles, 318. 
 Harrold v. Wallis, 137. 
 Harrigan v. Port Arthur, 83, 84. 
 Harrington v. Spring Creek Co., 
 
 485. 
 Harrington; re, Wilder v. Turner, 
 
 716. 
 Harris, re, 539. 
 
 Harris, re, Harris v. Harris, 330. 
 Harris, re, Leacroft V. Harris, 680. 
 Harris v. Commercial Bank, 570. 
 Harris v. Elliote, llBl. 
 Harris v. G. T. R, 660, 935, 968. 
 Harris V. G. W. R., 949. 
 
lx 
 
 TABLE OF CASES. 
 
 Harris v. Hall, 323. 
 Harris v. Jamieson, 640. 
 Harris v. London St. Ry., 955. 
 Harris, Maxwell Larder Lake, re, 
 
 851. 
 Harris v. Mills, 963. 
 Harris v. Mudie, 212, 218, 221, 225, 
 
 227. 
 Harris v. Smith, 367. 
 Harris v. Whitby, 1101. 
 Harrison, re, 391, 411, 876, 879, 885, 
 
 891, 893. 
 Harrison v. Armour, 490. 
 Harrison v. Brega, 229, 454, 456. 
 Harrison v. Harrison, 352, 353. 
 Harrison v. Madill, 197. 
 Harrison v. Mobbs, 71, 75, 78, 316, 
 
 999. 
 Harrison v. Prentice, 205. 
 Harrison v. Spencer, 352, 353. 
 Harrold v. Simcoe, 299. 
 Harse v. Pearl Life, 875. 
 Hart Estate, re, 393. 
 Hart v. Duke, 172. 
 Hart and Vespra, re, 1211, 1213. 
 Hartley, re, 387. 
 Hartley v. Jarvis, 727. 
 Hartley v. Mayoock, 212, 213, 215, 
 
 217, 218, 219, 226, 227, 248, 676, 
 
 695. 
 Harty v. Appleby, 491. 
 Harvey v. McNaughton, 548. 
 Harvey v. McPherson, 148. 
 Harvey and Parkdale, re, 1032. 
 Harvey's Estate, re, 415. 
 Harwick and Raleigh, re, 1033, 1125, 
 
 1126. 
 Haskill and G. T. R., re, 930. 
 Haslem v. Equity Fire, 896, 902, 
 
 903. 
 Haslam v. Sohnarr, 299, 1153. 
 Hassard and Toronto, re, 1005, 
 
 1155, 1158. 
 Hastings v. Le Roi, 642. 
 Hastings v. Pearson, 593. 
 Hastings v. Summerfeldt, 23. 
 Hathering v. Laing, 591. 
 Hatter v. Russell, 209. 
 Hatton v. M. P. & B. Ry., 915. 
 Haubner v. Martin, 325. 
 Haven Gold Mining Co., re, 835. 
 
 Haverstick v. Emory, 974, 1146. 
 Havey, re, 883. 
 
 Hawes, re, Burchell v. Hawes, 235. 
 Hawes v. Canadian Ry. Accident, 
 
 881. 
 Hawke v. Hulton, 7. 
 Hawke v. O'Neil, 108. 
 Hawkes, re; Reeve v. Hawkes, 418. 
 Hawkins v. Batzold, re, 158, 159. 
 Hawkins v. Colclough, 93, 179. 
 Hawkins v. McGuigan, 1061. 
 Hawley v. Ham, 668. 
 Hawthorn v. Hannuluik, 1040. 
 Hay, In re; Kerr v. Stinnear, 408. 
 Hay v. Bissonnette, 771, 1052. 
 Hay v. Employers' Liability, 870. 
 Hay v. Paterson, 284. 
 Haycock v. Sapphire, etc., 619. 
 Haycroft Gold Reduction Co., re, 
 
 840, 841, 850. 
 Hayes, re, Turnbull v. Hayes, 413. 
 Haynes v. Copeland, 1101, 1222. 
 Haynes v. Gillen, 493. 
 Hayward v. Canadian Northern, 
 
 947. 
 Hazeldine, re, 236, 256. 
 Hazeldine's Trust, re, 239. 
 Hazeltine v. Consolidated Mines, 
 
 90, 382, 385. 
 Head, re, 552. 
 Healey v. Carey, 1225. 
 Heaman Seale, 535. 
 Heath, re, Heath v. Widgeon, 390. 
 Heath v. Hamilton St. Ry., 953, 974. 
 Heath v. Pugh, 234. 
 Heathcote, re, 353. 
 Heathoote, re, Heathcote v. French, 
 
 353. 
 Heaton v. Flood, 569, 584. 
 Heaven v. Pender, 639. 
 Heazel v. Wilkes, 352. 
 Hebbs' Case, 828. 
 Hebert v. Evans, S20. 
 Hedley v. Pinkney, 627, 643. 
 Hefferman v. Walkerton, 1006, 1019. 
 Heine v. Schaffer, 1230. 
 Heise v. Shanks, 153. 
 Hedby v. Matthews, 588, 595. 
 Hellems v. St. Catharines, 1004. 
 Heller v. G. T. R., 947, 958. 
 Helps v. Eno, 625. 
 
TABLE OF CASES. 
 
 lxi 
 
 Helyar, re, Helyar v. Beckett, 711. 
 Hemans v. Hotchkiss Ordinance 
 
 Co., 807. 
 Hemmings v. Sceptre Life, 875. 
 Henderson, re, 478, 496. 
 Henderson v. Canada Atlantic, 950, 
 
 974, 977. 
 Henderson and C. O. P., re, 889. 
 Henderson v. Graves, 349. 
 Henderson v. Henderson, 223, 228, 
 
 229, 235, 476. 
 Henderson v. McLean, 57, 59. 
 Henderson and Mons, re, 1012. 
 Henderson v. Rogers, 124. 
 Henderson Roller Bearing, re, 276, 
 
 560, 561. 
 Henderson Roller Bearing, Prouts' 
 
 Case, re, 837. 
 Henderson v. Spencer, 439. 
 Henderson v. Stevenson, 949. 
 Henderson and Toronto, re, 453. 
 Henderson v. Weis, 668. 
 Henderson v. West Nissouri, 1220, 
 
 1221. 
 Henderson v. Wilde, 730. 
 Hendrie v. G. T. R„ 918. 
 Hendrie v. T., H. & B. Ry., 922, 941. 
 Hendry, re, 158. 
 
 Heneker v. British America Assur- 
 ance, 897. 
 Henley v. C. P. R., 943. 
 Henning v. Maclean, 251, 423, 424. 
 Henry v. Hammond, 253. 
 Hensler, re, 417. 
 Hepburn v. Orford, 1203, 1204. 
 Herbert and O'Brien, re, 512. 
 Herman v. Wilson, 623, 820. 
 Heron v. Walsh, 352. 
 Herriman v. Pulling & Co., 1071. 
 Herriman v. Owen Sound, 1032, 
 
 1033, 1034. 
 Herron v. Toronto Ry., 109, 965. 
 Hertfordshire County Council v. 
 
 Great Eastern Ry., 942. 
 Hesketlh v. Toronto, 309, 1045. 
 Hespeler v. Shaw, 1179. 
 Hess Mfg. Co., re, 801, 839. 
 Hesselbacher v. Ballantyne, 586, 
 
 587. 
 Hessey v. Quinn, 728, 1175. 
 Hesslein v. Wallace, 95. 
 
 Heward v. Mitchell, 568, 572, 580. 
 
 Heward v. O'Donahoe, 213, 227. 
 
 Heward v. Wolfenden, i,72. 
 
 Hewett and Jermyn, re, 385, 391, 
 392, 396, 426, 442. 
 
 Hewish, re, 364. 
 
 Hewitt, re, 516. 
 
 Hewitt v. Cane, 265. 
 
 Hewitt v. Corbett, 580. 
 
 Hewitt v. Hewitt, 93, 171. 
 
 Hewson v. Ontario Power Co., 912. 
 
 Hewson v. Shelley, 130. 
 
 Heyd v. Millar, 351. 
 
 Heydon v. Castle, 370. 
 
 Hetherington v. Graham, 196. 
 
 Hetling and Merton, re, 421. 
 
 Hickerson v. Parrington, 538. 
 
 Hickey and Orillia, re, 994, 995, 
 1007, 1038, 1172, 1175. 
 
 Hickey v. Stover, 213, 252. 
 
 Hicks v. Newport, 660, 704. 
 
 Hicks v. Smith Falls E. P. Co., 629, 
 646, 658. 
 
 Hicks v. Williams, 222, 224, 248. 
 
 Hickson v. Abbott, 21, 32. 
 
 Higham v. Ridgway, 263. 
 
 Higgins, re, 438, 448. 
 
 Higgins v. C. P. R., 969. 
 
 Higgins v. Dawson, 415. 
 
 Higginshaw Mills, re, 843. 
 
 Higginson v. Simpson, 1180. 
 
 Higgs, ex p., 849. 
 
 Hilder v. Dexter, 820. 
 
 Hiles v. Ellice, 1131, 1132. 
 
 Hill, ex p., 449, 450. 
 
 Hill v. Ashbridge, 227. 
 
 Hill v. Broadbent, 342. 
 
 Hill and Camden and Zone, re, 1223. 
 
 Hill's Case, 837. 
 
 Hill v. Clifford, 762. 
 
 Hill v. Hicks and Thompson, re, 
 149, 150. 
 
 Hill v. Hill, 110, 1234. 
 
 Hill v. Merchants and Manufactur- 
 ers, 868. 
 
 Hill v. Rowlands, 358. 
 
 Hill and Telford, re, 123, 301. 
 
 Hill v. Toronto, 964, 973. 
 
 Hilleker, re, 401. 
 
 Hillock v. Britton, 336. 
 
 Hill's Waterfall Estate, re, 847. 
 
lxii 
 
 TABLE OF CASES. 
 
 Hiltz, re, 137. 
 
 Hinds, re, 187, 1235. 
 
 Hinds v. Barrie, 1066. 
 
 Hinds v. Buenos Ayres Grand Na- 
 tional Tramways, 819. 
 
 Hingston v. Sidney, 328. 
 
 Hinsley v. London St Ry., 973. 
 
 Hirst v. West Riding Banking Oo., 
 323. 
 
 Hiscock, re, 405. 
 
 Hislop v. Joss, 347, 1117. 
 
 Hislop v. McGillivray, 1005, 1056, 
 1065, 1067. 
 
 Hoare v. Ritchie, 1188. 
 
 Hobbs, re, 252. 
 
 Hobbs v. Ontario Loan and Deben- 
 ture Co., 358, 726, 727, 729. 
 
 Hobbs and Toronto, re, 1047. 
 
 Hobin v. Ottawa, 107, 1059. 
 
 Hobley v. G. T. R, 953. 
 
 Hobson, re, 685. 
 
 Hobson v. Gorringe, 377, 590. 
 
 Hobson v. Shannon, 152. 
 
 Hockley v. G. T. R., 700. 
 
 Hodge v. Hallamore, 106. 
 
 Hodge v. The Queen, 984, 1154, 
 1162. 
 
 Hodgins v. Banting, 764. 
 
 Hodgins v. Huron, 301. 
 
 Hodgins v. McNeil, 667. 
 
 Hodgins v. O'Hara, 828, 945, 962. 
 
 Hodgins v. Toronto, 1070, 1073, 
 1074, 1152. 
 
 Hodgson, re, Dasley v. Hodgson, 
 687. 
 
 Hodsden v. Lloyd, 407. 
 
 Hodson, re, 323. 
 
 Hodson v. Deans, 382. 
 
 Hodson v. Henland, 317. 
 
 Hodson v. Railway Passengers' As- 
 surance, 173. 
 
 Hoeffler v. Irwin, 66. 
 
 Hoeftmer v. C. O. F., 781; 893. 
 
 Hoffstrom v. Stanley, 608. 
 
 Hoig v. Gordon, 695. 
 
 Holden, In re, 409, 410. 
 
 Holden v. G. T. R„ 648, 659, 954. 
 
 Holden v. Yarmouth 1065. 
 
 Holderness v. Lang, 345, 371. 
 
 Holeshed, In re, 710. 
 
 Holland, In re, 737. 
 
 Holland, re, 48, 54, 333, 400. 
 Holland, re, Gregg v. Holland, 335. 
 Holland, re, Gregg v. Holland, 335. 
 Bollajwl v. Moore, 460, 479. 
 Holland v. Vanstone, 733. 
 Holland v. York, 1051, 1052, 1061, 
 
 1065. 
 Hollinger v. C. P. R., 650, 912, 950, 
 
 953, 974. 
 Hollingshead, re, 260. 
 Hollis and Hague, re,- 451. 
 Hollis Trustees and Hague, 444. 
 Holliwell v. Seacombe, 445. 
 Hollywood v. Waters, 482. 
 Holman v. Knox, 372, 719. 
 Holman and Rea, re, 293, 295, 296. 
 Holmes v. Brierley, 323. 
 Holmes v. Goderich, 1030. 
 Holmes v. McKechnir, 77Q. 
 Holmes v. Murray, 408. 
 Holmes v. St Catharines, 1067. 
 Holmested and Seaforth, re, 1020, 
 
 1038. 
 Holt v. Oarmichael, 580. 
 Holt v. Jarvis, 44. 
 Holt v. Medonte, 1210. 
 Holtby v. Hodgson, 683. 
 Hogaboom v. Graydon, 568, 569, 
 
 578, 677. 
 Hogan v. Brantford, 1021, 1121, 
 
 1144. 
 Hogg v. Brooks, 1047, 1059, 1151. 
 Hoggan v. Esqulmault, 65. 
 Hoig v. Gordon, 63. 
 Home Insurance Co. v. Victoria, 
 
 Montreal Fire Ins. Co., 904. 
 Homer District Gold Mines, re, 828. 
 Homewood v. Hamilton, 1062, 1066, 
 
 1070. 
 Honour v. Equitable Life, 97. 
 Honaberger v. Love, 531. 
 Honslnger v. Kuntz, 537, 557, 574. 
 Honywood v. Forster, 363. 
 Hood Barrs v. Cathoart, 684, 691. 
 Hood Barrs v. Heriot, 684. 
 Hood v. Coleman, 608. 
 Hood v. Eden, 838, 839. 
 Hooey v. Trip, 183, 770. 
 Hoofstetter v. Rooker, 463, 465, 492. 
 Hooker v. Gamble, 532. 
 Hooker v. Morrison, 228. 
 
TABLE OF CASES. 
 
 lxiii 
 
 Hoole v. Speck, 824, 826. 
 
 Hooper, re, 206, 207. 
 
 Hooper and Erie and Huron Ry., 
 
 re, 930. 
 Hooper v. Herts, 797. 
 Hoover v. Wilson, 435. 
 Hope v. Corbetit, 569. 
 Hope v. Hope, 678. 
 Hope v. May, 582. 
 Hope v. Parrott, 572, 578, 587. 
 Hope v. White, 727, 731. 
 Hopkins, re, 388, 389. 
 Hopkins v. Gudgeon, 578. 
 Hopkins v. Hamilton Electric, 835, 
 
 836, 933, 962, 1142. 
 Hopkins v. Hopkins, 222, 365, 405. 
 Hopkins v. Smith, 262. 
 Hopkinson v. Rolt, 490. 
 Hooper v. Wollison, 149, 155. 
 Horn v. Beard, 731. 
 Horrigan v. Port Arthur, 1007. 
 Horse Shoe Quarry Co., re, 171, 178. 
 Horsey v. Stieger, 373, 843. 
 Horsman v, Toronto, 1112. 
 Horsfall v. Boisseau, 579, 580. 
 Horton v. Casey, 218, 
 Hoskin v. M. C. R. R. 972. 
 Hoskins, re, 725. 
 Hotharn v. Sutton, 410, 
 Houghton, re, Hawley v. Blake, 430. 
 Houliston v. Parsons, 1178. 
 Hounsell v. Dunning, 214, 248. 
 House v. Brown t 325, 326. 
 House v. Southwold, 1043, 1060. 
 Houston, re, 185. 
 Hovenden v. Ellison, 614, 617. 
 Hovey v. Ferguson, 366. 
 Hovey v. Whiting, 579, 580. 
 How v. Earl of W4nter*on, 249, 251. 
 Howard v. Harrington, 189, 299. 
 Howarth v. Brearley,, 766. 
 Howarth v. Fletcher, 579, 580. 
 Howe v. Botwood, 371. 
 Howell v. Brlthour, 791. 
 Howell v. McFarlane, 579. 
 Howells v. Lodore Siemens Steel 
 
 Co., 643. 
 • Howeren v. Bradburn, 231. 
 Howes v. Lee, 273, 478. 
 Howitt v. Harrington, 211. 
 Rowland, re, 447, 450, 452. 
 
 Howley Park, etc., Co. v. L. and 
 
 N. W. Ry., 244. 
 Howorth v, Fletcher, 579. 
 Howse v. Southwold, 1059. 
 Hoyt v. Commers, 49. 
 Hubbard, ex p., 571. 
 Huddersfield, re, 921. 
 Huegli v. Pauli, 1230, 1231. 
 Huffman V, Bayham, 1061. 
 Huffman v. Walterhouse, 774. 
 Hughes, re, 353, 363. 
 Hughes and Ashley, re, 440, 441. 
 Hughes v. Britannia Permanent 
 
 Benefit, 490. 
 Hughes v. Coed Talon Colliery, 661. 
 Hughes v. Hand-in-Hand, Ins. Co., 
 173, 902, 903. 
 
 Hughes v. Hughes, 254. 
 
 Hughes v. Oxenham, 584. 
 
 Hughes, re Patrick, 435. 
 
 Hughes y. Pumphouae Hotel Co., 
 349, 350. 
 
 Hughes, v. Towers, 730. 
 
 Hughson v. Cook, 58. 
 
 Huisley v. London St, Ry., 965. 
 
 Hull, re, 307. 
 
 Hulse, In re, Beattie y. Hulse, 375. 
 
 Hulton v. Trotter, 348. 
 
 Hulton v. West Cork Ry., 815. 
 
 Humble v. Shore, 412. 
 
 Hume, re, 327. 
 
 Hume, In re, 737. 
 
 Hume, Forbes v. Hume, 330. 
 
 Hume v. Lopez, 422. 
 
 Humphrey v. Clergue, 105. 
 
 Humphreys v. Hunter, 1229. 
 
 Humphreys v. Morten, 720. 
 
 Humphries v. Barnett, 191. 
 
 Humphries v. Ottawa Fireproof 
 Supply, 857. 
 
 Hungerford, re, 12. 
 
 Hunsberry v. Kratz, 155. 
 
 Hunt, re Hannah, 415, 416. 
 
 Hunt v. Palmerston, 1041, 1137. 
 
 Hunt v. Shaver, 291, 295. 
 
 Hunt v. Webb, 1187. 
 
 Hunt v. Wimbledon Local Board, 
 984. 
 
 Hunter, re, 401, 403, 410, 431, 1155, 
 1158, 1162. 
 
 Hunter v. Boyd, 426. 
 
lxiv 
 
 TABLE OP CASES. 
 
 Hunter v. Bucknall, 80. 
 Hunter v. Fair, 357. 
 Hunter v. G. T. R., 968. 
 Hunter v. Kerr, 445. 
 Hunter v. Nockolds, 231. 
 Hunter v. Patterson, 126. 
 Hunter and Patterson, In re, 420. 
 Hunter v. Richards, 243, 244, 526. 
 Huntley v. March, 1122. ' 
 Huntsman v. Great Western Ry., 
 
 948. 
 Hurd v. Hamilton, 702, 1065. 
 Hurd v. G. T. R., 949. 
 Hurdman v. Canada Atlantic Ry., 
 
 654. 
 Hurdman v. Gall Lumber Co., 108. 
 Hurlbatt, re, 353. 
 Huron, re, 7, 10, 11, 12, 13, 17. 
 Hurst, re, 390. 
 
 Huson v. South Norwich, 1171. 
 Hussey t. Horne-Payne, 321. 
 Hutchinson, re, 711, 712. 
 Hutchinson v. Edmison, 431. 
 Hutchinson and St. Catharines, re, 
 
 1216, 1223. 
 Hutchison v. Bowers, 596. 
 Hutchison v. Roberts, 579. 
 Hutchison v. Rogers, 602. 
 Hutt v. Huitt, 414. 
 Huyck, re, 328. 
 Hyams v. Stuart King, 1181. 
 Hyatt v. Allen, 817. 
 Hyatt v. Mills, 61. 
 Hyde v. Cavan, re, 43, 159. 
 Hyde v. Hyde, 666. 
 Hyman v. Rose, 720. 
 Hyman v. Van den Bldgh, 247. 
 Hyman v. Vander Bergh, 248. 
 Hynes, re, 92. 
 Hynes, re, Hodgins v. Andrews, 365. 
 
 Ianson v. Clyde, 393, 394. 
 
 I'Anson v. Stuart, 198. 
 
 Ibottson v. Henry, 1197. 
 
 Ideal Bedding Co. v. Holland, 114, 
 
 333. 
 Ihde v. Starr, 210, 230, 244, 489, 
 
 495, 500. 
 Imperial Bank v. Metcalfe, 475. 
 Imperial Bank v. Royal Ins. Co., 
 
 898, 899. 
 
 Imperial Cap Co. v. Cohen, 320, 326. 
 Imperial Land Co., Vining's Case, 
 
 re, 849. 
 Imperial Mercantile Credit, re, 849, 
 
 850. 
 Imperial Starch Co., re, 796, 813. 
 Ince v. Toronto, 107, 1063. 
 Inderwick, re, 741. 
 Ing Kon v. Archibald, 300, 1171, 
 
 1176. 
 Ingersoll, re, 507. 
 
 Inglis v. Halifax Electric Ry., 964. 
 Inglis and Toronto, re, 1039, 1068, 
 
 1069. 
 Ingolsby, re, 389. 
 Ingoldsby v. Ingoldsby, 402. 
 Inman, In re, Inman v. Inman, 387. 
 Innes v. Ferguson, 242. 
 Innes v. Havelock, 1059. 
 Innes v. Hutoheson, 189. 
 Inspector of Prisons v. Macdonald, 
 
 1234. 
 Insurance Act, In re, 863, 865, 866, 
 
 906. 
 International Bridge Co. v. Bridge- 
 burg, 1107, 1109. 
 International Text Book Co. v. 
 
 Brown, 857. 
 Iredale v. London, 210, 213, 226, 229, 
 
 242, 246. 
 Ireland, re, 1215. 
 Ireland v. Hart, 797. 
 Ireson v. Holt Timber Co., 86. 
 Irish v. Smith, 75, 76. 
 Iron Clay Brick Co., re, 851. 
 Irvine v. Bank of Australia, 793. 
 Irvine v. McCaulay, 222, 223, 233. 
 Irvine v. Sparks, 124. 
 Irving v. Grimsby Park, 376. 
 Irving v. McLachlan, 1230. 
 Irwin, re, 889. 
 
 Irwin v. Bank of Montreal, 49, 50. 
 Irwin v. Campbell, re, 182. 
 Irwin and Hawken, re, 182. 
 Irwin v. Toronto General Trusts, 
 
 135, 430. 
 Isa Mining Co. & Francey, re, 73, 
 
 74, 76. 
 Isaac and Euphrasia, re, 1209. 
 Isaacs v. Royal Ins. Ca., 1180. 
 Isenberg v. East India House, 100. 
 
TABLE OF OASES. 
 
 lxv 
 
 Isle of Coves v. Williscroft, 315. 
 Israel v. Leith, 246, 247, 454,. 485. 
 Itter v. Howe, 1229. 
 Ives v. Calvin, 523. 
 
 J. H., re, 422. 
 
 Jack v. Ontario S. & H. Ry., 1197. 
 Jackson and Basseford, re, 804. 
 Jackson v. Canada Southern, 649. 
 Jackson v. G. T. R., 943. 
 Jackson and Haden, Re, 445. 
 Jackson v. Hyde, 764. 
 Jackson v. Hurlock, 407. 
 Jackson v. Kassel, 716, 717. 
 Jackson v. Toronto, 107, 1067. 
 Jackson and Woodburn, re, 441. 
 Jacob, re, Mortimer v. Mortimer, 
 
 413. 
 James, re, 49. 
 
 James, re, Hole v. Bethune, 411. 
 James v. Attwood, 172. 
 James Bay Ry. v. G. T. R., 942. 
 James Bay Ry. and Worrell, re, 
 
 924. 
 James Bay Ry. and Worrell, re, 
 
 932. 
 James Bay and Worell, re, 926. 
 James v. Bridgeburg, 1040. 
 James v. Clements, 243. 
 James v. Dean, 410. 
 James v. Dominion Express, 946. 
 James v. G. T. R., 938, 970. 
 JameS v. Holmes, 249. 
 James v. James, 172. 
 James v. Macdonald, 287. 
 James v. Morgan, 716. 
 James v. O. and Q. Ry., 926, 928. 
 James v. Rathbun, 525, 527. 
 James v. Smith, 322. 
 James v. Toronto, 1062. 
 Jamieson v. Harris, 634. 
 Janes v. O'Keefe, 369. 
 Janesich v. Attenborough, 594. 
 Jannison, re, 889. 
 Jannison, re, 881. 
 Jansen, re, 880. 
 Jarman v. Hale, 222. 
 Jarrett v. Campbell, 109, 131. 
 Jarvis, re, 780. 
 Jarvis v. Brooklyn Electric, 630. 
 
 Jarvis and Cook, re, 214. 
 
 Jarvis and Cook, re, 234. 
 
 Jarvis v. Hall, 728. 
 
 Jarvis v. Toronto, 487. 
 
 Jasperson v. Romney, 1110, 1113. 
 
 Jay v. Johnstone, 236. 
 
 Jeffreys v. Evans, 738, 739. 
 
 Jelly, re, 263. 
 
 Jenckes Machine Co. v. C. N. R. 946. 
 
 Jenison and Kakabeka Falls, re, 
 
 181. 
 Jenkins v. Central Ontario, 923, 
 
 932. 
 Jenkins and Enniskillen, 1104, 1122, 
 
 1124. 
 Jenkins v. G. W. R., 938. 
 Jenkins v. Jones, 341. 
 Jenkins v. Martin, 365, 461. 
 Jenkins v. McWhdnney, 106, 464. 
 Jenkins v. Morris, 402. 
 Jenkins v. Price, 373. 
 Jenkins v. Wilcock, 802. 
 Jenks v. Viscount Clifden, 426. 
 Jennings v. G. T. R., 130, 131, 704. 
 Jennings v. Willis, 606, 610. 
 Jenoure v. Delmege, 198. 
 Jervis v. Wolfeistan, 432. 
 Jessup v. G. T. R., 214. 
 Jewell v. Broad, 323, 716. 
 Job v. Potton, 93. 
 Johannson v. Gudmundson, 323. 
 John Deere Plow Co. v. Agnew, 856, 
 
 857. 
 Johns v. James, 550. 
 Johnson, ex p., 358, 471, 474. 
 Johnson, In re, 11. 
 Johnson, re, 327. 
 Johnson v. Allen, 35. 
 Johnson v. Burkett, 117. 
 Johnson v. Brock, 240. 
 Johnson Chambers v. "Johnson, re, 
 
 1231. 
 Johnson v. Credit Lyonnais, 594. 
 Johnson, re, Golden v. Gillam, 333. 
 Johnson v. Hope, 538. 
 Johnson v. G. T. R., 704. 
 Johnson v. Johnson, 417. 
 Johnson v. Jones, 403. 
 Johnson v. Kayler, re, 151, 154. 
 Johnson v. Lindsay & Co., 629, 975. 
 
 s.a. — E. 
 
lxvi 
 
 TABLE OF OASES. 
 
 Johnson v. Mackenzie, 129, 137. 
 
 Johnson v. O'Neil, 69. 
 
 Johnson v. Ontario, etc., Ry., 924. 
 
 Johnson v. Reed, 490. 
 
 Johnson v. Refuge Assurance Co., 
 
 125. 
 Johnson v. Telford, 760. 
 Johnson & T. G. & B. Ry., re, 918. 
 Johnson v. Township of Nelson, 
 
 1055. 
 Johnston, re, 749, 750. 
 Johnston, In re, 805. 
 Johnston v. Burns, 566. 
 Johnston v. C. M. B. A., 781, 864, 
 
 893. 
 Johnstone v. Cheape, 179. 
 Johnston v. Clark, 698. 
 Johnston v. Consumers' Gas, 1. 
 Johnston v. Dominion of Canada 
 
 Guarantee and Accident, 102, 
 
 866, 873, 881, 882. 
 Johnston v. Dulmage, 567. 
 Johnston Foreign Patents, re, 803, 
 
 808. 
 Johnston v. Great "Western Rw. 
 
 Co., 657. 
 Johnston and Harwich, re, 1213, 
 
 1214. 
 Johnston v. Henderson, 577. 
 Johnston v. Howard School Trus- 
 tees, 1227. 
 Johnston v. London and Paris Ex- 
 change, 861. 
 Johnston v. Oliver, 212. 
 Johnston v. Sowden, 272. 
 Johnston v. Thousand Island Ry., 
 
 952. 
 Johnston and Tilbury East, re, 1126, 
 
 1128, 1130. 
 Johnston v. Wade, 569, 571, 584, 806, 
 
 808, 809. 
 Joice, re, 625, 1219. 
 Joliette, 31. 
 
 Jolly, re, Gathercole v. 'Norfolk, 216. 
 Jolly v. Kine, 247. 
 Joncas v. Ottawa, 1063. 
 Jones, In re, 750. 
 
 Jones, In re, Clegg v. Ellison, 779. 
 Jones v. Atlantic and North-west 
 
 Ry., 941. 
 
 Jones v. C. P. R., 642, 649, 651, 697, 
 
 966, 975. 
 Jones v. Coventry, 592. . 
 Jones v. Cewden, 484, 495. 
 Jones and Cummings, re, 441. 
 Jones Co., re, D. A., 125, 846, 855. 
 Jones v. Fraser, 522, 523. 
 Jones v. Godson, 180. 
 Jones v. G. T. R., 945, 954, 959. 
 Jones v. Hamilton Radial, 972. 
 Jones v. Johnston, 1222. 
 Jones v. Jones, 56, 1160. 
 Jones v. Lavington, 376. 
 Jones and London, Re, 1003. 
 Jones v. McGrath, 334, 339, 349. 
 Jones' v, Miller, 801. 
 Jones v. Morton Co., 657, 1187, 
 
 1188, 1189, 1191. 
 Jones v. North Vancouver Land 
 
 Co., 383, 801. 
 Jones and Ottawa, re, 1046, 1138. 
 Jones v. Paxton, 157. 
 Jones v. Port Arthur, 1021. 
 Jones v. Stephenson, 1063. 
 Jones v. Toronto and York Radial, 
 
 641, 964, 965. 
 Jones' Trusts, re, 103, 206, 420. 
 Jordan v. Frogley, 401, 687. 
 Jordan v. Jordan, 256, 688. 
 Jordan v. Provincial Provident, 
 
 870, 871. 
 Joy v. Robinson, 688. 
 Joyce v. Halifax St. Ry., 970? 
 Joyce and Pittsburg, re, 17, 992, 
 
 1018, 1172. 
 Joyner v. Weeks, 720. 
 Julius v. Bishop of Oxford, 6, 7. 
 Justin, re, 103. 
 Justin v. Goodwin, 131, 132. 
 
 Kaiserhof Hotel Co. v. Zuber, 382. 
 
 Kaltenbach v. Lewis, 595. 
 
 Kane v. Trusts and Guarantee Co., 
 
 382. 
 Kansas and Arkansas Ry. v. Dye, 
 
 648. 
 Karry and Chatham, re, 775, 1049. 
 Kaulbach v. Ardhibold, 402. 
 Kaul v. Trusts and Guarantee Co., 
 
 324. 
 
TABLE OF CASES. 
 
 lxvii 
 
 Kay v. Storry, re, 152, 158, 159. 
 
 Kay and White Silver CO., re, 513. 
 
 Kay v. Wilson, 233, 234. 
 
 Kaye, re, 419. 
 
 Kaye v. Croyden Tramways, 786, 
 
 792, 840, 847. 
 Keachie v. Toronto, 940. 
 Kearney v. Nicholls, 646. 
 Keech v. Hall, 718. 
 Keech v. Smiths Falls, 1059, 1062. 
 Keefer v. McKay, 364. 
 Keefer v. The Phoenix Insurance 
 
 Co., 876. 
 Keeling and Brant, re, 1155, 1173, 
 
 1192. 
 Keen v. Good, 390. 
 Keenan, re, 273. 
 Keenan v. Osborne, 271, 272. 
 Keene v. Thomas, 621. 
 Keewatin v. Kenora, 69, 314, 770. 
 Keewatin v. Ontario, 69. 
 Kehct, re, 136. 
 
 Keighley and Bryan, re, 176. 
 Keighley, Maxted & Co. v. Durant, 
 
 320. 
 Keilway v. Keilway, 399. 
 Keith, re, 708. 
 Kelley v. McBride, 884, 889. 
 Kelley v. Ross, 199, 200, 201, 202. 
 Kelly, re, 184. 
 Kelly v. Barton, 296, 300. 
 Kelly Bros. v. Tourist Hotel Co., 
 
 602, 619. 
 Kelly v. Carrick, 1058. 
 Kelly and Colonial Loan, re, 510. 
 Kelly v. Davidson, 632, 643, 653. 
 Kelly v. Electrical Construction, 
 
 794, 795, 814. 
 Kelly v. G. T. R., 937, 967. 
 Kelly v. Irwin, 733. 
 Kelly v. Macklem, 687. 
 Kelly v. Martin, 662. 
 Kelly v. O'Grady, 1204. 
 Kelly v. Ottawa Journal, 101, 277. 
 Kelly v, Ottawa St. Ry., 967. 
 Kelly and Toronto Junction, re, 
 
 1007, 1017, 1174. 
 Kelly v. Whitchurch, 1061. 
 Kemp v. Falk, 530, 591. 
 Kemp, re, Johnston v. A. O. U. W., 
 878, 881, 892. 
 
 Kempffer v. Conerty, 764. 
 Kempster, re, Kempster v. Kemp- 
 
 ster, 387. 
 Kempt v. Parkyn, 1115. 
 Kenna, re, 287, 288, 715, 1193. 
 Kennan v. Turner, 1114, 1117, 1119. 
 Kennedy v. Bateman, 241. 
 Kennedy v. Beal, 178, 181. 
 Kennedy v. Boles, 1006. 
 Kennedy v. De Trafford, 381. 
 Kennedy v. Haddon, 603. 
 Kennedy v. Kennedy, 106, 420, 464. 
 Kennedy v. Lawlor, 59, 60. 
 Kennedy v. Lyell, 341. 
 Kenni v. Macdonald, 159. 
 Kennedy v. Protestant Orphans' 
 
 Home, 54. 
 Kennedy v. Sandwich, 1214. 
 Kennedy v. Spence, 95, 446. 
 Kenni v. Macdonald, 159. 
 Kenny v. C. P. R., 946. 
 Kent County Gas Co., re, 824. 
 Kent v. Ellis, 326. 
 Kent v. Kent, 252, 253, 413, 676, 
 
 684. 
 Kent v. Ocean Accident, 882. 
 Kensington, re, 418. 
 Kenzie v. Harper, 258, 317. 
 Ker, re, 254, 740. 
 Ker v. Little, 242. 
 Kerby v. Cowderoy, 215, 222, 234. 
 Kerley v. London & Lake Erie, 912, 
 
 914, 961, 1178. 
 Kerlin Brothers v. Ontario Pipe 
 
 Line Co., 779, 857. 
 Kerr v. G. T. R., 949. 
 Kerr v Hastings, 722. 
 Kerr v. Styles, 273. 
 Kerr and Thornbury, re, 997, 1013. 
 Kerry v. James, 539, 546, 547, 572, 
 
 574, 575, 577, 582. 
 Kershaw, re, 327, 418. 
 Kerstemann v. MacLennan, 279. 
 Kervin v. Canadian Coloured Cot- 
 ton, 634, 638, 1190. 
 Ketoheson and C. N. 0., re, 927, 928, 
 
 930. 
 Ketohum and Ottawa, re, 1136. 
 Kettlewell v. Kettlewell, 110. 
 Kettlewell v. Watson, 485. 
 
lxviii 
 
 TABLE OF CASES. 
 
 Kettleworth v. Refuge Assurance 
 Co., 870. 
 
 Kew v. London, 1064. 
 
 Keyes v. Kirkpatrick, 556. 
 
 Keyes v. McKeon, 112, 116, 117, 143. 
 
 Keys, re, 710. 
 
 Kibble v. Fairthorne, 234, 236. 
 
 Kidd, re, 418. 
 
 Kidd v. Kidd, 426. 
 
 Kidd v. O'Connor, 282. 
 
 Kiddle v. Lovett, 653. 
 
 Kiely v. Kiely, 1, 810. 
 
 Kilgour v. Gaddes, 246. 
 
 Kilgour v. Port Arthur, 60. 
 
 Killichan v. Robertson, 59. 
 
 Kilmer v. B. C. Orchard Lands, 102. 
 
 Kincaid v. Reid, 685. , 
 
 King, re, 195, 695. 
 
 King v. Alford, 598, 600, 611. 
 
 King v. Chamberlayn, 441. 
 
 King v. Dupuis, 530. 
 
 King v. King, 106, 191, 464. 
 
 King v. Low, 605, 613. 
 
 King v. Matthews, 424, 425, 1075. 
 
 King v. Miller, 645. 
 
 King v. Northern Nav. Co., 639. 
 
 King v. Rogers, 258, 259, 260. 
 
 King v. Toronto Ry., 964, 973. 
 
 King v. Yorstan, 390. 
 
 Kingston, 34, 39, 42, 1144. 
 
 Kingston Cotton Mills Co., 809, 832, 
 833. 
 
 Kingston v. Kingston, 99. 
 
 Kingston v. Kingston Electric, 957, 
 963, 966. 
 
 Kingston Light, etc., Co. and King- 
 ston, re, 344. 
 
 Kingston, etc., Ry. v. Murphy, 922, 
 931, 932. 
 
 Kingston v. Rogers, 730, 1112. 
 
 Kingston v. The Salvation Army, 
 666, 667, 1299. 
 
 Kingston v. Shaw, 729. 
 
 Kinlock v. Scribner, 569. 
 
 Kinne, In re, 708. 
 
 Kinnear v. Aspden, 733. 
 
 Kinnear v. Clyne, 90, 224, 255. 
 
 Kinnear v. Shannon; 373. 
 
 Kinny, re, 327, 328, 331, 353, 711. 
 
 Kinsey v. Kinsey, 86. 
 
 Kinsman v. Rouse, 215. 
 
 Kirby v. Rathbun, 542. 
 
 Kirby Smith v. Parnell, 403. 
 
 Kirchoffer v. Imperial Loan, 266. 
 
 Kirohoffer v. Ross, 690. 
 
 Kirk v. Chisholm, 572. 
 
 Kirk v. Kirk, 110. 
 
 Kirk v. Toronto, 107. 
 
 Kirkby y. Briggs, 653. 
 
 Kirkland v. Peatfield, 238. 
 
 Kirkpatrick, re, 238, 257. 
 
 Kirkpatrick v. Cornwall, 807, HOo. 
 
 Kitching v. Hicks, 570, 578, 579. 
 
 Kitts v. Phillips, 627. 
 
 Klein, In re, 622. 
 
 Kloepfer, re, 888. 
 
 Knight, re, 188. 
 
 Knight v. Medora, re, 119. 
 
 Knight and Tabernacle, re, 181. 
 
 Knill v. G. T. R., 920, 927, 929, 933. 
 
 Knisley v. British America, 872, 
 
 895. 
 Knock v. Knock, 243, 246. 
 Knowles v. Bolton Corporation, 176. 
 Knox, re, 290, 1103, 1109. 
 Knox and Belleville, re, 1046. 
 Knyston v. Rogers, 729. 
 Koch v. Koch, ,110. 
 Koch and "Wideman, re, 385, 391, 
 
 393, 394, 396, 427, 441. 
 Kramer v. Waymark, 700. 
 Kreh v. Moses, 404, 879. 
 Kreutzer v. Brose, 146. 
 Kruger v. Wilcox, 620. 
 Kunla v. Moose Mountain, 98. 
 Kuntz v Grant, 545, 553, 577. 
 Kuntz v. Silver Spring, 816, 817. 
 Kuntz v. Silver Spring, 816. 
 Kurtze and McLean, re, 588, 842. 
 Knoch v. Rowlands, 218. 
 
 Labatt v. Bixwell, 535. 
 
 L'Abbe and Blind River, re, 1156, 
 1157. 
 
 Labelle v. O'Connor, 442, 444. 
 
 Labombarde v. Chatham Gas Co., 
 637, 961. 
 
 Lacey, re, Howard v. Lightfoot, 240. 
 
 Lachlin v. Usborne, 419. 
 
 La Compagnie de Mayville v. Whit- 
 ley, 810, 811. 
 
 Lacon v. Hooper, 6. 
 
TABLE OF CASES. 
 
 lxix 
 
 Lacons v. Warmoll, 250. 
 
 Ladd v. London, etc., Ry., 758, 759. 
 
 Lador v. Creighton, 271. 
 
 Lady Forest Gold Mine, re, 824, 825. 
 
 Ladywell Mining Co. v. Brooks, 825. 
 
 Lafontaine v. G. T. R., 946. 
 
 Lage v. Mackerson, 1231. 
 
 Lagunas Nitrate Co. v. Lagunas 
 
 Syndicate, 818. 
 Loi v. Stall, 1178. 
 Laicher v. Sudbury, 516. 
 Laidlaw and Campbellford, re, 182, 
 
 927, 930. 
 Laidlaw v. Crow's Nest Southern, 
 
 944. 
 Laidlaw v. Jackes, 241, 390. 
 Laidlaw v. Lear, 100. 
 Laing v. Avery, 450. 
 Laing v. Matthews, 451. 
 Laing v. Ontario L. & S. Co., 570. 
 Laing v. Slingerland, 280. 
 Laird v. Neelin, 1117. 
 Lake v. Bell, 93. 
 Lake Erie Excursion Co. v. Berti, 
 
 183. 
 Lakefleld v. Brown, 772. 
 Lakefield v. Sharp, 62, 63. 
 Lake Ontario Navigation Co., re, 
 
 799, 801, 810, 821, 829, 835, 837, 
 
 838. 
 Lakeview Mining Co. v. Moore, 60. 
 Lake Winnipeg Trading Co., re, 
 
 840. 
 Lalor v. Lalor, 364. 
 Lamb, re, 567. 
 Lamb v. Cleveland, 398. 
 Lamb Mfg. Co., re, 841. 
 Lambe v. Manual, 50. 
 Lambert v. Clarke, 153. 
 Lambert, In re, 1179. 
 Lambert v. Marsh, 727. 
 Lambertus v. Lambertus, 888. 
 Lambiere v. South Cayuga School 
 
 Trustees, 1218. 
 Lambton v. Poussett, 310, 311. 
 Lamond v. G. T. R., 703, 953. 
 Lamont v. Aldborough Trustees, 
 
 1216, 1220. 
 Lamont v. Canadian Transfer, 950. 
 Lampman v. Davis, 259. 
 Lamport v. Toronto. 1040. 
 
 Lancaster v. Ryckman, 202, 203. 
 
 Lancaster v. Shaw, 17. 
 
 Lancey v. Johnston, 345. 
 
 Land Credit Co. of Ireland, re, 432. 
 
 Lander and Badgley, re, 441. 
 
 Lands Allotment Co., re, 251. 
 
 Lane and Beacham, re, 442. 
 
 Lane v. Cllnkinbroomer, 299. 
 
 Lane v. Dungannon Driving Park 
 Association, 349. 
 
 Lane v. Hancock, 630. 
 
 Lane and Toronto, re, 1005. 
 
 Langham Hotel Co., re, 845. 
 
 Langley v. Beardsley, 547. 
 
 Langley v. Hawten, 129. 
 
 Langley v. Kahnert, 550, -588. 
 
 Langley v. Muir, 725. 
 
 Langley v. Palter, 536. 
 
 Langley v. Van Allen, 542, 553, 557. 
 
 Langrish v. Watts, 260. 
 
 Langton v. Bacon, 730. 
 
 Langton v. Hewson, 373. 
 
 Langtry v. Clark, 728, 730. 
 
 Laning v. New York Central, 644. 
 
 Laplante v. Seamen, 364. 
 
 La Pointe v. G. T. R. 957. 
 
 Lappage v. C. P. R., 645, 657. 
 
 Larcher v. Sudbury, 1069. 
 
 Larkin v. Larkin, 601, 603, 610, 
 615, 616. 
 
 Larner v. Larner, 688. 
 
 La Rose Mining Co 1 , v, T. and N. O. 
 Ry., 72, 77, 82, 943. 
 
 La Touche v. La Touche, 258. 
 
 Launby v. London Water Commis- 
 sioners, 181. 
 
 Laurie v. C. N. R. 946. 
 
 Law Car and General Ins. Co., re, 
 802, 906. 
 
 Law Society v. Dougall, 735. 
 
 Lawless v. Chamberlain, 669. 
 
 Lawless v. Crowley, 554. 
 
 Lawley, re, 431. 
 
 Lawley, re, Beyfus v. Lawley, 433. 
 
 Lawlor, re, 362. 
 
 Lawlor y Lawlor, 362, 475. 
 
 Lawrance v. Norreys, 242. 
 
 Lawrence v. Owen Sound, 1035. 
 
 Lawrence v. Pomeroy, 60. 
 
 Lawrie v. Lees, 188. 
 
 Lawrie v. Rathbun, 8, 455, 458, 494. 
 
lxx 
 
 TABLE OF CASES. 
 
 Lawry v. Tuckett-Lawry, 97. 
 Lawson v. Crawford, 100. 
 Lawson v. Edminson, 1161. 
 Lawson v. McGeooh, 542, 543. 
 Lawson v. Packard Electric, 644, 
 
 645, 1188, 1190. 
 Lay v. Midland Ry., 641. 
 Lazier v. Armstrong, 726. 
 Lazier t. Henderson, 724, 725. 
 Lea v. Wallace, 675. 
 Leach v. R., 711. 
 
 Leahy and Lakefield, re, 1002, 1013. 
 Leak and Toronto, re, 1031. 
 Leake v. Driffield, 679. 
 Leaklm v. Leakim, 670. 
 Learoyd v. Brooks, 664. 
 Leask v. Scott, 530. 
 Leaver, ex parte, 854. 
 Leblanche v. Wilson, 531. 
 Le Boutellier v. Harper, 17, 18. 
 Lebu v. G. T. R., 969. 
 Leckie, re, 434. 
 Leckie Estate, re, 436, 760. 
 Leddingham and Bentinck, re, 1209. 
 Lee, re, 1, 3, 48, 52. 
 Lee v. Abdy, 881. 
 Lee Brook Spinning Co., 819. 
 Lee v. Canadian Mutual, 510, 908. 
 Lee v. Ellis, 293. 
 Lee v. Friedman, 350, 623, 820. 
 Lee v. Gorrie, 580. 
 Lee v. G. T. R., 949. 
 Lee v. Griffin, 324. 
 Lee v. Hopkins, 689. 
 Lee v. Howes, 273, 478. 
 Lee v. Ianson, 728. 
 Lee v. Lorsch, 373. 
 Lee v. Morrow, 475. 
 Lee v. Neuchatel Asphalte Co., 818, 
 
 819. 
 Lee v. Toronto P. S. Board, 1220." 
 Leech v. Leech, 481. 
 Leeds and Harley Theatre, re, 826. 
 Lees v. Toronto and Niagara Power 
 
 Co., 926, 931. 
 Leeson v. Dufferiri, 299. 
 Leeson v. License Commissioners of 
 
 Dufferin, 1155. 
 Lefebvre v. Tretheway, 638, 697. 
 Lefeunteum v. Beaudoin, 104. 
 
 Lefurgey v. The Great West Land 
 
 Co., 264. 
 Leger v. Tlhe King, 944. 
 Leggatt v. Great Northern Ry., 700. 
 Legott v. Western, 114. 
 Legrus v. Cockerell, 409. 
 Leigh, In re, 709. 
 Leigh v. Taylor, 375. 
 Leishman v. Garland, J.24. 
 Leitch v. Leitch, 355. 
 Leitoh v. Molson's Bank, 430, 432. 
 Leitch v. Pere Marquette, 633, 662, 
 
 973. 
 Leizert v. Mathilda, 1063. 
 Lellis v. Lambert, 681. 
 Lemaitre v. Davis, 244. 
 Leman v. Houseley, 766. 
 LeMay v. C. P. R., 934, 936, 976. 
 LeMay v. MoRae, 177. 
 LeNeve v. LeNeve, 486. 
 Lennox, re, 21, 22, 24, 33, 36, 40, 41. 
 Lennox v. Empire Loan, 908. 
 Lennox v. G. T. R., 975. 
 Lennox v. " Star," 200. 
 Lenoir v. Ritchie, 736. 
 Lented v. Longdon, re, 155, 156. 
 Leonard v. Burrows, 125. 
 Leonard v. Leonard, 408. 
 Leschalles v. Woolf, 374. 
 Leslie v. Calvin, 425. 
 Leslie v. Canadian Blrkbeck, 791. 
 Leslie v. Malahide, 244, 245, 937, 
 
 984, 1004, 1005, 1006. 
 Lester and Clinton, re, 1069. 
 Lester v. Foxcroft, 94. 
 Letchner v. Toronto Ry., 972. 
 Letheby, re, 798. 
 Lett v. Commercial Bank, 684. 
 Lett v. St Lawrence and Ottawa, 
 
 702, 953. 
 Lever v. Koffler,. 317. 
 Lever v. McArthur, 662. 
 Levis, 29, 35. 
 Levoy v. Midland, 953. 
 Levy v. Davies, 276. 
 Levy v. Stogdon, 94. 
 Lewin v. Wilson, 237. 
 Lewis v. Baker, 727. 
 Lewis v. Brady, 1111. 
 Lewis v. Dalby, 300. 
 
TABLE OP OASES. 
 
 lxxi 
 
 Lewis v. Davies, 727. 
 
 Lewis v. Doerle, 329. 
 
 Lewis, re George, 398. 
 
 Lewis, v. Godson, 345. 
 
 Lewis v. Hughes, 322. 
 
 Lewis v. Standard Mutual Fire, 
 
 900. 
 Ley and Clarke, re, 1209, 1211. 
 Leys v. Toronto General Trusts, 
 
 390. 
 Lezotte v. Temiscouata, 969. 
 Lick v. Rivers, 264. 
 Lickbarrow v. Mason, 529, 530, 591, 
 
 594. 
 Life Interest, etc., v. Hand-in-Hand, 
 
 359, 381. 
 Lince v. Faircloth, 426. 
 Lincoln, 7, 11, 16, 28, 33, 34, 38, 42. 
 Lincoln Paper Mills v. 'Sit. Cathar- 
 ines, 924. 
 Linden v. Trussed Concrete, 633, 
 
 634, 654, 657, 705. 
 Lindsey, re, Filgate v. Lindsey, 432. 
 Lindsay v. Imperial Steel, 784, 821, 
 
 829, 832, 838. 
 Lindsay Petroleum Co. v. Pardee, 
 
 787. 
 Lindsay v. Toronto, 503, 506. 
 Lindsay's Trustees, re, 353. 
 Linet, re, 448. 
 Ling v. Smith, 411. 
 Lintner v. Lintner, 688. 
 Linton v. Imperial Hotel Co., 722, 
 
 724, 725. 
 Lints v. Lints, 877 893. 
 Liquor License Act, re, 290, 1175. 
 Lisgar, 31, 34, 35. 
 Lister and Belle River, re, 1232. 
 Lister and Clinton, re, 1071. 
 Little v. Aikman, 405, 406. 
 Little Bob River Dam, re, 526, 527. 
 Little v. Hawkins, 340. 
 Little v. Hyslop, 264. 
 Little v. Ince, 525, 527. 
 Little v. Oldaker, 763. 
 Little v. College of Dental Sur-' 
 
 geons, 762, 767. 
 Little Sturgeon and Mackey, re, 172. 
 Littledate v. Liverpool College, 214. 
 Littlejohn v. Soper, 721, 722, 725. 
 Litton v. Gunther, 602. 
 
 Liverpool and Miltoin Ry. v. Liver- 
 pool, 1006. 
 
 Liverpool Household Stores, re, 827. 
 
 Livingstone, re, 227, 229, 342. 
 
 Livingston v. Livingston, 436. 
 
 Livingstone v. Sydney and Glace 
 Bay, 964, 973. 
 
 Llado v. Morgan, 530. 
 
 Lloy v. Wells, 321. 
 
 Lloyd, re, 889. 
 
 Lloyd and A. O. U. W., re, 864, 866, 
 887, 888, 889. 
 
 Lloyds Bank v. Bullock, 339. 
 
 Lloyd, re, Lloyd v. Lloyd, 231. 
 
 Lloyd and Pegg, re, 178, 181. 
 
 Lloyd v. Walker, 1112. 
 
 Local Offices of the High Court, re, 
 1036. 
 
 Local Option, re, 102, 289, 1171. 
 
 Local Option Saltfleet, re, 992, 1015. 
 
 Lock v. Queensland Investment Co., 
 819. 
 
 Logan v. Hurlburt, 299, 1183. 
 
 Logan v. McKillop, 1202, 1203. 
 
 Loke Yew v. Port Swettenham Rub- 
 ber Co., 517. 
 
 London, re, 22, 28, 34. 
 
 London v. Bartram, 1004. 
 
 London Brewery v. Tennant, 100. 
 
 London and Brighton Ry. v. Tru- 
 man, 836, 1142. 
 
 London Board of Education v. Lon- 
 don, 1213, 1214, 1216, 1217. 
 
 London Canadian v. Graham, 330, 
 787, 
 
 London Canadian v. Murphy, 531. 
 
 London and County Banking Co. v. 
 Goddard, 420. 
 
 London Electric v. London, 986. 
 
 London Flour Co., re, 850. 
 
 London and General Bank, re, 833. 
 
 London and Globe Finance Corpor- 
 ation, re, 825. 
 
 London Loan v. Smyth, 266, 438. 
 
 London Mfg. Co. v. Milmine, 323. 
 
 London and Midland Bank v. Mit- 
 chell, 238. 
 
 London Mutual v. McFarlane, 154. 
 
 London v. Newmarket, 1039. 
 
 Looadon Pressed Hinge Co., re, 805, 
 808. 
 
lxxii 
 
 TABLE OP CASES. 
 
 London Speaker Printing Co., re, 
 
 780. 
 London S. W. Ry. v. Gorum, 444. 
 London St. Ry., re, 960, 962, 1101, 
 
 1106, 1108. 
 London, etc., Trusts Co. v. G. T. R., 
 
 975. 
 London Trust Co. v. Mackenzie, 809. 
 London United Breweries, re, 844. 
 London v. Watt and Son, 857. 
 London West v. London Guarantee, 
 
 872. 
 London and Westminster Bread Co., 
 
 re, 849. 
 London and Westminster Loan, etc., 
 
 Co. v London and N. W. Ry., 
 
 725. 
 London and Western Trusts v. Can- 
 adian Fire Ins. Co., 897. 
 London and Western Trusts v. G. 
 
 T. R., 703. 
 London and Western Trusts v. Lake 
 
 Erie and Detroit Ry., 974. 
 London and Western v. Loscombe, 
 
 854. 
 London and Western Trusts v. Tra- 
 ders Bank, 130T 131. 
 Long v. A. O. U. W., 864, 868, 869, 
 
 893, 894. 
 Long v. Clarke, 728. 
 Long v. Smith, 589. 
 Longaker, re, 710, 1193. 
 Longbotham and Sons, In re, 750. 
 Longeway v. Mitchell, 332. 
 Longhi v. Sanson, 732. 
 Longman v. Bath Electric Trains, 
 
 797. 
 Long Point v. Anderson, re, 147, 529, 
 
 1205. 
 Longway, q.t., v. Avison, 291. 
 Loosemore v. Tiverton, etc., Ry., 
 
 943. 
 Lord Advocate v. Fleming, 51. 
 Lord Advocate v. Galloway, 51. 
 Lord Bangor, re, 185. 
 Lord de Clifford, re, 421, 425. 
 Lord Provost of Glasgow v. Fairlie, 
 
 70. 
 Lord's Day Act, re, 289. 
 Loring, In re, 736. 
 Lomas, re, 406. 
 
 Los, ex parte, 849. 
 
 Losee v. Armstrong, 196. 
 
 Lott v. Cameron, re, 148. 
 
 Lott v. Sydney and Glace Bay, 965. 
 
 Lougheed v. Collingwood, 633, 657, 
 
 660, 661, 935, 968. 
 Louise, Municipality of, v. C. P. R., 
 
 933. 
 Lough Neagh Ship Co., In re, 843. 
 Lount v. Canada Farmers' Mutual, 
 
 868. 
 Lount v. London Mutual Fire, 897, 
 
 900, 904. 
 Lovate v. Whiston, 339. 
 Love v. Webster, 1111, 1114, 1119. 
 Lovegrove v. London Brighton Ry., 
 
 643. 
 Lovell v. Gibson, 274. 
 Lovell v. Lovell, 110. 
 Loveridge, re, Pearce v. Marsh, 234. 
 Lovitt v. A.-G. Nova Scotia, 55. 
 Low v. Morrison, 449, 451. 
 Lowe v. Darling, 723. 
 Lowe v. Pearson, 636. 
 Lowell v. Bank of TJ. C, 272. 
 Lowery v. Thompson, 1146, 1147. 
 Lowry v. Wood, 301. 
 Lowson v. Canada Farmer's Mu- 
 tual, 868. 
 Lowtiher v. Heaver, 340. 
 Lozee v. Armstrong, 191. 
 Lucas and Chesterfield Gas and 
 
 Water Board, re, 1032. 
 Lucas v. McFee, 374. 
 Lucas v. Pettit, 337. 
 Lucas, Tanner and Co., re, 568. 
 Lucas v. Tegart, 566. 
 Luciani v. Toronto Construction, 
 
 700, 705. 
 Luckhardt, re, 191, 192, 477, 551. 
 Ludbrook v. Ludbrook, 234. 
 Ludgate v. Ottawa, 1063. 
 Ludlam Ainslie Lumber Co. v. 
 
 Fallis, 604, 610, 611, 614, 620. 
 Ludlam v. Wilson, 614. 
 Lumbers and Howard, In re, 732, 
 
 733. 
 Lumsden v. Scott, 332, 335. 
 Lumsden v. Shipcote Land Co., 740, 
 
 743. 
 Lumsden v. Spectator, 198. 
 
TABLE OF CASES. 
 
 lxxiii 
 
 Lumsden v. Temiskaming & North- 
 ern Ry. Co., 82, 926, 967. 
 
 Lum Yet v. Hugill, 1147. 
 
 Lundy v. Lundy, 412. 
 
 Lundy v. Martin, 429. 
 
 L'TJnion St Joseph, re, 885, 893. 
 
 Lurey v. Rose, 216. 
 
 Lyell v. Kennedy, 252, 253. 
 
 Lynch v. Ellis, 323. 
 
 Lynch v Murdin, 641. 
 
 Lynes v. Smith, 222. 
 
 Lynn, re, 879, 886. 
 
 Lyons, ex parte, 448, 450, 736. 
 
 Lyons, In re, 461. 
 
 Lyon v. London City and Midland 
 Bank, 375. 
 
 Lyon v. Ryerson, 360. 
 
 McAllister, re, 415. 
 McAlpine, re, 175, 176. 
 McAlpine and Euphemia, re, 1209. 
 McAlpine v. Fleming, 817, 875. 
 McAlpine v. G. T. R., 951. 
 McAlpine and Lake Erie Ry., re, 
 
 930, 931. 
 McAlpine v. Record Printing Co., 
 
 202. 
 McArthur, re, 360. 
 McArthur v. Dom. Cartridge Co., 
 
 640, 663, 697. 
 McArthur v. Oollingwood, 1132. 
 McArthur v. Deans, 63. 
 McArthur v. Eagleson, 212. 
 McArthur v. Glass, 514. 
 McArthur v. N. P. Junction Ry., 
 
 967. 
 McBain v. Cavan, 1130. 
 McBain v. Toronto Ry., 964. 
 McBain v. Waterloo Mfg. Co., 1189. 
 McBean v. Dingwall, 593. 
 McBean v. Kinnear, 606, 608, 609, 
 
 610. 
 McBrady & Co., re, 737, 741, 744, 
 
 761. 
 McBride v. McNeil, 348. 
 McCabe v. Boyle, 1234. 
 McCabe y. Middleton, re, 155. 
 McCaber v. Thompson, 272. 
 McCall and Toronto, re, 1035. 
 McCallum, re, 241. 
 
 McCallum and Brant Trustees, re, 
 
 1217. 
 McCann v. Martin, 582. 
 McOann v. Toronto, 1066. 
 McOartee and Mulmur, re, 1007. 
 McCarthy, re, 741, 742. 
 McCarthy v. Arbuckle, 348, 479. 
 McCarthy v. Kilgour, 630. 
 McCarthy v. Tilsonburg, 931. 
 McCarthy v. Vespra, 301. 
 McCarthy v. Walker, 741, 742. 
 McCartney v. Haldimand, 1232. 
 McCarter v. York County Loan, 844, 
 
 845, 846. 
 McCaul v. Wolff, 579. 
 McCauley, re, 328, 329. 
 McClellan v. Powassan Lumber Co., 
 
 246, 509, 511. 
 McClement v. Kilgour, 654, 1189, 
 
 1190. 
 McClenaghan v .Perkins, 263, 264. 
 McCleve v. Moncton, 309. 
 McCloherty v. Gale Mfg. Co., 634, 
 
 635, 656. 
 McClure v. Brooke, 111, 172, 1131, 
 
 1134. 
 McCollum v. Caston, 97. 
 McConaghy v. Denmark, 219. 
 McConkey v. Brockville, 1132. 
 McOonnell, re, 763. 
 McConnell v. Beatty, 496, 1116, 1117. 
 McCord v. Cammill, 626, 648, 650, 
 
 950. 
 McCormack and Colchester, re, 1207, 
 
 1213. 
 McCormack v. G. T. R., 947. 
 McCormack v. Sydney and Glace 
 
 Bay, 972. 
 McCormack v. Toronto Ry., 351. 
 McCormack v. Warner, 146 
 McCoubrey v. Toronto, 1192. 
 McCowan v. Armstrong, 223, 226, 
 
 228. 
 McCracken, re, /T24. 
 McCracken v. C. P. R., 939. 
 McCracken and Sherborne, re, 1006, 
 
 1157, 1158. 
 McCrae v. Brussels, 661, 1074, 1107. 
 McCreary v. Brennan, re, 155. 
 McOrimmon v. Yarmouth, 1203. 
 
lxxiv 
 
 TABLE OP OASES. 
 
 McCuaig v. Conmee, 100. 
 McCuaig v. I. O. F., 894. 
 McCulloch v. Caledonia, 1124, 1134, 
 
 1135. 
 McCullough v. McCullough, 245, 247. 
 McCullough v. Sykes, 237, 254. 
 McCully, re, 365, 394. 
 McCurdy v. Swift, 1170. 
 McCutcheon v. Traders Fire, 900. 
 McDermid v. McDermid, 146. 
 McDermott, re, 929. 
 McDermott v. Ireson, 592. 
 McDermott v. Trachsel, 1111. 
 McDevitt, re, 134. 
 McDiarmid v. Hughes, 330, 787. 
 McDonald, re, 360. 
 McDonald Est, re, 50. 
 McDonald v. Bonfield, 66. 
 McDonald v. Cameron, 657. 
 McDonald and Cattenach, re, 1201, 
 
 1203. 
 McDonald v. Curran, 336, 541, 557. 
 McDonald v. Davidson, 435. 
 McDonald v. Dickenson, 299, 1060. 
 McDonald v. Dowdall, re, 148. 
 McDonald v. Elliott, 236, 255. 
 McDonald v. Gaunt, 578. 
 McDonald v. G. T. R., 974. 
 McDonald v. Grundy, 237, 359. 
 McDonald v. Horan, 335, 537, 547. 
 MoDonagh v. Jephson,, 275. 
 McDonald and Listowell, re, 116, 
 
 499. 
 McDonald v. McCall, 558. 
 McDonald v. McDonald, 264, 272, 
 
 490, 494. 
 McDonald v. Mcintosh, 228. 
 McDonald v. McDougall, 438. 
 McDonald v. Ottawa P. S. Board, 
 
 1227. 
 McDonald v. Reynolds, 27, 273. 
 McDonald v. Strickey, 625. 
 McDonald v. V. V. and E. Ry., 92. 
 McDonald v. Yarmouth, 1060. 
 McDonald Thresher Co. v. Steven- 
 son, 150. 
 McDonnel v. Grey, 299. 
 McDonough v. Dougherty, 476. 
 McDougall v. Ainslie Mining Co., 
 
 629. 
 McDougall v. Covert, 956. 
 
 McDougall v. G. T. R., 972, 975. 
 
 McDougall v. Jersey Imperial Ho- 
 tel, 827. 
 
 McDougall v. McDougall, 364. 
 
 McDougall v. McKinnon, 284. 
 
 McDougall v. Waddell, 269. 
 
 McDowell v. McDowell, 269. 
 
 McEachern, re, 399. 
 
 McEachern v. Oolton, 373. 
 
 McEachern v. Gordon, 283, 556, 559. 
 
 McEachren v. G. T. R. 649, 976, 
 
 McEvoy v. Clune, 272, 274. 
 
 McEvoy v. Waterford Steamboat 
 Co., 642. 
 
 McEwan v. Boulton, 265. 
 
 McEwen v. Gray, 390. 
 
 McEwan v. Spekt, 704. 
 
 McFadden v. Brampton, 256. 
 
 McFadden v. Brandon, 231, 234, 238, 
 385. 
 
 McFarlan v. Greenock School Trus- 
 tees, 1207, 1215. 
 
 McFarlane v. Fitzgerald, 1220. 
 
 McFarlane v. Henderson, 338. 
 
 McFarlane and Miller, re, 1203. 
 
 McFarlane v. Murphy, 681. 
 
 McGachen, In re, 736. 
 
 McGarr v. Prescott, 104, 1059. 
 
 McGarrigle v. Simpson, 402. 
 
 McGarry, re, 387, 388, 403, 581. 
 
 McGarry v. Thompson, 415. 
 
 McGarvey v. Strathroy, 1129. 
 
 McGee v. Baines, 2. 
 
 McGhie v. R., 244. 
 
 McGibbon v. Lawrason, 768. 
 
 McGill Chair Co., re, 791, 802, 821, 
 827, 855. 
 
 McGill Co., Munro's Case, re, 798. 
 
 McGill v. License Commissioners of 
 Brantford, 1154, 1158, 1160. 
 
 McGill v. Peterborough, 5. 
 
 McGillivray v. Lochiel, 1202. 
 
 McGillivray v. Muir, 292. 
 
 McGillivray v. Williams, 106, 464. 
 
 MeGinnis v. Hyslop Bros., 662. 
 
 McGIoghlon and Dresden, re, 1212. 
 
 McGowan v. Smith, 633. 
 
 McGolrick v. Ryall, 119, 144. 
 
 McGrade v. Le Syndicat Lyonnais 
 du Klondyke, 511, 513, 514, 515, 
 518. 
 
TABLE OP CASES. 
 
 lxxv 
 
 McGrathi and Durham, re, 10, 13, 14, 
 24, 1013, 1015, 1016, 1019, 1172, 
 1173. 
 
 McGrath, re, 707, 709, 710, 715. 
 
 McGrath v. Todd, 461. 
 
 McGraw v. Toronto Ry., 935. 
 
 McGregor v. Currie, 264. 
 
 McGregor v. Esquimault, 60. 
 
 McGregor, In re, 736. 
 
 McGregor v. Kelller, 218. 
 
 McGregor v. McGregor, 224, 319, 347, 
 348. 
 
 McGregor v. McMichael, 771. 
 
 McGugan v. MoGugan, re, 118, 123. 
 
 McGugan v. School Trustees of 
 Southwold, 1207. 
 
 McGuin, re, 195. 
 
 McGuire v. Burk's Falls, 107. 
 
 McGuire v. Shaw, 593. 
 
 McGuiness v. Dafoe, 299. 
 
 McGuinness v. McGuinness, 277. 
 
 McHugh v. Dooley, 402. 
 
 McHugh v. G. T. R., 426, 700. 
 
 McHugh v. Union Bank, 584, 775. 
 
 McHutchion and C. O. F., re, 888, 
 891. 
 
 Mcllvride v. Mills, 320. 
 
 Mollhargey v. Queen, 146. 
 
 Mcllmurray and Jenkins, In re, 
 499, 517. 
 
 Mcllquham v. Taylor, 807. 
 
 Mclntee v. Mclntee, 402. 
 
 Mclnnes v. Egremont, 941, 1058, 
 1064. 
 
 Mclnnes v. McGraw, re, 100. 
 
 Mclnnes Farms v. McKenzie, 321. 
 
 Mclntyre v. Flaubert, 319, 562, 567. 
 
 Mcintosh v. Firstbrook, 1187, 1189. 
 
 Mcintosh v. McDonell, 267, 269. 
 
 Mcintosh) v. McKenzie, 737. 
 
 Mcintosh v. Wood, 192. 
 
 Mclntyre, re, 137, 138, 427, 430, 436. 
 
 Mclntyre v. Attorney-General, 60, 
 61. 
 
 Mclntyre v. Blanchard School Trus- 
 tees, 1217. 
 
 Mclntyre v. Buchanan, 641. 
 
 Mclntyre v. Canada Co., 228. 
 
 Mclntyre v. Coate, 1145, 1146, 1147. 
 
 Mclntyre v. Crocker, 197. 
 
 Mclntyre v. East Williams Mutual, 
 
 9. 
 Mclntyre and Elderslie, 1209, 1213. 
 Mclntyre, ex parte, 737. 
 Mclntyre v. Fair, 264. 
 Mclntyre v. Lindsay, 835, 836, 1062, 
 
 1065, 1142. 
 Mclntyre v. London and Western, 
 
 435. 
 Mclntyre v. McCracken, 820. 
 Mclntyre v. National, 902. 
 Mclntyre v. Silcox, 878, 891. 
 Mclntyre v. Stata, 730. 
 Mclntyre v. Stockdale, 101. 
 Mclntyre v. Thomson, 220, 770. 
 Mclsaac v. Inverness Ry., 926. 
 Mclver v. Crown Point, 617, 618. 
 McKain and Canadian Birkbeck 
 
 Inv. Co., re, 797. 
 McKane v. O'Brien, 46. 
 McKay v. Bruce, 210, 243, 244, 246, 
 
 492. 
 McKay v. Cape Breton, 1182. 
 McKay v. Clare, re, 148. 
 McKay v. Davey, 8, 1200. 
 McKay v. G. T. R., 938. 
 McKay v. Howard, 378. 
 McKay and Martin, re, 123. 
 McKay v. McKay, 367. 
 McKay v. Nanton, 514. 
 McKay v. Talbot, re, 151, 160. 
 McKay v. Toronto Ry., 88, 90, 663. 
 McKay v. Wabash Ry., 651, 703, 
 
 704, 952. 
 McKeand v. C. P. R, 633, 636, 638. 
 McKechnie v. Grand Orange Lodge, 
 
 894. 
 McKee* v. Hamlin, 758. 
 McKeichie v. Montgomery, 265. 
 McKellar, re, 886. 
 McKellar v. Henderson, 46. 
 McKellar v. McGibbon, 569. 
 McKelvey v. Le Roi, 642. 
 McKelvin v. London, 1061, 1066. 
 McKenna and Osgoode, re, 1123. 
 McKenzie, re, 1234, 1235. 
 McKenzie v. Chilliwack, 309, 1037. 
 McKenzie v. G. T. R, 937, 938. 
 McKenzie v. Montreal, etc., Ry. 917. 
 McKenzie v. Shoebotham, 108, 131. 
 
lxxvi 
 
 TABLE OF CASES. 
 
 McKeown v. Toronto Railway, 703, 
 
 973, 977. 
 McKibbon v. Feegan, 879, 886, 890. 
 McKibbon v. Williams, 346. 
 McKillop v. Pidgeon & Foley, 1123. 
 McKim, re, 447, 452. 
 McKjm v. Bixel, 595, 597. 
 McKim v. East Luther, 1128, 1134. 
 McKinley v. Graham, 253. 
 McKinnon v. Harris, 320. 
 McKinnon v. McTague, 1111, 1113. 
 McKinnon v. Spence, 212, 227, 230, 
 
 342, 415. 
 McLachlin v. Dixon, 771. 
 McLachlin v. Schievert, 245. 
 McLaren, re, 139. 
 McLaren v. Caldwell, 524. 
 McLaren v. Fisken, 916. 
 McLaren v. Fraser, 489. 
 McLaren v. Rice, 66. 
 McLaren v. Rivett, 390. 
 McLarty, re, 568. 
 McLarty v. Todd, 623. 
 McLauchlin v. G. T. R., 940. 
 McLaughlin v. Mayhew, 95, 317. 
 McLaughlin v. McLaughlin, 402. 
 McLaughlin v. Ontario Iron and 
 
 Steel Co., 649. 
 McLaughlin v. Plympton, 1133. 
 McLay, In re, 458. 
 McLean v. Allen, 100, 275. 
 McLean v. Anthony, 730. 
 McLean v. Howland, 1031, 1068, 
 
 1069. 
 McLean v. McLeod, re, 152. 
 McLean v. Osgoode, re, 150. 
 McLean v. Pinkerton, 6, 575. 
 McLean v. .St. Thomas, 1141? 
 McLean v. Sault Ste." Marie, 1072. 
 McLeish v. Howard, 299. 
 McLellan,' re, 179. 
 McLellan v. Brown, 291. 
 McLellan v. Chinguacousy, 1035, 
 
 1136, 1202, 1203. 
 McLellan v. McKinnon, 305. 
 McLennan v. Howard, 436. 
 McLennan v. McDonald, 484. 
 McLennan v. McLean, 470. 
 McLeod, re, 131, 133. 
 McLeod v. Amiro, re, 147. 
 
 McLeod and Armstrong, re, 71, 72. 
 McLeod v. Aurora, 1070. 
 McLeod v. Avey, 345. 
 McLeod v. Canadian Northern, 938, 
 
 969. 
 McLeod v. Canadian Stewart, 646. 
 McLeod v. Cammell, 912. 
 McLeod v. Clark, 155. 
 McLeod v. Dawson, 508, 516, 521. 
 McLeod, re, v. Emigh, 158, 681, 683. 
 McLeod v. Fortune, 573, 581. 
 McLeod v. McNab, 408. 
 McLeod v. Noble, 24. 
 McLeod and Tay, re, 1208, 1213. 
 McLeod v. Truax, 494. 
 McLeod v. Wadland, 476. 
 McLure v. Black, 58. 
 McMahon v. Coyle, 372, 375. 
 McMahon v. G. T. R. 214, 245, 919. 
 McMahon v. Spencer, 236, 237. 
 McMally v. Blackledge, 117. 
 McManus v. Fortescue, 351. 
 McManus v. Rothschild, 604, 609. 
 McMartin v. Moore, 569. 
 McMaster Estate, re, 1104, 1105. 
 McMaster v. Garland, 569. 
 McMaster v. Morrison, 222. 
 McMaster v. Phipps, 453, 487. 
 McMicking v. Gibbons, 231, 235, 256. 
 McMichael v. G. T. R., 938. 
 McMichael v. Wilkie, 551, 673, 679, 
 
 683. 
 McMillan, re, 392, 403. 
 McMillan v. American-Abell Engine 
 
 Co., 63. 
 McMillan v. Atty.-.Gen., 220. 
 McMillan v. Bentley, 320. 
 McMillan and Fortier, re, 146. 
 McMillan v. Le Roi Mining Co., 
 
 794. 
 McMillan v. McMillan, 358, 421, 488. 
 McMillan v. McSherry, 570. 
 McMillan v. Munro, 481. 
 McMillan v. Rankin, 1214. 
 McMillan v. Southwest Boom Co., 
 
 528. 
 McMillian v. Orillia Export Lumber 
 
 Co., 349. 
 McMorrin v. C. P. R. 946. 
 McMulkin v. Oxford, 1031, 1041, 
 
 1133. 
 
TABLE OF CASES. 
 
 lxxvii 
 
 McMulkin v. Traders Bank, 124. 
 McMullin v. Free, 356. 
 McMullin v. Macdonell, 66. 
 McMullen v. Nova Scotia Steel, 640, 
 
 953. 
 McMullen v. Vannatto, 719, 721. 
 McMullen v. Wadsworth, 669. 
 McMurray v. East Nissouri P. S. 
 
 B., 1218. 
 McMyn, re, Lightbourn v. McMyn, 
 
 531. 
 McNab v. Renfrew, 1055. 
 McNabb, re, 427, 440. 
 McNair v. Collins, 1050, 1196. 
 McNally v. Anderson, 193, 196. 
 McNamara v. McLay, 455, 458. 
 McNaughton v. Caledonian Ry., 646. 
 McNaughton v. Hay, re, 149. 
 McNaughton v. Wigg, 370. 
 McNeill v. Cullen, 404. 
 McNeill v. Lewis Brothers, Ltd., 
 
 858. 
 McNeil v. Plotke, re, 71, 72, 73, 74, 
 
 76, 79. 
 McNeil v. .Stewart, 416. 
 McNerhanie v. Archibald, 318. 
 McNevin v. Canadian Ry. Accident, 
 
 882. 
 McNichol v. McPherson, 45, 267, 
 
 270. 
 McNulty, re, 185. 
 McNulty v. Morris, 764. 
 McPhadden v. Bacon, 358. 
 McPhail v. Mcintosh, 412. 
 McPhalin v. Vancouver, 1062. 
 McPherson v. Ferguson, 187, 188. 
 McPherson v. Forrester, 157. 
 McPherson v. Gedge, 598, 614, 617, 
 
 618. 
 McPherson v. Irvine, 129, 130, 131. 
 McPherson v. McPherson, 265. 
 McPherson v. Reynolds, 579. 
 McPherson v. Temiscaming, 68, 269, 
 
 274. 
 McPherson and Toronto, re, 179, 
 
 1033. 
 McPherson v. Usborne School Trus- 
 tees, 1218. 
 McQuarrie v. Duggan, 774. 
 McQuay v. Eastwood, 764. 
 
 McQuillan and Guelph Junction 
 
 Ry., 927. 
 McQuillan v. iS!t. Mary's, 1064. 
 McRae, re, 349. 
 
 McRae and O. & Q. Ry., re, 929. 
 McReedie v. Dalton, 123. 
 McShane v. T. H. & B. Ry., 975. 
 McSloy v. Smith, 1197, 1198. 
 McTavish v. Rogers, 554. 
 McVein v. Tiffin, 610, 6ll 
 McVeity v. Ottawa Free Press, 201. 
 McVicar, re, 407. 
 McVicar v. Port Arthur, 1139. 
 McVity v. Trenouth, 220, 234, 235, 
 
 236, 480, 485. 
 McWilliam v. Sovereign Bank, 320. 
 McWilliams v. Dickson, 
 
 Maas v. Pepper, 570. 
 
 Maber v. Penkalski, 322. 
 
 Macbeth v. .Smart, 56. 
 
 Maccord v. Osborne, 323. 
 
 Macdonald, re, 260. 
 
 Macdonald v. Balfour, 552, 553. 
 
 Macdonald v. Crombie, 53-5. 
 
 Macdonald v. G. T. R, 921 
 
 Macdonald v. Georgian Bay Lum- 
 ber Co., 549. 
 
 Macdonald v. Macdonald, 231, 255. 
 
 Macdonald v. The Mail, 198, 201. 
 
 Macdonald v. Noxon, 851. 
 
 Macdonald v. Peters, 209. 
 
 Macdonald and Sullivan, re, 513. 
 
 Macdonald and T. H. & B. Ry., re, 
 933, 943. 
 
 Macdonald and Toronto, re, 1031. 
 
 Macdonal v. Trusts and Guarantee, 
 424. 
 
 Macdonald v. Walkerton and Luck- 
 now Ry., 642. 936. 
 
 Macdonald v. Whitfield, 533. 
 
 Macdonald v. The World, 200, 201. 
 
 Macdonell v. Blake, 735. 
 
 Macdonell v. Purcell, 329, 407, 408. 
 
 Macdonell v. Toronto, 1074. 
 
 Macdonnell v. B. C. Electric Ry., 
 963. 
 
 Macdougall v. The Law Society, 737. 
 
 Mace and Frontenac, re. 1012. 
 
 Macfle v. Hutchinson, 1182. 
 
lxxviii 
 
 TABLE OF CASES. 
 
 Macgregor v. Defoe, 727. 
 Maclntyre v. Pogose, 686. 
 Mack and Board of Audit, re, 44 
 
 310, 311. 
 Mack and Stormont, re, 311. 
 Mackay, re, 424. 
 
 Mackay v. Colonial Inv. Co., 92. 
 Mackay v. Douglas, 334. 
 Mackay v. G. T. R., 938. 
 Mackay v. Mackay, 418, 430. 
 Mackay, re, Mackay v. Gould, 239. 
 Mackay v. Mason, 831. 
 Mackay and Nelson, re, 397. 
 Mackay v. Sherman, 524. 
 Mackay's Trustees v. Mackay, 353. 
 Mackenzie Estate, re, 410. 
 Mackenzie v. Goodfellow, 201. 
 Mackenzie v. Johnson, 93. 
 Mackenzie v. Maple Mountain, 813,. 
 
 815. 
 Mackenzie v. Monarch Life, 796, 
 
 832. 
 Mackenzie v. Wadson, 1114, 1117. 
 Mackenzie v. West Flamborough, 
 
 1128, 1204. 
 Mackey, re, 48. 
 Mackison v. G. T. R., 952. 
 Macklin v. Dowling, 438. 
 MacLaren v. Atty.-Gen. Quebec, 65. 
 Maclennan v. Foucault, 482, 486. 
 Maclennan v. Gray, 482, 488. 
 MacLaren v. MacLaren, 879, 886. 
 MacNabb, re, 439. 
 MacNabb v. Innes, 715. 
 Macnamara v. Kirkland, 615. 
 MacNamara v. McLay, 503, 504, 505, 
 
 506. 
 Madden v. Cox, 916. 
 Madden v. Kemster, 620. 
 Madden v. Nelson and Fort Shep- 
 
 pard Ry., 600, 913, 938, 944. 
 Maddison v. Emmerson, 61. 
 Mader v. Halifax Electric, 965. 
 Madill v. Caledon, 1065. 
 Madill v. McConno.ll, 327, 328, 329, 
 
 330, 331, 402, 1231. 
 Madoc, re, 12. 
 Madrid Bank, re, 827, 828. 
 Madrid Bank v. Potty, 817. 
 Magann v. Bonner, 732. 
 Magann v. Ferguson, 564, 724, 730. 
 
 Magdalen College Case, 2. 
 
 Magee v. Rankin, 722. 
 
 Mager v. The Canadian Tin Plate 
 
 Decorating Co., 151. 
 Magnussen v. L'Abbe, 627. 
 Magrath v. Todd, 470. 
 Magurn v. Magurn, 885. 
 Mahoney v. East Holyford Mining 
 
 Co., 777. 
 Mahon v. McLean, 60. 
 Maidstone and Essex, re, 1055. 
 Mail Printing v. Clarkson, 565. 
 Mair v. Cully, 261. 
 Maisonneuve v. Roxborough, 1202, 
 
 1204. 
 Maitland v. Mackenzie, 1145, 1147. 
 Maitland v. Mackenzie & Toronto 
 
 Ry., 256. 
 Maitland v. Mills, 631. 
 Maher, re, 288, 710, 1192, 1193. 
 Major v. Mackenzie, 553. 
 Makarsky v. C. P. R., 702. 
 Makins v. Piggott & Inglis, 975. 
 Makins v. Robinson, 610, 612. 
 Malcolm v. Ferguson, 402. 
 Malcolm v. Leys, 118. 
 Malcolm v. Malcolm, 1208. 
 Mallandine, re, 396. 
 Mallison v. Carr, 1184. 
 Mallory, re, 763. 
 Malone v. Hamilton, 979. 
 Malone v. Hathaway, 644. 
 Malone v. Laskey, 371. 
 Malone v. Malone, 387. 
 Malot v. Malot, 668, 670. 
 Malott v. Mersea, 1129, 1132. 
 Malouf v. Labad, 270, 831. 
 Mammelito v. Page Hersey Co., 636. 
 Manchester Brewery v. Coombs, 718. 
 Manchester Corporation v. New 
 
 Moss Colliery, 1031. 
 Manchester Ship Canal v. Pearson, 
 
 93, 174. 
 Manchester Royal Infirmary, re, 
 
 422. 
 Mandeville v. Nicholl, 494. 
 Manes Tailoring Co., re, 810, 828, 
 
 829, 837, 838. 
 Manes Tailoring Co. v. Wilson, 806, 
 
 809. 
 Mangena v. Wright, 199, 
 
TABLE OF CASES. 
 
 lxxix 
 
 Mandley v. Monck, 1204. 
 
 Manley v. Mackintosh, 322. 
 
 Mauley v. Young, 332. 
 
 Mann, re, 328, 403. 
 
 Manners v. .St. David's Mines, 785. 
 
 Manning v. Commissioner of Titles, 
 
 516. 
 Manning v. Robinson, 48, 54, 327, 
 
 328. 
 Manufacturers Lumber Co. v. Pig- 
 eon, 101, 277. 
 Manufactures Coal Rates, re, 956. 
 Maple Leaf Dairy Co., re, 549, 841, 
 
 850, 851. 
 Mara, re, 442. 
 Mara v. Browne, 423. 
 Mara and Wolfe, re, 442. 
 March v. Huntley, 1125. 
 Marcille v. Donnelly, 371. 
 Margeson v. Commercial Union, 901. 
 Margrett, ex p., 876. 
 Marine Investment, re, 849. 
 Maritime Bank of Canada v. New 
 
 Brunswick Receiver General, 
 
 561. 
 Maritime Bank, The, v. Troop, 802. 
 Markle v. Donaldson, 631, 646, 653, 
 
 934. 
 Marks v. .Marks, 411. 
 Markham v. Aurora, 424, 1039. 
 Markham v. Paget, 376. 
 Marlborough, re, Duke of, 324. 
 Marlborough v. Sartoris, 209. 
 Marlock and Cline, re, 816. 
 Marmora, re, 12. 
 Marnham, ex p., 1180. 
 Marreco v. Richardson, 258. 
 Marriage Daws, re, 666. 
 Marriage Neave & Co., re, 805. 
 Marrow v. Flimby & Co., 626. 
 Marrs v. Davidson, 770. 
 Marsh v. Hamilton, 964. 
 Marshall, re, 208. 
 Marshall Estate, re, 48. 
 Marshall and A. O. U. W., re, 874. 
 Marshall v. Central Ontario, 978. 
 Marshall v. Gowans, 1145. 
 Marshall v. Industrial Exhibition, 
 
 1138. 
 Marshall v. Orient S. S. Nav. Co., 
 
 658. 
 
 Marshall's Valve Gear Co. v. Man- 
 ning, 786, 810. 
 Marshfleld, re, 231, 232, 382. 
 Marten v. Chandlar, 415. 
 Marten, re, Shaw v. Marten, 413. 
 Marthinson v. Patterson, 572, 576, 
 
 577, 582, 584. 
 Martin, In re, 393. 
 Martin and Dagneau, re, 442. 
 Martin v. Fowler, 276, 560. 
 Martin v. Garlow, 109. 
 Martin v. Gibson, 782. 794, 813, 
 
 814, 828, 915, 916. 
 Martin v. G. T. R., 649, 650. 
 Martin v. Howard, 774. 
 
 Martin v. Hutchinson, 727. 
 
 Martin v. Mackonochie, 98. 
 
 Martin v. Magee, 386. 
 
 Martin v. Maine Central Ry., 937. 
 
 Martin v. Martin, 402. 
 
 Martin v. McLeod, 123. 
 
 Martin v. McMullen, 563. 
 
 Martin and Merritt, re, 380, 381, 
 383, 391. 
 
 Martin v. Middlesex, 84, 1031, 1047. 
 
 Martin v. Mitchell, 123. 
 
 Martin and Moulton, re, 1068, 1069 
 
 Martin v. Nadel, 154. 
 
 Martin v. Pycroft, 321. 
 
 Martin v. Romleskie, 63, 64. 
 
 Martin v. Sampson, 575. 
 
 Martin and Simcoe, re, 1210, 1212. 
 
 Martin v. St. Catharines, 1158. 
 
 Martindale v. Clarkson, 192, 193. 
 
 Martini v. Gzowski, 927. 
 
 Martin's Trusts, re, 183. 
 
 Maskelyne v. Smith, 333. 
 
 Mason, re, 417. 
 
 Mason v. Bickle, 585. 
 
 Mason v. Cooper, 277. 
 
 Mason v. Johnston, 236, 254. 
 
 Mason v. Lindsay, 585, 588, 589. 
 
 Mason v. Macdonald, 579, 580. 
 
 Mason v. Mason, 386, 388, 417. 
 
 Mason v. Massachusetts Benefit, 
 869, 871, 874, 
 
 Mason v. Motor Traction Co., 785, 
 847. 
 
 Mason v. Ogden, 412. 
 
 Mason v. Peterborough, 425, 652. 
 
 Mason v. South Norfolk Ry., 924. 
 
lxxx 
 
 TABLE OP CASES. 
 
 Mason v. Thomas, 574, 578. 
 
 Massachusetts Benefit Life, re, 866, 
 894. 
 
 Massey Mfg. Co., re, 783. 
 
 Massie v. Toronto Printing Co., 734. 
 
 Masson v. De Fries, 686. 
 
 Masson v. Mossop, 292. 
 
 Mathe, re, 417. 
 
 Mathers, re, 434. 
 
 Mathers v. Lynch, 579. 
 
 Mathieu, re, 707, 708. 
 
 Maton v. Clavir,, re, 442. 
 
 Mattei v. Gillies, 2, 1145, 1147. 
 
 Matthews, re, 133. 
 
 Matthews v. Bouchard, 104. 
 
 Matthew Guy, etc., Co., re, 816, 821, 
 829. 
 
 Matthews & Co. v. Marsh, 146. 
 
 Matthews v. Hamilton Powder Co., 
 628, 629, 643. 
 
 Matthews v. Usher, 356. 
 
 Maughan v. Casci, 243, 342. 
 
 Mawson v. Blane, 323. 
 
 Maxim (Hiram) Lamp Co., re, 839. 
 
 Maxon v. Irwin, 127, 154. 
 
 Maxwell v. Scarfe, 275. 
 
 May v. May, 405, 667, 668, 669. 
 
 May v. Conn, 587. 
 
 May v. May, 97. 
 
 May v. Security Loan, 569, 575, 579. 
 
 May v. Standard Ins. Co., 905. 
 
 Maybee, re, 405. 
 
 Maybury v. O'Brien, 320. 
 
 Maycock v. "Wabash, 648, 954. 
 
 Mayhew, re, 413. 
 
 Mazza v. Port Arthur, 109, 972. 
 
 Mead v. Etobicoke, 963. 
 
 Meades, In re, 715. 
 
 Meadows v. Tanner, 352. 
 
 Mears v. "Western Canada Pulp and 
 Paper Co., 827. 
 
 Mearns v. A. O. TJ. "W., 873. 
 
 Mearns v. Petrolia, 998. 
 
 Measures Bros. v. Measures, 816. 
 
 Mechefeske v. Robert Stewart Limi- 
 ted, 621. 
 
 Mechram v. Home, 296. 
 
 Medbury, Lothrop v. Medbury, re, 
 130. 
 
 Medical Act, re, 102. 
 
 Medland and Toronto, re, 1077. 
 
 Medler and Toronto, re, 932. 
 Medora, re, 1212, 1216, 1220. 
 Meehan v. Pears, 370, 1110. 
 Meek v. Parsons, 62, 63. 
 Meenie v. Tilsonburg, 641. 
 Meharg v. Lumbers, 557. 
 Meighen v. Pacaud, 367. 
 Meigs v. Comeau, 24. 
 Mein, re, 185. 
 Mein v. Mein, 1234, 1235. 
 Meisner v. Meisner, 317. 
 Melady v. Jenkins S. S. Co., 534. 
 Meller v. G. T. R., 704. 
 Meller v. Reid, 548. 
 Mellersh v. Brown, 232. 
 Mellish v. Van Norman, 572. 
 Melocha v. Deguire, 759. 
 Melville, re, 400, 403, 409. 
 Menzies v. Farnon, 667, 670. 
 Mercantile Bank v. Evans, 350, 443. 
 Mercer, re, 128, 426. 
 Mercer v. C. P. R., 947. 
 Mercer and Neff, 385, 392, 394, 395, 
 
 396, 427, 428, 429. 
 Merchants Bank v. Hancock, 556. 
 Merchants Bank v. Monteith, 134, 
 
 883. 
 Merchants Bank v. Morrison, 491. 
 Merchants Bank v. Sussex, 280, 
 
 282. 
 Merchants Fire v. Equity Fire, 901, 
 
 904. 
 Merchants Life, re, 863, 906. 
 Mercier v. Campbell, 105, 318. 
 Meredith v. Slemin, 300. 
 Meriden Britannia Co. v. Braden, 
 
 541, 569, 576. 
 Meriden Silver Co. v. Lee, 535. 
 Merritt v. Hepenstal, 641, 697. 
 Merritt v. Ottawa, 1063. 
 Merritt v. Shaw, 365. 
 Merritt v. Toronto, 69, 1031, 1047. 
 Mersea, re, 1131, 1210, 1211. 
 Mersea and Rochester, re, 1126. 
 Mersey Docks Trustees v. Gibbs, 
 
 1141. 
 Merthyr Collieries Co., re, 77. 
 Metallic Roofing Co. v. Jose, 89. 
 Metallic Roofing Co. v. Jameson, 
 
 619. 
 Metcalfe and Adelaide, re, 1135. 
 
TABLE OF CASES. 
 
 lxxxi 
 
 Methodist Church Trustees v. Wel- 
 
 land, 1042. 
 Metropolis, etc., Building Society, 
 
 re, 234. 
 Metropolitan Coal Consumers v. 
 
 Scrimgeour, 821. 
 Metropolitan Police Commissioner 
 
 v. Roberts, 1160. 
 Metropolitan R. W. Co. v. Jackson, 
 
 949. 
 Mette v. Mette, 407. 
 Meudell, re, 48. 
 Meunier v. Hooper, 794, 915. 
 Meyer v. Toronto, 1032. 
 Meyers v. Hamilton Provident, 352. 
 Meyers v. Meyers, 431. 
 Meyers v. Sault *Ste. Marie Pulp, 
 
 634, 1189. 
 Meyerscough v. Lake Erie, etc., Ry., 
 
 179. 
 Mickleborough v. Strathy, 315, 340. 
 Michell, re, 112, 440. 
 Michell and Pioneer, In re, 508. 
 Michie v. Erie and Huron Ry., 916. 
 Michie and Toronto, re, 369. 
 Middleton, re, Elizabeth, 407. 
 Middleton v. Pollock, 332. 
 Middlemas v. Stevens, 209. 
 Middlesex Justices v. R., 8. 
 Midland Counties District Bank, v. 
 
 Attwood, 842, 843. 
 Midland Loan v. Cowieson, 573. 
 Midland Ry. v. Great Western Ry., 
 
 945. 
 Midland Ry. v. Haunchwood Brick 
 
 and Tile Co., 943. 
 Midland Ry. v. Robinson, 943". 
 Midland Ry. v. Wright, 245, 919. 
 Miernicki v. Sandwich east, 1041. 
 Migneaud v. Packer, 890. 
 Milbank v. Vane, 361. 
 Miles v. Atfkatell, 338. 
 Millburn v. Millburn, 620. 
 Miller, re, 184. 
 Miller v. Aldworth, 317. 
 Miller v. Brown, 228, 483. 
 Miller v. Clark, 68. 
 Miller v. G. T. R., 650, 660, 701, 
 
 935, 954, 1203. 
 Miller and Great Western Ry., re, 
 
 928. 
 
 Miller v. Kennedy, 741. 
 
 Miller v. Lea, 303. 
 
 Miller v. Mackenzie, 1201. 
 
 Miller v. McCarthy, 42. 
 
 Miller v. McGill, 481. 
 
 Millar v. McTaggart, 262, 336. 
 
 Miller v. Miller, 463. 
 
 Miller v. Monarch Mfg. Co., 627. 
 
 Miller v. Park, 108. 
 
 Miller v. Reid, 656. 
 
 Miller v. Rowan, 329. 
 
 Miller v. Ryerson, 257, 764. 
 
 Miller v. Tew, 552, 726. 
 
 Milligan v. Sutherland, 579. 
 
 Milligian V. Toronto Ry., 88, 106 
 
 973. 
 Mills, re, 394. 
 Mills v. Freel 1071. 
 Mills and Hamilton, re, 1068, 1069. 
 Mills v. King, 579. 
 Mills v. Mercer, 262. 
 Mills, re; Newcombe v. Mills, 877, 
 
 881. 
 Mills and Richmond, re, 1012. 
 Mills v. Small, 349. 
 Mills v. Vancouver, 1183. 
 Milne, re, 185. 
 Milne v. Moore, 431. 
 Milne v. Ontario Marble Quarries, 
 
 820. 
 Milne and Sylvester, re, 1219. 
 Milne and Thorold, re, 4, 998, 1175. 
 Milne v. Yorkshire Guarantee Co., 
 
 532. 
 Mimico Sewer Pipe Co., re, 761. 
 Mingeaud v. Packer, 876, 877. 
 Mink v. Jarvis, 44. 
 Minns v. Omemee, 1061, 1070. 
 Minor v. Gilmore, 69. 
 Minshall, re, 136. 
 Minty v. Bourne, 328. 
 Misener v. Michigan Central, 934, 
 
 936. 
 Misener v. Wabash Ry., 951, 976. 
 Misner v. Toronto and York Rad- 
 ial, 660, 704. 
 Mitchell and Campbellford, re, 11, 
 
 13, 14, 24, 989, 1014, 1015, 1016, 
 
 1173, 1174. 
 Mitchell v. Canada Foundry, 655. 
 
 s.a. — F. 
 
lxxxii 
 
 TABLE OF CASES. 
 
 Mitchell v. Dobson, 9. 
 Mitchell v. Doyle, 149, 150. 
 Mitchell v. G. W. Ry. Co., 924, 933. 
 Mitchell v. Hamilton, 965. 
 Mitchell v. Heintzman, 1146. 
 Mitchell v. London Assurance, 900. 
 Mitchell v. Pembroke, 294, 1036, 
 
 1037. 
 Mitchell v. Scribner, re, 159. 
 Mitchell v. Sykes, 592. 
 Mitchell v. Toronto Ry., 973. 
 Mitchell v. Weir, 401. 
 Moberly and Collingwood, re, 119. 
 
 144. 
 Modern Bedstead Co. v. Tobin, 779, 
 
 780, 826. 
 Modern House Mfg. Co., 829, 838, 
 
 844. 
 Moffatt v. Bateman, 957. 
 Moffatt v. Carleton Place Board of 
 
 Education, 1223. 
 Moffatt v. Carmichael, 118. 
 Moffatt v. Coulson, 576. 
 Moffatt v. Grover, 274. 
 Moffatt v. Link, 118. 
 Moffatt v. Prentice, 264. 
 Mogridge v. Clapp, 209. 
 Moir, re, 415, 416. 
 Moir v. C. P. R., 701, 950. 
 Moke v. Osnabruck, 1134, 1135. 
 Molsons Bank v. Beaudry, 534. 
 Molsons Bank v. Eager, 344. 
 Molsons Bank v. Halter, 538. 
 Molson v. Lambe, 1177. 
 Molson, re; Ward v. Stevenson, 408. 
 Molton v. Camroux, 184. 
 Monaghan v. Ferguson, 1215. 
 Monaghan v. Horn, 696, 700. 
 Monarch Life v. Brophy, 809. 
 Monk, re, 19, 21, 22. 
 Monk v. Whittenbury, 593. 
 Monkhouse v. G. T. R., 934. 936. 
 Monlis v. Owen, 1180. 
 Monohan v. Oke, 716. 
 Monro v. Toronto Ry., 103. 
 Montagu, re, 188, 207, 361. 
 Monteith v. Walsh, 430. 
 Montgomery, re, 184, 397, 1234. 
 Montgomery v. Corbit, 539. 
 Montgomery and Lilienthal, re, 176. 
 Montgomery v. Ruppenberg, 92, 94. 
 
 Montgomery v. Ryan, 107, 108. 
 
 Monti v. Barnes, 375. 
 
 Montreal v. Garon, 1185. 
 
 Montreal v. Montreal St. Ry., 961, 
 965. 
 
 Montreal and Ottawa Ry. and Ogil- 
 vie, re, 930. 
 
 Montreal and St. Lawrence Light 
 and Power Co. v. Robert, 787. 
 
 Montreal Island Ry., and Montreal, 
 re, 957, 960. 
 
 Montreal Park and Island Ry. v. 
 Montreal, 943. 
 
 Montreal Park and Island Ry. v. 
 Shannon, 930. 
 
 Montreal St. Ry. v. Montreal, 956, 
 961. 
 
 Montreal St. Ry. v. Montreal Term- 
 inal Ry., 940, 962. 
 
 Montrotier Asphalte, re, 852. 
 
 Moody, re, 388. 
 
 Moody v. Canadian Bank of Com- 
 merce, 566. 
 
 Moor v. Balch, 257. 
 
 Moore, re, 475. 
 
 Moore v. Bank B. N. A., 482. 
 
 Moore v. Cornwall, 1040. 
 
 Moore v. Gillies, 732. 
 
 Moore v. Gurney, 914. 
 
 Moore v. Jackson, 672, 674, 675, 676, 
 677, 678, 679, 684, 687, 692. 
 694. 
 
 Moore v. Kirkland, 802. 
 
 Moore v. Knight, 251. 
 
 Moore and Langmuir, re, 392. 
 
 Moore v. March, 267, 1123, 1133. 
 
 Moore v. McLaren, 917. 
 
 Moore v. Mellish, 358, 421. 
 
 Moore v. Moore, 1189, 1190. 
 
 Moore v. J. D. Moore Co., 636, 653. 
 
 Moore v. Murphy, 914. 
 
 Moore and Port Bruce, re, 812. 
 
 Moor v. Raisbeck, 409. 
 
 Moore v. Roper, 268. 
 
 Moore v. Sxnee, 719. 
 
 Moore v. Toronto, 1138. 
 
 Moore Nettlefield Co. v. Singer, 728. 
 
 Moorehouse v. Bostwick, 552. 
 
 Moorehouse v. Kidd, 531. 
 
 Moorehouse v. Leake, re, 614. 
 
 Moran v. Hamilton St. Ry., 973. 
 
TABLE OF OASES. 
 
 lxxxrii 
 
 Moran v. Place, 684. 
 More's Trust, re, 417. 
 
 Morel v. Westmoreland, 690. 
 
 Morency v. Wilgress, 202. 
 
 Morgan, re, 1180. 
 
 Morgan v. Fear, 246. 
 
 Morgan v. Griffith, 318. 
 
 Morgan v. Harrison, 173. 
 
 Morgan v. Hunt, 869, 879, 893. 
 
 Morgan v. Hutchins, 634. 
 
 Morgan v. London General Omni- 
 bus Co., 628. 
 
 Morgan v. Morgan, 191, 196, 363. 
 
 Morgan v. Swansea, 419. 
 
 Morgan v. Vale of Neath Ry., 642, 
 643. 
 
 Morgan's Case, 849. 
 
 Morgan's Settled Estate, re, 208. 
 
 Morgan Smith v. Sissibo Pulp Co., 
 602, 605. 
 
 Moriarity v. Harris, 297, 298, 309. 
 
 Morice v. Aylmer, 795. 
 
 Morice v. Bishop of Durham, 329. 
 
 Morin v. Ottawa Electric, 975. 
 
 Morlock and Cline, re, 622, 623, 844. 
 
 Morphy v. Colwell, 157, 538, 545. 
 
 Morris v. Cairncross, 207, 208, 345, 
 371, 372, 374, 719. 
 
 Morris v. Churchward, 717. 
 
 Morris v. Huron, 1, 2. 
 
 Morris v. Martin, 193. 
 
 Morris v. Thrale, 613. 
 
 Morrisburg and Winchester, re, 
 1221, 1222, 1223. 
 
 Morrison, re, 140, 436. 
 
 Morrison, In re, 828. 
 
 Morrison v. G. T. R., 651. 
 
 Morrison v. Morrison, 406, 409. 
 
 Morrison v. Pere Marquette, 954. 
 
 Morrison v. Toronto, 1058, 1064. 
 
 Morrison v. Trustees, etc., Corpor- 
 ation, 800. 
 
 Morrison v. Watts, 562, 567. 
 
 Morrow v. C. P. R., 641, 951. 
 
 Morrow v. Lancashire Ins. Co., 898, 
 901. 
 
 Morse, re, 448, 496. 
 
 Morse v. Lamb, 502, 503. 
 
 Morse v. Phinney, 574. 
 
 Mortgage Insurance Co. v. Canadian 
 Agricultural, etc., Co., 805. 
 
 Mortimer v. Bell, 352. 
 
 Morton v. Anglo-American, 898, 
 
 903. 
 Morton v. Cowan, 270, 799. 
 Morton v. G. T. R., 98, 706. 
 Morton v. Lewis, 348. 
 Morton v. Mehan, 332. 
 Morton Co. v. Ontario Accident, 
 
 647, 659, 1187. 
 Morton and St. Thomas, re, 498. 
 
 500. 
 Morton and York, 442. 
 Moseley v. Kaffyfontein, 821. 
 Moses v. Parker, 449. 
 Moshier v. Keenan, 592. 
 Moss v. Gallimore, 718. 
 Moss v. Moss, 669. 
 Mower v. Orr, 417. 
 Moxley v. Canada Atlantic Ry. 639. 
 Moxham v. Grant, 819. 
 Moyer v. G. T. R., 953. 
 Mozier v. Keegan, 348. 
 Mozley v. Alston, 794. 
 Mud Lake Bridge, re, 1055. 
 Muir v. Dunnett, 461, 491. 
 Mulcahy v. Archibald, 332. 
 Mulcahy v. Collins, 679. 
 Mulholland, re, 450. 
 Mulholland v. Harman, 439. 
 Mulholland v. Misener, 263. 
 Mulholland and Morris, re, 253. 
 Mulholland v. Norrie, '442. 
 Muller v. Eastern and Midlands Ry., 
 
 832. 
 Mulligan v. Hendershott, 364. 
 Mullin v. Provincial Construction 
 
 Co., 106. 
 Mulvaney v. Toronto Ry., 935, 964, 
 
 973. 
 Muma v. C. P. R., 647, 697, 955. 
 Mummery v. G. T. R., 696, 700, 705, 
 
 706. 
 Munro v. Commercial Building, 
 
 etc., Society, 358, 726. 
 Munro v. Downey, 71, 73, 79. 
 Munro v. Munro, 709. 
 Munro v. Smart, 401. 
 Munro v. Smith, 72, 73, 74, 75, 78, 
 
 80. 
 Munro v. Standard Bank, 539, 557. 
 Munro v. Waller, 372. 
 
lxxxiv 
 
 TABLE OF CASES. 
 
 Munsie, re, 406. 
 
 Munsie v. Lindsay, 345, 347, 404, 
 
 406. 
 Munson v. Collingwood, 1213, 1219^ 
 Murchison v. Murchison, 252. 
 Murdock, re, 709, 711. 
 Murdy v. Burr, 421. 
 Murphy and Cornish, re, 305. 
 Murphy v. Corry, 749. 
 Murphy v. G. T. R., 699. 
 Murphy v. Healey, 771. 
 Murphy v. Mason, 365. 
 Murphy v. Sandwich, 1072, 1109. 
 Murray, re, 447, 452. 
 Murray v. MacDonald, 888. 
 Murray v. Vanbrocklin, 56. 
 Murray Canal, re, 212, 401, 403, 667. 
 Murtrie v. Alexander, 129. 
 Muscar v. Bolton, 364. 
 Musgrave v. Kennison, 1146.. 
 Music Hall Block, re, 475, 549. 
 Muskoka, re, 20, 21, 22, 26, 28, 29, 
 
 30, 32. 
 Muskoka and Parry Sound, 21, 26, 
 
 27, 29, 31, 34. 
 Mutchmoor v. Mutchmoor, 390, 890. 
 Mutchmoor v. Waterloo Mutual, 
 
 898, 899, 900. 
 Mutrie v. Alexander, 91, 96, 131, 
 
 387. 
 Muttlebury v. King, 499. 
 Muttlebury v. Taylor, 356. 
 Mutual Fire Ins. Co. v. Frey, 903. 
 Mutual Life, Wellington's Claim, re, 
 
 885, 906. 
 Mutual Life, Wellington's Claim, re, 
 
 906. 
 Myers v. Brantford St. Ry., 974. 
 Myers v. Ruport, 229, 685. 
 Myers v. Sault Ste. Marie Pulp, 
 
 635. 
 Myers v. Toronto Ry., 964. 
 Mykel v. Doyle, 210, 230, 243, 244. 
 Myles and G. T. R., re, 103. 
 Mysore West Gold Mining Co., re, 
 
 849. 
 
 Nares v. Rowles, 8. 
 Nash, re, 346. 
 Nash v. Bush, 261. 
 Nash v. Calthorpe, 825. 
 
 Nash v. McKay, 139. 
 Nasmith Co. v. Brown, 326. 
 Nasmith v. Dickey, 917. 
 Nasmith v. Manning, 780, 828. 
 Natal (Col. Sec.) v. Behrens, 65. 
 Natal Land and Colonization Co. v. 
 
 Pauline Colliery, 784, 831. 
 National Bank, re, 819. 
 National Bank of Wales, re, 818, 
 
 839, 840, 842, 845. 
 National Husker Co., re, 838. 
 National Malleable Castings v. 
 Smith's Falls Malleable Castings, 
 
 326, 814, 857. 
 National Motor Mail Coach Co., re, 
 
 830. 
 National Protector Fire Co. v. Ni- 
 
 vert, 898, 899. 
 National Stationery v. Traders Fire, 
 
 904. 
 National Supply Company v. Horo- 
 
 bin, 615. 
 National Trust v. Brantford, 356. 
 National Trust and C. P. R., re, 927. 
 National Trust and Ewing, re, 446, 
 
 1117. 
 National Trust v. Miller, 3, 77. 
 National Trust Co. v. Shore, 206, 
 
 208, 719. 
 National Trust Co. v. Trusts and 
 
 Guarantee Co., 544, 570, 584, 
 
 808. 
 National Trustees Co. v. General Fi- 
 nance, 423, 424. 
 Natt, re, Walker v. Gammage, 399. 
 Nattrass v. Phair, 579, 580. 
 Navulshaw v. Brownrigg, 594. 
 Naylor, re, 1231. 
 Nazarino v. C. P. R., 958. 
 Neal v. Rogers, 100, 101. 
 Neale v. Crooker, 774. 
 Neale v. McKenzie, 733. 
 Nealy v. Peter, 290. 
 Neelon v. Thorold, 801. 
 Neely y. Parry Sound, 120, 121, 290. 
 Neely v. Peter, 523, 525, 527, 862. 
 Neff v. Thompson, 195. 
 Negro v. Donati, 627, 646. 
 Neil v. Almond, 237. 
 Neil v. Park, 624. 
 Neill v. Carroll, 614. 
 
TABLE OF CASES. 
 
 lxxxv 
 
 Neilson v. Quebec Bridge, 930. 
 Neilson v. Trust Corporation, 876, 
 
 879, 890. 
 Nelles v. Hesseltine, 823. 
 Nelles v. Maltby, 549. 
 Nelles v. Windsor, Essex and Lake 
 
 Shore Railway, 99, 798, 917. 
 Nelson v. Anglo-American, 832. 
 Nelson v. Baby, 44. 
 Nelson v. Bell, 434. 
 Nelson v. G. T. R., 947. 
 Nelson v. Leny, 156. 
 Nelson Coke Co. v. Pellatt, 780, 829, 
 
 837. 
 Nepean v. Doe, 220. 
 Nesbiitt v. Armstrong, 682. 
 Nesbitt and Potts Contract, re, 230, 
 
 443, 444. 
 Ness and Saltfleet, re, 1211. 
 Nettleton v. Prescott, 309, 1036, 
 
 1037. 
 Nevill, re, 418. 
 Nevills v. Ballard, 303. 
 Nevin, In re, 715. 
 Neviitt v. McMurray, 497. 
 New Balkis v. Randt Gold Mining 
 
 Co., 800. 
 Newbound v. Smith, 261. 
 New Brunswick Central v. Nugger- 
 
 idge, 822. 
 New Brunswick Ry. v. Kelly, 480, 
 
 482. * 
 
 New Brunswick Ry. v. Robinson, 
 
 943. 
 New Brunswick Ry. v. Vanwart, 
 
 950. 
 Newburgh and Lennox, re, 1054. 
 Newbury v. Bristol Tramways, 975. 
 Newcombe v. Anderson, 774. 
 Newdigate Colliery, re, 846. 
 Newell v. C. P. R., 938, 971. 
 New Glasgow v. Brown, 1006. 
 New Gold Coast Exploration Co., 
 
 re, 853. 
 New Hamburg v. N. H. Mfg. Co., 
 
 1039. 
 New Hamburg v. Waterloo, 1054, 
 
 1055. 
 Newman, re, 185, 816. 
 Newman v. Ginty, 914. 
 Newman v. G. T. R., 946. 
 
 Newman v. Whitehead, 774. 
 New and T. H. & B. Ry., re, 938. 
 Newspaper, etc., Syndicate, re, 622. 
 New's Settlement, In re, 828. 
 Newsom v. Oxford, 454, 1037. 
 Newson v. Pender, 100. 
 New Sombrero Phosphate Co. v. 
 
 Er'anger, 817, 825. 
 Newton, In re, 707, 709, 715. 
 Newton v. Birmingham Small Arms 
 
 Co., 792, 832. 
 Newton v. Sherry, 432. 
 New Westminster, 38. 
 N. Y. C. Ry. v. Cornwall, 97, 980, 
 
 1107, 1108, 1109. 
 New York Taxicab Co., re, 804. 
 New Zealand Midland Ry., re, 805. 
 New Zealand v. Peacock, 786. 
 Ney v. Ney, 110. 
 Niagara, 31, 32, 42. 
 Niagara Falls Board of Trade and 
 
 I. Ry. Co., re, 957. 
 Niagara Falls Heating Co., re, 821, 
 
 , 838. 
 Niagara Falls and N. F. Suspension 
 
 Brdge Co., re, 1109. 
 Niagara Falls Park and River Co. 
 
 v. Niagara, 1101. 
 Niagara Falls Park, etc., Co. v. Nia- 
 gara, 1105, 1106. 
 Niagara Navigation Co. v. Niagara, 
 
 1052. 
 Niagara H. S. Board and Niagara, 
 
 re, 1222. 
 Niagara, St. Catharines, etc., Ry. v. 
 
 G. T. R., 942. 
 Nichol, re, 132. 
 Nichol School Trustees v. Maitland, 
 
 1211, 1214. 
 Nichol and Reardon, re, 443. 
 Nicholas v. Creighton, 45. 
 Nicholls v. Cummings, 3. 
 Nicluoll®, re, Hall v. Wildman, 251, 
 
 423, 424. 
 Nicholson, ex parte, 854. 
 Nicholson v. The Guardians of the 
 
 Bradford Union, 984. 
 Nicholson v. HaTper, 595. 
 Nicholson v. Page, 59, 62. 
 Nickalls v. Warren, 93. 
 Nickle v. Douglas, 270. 
 
lxxxvi 
 
 TABLE OF CASES. 
 
 Nickle v. Kingston and Pembroke 
 
 Ry., 806. 
 Nightingale v. Union Colliery, 957. 
 Nihan v. St. Catharines Ry., 913, 
 
 923. 
 Nikoden v. Salicgycki, 183. 
 Niles v. G. T. R., 936. 
 Nilick v. Marks, re, 152. 
 Nipissing, 18. 
 
 Nipissing Planing Mills, re, 780. 
 Nipissing Planing Mills, re, Ran- 
 kin's Case, 780, 829. 
 Nisbett v. Cock, 573. 
 Nixon v. G. T. R., 969. 
 Nixon v. Walsh, 219. 
 Noble v. Gunn Limited, 117. 
 Noble v. Noble, 215, 230, 235, 236, 
 
 356, 475, 477. 
 Noble v. Willock, 401. 
 Noblett v.' Hopkinson, 1160. 
 Noddings, re, 137. 
 Noel v. Redruth, 656. 
 Noell v. Pell, 573, 579, 580. 
 Nokes v. Kent Co., 633. , 
 
 Nolan, re, 695. 
 
 Nolan v. Donelly, 546, 549, 579. 
 Nolan v. Fox, 212. 
 Nolan v. Ocean Accident, 172, 173, 
 
 866. 
 Nordheimer v. Robinson, 585, 586. 
 Norfolk v. Roberts, 983, 1038, 1141. 
 Norfolk Voters' List, re, 10, 15, 290, 
 
 1109. 
 Norman v. Hamilton Bridge Co., 
 
 1044. 
 Norman v. McMurray, 95. 
 Norman v. Phillips, 326. 
 Normanby v. Carrick, 1067. 
 Normandy v. Ind. Coope & Co., 792, 
 
 793, 812, 815. 
 Norris, re, 187, 188, 1113. 
 Norris v. Toronto, 1113. 
 N. A. Exploration Co. v. Green, 817. 
 North American Life v. Brophy, 
 
 875. 
 North American Life v.* Craiger, 
 
 877. 
 North American Land & Timber Co. 
 
 v. Watkins, 249, 256. 
 North Bay v. Martin, 102. 
 
 North Brazilian Sugar Factories, 
 
 re, 853. 
 North Dorchester v. Middlesex, 
 
 1056. 
 North Eastern Marine Engineering 
 
 Co. v. Leeds Forge Co., 95, 96. 
 North of England Steamship Co., 
 
 re, 792, 793. 
 North v. Fisher, 254. 
 North Gower, re, 14, 991 992, 995, 
 
 1012, 1014. 
 North Grey, 21, 22, 24, 27, 36, 39. 
 North Hastings, re, 15. 
 North Huron Telephone Co. and 
 
 Turnberry, re, 1104. 
 North Middlesex, 18, 25, 27, 28. 
 North Molton Mining Co., re, 852. 
 North Norfolk, re, 39, 40, 42. 
 North Ontario, 25, 26, 27, 28, 29, 30, 
 
 31, 32, 38. 
 North Perth, 38, 39, 40. 
 North Renfrew, 32, 37, 40, 41, 42. 
 North Safford Steel v. Ward, 827. 
 North Simcoe, 22, 37, 41. 
 North Simcoe Ry., re, 916. 
 North Victoria, 21, 22, 25, 26, 27, 
 
 28, 29, 30, 32, 37, 42. 
 North Waterloo, 27, 33. 
 North Wentworth, 34. 
 North West Construction Co. v. 
 
 Valle, 514. 
 Nortfc! West Electric Co. v. Walsh, 
 
 820, 838. 
 North West Transportation Co. v. 
 
 McKenzie, 534. 
 North York, 28, 41, 42. 
 Northcote v. Bunker, 1170. 
 Northcote v. Doughty, 323. 
 Northern Assurance v. Grand View 
 
 Building Association, 899. 
 Northern Electric v. Cordova Mines, 
 
 783. 
 Northern Pacific v. Hambly, 646. 
 Northern Pacific v. Nickels, 648. 
 Northey v. Trumenhiser, 4, 377. 
 Northumberland, etc., Banking Co., 
 
 re, 850. 
 Norfhwood v. Keating, 694. - 
 Northwood v. Raleigh, 1129, 1132. 
 Norton v. Bertie, 153, 1219. 
 
TABLE OF CASES. 
 
 lxxxvii 
 
 Norton v. Frecker, &61, 253. 
 
 Norton v. McCabe, 124. 
 
 Norton v. Yates, 155. 
 
 Notre Dame and Ottawa, re, llttl. 
 
 Nottawasaga School Trustees v. 
 
 Nottawasaga, 1213, 1217. 
 Nottawasaga and Simcoe, re, 1109, 
 
 1110. 
 Nottingham v. Thurston, 395. 
 Noxon Co., The, v. Cox, 588. 
 Nunn v. Tyson, 684, 691. 
 Nutt v. Easton, 381. 
 Nuttall v. Pickering, 1145. 
 Nubtall and Lynton and Barnstaple, 
 
 re, 176. 
 Nutter Brewery, re, 827, 830, 837. 
 
 O'Brien v. M. C. R. R. 649, 968. 
 O'Brien v. Sanford, 1187, 1188. 
 O'Byrne v. Campbell, 1204. 
 O'Connor v. Dunn, 348. 
 O'Connor v. Gemmill, 741, 744, 750, 
 
 759. 
 O'Connor v. Hamilton, 45, 634, 643, 
 
 645, 661, 1058, 1063, 1190. 
 O'Connor v. Nova Scotia Tel. Co., 8, 
 
 1152. 
 O'Connor v. O'Connor, 403. 
 O'Doherty v. Ontario Bank, '677. 
 O'Donnell v. Canada Foundry, 958. 
 O'Donnell v. C. P. R., 705. 
 O'Donnell v. Faulkner, 101. 
 O'Donnell v. Guinane, 125. 
 O'Donohue, re, 737. 
 O'Donohoe v. Beatty, 737. 
 O'Donohoe v. Whiley, 381. 
 O'Hara, In re, 707. 
 O'Hearn v. Port Arthur, 974, 976. 
 O'Leary v. Ottawa Electric, 973. 
 O'Lone v. O'Lone, 366. 
 O'Mahoney y. Burdett, 414. 
 O'Neil v. Harper, 1052. 
 O'Neil v. London, 1059. 
 O'Neil v. Windham, 1060. 
 O'Neill and Duncan, re, 296, 625, 
 
 626. 
 O'Neill v. Owen, 404, 407, 494. 
 O'Neill v. Small, 574. 
 O'Reilly v. O'Reilly, 565, 885. 
 O'Rourke v. Campbell, 710, 716. 
 O'Shannesy v. Joachim, 6, 62. 
 
 Oag and C. O. H. C, re, 874. 
 
 Oakville v. Andrew, 597. 
 
 Oakwood and Mariposa, re, 1222, 
 1223. 
 
 Oatman v. G. T. R., 937. 
 
 Oatman v. M. C. R. R., 943. 
 
 Obernier v. Robertson, 199. 
 
 Ochs v. Ochs Brothers, 174. 
 
 Offin v. Rochford Rural Council, 9b. 
 
 Ogden v. McArthur, 692. 
 
 Ogden v. Ogden, 669. 
 
 Oldfield v. Barbour, 611. 
 
 Oldright v. G. T. R., 954. 
 
 Oldwright v. Hamilton Cataract 
 Power Co., 974. 
 
 Oliver and Bay of Quinte, re, 929. 
 
 Oliver v. Leckie, 243. 
 
 Oliver v. McLaughlin, 332, 539, 545. 
 
 Oliver's Settlement, re, 413. 
 
 Olm stead and Exploration Syndi- 
 cate, re, 73. 
 
 Olmstead v. Smith, 569, 574. 
 
 Olney v. Bates, 415. 
 
 Olson v. Machin, 623, 819. 
 
 Olympia, In re, 817. 
 
 Ontario Bank v. Lamont, 566. 
 
 Ontario Express, etc., Co., re, 816. 
 
 Ontario Forge and Bolt Co., re, 844. 
 
 Ontario Industrial Loan v. Lindsey, 
 300, 454, 455, 457, 459. 
 
 Ontario Insurance Act and Select 
 Knights, 782, 893. 
 
 Ontario Ladies College v. Kendry, 
 822. 
 
 Ontario Lime Association v. Grim- 
 wood, 612. 
 
 Ontario Loan and Debenture v. 
 Hobbs, 729, 730. 
 
 Ontario L. & S. Co., re, 401. 
 
 Ontario Medical Act, re, 290, 764, 
 1109. 
 
 Ontario Mutual Life and Fox, 884. 
 
 Ontario Oil Lands v. Canada South- 
 ern, 937. 
 
 Ontario Power Co. v. Whattler, 364, 
 365. 
 
 O. & Q. Ry. v. Philbrick, 928, 929. 
 
 O. & Q. Ry. Co. and Taylor, re, 920, 
 926, 928, 929. 
 
 Ontario and Sault Ste. Marie Ry. v. 
 C. P. R., 922, 945. 
 
lxxxviii 
 
 TABLE OF CASES. 
 
 Ontario Silver Co. and Bartle, re, 
 
 497, 499. 
 Ontario Sugar Co., re, McKinaon's 
 
 Case, 779. 
 Ontario Tanners Supplies, re, 932. 
 Ontario Wind Engine v. Lockie, 
 
 593. 
 Ooregum Gold Mining Co. v. Roper, 
 
 800, 838. 
 Oppenheimer v. Attenborough, 592, 
 
 594. 
 Oppenheimer v. Frazer, 594. 
 Oppenheimer, re, Oppenheimer v. 
 
 Boatman, 733. 
 Orangeville, re, 14, 1016, 1173, 1174. 
 Orford v. Aldborough, 1122, 1128. 
 Orford v. Howard, 1122, 1125, 1126, 
 
 1128. 
 Organ v. Toronto, 1063, 1066. 
 Orillia v. Matohedash, 1042, 1102, 
 
 1140. 
 Ornamental Pyrographic Woodwork 
 
 v. Brown, 827. 
 Orr v. Davie, 617. 
 • Orr v. Glasgow, etc., Junction Ry., 
 
 784. 
 Orr v. Ranney, 1207. 
 Orr v. Toronto Ry., 968. . 
 Osborne v. Kingston, 1199. 
 Osier and T. G. & B. Ry., re, 918. 
 Osier v. Muter, 268. 
 Osterhout v. Pox, 145, 146. 
 Ostrom v. Benjamin, 117. 
 Ostrom v. Palmer, 363. 
 Ostrom v. Sills, 920. 
 Ottawa, 37. 
 Ottawa Board of Park Management 
 
 v. Ottawa, 1182. 
 Ottawa Cement Block Co., re, 839. 
 Ottawa Electric v. Ottawa, 941, 1028, 
 
 1101. 
 Ottawa v. Ottawa Electric Ry., 960, 
 
 966. 
 Ottawa and Gloucester Road Co. v. 
 
 Ottawa, 1148. 
 Ottawa and Grey Nuns, re, 1101. 
 Ottawa v. McGuire, 334. 
 Ottawa v Nepean, 985. 
 Ottawa Porcelain, etc., Co., re, 1110. 
 Ottawa, etc., Road Co. v. Ottawa, 
 
 1054. 
 
 Ottawa Steel v. Dom. Supply, 601, 
 
 608. 
 Ottawa Wine Vaults Co. v. McGuire, 
 
 333, 537, 539. 
 Ottawa Y. M. C. A. v. Ottawa, 97, 
 
 1101. 
 Otto Electrical Mfg. Co.,' re, 779, 
 
 830. 
 Overend Gurney & Co., re, 810, 839. 
 Owen v. Gibbons, 341, 394. 
 Owen v. Mercier, 464, 510, 517. 
 Owens v. Cushing, 34. 
 Owthwaite, In, re, 422. 
 Owsfxm v. G. T. R., 924. 
 Oxford v. Bailey, 1021. 
 Oxford v. Reid, 688. 
 Oxley v. Wilkes, 199. 
 
 Pacaud v. Perkins, 1171. 
 
 Pacific Coast Syndicate, re, 845. 
 
 Page v. Austin, 802. 
 
 Page, re, Jones v. Morgan, 251. 
 
 Paget v Paget, 684, 688. 
 
 Paget v. Toronto Ry., 948. 
 
 Paine, e& parte, 854. 
 
 Pakenham Pork Packing Co., 807, 
 
 813, 827, 837. 
 Paladino v. Gustin i 203. 
 Palethorpe v. Home Brewery, 1161. 
 Palgrave and McMillan, re, 1033. 
 Pallister v. Gurney, 679, 682. 
 Pallon v. Foy, 572. 
 Palmer, re, 450. 
 Palmer v. Emerson, 423, 424. 
 Palmer and Hosken, re, 175, 176, 
 
 177, 178, 180. 
 Palmer v. Jones, 249. 
 Palmer v. Mail Printing Co., 722. 
 Palmer v. Michigan Central, 937, 
 
 942. 
 Palmer v. Thorribeck, 225. 
 Pals v. Can. Northern, 969. 
 Pang Sing v. Chatham, 1046. 
 Panton and Cramp Steel Co., 796, 
 
 813. 
 Paquette, re, 267. 
 Paquin v. Beauclerk, 683. 
 Paquette v. Rideau Skating Club, 
 
 637. 
 Pardoe, re, 250. 
 
TABLE OF CASES. 
 
 lxxxix 
 
 Pardee, re, McLaughlin v. Atty.- 
 
 Gen., 329. 
 Pardee, re, McLaughlin v. Penny, 
 
 250. 
 Parent v. Latimer, 348. 
 Parkdale v. West, 921, 931, 940, 941, 
 
 945. 
 Parke, re, 990. 
 Parke v. Riley, 271. 
 Parker, re, 384, 407, 417, 888. 
 Parker v. G. T. R., 947. 
 Parker v. London County Council, 
 
 298. 
 Parker v. Michigan Central Ry., 
 
 657. 
 Parker v. Parker, 264. 
 Parkes v. Baker, 299. 
 Parkhurst v. Roy, 353. 
 Parry v. Liverpool Malt Co., 174. 
 Parsonage and Co., re, 841. 
 Parsons, re, 11. 
 Parsons v. Gooding, 431. 
 Parsons v. Hart, 534. 
 Parsons v. London, 984, 1006. 
 Parsons v. New Zealand Shipping 
 
 Co., 534. 
 Parsons v. Sovereign Bank, 805, 845. 
 Partridge v. Elkington, 160. 
 Paschal v. Nicholson, 658, 663. 
 Patching v. Ruthven, 97. 
 Patching v. Smith, 372. 
 Paterson v. King, 728. 
 Paterson v. Maughan, 572. 
 Paton v. Hickson, 426. 
 Patrick, re, 252. 
 
 Patrick v. Walbourne, 604, 612. 
 Patten v. Laidlaw, 618. 
 Patterson, In re, 737. 
 Patterson and Canadian Explosives, 
 
 re, 441. 
 Patterson v. Central Canada Loan, 
 
 1199. 
 Patterson v. Dart, 105, 215, 233, 248, 
 
 348. 
 Patterson v. Holland, 595. 
 Patterson and Hope, re, 1209. 
 Patterson v. King, 734. 
 Patterson v. Kingsley, 570. 
 Patterson v. McCarthy, 269. 
 Patullo and Orangeville, re, 1031, 
 1034. 
 
 Patterson v. Oxford Farmers Mu- 
 tual, 902. 
 
 Patterson v. Turner, 778. 
 
 Pattison v. C. P. R., 649, 651, 975. 
 
 Pattison v. Elliott, 132. 
 
 Pattison v. Emo, 59, 62, 64, 988, 
 1112, 1116. 
 
 Pattison v. Wainfleet, 1151. 
 
 Patton, re, 185. 
 
 Patton v. Foy, 570. 
 
 Paul v. Ferguson, 273. 
 
 Paul v. Rutledge, 126. 
 
 Pawley v. Pawley, 684. 
 
 Paxton v. Smitta, 260. 
 
 Payne, ex parte, 853. 
 
 Payne v. Caughell, 103, 1148. 
 
 Payne v. The Cork Co., Ltd., 849. 
 
 Payne v. Esdaile, 211. 
 
 Payne, In re, Young v. Payne, 803. 
 
 Payne v. R., 51. 
 
 Peacock, re, 413. 
 
 Peacock v. Eastland, 361. 
 
 Peake v. Mitchell, 486, 771. 
 
 Pearce v. Gardner, 321. 
 
 Pearce v. Graham, 417. 
 
 Pearce v. National Life, 870. 
 
 Pearce v. Toronto, 122. 
 
 Pearlman v. Sutcliffe, 871. 
 
 Pears v. Stormont, 782. 
 
 Pearse, re, Pearse v. Pearse, 516. 
 
 Pearson, re, 133. 
 
 Pearson v. Adams, 105. 
 
 Pearson v. Carpenter, 1180. 
 
 Pearson v. Dublin Corporation, 298. 
 
 Pearson v. Dublin & S. E. Railway, 
 911. 
 
 Pearson v. Essery, 683. 
 
 Pearson v. O'Brien, 321. 
 
 Pearson v. Ruttan, 299. 
 
 Peart v. G. T. R, 950, 951, 976. 
 
 Pease v. Courtney, 209. 
 
 Pease Heating Co. v. Bulmer, 617. 
 
 Pease v. Moosomin, 309. 
 
 Peasyooed Collieries v. Partridge. 
 728. 
 
 Peat v. Clayton, 797. 
 
 Peck and Gait, re, 498. 
 
 Pedlow v. Renfrew, 1052. 
 
 Pedlar v. Road Block Co., 783, 835. 
 
 Pedlar v. Toronto Power, 697, 703. 
 
 Peek v. Gurney, 822. 
 
xo 
 
 TABLE OF CASES. 
 
 Peel, re, 188. 
 
 Peel v. London and North Western 
 
 Ry., 795. 
 Peel v. Peel, 186. 
 Pegg v. Hobson, 382. 
 Pegg v. Howlett, 146. 
 Pegg v. I. 0. F., 384. 
 Pegg v. Starr, 727. 
 Pegge v. Metcalfe, 273. 
 Peizer v. Lefkourtz, 775. 
 Pellatt's Case, 828. 
 Pelton, re, 447. 
 
 Pelton v. Harrison, 683, 691. 
 Pemberton v. Barnes, 400. 
 Pembroke and Renfrew, re, 1054, 
 
 1055, 1067. 
 Pennington v. Morley, 617. 
 Pennock v. Mitchell, 699, 772. 
 Pense v. Northern Life, 873. 
 Pentelow's Case, 829. 
 Penton v. G. T. R., 949. 
 Peoples Loan v. Dale, 284. 
 Peoples Loan v. Stanley, 108, 111. 
 Pepall v. Broom, re, 717. 
 Percival v. Bright, 794, 914. 
 Percival v. Wright, 817. 
 Perdue v. C. P. R., 972. 
 Perkins and Dowling, re, 75. 
 Perkins v. Fry, 198. 
 Perlet v. Perlet, 148, 658, 664, 665. 
 Perras v. Keefer, 157. 
 Perrault v. G. T. R., 938, 969. 
 Perrin v. Perrin, 129. 
 Perrin Plow Co., re, 803, 839. 
 Perrins v. Bellamy, 684. 
 Perrins Ltd. v. Algoma Tube 
 
 Works, 809, 858. 
 Perry v. Clissold, 923, 1032. 
 Perry v. Clergue, 522. 
 Perth, etc., re, 570. 
 Perth B. of E. and Perth, re, 1222. 
 Perth Flax and Cordage Co., re, 
 
 786, 803. 
 Perth, S. R., re, 30. 
 Pervins v. Bellamy, 424. 
 Peterborough Cold Storage Co., re, 
 
 798. 
 Peterboro' v. Edwards, 256. 
 Peterborough v. G. T. R., 920, 940. 
 Peterborough and Victoria v. G. T. 
 
 R., 916. 
 
 Peterkin v. McFarlane, 482. 
 
 Peters v. Stoness, 8. 
 
 Peterson Lake v. N. S. Silver Co., 
 
 375. 
 Petipas v. Pictou, 1182. 
 Petition of Minister of Education, 
 
 re, 1211. 
 Petrakos, re, 79. 
 Petre v. Duncombe, 531. 
 Petrie v. Maohan, 146, 153. 
 Pettigrew v. G. T. R., 651, 955. 
 Pettitt, re, 389, 390, 713. 
 Peuchen v. City Mutual Fire, 897. 
 Peuchen v. Imperial Bank, 530, 534. 
 Peyton v. London Corporation, 244. 
 Phair v. Canadian Northern, 939. 
 Phair v. Phair, 279. 
 Pharm. Soc. v. Armson, 768. 
 Pharm Soc. v. Delve, 768. 
 Pharm. Soc. v. Jacks, 768. 
 Pharm. Soc. v. London, 6. 
 Pharm. Soc. v. Piper, 768. 
 Phelps v. Niagara Central Ry., 912. 
 Pherrill v. Sewell, 204. 
 Philips and Chosen Friends, re, 889. 
 Philips, ex 'parte, 1180. 
 Pnillips, Ethel, re, 708. 
 Phillips v. Belleville, 1116. 
 Phillips v. Cayley, 404. 
 Phillips v. Cliff, 664. 
 Phillips v. Conger, 78. 
 Phillips v. G. T. R., 974. 
 Phillips v. Hanna, re, 148. 
 Phillips v. Monteith, 446. 
 Phillips v. Phillips, 93, 258. 
 Phillips and Whitla, re, 749. 
 Philbrick and O. & Q. Ry., re, 928, 
 
 929. 
 Philpott v. St. George's Hospital, 
 
 327, 329. 
 Phipps, re, 49, 137, 206. 
 Pickersgill v. London' a!nd Provin-' 
 
 cial, 896. 
 Pickering v. Stamford, 242. 
 Pickering v. Thompson, 268, 269. 
 Picket and Wainfleet, re, 995, 997. 
 Pierce v. Canada Permanent, 490, 
 
 492. 
 Pierce v. Jersey Waterworks, 827. 
 Pigeon River Lumber Co. v. Moor- 
 ing, 526, 528, 833, 862. 
 
TABLE OP CASES. 
 
 XC1 
 
 Piggott v. French, 296, 299, 1170, 
 
 1171. 
 Piggott and Kern, re, 443. 
 Pigott v. Bell, 1052. 
 Plgott v. Employer's Liability, 865. 
 Pilgrim, re, 874. 
 Pilkingfon v. Browne, 619. 
 Pinkerton and Cooke, re, 751. 
 Pinkerton v. Ross, 597, 598. 
 Pinkey v. Mercantile Fire, 898. 
 Pinnelle & Thompson, re, 74, 78. 
 Pinto Silver Mining Co., re, 856. 
 Piper v. Stephenson, 214, 219, 220, 
 
 225, 229. 
 Piper v. Thompson, 822. 
 Pirie v. Parry Sound Lumber Co., 
 
 484, 1069, 1071. 
 Pirung v. Dawson, 92. 
 Pittsburg and Robbins, re, 843. 
 Pizer v. Fraser, 1155. 
 Plancq v. Marks, 1146. 
 Plant v. Browne, 322. 
 Plaunt v. Gillies Bros., 529. 
 Plenderleith, re, 187. 
 Plenderleith v. Smith, 533. 
 Plester v G. T. R., 937. 
 Plocks v Can. Northern, 631. 
 Plomley v. Felton, 362. 
 Plummer v. Coldwell, 118. 
 Plummer v. Davies, 245, 771. 
 Pocock and Prankerd's Contract, re, 
 
 208. 
 Poll v. Hewitt, 656. 
 Polland, re, 688. 
 Pollard v. Gare, 343. 
 Polly v. Fordinam, 297. 
 Poison, re, 798. 
 Poison v. De Geer, 590. 
 Poison v. Owen Sound, 1039. 
 Pomeroy v. Wilson, 766. 
 Pomfret v. Lancashire and York- 
 shire Ry., 1189. 
 Pontardawe Election, re, 21. 
 Pontiac Pacific Junction v. Sisters 
 
 of Charity, Ottawa, 931. 
 Pontiac Pacific Ry. v. Hull E. Ry., 
 
 926. 
 Ponting v. Noakes, 1199. 
 Ponton and Swanston, re, 437, 438. 
 Ponton v. Winnipeg, 761. 
 Poole, ex parte, 849. 
 
 Pooley v. Budd, 249. 
 
 Pope, re, 353, 577. 
 
 Portal and Lamb, re, 410, 411. 
 
 Port Arthur, re, 13, 14, 16, 17, 18, 
 
 19, 24, 36, 40, 41. 
 Pont Arthur Electric, re, 912, 979. 
 Port Arthur v. Fort William, 1221, 
 
 1222. 
 Port Arthur and Rainy River, re, 
 
 Preston v. Kennedy, 989. 
 Port Dover, etc., Ry. v. Grey, 914, 
 
 917. 
 Porterfield v. Hodgins, 623. 
 Port Hope B. & M. Co., re, 844. 
 Port Hope B. & M. Co. v. Cavanagh, 
 
 782. 
 Portilance v. Milne, 631. 
 Portman v. Patterson, 119. 
 Port Rowan H. S. Trustees and 
 
 Walsingham, re, 1222. 
 Portuguese Consolidated, re, 829. 
 Portuguese Copper Mines, re, 828. 
 Potter's Case, re, 853. 
 Potter and Central Counties Ry., 
 
 re, 930. 
 Potter v. Duffield, 322. 
 Potter v. McCann, 662. 
 Potter v. Orillia Export Lumber Co., 
 
 107. 
 Potts v. Bovine, 403. 
 Potts v. Leash, 531. 
 Potts v. Potts, 879, 881, 891. 
 Potvin v. C. P. R., 697, 938. 
 Poulin v. Eberle, 69. 
 Poussett, In re, 310. 
 Poussett and Lambton, re, 311. 
 Pow v. West Oxford, 696, 703, 963, 
 
 964, 965, 1054, 1060, 1149. 
 Powell v. Broadhurst, 533. 
 Powell v. Lake Superior Power Co., 
 
 177, 178, 180. 
 Powell Rees v. Anglo-American 
 
 Mortgage Co., 910. 
 Powell v. T. H. & B. Ry., 933. 
 Powers and Chatham, re, 1209, 1210. 
 Powis v. Ontario Accident Ins. Co., 
 
 936. 
 Praed v. Graham, 657. 
 Prangley and Strathroy, re, 992, 
 
 998, 1174. 
 
XC11 
 
 TABLE OF CASES. 
 
 Pratt v. Bunnell, 193. 
 Pratt v. G. T. R., 919. 
 Premier Industrial Bank v. Carlton 
 
 Mfg. Co., 785. 
 Prescott, 16, 23, 33, 37, 42. 
 Pressick v. Cordova Mines, 633, 
 
 642, 697. 
 Prested Miners Co. v. Garner, 325, 
 
 326. 
 Preston, re, 419, 425. 
 Preston v. Camden, 1132. 
 Preston v. Lyons, 668. 
 Preston v. Nugent, 758. 
 Preston v. Toronto Ry., 88, 90, 663, 
 
 974, 976. 
 Price v. Earl of Torrington, 263. 
 Price v. Guinane, 732. 
 Price v. John, 345. 
 Price v. Phillips, 249. 
 Price v. Price, 110. 
 Price, re, Tomlin v. Latter, 412. 
 Price v. Wade, 237, 254. 
 Priest v. Flos, 1123. 
 Priestly v. Fowler, 641. 
 Pride v. Rodger, 221, 365. 
 Prince, 17, 42. 
 
 Prince Albert, re Town of, 512. 
 Prince Edward, re, 19, 20, 22, 23, 24, 
 
 37, 116. 
 Prince v. Gagnon, 88. 
 Pringle v. Financial Post, 201. 
 Pringle v. Hutson, 484. 
 Pringle v. McDonald, 310. 
 Pringle v. Stratford, 1039, 1212. 
 Printing Machinery Co. v. Linotype, 
 
 174. 
 Printz v. Sewell, 1146. 
 Prior y. Slaithwaite Spinning Co., 
 
 1188. 
 Prittie Trusts, re, 435. 
 Proctor v. McKenzie, 283. 
 Proper and Oakland, re, 1210. 
 Protheroe v. Tottenham, etc., 922. 
 Provincial Fisheries, re, 289, 290, 
 
 528. 
 Provincial Grocers, re, 780, 837. 
 Provincial Jurisdiction, re, 1171. 
 Prowd v. Spence, 96, 97, 670. 
 Prust v. Rose, 765. 
 Pryce, re, 404. 
 
 Pryce-Jones v. Williams, 446. 
 Pryse, re, 135. 
 
 Prytherch, P. v. Williams', re, 101. 
 
 Public School Trustees of Cart- 
 wright, re, 1208. 
 
 Publisher's Syndicate, re, 816, 842. 
 
 Pugh v. Heath, 215. * 
 
 Pukulski v. Jarddne, 819, 820. 
 
 Pulbrook v. Richmond Consolidated 
 Mining Co., 811. 
 
 Pullen v. Snelus, 322. 
 
 Pullman v. Hill, 198. 
 
 Pulos v. Soper, 276, 560, 577. 
 
 Pulsford v. Richards, 822. 
 
 Pulsford v. Devenish, 846. 
 
 Punt v. Lynn, 794, 915. 
 
 Purcell v. Bergln, 405, 407, 408. 
 
 Purdoin v. Ontario Loan, 794, 807, 
 915. 
 
 Purse and Forbes, re, 772. 
 
 Purse v. Gowganda Mines, 829, 830, 
 831. 
 
 Pusey v. Pusey, 94. 
 
 Puterbaugh v. Gold Medal Mfg. Co., 
 107, 108. 
 
 Pye v. Toronto, 299, 1182. 
 
 Pym v. Great Northern Ry., 700, 
 701, 702. 
 
 Qu'Appelle Valley, re, 840. 
 Quebec v. Ontario, 172. 
 Quebec v. Quebec Central, 1. 
 Quebec v. The Queen, 646, 1101. 
 Quebec Bank v. Taggart, 349. 
 Quebec, etc., Ry. v. Gibsone, 922. 
 Queddy River v. Davidson, 528. 
 Queen Oity Plate Glass, re, 815. 
 Queen City Refining Co., re, 829. 
 Queens (P. E. I.), 21, 22, 24. 
 Queen's College v. Claxton, 355. 
 Queen's Counsel, re, 102, 289. 
 Queenston Heights Bridge, re, 1107. 
 Quick v. Church, 681. 
 Quick v. South Colchester, 349. 
 Quicke v. Chapman, 343. 
 Quigley and Bastard, re, 991, 992, 
 
 993, 994, 995, 998, 1013. 
 Quimby, re, 390, 399, 412. 
 Quin v. Seymour, 1214, 1218, 1219. 
 Quinion v. Home, 446. 
 Quinto v. Bishop, 646. 
 Quirk v. Dudley, 100. 
 Quirt v. The Queen, 1101. 
 Quist v. Serpent River L. Co., 662. 
 
TABLE OF CASES. 
 
 XC111 
 
 R. 
 
 v. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R". 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 R 
 
 V. 
 
 R. 
 
 V. 
 
 R. 
 
 V. 
 
 Ackers, 1166. 
 Adams, 775, 776. 
 Akers, 294, 295. 
 Albertie, 1179. 
 Allen, .709, 711. 
 Allbright, 1162. 
 Alward, 1166. 
 Andrews, 776. 
 Applebee, 1050. 
 Armstrong, 643, 660, 704, 710. 
 Arscott, 289. 
 Ashwell, 1006. 
 Austin, 1159. 
 Ayer, 1162, 1166. 
 Barber Asphalt Co., 1184. 
 Barnardo, 708. 
 . Barnes, 1179. 
 Benjamin, 454. 
 Benson, 2. 
 
 Bennett, 92, 111, 115, 291, 293. 
 Berriman, 1178. 
 Berry, 307. 
 Bevan, 1167. 
 Bittle, 261. 
 Boardman, 115. 
 Bombardier, 305. 
 Bonnah, 205. 
 
 Boomer, 304, 1160, 1166, 1168. 
 Borin, 1167. 
 Boultbee, 303. 
 Bradley, 1168. 
 Brewster, 243. 
 Brisbois, 288, 302, 1164. 
 Brown, 666. 
 Bruce Paton, 1194. 
 Budway, 1178. 
 Butler, 1051. 
 Cahoon, 1159. 
 Calcutt Brewing Co., 1160. 
 Campbell, 1158. 
 C. P. R., 944. 
 Carter, 301. 
 Case, 30, 34, 35. 
 Chapman, 948, 1047. 
 Charles, 1159. 
 Ohillesford, 658. 
 Chisholm, 1071, 1186. 
 Clark, 262, 307, 1160, 1167. 
 Clement, 717. 
 Colahan, 1236. 
 
 R. v. Coleridge, 1205. 
 
 R. v. Col. Physicians and Surgeons, 
 
 763. 
 R. v. Collier, 303. 
 R. v. Cook, 109, 302, 305, 1037, 1167, 
 
 1169. 
 R. v. The Coopers Company, 1006. 
 R. v. Coote, 302, 306, 1164, 1165. 
 R v. Cornwall St. Ry., 3. 
 R. v. Coulson, 765. 
 R. v. Coulter, 30. 
 R. v. Coursey, 1184. 
 R. v. County of Wellington, 1101. 
 R. v. Cox, 170. 
 R. v. Crandall, 1205. 
 R. v. Crosby, 769. 
 R. v. Cunerty, 1153. 
 R. v. Currie, 2. 
 R. v. Cushing, 91. 
 R. v. Cutbush, 1006. 
 R. v. Dagenais, 303, 1163. 
 R. v. Daggett, 1179. 
 R. v. Davenport, 522. 
 R. v. Davey, 65, 109, 354. 
 R v. Davidson, 2. 
 R. v. Davis, 1160. 
 R. v. Defries, 286, 288. 
 R. v. Degan, 304, 1161, 1162, 1164, 
 
 1167. 
 P v. Des Rosiers, 426, 652, 701. 
 R. v. Devins, 1179. 
 R. v. Dickout, 666. 
 R. v. Dodds, 1155. 
 R. v. Dominion Bowling, 103, 303, 
 
 1050. 
 R v. Dorr, 1167. 
 R. v. Dowling, 1185. 
 R. v. Duering, 1196. 
 R. v. Dugan, 1161. 
 R. v. Dungey, 1184. 
 R. v. Dunkley, 1162, 1165. 
 R. v. Dunning, 305. 
 R. v. Duquette, 1159. 
 R. v. Durocher, 994. 
 R. v. Edgar, 1164. 
 R. v. Edwards, 306. 
 R. v. Elborne, 1177. 
 R. v. Elliott, 303. 
 R. v. Excell, 304, 1163. 
 
XC1V 
 
 TABLE OF CASES. 
 
 R. 
 
 R. 
 R. 
 R. 
 R. 
 Ti. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 
 R. 
 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 11. 
 R. 
 R. 
 R. 
 R. 
 R. 
 
 v. Farrell, 288, 294, 295, 302, R. 
 
 1154, 1160, 1161, 1163, 1164, R. 
 
 1165, 1169. R. 
 
 v. Fee, 143, 1168. R 
 
 v. Ferguson, 303, 1191. R. 
 
 v. Flory, 303, 1192 R- 
 
 v. Flynn, 1161, 1167. R- 
 
 v. Fogarty. 1163. R- 
 v. Forget, 16, 18. 
 
 v. Foster, 302. R. 
 
 v. Fox, 261. R. 
 
 v. Frawley, 1162. R. 
 
 v. Garvin, 820, 822. R. 
 
 v. Gibson, 286. R. 
 
 v. Gilmore, 307. R. 
 
 v. Gilmour, 1165. R. 
 
 v. Gordon, 295. R. 
 v. G. T. R. and C. P. R., 942, R. 
 
 978, 980. R. 
 v. Graves, 90, 109, 265, 1164, R. 
 
 1165, 1166, 1167, 1169. R. 
 
 v. Graham, 297. R. 
 
 v. Grenier, 660, 935, 968. R. 
 v. Guittard, 1176, 1177. 
 
 v. Gully, 295, 1163. R. 
 
 v. Gurr, 1051. R. 
 
 v. Guthrie, 439. R. 
 
 v. Gyngall, 707, 709. R. 
 
 v. Hall, 765. R. 
 
 v. Halliday, 1176, 1177. R. 
 
 v. Hammond, 262, 307. R. 
 
 v. Harran, 354, 1206. R. 
 v. Harrison, 286. 
 
 v. Hartley, 1166. R. 
 
 v. Harvey, 304, 765. R. 
 
 v. Hays, 935, 945, 978. R. 
 
 v. Haythorne, 784. R. 
 
 v. Hazen, 1162, 1166. R. 
 
 v. Hendershott, 262, 307. R. 
 
 v. Henderson, 766. R. 
 
 v. Henry, 303, 306, 767. R. 
 
 v. Herford, 98. R. 
 
 v. Hill, 306, 766. R. 
 
 v. Hipswell, 664. R. 
 
 v. Hodge, 1171. R. 
 v. Hodgins, 291, 1168. 
 
 v. Holmes, 294, 295, 1163. R. 
 
 v. Hopkins, 545. R. 
 
 v. Horning, 1186. R. 
 
 v. Howard, 1158. R. 
 
 v. Howarth, 765, 1179. 
 
 v. Hudgins, 1163. 
 
 v. Hughes, 958, 1167. 
 
 v. Hunt, 911. 
 
 v. Ing Kon, 1153, 1169. 
 
 v. Ireland, 1171. 
 
 v. Irish, 1159. 
 
 v. Irwin, 3, 295, 304, 1161, 1163, 
 
 1164, 1167, 1176. 
 v. Ivry, 265. 
 v. Jarvis, 1184. 
 v. Johnston, 3, 62, 68. 
 v. Justin, 1042. 
 v. Lackie, 727. 
 v. La Forge, 3, 1048. 
 v. Laird, 1071, 1154, 1162, 1168. 
 v. Latham, 1051. 
 v. Langley, 1050. 
 v. Lansing, 1206. 
 v. Lamphier, 1153, 1159. 
 v. Lapointe, 1163. 
 v. Lawless, 1160. 
 v. Leach, 7, 109, 111, 115, 287, 
 
 304, 1163, 1165, 1169, 1175. 
 v. LeClerk, 312. 
 v. Lee, 293. 
 v. Leonard, 1166. 
 v. Levinger, 127. 
 v. Levy, 1051. 
 v. Lewis, 304. 
 v. London, 1057. 
 v. Lords Commissioners to the 
 
 Treasury, 99. 
 v. Lovitt, 50, 124. 
 v. Lowery, 288, 298. 
 v. Lynch, 295, 303. 
 v. Macdonald, 288. 
 v. Mackay, 291. 
 v. Maher, 306. 
 v. Major, 109, 1169. 
 v. Mancion, 111, 115. 
 v. Martin, 646, 1154. 
 v. Masier, 288. 
 v. Massey-Harris Co., 856. 
 v. Master Plumbers, 777, 778, 
 
 781, 782. 
 v. Mayer, 312. 
 v. McDonell, 439. 
 v. McDonald, 305. 
 v. McElroy, 1167. 
 
TABLE OP OASES. 
 
 XCV 
 
 R. v. 
 
 McGarry, 1165, 1171. 
 
 R. v. Reid, 109, 289, 303, 304, 306, 
 
 R. v. 
 
 McGowan, 1163. 
 
 1161, 1164, 1166, 1169, 1178. 
 
 R. v. 
 
 McGregor, 2, 770, 1042, 1168. 
 
 R. v. Renand, 302, 305. 
 
 R. v. 
 
 Mcintosh, S05. 
 
 R. v. Reno, 293. 
 
 R. v. 
 
 McKay, 1177. 
 
 R. v. Richardson, 293, 1161, 1166. 
 
 R. v. 
 
 McKinnon, 304. 
 
 R. v. Riddell, 1037. 
 R. v., Riley, 294. 
 
 R. v. 
 
 McLeod, 312. 
 
 R. v. Ritchie, 1185. 
 
 R. v. 
 
 McRae, 295. 
 
 R. v. Ritter, 309. 
 
 R. v. 
 
 Meehan, 297, 992. 
 
 R. v. Robertson, 525. 
 
 R. v. 
 
 Meikleham, 9, 295, 1155, 1159, 
 
 R. v. Robinson, 287, 289, 297, 1169. 
 
 lies. 
 
 R. v. Roblin, 669. 
 
 R. v. 
 
 Meyers, 1049, 1050. 
 
 R. v. Roche, 1050. 
 
 R. v. 
 
 Michigan Central, 950. 
 
 R. v. Rodwell, 1160. 
 
 R. v. 
 
 Miller, 103, 109, 287, 302, 1162, 
 
 R. v. Rowlin, 1184. 
 
 Ilea. 
 
 R. v. Rudolph, 302, 1162, 1166. 
 
 R. v. 
 
 Milne, 625. 
 
 R. v. Sabine, 1179. 
 
 R. v. 
 
 Mines, 302. 
 
 R. v. Saltern, 664. 
 
 R. v. 
 
 Mitchell, 6. 
 
 R. v. Sam Lee Hing, 1160. 
 
 R. v. 
 
 Montgomery, 1160, 1177. 
 
 R. v. Sanderson, 308. 
 
 R. v. 
 
 Morning Star, 305. 
 
 R. v. Sault Ste. Marie, 116, 1035. 
 
 R. v. 
 
 Mount, 1170. 
 
 R. v. Saunders, 25. 
 
 R. v. 
 
 Myers, 302, 1046, 1179. 
 
 R. v. Schram, 312. 
 
 R. v. 
 
 Murray, 286. 
 
 R. v. Scott, 1163, 1177. 
 
 R. v. 
 
 Nash, 710. 
 
 R. v. Seeker, 667, 669. 
 
 R. v. 
 
 Nasmith Baking Co., 1186. 
 
 R. v. Sharp, 295. 
 
 R. v. 
 
 Nelson, 109, 1165, 1166. 
 
 R. v. Shaw, 183. 
 
 R. v. 
 
 Northumberland, 454. 
 
 R. v. Sheriff, 708. 
 
 R. v. 
 
 Nurse, 1164, 1168. 
 
 R. v. Sheriff of Hastings, 44. 
 
 R. v. 
 
 O'Connor, 1162, 1166. 
 
 R. v. Simmons, 1161, 1165, 1166, 
 
 R. v. 
 
 O'Meara, 461. 
 
 1167. 
 
 R. v. 
 
 O'Rourke, 170. 
 
 R. v. Simpson, 1191. 
 
 R. v. 
 
 Palmer, 1162. 
 
 R. v. Simpson, Robert, Co., 303. 
 
 R. v. 
 
 Payn, 99. 
 
 R. v. Slater anl Homan, 999., 
 
 R. v. 
 
 Pember, 1050. 
 
 R. v. Slattery, 1159, 1168. 
 
 R. v. 
 
 Perrin, 302, 1196. 
 
 R. v. Sloan, 1171. 
 
 R. v. 
 
 Pettitt, 304, 1161, 1163, 1167, 
 
 R. v. Smith, 294, 296, 305, 1048, 
 
 1176. 
 
 1161, 1169. 
 
 R. v. 
 
 Pflster, 1168. 
 
 R. v. "W. Smith, 665. 
 
 R. v. 
 
 Pierce, 91, 103, 906, 910. 
 
 R. v. Somers, 1178. 
 
 R. v. 
 
 Pinckney, 286. 
 
 R. v. Southwick, 1159, 1160, 1163, 
 
 R. v. 
 
 Playter, 1181, 1184. 
 
 1166. 
 
 R. v. 
 
 Potter, 271, 1168, 1171. 
 
 R. v. Sparham, 303, 763, 766. 
 
 R. v. 
 
 Pouliot, 2. 
 
 R. v. Spegelman, 1043. 
 
 R. v. 
 
 Powell, 1179. 
 
 R. v. Spellman, 6, 294, 296. 
 
 R. v. 
 
 Preston Co-operative, 1050. 
 
 R. v. Stapleton, 863, 864, 867. 
 
 R. v. 
 
 Price, 1205. 
 
 R. v. St. Clair, 288. 
 
 R. v. 
 
 Rawson, 1047. 
 
 R. v. St. Denis, 286. 
 
 R. v. 
 
 Redmond, 1184. 
 
 R. v. Stephenson, 307, 1168, 1184, 
 
 R. v. 
 
 Reedy, 293, 295, 296, 1161. 
 
 1205. 
 
 R. v. 
 
 Registrar of Companies, 791. 
 
 R. v. Stewart, 765. 
 
XCV1 
 
 TABLE OP CASES. 
 
 R. v. St. Pierre, 302, 305. 
 
 R. v. Taylor, 1179, 1205. 
 
 R. v. Teasdale, 3, 1160, 1165, 1169. 
 
 R. v. Tefft, 766. 
 
 R. v. Thorpe, 312. 
 
 R. v. Tisdale, 292. 
 
 R. v.^Tinning,* 1179. 
 
 R. v. Toland, 127. 
 
 R. v. Toronto Public School Board, 
 
 305. 
 R. v. Toronto Railway, 306, 913, 
 
 935, 953, 955, 963, 968, 978, 979, 
 
 980, 1071. 
 R. v. Trainor, 1153. 
 R. v. Treanor, 978. 
 R. v. Tucker, 304, 305, 1219. 
 R. v. Vallean, 766. 
 R. v. Van Norman, 1048, 1049, 1071. 
 R. v. Vanzyl, 1165. 
 R. v. Villeneuve, 1177. 
 R. v. Vinning, 312. 
 R. v. "Walker, 625. 
 R. v. Walsh, 34, 1159. 
 R. v. Walton, 169, 170. 
 R. v. Warilow, 1163, 1165. 
 R. v. Washington, 2, 305. 
 R. v. Wason, 1185. 
 R. v. Watson, 1181. 
 R. v. Weatherall, 1178. 
 R. v. Wells, 1178, 1179. 
 R. v. Westwood, 814. 
 R. v. Whelan, 765. 
 R. v. White, 304, 1160. 
 R. v."Whitesides, 288, 303, 304, 
 
 1164. 
 R. v. Whitney, 304. 
 R. v. Whittaker, 1050. 
 R. v. Williams, 211, 262, 307. 
 R. v. Willman, 1164. 
 R. v. Winegarner, 308. 
 R. v. Woolwatt, 1046. 
 R. v. Wright, 766. 
 R. v. Yaldon, 1178. 
 R. v. Young, 1160. 
 
 R. ex rel, Armour v. Peddie, 993, 
 
 995, 997. 
 R. ex rel, Armstrong v. Garrott, 
 
 990. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R. 
 R. 
 
 R. 
 R. 
 R. 
 R. 
 R. 
 R. 
 
 R. 
 R. 
 
 R. 
 R. 
 
 R. 
 
 R. 
 R. 
 R. 
 R. 
 
 R. 
 R. 
 R. 
 
 R. 
 R. 
 
 R. 
 
 R. 
 
 R. 
 
 R 
 
 ex rel, Attorney-General for Can- 
 ada v. Bonanza Creek Hydraul- 
 ic, 76, 78. 
 
 ex rel, Bawkes v. Letherby, 995, 
 998. 
 
 ex rel. Beck v. Sharpp©S6, 1000, 
 1001, 1002. 
 
 ex rel. Black v. Campbell, 13, 
 991, 995, 1014, 1172. 
 
 ex rel. Brown v. R. Simpson Co., 
 303. 
 
 ex rel. Burke v. Ferguson, 1187. 
 
 ex rel. Burnham v. Hagerman, 
 
 986, 1001. 
 
 ex rel. Carr v. Cuthbert, 1001. 
 ex rel. Cavanagh v. Smith, 1029. 
 ex rel. Cavers v. Kelly, 990. 
 ex rel. Ferguson v. Burkei, 1188. 
 ex rel. Ferris v. .Speck, -986. 
 ex rel. Fitzgerald v. Stapleford, 
 
 987, 989, 1003. 
 
 ex rel. Froelich v. Woellar, 1000. 
 ex rel. Gardhouse v. Irwin, 986, 
 
 987, 998, 1141. 
 
 ex rel. Grant v. Coleman, 1002. 
 ex rel. Harding v. Bennett, 986, 
 
 988. 
 ex rel. Hewson v. Riddell, 993, 
 
 995, 997. 
 ex rel. Horan v. Evans, 1215. 
 ex rel. Hunt v. Genge, 1000. 
 ex rel. Ingoldsby v. Spiers, 1108. 
 ex rel. Ivison v. Irwin, 993, 994, 
 
 1001. 
 
 ex rel. Jamieson v. Cook, 987. 
 ex rel. Joanisse v. Mason, 986. 
 ex rel. Macnamara v. Hefferman, 
 
 987. 
 
 ex rel. Mason v. Butler, 1018. 
 ex rel. Martin v. Jacques, 987, 
 
 998. 
 ex rel. Martin v. Watson, 990, 
 
 1004. 
 ex rel. McFarlane v. Coulter, 
 
 1001, 1002. 
 ex rel. McKenzie v. Martin, 13, 
 
 989. 
 ex rel. McLeod v. Bathurst, 999, 
 
 1002. 
 
TABLE OF CASES. 
 
 XCV11 
 
 R. ex rel. McNamara v. Christie, 
 
 1215. 
 R. ex rel. Milligan v. Harrison, 266, 
 
 986, 990, 996, 1004, 1005. 
 R. ex rel. Moore v. Nagle, 1221. 
 R. ex rel. Morton v. Roberts, 986, 
 
 998, 999, 1000, 1004. 
 
 R. ex rel. O'Donnell v. Broomfleld, 
 
 986, 1000. 
 
 R. ex rel. O'Shea v. Letherby, 986, 
 
 987, 988, 990, 996, 999, 1001, 
 1004, 1039, 1040, 1221. 
 
 R. ex rel. Roberts v. Ponsford, 
 
 1000. 
 R. ex rel. Robinson v. McCarty, 
 
 987, 1000. 
 R. ex rel. Sabourin v. Berthiaume, 
 
 1000, 1001. 
 R. ex rel. St. Louis and Rheaum, 
 
 997. 
 R ex rel. Seymour v. Plant, 1029. 
 R. ex rel. Sharpe v. Beck, 986. 
 R. ex rel. Slater v. Homan, 987. 
 R. ex rel. Stewart v. Sltandlsh, 
 
 1220. 
 H. ex rel. Thornton v. Dewar, 1002. 
 R. ex rel. Tolmle v. Campbell 993. 
 R. ex rel. Wallerworth and Bu- 
 chanan, 997. 
 R. ex rel. Walton v. Freeborn, 990, 
 
 1000. 
 R. ex rel. Warner v. Skelton, 1000, 
 
 1001. 
 R. ex rel. Warner v. Simpson, 768. 
 R. ex rel. Warr v. Walsh, 994, 995. 
 R. ex rel. Whitesides v. Hamilton, 
 
 1049. 
 P ex r.el. Winton v. Gowanlock, 
 
 999, 1001. 
 
 R. ex rel. Zimmerman v. Steele, 
 987, 1000. 
 
 Race v. Anderson, 902. 
 Race v. Harrison, 1190. 
 Rachar v. G. T. R., 976. 
 Racher v. Pew, 879, 893. 
 Radenhurst v. Coate, 243. 
 Radenhurst, ex parte, 736. 
 Radford and Bright, re, 846. 
 
 Radford v. Disher, 1114, 1115, 1118. 
 Radford v. Macdonald, 264. 
 Radhamoni Debi v. Collector of 
 
 Khulna, 219. 
 Radley v. London North Western 
 
 Ry., 640, 976. 
 Rae v. McDonald, 537. 
 Rae v. Rae, 110. 
 Rae v. Trim, 1053, 1068. 
 Raff v. Krecker, 577. 
 Raggi, re, Brass v. Young, 234. 
 Railroad Co. v. Jones, 648. 
 Railton v. Wood, 725. 
 Railway Act Amendment, re, 934. 
 Ry. Commissioners, re, 939. 
 Ralnford v. Keith, 785, 798, 819. 
 Rainville v. G. T. R., 638, 943. 
 Rainsgate Victoria Hotel v. Monte- 
 
 flore, 829. 
 Rajotte v. C. P. R., 629. 
 Raleigh and Harwick, re, 1127, 1136. 
 Raleigh v. Williams, 1124, 1124, 
 
 1132. 
 Rally, re, 434. 
 
 Ralph v. Great Western, 948. 
 Ramsay v. Graham, 616. 
 Ramsay v. Luck, 118. 
 Ramus v. Dow, 390, 392. 
 Randall v. Ahearn and Soper, 961. 
 Randall v. Dopp, 536. 
 Randall v. Ottawa Electric, 961. 
 Randt Gold Mining Co., 794, 800. 
 Ranfleld v. Ranneld, 853. 
 Ranney v. Jones, 292, 625. 
 Ranney v. Macklem, 1219. 
 Rapier v. London Tramways, 836, 
 
 1142. 
 Rasch v. Heckler, 71. 
 Rasch v. Wulfert, 179. 
 Rastall v. Attorney-General, 312. 
 Ratcliffe and Crescent Mill, re, 144. 
 Rathbone v. Michael, 613. 
 Rathbone v. Miller, 604, 613. 
 Rathbone and White, re, 441. 
 Rathbun v. Culbertson, 273, 496. 
 Rathbun v. Standard Chemical Co., 
 
 171, 181. 
 Rattenbury and Clinton, re, 1103. 
 Ray, re, 188. 
 
 S.A.- 
 
XCV111 
 
 TABLE OF CASES. 
 
 Ea 
 
 i 
 
 ay v. Blair, 914. 
 
 Ray v. Kilgour, 1H6> 1H8- 
 
 Hay v. Newton, 740. 
 
 Raycraft, re, 451, 452. 
 
 Rayer, re, 207. 
 
 Raymond v. Cardinal School Trus- 
 tees, 1218. 
 
 Read v. Price, 260. 
 
 Real Estate v. Guardhouse, re, 148. 
 
 Rec-Gen. of N. B. v. Hayward, 48. 
 
 Rec.-Gen. for N. B. v. Schofield, 51. 
 
 Reddan, re, 389. 
 
 Reddick v. Traders Bank, 120. 
 
 Reddook and Toronto, re, 1192. 
 
 Roddy v. Streple, 868. 
 
 Redgate, re, 413. 
 
 Redman, re, 390, 881. 
 
 Reed v. Ottawa, 1182, 1183. 
 
 Reed v. Washington Fire, 173. 
 
 Reed and Wilson, re, 460. 
 
 Reekie v. McNeil, 126. 
 
 Rees v. Barrington, 532. 
 
 Rees v. McKeown, 774. 
 
 Reeve v. Jennings, 319. 
 
 Reeves v. Butcher, 235. 
 
 Reeves v. Toronto, 1132. 
 
 Reeves v. Toronto Ry., 972. 
 
 Referee, re, 451, 452. 
 
 References by Governor General in 
 Council, 290. 
 
 Refuge Assurance Co. v. Kettle- 
 worth, 871. 
 
 Regan v. Montreal Light, Heat & 
 Power Co., 636. 
 
 Reggin v. Manes, 600, 606, 609, 612. 
 
 Registrar of Carlton, re, 456. 
 
 Registrar of London, 458. 
 
 Registrar of York, re, 462. 
 
 Reed and Wilson, re, 492. 
 
 Reid, re, 407. 
 
 Reid v. Barnes, 628. 
 
 Reid and Canada Atlantic, re, 941. 
 
 Reid v. Creighton, 547, 574, 584. 
 
 Reid v. Goold, 98. 
 
 Reid v. Gowans, 276. 
 
 Reid v. Graham Bros., re, 151, 158, 
 159. 
 
 Reid v. Hamilton, 1005, 1065. 
 
 Reid v. Reid, 685, 687. 
 
 Reid v. Toronto, 1067. 
 
 Reid v. Whitehead, 462, 491. 
 Reid and Wilson, re, 479. 
 Reilly v. Doucette, 343. 
 Reinhardt v. Hunter, 551. 
 Reinhart v. Shutt, 610, 612. 
 Reist v. G. T. R., 937. 
 Reith v. Reith, re, 131, 132. 
 Renaud v. Thibert, 145. 
 Renfrew, re, 41, 49, 52, 53. 
 Renney v. Dempster, 614. 
 Rennie v. Block, 546, 550, 553. 
 Rennie v. Frame, 213, 
 Rennie Infants, re, 714, 883, 884, 
 
 890. 
 Rennie v. Northern Ry., 957. 
 Rennie v. Quebec Bank, 268, 269, 
 
 271, 349, 351, 530, 5S7. 
 Renshaw & Co., re, 808. 
 Renshaw v. Queen Anne Mansions, 
 
 174. 
 Renwick v. Gait Hespeler Ry., 696, 
 
 702, 977. 
 Resdon Iron and Locomotive Works 
 
 v. Furness, 801. 
 Restall v. Allen, 617. 
 Reuner v. Tolley, 339. 
 Reycraft, re, 331. 
 Reynolds v. Ashby, 375, 377, 590. 
 Reynolds v. Foster, 321. 
 Reynolds v. Tilling, 976. 
 Reynolds v. Whitley, 916. 
 Rhum v. Pasternack, 106, 464. 
 Rice v. Sockett, 263. 
 Rice v. Toronto Ry., 964. 
 Rice v. Whitby, 1059, 1066. 
 Rice Lewis v. Rathbone, 602, 605," 
 
 606, 607, 609. 
 Rich v. Cork, 758, 759. 
 Rich v. Melancthen, 99, 121, 123, 
 
 1181, 1182. 
 Rich v. Pierpont, 764. 
 Richard v. Collins, 348, 1116, 1119, 
 
 1120. 
 Richards v. Chamberlain, 604, 613. 
 Richards v. Scarboro Market, 922. 
 Richardson, re, 209, 442, 744, 745. 
 Richardson v. Armitage, 336. 
 Richardson v. Graham, 247. 
 Richardson v. Le Maitre, 174. 
 Richardson v. Ransom, 293. 
 
TABLE OF CASES. 
 
 XC1X 
 
 Richmond v . White, 101. 
 Rickett v. Green, 718. 
 Ricketts v. Markdale, 702, 1058. 
 Ricketts v. Ricketts, 423. 
 Rickeitts v. Sydney and Glace Bay 
 
 Ry., 973. 
 Rickey and Marlborough, re, 990, 
 
 996, 997, 1012, 1013. 
 Riddell v. G. T. R, 938. 
 Rideau Club v. Ottawa, 1103. 
 Ridler, re, 334. 
 Ridout, re, 475, 737. 
 Ridsdale and Brush, re, 1224. 
 Rielle v. Reid, 555, 540, 576, 778. 
 Right of Way Mining Co. v. La 
 
 Rose Mining Co., 72, 79, 82. 
 Rigney v. Ruttan, 45. 
 Rintz v. R. C. Episcopal Corpora- 
 tion of Sandwich, 1229. 
 Risdale and Brush, re, 1225. 
 Rising, re, 413. 
 Ritchie Hearn Cq„ re, 622. 
 Ritchie v. Vermilion Mining Co., 
 
 787, 810, 812, 815. 
 Ritson, re, 418. 
 Ritson's Case, 829. 
 Ritter v. Fairfield, 105. 
 Ritz and New Hamburg, re, 1018. 
 River Stave Co. v. Sill, 572, 575. 
 Roach, re, 48. 
 
 Roach Estate, re, George, 51, 53. 
 Roach v. McLaughlin, 277, 623. 
 Roach v. Port Colborne, 1059, 1060. 
 Robb v. Murray, 146. 
 Robb v. Woodstock School Board, 
 
 600. 
 Roberts, re, 388. 
 
 Roberts v. Bank of Toronto, 560. 
 Roberts v. Bell Telephone, 981. 
 Roberts and Brooks, re, 385, 391, 
 
 396, 427. 
 Roberts v. Climie, 1154. 
 Roberts v. Donovan, 286. 
 Roberts v. Hall, 711. 
 Roberts v. Macdonald, 610. 
 Roberts v. Port Arthur, 1041. 
 Roberts v. Taylor, 634, 1187, 1189. 
 RolDertson, re, 133. 
 Robertson v. Bullen, 616, 620. 
 
 Robertson v. Burrill, 228, 233, 237, 
 
 259. 
 Robertson and Chatham, re, 1075, 
 
 1076. 
 Robertson v. Colborne, re, 981. 
 Robertson and Daganeau, re, 439, 
 
 440. 
 Robertson v. Defoe, 444. 
 Robertson and G. T. R., 945. 
 Robertson v. Hawkins, 767. 
 Robertson v. Hetherington, 383. 
 Robertson v. Laroque, 679, 685, 686. 
 Robertson v. McOuet, 402. 
 Robertson v. North Easthope, 1123. 
 Robertson, re, Robertson v. Robert- 
 son, 192. 
 Robertson v. Taylor, 45. 
 Robertson v. Thomas, 571. 
 Robertson v. Toronto, 964, 1067. 
 Robins, re, 185. 
 Robinson, re, 186, 255. 
 Robinson and BeamsviJle, re, 997, 
 
 1013, 1018. 
 Robinson v. Byers, 357. 
 Robinson v. Canadian Northern/ 
 
 946, 967. 
 Robinson v. C. P. R., 701, 958. 
 Robinson v. Gifford, 362. 
 Robinson v. Gordon, 326. 
 Robinson v. G. T. R., 958. 
 Robinson v. Grange, 270. 
 Robinson, re, Grant v. Hobbs, 775, 
 Robinson v. Gregory, 1007. 
 Robinson v. Lynes, 688. 
 Robinson v. Mann, 575. 
 Robinson v. McGillivray, 543, 544, 
 
 547, 548. 
 Robinson v. Mcintosh, 729. 
 Robinson v. Mills, 200, 202. 
 Robinson v, Morris, 298, 300, 1036. 
 Robinson v. Osborne, 217, 226. 
 Robinson v. Pett, 434. 
 Robinson Printing Co. v. "Chic," 
 
 805, 808. 
 Robinson v. Robinson, 235. 
 Robinson v. Toronto Ry., 974. 
 Robinson v. Wall, 352. 
 Robinson v. Wilson, 541, 557, 566. 
 Robinson v. Wood, 329. 
 
TABLE OF CASES. 
 
 Roblin v. McMahon, 259. 
 
 Roblin v. Roblin, 668. 
 
 Robock v. Peters, 608, 610, 612, 613, 
 
 619. 
 Robson v. Biggar, 266. 
 Robson v. Carpenter, 453. 
 Roby, re, Howlett v. Newington, 
 
 398. 
 Roche v. Allan, 123, 366. 
 Roche v. Ryan, 771, 1053. 
 Rochefoucauld v. Boustead 93, 324. 
 Rochester and Mersea, re, 1122, 
 
 1127, 1128, 1131. 
 Rochford v. Brown, 300, 425, 1110. 
 Rockland P. S. Board and Rockland 
 
 H. S. Board, re, 1212, 1221. 
 Rochon, re, 567, 568. 
 Rochon v. Wellington, re, 155. 
 Rodd, re, 80. 
 Rodd v. Essex, 111, 117, 128, 169, 
 
 306, 1037. 
 Roddick, re, 879, 887, 893. 
 Roden and Toronto, re, 1032. 
 Rodger v. Moran, 392. 
 Rodgers v. Hamilton Cotton Co., 
 
 636, 642, 644, 656, 1190. 
 Rodney Casket Co., re, 842, 851. 
 Roe v. Braden, 482. 
 Roe v. Roper, 730. 
 Roff v. Krecker, 577. 
 Roger, re, 880. 
 Rogers v. Carroll, 575, 583. 
 Rogers v. Hewer, 321. 
 Rogers v. G. W. Ry., 957. 
 Rogers and London Canadian, re, 
 
 181. 
 Rogeirs v. McFarland, 80, 544, 1050. 
 Rogers v. Marshall, 583. 
 Rogers v. Martin, 723. 
 Rogers v. National Drug & Chem- 
 ical Co., 103, 340, 718. 
 Rogers v. Ullman, 624. 
 Rogers v. Wood, 820. 
 Roles v. Pascall, 662. 
 Romaine, re, 49. 
 Roman Catholic Diocese of St. Ste. 
 
 Marie v. S. Ste. Marie, 1101. 
 Roman Catholic Separate Schools, 
 
 re, 1225. 
 Rombough v. Balch, 632, 650, 702, 
 
 703, 936, 977. 
 
 Romney and Tilbury, re, 1033, 1126, 
 
 1126. 
 Ronson v. Butler Bros., 703. 
 Ronson v. C. P. R., 702. 
 Rooker v. Vicar of Northfleet, 1205. 
 Rooney v. Petry, 213, 218, 219, 220, 
 
 226, 230. 
 Roscoe v. McConnell, 108. 
 Rose, re, 395. 
 Rose v. Barttett, 402. 
 Rose v. Croden, 35. 
 Rose v. Morrisburg, 1204. 
 Rose v. Parent, 348. 
 Rose v. Peterkin, 482. 
 Rose v. Spicer, 719. 
 Rose v. Watson, 232. 
 Roseback and Carlyle, re, 1107. 
 Rosenberg v. Bochler, 442, 454, 459. 
 Rosney v. Rosney, 668. 
 Ross, re, 251, 255, 264, 413, 708. 
 Ross v. Burton, 532. 
 Ross v. Cooper, 579. 
 Ross v. Cross, 656. 
 Ross and Davies, re, 386, 396, 428, 
 
 429. 
 Ross v. Dunn, 581. 
 Ross v. East Nlssouri, 103, 1197. 
 Ross v. Flanagan, 256. 
 Ross v. G. T. R., 932, 967. 
 Ross v. Hunter, 483. 
 Ross v. London, 1181, 1183. 
 Ross v. McLaren, 343. 
 Ross v. McLay, 299, 454, 455, 458, 
 
 502, 504, 506. 
 Ross v. The Queen, 47, 48, 49, 54, 
 
 55. 
 Ross v. Robertson, 257. 
 Ross v. 'Simpson, 271. 
 Ross and Stobie, re, 515, 520. 
 Ross v. Vokes, 118. 
 Rossi v. Edinburgh, 1049. 
 Rossiter v. Miller, 320. 
 Rossiter v. Toronto Ry., 269. 
 Roundhead Colliery Co., re, 843. 
 Roussell v. Burnham, 823, 830. 
 Routledge, In re, 804. 
 Routledge, re, Routledge v. Saul, 
 
 386, 419. 
 Rowan v. Toronto Ry., 974, 976. 
 Rowe v. Hopwood, 323. 
 Rowe, re, Jacobs v. Hind, 249. 
 
TABLE OF CASES. 
 
 CI 
 
 Rowland v. Collingwood, 1049, 1156. 
 Rowland v. McCallum, 1124. 
 Rowlln v. Rowlin, 616, 619, 620. 
 Royal Aquarium v. Parkinson, 198. 
 Royal Bank v. G. T. R., 7, 591, 594. 
 Royal Col. Vet. Surgeons v. Collln- 
 
 son, 773. 
 Royal Electric Co. v. Heve, 637, 961, 
 
 1143. 
 Royal Hamilton Yacht Club v. 
 
 Jarvis, 1100, 1104. 
 Royce & Henderson v. Nat. Trust 
 
 Co., 741. 
 Royle v. Canadian Northern, 950. 
 Royston Park and Steelton, re, 498. 
 Ruben v. Great Fingal Consolidat- 
 ed, 795. 
 Ruby, re, 552. 
 Rudd v. Arnprior, 1041. 
 Rudd v. Bell, 656. 
 Rudd v. Harper, 389, 415. 
 Rudge v. Richens, 382. 
 Ruethel Mining Co. v. Thorpe, 817. 
 Ruetsch v. Spry, 247, 343, 367. 
 Rumney and Smith, re, 379. 
 Rumohr v. Marx, 271, 273. 
 Runciman v. Armstrong, 280. 
 Rundel, re, 448, 449, 450. 
 Rush, re, 195. 
 
 Rushton v. Galley, 1052, 1065. 
 Russell, re, 21, 42, 128, 136, 138, 334, 
 
 407. 
 Russell and Baldwin re, 176. 
 Russell v. Bell Telephone Co., 637. 
 Russell v. Eddy, 103. 
 Russell v. French, 605, 606, 607, 
 
 609. 
 Russell Literary and Scientific 
 
 Association, In re, 779. 
 Russell v. Russell, 459, 483. 
 Russell, re, Russell v. Schoolbred, 
 
 532. 
 Russell v. Toronto, 1104, 1111, 1115, 
 
 1116. 
 Russian Petroleum, re, 805. 
 Russian Spratts Patent, re, 804. 
 Russo-Chinese Bank v. LI Tan Sam, 
 
 814. 
 Rusitin v. Bradley, 120. 
 Ruttan v. Burk, 3, 1114, 1117, 1119. 
 
 Ruttan and Dreifus, 927. 
 Ruttan v. Shea, 45. 
 Ruttan v. Short, 569. 
 Rutter v. Chapman, 784. 
 Ryan v. Clarkson, 558. 
 Ryan v. Devlin, 34. 
 Ryan v. Fish, 196, 197. 
 Ryan and McCallum, re, 1044. 
 Ryan v. McCartney, 157. 
 Ryan v. Malone, 550. 
 Ryan v. Miller, 716. 
 Ryan v. Patriarche, 172, 174, 176. 
 Ryan v. Ryan, 213. 
 Ryan v. Turner, 732. 
 Ryan v. Willoughby, 987. 
 Ryckman v. Hamilton, etc., Elec- 
 tric Ry., 958, 967. 
 Ryckman v. Randolph, 105. 
 Ryer and Plows, re, 305. 
 Rykert v. Miller, 494. 
 Ryland, re, 329, 330, 331. 
 Ryland v. King, 1208. 
 Rythe, re, 735. 
 
 S., re, 192, 195. 
 
 Sackville West v. Attorney-General, 
 
 452. 
 Sage v. West Oxford, 1134. 
 Salamian, re, 416, 421. 
 Salaman v. Holford, 370. 
 Sale v. Lake Erie & Detroit Ry., 
 
 743. 
 Salisbury Gold Mining Co. v. Hath- 
 
 orn, 793. 
 Salkeld v. Johnson, 2. 
 Saloman v. Saloman, 778. 
 Salter and Beckwith, re, 991, 995, 
 
 997, 1007, 1013, 1014, 1018. 
 Salter v. Everson, 245 
 Salter v. McCaffrey, 106. 
 Saltfleet, re, 13, 14, 17, 24, 989, 1016, 
 
 1172 1174. 
 Saltsman v. Berlin Robe Co., 619. 
 Salvin, Worseley v. Marshall, re, 
 
 105. 
 Samis v. Ireland, 272. 
 Sampson and Narbeth, re, 445. 
 Sampson, re, Robbins v. Alexander, 
 
 255, 430. 
 
Cll 
 
 TABLE OF CASES. 
 
 Sampson, In re, Sampson v. Samp- 
 son, 419. 
 Samuel, re, 42. 
 Sandbach School, re, 328. 
 Sanders v. Malsburg, 437, 692. 
 Sanderson v. Berwick, 376. 
 Sanderson and Saville, re. 71, 76, 80. 
 Sandford v. Porter, 667. 
 Sandwich East R. C. Separate 
 
 School Section v. Walkerville, 
 
 1225. 
 Sandwich East and W. & T. Electric 
 
 Ry., re, 957, 980, 1214, 1224, 
 
 1226. 
 Sandwich L. I, Co. v. Windsor 
 
 Board of Education, 1227. 
 Sandwich Ry. v. Windson, 1103. 
 Sandwich v. S. W. & A. Ry., 914. 
 Sanford Estate, re, 435. 
 Sangster v. Eaton, 641. 
 Sangster v. G-oderich, 1058. 
 Sanitary Burial Association, re, 845. 
 Sargeant v. Allen, 1198. 
 Sarnia and Sarnia Gas, re, 178, 
 
 1033, 1143.' 
 Saskatchewan Land Co. v. Moore, 
 
 253. 
 Saskatchewan v. Leadley, 435. 
 Saugeen, re, 868. 
 Saugeen v. Church Society, 60. 
 Saugeen Mutual, Kneohtel's Case, 
 
 867. 
 Sault Ste. Marie, re, 25, 28, 29, 34, 
 
 40, 41, 262. 
 Saunders, re, 140, 413. 
 Saunders v. Rreakie, 345. 
 Saunders v. Maclean, 530. 
 Saunders v. Malshuiry, 438. 
 Savage v. C. P. R., 968. 
 Sawdon, re, 404, 413, 415, 873. 
 Sawers v. Toronto, 1104, llli, 1112. 
 Sawyers v. Linton 332. 
 Sawyer Massey v. Hodgson, 680, 681. 
 Sawyer-Massey Co. v. Parkin, re, 
 
 146. 
 Sawyer-Massey v. Waddell, 489. 
 Sawyer v. Robertson, 108. 
 Sawyer v. Prlngle, 583, 586. 
 Sayers v. Collyer, 100. 
 Scadding v. Eyles, 739. 
 Scane v. Coffey, 279. 
 
 Scarlett v. C. P. R., 705, 706. 
 
 Schaffer v. Armstrong, 103. 
 
 Schank v. Scott, 361. 
 
 Sohantz v. Berlin, 108. 
 
 Schantz v. Clarkson, 562, 567, 842, 
 
 844. 
 Schellenberg v. C. P. R., 969. 
 Schmidt v. Berlin, 1138. 
 Sichofield v. Blome, 1187, 
 Sdholefleld, re, Scholefleld v. St. 
 
 John, 412. 
 Schneider v. Norris, 320. 
 Schumacher and Oheeley, re, 6, 13, 
 
 988, 992, 996, 1003, 1013, 1014, 
 
 1017, 1174. 
 Schwent v. Roetter, 264. 
 Schwoob v .Michigan Central, 644, 
 
 650, 653, 968. 
 Scott, re, 346, 709. 
 Scott v. Allen, 257. 
 Scott & Alvarez, re, 339. 
 Scott v. Avery, 173. 
 Scott v. Burgess, 1213, 1214, 1227. 
 Scott v. Carveth, 271. 
 Scott v. Dublin and Wicklow Ry., 
 
 976. 
 Scott, In the Goods ofi 405. 
 Scott v. Governors of University of 
 
 Toronto, 645, 1228. 
 Scott v. Griffin, 557. 
 Scot* v. Lietowel, 1108. 
 Scott v. Midland Ry., 956. 
 Scott v. Morley, 679, 982, 988. 
 Scott v. Nixon, 440. 
 Scott and Ottawa, re, 1214. 
 Scott v. Pape, 248. 
 Scott v. Patterson, 84. 
 Scott v. Pere Marquette, 944. 
 Scott and Peterborough, re, 770. 
 Scott v. Scott, 404, 407, 879. 
 Scott v. Stuart, 1115, 1117. 
 Scott v. Supple, 388, 417. 
 Scott v. Viandansan, 172* 
 Scott v Vosberg, 345. 
 Scott v. Wye, 687. 
 Scottish American v. Prittie, 924, 
 
 925, 932. 
 Scottishi Land Co. v. Toronto, 1140. 
 Scottish Ontario lnv. Co., re, 517. 
 Scottish Ontario lnv. Co. and Bay- 
 ley, re, 495. 
 
TABLE OF CASES. 
 
 em 
 
 Scottish Ontario v. Toronto, 299, 
 
 301. 
 Scottish. Ontario and Manitoba 
 
 Land Co., re, 733. 
 Scottish Petroleum Co., re, 810. 
 Soouler v. Scouler, 685. 
 Scratch v. Limoges, 599. 
 Scripture v. Gordon, 631. 
 Scriver v. Wabash Hy., 662. 
 Scriver v. Young, 183, 770. 
 Sculthorpe v. Tipper, 424. 
 Seabrook Gray v. Baddeley, re, 413. 
 Seabrook v. Young, 120. 
 Seaman v. Canadian Stewart Co., 
 
 351, 615. 
 Sear v. Woods, re, 606, 614. 
 Sears v. Agricultural, 867. 
 Seaton v. Lunney, 367. 
 Sebert v. Hodgson, re, 144, 
 Second Congregational Church, re, 
 
 1230. 
 Secord and Mowat, re, 276. 
 Securities Co. v. Brethour, 867. 
 Seeley v. Caldwell, 377, 590. 
 Seeley v. Dalton, 1181. 
 Segsworth v. Anderson, 556, 562. 
 Segsworth v. DeCew, 260. 
 Segsworth v. Meriden, 579. 
 Seguin and Hawkesbury, re, 1069. 
 Select Knights, re, 894, 907. 
 Selkirk, 29. 
 
 Selkirk Land andl Inv. Co. v. Rob- 
 inson, 320. 
 Selkirk v. Windsor, etc., Ry., 809, 
 
 914. 
 Sellar v. Bright, 114. 
 Sellars v. Dutton, 1181. 
 Semi-Ready v. Tew, 725, 861. 
 Semmens v Harvey, 580. 
 Senesac v. Central Vermont, 943. 
 Senior v. Ward, 648. 
 Separate Schools Act, re, 1224, 1225. 
 Seroka v. Kattenburg, 690. 
 Serson v. Willson, 1205. 
 Service and Front of Bscott, re, 
 
 992, 993. 
 Seton v. Slade, 94. 
 Severn v. McLellan, 483. 
 Severn v. The Queen, 1176. 
 Severn and Wye & C. Ry., In re, 
 807. 
 
 Seward v. Vera Cruz, 700. 
 
 Sewell v Burdick, 533. 
 
 Sexton v. G. T. R., 951, 969, 970, 
 
 1050. 
 Seymour, re, 17, 18. 
 Seymour v. Maidstone, 1203. 
 Shafer, re, 105, 886. 
 Shakspear, re, Deakin v. Larkin, 
 
 679. 
 Shambrook Estate, re, 48, 49. 
 Shanagan v. Shanagan, 347. 
 Shandlow v. Cotterill, 322. 
 Sharman, re, 406. 
 Sharp v. G. T. R., 700. 
 Sharp v. Fathead Spinning Co., 
 
 640, 1190. 
 Sharp v. Peel, 1222. 
 Sharpe v. Fortune, 729. 
 Sharpe y Leitch, 271. 
 Sharpington v. Fulham Guardians, 
 
 299. 
 Shaver, re, 224. 
 
 Shaver v. Cambridge, 1206, 1207. 
 Slhaver v. Cotton, 802. 
 Shaver v. Great Western, 937. 
 Shaver & Hart, re, 341, 
 Shaw v. Board of Education of St. 
 
 Thomas, 1216. 
 Shaw v Cotes, 423, 424. 
 Shaw v. Coulter, 237, 369, 380. 
 Shaw v. Croxnpton, 220, 255. 
 Shaw v. Tims, 273. 
 Shaw v Gault, 582. 
 Shaw v. G. T. R., 949. 
 Shaw and Manvers, re, 1209. 
 Shaw v. McCreary, 681. 
 Shaw v. McMahon, 416, 
 Shaw and St. Thomas, re, 1124, 1028. 
 Shaw v. Tackaberry, 138, 
 Shaw v. Taiti, 831. 
 Shaw v. Winnipeg, 1142. 
 Shea v. Inglis Co., 627, 646, 665. 
 Shea v. Lindsay, 316. 
 Shea v. Reid Newfoundland Co., 
 
 965. 
 Sheard v. Horan, 586. 
 Sheffield Corporation v. Barclay, 
 
 519, 797. 
 Shelley's Case, 415. 
 Shenstone v. Freeman, 723. 
 Shepard v. Hayball, 451. 
 
CIV 
 
 TABLE OF CASES. 
 
 Shepard v Shepard, 207. 
 Shepard, re, George v. Thyer, 668. 
 Shephard's Settled Estate, re, 206. 
 Shepheard v. Bray, 819, 826. 
 Shepheard v. Broome, 823, 824. 
 Shepherd, re, 131. 
 Sihepherdson v. McCullough, 218. 
 Sheppard v. C. P. R., 946, 947. 
 Shepphard v. Shepphard, 157. 
 Sheratt v Merchants Bank, 677, 
 
 685. 
 Sherbonneau v. Jeffs, 482. 
 Sherewood v. Balch, 173. 
 Sheriff of Lincoln, In re, 311. 
 Sheriff v Patterson, 1215. 
 Sherk v. Evans, 123. 
 Sherlock v. Powell, 605, 606, 613. 
 Sherratt v. Merchants Bank, 689. 
 Sherrin v. Pearson, 219, 221. 
 Shibley and Napanee, etc., Ry.^ re, 
 
 932. 
 Shier, re, 57, 67. 
 Shier Lumber Co., re, 1100, 1102, 
 
 1105, 1109. 
 Shillito v. Thompson, 1184. 
 Shipper v. Halloway, 351. 
 Shirt v. Calico Printers Assn., 697. 
 Shoebrink v. C. A. R., 950. 
 Shore v. Shore,. 412. 
 Shoreditch v. Franklin, 6. 
 Shorey and Thrasher, re, 1209, 1214. 
 Short v. Palmer, 1198. 
 Short v. Ruttan, 569, 570. 
 Shrigley v. Taylor, 17. 
 Shuckburg's Settlement, re, 413. 
 Shunk v. Downey, 219. 
 Shunk, re, 390. 
 Shupe v. Young, re, 149. 
 Shuttleworth v. McGillivray, 677, 
 
 685, 687. 
 Shuttleworth v Shaw, 734. 
 Sibbald v. G. T. R., 700, 950. 
 Sibbald v. Hill, 1180. 
 Sibley v. Asfoforth, 352. 
 Sibun v. Pearce, 909. 
 Sidebottam, re, 329, 330, 331. 
 Sidney, re, 328. 
 Sifton v. McOabe, 260. 
 Silberschildt v. Schiott, 409. 
 Silkstone and Haigh Moore Co. v. 
 Edey, 846. 
 
 Sills v. Lennox and Addington, 310. 
 
 Sills v. Warner, 329, 1231. 
 
 Sim v. Dominion Fish Co., 629, 631, 
 
 656. 
 Simmons and Chatham, re, 1209. 
 Simmons v. Shipman, 217. 
 Simmons v. Simmons, 879, 892. 
 Simms v. Registrar of Probates, 51. 
 Simon, re, 683, 686. 
 Simon v. London General Omnibus 
 
 Co., 972. 
 Simpson, In re, 12. 
 Simpson v. Caledonia, 1192. 
 Simpson v. Chase, 155, 156, 160. 
 Simpson and Clafferty, re, 124, 277, 
 
 278, 567. 
 Simpson v. Corbett, 252. 
 Simpson v. Dolan, 315. 
 Simpson v. Eaton, 247, 343. 
 Simpson v. Ebbw Vale Steel Co., 
 
 628. 
 Simpson v. Hartopp, 727. 
 Simpson v. Molsons Bank, 801. 
 Simpson v. Rubeck, 604, 607, 620. 
 Simpson v. T. & Y. Radial, 973. 
 Simpson v. Webb, 643. 
 Simpson v. Wood, 578. 
 Sims v. G. T. R., 951. 
 Sims v. Kelly, re, 706. 
 Sinclair, re, 72, 79, 416. 
 Sinclair v. Bell, re, 149. 
 Sinclair v. Brown, 391. 
 Sinclair and Owen Sound, re, 994, 
 
 995, 996, 997, 998, 1014, 1015, 
 
 1038, 1172. 
 Sinclair v. Peters, 245, 342, 1052. 
 Sinclair v. Preston, 105. 
 Sinden v. Brown, 299. 
 Sirdar Gurdkal Singh v. Rajah of 
 
 Faridkote, 278. 
 Sir John More Gold Mining Co., 
 
 re, 853, 854. 
 Sitwell, re, 209. 
 
 Siven v. Temiskamdng, 80, 659. 
 Siath West Kent Building Society 
 
 v. Hills, 909. 
 Skae v. Chapman, 273, 348. 
 Skene v. Cook, 240. 
 Skill v. Lougheed, 553. 
 Skill and Thompson, re, 513, 514, 
 
 518. 
 
TABLE OF CASES. 
 
 CV 
 
 Shillings v. Royal Ins. Co., 901. 
 
 Skinner v. Crown Life, 814. 
 
 Skinner v..Fargubarson, 402. 
 
 Skirving v. Ross, 763. 
 
 Sklitzsky v. Cranston, 771. 
 
 Skrymsher v. Nortbcote, 412. 
 
 Slater, re, 411. 
 
 Slater v Canada Central, 924. 
 
 Slater v. Laberee, 5, 146, 588. 
 
 Slater v. Musgrave, 260. 
 
 Slater v. Smith, 319. 
 
 Slater v. Trader, 125. 
 
 Slattery v. Bun, 197, 199. 
 
 Slattery v. Lillii, 599, 601. 
 
 Slavin, re, Marshall v. Wolseley, 
 
 413. 
 Slemin v. Slemin, 782. 
 Slingsby v. Toronto Ry., 966. 
 Sloan v. Georgia Pacific Ry., 954. 
 Sloan v, Maughan, 583. 
 Slosson, re, 883, 884. 
 Small v. Henderson, 556, 566. 
 Small v. Riddell, 531. 
 Small v. Thompson, 680, 683. 
 Small v. Toronto Ry., 973. 
 Smallwood v. Abbott, 1231. 
 Smart v. Dana, 44, 562. 
 Smart Infants, re, 287, 288, 711. 
 Smart y Smart, 709 
 Smart v. West Ham Union, 984. 
 Smee v. Smee, 402. 
 Smellie v. Watson, 371. 
 Smerling v. Kennedy, 112. 
 Smith, re, 406, 412, 418, 710. 
 Smith, In re, 828. 
 Smith v. Ancaster, 1148. 
 Smith v. Antipitzky, 559. 
 Smith v. Associated Omnibus 1 Co., 
 
 628. 
 Smith v. Baker, 629, 630, 642, 644, 
 
 651, 655, 656, 1188. 
 Smith v. Belleville School Trustees, 
 
 1214. 
 Smith v. Bennett, 253. 
 Smith v. Berti, 1058, 1071. 
 Smith v. Boothman, 151, 153. 
 Smith y Brenner, 1146, 1147. 
 Smith v. Brown, 360. 
 Smith v. Canadian Express, 946. 
 Smith v. C. P. R., 953. 
 Smith v. Carey, 20, 30, 313. 
 
 Smith v. Clarkson, 139. 
 
 Smith v. City of London Ins. Co., 
 905, 902. 
 
 Smith v. Clarke, 352. 
 
 Smith v. Cobourg, 271. 
 
 Smith v. Collingwood, 1218, 1219. 
 
 Smith v. Com. Union Ins. Co., 551. 
 
 Smith v. Eldon, 1041, 1059. 
 
 Smith v. Ernest, 318. - 
 
 Smith y. Ernst, 94, 324. 
 
 Smith v. Excelsior Life, 870. 
 
 Smith v. Port William P. S. Board, 
 1212. 
 
 Smith v. Gibson, 348. 
 
 Smith v. Gold Coast, 319. 
 
 Smith v. G. T. R., 649, 949, 975. 
 
 Smith v. Hamilton, 1140. 
 
 Smith v. Hamilton Bridge Co., 633, 
 636. 
 
 Smith v. Hayes, 636, 641, 1188. 
 
 Smith and Hill, re, 72, 73, 74, 80. 
 
 Smith v. Hunt, 487. 
 
 Smith v. Jarvis, 45. 
 
 Smith v. Kerr, 328. 
 
 Smi*- v. King, 323. 
 
 Smith v. Logan, 56. 
 
 Smith v. London, 83, 84, 983. 
 
 Smith v. Mcintosh, 661. 
 
 Smith v. McLandress, 495. 
 
 Smith v. McLean, 574. 
 
 Smith v. Mason, 423. 
 
 Smith v. Midland Ry., 216, 1118. 
 
 Smith v. Miriam, 407. 
 
 Smith v. Moffatt, 335. 
 
 Smith v. Morton, 335. 
 
 Smith v. National Trust, 509. 
 
 Smith v. Niagara and St. Cathar- 
 ines Ry., 941, 950. 
 
 Smith v. Onderdonk, 632, 651. 
 
 Smith v. Paringa Mines, 793, 811. 
 
 Smith v. Port Colborne Baptist 
 Church, 153. 
 
 Smith v. Pritchard, 160. 
 
 Smith v. Raleigh, 1129. 
 
 Smith v. Redford, 455. 
 
 Smith v. School Trustees of Belle- 
 ville, 1227. 
 
 Smith and Shenston, In re, 470. 
 
 Smith v. Smith, 94, 401, 403, 412, 
 664, 665. 
 
 Smi*h, re, Smith v. Thompson, 423. 
 
CV1 
 
 TABLE OF CASES. 
 
 Smith v. Spears, 382. 
 
 Smith v. Spencer, 914. 
 
 Smith v. Stanley Mills Co., 186. 
 
 Smith v. Tebbitt, 402. 
 
 Smith v. Traders Bank, 125. 
 
 Smith v. Walkervllle M. I. Co., 797. 
 
 Smith v. Wentwortlh, 1149. 
 
 Smyth v. Stephenson, 201. 
 
 Smylie v. T!he Queen, 68. 
 
 Snell v. Brickies, 96. 
 
 Snell and Dyanent, re, 253, 442. 
 
 Snell v. Toronto Railway, 649, 974. 
 
 Snure and Davis, re, 720, 731, 732, 
 
 733. 
 Snyder, re, 878. 
 Soar v. A&h-well, 249. 
 Soden v. Stevens, 484. 
 Softlaw v. Welch, 684. 
 Solicitor, re, 111, 740, 741, 743, 744, 
 
 747, 748, 750, 751, 757, 758, 759, 
 
 760, 761, 817. 
 Solicitors, re, 740, 741, 747, 748, 750, 
 
 751, 759, 760, 817. 
 Soiling v. Broughton, 226. 
 Soltykoff, re, 876. 
 Sombra v. Chatham, 1125, 1129. 
 Sombra V. Moore, 1066. 
 Sotubra, P. S., re, 1208, 1216. 
 Somerset, re, Somerset v. Poulet, 
 
 251, 422, 423. 
 Somerville v. Aetna Life, 866, 874. 
 Sons of Scotland v. Faulkner, 875. 
 Sons of Scotland and Davidson, re, 
 
 888, 889. 
 Soper, re, 195. 
 Soper v. Llttlejohn, 722. 
 Soper v. Pulos, 276, 560, 577. 
 South African Supply, etc., Co., re, 
 
 848. 
 South African Territories v. Wal- 
 
 lington, 804. 
 South Dumfries v. Clark, 1148, 
 
 1149. 
 South Durham Brewery Co., re, 807. 
 South Eastern Ry. and Wiffln, re, 
 
 923. 
 South of England Natural Gas Co., 
 
 re, 823. 
 South Essex, 42. 
 South Fredricksburgh, 4, 11, 12. 
 South Grey, 28, 29, 32, 33, 35, 42. 
 
 South Huron, 41. 
 Soutlh! Noirfolfc, 17, 28, 32, 42. 
 South Ontario, 25, > 
 
 South Oxford, 34, 38, 40. 
 South Perth, 18, 19, 21, 28. 
 South Renfrew, 17, 18, 42. 
 South Wentworth, 14, 21, 22, 23. 
 South Western of Venezuela Ry., 
 
 816. 
 Soutlh Whitton v. Giroux, 1183. 
 Southampton and Bruce, re, 984, 
 
 1020. 
 Southampton and Saugeen, re, 985, 
 
 1053. 
 Southern v. Jackson, 659. 
 Southwark, etc., Co. v. Wands- 
 worth, 244. 
 Southwold School Sections, re, 1210. 
 Soulanges, 21, 29. 
 Soule, v. G. T. R., 942. 
 Soulsby v. Toronto, 1038, 1058. 
 Sovereign Bank v. International 
 
 Portland Cement CO., 349. 
 Sovereign Bank and Keilty, re, 442. 
 Sovereign Bank V. Parsons, 349. 
 Sovereen Mitt, etc., Co. v. WMtside, 
 
 811, 812. 
 Spadery's Mortgage, re, 358. 
 Spahr v. North Waterloo Ins. Co., 
 
 896. 
 Spaight v. Tedcastle, 646. 
 Spargo's Case, 839. 
 Spark's Lease, re, Berger v. Jenkin- 
 
 son, 373. 
 Sparks v. Wolf, 414. 
 Sparrow and James, re, 445. 
 Speers v. Speere, 128. 
 Spence v. Coleman, 846. 
 Spencer v. C. P. R., 950. 
 Spencer v. Registrar of Titles, 519. 
 Spencer v. Spencer, 318, 319, 324. 
 Spice v. Bacon, 775. » 
 Spillers and Baker, re, 175. 
 Spotton v. Gillard, 537. 
 Spratt, re, 405. 
 Sproule, re, 287. 
 
 Sproule v Watson, 265, 402, 467. 
 Spry v. McKenzie, 1213. 
 Spry v. Mumby, 71, 299, 1215. 
 Spurr and Murphy, re, 80. 
 Spurrier v. La Cloche, 178. 
 
TABLE OF CASES. 
 
 CV11 
 
 Squair v. Fortune, 271. 
 
 Srigley v. Taylor, 35. 
 
 St. Catharines, etc., Ry. and Bar- 
 beau, re, 913. 
 
 St. Catharines v. Niagara, etc., Ry. 
 Co., 963. 
 
 St. Charles v. Caldwell, 149. 
 
 St. Clair v. Stair, 200, 201. 
 
 St. David's Spring v. Lahey, 732. 
 
 St. Hyacinthe v. St. Hyacinthe, 1. 
 
 St. James, 34. 
 
 St. John v. Bullivaat, 572. 
 
 St. John v. Rykert, 260. 
 
 St. Mary's Creamery v. G. T. R., 
 946. 
 
 St. Mary's Young Men's, etc., So- 
 ciety v. Albee, 370. 
 
 St Neots Water Co., re, 841. 
 
 St. Patrick Market, re, 353, 444, 
 451 
 
 St. Philips' Church v. Glasgow and 
 London, 902. 
 
 St. Thomas, re, 11, 12, 20. 
 
 St. Thomas v. Yearsley, 1226. 
 
 St. Vincent v. Greenfield, 1051. 
 
 Stack v. Eaton, 377. 
 
 Stafford v. Bell, 769, 771. 
 
 Stainsby, re, 386. 
 
 Stalker v. Dunwich, 299. 
 
 Standard Bank v. Stephens, 799, 
 804. 
 
 Standard Ideal v. Standard Sani- 
 tary Mfg. Co., 858. 
 
 Standard Life v. Tweed, 1029. 
 
 Standard Mfg. Co., re, 805, 808. 
 
 Standard Mutual Fire, re, 839, 867, 
 897, 906. 
 
 Standard Realty v. Nicholson, 193, 
 194, 381, 382, 551. 
 
 Stanford v. Imperial Guarantee, 
 882. 
 
 Stanford v. I. G. & A. Ins. Co., 882, 
 883. 
 
 Stanhope's Trusts, re, 416. 
 
 Stanley v Litt, 203. 
 
 Stanley v. Stanley, 110. 
 
 Stapf v. MoCarron, 137. 
 
 Staples v. Eastman Photographic 
 Co., 807. 
 
 Star Kidney Pad 06. v. Greenwood, 
 655. 
 
 Star Life v. Southgate, 112. 
 
 Stark v. Montague, 1213. 
 
 Stark v. Reid, 354. 
 
 Starr, re, 251, 252, 253, 391. 
 
 Starr, In re, Starr v. Starr, 688. 
 
 State v. Norton, 768. 
 
 State of Wyoming Syndicate, re, 
 
 792. 
 Stavert v. Campbell, 3, 88, 89. 
 Stavert V. McMillan, 784. 
 Stavert v. McNaught, 108. 
 Stearn v. Pullman Car Co., 949. 
 Stecker v. Ontario Seed Co., 334, 
 
 536, 541, 546, 547, 549, 557. 
 Steckney, re, 159. 
 Stedman V. W&sley, 1198. 
 Steeds v. Steeds, 533. 
 Steen v. Steen, 270. 
 Steers v. Shaw, 218, 221. 
 Steindler v. McLaren, 812. 
 Steinhoff V. Kent, 1056. 
 Steinoff V. McRae, 569, 570. 
 Stephen V. Hunter, 365, 366. 
 Stephen v. McGillivray, 1125. 
 Stephen School Trustees v. Mitchell, 
 
 1215. 
 Stephen V. Simpson, 494. 
 Stepnens, re, 185, 353. 
 Stephens v. Beaty, 249. 
 Stephens v, Boisseau, 540, 566. 
 Stephens v. McArthur, 538, 542. 
 Stephens and Moore, re, 1121, 1126, 
 
 1129. 
 Stephens v. Mysore Reef, 783, 836. 
 Stephens v. Riddell, 799. 
 Stephens " Theatres Limited, 360, 
 
 383. 
 Stephens v. Toronto Ry., 702, 703, 
 
 977. 
 Stephenson Co., re, v. The Com- 
 pany, 804. 
 Stephenson v. Sanataris Ltd., 1153. 
 Stephenson v. Vokes, 812, 813, 814. 
 
 916. 
 Sterling Bank v. Ross, 211. 
 Stern v. Pullman Car CO., 953. 
 Stevens v. C. P. R., 951. 
 Steven® v. King, 413. 
 Stevens v. Whistler, 1197. 
 Steward v. Jones, 276. 
 Stewart, re, 134, 876, 879, 880. 
 
CV111 
 
 TABLE OF CASES. 
 
 Stewart v. Casey, 739. 
 
 Stewart v. Edwards, re, 158. 
 
 Stewart v. Gage, 254, 565. 
 
 Stewart v. Guibord, 97, 257. 
 
 Stewart v. Jones, 100, 415. 
 
 Stewart v. Ottawa, 923. 
 
 Stewart v. Peoples National Bank 
 
 of Charleston, 533. 
 Stewart and Rowson, re, 380. 
 Stewart and Sandwich East, re, 
 
 1223. 
 Stewart v. Snider, 250, 251, 424, 432, 
 
 433. 
 Stewart v. Stratford Hotel Co., 784, 
 
 815. 
 Stewart v. Walker, 133, 407. 
 Stewart v. Whitney, 140. 
 Stickney, re, 287. 
 Stiles, re, 137. 
 Still v. Hastings, 109. 
 Stilliway v. Toronto, 836, 1066, 1142. 
 Stillwell v. Houghton, 1059, 1062. 
 Stinson and Col. Physicians and 
 
 Surgeons, 105, 763, 766. 
 Stinson v. Guest, 297. 
 Stinson v. Stinson, 136, 435. 
 Stitt v. Arts and Crafts, 597. 
 Stocker v. C. P. R., 968. 
 Stocking v. Cameron, 45. 
 Stockton and Middleboro Water 
 
 Board v. Kirkleathem Local 
 
 Board, 963. 
 Stoddard and Eastman, re, 5, 6, 151, 
 
 160. 
 Stoddart v. Arderly, 729. 
 Stoddart v. Owen Sound, 99, 983, 
 
 998, 1174, 1175. 
 Stoddart v. Stoddart, 470. 
 Stoddart v. Union Trust, 351. 
 Stoddart v. Wilson, 541. 
 Stogdon v. Lee, 673, 679, 682. 
 Stokes, re, 403, 410. 
 Stokes v. Curled Hair Co., 636. 
 Storm v. Cumberland, 255. 
 Stormont, re, 19, 20, 22, 23, 24. 
 Story v. Stratford Mill Building 
 
 Co., 651. 
 Stone v. C. P. R., 934, 935, 975. 
 Stone v. Knapp, 681. 
 Stonebouse and Plympton, re, 1127. 
 Stothart v. Hilliard, 242. 
 
 Stott v. London & Lancashire, 872. 
 
 895. 
 Stourton v. Stourton, 715. 
 Stovel v. Gregory, 219, 221. 
 Stowe v. Joliffe, 13. 
 Sltrathroy L. O., re, 1016, 1173. 
 Strathy, re, 851. 
 Strathy Wire Fence Co., re, 549, 
 
 841. 
 Strathy v. Stephens, 99. 
 Strang v. Arran, 1052, 1057, 1063. 
 Stratford v. T. H. & B. Ry., 944. 
 Stratford Fuel Co., re, 563, 844. 
 Stratford Fuel, etc., Co., v. Mooney, 
 
 782, 809, 823, 824, 844. 
 Stratford v. G. W. R., 264. 
 Street, re, 448, 564. 
 Street v. Hallett, 692. 
 Street and Nelson, re, 416. 
 Stride v. Diamond Glass, 632. 
 Striker v. Rosebush, 118. 
 Stringer v. Riley, 177. 
 Strong and the Campbellford, etc., 
 
 Ry., re, 931. 
 Strong v. Crown Life, 902, 903, 904, 
 
 905. 
 Strong v. Van Allen, 784, 814, 815, 
 
 818. 
 Strother, re, 748. 
 Struther v. Glennle, 333. 
 Srtruthers v. Green, 123. 
 Struthers v. Henry, 563. 
 Struthers v. Mackenzie, 781, 785. 
 Struthers v. Sudbury, 1101. 
 Stuart, re, 185. 
 Stuart t. Babington, 432. 
 Stuart v. Bank of Montreal, 663, 
 
 680. 
 Stuart v. Davidson, 977. 
 Stuart v. Hamilton Jockey Club, 
 
 796, 797. 
 Stuart v. Joy and Nantes, 718. 
 Stuart v. Metropolitan Ry., 964. 
 Stuart v. Thompson, 320. 
 Stucley, re, Stucley v. Kekewich, 
 
 232. 
 Sturgeon Falls, re, 1033. 
 Sturgeon Falls and Imp. Land Co., 
 
 1104, 1105, 1110. 
 Sturgeon Falls Power Co. v. Stur- 
 geon Falls, 175. 
 
TABLE OF CASES. 
 
 C1X 
 
 Sturgis, re, 405. 
 
 Stukey v. Hooke, 1191. 
 
 Stunner and Beaverton, re, 13, 111, 
 
 988, 998, 1014, 1017, 1019, 1038, 
 
 1173, 1174. 
 Styles v. Royal Arcanum, 873. 
 Siudlow, re, 743. 
 Sugden, re, 395, 712. 
 Sugden v. Lord St. Leonards, 133, 
 
 136, 407. 
 Sulin v. Jarvinen, 316. 
 Sullivan v. Metcalfe, 824. 
 Sullivan, re, 625. 
 Sullivan v. Allen, 281. 
 Sullivan v. Dor6, 720. 
 Summerfeldt v. Worts, re, 1180. 
 Summers v. Beard, 614. 
 Summerson v. G. T. R. 649. 
 Sun Life v. Elliott, 332, 333, 334. 
 Sunderland Orphan Asylum v. 
 
 River Weir Commissioners, 718. 
 Sunderland v. Romney, 1121. 
 Sunlight Incandescent Gas Lamp, 
 
 re, 853. 
 Surcott v. Wakely, 371. 
 Suris v. Midland Ry., 956. 
 Surtees v. Woodhouse, 370. 
 Suskey and Romney, re, 1126. 
 Sussex Brick Co., In re, 798, 831. 
 Sutherland v. G. T. R., 947. 
 Sutherland v. Nixon, 575. 
 Sutherland v. Romney, 1122, 1127, 
 
 1128, 1130. 
 Sutherland v. Sutherland, 1115, 
 
 1117, 1119. 
 Sutherland v. Webster, 551. 
 Sutton, re, 331. 
 Sutton v. Dundas, 637, 1067. 
 Sutton v. English and Colonial 
 
 Produce Co., 114, 798, 811. 
 Sutton v. Port Carling, 770. 
 Sutton v. Sutton, 236, 255. 
 Swain v. The Mail, 200. 
 Swain, re, Swain v. Bringeman, 251. 
 Swaizie v. Swaizie, 105, 885. 
 Swale v. C. P. R., 955, 956. 
 Slwan's Case, 854. 
 Swan River Local Option By-law, 
 
 re, 1017, 1172, 1173. 
 Swannick v. Katinsky, 625, 626. 
 Swanston v. Strong, 348. 
 
 Sweetland v. Neville, 679. 
 Sweetman and Gosfleld, re, 1018, 
 
 1124, 
 Swift v. Cobourg, .271. 
 Swift v. Provincial Institution, 885. 
 Swift v. Swift, 403. 
 Sydenham Glass Co., re, 956. 
 Sydenham Sehool Sections, re, 1209, 
 
 1210, 1211. 
 Sydney v. Lyons, 482. 
 Sydney Land Co. v. Rountree, 806. 
 
 822. 
 Sydney Municipal Council v. Atty.- 
 
 Gen. New South Wales, 65. 
 Sydney Post v. Kendall, 198. 
 Sykes v. Soper, 554, 560, 577. 
 Sykes v. Sykes, 110. 
 Sylvester Mfg. Co. v. Brown, 149. 
 Syms v. McGregor, 356. 
 Syndicat Lyonnais du Klondyke 
 
 v. McGrade, 511, 513, 514, 515, 
 
 518. 
 Synge v. Synge, 110. 
 Synnot v. Simpson, 550. 
 
 T., re, 423. 
 
 T. v. B., 668, 670. 
 
 Tabb v. G. T. R., 697, 938, 952, 969. 
 
 Taber and Scarboro, re, 1207, 1213. 
 
 Taff Vale Ry. v. Canning, 938. 
 
 Taff Vale Ry. Co. v. Jenkins, 702. 
 
 Taggart and Bennett, re, 126. 
 
 Tait v. McLeay, 824. 
 
 Tailby v. Official Receiver, 578. 
 
 Talbot, re, 185. 
 
 Talbot's Bail, re, 311, 312. 
 
 Talbot v. Canadian Coloured Cot- 
 ton, 654. 
 
 Talbot v. Peterborough, 1049. 
 
 Talbot v. Poole, 119. 
 
 Talham and Atkinson, re, 151. 
 
 Talon v. Price, 632. 
 
 Tanner, v. Smart, 258. 
 
 Tanqueray-Williaume v. Landau, 
 397, 421, 429. 
 
 Tarrant v. Webb, 642. 
 
 Tasker v. Tasker, 686. 
 
 Tate v. Latham, 633, 634. 
 
 Tate and Toronto, re, 1031. 
 
 Tatham, re, 269, 387, 388. 
 
 Tattersall v. People's Life, 873. 
 
ex 
 
 TABLE OF CASES. 
 
 Tavistock Iron Works, re, 852. 
 Taylor, re, 248, 252, 856. 
 Taylor's Agreement, re, 421, 856. 
 Taylor v. Allhusen, 413. 
 Taylor, dem., Atkyns v. Horde, 220. 
 Taylor and Belle River, re, 1031, 
 
 1068. 
 Taylor v. Brodie, 431. 
 Taylor v. Dawson, 1189. 
 Taylor v. Delaney, 132. 
 Taylor v. Denny, 175. 
 Taylor v. Gage, 1005, 1065. 
 Taylor v. Goulding, 1180. 
 Taylor v. G. T. R., 649, 948. 
 Taylor v. Grant, 321. 
 Taylor v. Hollard, 240. 
 Taylor v. McCullough, 698. 
 Taylor and Martyn, re, 357, 441, 472, 
 
 1077. 
 Taylor v. Neale, 101. 
 Taylor v. Neil, 263. 
 Taylor v. Ottawa Electric Ry., 964, 
 
 973. 
 Taylor and O. & Q. Ry., re, 920, 
 
 926, 928, 929. 
 Taylor v. Parnedl, 257. 
 Taylor v Reid, re, 149, 325. 
 Taylor v. Scott, 286, 288. 
 Taylor v. Taylor, 208, 345. 
 Taylor v. Toronto Construction Co., 
 
 170. 
 Taylor and West Williams, re, 1209. 
 Taylor v. Whittamore, 569. 
 Teacher v. Calder, 92. 
 Tearle v. Edols, 65. 
 Teasdale, re, 287. 
 Teasdell v. Brady, 158, 683. 
 Teede and Bishop, re, 841. 
 Tees 1 v. Ottawa and New York Ry., 
 
 955. 
 Teeter v. St. John, 532, 775. 
 Teevan v. Smith, 356. 
 T. & N. O. Ry. Com. v. Alpha Min- 
 ing CO., 82, 943. 
 Temperance Ins. Co. v. Coombe, 551. 
 Temple v. Commercial Union, 899. 
 Templeton, re, 49. 
 Tench, re, 685. 
 
 Tennant v. MacEwan, 549, 569. 
 Tennant v. Powell, 599. 
 Tennant v. Union Bank, 534. 
 
 Tenute v. Walsh, 395. 
 
 Terriault v. Ducharme, 35. 
 
 Teskey v. Neil, 124. 
 
 Tew v. Routley, 722, 726. 
 
 Tew v. The Toronto Savings and 
 
 Loan, 724. 
 Thackeray v. Raleigh, 1133. 
 Thamer v. Jundt, 402. 
 Tharsis Sulphur v. Loftus, 93, 178. 
 Thellusson v. Woodford, 352. 
 Therriault and Cochrane, re, 1120, 
 
 1225. 
 Therrien v. G. T. R., 937, 938. 
 Thibaudeau v. Garland, 566. 
 Thibaudeau v. Paul, 548, 570, 571, 
 
 578. 
 Thin, re, 883, 884. 
 Thirkell, re, 579, 680. 
 Thorn and McQuilty, re, 3, 145, 146, 
 
 588. 
 Thoman v. McTear, 331. 
 Thomas, re, 388, 1153, 1156. 
 Thomas v. Bradbury, 198. 
 Thomas v. C. P. R., 309, 958, 974. 
 Thomas v. Chirton, 307. 
 Thomas v. Cook, 532. 
 Thomas v. Cross, 739. 
 Thomas De la Rue Co., re, 783. 
 Thomas v. Great Western, 949. 
 Thomas v. Masons' Fraternal, 882. 
 Thomas v. Patent Llonite, 850. 
 Thomas v. Quartermaine, 641, 655. 
 Thomas v. Standard Bank, 350, 574, 
 
 785, 791, 814. 
 Thomas a,nd Stephenson, re, 233. 
 Thomas v. United Butter Compan- 
 ies, 847. 
 Thomas v. Walker, 916, 920. 
 Thompson, re, 275, 343, 560, 685, 
 
 1235, 
 Thompson v. Artity.-Gen., 49. 
 Thompson v. Big Cities Realty, 791. 
 Thompson v. City Glass Bottle Co., 
 
 633. 
 Thompson v. Clarkson, 562. 
 Thompson v. Coulter, 264. 
 Thompson v. Court Harmony, 122, 
 
 894. 
 Thompson v. Dickson, 677. 
 Thompson v. Doiwing, 529. 
 
TABLE OF CASES. 
 
 CXI 
 
 Thompson v. Equity Fire, 89, 899, 
 
 900, 904, 905. 
 Thompson v. Fairbairo, 435. 
 Thompson v. Freeman, 435. 
 Thompson v. Gill, 101, 272. 
 Thompson v. Gore, 335. 
 Thompson v. Hay, re, 150. 
 Thompson v. Macdonnell, 863, 881. 
 Thompson v. Maxwell, 246. 
 Thompson v. McCaffrey, 188, 365, 
 
 366, 713. 
 Thompson v. McOrae, 152. 
 Thompson v. MeKenzie, 1161. 
 Thompson v. Morrison, 544. 
 Thompson v. Ontario Sewer Pipe 
 
 Co., 639, 642, 658. 
 Thompson v. Pearson, 146. 
 Thompson v. Quirk, 579, 682. 
 Thompson v. Sandwich, 1041. 
 Thompson v Stikeman, 486. 
 Thompson v. Thompson, 263. 
 Thompson, re, Thompson v. Alexan- 
 der, 341, 907. 
 Thompson v. Trenton Electric, 703. 
 Thompson v. Warwick, 355. 
 Thompson and Webster, re, 496. 
 Thompson v. Williamson, 300. 
 Thomson v. Cushing, 96, 97, 100. 
 Thomson v. Eede, 118. 
 Thomson v. Henderson's Transvaal 
 
 Estates, 841. 
 Thomson v. Lord Clanmorris, 256, 
 
 819, 825. 
 Thomson v. Playfair, 67. 
 Thomson an<i .Stevenson, re, 235. 
 Thomson v. Stone, 121. 
 Thomson and Victoria Ry., re, 918. 
 Thomson v. Wishart, 759. 
 Thonger v. 0. P. R., 949. 
 Thornbury and Grey, re, 180. 
 Thorne v. Heard, 251. 
 Thorne v. Thorne, 392, 397. 
 Thornett v. Haines, 352. 
 Thornley v. Reilly, 1170. 
 Thornley, v. Thornley, 676. 
 Thorpe, re, 136, 139, 474. 
 Thorpe v. TtedaJe, 818, 828. 
 Thornton v. France, 234, 235, 477, 
 
 480. 
 Thornton v. Howe, 331. 
 Thuresson v. Thuresson, 223, 346. 
 
 Thursby v Eooles, 317. 
 Thurston v. Brandon, 144, 183. 
 Tichborne v. Tlichhorne, 134. 
 Tichborne v. Weir, 229. 
 Tidey v. Craib, 572, 580. 
 Tidswell, Ex parte, 686. 
 Tidy v. Toronto Ry., 972. 
 Tiernan v. Nepean School Trustees, 
 
 1219. 
 Tilbury West v. Romney, 97. 
 Tillie v. Springer, 564, 565. 
 Tilonko v. Atty.-Gen. for Natal, 87. 
 Tilsonbuirgh, re, 553. 
 Timmis, re, Nixon v. Smith, 240, 
 
 251. 
 Tinsley v. Toronto Ry., 973, 976. 
 Tiny v. Archer, 1111, 1116. 
 Tipling v. Cole, re, 152. 
 Titchmarsh, Ex parte, 297. 
 Titchmarsh v. Graham, 297, 300, 
 
 301, 306. 
 Titchmarsh v. The World, 201. 
 Tobey, re, 407. 
 Todd v. Linklater, 383, 384. 
 Todd v. Meaford, 927, 929. 
 Tolhuirst, re, 195. 
 Toll v. C P. R., 129. 
 Toller v. Spiers and Pond, 1188. 
 Tolmie v. M. C. R. R., 946. 
 Tolton v. C. P. R., 920, 925. 
 Tomalin v. Pearson, 659. 
 Tomkins v. Brockville Rink Co., 
 
 1045. 
 Tomlinson v. Jarvis, 729. 
 Toms v. Toronto Ry., 952, 977. 
 Tooth v. Power, 59, 63. 
 Torhock v. Lord Westbury, 793. 
 Toronto, re, 501, 517. 
 Toronto v. Bell Telephone, 913,1043. 
 Toronto Belt Line, re, 924, 925, 932. 
 Toronto Belt Line v. Lauder, 912. 
 Toronto Brewing and Malting Co. 
 
 v. Blake, 812. 
 Toronto v. C. P. R., 440. 
 Toronto Conservatory of Music and 
 
 University of Toronto, re, 1228. 
 Toronto v. Crookshank, 2. 
 Toronto v. Delaplante, 1047. 
 Toronto Electric Light, re, 1106. 
 Toronto v. Ewing, 589. 
 Toronto v. Ford, 1047. 
 
CX11 
 
 TABLE OF CASES. 
 
 Toronto v. Foss, 1047. 
 
 Toronto Furnace v. Ewing, 589. 
 
 Toronto v. Garfunkel, 1047. 
 
 Toronto General Trusts & Central 
 Ontario Ry., re, 230, 240, 435, 
 803, 913, 918. 
 
 Toronto General Trusts v. Dunn, 
 1146. 
 
 Toronto General Trusts Co. v. Sev- 
 en, 888. 
 
 Toronto General Trusts Co. v. Quin, 
 389. 
 
 Toronto General Trusts Co. v. Wil- 
 son, 328, 330. 
 
 Toronto v. G. T. R., 911, 940. 
 
 T. H. & B. Ry. and Burke, re, 924, 
 927. 
 
 T. H. & B. Ry. v. Hanley, 937. 
 
 T. H. & B. and Hendrie, re, 932. 
 
 T. H. & B; Ry. and Kerner, re, 931, 
 933. 
 
 T. H. & B. v. Simipson Brick Co., 2, 
 937. 
 
 Toronto v. Hill, 498, 516, 1100. 
 
 Toronto Hospital v. Denham, 372, 
 375. 
 
 Toronto Junction P. ,S. Board v. 
 York, 1206. 
 
 Toronto v. Lorsch, 211, 771. 
 
 Toronto v. Metropolitan Ry., 942. 
 
 Toronto and N. Power Co. v. North 
 Toronto, 835, 962, 1043, 1142. 
 
 Toronto and Niagara Power Co. and 
 Webb, re, 924, 925. 
 
 Toronto Plan M-188, re, 772, 1052. 
 
 Toronto Public Library Board v. 
 Toronto, 99, 1137. 
 
 Toronto P. S. Board and Toronto, 
 re, 4, 1212, 1213, 1216, 1217, 
 1222. 
 
 Toronto Railway, re, 1100. 
 
 Toronto Ry. v. Crookshank, 917. 
 
 Toronto Ry. v. King, 973. 
 
 Toronto Railway v. Toronto, 105, 
 959, 960, 961, 980, 1106, 1109. 
 
 Toronto v. Russell, 1115, 1116. 
 
 Toronto v. Sohuitz, 1046. 
 
 Toronto v. Stewart, 1047. 
 
 Toronto Suburban v. Toronto Junc- 
 tion, 966, 979, 980. 
 
 Toronto v. Toronto Electric Light, 
 88, 89. 
 
 Toronto and Toronto Ry., re, 105, 
 921, 953, 957, 959, 960, 963, 965, 
 966, 968, 979, 980, 984, 1069. 
 
 Toronto, re, and Toronto and Sub- 
 urban Ry., 935, 959. 
 
 Toronto v. Toronto and York Ra- 
 dial, 962. 
 
 Toronto v. Virgo, 2, 796, 1046, 1048. 
 
 Toronto v. Ward, 216. 
 
 Toronto v. Wheeler, 1047. 
 
 Toronto v. Williams, 1047. 
 
 Toronto & York Radial v. Toronto, 
 922. 
 
 Torrance v. Chewett, 436. 
 
 Torrance v. Cratchley, 605, 608. 
 
 Tottenham v. Rowley, 1052. 
 
 Tougher, re, 133. 
 
 Tower Oiled Clothing, re, 956. 
 
 Tower v. Tudhope, 326. 
 
 Towers v. African Tug Co., 819. 
 
 Town v. Archer, 108, 763, 764. 
 
 Townsend v. Carus, 331. 
 
 Townshend v. Northern Crown 
 Bank, 88, 544. 
 
 Township of Toronto v. McBride, 
 1208, 1215. 
 
 Tozman v. Lax, 443. 
 
 Tracey v. Toronto Ry., 976. 
 
 Tracy v. Lawrence, 381. 
 
 Traders Bank v. Brown, 589. 
 
 Traders Fire v. Opps, 837. 
 
 Trainor v. Canada Paint Co., 637. 
 
 Trainor v. Holcom.be, 119. 
 
 Traplin v. Canada Woolen Mills, 
 629, 630, 640. 
 
 Travers v. Gustin, 136. 
 
 Traversy v. Gloucester, 1055. 
 
 Travis, re, 353. 
 
 Travis® v. Hales, 681, 689. 
 
 Treasurer of Ontario v. Pattin, 49, 
 50. 
 
 Trebilcock v. Walsh, 28. 
 
 Trechmann v. Calthorpe, 810. 
 
 Trelevan and Horner, In re, 439. 
 
 Tremblay v. Quebec, 309. 
 
 Trench Tubeless Tire, re, 841. 
 
 Trenchard, re, 209. 
 
 Trenton v. Dyer, 1110, 1111. 
 
TABLE OF OASES. 
 
 CX111 
 
 Trent Valley Canal, re, 1053. 
 
 Trepanier, re, 287. 
 
 Trerice v. Burkett, 530. 
 
 Tressen v. Henderson, 792, 840, 847. 
 
 Trevanion, re, 353. 
 
 Trevor v. Hutchins, 253. 
 
 Trevor v. Whitworth, 800. 
 
 Trice v. Robinson, 699, 1169. 
 
 Trimble v. Hill, 104, 236. 
 
 Trinidad Asphalt Co. v. Coryat, 489. 
 
 Tronghiton v. Manning, 1146. 
 
 Trott v. Skedmore, 133. 
 
 Trotter v. McKinnon, 316. 
 
 Truax v. Dixon, 4, 605, 610, 611, 
 616. 
 
 Truman v. Redgrave, 101. 
 
 Truman v. Rudolph, 654, 655. 
 
 Trussed Concrete Steel Co. v. Wil- 
 son, 108, 616. 
 
 Trust and Loan v. Fraser, 362. 
 
 Trust and Loan v. Gallagher, 475. 
 
 Trust and Loan v. Lawrason, 384, 
 730. 
 
 Trust and Loan v. Shaw, 491. 
 
 Trust and Loan v. Stephenson, 238. 
 
 Trustees & Agency Co. v. Short, 217, 
 224, 226, 234. 
 
 Trustees of Berkeley St. Church v. 
 Stevens, 1229. 
 
 Trustees of Franklin Church v. Ma- 
 guire, 1229. 
 
 Trustees R. C. School Sec. v. Arthur, 
 984. 
 
 Trusts Corporation v. Clue, 685. 
 
 Trusts Corporation v. Medland, 274. 
 
 Trusts Corporation v. Rider, 350. 
 
 Trusts and Guarantee v. Abbott, 
 Mitchell, etc., Co., 808. 
 
 Trusts and Guarantee v. Munro, 
 844. 
 
 Trusts and Guarantee v. Trusts Cor- 
 poration, 211, 248. 
 
 Tryon v. Peer, 364. 
 
 Tuck, re, 339. 
 
 Tucker, re, 685. 
 
 Tucker v. Bank of Ottawa, 551. 
 
 Tucker, v. McMahon, 264. 
 
 Tucker's Case, 829. 
 
 Tuckersmitlh P. S. Board, re, 1209. 
 
 Tuckett, re, 406, 407. 
 
 Tuff v. Warman, 640, 976. 
 
 Tufts v. Motitashed, 586. 
 
 Tugwell, re, 188. 
 
 Tumacacori, re, 853. 
 
 Turiff v. McDonald, 759, 761. 
 
 Turnan and Nepean, re, 1213. 
 
 Turnberry and North Huron Tele- 
 phone Co., re, 1104. 
 
 Turner, re, 434. 
 
 Turner v. Hiawatha Gold Mining, 
 etc., Co., 833. 
 
 Turner v. Lucas, 535. 
 
 Turner v. Sampson, 592. 
 
 Turner v. Tourangeau, 157. 
 
 Turner v. Walsh, 350, 356. 
 
 Turtle v. Euphennia, 1202, 1203, 
 1204. 
 
 Tutton v. S. S. " Majestic," 658. 
 
 Twiggs Estate, re, 391. 
 
 Twin City Oil Co. v. Christie, 799, 
 810. 
 
 Two Mountains, 18. 
 
 Twycross v. Grant, 810. 
 
 Tylee v. Deal, 414. 
 
 Tylee v. Hinton, 383. 
 
 Tyrell and York, re, 1221. 
 
 Union Bank v. Clark, 322. 
 
 Union Bank of Kingston upon Hull, 
 re, 849. 
 
 Union Bank v. McKillop, 785, 786. 
 
 Union Bank v. Morris, 802. 
 
 Union Bank v. Neville, 558. 
 
 Union Colliery v. Atty.-Gen., 102. 
 
 Union Colliery v. Atty.-Gen. of Bri- 
 tish Columbia, 289. 
 
 Union Fire Assurance Co., re, 840, 
 852, 855. 
 
 Union S. S. Co. v. Claridge, 626. 
 
 Union Trust v. Beasley, 128, 133, 
 138. 
 
 United Collieries' v. Simpson, 705. 
 
 United Factories v. G. T. R., 955. 
 
 U. K. Mutual Steamships v. Hous- 
 ton, 182. 
 
 United States Direct Cable Co., re, 
 849. 
 
 U. S. Steel Products Co. v. G. W. 
 Ry., 956. 
 
 Unitt & Prott, re, 536, 550, 551. 
 
 S.A. — H. 
 
CX1V 
 
 TABLE OF CASES. 
 
 Universal Drug Supply Co., re, 850. 
 Universal SMrt Mfg. Co. v. Gormley, 
 268, 551, 557, 576, 581, 582, 583. 
 Urquhart v. Aird, 553. 
 Usher, re, 365. 
 
 Usslhier and North Toronto, re, 1035. 
 Utterson Lumber Co. v. Petrie, 586. 
 
 Vaccaro v. Kingston and Pembroke 
 
 Ry., 650, 912, 950. 
 Vail v. Duggan, 1178. 
 Vallee v. G. T. R., 951, 976. 
 Valpy, In re, Valpy v. Valpy, 418. 
 Vamplew v. Parkgate Iron Co., 628. 
 Vanatto v. Mitchell, 136, 426. 
 Van Buren v. Bull, 1219. 
 Vance v. Cummings, 460, 480, 484, 
 
 491. 
 Vance v. King, 1208. 
 Van Cleaf v. Hamilton, 964, 965. 
 Vancouver v. C. P. R., 922, 923. 
 Vanderberg v. Markham, 1205. 
 Vandergucht v. De Blaguiere, 686. 
 
 Vanderlip v. Smyitlhi, 1149. 
 
 Vandyke and Grimsby, re, 1012, 
 1175. 
 
 Van Egmond v. Seaforth, 1129, 1132. 
 
 Van Grutten v. Foxwell, 415. 
 
 Van Laun, re, 740. 
 
 Vanluven and Walker, re, 360. 
 
 Van Norman v. McCarty, 272. 
 
 Vannort v. Canada Foundry, 662. 
 
 Vano v. Can. Cotton Mills, 436, 743. 
 
 Van Praagh v. Everidge, 319. 
 
 Vanslckle v. Vansickle, 409. 
 
 Van Velson v. Hughson, 439. 
 
 Van Wagner v. Findlay, 484, 495. 
 
 Varley v. Ooppard, 373. 
 
 Varlo v. Faden, 353. 
 
 Vars v. Gould, 553. 
 
 Vars v. G. T. R., 641. 
 
 Vaughan and Grimsby, re, 1013. 
 
 Venn and Furze's Contract, re, 397, 
 421, 429. 
 
 Venner v. Sun Life, 870. 
 
 Verner v. General and Commercial 
 Trust Co., 818. 
 
 Verner v. Toronto, 1021, 1044, 1182. 
 
 Vernon, re, 186, 1234. 
 
 Vernon v. Smith's Falls, 1036. 
 
 Verral v. Dom. Automobile Co., 
 
 1146, 1147. 
 Veuve Meunier, re, 838. 
 Vezina v. New York Life, 877. 
 Vezina v. The Queen, 929, 933. 
 Vezina v. Will H. Newsome Co., 107. 
 Vickers Express Co. v. C. P. R., 957. 
 Vickerstaff, In re, 388. 
 Victor Varnish Co., re, 532. 
 Victoria v. Carden, 1055. 
 Victoria Mutual Ins. Co. v. Freel, 
 
 531. 
 Victoria Mutual Fire v. Thompson, 
 
 867. 
 Victoria v. Peterborough, 1056. 
 Victorian Commissioners v. Coul- 
 
 tas, 977. 
 Victorian Ry. Commissioners v. 
 
 Brown, 87. 
 Videan v. Westover, 878. 
 Villar v. Gilbey, 420, 696. 
 Villeneuve v. C. P. R., 641, 699. 
 Vine v. Raleigh, 206. 
 Vineburg v. G. T. R., 949. 
 Vineburg v. Guardian Fire, 902. 
 Violet Consolidated, re, 842. 
 Virgo' v. Toronto, 2, 796, 1046, 1048. 
 Viscount CUfden, re, 240. 
 Viscount Cobden, re, 240. 
 Vivian v. Clergue, 444. 
 Vivian v. McKim, 1108. 
 Vokes v. G. T. R., 613, 614. 
 Volcanic Oil Co. v. Chaplin, 69. 
 Voisey, ex parte, re Knight, 384. 
 Voters* List ol Carleton Place, re, 
 1101. 
 
 W., re, W. v. M., 715. 
 Waddell v. Ghisholm, 1198. 
 Waddell v. Corbett, 481. 
 Waddell v. Pere Marquette, 633. 
 Waddington v. Naylor, 244. 
 Waddington v. Neale, 592. 
 Waddington v. T. & Y. Radial, 935, 
 
 959. 
 Wade v. Bell Engine Co., 320, 573. 
 Wade v. Elliott, 537, 544. 
 Wade v. Rochester German, 549, 
 
 552, 898. 
 Wade v. Tellier, 616, 618. 
 
TABLE OF CASES. 
 
 CSV 
 
 • Wads-worth v. MeCord, 669. 
 
 Wadsworth v. Canadian Ry. Acci- 
 dent, 882. 
 
 Wagner, In re, 386, 399. 
 
 Wagner v. Jefferson, 600, 681, 685. 
 
 Waidanis, re, Rivers v. Waidanis, 
 386. 
 
 Wain v. Walters, 315. 
 
 Waiit v. Soger, 276. 
 
 Waite v. Jennings, 208. 
 
 Wakefield Rattan v. Hamilton Whip 
 Co., 841, 850. 
 
 Wakeley v. Holloiway, 642. 
 
 Wakelin v. L. & S. W. Ry., 638, 697, 
 1190. 
 
 Wakeman v. Metropolitan Life, 875, 
 876. 
 
 Walberg v. A. C. Stewart & Co., 631. 
 
 Waldie v. Burlington, 500. 
 
 Walhalla v. Muloahy, 76. 
 
 Walker, re, 187, 344, 422, 552. 
 
 W«lker, Ltd., re, S. E., 622. 
 
 Walker v. Allen, 399. 
 
 Walker v. Roulton, 326. 
 
 Walker v. C. P. R., 972. 
 
 Walker and Drew, re, 414. 
 
 Walker v. Gascoigne, 362. 
 
 Walker, v. Great Western Ry., 954. 
 
 Walker v. Hyman, 585, 586. 
 
 Walker v. Nightingale, 352. 
 
 Walker and Oakshott, 440. 
 
 Walker v. Rogers, 59. 
 
 Walker v. Wabash Ry., 648, 955, 
 977. 
 
 Walkerville v. Walkerville Light & 
 Power Co., 1043, 1121. 
 
 Wall v. London and Northern As- 
 sets Corporation, 793, 794. 
 
 Wall v. Stanwick, 252. 
 
 Wallace v. Afcty.-Gen., 49. 
 
 Wallace and Barnard, re, 441. 
 
 Wallace v. Employers' Liability, 
 882. 
 
 Wallace v Moore, 197. 
 
 Wallace v. Peoples' Life, 122. 
 
 Wallace v. School Trustees of Lobo, 
 1207. 
 
 Wallace and Virtue, re, 146. 
 
 Wallas, re, 135. 
 
 Wallastan v. King, 886. 
 
 Waller v. Sarnia, 1058, 1060. 
 
 Waller v. South Eastern Ry., 643. 
 Wallingford v. Ottawa Electric, 
 
 952, 864, 965, 972. 
 Wallis and Barnard, 444. 
 Wallis and Grant's Contract, re, 438. 
 Wallis v. Harper and Gibson, 285. 
 Wallis v. Skain, 610. 
 Wallis and Vokes, re, 610, 612. 
 Walsh & Pish, re, 742. 
 Walsh v. Fleming, 411. 
 Walsh v. Lonsdale, 340. 
 Walsh v. Trebilcock, 28. 
 Walsh v. Walper, 268, 270, 1156. 
 Walsh v. Whiteley, 634. 
 Walter v. Yeldon, 216, 224. 
 Walters, re, 406, 880. 
 Walters v. Wylie, 120, 719. 
 Walton v. Bernard, 273. 
 Walton v. Edge, 909. 
 Walton v. Henry, 724. 
 Wanless v. Lancashire, 904. 
 Wansley and Brown, re, 442, 1229, 
 
 1230. 
 Wantz v. Robins, 612, 614. 
 Waples v. Ball, 1119. 
 Ward, re, 744. 
 Ward v Archer, 274. 
 Ward v. Caledoii, 1066. 
 Ward v. Lothian, 1183. 
 Ward v. Northumberland, 454. 
 Ward v. Owen Sound, 1007, 1175. 
 Ward v. Saunderson, 348. 
 Ward v. Welland, 1020, 1076. 
 Warde v. Warde, 709. 
 Ware v. Egmont, 359, 381. 
 Wannington v. Palmer, 647. 
 Warner v. Murray, 565. 
 Warnock v. Cowan, 770. 
 Warnotek v. Kloepfer, 537. 
 Warrell v. Nipissing Trading Co., 
 
 179. 
 Warren v. Deslippes, 1201. 
 Warren v. Macdonnell, 627, 648, 975. 
 Warren v. Murray, 222, 223. 
 Warren v. Whitby, 1004, 1181, 1182. 
 Warriner, re, 370. 
 Warwick v. Brooke, 1122. 
 Warwick and Rutherford, re, 733. 
 Warwick v. Simcoe, 1115, 1120. 
 Washburn v. Wright, 624. 
 Washington, re, 762, 763. 
 
exvi 
 
 TABLE OF CASES. 
 
 Washington v. G. T. R., 8, 652. 
 Wassell v. Leggatt, 249. 
 Waterford School Trustees v. Clark 
 
 son, 1217. 
 Waterloo v. Berlin, 966, 979, 1044, 
 
 1109. 
 Waterloo Mutual v. Bindner, 868. 
 Waterous v. Palmerston, 1041, 1046. 
 Waters v. Shade, 271, 484. 
 Waters v. Toronto, 1003, 1035. 
 Watkins, re, 418, 430. 
 Watkins v. Naval Colliery Co., 652. 
 Watkins v. Washburn, 259. 
 Watson, re, 206, 249, 880. 
 Watson v. Gordanier, 334. 
 Watson v. Grant, 494. 
 Watson v. Holliday, 93. 
 Watson v. Lindsay, 460. 
 Watson v. Kincardine, 1052. 
 Watson and Northern Ry., re, 933. 
 Watson v. Ontario Supply Co., 281, 
 
 683. 
 Watson v. Watson, 93, 179. 
 Watson v. White, 159. 
 Watson v. Woodman, 260. 
 Watt v London, 1104, 1108. 
 Watts, re, 104, 289. 
 Watts v. Bucknall, 824, 825. 
 Watts v. Taft, 595. 
 Wawanosh, re, 1211. 
 Way, re, 388. 
 
 Way v. St. Thomas, 3, 1039. 
 Waye v. Thompson, 1184. 
 Weatherall, re, 111. 
 Weaver v. Burgess, 59. 
 Webb, re, 185. 
 Webb v. Barton, 1149, 1150. 
 Webb v. Box, 102, 313, 728. 
 Webb v. Canadian General Electric, 
 
 646, 700. 
 Webb v. Hamilton, 334, 545. 
 Webb v. Hughes, 95. 
 Webb v. Spears', 298. 
 Weber v. Berlin, 1130, 1133. 
 Weber, v. Morris, 359. 
 Webster, re, 458. 
 
 Webster v. Crickmore, 538, 544, 558. 
 Webster and Jones, re, 444. 
 Webster v. Jury Copper Mines 811, 
 
 814, 821, 830. 
 
 Webster and Registrar of Brant, re,* 
 
 454. 
 Wedd, re, 188. 
 
 Weddell v. Ritchie, 915, 918. 
 Wednesbury Corporation v. Lodge 
 
 Holes Colliery, 1053. 
 Weegar v. G. T. R, 649, 934. 
 Weeks v. Frawley, 888. 
 Weiner v. Harris, 593, 594. 
 Weir v. Niagara Lake Co., 483. 
 Weir v. Smyth, 291. 
 Weiser v. Heintzman, 262. 
 Welbourne v. C. P. R., 700. 
 Welburn v. Sims, 204. 
 Welch v. Ellis, 623, 819. 
 Weld v. L. & S. W. Ry., 921. 
 Welland, 16, 28, 29, 32, 33, 34, 42. 
 Weller v. Burmham, 345. 
 Wells v. Abraham, 698. 
 Wells v. Cummings, 58. 
 Welsh v. Leahy, 1219. 
 Welslh v. St. Catharines, 1132. • 
 Wenborn and Co., re, 842. 
 Wennhak v. Morgan, 198. 
 Wentworth, re, 21, 22, 23. 
 Wentworth v. Flamboro, 1067, 1071. 
 Wentworth v. Saltfleet, 3, 1109. 
 Wentworth v. West Flamborough, 
 
 1056, 1057. 
 Wesner v. Tremblay, 57, 616, 619, 
 
 620. 
 West Algoma, 39. 
 West Coast Gold Fields, re, 840. 
 West v. Corbett, 967. 
 West Durham, 42, 43. 
 West Elgin, 21, 39. 
 West Half Con. 6 Mono, re, 450. 
 West Hartlepool Iron Works, re, 
 
 850. 
 West Hastings, 16, 33. 
 West Huron, 20, 21, 22, 31, 35. 
 West India Docks v. Kirk, 172. 
 West London Ins. Co. v. Abbott, 174, 
 
 903. 
 West Lome, re, 13, 14, 15, 18, 24, 
 
 988, 989, 991, 994, 1014, 1016, 
 
 1017, 1172, 1173, 1174. 
 West Middlesex, 29, 42. 
 West Nissouri, re, 1220, 1222, 1223. 
 West Northumberland, 28. 
 
TABLE OF OASES. 
 
 CXV11 
 
 West Peterborough, 26, 29, 32, 39. 
 
 West Prince, 32, 33. 
 
 West Simcoe, 33, 38, 39. 
 
 West Toronto, re, 6, 26, 28, 29, 31, 
 37, 38, 42. 
 
 West Toronto and Toronto Ry., re, 
 912, 955, 971, 980. 
 
 West Wellington, 28, 42. 
 
 West v. Williams, 490. 
 
 West York, 17, 42. 
 
 West York Voters' List, 11, 15. 
 
 Westbourne Cattle Co. v. Manitoba 
 and North-western Ry., 938, 969. 
 
 Westbourne Grove, re, 855. 
 
 Westbrook v. Wheeler, 1156. 
 
 Westervelt, In re, 366. 
 
 Western Assurance v. Doull, 899. 
 
 Western Canada v. Garrison, 493. 
 
 Western Canada Oil Co., re, 854. 
 
 Western Coal Co., re, 622. 
 
 Western, etc., Corporation and 
 Goodwin, re, 501. 
 
 Western & Northern Lands Corpor- 
 ation v. Goodwin, 72, 82, 772. 
 
 Weston, re, 1174. 
 
 Weston Counties Steam Bakeries, 
 re, 832. 
 
 Weston Local Option, re, 1016, 1017, 
 1173. 
 
 Weston v. Perry, 681. 
 
 Weston and Thomas, re, 445. 
 
 Westwick v. Theodor, 664. 
 
 Wettlaufer v. Scott, 588, 589. 
 
 Whalls v. Learn, 693, 694. 
 
 Whalen v. Wattie, 154. 
 
 Wheatley v. Sharpe, 284. 
 
 Wheeler, re, 691. 
 
 Wheeler v. Brooke, 355. 
 
 Wheeler and De Rochow's Settle- 
 ment, re, 419. 
 
 Wheeler, re, Hankinson v. Hayter, 
 683. 
 
 Wheelwright, re, 137. 
 
 Whelan v. Ryan, 1119. 
 
 Whidden v. Jackson, 121. 
 
 Whimsell v. Gifford, 730. 
 
 Whistler, re, 397, 421, 429. 
 
 Whitaker, re, 431. 
 
 Whitby v. G. T. R., 1040. 
 
 Whitby v. Liscombe, 329. 
 
 Whitby & Port Perry Ry. v. Jones, 
 
 914. 
 Whitcombe, re, 740. 
 White v. Dunlop, 67. 
 White v. Elliott, 551. 
 White v. Gosfield, 1130. 
 White v. Mackenzie, 22. 
 White's Mortgage, re, 358. 
 White v. Neaylon, 487. 
 White v. Summers, 346. 
 White v. Tomalin, 322. 
 White v. White, 328. 
 Whitechurch (George), Lim. v. Ca- 
 
 vanagh, 797. 
 Whitehead, re, 780. 
 Whitehead v. Whitehead, 349. 
 Whitehorn v. Canadian Guardian, 
 
 894. 
 Whitehouse v. Glass, 531. 
 Whitehouse v. Hugh, 500. 
 Whitehouse v. Pickett, 775. 
 Whiteley v. Edwards, 691. 
 Whiteman v. Hamilton Steel and 
 
 Iron Co., 702. 
 Whitesell v. Reece, 119. 
 Whitfield v. Macdonald, 531. 
 Whiting v. Hovey, 549, 571, 841. 
 Whiting v. Kernahan, 57, 59. 
 Whitley Exerciser v. Gamage, 856. 
 Whitling v. Fleming, 107, 203, 204. 
 Whitmore v. Macdonell, 595. 
 Whitmore-Searle v. Whitmore- 
 
 Searle, 208. 
 Whitney v. Joyce, 88. 
 Whitney v. National Masonic Acci- 
 dent, 173. 
 Whittemoire v. Macdonnell, 596. 
 Whittier v. McLennan, 1178. 
 Whittingham v. Murphy, 323. 
 Whitwonth's Case, re, 853, 854. 
 Whyfce Packing Co. v. Stratford, 
 
 1212. 
 Wiarton Beet Sugar Co., re, 802, 837, 
 
 839. 
 Wiarton, McNeill's Case, re, 838. 
 Wicke v. Ellice, 1204. 
 Wicker v. National Trusts, 424, 425. 
 Wicksteed v. Munro, 889. 
 Widder v. Buffalo, 926, 927, 929. 
 Wieland v. Bird, 134. 
 
CXV111 
 
 TABLE OF CASES. 
 
 Wighitman v. Fields, 274. 
 
 Wigle v. Gosfield, 985, 1130, 1132, 
 
 1133, 1134. 
 Wigle v. Kingsville, 1007. 
 Wigle v. Letterington, 487. 
 Wigle v Stewart, 248. 
 Wilcox v. Setter, re, 131. 
 Wild v. Waygood, 642. 
 Wildashi and Hutchison, re, 510. 
 Wilde, In re, 742. 
 Wildes v. Dudlow, 532. 
 Wildman v. Tait, 1105, 1113, 1113, 
 
 1120. 
 Wile v. Bruce Mines Ry., 913. 
 Wiley v. Blum, 70. 
 Wiley v. Ledgard, 232. 
 Wilkes v Kennedy, 510. 
 Wilkins v. Deans, 510. 
 Wilkinson, re, 327, 329, 331, 404, 413. 
 Wilkinson v. Conklin, 481, 494. , 
 Will v. United Lankat Plantations, 
 
 807. 
 William Lamb M.fg. Co., re, 850. 
 Williams, re, 258, 415, 430, 760. 
 Williams and A. O. U. W., re, 885, 
 
 893. 
 Williams v Box, 511. 
 Williams and Brampton, re, 99. 
 
 1173. 
 Williams v. Birmingham, 628, 630, 
 
 642, 654, 655. 
 Williams v. Cornwall, 983, 1033. 
 Williams v. Barle, 372. 
 Williams v. Fireman's Fund In®. 
 
 Co., 900. 
 Williams v. Gabriel, 376. 
 Williams v Jordan, 322. 
 Williams v. Leonard, 577, 579. 
 Williams, The A. R., Machinery Co. 
 
 v. The Crawford Tug Co., 784. 
 Williams v. Mersey Docks, 705. 
 Williams v. Midland Ry., 947. 
 Williams v. Ocean Coal Co., 696, 
 
 701. 
 Williams v. Fickard, 65, 69, 770. 
 Williams v. Piggott, 656. 
 Williams v. Plympton, 1208. 
 Williams v. Port Hope, 1196. 
 Williams v. Ray, 435. 
 Williams v. Richards, 920. 
 Williams v. Salter, 69, 183. 
 
 Williams v. Sun Life, 383. 
 Williams v. Taylor, 1115. 
 Williams v. Thomas, 241, 729. 
 Williams v. Tyas, 374. 
 Williams v. Vauxhall Colliery Co., 
 
 698. 
 Williams v. Williams, 239, 253. 
 Williamsburg and Stormont, re, 
 
 1055. 
 Williamson v. Elizabethtown, 1136. 
 Williamson v. G. T. R., 948. 
 Williamson v. Merrill, 263. 
 Williamson v. Williamson, 404. 
 Willis, re, 410. 
 Willis v. Howe, 224, 241. 
 Willmott v. London Road Car Co., 
 
 373. 
 Wills v. Port Arthur, 974. 
 Willy v. Mulledy, 640. 
 Wilmer, re, 352. 
 Wilson, re, 132, 441, 553. 
 Wilson v. Botsford Jenks Co., 640. 
 Wilson t. Boulter, 638, 658, 665, 
 
 702. 
 Wilson v. Butler, 387. 
 Wilson v. Cameron, 317. 
 Wilson v. Campbell, 384. 
 Wilson v. Canadian Development 
 
 Co., 534. 
 Wilson v. Durham, re, 152, 158, 159. 
 Wilson and Eastern Counties Navi- 
 gation Co., re, 175. 
 Wilson and Elgin, re, 1221. 
 Wilson v. Fleming, 1036. 
 Wilson v. Ginty, 914, 916. 
 Wilson v. Hare, 264. 
 Wilson v. Hicks, 880, 885. 
 Wilson v. Home, 257. 
 Wilson v. Howe, 255, 263, 264. 
 Wilson v. Hume, 643. 
 Wilson v. Hufcton, re, 152. 
 Wilson v. Kerr, 579. 
 Wilson v. Kyle, 339. 
 Wilson v. Lincoln Paper Mills, 
 
 1190. 
 Wilson Lumber Co. v. Simpson, 445. 
 Wilson v. Manes, 35, 988, 992, 994. 
 Wilson v. McGinnis, re, 143, 150. 
 Wilson v. Merry, 628, 643. 
 Wilson v. Owen Sound, etc., Co., 
 
 632, 662, 1191. 
 
TABLE OF CASES. 
 
 CX1X 
 
 Wilson v. Postle, 155. 
 
 Wilson v. S. O. E., 894. 
 
 Wilson and Stevens, re, 441. 
 
 Wilson v. Taylor, 382. 
 
 Wilson and Toronto General Trusts, 
 re, 128, 138, 139. 
 
 Wilson and Toronto Incandescent 
 Light Co., 396. 
 
 Wilson and Wardsville, re, 991, 
 1013. 
 
 Wilson v. Wilson, 129. 
 
 Wilson, re, Wilson v. Wilson, 418. 
 
 Wilt v. Lai, 1178. 
 
 Wilton v. Postle, 156. 
 
 Wilton v. Saffery, 82L 
 
 Wimbledon Olympia, re, 823. 
 
 Winans v. R., 51. 
 
 Winch v. Traviss, 282. 
 
 Windsor v. Canada Southern, 985. 
 
 Winfield v. Fowlie, 338. 
 
 Winn v. Snider, 578. 
 
 Winstone v. Linn, 664. 
 
 Wintemute v. Brotherhood of Rail- 
 way Trainmen, 869. 
 
 Winter v. Keown, 2. 
 
 Winterbotlham v. London Police 
 Commissioners, 309. 
 
 Winterbottom v. Lord Derby, 1066. 
 
 Winterbotitom v. Police Commission- 
 ers of London, 1036. 
 
 Winters y. McKimstry, 482. 
 
 Wisden y. Wisden, 417. 
 
 Wise v. Rutson, 370. 
 
 Wiseman v. Vanderputt, 591. 
 
 Witham v. Kershaw, 371. 
 
 Wolfe v. Holland, 442. 
 
 Wood v. Atlantic, etc., Ry., 926. 
 
 Wood v. C. P. R., 629, 631, 650, 920, 
 936, 1199. 
 
 Wood v. Dixie, 335. 
 
 Wood v. Hamilton, 925, 1045. 
 
 Wood v. Hurl, 8, 364. 
 
 Wood v. Joselin, 560. 
 
 Wood v. Reesor, 540, 576. 
 
 Wood v. Stringer, 605, 614. 
 
 Wood v. Wightiman, 432. 
 
 Wood v. Wood, 365, 366. 
 
 Wood, re, Wood v. Wood, 398, 399. 
 
 Woodall, re, 237. 
 
 Woodburn Milling Co., v. G. T. R., 
 970. 
 
 Woodcraft, re, 172. 
 Woodhill v. Sullivan, 2. 
 Woodhouse and Christie Brown, re, 
 
 508, 520. 
 Woodhouse v. Walker, 426. 
 Woodmeaton v. Walker, 338. 
 Woodruff, re, 706. 
 Woodruff v. Atty.-Gen. for Ontario, 
 
 49, 50. 
 Woodruff v. Mills, 274. . 
 Woods y Curry, 377. 
 Woods v. Reesor, 555. 
 Woods v. Stringer, 602. 
 Woods v. Toronto Bolt and Forg- 
 ing Co., 632, 643. 
 Woodstock v. Oxford, 985, 1028. 
 Woodstock v. Woodstock Auto Co., 
 
 1038. 
 Woodward v. Douse, 192, 196. 
 Woodward v. Goulstone, 133. 
 Woodward v. Miller, 352. 
 Wooliver and Kent, re, 1210. 
 Woolam v. Hearn, 94. 
 Woolley v. Victoria Mutual, 868. 
 Woolsey v. C. P. R., 934. 
 Woolsey v. Finch, 195. 
 Workman y. Rubb, 225. 
 Worman v. Brady, 120. 
 Worth, ex parte, 806. 
 Worthington, re, 407. 
 Wragg v. Jar-vis, 45. 
 Wrecking Co. v. Murphy, 852. 
 Wright, ex parte, 448. 
 Wright v. A. O. U. W., 874. 
 Wright v. Anderton, 775. 
 Wright and Coleman, re, 71, 73, ,74, 
 
 75, 76, 78. 
 Wright v. G. T. R., 951, 953. 
 Wright v. Hollinslhead, 268. 
 Wrigley v. Lancashire, etc., Ry., 922. 
 Wright v. Leonard, 689. 
 Wright v. McCabe, 665. 
 Wright v. Olmstead, 219, 771. 
 Wright v. Port Hope Electric Co., 
 
 637. 
 Wright v. Skinner, 668. 
 Wright v. Stephen School Trustees, 
 
 1218, 1219. i 
 Wright v. Wright, 258. 
 Wrlghton, re, 887. 
 Wyld v. Clarkson, 563. 
 
cxx 
 
 TABLE OF CASES. 
 
 Wylie v. Frampton, 677, 678, 695. 
 
 Wyman v. Paterson, 425. 
 
 Wynn v. Weston, 994, 997, 1013, 
 1038. 
 
 "Wynne v. Dalby, 1145, 1146. 
 
 Wynnes and Montreal Park and Is- 
 land Ry., In re, 930. 
 
 Wyoming State Syndicate, re, 840. 
 
 Wythe v. Manufacturers' Accident, 
 661. 
 
 X., re, 184. 
 
 X., re, X. v. Y., 714. 
 
 X. v. Y., 93. 
 
 Yale v. Fullerton, 59. 
 
 Yarmouth v. France, 655. 
 
 Yarwood v. Hart, 263. 
 
 Yates, re, 231. 
 
 Yates v. Windsor, 1063. 
 
 Yeates v. G. T. R., 939, 969. 
 
 Yelland v. Yelland, 864, 893. 
 
 Yellowly v. Gower, 345. 
 
 Yemen v. Mackenzie, 509, 513. 
 
 Yockman v. Johnston, 214. 
 
 Yolles v. Oolhien, 278. 
 
 York County Loan, re, 779, 837, 907, 
 
 908, 909, 910. 
 York v. Osgoode, 1202. . 
 Yost and Adams, re, 386, 428. 
 Youart, re, 331, 352. 
 Youlden v. London Guarantee, 5, 
 
 863, 866, 870, 881. 
 Young, re, 133, 267, 404, 552, 709, 
 
 711. 
 Young and Benbrook, re, 1013. 
 
 Young v. Bruce, 1064. 
 
 Young and Burbrook, re, 997. 
 
 Young v. Corporation of Leaming- 
 ton, 984. 
 
 Young v. Denlke, 347.* 
 
 Young v. Gravenhurst, 83, 637, 714, 
 1141, 1143. 
 
 Young v Hoffman, 645. 
 
 Young v. Midland Ry. Co., 924, 925, 
 932. 
 
 Young v. Milne, 315. 
 
 Young v. Naval and Military, etc., 
 Society, 816. 
 
 Young v. O'Reilly, 265. 
 
 Young v. Owen Sound Dredge Co., 
 639. 
 
 Young v. Purves, 139. 
 
 Young v. Seabde, 59. 
 
 Young v. South African, etc., Ex- 
 ploration Syndicate, 792. 
 
 Young v. Tucker, 122, 920. 
 
 Young v. Ward, 686. 
 
 Zacklynski v. Kerchinski, 1230. 
 
 Zalinoff v. Hammond, 174. 
 
 Zick v. London United Tramway, 
 
 926. 
 Zilliax v. Deans, 157. 
 Zimmer v. G. T. R., 705. 
 Zimmerman, re, 193. 
 Zimmerman v. Sproat, 489. 
 Zock v. Clayton, 60, 61, 62, 517, 521. 
 Zoological, etc., Society, re, 829. 
 Zuber and Hollinger, re, 172, 182. 
 Zufelt v. C. P. R., 109,-951. 
 Zumstein v. Hedrick, 401, 415. 
 
ANNOTATIONS 
 
 TO THE 
 
 Revised Statutes of Ontario 
 
 1914 
 
 CHAPTER 1. 
 
 The Interpretation Act. 
 
 Refer to Hardcastle on Statute Law; Maxwell on 
 the Interpretation of Statutes; see also Bicknell 
 and Kappele, Practical Statutes, p. 14. 
 
 6. See Morris v. Huron, 26 0. R. 689, 27 0. R. 341; Re 
 Lee, 14 0. W. R. 180. 
 
 8. As regards the character and construction of a Pri- 
 vate Act, and the effect of a recital therein, see City 
 of Quebec v. Quebec Central, 10 S. C. R. 563, at p. 
 580 et seq. Persons not named are not affected by 
 Private Acts : Re Goodhue, 19 Gr. 366. Construction 
 as affecting Public Acts : Bickford v. Chatham, 16 S. 
 C. R. 235, 14 A. R. 32, 10 0. R. 257. The Courts are 
 bound to take judicial notice of every Public Act of 
 the Provincial Legislature, 'though its operation may 
 be locally restricted : Darling v. Hitchcock, 25 U. C. 
 R. 463. See Kiely v. Kiely, 3 A. R. 438; Girdle- 
 stone v. O'Reilly, 21 IT. C. R. 409. Acts conferring 
 powers on private persons or bodies are treated as 
 contracts between such persons and the public, and 
 are construed strictly: St. Hyacinthe v. St. Hya- 
 cinthe, 25 S. C. R. 168. Action for damages will not 
 usually lie for breach of duty imposed by Private 
 Act, where penalty or other remedy provided : John- 
 ston v. Consumers Gas, 1898, A. C. 447 ; Cowley v. 
 Newcastle, 1892, A. C. 345. Pleading, see Bailey v. 
 Birkenhead, 12 Beav. 443; Kiely v. Kiely, 25 Gr. 
 
 S.A. — 1 
 
2 CHAPTER 1. 
 
 463, 3 A. E. 438. Private Acts bind only the parties 
 mentioned therein: See Armour on Titles, pp. 122, 
 123. 
 
 9. The preamble is undoubtedly part of the Act : Salkeld 
 
 v. Johnson, 1848, 2 Ex. 283. See Toronto v. Crook- 
 shank, 4 U. C. R. 309; Woodhill v. Sullivan, 14 C. P. 
 265; E. v. Washington, 46 U. C. R. 221. Where the 
 enacting portion is ambiguous, it may be explained 
 by reference to the recitals. " Headings " referred 
 to to determine doubtful expressions: Hammer- 
 Smith v. Brand, L. E. 4 H. L. 171 ; Donly v. Holm- 
 wood, 4 A. E. 555; Toronto v. Virgo, 1896, A. C. 88; 
 E. v. Currie, 31 U. C. E. 582 ; E. v. McGregor, 4 0. L. 
 R. 198. Headings and side notes: T. H. and B. v. 
 Simpson Brick Co., 13 O. W. E. 215, 17 0. L. E. 632. 
 As to different divisions of a statute: see note to 
 E. S. 0., 1914, ch. 2, sec. 2. 
 
 10. Collocation of certain sections in an Act, may suggest 
 that a liberal reading is to be given : Mattei v. Gillies, 
 11 0. W. E. 1083, 16 0. L. E. 558. Eemedial inter- 
 pretation: Campbell v. C. P. E., 18 0. L. E. 466. 
 
 11. Effect of statutes on the Crown: See Hardcastle, 
 
 Chapter VI. This section of the Interpretation Act 
 is not limited or qualified by an exception such as 
 is mentioned in the Magdalen College Case, 11 Eep. 
 70b ; ' ' that the King is impliedly bound by statutes 
 passed for the general good .... or to prevent 
 fraud, injury or wrong " : Eeg v. Pouliot, 2 Ex. C. R. 
 49. Statute exempting certain articles from seizure, 
 not binding on Crown: R. v. Davidson, 21 U. C. R. 
 41. Improvements under mistake of title : Commis- 
 sioners, etc., v. Colt, 22 A. R. 1. The Crown cannot 
 be a claimant in interpleader: McGee v. Baines, 3 
 L. J. 15, nor proceed under statutes to attach debts : 
 R. v. Benson, 2 P. R. 350. 
 
 14. See Morris v. Huron, 26 0. R. 689, 27 0. R. 341, where 
 there was a right of action existing in the plaintiffs 
 at the time of the repeal of a statute, and the repeal 
 was held not to affect the right. See also Fowler v. 
 Vail, 4 A. R. 267; Winter v. Keown, 22 U. C. R. 
 341; Brock v. City of Toronto, 45 U. C. R. 53; Dig. 
 Ont. Case Law 6735. Similar provisions, see Int. 
 
CHAPTER 1. 3 
 
 Act (Imp.), (1889), sec. 38 (2). See Thorn v. Mc- 
 Quilty, 4 0. "W. E. 322 ; Gordon v. Moose Mountain, 
 17 0. W. R. 661, 2 0. W. N. 333, 22 0. L. E. 373; E. 
 v. Cornwall St. By., 11 0. W. R. 222, 12 0. W. E. 
 942. Eepeal of statute after action brought: But- 
 tan v. Burk, 7 0. L. E. 56. Eule of construction for 
 two Acts seemingly repugnant: see Way v. St. 
 Thomas, 12 0. L. E. 240, at p. 243. Effect of repeal 
 of statute on " second offence ": E. v. Teasdale, 1 
 O. W. N. 398, 15 0. W. E. 242, 20 0. L. E. 382. 
 Clause (c) applied: Brockville, etc., Eoad Co. v. 
 Leeds and Grenville, 5 0. W. N. 362; and see also 
 Ee Lee, 14 0. W. E. 180. This provision does 
 not extend to By-laws, in regard to which the 
 effect of repealing a repealing clause is . to re- 
 vive the former by-law: E. v. La Forge, 12 
 O. L. E. 308. As to assignments of choses in action 
 prior to 31st December, 1897, see Judicature Act, 
 E. S. 0. 1897, sec. 58 (5). H. & L. notes, p. 66. 
 Conveyancing and Law of Property, E. S. 0. 
 1914, ch. 109, sec. 49. 
 
 15. Wentworth v. Saltfleet, 2 0. W. N. 339, 17 0. W. E. 
 697. 
 
 16. Eevised statute not to be considered new law: See 
 H. & L. notes to Con. Eules 529 (p. 735) and 795. 
 Eules as to security in P. C. appeals under repealed 
 Act : see Stavert v. Campbell, 21 0. W. E. 172, 174, 
 370; 3 0. W. N. 591, 641, 716; 25 0. L. E. 515. 
 
 20. "Where words have received a judicial interpretation, 
 and are repeated without alteration, in a subsequent 
 statute, the legislature must be taken to have used 
 them according to the meaning placed on them: 
 Crain v. Ottawa Col. Inst., 43 IT. C. E. 498; Nicholls 
 v. Cummings, 1 S. C. E. 395. But in Dominion 
 Acts, where same terms differently construed in 
 different provinces: Davidson v. Eoss, 24 Gv. 22, 
 and see Toronto Ry. v. Beg., 1896, A. C. 551. Ee- 
 enactment: Nat. Trust v. Miller, 19 0. W. E. 38, 2 
 0. W. N. 933, 46 S. C. E. 45. 
 
 23. Administration of oath by Crown Timber Agent : E. 
 v. Johnston, 17 0. W. E. 78, 2 0. W. N. 106. 
 
 26. See E. v. Irwin, 11 0. W. E. 728. 
 
^ CHAPTER 1. 
 
 27. This sub-section read with the Public School Act, 
 invests an Urban School Board with all necessary- 
 powers of a corporation : Toronto School Board and 
 City of Toronto, 2 0. L. E. 727. 
 
 28. — (d) The Court will not be punctilious in adhering 
 to the letter of the statute, where there is reasonable 
 accuracy and no prejudice : Fitzgerald v. Wilson, 8 
 0. B. 559. Variations according to reason and com- 
 mon sense may be made, so long as the material 
 matters are correctly given : Gemmill v. Garland, 12 
 0. B. 139. Question of the authority of schedules 
 discussed: Truax v. Dixon, 17 0. B. 366. The cove- 
 nants and provisions in the Short Forms Act were 
 not deprived of the meaning given them by the Act 
 because they were not numbered, as in the schedule 
 to it : Northey v. Trumenhiser, 30 U. C. B. 426, and 
 see Dig. Ont. Case Law, 6708-9. It may sometimes 
 happen that there is a contradiction between the 
 enactment and the form in the schedule. In such a 
 case " it would be quite contrary to the recognized 
 principles upon which Courts of law construe Acts 
 of Parliament to restrain the operation of an enact- 
 ment by any reference to the words of a mere form 
 given for convenience sake in a schedule." Per 
 Lord Penzance : Dean v. Green, 1882, 8 P. D. 89. If 
 the enactment and the form cannot be made to cor- 
 respond, the latter must yield to the former: Be 
 Baines, 1 Cr. and Ph. 31. Form illustrative or 
 exemplary of what it should contain by way of in- 
 formation: Be South Fredricksburgh, 10 0. W. B. 
 746. Defect in form of ballot: Giles v. Almonte, 21 
 0. L. B. 362, 1 0. W. N. 698, 920, 16 0. W. B. 530; 
 Milne v. Thorold, 2 0. W. N. 1009, 19 O. W. B. 29, 
 20 0. W. B. 983, 3 0. W. N. 536, 25 0. L. B. 420. 
 
 28. — (e) Exercise of power conferred " from time to 
 time:" Be Boyle and Toronto, 5 0. W. N. 97, 
 25 0. W. E. 67. 
 
 28. — (g) The fact of corporate action being embodied in 
 a by-law implies its revocability : Per Boyd, C, At- 
 torney-General v. Toronto, 6 O. L. B., at p. 168. 
 
 28.— (h) When the last day falls on Sunday: see article, 
 48 C. L. J. 281. " Two clear days," Division Courts 
 
CHAPTER 1. 5 
 
 Act: Re Stoddard and Eastman, 12 0. W. B. 226. 
 Where last day under Statute of Limitations falls 
 on Sunday: see Gilmini v. Moriggici, 1913, 2 K. 
 B. 549. 
 
 28. — (i) Lord Selborne laid down as of general validity 
 part of this rule in Conolly v. Steer, 1881, 7 Q. 
 
 B. D. 570, 577. " In construing a statute plural 
 is to be read as singular whenever the nature of 
 the subject-matter requires it." The Division 
 Courts Act provided that the plaintiff, to prove 
 the amount ascertained by the signature of 
 the defendant within the meaning of the sec- 
 tion, could not give evidence " beyond the mere 
 production of a document, and the proof of the 
 signature to it." " Document " was read " docu- 
 ments:" Slater v. Laberee, 9 0. L. B. 545. " In- 
 strument ' ' was read instruments : Youlden v. 
 lLondon Guarantee, 28 0. L. B. 228. Where three 
 infants were concerned in the sale of lands, 
 and two of them consented, the sale was made, not- 
 withstanding the provision that a sale of the lands 
 of an infant over 14 shall not be made without his 
 consent: Be Harding, 13 P. B. 112. See Bule 71, H. 
 & L. notes, p. 231 (1913, Bule 724). 
 
 28. — (I) A suit was tried in a Division Court before a 
 deputy Judge, duly appointed, and the defendant 
 applied for a new trial, under which proceedings 
 . were stayed. Four days after, the Judge died. The 
 deputy did nothing further. A new Judge was ap- 
 pointed three months after, and still three months 
 later ordered a new trial. He could do so under the 
 Division Courts Act and this taken together. Be 
 Appleby, 27 U. C. E. 486. 
 
 29.— (i) " Herein," see McGill v. Peterborough, 12 IT. 
 
 C. B. 44. 
 
 29. — (I) Evidence at a trial not being concluded before 
 the close of the preceding G-ood Friday, the Judge, 
 counsel consenting and the jury desiring it, ad- 
 journed the Court to the following day, when he 
 delivered his charge, received a verdict and entered 
 judgment. It was held competent for him to do so. 
 The only day on which no judicial act can be done 
 
Q CHAPTER 1. 
 
 in this province is the Lord's Day or Sunday; other 
 statutory holidays are not dies non juridici in this 
 sense: Foster v. Toronto Eailway, 31 O. E. 1. In 
 reckoning 21 days after the election return for the 
 presentation of a petition under the Controverted 
 Elections Act, Good Friday and Easter Monday were 
 excluded: Re West Toronto, 31 U. C. E. 409. Filing 
 chattel mortgages : see McLean v. Pinkerton, 7 A. E. 
 490. There is nothing to forbid holding a muni- 
 cipal council meeting on Good Friday, either in 
 the statute or at common law: Ee Schumacher and 
 Chesley, 1 O. W. N. 1041. Holiday: see Ee Stod- 
 dard and Eastman, 12 0. W. E. 226; see Con. 
 Eule 343, H. & L. notes, p. 551 (1913 Eule 172-4). 
 
 29. — (o) Lieutenant-Governor: see E. v. Spellman, 13 0. 
 L. E. 43. 
 
 29. — (s) " May " read as " must." Naturally " may " 
 is permissive: Julius v. Bishop of Oxford, 5 App. 
 Cas. 214; Ee Baker, Nichols v. Baker, 44 Ch. D. 
 262. Sometimes where a power is conferred by the 
 word " may " a duty arises to exercise it: E. v. 
 Mitchell, 108 L. T. Eep. 76. 
 
 29. — (u) The word " month " has now the meaning of 
 calendar and not lunar month, not only in England 
 (Int. Act, sec. 34), but also in the U. S., whether in 
 Federal or State Acts. The old English Eule : Lacon 
 v. Hooper, 1795, 6 T. E. 226, was never followed. 
 Guaranty Co. v. Green Cove, 139 U. S., at p. 145. 
 See Con. Eule 342, H. & L. notes, p. 550, Armour, E. 
 P., p. 140. Standard Time: see E. S. O. 1914, 
 ch. 132. "Month:" see also Con. Eules 1023. 
 1044. E. S. O. 1914, ch. 83, sees. 4, 22; also E. 
 S. O. 1914, ch. 159, sec. 34. 
 
 29. — (%) " Person belonging to such ship " includes pas- 
 sengers as well as master and crew : The Fusilier, 3 
 Mo. P. C. N. S. 51. Is not necessarily restricted to 
 persons over 21 years of age: O'Shannessy v. 
 Joachim, 1876, 1 App. Cas. 90. Without the aid of 
 such an enactment may not include a corporation: 
 Shoreditch v. Franklin, 1878, 3 C. P. D. 380; Phar- 
 maceutical Soc. v. London, etc., 1880, 5 App. Cas. 
 
CHAPTER 1. 7 
 
 857, at p. 861. Does not include a firm or partner- 
 ship: Bickerton v. Dakin, 20 0. E. 192, 265. See 
 also Royal Canadian Bank v. G. T. R., 23 C. P. 225, 
 see Dig. Ont. Case Law, 6718. Query, is the Attor- 
 ney-General or the Department of Crown Lands a 
 " person "?: A. G. v. Hargrave, 11 0. L. R. 530, at 
 p. 533. Corporation as person " rogues and vaga- 
 bonds." Whipping and imprisonment: Hawke 
 v. Hulton, 1909, 2 K. B. 93. Company a person 
 under Dentists' Act: A. G. v. Smith Limited, 
 1909, 2 Ch. 524. See Con. Rule 159, H. & L. notes, p. 
 292 (1913, Rule 23). 
 
 29.— (a) See In re Huron, 7 O. L. R. 44. 
 
 29. — (aa) Rules of Court, see H. & L. notes,, p. 199. 
 
 29. — (cc) The Interpretation Act here does not introduce 
 any .new rule, but is declaratory only of that estab- 
 lished by judicial decision : Lincoln, A. R. 324. For 
 cases in which statutes are construed as imperative, 
 directory or permissive, see Dig. Ont. Case Law, 
 6710-6. The words " It shall be lawful," confer a 
 faculty or power, and they do not of themselves do 
 more. , But there may be something in the nature of 
 the thing empowered to be done, which may couple 
 the power with a duty. Whether such is the case 
 under our system of law usually falls to the Court 
 to decide on an application for a mandamus : see 
 Lord Cairns ' remarks in Julius v. Bishop of Oxford, 
 1881, 5 App. Cas. 214. In certain Acts " shall and 
 may " are put together. They seem to create a 
 judicial duty, but in certain cases may be held to 
 create a ministerial duty. 
 
 29.— (hh) Shorthand is " writing ": R. v. Leach, 12 O. 
 W. R. 1016, 17 O. L. R. 643. 
 
 31. Operation of this provision, see Belleville Bridge Co. 
 v. Ameliasburg, 15 0. L. R. 174, at p. 179, 10 0. W. 
 R. 988. 
 
CHAPTER 2. 
 
 CHAPTER 2. 
 
 The Statutes Act. 
 
 The short title is part of the Act, and may be cited as 
 proof of the intention of the legislature, so as " to 
 make that short title a good general description of 
 all that was done by the Act." Per Lord Selborne 
 in Middlesex Justices v. E., 1884, 9 App. Cas. 772. 
 The title of the Act may be considered to ascer- 
 tain the general scope of the Act: McKay v. 
 Davey, 28 0. L. R. 322. As to the various parts 
 of an Act of Parliament, and their effect on 
 one another : see Hardcastle on Construction of 
 Statutes, Chapter VI. See also O'Connor v. 
 Nova Scotia Tel. Co., 22 S. C. R. 276; Green 
 v. Provincial Insurance, 4 A. R. 521. Headings on 
 different portions of a statute may be looked to to 
 determine the sense of a section ranged under them : 
 Hammersmith, etc., v. Brand, L. R. 4 H. L. 171. The 
 Consolidated Statutes may be treated as one great 
 Act, and the several chapters as being enactments 
 which are to be construed collectively and with ref- 
 erence to one another just as if they had been sec- 
 tions of one statute instead of being separate Acts : 
 per Lord Westbury, Boston v. Lelievre, L. R. 3 P. 
 C. 162. Dig. Ont. Case Law, 6745. The divisions of 
 a statute may be looked to as affording a key to its 
 construction: Lawrie v. Rathbun, 38 U. C. R. 255. 
 The headings may be referred to to assist the con- 
 struction of ambiguous provisions: Donly v. Holm- 
 wood, 4 A. R. 555. See also Wood v. Hurl, 28 Gr. 
 146, and cases cited, also Peters v. Stoness, 13 P. R. 
 235. The numbers and sections are constituent parts 
 of an Act : Washington v. G. T. R., 28 S. C. R. 184. 
 See further as to headings and preamble, notes to 
 R. S. 0., 1914, ch. 1, sec. 9, and, as to consolidation, 
 lb., sec. 16. 
 
 See remarks of Lord Ellenborough in Nares v. Rowles 
 (1810), 14 East 510. 
 
CHAPTERS 3, 4, 5. 9 
 
 An Act of Parliament takes effect in law from the 
 earliest moment of the day on which it is passed: 
 Oole v. Porteous, 19 A. R. Ill ; see also Converse v. 
 Michie, 16 C. P. 167. The fraction of a day is never 
 taken into consideration in determining the oper- 
 tion of a statute: Mitchell v. Dobson, 3 L. J. 185; 
 Mclntyre v. East Williams Mutual, 18 0. E. 79. The 
 Act comes into operation immediately on the expiry 
 of the day previous to giving the royal assent or 
 to the datea specific in the Act. The definition ap- 
 plies also to Orders in Council, orders, warrants, 
 schemes, letters patent, rules, regulations, and by- 
 laws made under statutory powers. Hardcastle, 177. 
 
 CHAPTER 3. 
 
 The Territorial Division Act. 
 
 2. (51) The word " Timmins " is struck out of para- 
 graph 51 and inserted in paragraph 52: 4 Geo. V. 
 ch, 2, Schedule (1) (?). 
 
 6. Boundaries of Townships lying on certain lakes and 
 rivers: Effect of this provision in view of interna- 
 tional law and the administration of the Liquor 
 License Act: see R. v. Meikleham, 11 0. L. R. 366, 
 notes to Liquor License Act, R. S. 0. 1914, ch. 215, 
 sec. 11. 
 
 11. New Townships: Municipal Act, R. S. 0. 1914, ch. 
 192, sec. 26. 
 
 CHAPTER 4. 
 The Haliburton Act. 
 
 CHAPTER 5. 
 
 The Representation Act. 
 
10 
 
 CHAPTER (5. 
 
 CHAPTER 6. 
 
 The Ontario Voters' Lists Act. 
 
 2. (lb) " Scrutiny ": see Ee Ellis and Renfrew, 23 0. 
 L. R. 427, and see notes to sec. 24. All words after 
 " election " in the second line of the clause are 
 struck out: 4 Geo. V. ch. 2, Schedule (2). 
 
 6. (1) " Appearing to be voters ": See Elections Act, 
 R. S. 0. 1914, ch. 8, sec. 12; Re Huron, 7 0. L. R. 44; 
 Duty of Clerk: Re McGrath and Durham, 12 0. W. 
 R. 149, 17 0. L. R. 514. 
 
 6. (7) Conditions of residence of rural M. F. Voter: 
 see R. S. 0. 1914, ch. 8, sec. 16, ch. 195, sees. 22, 26. 
 Urban M. F. Voters : see R. S. 0. 1914, ch. 7, sec. 17, 
 ch. 8, sec. 17 ; see Re Adolphustown, 12 0. W- R. 827, 
 17 0. L. R. 312. Residential qualification : Re Norfolk 
 Voters' Lists, 10 0. W. R. 743, 15 O. L. R. 108; (Cases 
 collected). " M. F. and ": Re Carleton Place, 3 0. 
 L. R. 223. 
 
 6. (16) Application: Re Dale and Blanchard, 1 0. W. N. 
 729, 16 0. W. R. 86, 349, 21 0. L. R. 497. 
 
 9. The list of voters was prepared and certified by the 
 clerk ready for transmission on a certain day, but 
 he died before that day came and they were trans- 
 mitted by his successor without alteration. The list 
 was regular and sufficient to give jurisdiction to the 
 Judge to revise it : Re Goderich, 6 P. R. 213. 
 
 13. The date mentioned by the clerk in the advertise- 
 ment as that on which the voters' lists have been 
 posted up in his office is the date from which the time 
 for taking proceedings limited by section 17 runs, 
 even though the clerk has in fact posted up the lists 
 some days before the date named: In re Huron, 7 
 0. L. R. 44. 
 
 14. The duty of the Judge only extends to correct and 
 vary the list in respect of the qualification of those 
 who are before him on revision : Lincoln, 2 A. R. 316. 
 
CHAPTER 6. ]_]_ 
 
 (1) Eevision of list: No person is entitled to be entered 
 as an appellant except a person who is entered or 
 entitled to be entered on the list as a voter : Ee South 
 Fredricksburg, 10 0. W. B. 746, 15 0. L. E. 308. 
 
 If the assessor has placed the name of a person on the 
 roll as rural M. F. Voter under R. S. 0. 1914, 
 ch. 195, the duty of the clerk of the municipaliaty is 
 to place the name of such person on the voters ' list, 
 and the conditions of that Act as to residence and 
 domicile are those to be regarded by the Judge when 
 revising the list: Ee Adolphustown, 12 0. W. E. 
 827, 17 0. L. E. 312. 
 
 (4) See as to Judges' powers : Ee Mitchell and Campbell- 
 ford, 11 0. W. E. 941, 16 0. L. E. 578. 
 
 A person resident in and entitled to be placed on the 
 manhood suffrage register for a town forming part 
 of an electoral district is entitled to require the revi- 
 sion of the voters' lists for another municipality 
 forming part of the same electoral district, and is 
 also entitled to require the subsequent revision of 
 such lists as required by section 23 : Ee Huron, 7 0. 
 L. E. 44. The Judge has the right to examine and 
 decide whether the complainant is a voter or en- 
 titled to be a voter, though his name appears on the 
 voters' list. His decision cannot be reviewed: Ee 
 Parsons, 36 U. C. E. 88. 
 
 15. Eight to be entered on list : Ee St. Thomas, 2 E. C. 
 154 ; Lincoln, 2 A. E. 316. ' ' Any voter whose name 
 is entered, etc.," is the equivalent of " appellant or 
 complainant ' ' in sec. 33 : Be West York Voters ' List, 
 11 0. W. E. 248, 15 0. L. E. 303. 
 
 17. The clerk's certificate was false and intended to de- 
 ceive the Judge and the clerk has designedly with- 
 held the lists: yet as soon as the list was posted, 
 time for making complaints began to run, and if no 
 complaint was made within the statutory time the 
 Judge was bound to certify. The omission to trans- 
 mit copies, whether negligent or wilful, could not 
 authorize an extension of time and the Judge's certi- 
 ficate was final: In re Johnson, 9 P. E. 425. The 
 applicant did not discover the omission of his name 
 
-^2 CHAPTER 6. 
 
 until after the 30 days : his application for a manda- 
 mus was refused: In re Browning, 43 U. C. E. 13. 
 "Where a notice of complaint with a list of voters was 
 received hy the clerk through the mail hy registered 
 letter in due time, the Act was held complied with: 
 Ee Madoc, 2 E. C. 165. A complaint with list at- 
 tached was handed to the clerk. When the list was 
 produced in Court hy the clerk the complaint was 
 missing. Parol evidence was admissible as to the 
 form and effect of the notice and of its loss, and if 
 satisfactory the complaint could be dealt with: Ee 
 Marmora, 2 E. C. 162. The notice of complaint re- 
 quired must be signed by the voter. The name at 
 the beginning is not sufficient signature. It seems 
 the question of validity can be raised before the 
 Judge after it has been received and entered by the 
 clerk: In re Simpson, 9 P. E. 358; see also Ee St. 
 Thomas, 13 0. E. 3. The notice of complaint con- 
 sisted of 15 sheets each in itself in the schedule form, 
 only the notice of complaint on the last sheet being 
 filled out and signed by the complainant. Evidence 
 was received that the originals were attached 
 together. The notice referred to the subjoined lists. 
 Held that the lists were part of the complaint and 
 sufficient: Ee Carleton Place, 3 0. L. E. 223. Date 
 from which time runs : see Ee Huron, 7 0. L. E. 44, 
 note to sec. 13. The words " give to the clerk or 
 leave for him," etc., mean that where the notice is 
 not given to the clerk, personally, it is to be left for 
 him at his residence or place of business in such a 
 place and under such circumstances as to raise a 
 reasonable presumption that it reached his hands 
 within the time allowed by the statute : Ee Hunger- 
 ford, 5 0. L. E. 63. Procedure: Form 5 considered 
 and application of forms generally : Ee South Fred- 
 ricksburg, 10 0. W. E. 746, 15 0. L. E. 308. Where 
 two names wrongly added without the notice re- 
 quired by section : Ee Eyan and Alliston, 22 0. L. E. 
 200. Omission of notice does not per se vitiate the 
 list : Ee Eyan and Alliston, 22 0. L. E. 200. 
 
 (4) Omission to comply with requirements of this sub- 
 section where list certified : Ee Eyan and Alliston, 16 
 0. W. E. 794, 21 0. L. E. 582, 1 0. W. N. 1116, 17 
 O. W. E. 222, 2 0. W. N. 161, 841, 18 0. "W. E. 731, 
 22 0. L. E. 200. 
 
CHAPTER 6. 13 
 
 21. The proper list of voters to be used is the one certi- 
 fied and delivered or transmitted as provided by this 
 section, even though there be a later list validly 
 certified, but not delivered or transmitted to the 
 clerk of the peace: R. ex rel. Black v. Campbell, 18 
 0. L. E. 269, 13 O. W. R. 553. The time for deliver- 
 ing or transmitting the list to the clerk of the peace 
 is, semble, before the time at which nomination takes 
 place : R. ex rel. Black v. Campbell, 18 0. L. E. 269, 
 13 0. W. E. 553. Quaere, whether a list certified on 
 Sunday can be valid : E. ex rel. Black v. Campbell, 18 
 0. L. E. 269, 13 0. W. E. 553. 
 
 23. Person entitled to require revision : see Ee Huron, 7 
 
 L. E. 44, note to sec. 14. 
 
 24. Finality of list : see Ee Dale and Blanchard, 1 0. W. 
 N. 729, 21 0. L. E. 497, 16 0. W. E. 86, 349, 23 
 O. L. E. 69; Ee Schumacher and Chesley, 1 0. 
 W. N. 1041, 21 0. L. E. 522, 16 0. W. E. 641 ; Ee 
 Eyan and Alliston, 16 0. W. E. 794, 21 0. L. E. 
 582, 18 0. W. E. 731, 22 0. L. E. 200; Stowe v. Joliffe, 
 L. E. 9 C. P. 734 at p. 750; Ee Ellis and Eenfrew, 15 
 O. W. E. 880, 16 0. W. E. 952, 18 0. W. E. 703, 1 0. 
 W. N. 710, 2 0. W. N. 27, 837, 21 0. L. E. 74, 23 0. 
 L. E. 427; Ee Aurora Scrutiny, 4 0. W. N. 1069, 
 28 0. L. E. 475; Ee Port Arthur, 14 0. L. R. 
 345; Ee Saltfleet, 16 0. L. E. 293; R. ex rel. 
 MoKenzie v. Martin, 28 0. R. 523; Re Armour 
 and Onondaga, 14 0. L. R. 606; Re Cleary 
 and Nepean, 14 0. L. R. 392 (not followed); 
 Re Mitchell and Campbellford, 16 0. L. R. 578, 11 
 O. W. R. 941; Re McGrath and Durham, 12 0. W. 
 R. 1091 ; Re West Lome Scrutiny, 23 0. L. R. 598, 
 25 0. L. R. 267, 277, 26 0. iL- R. 339, 47 S. C. R. 
 451; Re Sturmer and Beaverton, 24 0. L. R. 65; 
 Re Mtzmartin and Newburgh, 24 0. L. R. 102. 
 Finality of voters' lists: see R. S. 0. 1914, ch. 7, 
 sec. 33, ch. 8 sees. 19, 20, 21, 95. 
 
 24. — (2) The voters' lists as finally settled by the Judge 
 are upon a scrutiny conclusive evidence that all per- 
 sons named therein and no others are qualified to vote 
 except as mentioned, and therefore no evidence can 
 be given touching alienage or minority of any voters 
 
14 
 
 CHAPTER 6. 
 
 named therein, or as to whether the name of a mar- 
 ried woman is properly on the list or not: Ee Salt- 
 fleet, 11 0. W. R. 545, 16 O. L. R. 293. Prohibition 
 of enquiry as to persons appearing on list except 
 becoming by change of residence disentitled to vote : 
 Re Orangeville, 15 0. W. R. 565, 20 O. L. R. 476, 1 
 O. W. R. 536. The certificate of the County Judge 
 as to the correctness of the voters' list should not 
 be gone behind, or the steps investigated by which 
 he arrived at his conclusions: Re North Grower, 
 24 0. W. R. 489, 25 0. W. R. 224, 4 0. W. N. 1177, 
 5 0. "W. N. 249; and see Re Ryan and Alliston, 
 18 0. W. R. 131, 21 0. L. R. 583, 22 0. L. R. 200. 
 Change of status or loss of qualification between the 
 final revision of the voters ' list and the election : Re 
 Armour and Onondaga, 14 0. L. R. 606, 9 0. W. R. 
 833; Re McGrath and Durham, 17 0. L. R. 
 514; see also S. Wentworth, 11 E. C. 531. History 
 of " Scrutiny " under the Election Acts and 
 under the Municipal Act, with explanation of 
 the present position: see Re McGrath and Dur- 
 ham, 17 0. L. R. 514. The word scrutiny covers* 
 not only such an investigation as on the authority of 
 Re Saltfleet, 16 0. L. R. 293, 11 0. W. R. 356, the 
 County Judge may conduct, but also the enquiry in 
 the nature of a scrutiny which the Courts have 
 always deemed it within their jurisdiction to enter- 
 tain upon motions to quash by-laws: Re McGrath 
 and Durham, 17 0. L. R. 514: see also Re Mitchell 
 and Campbellford, 16 0. L. R. 578, 11 0. W. R. 941; 
 Re Port Arthur, 14 0. L. R. 345, 9 O. W. R. 347. 
 Scrutiny — meaning of, and what it includes : See Re 
 Saltfleet, 11 0. W. R. 545, 16 0. L. R. 293. A mo- 
 tion to quash a local option by-law is a " scrutiny " : 
 Re Mitchell and Campbellford, 16 0. L. R. 578, 11 
 0. W. R. 941. Finality of list on scrutiny and on 
 motion to quash local option by-law: Re Mitchell 
 and Campbellford, 11 0. W. R. 941, 16 0. L. R. 578; 
 Re McGrath and Durham, 12 0. W. R. 149, 1091, 17 
 0. L. R. 514. A County Court Judge holding a 
 scrutiny under the Municipal Act, may go behind 
 the list to enquire if a tenant whose name is on 
 the list has the residential qualification entitling 
 him to vote. He may not enquire whether rejected 
 ballots were cast for or against the by-law: Re 
 West Lome Scrutiny, 23 0. L. R. 598, 25 0. L. R. 
 
CHAPTER 6. 15 
 
 267, 26 0. L. E. 339, 47 S. C. E. 451. A scrutiny 
 under the Municipal Act includes jurisdiction to in- 
 vestigate the voter's qualificataion, so long as it 
 does not conflict with the finality of the lists certi- 
 fied under this Act. The Judge has jurisdiction 
 also to investigate as to whether or not, in a given 
 case, the right to vote finally and absolutely certi- 
 fied by the list was subsequently so exercised as 
 to constitute the ballot deposited a legal vote: Ee 
 Aurora Scrutiny, 28 0. L. E. 475. The West 
 Lome Case has became unimportant as regards 
 local option contests, since the enactment of the 
 provision which now appears as E. S. 0. 1914, ch. 
 215, sec, 137 (2): Ee Aurora Scrutiny, 28 0. L. 
 E. 475; see E. S. 0. 1914, ch. 8,.^ sec. 19 (notes), 
 also sec. 130, et seq. (recount) ; E. S. O. 1914, ch. 
 192, sec. 279 (scrutiny under Municipal Act). 
 
 32.. If it were necessary in order to make the notice of 
 complaint (sec. 17) a good one, to amend it in some 
 material point, there is no jurisdiction to do so : Ee 
 Carleton Place, 7 0. L. E. 223. It is not essential 
 that the form given in the schedule for objections to 
 names wrongfully inserted should be followed with 
 exactness. The nature of objections are to be stated 
 with reasonable clearness : Ee North Hastings, 6 0. 
 L. E. 631. 
 
 33. " Appellant or complainant." Substitution of quali- 
 fied appellant: Ee West York Voters' List, 11 0. W. 
 E. 248, 15 0. L. E. 303. Difference in wording be- 
 tween this and former section: see Ee West York 
 Voters' List, lb. 
 
 39. Character of questions to be submitted, ' ' general 
 questions ": Ee Norfolk Voters' Lists, 10 0. W. E. 
 743, 15 0. L. E. 108. Stated case : Ee Adolphustown, 
 12 0. W. E. 827, 17 0. L. E. 312. See Judicature Act, 
 E. S. 0. 1914, ch. 56, sec. 26 (2a). 
 
 Form 1: see Ee Fitzmartin and Newbourg, 2 0. W. 
 N. 1114, 1177. 
 
■j^g CHAPTERS 7, 8. 
 
 CHAPTER 7. 
 
 The Manhood Suffbage Registbation Act. 
 
 2. The letters " M. F." in voters' lists can properly be 
 read as " Manhood Franchise ": Re Carleton Place, 
 3 0. L. R. 223. As to residential qualification of M. 
 F. voters : R. S. 0. 1914, ch. 6, sec. 6 ; eh. 7, sec. 17 ; ch. 
 8, sees. 16, 17; ch. 195, sees. 22, 26; Re Adolphus- 
 town, 12 0. W. R. 827, 17 0. L. R. 312. 
 
 33. Finality of voters' lists : See R. S. 0. 1914, ch. 6, sees. 
 24, 68 ; ch. 8, sees. 19, 20, 21, 95 ; and notes to these 
 sections, esp. R. S. 0. 1914, ch. 6, sec. 24. 
 
 CHAPTER 8. 
 
 The Ontabio Election Act. 
 
 Refer to: Hodgins, Reports of Election Cases; 
 Hodgins' Franchises; Ermatinger, Franchise and 
 Election Laws; Holmested, Dominion Election 
 Rules; McPherson, Elections in Canada. 
 
 4. Irregularities not affecting the result : Re Port Arthur, 
 12 0. L. R. 453 (see same case, 12 0. L. R. 508, 13 0. 
 L. R. 17, 14 O. L. R. 345) ; Welland, 1 E. C. 383. 
 Irregularities at nomination and polling; East Sim- 
 coe, 1 E. C. 291 ; Monk, H. E. C. 154. Also : East Mid- 
 dlesex, 1 E. C. 250 ; Prescott, 1 E. C. 88 ; Lincoln, H. E. 
 C. 489 ; West Hastings, H. E. C. 539. Where R. 0. did 
 not take oath of office: R. v. Forget, 1 L. N. 542. 
 See further as to trifling and unimportant irregu- 
 larities, notes to sec. 180. 
 
 10. Although the respondent did not become a " candi- 
 date ' ' until a later date, yet if any corrupt acts were 
 done by him before that date they would affect the 
 election, for the Act applies to everything done 
 before an election by one who is subsequently elected: 
 Re East Middlesex, 5 0. L. R. 644. 
 
CHAPTER 8. 17 
 
 11. A member of the Ontario Legislature is not disquali- 
 
 fied by reason of filling the office of postmaster, with 
 no permanent salary, for a place which is not a city 
 or town: see E. S. 0. 1914, ch. 11, sec. 12 (j) ; South 
 Norfolk, 31 C. L. J. 68. Contract for carrying mails 
 does not disqualify: Centre Simcoe, 31 C. L. J. 68. 
 Contract with His Majesty : Prince, 14 S. C. E. 265 
 Where respondent notoriously disqualified, Court 
 will not necessarily award seat to petitioner : West 
 York, H. E. C. 156. See S. Eenfrew, 1 E. C. 359; 
 note to sec. 58. A returning officer who has attempted 
 ~o resign, but has not done so effectively, is ineligible 
 as a candidate: Le Boutillier v. Harper, 1 Q. L. E. 
 4; see E. S. 0. 1914, ch. 11, sec. 12, notes. 
 
 12. Finality of voters ' lists on scrutiny : see Voters ' Lists 
 Act, E. S. 0. 1914, ch. 6, sec. 24. Sub-postmaster in 
 charge of a post office, not the principal post office in 
 a city or town : Lancaster v. Shaw, 10 O. L. E. 604, 
 Eev. 12 O. L. E. 66. Deputy Begistrar of Deeds : Ee 
 Huron, 7 0. L. E. 45. Crown Lands Agent : Ee Port 
 Arthur, 12 O. L. E. 453; Shrigley v. Taylor, 4 0. 
 E. 396, 6 0. E. 108. Official in course of appoint- 
 ment : Shrigley v. Taylor, 4 O. E. 396, 6 0. E. 108. 
 
 13. Deputy Eeturning Officers are entitled to vote if 
 
 qualified otherwise, if their names appear on the 
 voters' list. They may vote at the place where they 
 act, though it be not their proper polling division: 
 Ee Saltfleet, 11 0. W. E. 545, 16 0. L. E. 293; Ee 
 Joyce and Pittsburg, 16 0. L. E. 380; and see also 
 Ee Armour and Onondaga, 14 0. L. E. 606, 610, 9 0. 
 W. E. 833 (not followed). Abortive resignation of 
 E. 0. : see Boutillier v. Harper, 1 Q. L. E. 4. 
 
 15. Disqualification of voter: Beauharnois, 4 Que. P. E. 
 23. 
 
 16. The conditions of residence of the rural M. F. voter 
 are to be looked for in this section, and in E. S. 0. 
 1914, ch. 195, sees. 22, 26, and see also E. S. 0. 1914, 
 ch. 6, sec. 6. The urban M. F. voter is dealt with by 
 E. S. O. 1914, ch. 7; and by E. S. 0. 1914, ch. 8, sec. 
 17. See Ee Adolphustown, 12 0. W. E. 827, 17 0. L. 
 E. 312. " Eesided." Where the absence is tem- 
 porary the qualification is not affected : Ee Seymour, 
 2 E. C. 69. 
 
 S.A.— 2 
 
18 
 
 CHAPTER 8. 
 
 19. " Eesided continuously " does not mean de die in 
 diem; where the absence is temporary the qualifica- 
 tion is not affected: Re Seymour, 2 E. C. 69. Non 
 residence disqualification where name is on list : Re 
 West Lome Scrutiny, 23 0. L. R. 598, 25 O. L. R. 267, 
 26 0. L. R. 339, 47 S. 0. R- 451. No enquiry can be 
 made as to voters being under the age of 21 years. 
 The voters' lists are final on the point: S. Perth, 2 
 E. C. 144; N. Victoria (Dom.), H. E. C. 5"84. As to 
 raising the question of alien and infant voters on a 
 scrutiny: see Re Port Arthur, 13 0. L. R. 17, and 
 remarks of Meredith, J. A., on finality of voters' 
 lists at pages 28 et seq., and at 14 0. L. R. 345. 
 Finality of voters' lists: see R. S. 0. 1914. ch. 6, 
 sees. 24, 68, R. S. 0. 1914, ch. 7, sec. 33, R. S. 0. 
 1914, ch. 8, sees. 19, 20, 21, 95. And see for cases on 
 finality, note to R. S. 0. 1914, ch. 6, sec. 24. 
 
 36. Where R. 0. did not take oath of office, election not 
 avoided: R. v. Forget, 1 L. N. 542. 
 
 38. Question whether this provision is regulative or im- 
 perative. Where a Returning Officer was accident- 
 ally detained until 2 p.m. : see East Simcoe, 1 E. C. 
 291. 
 
 43. Election Clerk : Le Boutillier v. Harper, 1 Q. L. R. 4. 
 
 58. A Returning Officer's duties are both ministerial and 
 judicial. He may refuse the nomination of a candi- 
 date who is undoubtedly not qualified: see as to R. 
 O. 's duties and functions : South Renfrew, H. E. O, 
 705; see also Nipissing, 37 C. L. J. 355. At the 
 nomination a protest was handed to the Returning 
 Officer signed by the defeated candidate and three 
 electors, alleging that the respondent was disquali- 
 fied and claiming the seat. Notice was also posted 
 in some polls. On the evidence the trial Judges 
 refused to award the seat to the defeated candidate, 
 and the Court in appeal would not interfere: S. 
 Renfrew, 1 E. C. 359. A meeting of electors for 
 nomination of candidates is a " meeting assembled 
 for the purpose of promoting the election: North 
 Middlesex, H E. C. 376. Technical objections to 
 form of nomination papers not to defeat manifest 
 purpose of statute : Re Two Mountains, 47 S. C. R. 
 185. 
 
CHAPTER 8. 
 
 19 
 
 70. — (2) Name of candidate printed in wrong division: 
 Ee South Perth, 2 E. C. 47. 
 
 70. — (6) The official number printed on the back of the 
 counterfoil as required by sub-sees. (2) and (6), is 
 not a mark by which the voter can be identified within 
 the meaning of sec. 114 (c), and, where the D. K. 0. 
 omitted to detach the counterfoil, the ballots were 
 properly counted : Ee Stormont, 17 0. L. E. 171. 
 
 74. " Proper voters' list ": see East Durham, 1 E. C. 
 489; Brockville, H. E. C. 129; Port Arthur, 12 0. 
 L. E. 453 at 460, 13 0. L. E. 17, 14 0. L. E. 345. See 
 notes to sec. 19, ante, and sections there referred to. 
 Where irregular voters ' list used in part of electoral 
 division: see Ee Monk, H. E. C. 154; Ee Prince 
 Edward, H. E. C. 160. 
 
 80. List defective in not being true copy : see East Dur- 
 ham, 1 E. C. 489. 
 
 89. — (1) Transfer certificate: on what evidence granted: 
 see Ee Port Arthur, 8 O. W. E., p. 46, at p. 51 : see 
 S. C. 8 0. W. E. 419, 606, 12 0. L. E. 453, 508, 13 O. 
 L. E. 17, 9 O. W. E. 347, 14 0. L. E. 345. An elector 
 engaged by the D. E. 0. to drive voters to the poll 
 is not an " agent " who is entitled to a transfer 
 certificate : Ee Port Arthur, 12 O. L. E. 453. 
 
 The votes of persons voting at a polling place other 
 than that at which they were entitled to vote, with- 
 out a transfer certificate, were improperly received. 
 No one can vote unless his name appears on the list 
 in the poll book, unless under a transfer certificate 
 or by tendered ballot : Ee Port Arthur, 12 0. L. E. 
 453, 13 0. L. E. 17, 14 0. L. E. 345, and see same 
 case as to votes of persons voting on certificates 
 issued in blank and afterwards filled in, and on certi- 
 ficates issued without personal or written request, 
 certificates sent by telegraph and votes of persons 
 voting on certificates from polling sub-divisions 
 where their names did not in fact appear. 
 
 89. — (2) The defendant voted without taking the oath 
 required to be taken by agents voting under certifi- 
 cate ; but as the defendant was not asked to take the 
 
20 
 
 CHAPTER 8. 
 
 oath, the D. R. 0. not being aware that it was neces- 
 sary and the plaintiff himself was present and did 
 not object, the penalty was reduced to $40 under R. S. 
 0. 108: Smith v. Carey, 5 0. L. R. 203: Carey v. 
 Smith, 5 0. L. R. 209. 
 
 95. Who entitled to vote: Re St. Thomas, 2 E? C. 154. 
 A voter properly assessed was accidentally omitted 
 from the list in No. 1 Division where his. property 
 lay, and entered in No. 2 Division. He voted without 
 question in Division No. 1, though not on the list, 
 and his vote was held good : Broekville, H. E. C. 129. 
 The name of a voter being on the poll book is prima 
 facie evidence of his right to vote : Re Stormont, H. 
 E. C. 21. A voter duly qualified in other respects 
 was entered as tenant instead of owner. Held not 
 disfranchised: Stormont, H. E. C. 21. Reside: see 
 Re Seymour, 2 E. C. 69. As to residence : see sec. 19 
 notes, and notes to R. S. 0. 1914, ch. 6, sec. 24. 
 
 98. A ballot properly marked but initialled, not by the 
 D. R. 0., but by the poll clerk, was held good : West 
 Huron, 2 E. C. 58. A D. R. O. put as his initials 
 " H. G." instead of his full initials " H. C. G.," and 
 another used " McN." instead of " W. D. McN." 
 The ballots were properly initialled. The initialling 
 is for identification only, and when there is no sug- 
 gestion that the number of ballots cast is incorrect 
 the ballots should not be rejected even if not in- 
 itialled at all : Re Muskoka, 4 0. L. R. 253. Two bal- 
 lots consecutive in number were supposed to have 
 been handed a voter, sticking together as one, with 
 the D. R. O.'s initials on the lower one, and the voter 
 was supposed to have marked the upper one not 
 initialled. The ballot marked but not initialled was 
 rejected: West Huron, 9 0. L. R. 602. The candi- 
 date's number is not an essential part of the ballot 
 paper ; where the Returning Officer in detaching the 
 ballot did so as to leave the candidates' numbers on 
 the counterfoil, the ballots were not rejected : Prince 
 Edward, 4 0. L. R. 255. Where the D. R. O. errone- 
 ously placed the number of the polling sub-division 
 opposite the voter's name in the poll book, and an- 
 other inserted no number on the counterfoil, the bal- 
 lots were held good : Re Stormont, 12 0. W. R. 518. 
 D. R. 0. 's initials and number : see East Hastings 
 
CHAPTER 8. 21 
 
 (Dom.), H. E. C. 764; Re Russell (2) (Ont.), H. E. C. 
 519 ; South Perth, 2 E. C. 47 ; Re North Grey, 4 0. L. 
 R. 286; West Huron, 9 0. L. R. 602 ; Bothwell, 8 S. C. 
 R. 676; Wentworth, 36 S. C. R. 497; Soulanges, 10 
 S. C. 652; North Victoria, H. E. C. 671; -Queens 
 (P. E. L), 7 S. C. R. 247; Muskoka and Parry Sound, 
 18 C. L. J. 304. Penalty, see sec. 199, notes. 
 
 100. The D. R. O. in polling votes of illiterates asked each 
 of them if he was unahle to " read or write," re- 
 quested him to put his mark to the declaration of 
 illiteracy and then openly marked the ballot as in- 
 structed by the voter in the presence of both candi- 
 dates, their agent and the poll clerk, all of whom 
 had taken the declaration of secrecy. Held that 
 there was substantially no violation of the Act: see 
 remarks of Osier, J.A., and Spragge, C.J.O., Pres- 
 cott, 1 E. C. 88. A voter who could neither read nor 
 write came into a booth and in the presence of the 
 D. R. O. asked for one not present to instruct him 
 how to mark his ballot. The D. R. O. gave the voter 
 a ballot paper, who stated he wished to vote for re- 
 spondent. Respondent's agent then marked the 
 ballot for the voter and handed it to the D. R. O. ; no 
 declaration was made.. Held, no one but D. R. 0. 
 entitled to mark the ballot and that the D. R. O. had 
 violated his obligation to maintain secrecy : Halton, 
 H. E. 0. 283. Irregular marking of illiterates' bal- 
 lots: see Hickson v. Abbott, 25 L. C. J. 289; see 
 Municipal Act, R. S. 0. 1914, ch. 192, sec. 109, notes. 
 
 102. If a ballot is so marked that no one looking at it can 
 have any doubt for which candidate the vote was 
 intended, and if there has been a compliance with 
 the Act according to a fair and reasonable construc- 
 - tion of it, the vote should be allowed: West Elgin 
 (No. 1), 2 E. 0. 38. A ballot paper is properly 
 marked if the voter has so placed his mark as to 
 make it clear for which particular candidate he in- 
 tended to vote, although the mark as placed is out- 
 side the ruled space printed on the paper for its 
 reception. Re Pontardawe Election, 1907, 2 K. B. 
 313. Misplaced marking: West Elgin, 2 E. C. 38 
 South Perth, 2 E. C. 47 ; North Victoria, H. E. C. 671 
 Monk, H. E. C. 725; South Wentworth, H. E. C. 531 
 Re Muskoka, 4 0. L. R. 253 ; Re Lennox, 4 0. L. R. 
 
oo CHAPTER 8. 
 
 378 ; Ee West Huron, 9 0. L. E. 602 ; Queens (P.E.I.), 
 7 S. C. E. 247 ; Haldimand, 15 S. C. E. 495 ; Queens 
 (P.E.I.), 7 S. C. E. 247. Incomplete crosses: West 
 Huron, 2 E. C. 58; North Victoria, H. E. C. 671; 
 Monk, H. E. C. 725 ; Ee Muskoka, 4 O. L. E. 253; Ee 
 West Huron, 9 0. L. E. 602; Queens (P.E.I.) Case, 
 7 S C. E. 247; North Victoria, H. E. C. 671; Ee 
 Prince Edward, 9 0. L. E. 463 ; Queens (P.E.I.), 7 S. 
 C. E. 247; Bothwell, 8 S. C. E. 676. Identification 
 marks : North Victoria, H. E. C. 671 ; Monk, H. E. C. 
 725 ; Ee Lennox, 4 O. L. E. 378 ; White v. MacKenzie, 
 20 L. C. J. 23. Any written word or name upon a 
 ballot presumably written by the voter ought to 
 vitiate the vote as a means by which he can be 
 identified: Ee Lennox, 4 O. L. E. 378. Any mark 
 which contains in itself means of identifying the 
 voter, such as his initials, Or some mark known to 
 be used by him : Monk, H. E. C. 725. Marks in addi- 
 tion to cross: Monk, H. E. C. 725; Ee Muskoka, 4 0. 
 L. E. 253 ; Ee Lennox, 4 0. L. E. 378 ; Be West Huron, 
 9 0. L. E. 602; Ee Prince Edward, 9 0. L. E. 463; 
 Queens (P.E.I.), 7 S. C. E. 247; Bothwell, 8 S. C. E. 
 676 ; North Victoria, H. E. C. 671. Marks other than 
 crosses: North Victoria, H. E. C. 671; South Went- 
 worth, H. E. C. 531 ; Monk, H. E. C. 725 ; Ee Lennox, 
 4 0. L. E. 378; Ee North Grey, 4 0. L. E. 286; Went- 
 worth, 36 S. C. E. 497. Inadvertent marks: Monk, 
 H. E. C. 725 ; Ee Muskoka, 4 0. L. E. 253 ; Ee Lennox, 
 4 O. L. E. 378; West Huron, 2 E. C. 58; Ee North 
 Grey, 4 0. L. E. 286; West Huron, 9 O. L. E. 602. 
 Words, etc., written on the ballot paper: West 
 Huron, 2 E. C. 58; Ee Lennox, 4 0. L. E. 378; Ee 
 West Huron, 9 0. L. E. 602 ; North Victoria, H. E. C. 
 671. Undetached counterfoil is not an identification 
 mark: Ee Stormont, 17 O. L. E. 171. Cross not 
 made with black lead pencil: Monk, H. E. C. 725. 
 Where D. E. 0. omitted to detach counterfoil the 
 ballots were counted: Ee Stormont, 12 0. W. E. 518; 
 17 0. L. E. 171; and see Ee London, 4 0. W. E. 402; 
 Ee North Simcoe, 41 C. L. J. 29. For summary of 
 law relating to counting ballots, see Biggar, Muni- 
 cipal Manual, p. 193. 
 
 104. Names of persons were entered as " freeholders " 
 on the assessment and by mistake, on the voters' 
 
CHAPTER 8. 23 
 
 lists as " farmers' sons." Their votes were chal- 
 lenged and they refused to take the oath as farmers' 
 sons. Subsequently they offered to take the oath as 
 owners and were allowed to vote by the D. R. 0. who 
 knew them. It was held that having been rightly en- 
 tered on the assessment roll the mistake in the 
 voters ' list did not disfranchise them. Their refusal 
 was not a refusal to take the oath required by law, 
 which means the oath appropriate to the voter's 
 description; and their Votes stood: Prescott, H. E. 
 
 C. 780. 
 
 109. " Conveniently " means " conveniently for the 
 voter and for his wish, purpose, and intention in 
 voting": Hastings v. Summerfeldt, 30 O. R. 577. 
 A voter inadvertently marked his ballot for the can- 
 didate against whom he intended to vote. The J). R. 
 0., to whom it was handed unfolded, exposed it, and, 
 contending it was not spoiled, placed it in the ballot 
 box. The D. R. 0. was held guilty of breach of duty 
 which entitled the plaintiff to judgment for penalty : 
 Hastings v. Summerfeldt, 30 O. R. 577. A voter who 
 had inadvertently torn his ballot and whose ballot 
 was rejected in counting was allowed his vote, the 
 evidence being that no trick was intended for the 
 purpose of showing how he intended to vote : South 
 Wentworth, H. E. C. 531. 
 
 113. Votes cast at a particular poll are not made invalid 
 or void in case the D. R. 0. fails to observe the re- 
 quirements of the Act at the close of the poll. When 
 the D. R. 0. omits a statement of the votes cast, but 
 the Returning Officer has no difficulty in ascertaining 
 the facts, the votes ought to be counted : Re Prince 
 Edward, 9 0. L. R. 463. 
 
 114. The official number on the counterfoil and which the 
 
 D. R. 0. neglected to detach was held not to be a 
 mark by which the voter could be identified : (see sec. 
 70, note) ; Re Stormont, 17 0. L. R. 171, 12 0. W. 
 R. 518; Re. Wentworth, 9 0. L. R. 201, 5 0. W. R. 
 282, 26 S. C. R. 497, and see notes to sec. 102. 
 
 122. The R. 0. cannot reject the votes cast for one candi- 
 date on account of that candidate 's defective nomina- 
 tion : Ex parte Baird, 29 N. B. 162. 
 
24. CHAPTER 8. 
 
 130. A County Court Judge is not confined on a recount 
 to the consideration of cases in which an objection 
 was made before the D. R. 0. when counting votes at 
 the close of the poll: (see sec. 115) ; Re Lennox, 4 0. 
 L. R. 378; but see Queens (P.E.I.) , 7 S.-O.-B. 247. 
 A Deputy County Court Judge, in case of illness of 
 the County Judge, has jurisdiction to hold a recount: 
 Re Prince Edward, 9 0. L. R. 463 ; and see Re North 
 Grey, 4 0. L. R. 286. Injunction to restrain recount : 
 see McLeod v. Noble, 28 0. R. 528, 24 A. R. 459. 
 Mandamus to compel recount : Centre "Wellington, 44 
 U. C. R. 132. Recount is a ministerial proceeding: 
 Meigs v. Comeau, Q. R. 10, Q. B. 56, 3 Que. P. R. 307. 
 Where recount to take place: see Meigs v. Comeau 
 (supra). Proceedings on recount and appeal under 
 sec. 144: see Re Stormont, 12 0. W. R. 518, 17 0. L. 
 R. 17. " Scrutiny of the votes polled:" Re West 
 Lome Scrutiny, 26 0- L. R. 339, 47 S. C. R. 451. 
 History of " Scrutiny:" Re McGrath and Durham, 
 17 0. L. R. 514; and see Re Mitchell and Campbell- 
 ford, 16 0. L. R. 578, 11 0. W. R. 941; Re Port Ar- 
 thur, 14 0. L. R. 345. " Recount " and " Scrutiny," 
 what is meant by these terms: see Re Saltfleet, 9 
 "W. R. 545, 16 0. L. R. 293 ; and see notes to R. S. 0. 
 1914, ch. 6, sec. 24. 
 
 144. Notice of appeal from the decision of a Judge upon 
 a recount need not be signed by the candidate him- 
 self, but may be signed by his solicitor or agent. 
 Where both candidates appear and the result of tie 
 first appeal is to give the opponent a majority, the 
 opponent's appeal will be heard even though the 
 only result will be to increase the majority. Neither 
 appeal being limited to particular ballots, it was open 
 to the candidate whose appeal was first heard to 
 object, when his opponent's appeal was being heard, 
 to certain ballots not previously objected to: Re 
 North Grey, 4 0. L. R. 286. 
 
 160. Secrecy of the ballot is a rule of public policy and 
 cannot be waived: Haldimand, 1 E„ C. 529; Went- 
 worth, 36 S. C. R. 497; see Municipal Act, R. S. 0. 
 1914, ch. 192, sec. 131, notes. 
 
 164. Obligation of D. R. 0. to maintain secrecy: see Re 
 Halton, H. E. C. 283, note to sec. 100. 
 
CHAPTER 8. 25 
 
 166. A voter may disclose the name of the person for 
 whom he voted : North Victoria, H. E. C. 671 ; see as 
 to ballot stuffing prosecutions: E. v. Saunders, 11 
 Man. 550. 
 
 167. American citizens having intervened in provincial 
 elections and committed corrupt acts, their foreign 
 nationality or residence did not exempt them from 
 the penal consequences of violation of this Act : Re 
 Sault Ste Marie, 10 0. L. E. 356; and see E. S. 0. 
 1914, ch. 10, sec. 76, note. A statement that a certain 
 offer was made in jest should be received with great 
 suspicion: North Middlesex, H. E. C. 376. Payment 
 of a debt to silence hostile criticism not bribery: 
 North Ontario, H. E. C. 785. Payment of debt: in 
 these cases it is always open to enquire if it was paid 
 in accordance with legal obligation: North Ontario, 
 H. E. C. 304. Where charitable donations are given 
 generally and not with a view to influence an indi- 
 vidual voter, they will not vitiate an election : South 
 Ontario, H. E. C. 751. Settling an account in regard 
 to which liability had previously been denied ; elec- 
 tion not referred to at the time; held not bribery: 
 South Ontario, H. E. C. 751. Not bribery to give 
 money to the widowed sister of the voter, an old 
 friend in reduced circumstances, the evidence show- 
 ing that the payment was not connected with the 
 election and that it was not the first : North Victoria, 
 H. E. C. 252. 
 
 167. — (la) The effect of the amendment by which per- 
 sons committing various forms of bribery enumer- 
 ated become on conviction liable to a fine of $200, 
 and imprisonment, is to take the penalties imposed 
 by this seetion out of the category of those recover- 
 able by action under sec. 200: Asseltine v. Shibley, 
 9 O. L. E. 327; Carey v. Smith, 5 O. L. E. 209. 
 " Corruptly " does not mean "wickedly " or " im- 
 morally " or " dishonestly;" but doing what the 
 legislature plainly meant to forbid; as an act done 
 by a man knowing that he is doing what is wrong 
 and doing it with an evil object : Halton, H. E. C. 736. 
 A grossly inadequate price paid for an article is 
 bribery: Cornwall, H. E. C. 547. Acts of colorable 
 charity: Cornwall, H. E. C. 547. Giving goods to 
 elector 's wife — immaterial whether the elector voted : 
 
26 
 
 CHAPTER 8. 
 
 Muskoka and Parry Sound, 1 E. C. 197. Surrender 
 of right to cut down timber is a ' '. valuable considera- 
 tion ' ' within the meaning of the bribery clauses : 
 North Victoria, H. E. C. 252. 
 
 167. — (16) A candidate's appeal to his business and the 
 employment of his capital, if honestly made, is not 
 prohibited: West Peterboro v H. E. C. 274. The 
 respondent stated that he considered it was the con- 
 stitutional practice for the ministry to dispense 
 patronage on the recommendation of the person 
 contesting the constituency on their side, and that he 
 would have this patronage whether elected or not; 
 held that such words did not offer any place, or em- 
 ployment, or a promise thereof to any voter, &c, and 
 that the respondent was not guilty of undue influ- 
 ence, either by Statute or Common Law: Muskoka, 
 H. E. C. 458. Promise to work for a voter made 
 without reference to election, not bribery: Halton, 
 H. E. C. 736. 
 
 167. — (le) Distribution of a large sum amongst agents 
 and sub-agents : Niagara, H. E. C. 568 ; West Toronto, 
 H. E. C. 97; see note to sec. 167 (2). 
 
 167. — '(2) Bona fide employment and payment of a voter 
 to canvass voters belonging to a particular religious 
 denomination, or the same trade, or who only under- 
 stand French or Celtic, is not illegal : West Toronto 
 H. E. C. 97. "A little money for knocking around, 
 going about to solicit votes," may be open to un- 
 favorable construction: West Toronto, H. E. C. 97. 
 The respondent and another employed a lawyer and 
 professional public speaker to address meetings in 
 the respondent's interest and promised to pay his 
 travelling expenses if it were legal to do so; not 
 bribery: North Ontario, 4 S. C. E. 430, H. E. C. 785. 
 Personal expenses of candidate; payment of can- 
 vassers; refreshments; treating: East Toronto, H. 
 E. C. 70. 
 
 168. A charge of treating a meeting failed where the 
 evidence showed that the meeting had come to an 
 end before anything was said about treating. Nor 
 did the evidence support a charge of corrupt treat- 
 ing of individuals in order to be elected, as the agent 
 
CHAPTER 8. 27 
 
 was a customer of the factory and followed a previ- 
 ous habit of treating the men: East Middlesex, 5 
 0. L. R. 644. Furnishing liquor to meetings and 
 what is a meeting : see East Middlesex, 1 E. C. 250 ; 
 Muskoka and Parry Sound, 1 E. C. 197. Association 
 meeting: North Ontario, IE. C. 1. Treating at 
 meetings : Glengarry, H. E. C. 8 ; North Middlesex, 
 H. E. C. 376; North Ontario, H. E. C. 304. " Meet- 
 ing of electors:" see East Middlesex, 1 E. C. 250; 
 North Grey, H. E. C. 362. 
 
 169. Treating on nomination day a corrupt practice: 
 Dundas, H. E. C. 205; see also, Re East Middlesex, 
 5 O. L. R. 644. The nature of a treat in the bar 
 room of a country tavern raises the presumption that 
 the treat was of spirituous liquors, and when made 
 by an agent on polling day was a corrupt practice: 
 North Victoria, H. E. C. 252. Treating to quiet a 
 meeting of partizans on both sides, who were becom- 
 ing disorderly, not a corrupt practice: North On- 
 tario, H. E. C. 304. Treating the D. R. O. and poll 
 clerk by the scrutineer, not a corrupt practice : North 
 Ontario, H. E. C. 785. Treating generally, exten- 
 sively or miscellaneously, is only prima facie a cor- 
 rupt practice. If it be shown that it was not in fact 
 done corruptly in order to be elected, or for being 
 elected, or for the purpose of corruptly influencing 
 votes, it is no offence any more than it was before 
 the enactment of sub-sec. 2. There may still be in- 
 nocent treating. An antecedent habit of treating 
 must still help among other things to rebut the infer- 
 ence of corrupt intent: East Middlesex, 5 0. L. R. 
 644. The action for penalty under sec. 200 is main- 
 tainable for the penalties imposed by sections 169, 
 171, 172, 174, 177 : Asseltine v. Shibley, 9 0. L. R. 327. 
 The respondent was a physician and horse fancier, 
 and was in the constant habit of treating, although 
 an abstainer himself. He continued the habit after 
 nomination. No corrupt intent was shown: East 
 Middlesex, 5 0. L. R. 644. Treating by a candidate : 
 London, H. E. C. 214. Treating on nomination day : 
 North Middlesex, H. E. C. 376. Treating a meeting; 
 treating and bribery distinguished : North Waterloo, 
 2 E. C. 76. A number of voters met at a voter's 
 house to go over the lists and have a card-party. 
 Refreshments were supplied by the host, but the 
 
2g CHAPTER 8. 
 
 beer, according to German custom, that of the local- 
 ity, was paid for by subscription; not a corrupt 
 practice : South Perth, 2 E. C. 144. Treating is not 
 per se a corrupt act, except when made so by Statute, 
 but the intent may make it so, e.g., when it is done by 
 the candidate in order to make for himself a reputa- 
 tion of good-fellowship and hospitality, and thereby 
 to influence the electors to vote for him : North Mid- 
 dlesex, H. E. C. 376 ; see also, North York, H. E. C. 
 62; South Grey, H. E. C. 52; North Ontario, 1 E. C. 
 1 ; Dundas, H. E. C. 205 ; Glengarry, H. E. C. 8 ; North 
 Middlesex, H. E. C. 376; W. Northumberland, 10 
 S. C. E. 635. Corrupt treating ; corrupt practice by 
 tavern keeper as sub-agent : Welland, H. E. C. 187. 
 Candidate treating with corrupt intent; treating in 
 a private house : London, H. E. C. 214 ; North On- 
 tario, H. E. C. 785. Free dinners : North Victoria, 
 H. E. C. 671. Excessive treating and common cus- 
 tom: East Elgin, H. E. C. 769. Eef reshments : East 
 Toronto, H. E. C. 70; Sault Ste. Marie, 10 0. L. E. 
 '356; Dig. Ont. Case Law, cols. 4963-4974. From the 
 time of his nomination the candidate frequently 
 treated electors and others. He did not ordinarily 
 frequent bar-rooms or treat. The inference was that 
 the treating was done with corrupt intent: West 
 Wellington, H. E. C. 16; see East Middlesex, 5 O. L. 
 E. 644. Treating and participation therein as a 
 cause of disqualification : see North Middlesex, H. E. 
 C. 376; Muskoka, H. E. C. 458, and cases collected; 
 Dig. Ont. Case Law, col. 4985. 
 
 170. Where the effect of bets made by the respondent's 
 agents was that, to win, the voters must vote for the 
 respondent, the bets were corrupt practices : Lincoln, 
 H. E. C. 489. Money given to make bets without 
 previous understanding : South Norfolk, H. E. C. 660. 
 Bet amounting to colorable bribery : West Northum- 
 berland, 10 S. C. E. 635. Providing money: East 
 Elgin, 2 E. C. 100; see Trebilcock v. Walsh, 21 A. E. 
 55, and Walsh v. Trebilcock, 23 S. C. E. 695. 
 
 171. Giving money to vote to pay for horse hire after 
 election: Halton, H. E. C. 736. Hiring cabs: West 
 Toronto, H. E. C. 97. Hiring cabs and conveyances : 
 East Toronto (Dom.), 10 C. L. J. 248. Cabs and 
 carriages for committee men : West Toronto, H. E. C. 
 
CHAPTER 8. 29 
 
 97. Where a committee man's cab was used to con- 
 vey voters without respondent's consent and not 
 eolorably hired for the purpose, not a corrupt prac- 
 tice : West Toronto, H. E. C. 97. What amounts to 
 hiring: North Victoria, H. E. C. 252. Money given 
 to hire a team to go canvassing, not a corrupt prac- 
 tice: North Victoria, H. E. C. 612. Where agent's 
 authority has ceased before payment made and hir- 
 ing was not corruptly to influence voter, not a cor- 
 rupt practice : Halton, H. E. C. 736. Where one who 
 had attended private meetings, held on behalf of the 
 respondent, hired a conveyance, held a corrupt prac- 
 tice: North Ontario, H. E. C. 785. Qualification of 
 persons conveyed is immaterial : Muskoka and Parry 
 Sound, 1 E. C. 197. Where an agent, partner of 
 livery stable keeper, took out carriages and paid his 
 partner half hire, held corrupt practice : West Mid- 
 dlesex, 1 E. C. 465; see Cornwall,' 10 C. L. J. 313; 
 Selkirk, 4 S. C. E. 494; Levis, 11 S. C. E. 133. Trans- 
 portation by public steamboat did not come within 
 the former words of the section : Sault Ste. Marie, 10 
 0. L. E. 356. Hiring a vehicle to convey a voter to 
 the poll by a person who attended meetings of the 
 respondent's friends to promote his election; cor- 
 rupt practice : North Ontario, H. E. C. 785. Payment 
 of voter's expenses: South Grey, H. E. C. 52. 
 
 173. The Government would look sharply after those in 
 arrears for their land who did not vote for the Gov- 
 ernment ; held an expression of opinion only : North 
 Ontario, 1 E. C. 304. Where a company's manager 
 intimated that acting as scrutineer for the other 
 side was not satisfactory to the company, but no 
 threat was made, no intimidation was shown: see 
 East Simcoe, 1 E. C. 291; see also Halton, H. E. C. 
 283; Soulanges, 10 S. C. E. 652; Muskoka, H. E. C. 
 458 ; Welland, H. E. C. 187. A candidate's appeal to 
 his business or to employment of his capital in pro- 
 moting the prosperity of his constituency, not undue 
 influence : West Peterboro, H. E. C. 274. Offer by 
 agent to look after voter : see Halton, H. E. C. 283. 
 Patronage; statement by candidate that patronage 
 by contitutional usage remained in hands of Govern- 
 ment candidate even if defeated was not undue in- 
 fluence either by Statute or Common Law. To sus- 
 ' tain such a charge it would be necessary to prove 
 
3Q CHAPTER 8. 
 
 i 
 
 intimidation so general and extensive that freedom 
 of election had ceased in consequence : Muskoka, H. 
 E. C. 458. Impropriety of Division Court bailiffs 
 canvassing: North Victoria, H. E. C. 612. Leaving 
 a voter on island without boat, held undue influence : 
 North Ontario, H. E. C. 785. Clerical influence may- 
 amount to undue influence : Charlevoix, 1 S. C. B. 145. 
 
 174. A mandamus to a police magistrate properly pro- 
 ceeding to convict for personation was refused. The 
 D. R. 0. had no status to apply and (per Britton, J.), 
 a mandamus could not be granted for the purpose; 
 Rex v. Case, 6 0. L. R. 104. See Smith v. Carey, 5 
 0. L. R. 203, note to sec. 177 ; see Rex v. Coulter, 6 
 0. L. R. 114. 
 
 177. Conviction justified under this section, although evi- 
 dence showed that the defendant 's offence consisted 
 in inducing R., who was himself a voter but had no 
 vote at the polling place mentioned, to impersonate 
 a voter at such polling place : Rex v. Coulter, 6 0. L. 
 R. 114. Meaning of expression ' ' voting knowing he 
 had no right to vote :" see Smith v. Carey, 5 0. L. R. 
 203. Where the defendant removed out of the city 
 and applied for and obtained registration as a city 
 voter, not knowing that his name was on the township 
 voters' list. Afterwards acting as scrutineer he 
 voted on a certificate, no oath being tendered, and 
 not being aware that a non-resident could not vote, 
 he was held not liable under this section: Smith v. 
 Carey, 5 0. L. R. 203. Actual knowledge on the part 
 of a voter that he has no right to vote is necessary 
 to constitute a corrupt practice: Re Perth S. R., 
 2 E. C. 30. Under the section, not merely the voter's 
 knowledge of the facts upon the legal construction 
 of which the right depends must be proved, but mala 
 mens on the part of the voter: East Elgin, 2 E. C. 
 100. 
 
 179. The Common Law of England relating to Parlia- 
 mentary elections is in force in Ontario. In Par- 
 liamentary elections the principal is liable for all 
 acts of his agent, even such as are expressly contrary 
 to instructions. Mere canvassing does not prove 
 agency, but tends to prove it. Repeated acts may 
 amount to conclusive proof of agency. Where a 
 
CHAPTER 8. 31 
 
 meeting assembles and has the sanction of the candi- 
 date, he is responsible for its acts and the acts of its 
 agents, but where the meeting is large, this only 
 extends to the committee and individual canvassers : 
 Cornwall, H. E. C. 547 ; see also Joliette, 12 L. N. B., 
 Chambly, 19 L. C. J. 185, 332; Lisgar, 14 Man. 310. 
 It seems no limit can be placed to the number of 
 parties through whom sub-agency may extend : Nia- 
 gara, H. E. C. 568. When the candidate accepted 
 the nomination of the convention of the party, he in- 
 timated that he looked to the active exertions of 
 those present in carrying on the contest. This con- 
 stituted authorization to those present to carry on 
 canvass, and thus, agency for the authority to can- 
 vass covers agency. Even without express authoriza- 
 tion the agency of those attending the convention is 
 established in the absence of any repudiation or re- 
 jection of the offer of services which is implied from 
 the fact of attending and making the nomination. 
 Agency in election matters differs from agency in 
 other matters, inasmuch as the agent, constituted by 
 whatever acts are sufficient for the purpose, may 
 bind his principal by acts which are outside the scope 
 of his express authority, but may be directly con- 
 trary to his principal's express directions : Muskoka 
 and Parry Sound, 1 E. C. 197. Where the candidate 
 went to considerable trouble to prevent corrupt prac- 
 tices and carefully explained the law to his election 
 committee and expressed the desire to have it obeyed, 
 although the acts done created doubt and hesitation, 
 the Judge upheld the election, affirming that he 
 should be satisfied beyond all reasonable doubt: 
 West Toronto, H. E. C. 97. Agents and sub-agents : 
 West Toronto, H. E. C. 97. The law of election 
 agency is not capable of precise definition, but is a 
 shifting, elastic law capable of being moulded from 
 time to time to meet the inventions of those who in 
 election matters seek to get rid of the consequences 
 of their acts : North Ontario, H. E. C. 785. Agency 
 of Provincial Government : see West Huron, 1 0. E. 
 433. Agent with powers expressly limited : Berthier, 
 9 S. C. R. 102. Membership of committees of candi- 
 date: E. Northumberland, H. E. C. 577; Lisgar, 14 
 Man. 310; N. Ontario, H. E. C. 785. Agents ap- 
 pointed by candidate's committee : Cornwall, H. E. C. 
 547. Political affiliation, activity at elections and 
 
32 CHAPTER 8. 
 
 recognition as supporter as proof of agency: Haldi- 
 mand, 17 S. C. R. 170, 1 E. C. 572. Membership in 
 political association: West Prince, 27 S. C. E. 241. 
 Volunteer worker: Cornwall, H. E. C. 803; Haldi- 
 mand, 1 E. C. 529; S. Norfolk, H. E. C. 660. Dele- 
 gates to a political convention who never meet the 
 candidate and never canvass on his behalf cannot be 
 considered his agents : Welland, H. E. C. 187. Re- 
 sponsibility of agents and sub-agents: South Grey, 
 H. E. C. 52; Charlevoix, 5 S. C. R. 133; Niagara, H. 
 E. C. 568 ; Cornwall, H. E. C. 547 ; Hickson v. Abbott, 
 25 L. C. J. 290. Evidence of admissions made by an 
 agent after his agency has expired is inadmissible: 
 West Peterboro, H. E. C. 274. - Acts of agency and 
 decisions thereon discussed : North Ontario, H. E. C. 
 304. 
 
 180. Each charge is a separate indictment, and the re- 
 spondent cannot be placed in a worse position, be- 
 cause a number of charges are advanced in each of 
 which the Judge arrives at a similar conclusion: 
 Muskoka, H. E. C. 458. A number of separate 
 charges of corrupt practices against an agent, each 
 on the oath of separate witnesses not corroborating 
 one another. The agent contradicted each. Held, 
 the more frequently a witness is contradicted by 
 others, although each single witness contradicts him 
 on a single point, the more is confidence in him 
 shaken until by a number of contradicting witnesses 
 he may be disbelieved : North Renfrew, H. E. C. 710. 
 The respondent was charged with being implicated 
 in bribery with one of his agents. The evidence, was 
 conflicting. Before an election Judge finds a respon- 
 dent guilt of a corrupt practice involving a personal 
 liability he ought to be free from reasonable doubt: 
 Centre Wellington, H. E. C. 579. Recriminatory 
 charges are permitted in the interests of the electors 
 to prevent a successful petitioner from gaining a 
 seat if he has violated the Election Law: North 
 Victoria, H. E. C. 252. In penal statutes questions of 
 doubt are construed favourably to the accused, and 
 where the Court of first instance in a quasi criminal 
 trial has acquitted the respondent, the appellate 
 Court will not reverse the finding: North Ontario, 
 H. E. C. 305. The extent of the influence of corrupt 
 acts is to be measured with regard to the influence 
 
CHAPTER 8. 33 
 
 and opportunities of the person committing them 
 (per Cameron, J.) : East Simcoe, 1 E. C. 291. Where 
 only one trivial act was proved against an agent, but 
 such agent had been taken with the respondent on 
 his canvass and there were circumstances which 
 should have aroused the respondent's suspicion, who 
 should have warned him, the election was avoided: 
 West Prince, 27 S. C. R. 241.' A scheme was entered 
 into for violating the secrecy of the ballot, and two 
 clear acts of bribery were proved. Election was 
 avoided: East Northumberland, 1 E. C. 434. Pay- 
 ment of travelling expenses of one Voter by an agent 
 was proved, and two acts of bribery and one of 
 giving liquor by persons not proved agents. The 
 election was not set aside: Welland, 1 E. C. 383. 
 Prima facie corrupt acts void an election and the 
 onus of proof that they were not sufficient to affect 
 the majority rests upon the respondent : West Hast- 
 ings, H. E. C. 539. Disagreement of trial Judges on 
 charges of corruption: Re Lennox, 6 O. L. R. 203. 
 The power of saving an election should be exercised 
 cautiously, a fortiori by an appellate Court where the 
 rota judges have not deemed the case a proper one 
 to apply the principle: West Simcoe, 1 E. C. 128. 
 Corrupt practice of trivial, unimportant and limited 
 character: see East Simcoe, 1 E. C. 291; East Mid- 
 dlesex, 1 E. C. 250; Prescott, 1 E. C. 88; Lincoln, 
 H. E. C. 489 ; West Hastings, H. E. C. 539. Trifling 
 acts of bribery by active and important agents, espe- 
 cially where paid out of election fund, will void elec- 
 tion: North Waterloo, 2 E. C. 76; see also East 
 Elgin, 2 E. C. 100. Unimportant acts: see sec. 4, 
 notes. 
 
 182. Where accounts and records of election are inten- 
 tionally destroyed by respondent's agent, every pre- 
 sumption will be made against the legality of the 
 acts concealed by such conduct : South Grey, H. E. C. 
 52. The respondent gave $700 to an agent for elec- 
 tion purposes and did not supervise its expenditure. 
 This did not make him a party to every illegal appli- 
 cation, but an argument of a corrupt purpose was 
 reasonable: South Grey, H. E. C. 52; see also East 
 Toronto, H. E. C. 70. Wilful intentional ignorance 
 on the part of the candidate is, it seems, the same as 
 
 S.A.— 3 
 
34 CHAPTER 8. 
 
 actual knowledge : see London, 24 C. P. 434, H. E. C. 
 560; Lincoln, H. E. C. 391. But where corrupt 
 acts were committed by agents without candi- 
 date's knowledge or consent, he was not dis- 
 qualified : Cornwall, H. E. C. 647. Evidence to dis- 
 qualify should be such as would justify conviction 
 on an indictment: Ryan v. Devlin, 20 L. C. J. 77; 
 Lisgar, 13 Man. 478"; St. James, 33 S. C. R. 137; Cen- 
 tre Wellington, H. E. C. 579. Section applies equally 
 to the elected and defeated candidates if found as- 
 senting parties to corrupt practices: North Went- 
 worth, H. E. C. 343. Before subjecting candidate to 
 disqualification, the Judge should be assured be- 
 yond all possibility of mistake. If there is an honest 
 conflict of testimony or the acts are capable of two 
 interpretations, one innocent and one culpable, the 
 Judge should only adopt the culpable after most 
 careful consideration : Welland, H. E. C. 187 ; Centre 
 Wellington, H. E. C. 579; Kingston, H. E. C. 625. 
 When a corrupt practice is proved the onus is shifted 
 to the respondent to bring himself within the saving 
 clause: Muskoka and Parry Sound, 1 E. C. 197. 
 
 183. Persons reported for corrupt practices: Cornwall, 
 H. E. C. 647. 
 
 184. There is no appeal from the decision of trial Judges 
 finding that a candidate or other person has not been 
 guilty of corrupt practices: Re South Oxford, 6 0. 
 L. R. 232. Court of Appeal ; jurisdiction : see Judi- 
 cature Act, R. S. 0. 1914, ch. 56, sec. 26 (2) (&). 
 
 185. Payment of illegal accounts after judgment avoid- 
 ing election to influence voters at new election will 
 disqualify candidate : Owens v. Cushing, 20 L. C. J. 
 86 ; Benoit v. Jodoin, 19 L. C. J. 185, 332. New elec- 
 tion ; former law : see Cornwall, H. E. C. 647. 
 
 192. Corrupt acts by foreign citizens who leave Canada 
 immediately: see Re Sault Ste. Marie, 10 O. L. R. 
 356. Evidence on charge of corrupt practices; in- 
 demnification of defendant against penal results of 
 his own disclosures: see Re Sault Ste. Marie, 10 
 O. L. R. 85 ; see also R. v. Walsh, 39 C. L. J. 366, 
 5 0. L. R. 527 ; R. v. Case, 6. 0. L. R. 104. 
 
CHAPTER 9. 35 
 
 193. Destruction of accounts and vouchers: see sec. 182 > 
 204, notes. 
 
 199. A returning officer refuses at his peril to give a 
 ballot paper to a person on the voters' list claiming 
 the right to vote and willing to take the prescribed 
 oath. The officer's refusal is a wilful act, and ren- 
 ders him liable to the statutory penalty without 
 proof of malice or negligence: Wilson v. Manes, 26 
 A. E. 398. But see Johnson v. Allen, 26 0. E. 550. 
 
 200. The sum declared by sec. 12 to be forfeited is a 
 penalty within the meaning of this section: Srigley 
 v. Taylor, 4 O. E. 396, 6 0. E. 108. Imprisonment 
 cannot be adjudged under sec. 200 which intends 
 a proceeding by action to recover money: Asseltine 
 v. Shibley, 9 O. L. E. 327; Carey v. Smith, 5 O. L. 
 E. 209. Penalty or common law action : see Eose v. 
 Croden, 3 O. L. E. 383. Meaning and extent of limi- 
 tation in sub-sec. (c) : Halton, 2 E. C. 158. And see 
 also as to penalties : Ee Cross, 2 E. C. 158, 4 Can. 
 C. C. 173. 
 
 204. Where accounts are destroyed by agent, every pre- 
 sumption will be made against the acts concealed: 
 South G-rey, H. E. C. 52. Money was given by 
 friends of the candidate to different persons who 
 kept no accounts or vouchers. Bribery was not in- 
 ferred against the candidate who neither knew nor 
 desired this state of things. Eemarks on keeping 
 vouchers: East Toronto, H. E. C. 70; and see also 
 W. Huron, 37 C. L. J. 350 ; Levis, 11 S. C. E. 133. 
 
 207. Election expenses and statement: see Bellechasse, 
 6 Q. L. E. 100, 5 S. C. E. 91; Lisgar, 13 Man. 478; 
 Benoit v. Jodoin, 19 L. C. J. 185, 332 ; Terriault v. 
 Ducharme, 25 L. C. J. 320. 
 
 CHAPTEE 9. 
 
 Punishment foe Pebsonation. 
 
 Summary trial under this Act : functions of Magis- 
 trate and D. E. O. considered: Ee Denison; E- v. 
 Case, 6 O. L. E. 104, and note to E. S. O. 1914, ch. 
 8, sec. 174. 
 
36 
 
 CHAPTER 10. 
 
 CHAPTER 10. 
 
 Controverted Elections. 
 
 Refer to: Holmested, Dominion Election Rules; 
 Hodgins, Franchises ; Ermatinger, Franchise and 
 Election Laws; McPherson, Elections in Canada. 
 Rules under Dominion Act printed in 17 0. L. R., pp. 
 675-686. 
 
 2.— (e) Court: see R. S. 0. 1914, ch. 56, sec. 26 (2) (c). 
 
 5. The rules of Court, 14th Dec, 1908, under the Do- 
 minion Controverted Elections Act, R. S. C. 1906, 
 ch. 7, and forms thereunder, which are printed as 
 appendix to 17 O. L. R., at pp. 675-686, and the rules 
 respecting the Trial of Election Petitions (Ontario), 
 23rd December, 1903, are unrepealed by the Rules 
 of 1913 of the Supreme Court: see 1913 Rules, 
 schedule p. 144. The word " particulars " in Rule 
 24 means particulars of votes intended to be ob- 
 jected to (see Rule 20), and is not confined to fur- 
 ther details of particulars already given. Where 
 for the purpose of a scrutiny the respondent had 
 filed and served particulars of votes objected to by 
 him, and the scrutiny had been begun, but not com- 
 pleted, he was allowed (on terms) to add new par- 
 ticulars of other votes objected to : Re Port Arthur, 
 12 O. L. R. 453, 508; North Grey, 6 O. L. R. 673: 
 see remarks of Osier, J.A., at p. 683, on rules and 
 as to overcoming technical objections. The solicitor 
 by whom the petition and affidavit are prepared, and 
 by whom, as agent for the petitioner's solicitors, the 
 petition is presented, is not disqualified from acting 
 as commissioner to take the affidavit of bona fides, 
 etc. : Re Lennox, 4 O. L. R. 647. Rules as to appeals : 
 see sec. 61 notes. 
 
 7. The return of a member by the Returning Officer is 
 only made when it has been duly received by the 
 Clerk of the Crown in Chancery, not when the Re- 
 turning Officer has placed it in the express or post 
 office for transmission to such clerk. It is not essen- 
 tial that a notice of presentation of petition should 
 
CHAPTER 10. 37 
 
 be served where such notice is endorsed on the 
 petition: Ottawa, 2 E. C. 64; West Toronto, 31 U. 
 C. E. 409. 
 
 Within a few days after presentation of an election 
 petition signed in a solicitor's presence with affida- 
 vits sworn before another solicitor, and after a re- 
 tainer to the first solicitor, two of the petitioners 
 contradicted their former affidavits, one petitioner 
 saying that he was intoxicated, the other that he 
 could not read and was induced to sign. These latter 
 facts were not corroborated and were contradicted 
 by the parties interested and were held not suffi- 
 cient to support an application made by the respon- 
 dent to set aside the petition: Re North Eenfrew, 7 
 0. L. E. 204, 8 0. L. R. 359. Except where there 
 are recriminatory charges against the unsuccessful 
 candidate or for the purpose of declaring the peti- 
 tioner's vote void on a scrutiny, the conduct of a 
 petitioner at an election cannot be enquired into, 
 and in this there is.no difference between a voter 
 petitioner and a candidate petitioner: Ee Dufferin, 
 H. E. C. 529, 4 A. E. 420. An objection to the status 
 of a petitioner cannot be taken by preliminary ob- 
 jection, and even were the petitioner guilty of cor- 
 rupt practices at the election complained of, he 
 would not lose his status as petitioner : Ee Dufferin, 
 H. E. C. 529, 4 A. E. 430; Ee Cornwall, H. E. C. 
 803 ; North Simcoe, H. E. C. 617. It is not a cham- 
 pertous transaction that an association agreed to 
 pay the costs of the petition. Even if it were, it 
 would not suffice to stay proceedings. A charge 
 that the petition was not signed bona fide, but the 
 petitioner's name was used mala fide by other per- 
 sons, cannot be raised by preliminary objection: 
 North Simcoe, H. E. C. 617. A candidate may be 
 a petitioner, although his property qualification be 
 defective. If he claims the seat his want of qualifica- 
 tion may be urged against his being seated, but he 
 may shew that the respondent'was not duly elected : 
 North Victoria, H. E. C. 584. Charge that candidate 
 petitioner was guilty of corrupt practices : Prince 
 Edward, H. E. C. 45; and see Ont. Dig. Case Law, 
 5011-5021. Petitioner an alien: see Prescott, H. E. 
 C. 1. The voters' list has now been supplanted by 
 the last revised assessment roll as evidence of a 
 petitioner's status: North Simcoe, H. E. C. 617. 
 
38 
 
 CHAPTER 10. 
 
 9. There is no authority for making an agent of the can- 
 didate a respondent on a charge of personal mis- 
 conduct: South Oxford, H. E. C. 238. 
 
 12. Reckoning time under the Act: see West Toronto, 
 
 5 P. R. 394, 31 TJ. C. R. 409 ; New Westminster, 9 
 B. C. R. 192. Presentation of petition after office 
 hours on last day: extension of time cannot be 
 granted by Court after prescribed time has elapsed: 
 Re North Perth Dominion Election, 13 0. W. R. 
 657, 18 0. L. R. 661. 
 
 13. An allegation in the petition " that the respondent 
 
 was by himself, etc., guilty of corrupt practices as 
 defined by the Controverted Elections Act of On- 
 tario, sufficiently charges the commission of corrupt 
 practices under the Election Act : North Ontario, 1 
 E. C. 1 : but see West Simcoe, 1 E. C. 128, where the 
 same form of petition was held to be objectionable, 
 as the affidavit filed with the petition is required 
 to set out that the petitioners believe the petition 
 true in substance and fact, and in such a case the 
 affidavit could only honestly be made by one who 
 had informed himself of the provisions of the sta- 
 tute, and even then would only be swearing to his 
 construction of it : (see section 16). Where the par- 
 ticulars filed differed in wording from the petition 
 on this point, it was held there was no power to 
 amend: West Simcoe, H. E. C. 128. Where the 
 petitioner charged an agent with corrupt practices 
 and prayed to have him made a party, it was held 
 that there was no authority to do so : South Oxford, 
 H. E. C. 238. Evidence was given at a trial of a 
 charge not properly set out in the petitioner's par- 
 ticulars of corrupt practices. At the close of the 
 evidence the respondent objected that the charge 
 was not in the particulars and not verified by the 
 affidavit of the petitioners. It was held that the 
 petitioners might amend their particulars and that 
 the charges in the petition were wide enough to 
 cover the charge. As the parties had in fact gone 
 into the evidence, the petitioners ' affidavit verifying 
 was not necessary : Lincoln, H. E. C. 489. 
 
 15. Although a petitioner who does not leave with the 
 local registrar a copy of the petition at the time of 
 
CHAPTER 10. 39 
 
 filing to be sent to the Returning Officer, is in de- 
 fault under Election Rule 1 (2), still the time for 
 doing so is subject to Election Rule 58, enabling the 
 Court in a proper case to enlarge the time ap- 
 pointed. Where through inadvertence a solicitor 
 had omitted to leave the copy and applied without 
 delay, the time was extended: North Grey, 6 0. L. 
 R. 273. 
 
 16. As to affidavit where general allegations made in 
 
 petition: see West Simcoe, IE. C. 128, note to sec. 13. 
 
 17. See East Middlesex, 2 E. C. 150. 
 
 18. Abandonment of seat: West Elgin, H. E. C. 227. 
 
 21. Security for costs is required only in the case of the 
 original or principal petition and not in that of a 
 cross petition : Kingston, 2 E. C. 10. 
 
 23. A formal defect by which the petition, though not a 
 
 true copy, cannot possibly mislead the respondent, is 
 not fatal, and leave will be given to amend: Re 
 Centre Bruce, 4 0. L. R. 263. A petition to unseat 
 a member may be duly served out of the jurisdiction 
 of the Court. It was not essential that an applica- 
 tion should be made for leave to effect such service 
 or for allowing service so made: West Algoma, 2 
 E. C. 13. Service of petition: Dominion Act: Re 
 West Peterborough, 17 O. L. R. 612, 13 0. W. R. 16, 
 41 S. C. R. 410. 
 
 24. Disclosure of particulars of each charge in examina- 
 
 tion: Re West Peterborough, 14 0. W. R. 543. 
 
 37. Grounds for extending time for trial, when discre- 
 tion exercised: form of order: see North Perth and 
 North Norfolk, 6 0. L. R. 597 : see also notes to sec. 
 42. 
 
 42. While there is nothing to prevent a petitioner from 
 making application to fix time and place of trial, he 
 cannot be said to be in default for not having done 
 so. The obligation and initiative are on the rota 
 Judges, the only penalty being that if three months 
 elapse without a day for trial being fixed, an elector 
 
4() CHAPTER 10. 
 
 may, on application, be substituted for a petitioner 
 on proper terms. Where the Judges' engagements 
 are such as to make it difficult for them to fix a time 
 to try the petition, an application to extend the time 
 for proceeding to trial will be granted almost as a 
 matter of course: Centre Bruce, 7 0. L. E. 28; see 
 North Perth and North Norfolk, 6 0. L. E. 597: 
 see North Eenfrew, 7 0. L. E. 204, 8 0. L. E. 359. 
 
 49. On a summons against the defendant for corrupt 
 practices, the only evidence taken was his own, and 
 was given under a general objection that he should 
 not be called on to incriminate himself. It was held 
 that having answered truly, he was entitled to be 
 indemnified against the penal results of his own 
 disclosures. Also, held, that sec. 7 of the Evidence 
 Act, E. S. O. 1914, ch. 76, had no application: Ee 
 Sault Ste. Marie, 10 0. L. E. 85. 
 
 51. Euling of trial Judge as to disqualification of voter : 
 appeal : see Ee Port Arthur, 8 0. W. E. 606, 13 0. L. 
 E. 17. 
 
 55. The trial Judges having disagreed as to two charges 
 of corrupt practices, the petitioner appealed to the 
 Court of Appeal. As there was no judgment or 
 finding of the trial Judges to appeal from, the Court 
 ' of Appeal would require to entertain it as a matter 
 of original jurisdiction and declined to do so: South 
 Oxford, 6 0. L. E. 232. There is no right of appeal 
 to the Court of Appeal where two of the trial Judges, 
 who try the charge, fail to agree : Ee Lennox, 6 0. L. 
 E. 203. See sec. 70. 
 
 60. Court: see E. S. 0. 1914, ch. 56, sec. 26. 
 
 61. No machinery has been provided by the Act or by 
 the Eules for the settlement of a case upon an appeal 
 to a Court of Appeal from the judgment upon the 
 trial of a petition. The trial Judges can give no 
 direction as to the evidence to be submitted. Semble, 
 that either party may treat the whole evidence taken 
 at the trial as being before a Court of Appeal: 
 Ee South Oxford, 5 0. L. E. 58. The existence of 
 a right of appeal in respect of one class of charges 
 does not draw with it the right of appeal in respect 
 
CHAPTER 10. 41 
 
 of other charges as to which there would otherwise 
 be no right of appeal : Re Lennox, 6 0. L. E. 203, and 
 notes to section 55 : see also Re Lennox, 1 E. C. 422. 
 Observations on anomalies and difficulties in the pro- 
 cedure. No jurisdiction to entertain appeal from 
 ruling of trial Judge as to disqualification of voter : 
 Re Port Arthur, 8 0. W. R. 606, 13 0. L. R. 17 : see 
 Re North York, 10 0. L. R. 93, note to sec. 77. 
 
 71.— (3) See North Renfrew, 7 0. L. R. 204, 8 0. L. R. 
 359. 
 
 74. Circumstances justifying substitution of a petitioner : 
 Re Renfrew, 7 0. L. R. 204, 8 0. L. R. 359. 
 
 76. — (6) American citizens who committed corrupt acts 
 were properly served under Rule LXIV., and judg- 
 ment was pronounced in their absence: Re Sault 
 Ste. Marie, 10 0. L. R. 356 : see also Re Cross, 2 E. 
 C. 158, 4 Can. C. C. 173. 
 
 76.— (7) See Re Sault Ste. Marie, 10 0. L, R. 85, note to 
 sec. 49, supra. 
 
 76.— (21) Limitation: see Halton, 2 E. C. 158. 
 
 77. Where a petition is dismissed without costs, the peti- 
 tioner must pay the sheriff the costs incurred in pub- 
 lishing the notice of trial, and payment out of Court 
 of the money deposited as security was only ordered 
 on its being made good to the sheriff. No charge 
 can be allowed to the sheriff for attending to the 
 publication, not being authorized by the tariff : East 
 Middlesex, 2 E. C. 150. It is not a champertous 
 arrangement for an association to agree to pay the 
 petitioner's costs: North Simcoe, H. E. C. 617. 
 Where there were grounds for appeal but the Court 
 declined to interfere, the appeal was dismissed with- 
 out costs : South Huron, 24 C. P. 488, H. E. C. 576. 
 Although the petition was dismissed, owing to the 
 unwise and foolish acts of the respondent, he was al- 
 lowed only half his costs : Glengarry, H. E. C. 8. The 
 petitioner allowed his costs but not the costs of charges 
 not established: Cornwall, H. E. C. 803. Petitioner 
 allowed his costs where he succeeded, and the re- 
 spondent his costs where the petitioner failed : North 
 
42 CHAPTER 11. 
 
 Eenfrew, H. E. C. 710 : see also South Essex, H. E. 
 C. 235; W. Wellington, H. E. C. 231; Welland, 1 
 E. C. 283. Unfounded charges : Welland, H. E. C. 
 187; Scrutiny: Lincoln, H. E. C. 489; N. Victoria, 
 H. E. C. 671. Election sustained but enquiry in 
 public interest, no costs against petitioner: West 
 Toronto, H. E. C. 97 ; and see East Elgin, H. E. C. 
 769 ; South Eenfrew, H. E. C. 556. Mistakes of Ee- 
 turning Officer — each party bear his own costs : Eus- 
 sell, H. E. C. 519; South Eenfrew, H. E. C. 519. 
 Personal charges failing: Cornwall, 10 C. L. J. 313 
 South Grey, H. E. C. 52; Kingston, H. E. C. 625 
 Cornwall, H. E. C. 547; East Toronto, H: E. C. 70 
 Witness fees: Niagara, H. E. C. 568; Prescott, 32 
 IT. C. E. 303; Niagara, 10 C. L. J. 317; West Middle- 
 sex, 10 P. E. 509; Ee North Norfolk, 4 0. W. E. 314, 
 8 O. L. E. 566. Conduct of respondent, 14 Man. L. 
 E. 310. Where after an appeal from the judgment 
 of the trial Judges voiding the election of the respon- 
 dent had been argued and while it was standing for 
 judgment, the Legislative Assembly was dissolved, 
 the Court of Appeal could make no order as to 
 costs or otherwise: Ee North York, 10 0. L. E. 93. 
 
 80. Counsel fees : see Miller v. McCarthy, 27 C. P. 147; N. 
 Victoria, 39 U. C. E. 147. 
 
 CHAPTEE 11. 
 
 The Legislative Assembly Act. • 
 
 12. Postmaster a candidate — resigning before election: 
 West York, H. E. C. 156. Postmaster with no per- 
 manent salary: South Norfolk, 31 C. L. J. 68. Notice 
 to electors of disqualification: South Eenfrew, 1 E. 
 C. 359; West York, H. E. C. 156. Carrying mails: 
 Centre Simcoe, 31 C. L. J. 68. Interest in a ferry: 
 Prince, 14 S. C. E. 265. Contracts for the public 
 service: Ee Samuel, 1913 A. C. 514. See notes to 
 E. S. O. 1914, ch. 8, sec. 11. 
 
 25. " The interval between two sessions " means between 
 two sessions of the same assembly: West Durham, 
 31 IT. C. E. 404. 
 
CHAPTERS 12, 13, 14. 43 
 
 33. ' ' Any of the causes ' ' refer to those in the preceding 
 section. A voluntary resignation therefore does not 
 create a vacancy within the meaning of this section : 
 West Durham, 31 U. C. R. 404. 
 
 CHAPTER 12. 
 
 The Lieutenant-Governors' Act. 
 
 3. This does not affect offences against criminal laws 
 which are the subject of Dominion legislation, and 
 in that sense the enactment is intra vires the Pro- 
 vincial Legislature: Atty.-Gen. Can. v. Atty.-Gen. 
 Ont, 20 0. R. 222, 19 A. R. 31, 23 S. C. R. 458. 
 
 5. See Armour, Titles, pp. 131, 343, 327: see also Con. 
 Rule 193, H. & L. notes, p. 339, 1913, Rule 74. 
 
 CHAPTER 13. 
 
 The Executive Council Act. 
 
 CHAPTER 14. 
 
 The Public Service Act. 
 
 15. A Government official may be committed in default 
 of payment under order made in judgment sum- 
 mons proceedings in the Division Court, although 
 he has no other source of income than his official 
 salary : Re Hyde v. Cavan, 31 0. R. 189. Eor note 
 on attachment of pensions, superannuation allow- 
 ances, fees, salaries of municipal officers, civil ser- 
 vants, etc.: see H. & L. notes, p. 1152; ses also B. 
 & S. Division Courts Act, p. 327. 
 
 18. In Balderson v. The Queen, 6 Ex. C. R. 8, 28 S. C. 
 R. 261, under a similar section of the Dominion Civil 
 Service Superannuation Act, it was held that such 
 allowance was entirely in the discretion of the ex- 
 ecutive authority. 
 
44 CHAPTERS 15, 16. 
 
 CHAPTER 15. 
 
 The Public Officers' Act. 
 
 8. Security: see Carpenter v. Solicitor to the Treasury, 
 46 L. T. 821. 
 
 17. In line 4 " Supreme Court " is substituted for " High 
 Court Division ": 4 Geo. V. ch. 2, Schedule (3). 
 
 CHAPTER 16. 
 
 The Sheriffs' Act. 
 
 2. The plaintiff, a sheriff, resigned his office and the 
 defendant was appointed in his place under a com- 
 mission containing a condition that he should pay 
 the plaintiff " out of the revenues of the said of- 
 fice " a sum for life. The revenues were insufficient 
 and the defendant resigned and was thereafter ap- 
 pointed under a commission without condition. It 
 was held that want of good faith could not be im- 
 puted to the Crown and the contract ceased with 
 the occupancy of the office : Smart v. Dana, 2 0. W. 
 R. 287, 3 0. W. R. 89, 5 0. L. R. 451, 9 O. L. R. 427. 
 
 9. See Re Mack and Board of Audit, 2 0. W. N. 1413, 3 
 0. W. N. 282, 19 0. W. R. 740, 20 0. W. R. 454, 25 
 0. L. R. 121. 
 
 12. — (6) Action against sheriff and his sureties for fail- 
 ure to arrest : Nelson v. Baby, 14 U. C. R. 235 ; and 
 see Reg. v. Sheriff of Hastings, 1 C. L. Ch. 230. No 
 action lies against the deputy sheriff for money re- 
 ceived by him and paid over to the sheriff. The 
 action is against the sheriff himself: Bird v. Hop- 
 kins, H. T. 5 Vict.; see Holt v. Jarvis, Dra. 190. 
 Sheriff's liability on a warrant of goods given by a 
 deputy sheriff at sale: Mink v. Jarvis, 8 U. C. R. 
 397; 13 U. C. R. 84. Actions against sheriffs' sure- 
 ties: cases under old law, see Dig. Ont. Case Law, 
 col. 6434. 
 
CHAPTER 16. 45 
 
 14. A sheriff cannot in any manner become a purchaser 
 
 of property sold under execution : Doe d. Thompson 
 v. McKenzie, M. T. 2 Vict. 
 
 15. Where the sheriff goes to the known residence of a 
 
 debtor and bona fide searches for him to make an 
 arrest without success because the debtor has ab- 
 sconded, he has done all that is required and is not 
 liable for not arresting after the debtor's return 
 unless he had notice : Rigney v. Ruttan, 5 0. S. 707. 
 Diligence: O'Connor v. Hamilton, 4 U. C. R. 243. 
 
 16. Action by sheriff against bailiff for escape: Ruttan 
 
 v. Shea, 5 U. C. R. 210. Sheriff not liable for escape 
 when writ was void : Smith v. Jarvis, H. T. 3 Vict. 
 Nor where a bailiff arrests without warrant : Rigney 
 v. Ruttan, 5 0. S. 707 ; Falconbridge v. Hamilton, E. 
 T. 2 Vict. Sheriff acting on authority of attorney: 
 Brock v. McLean, Tay. 310; Davis v. Cunningham, 
 5 L. J. 254; Stocking v. Cameron, 6 O. S. 475. What 
 is an escape : Wragg v. Jarvis, 4 0. S. 317. Sheriff 
 now liable only for damages sustained: for cases 
 under old law see Dig. Out. Case Law, 6392. 
 
 18. A sheriff mulct in the costs of an action for wrong- 
 fully charging lands with an execution was held 
 entitled to recover in an action brought by him 
 against the solicitor who gave him directions to 
 charge such lands, though the solicitor acted merely 
 as agent for his client: Robertson v. Taylor, 21 C. 
 L. T. 270. A sheriff cannot be held liable in a penal 
 action for any excess in the amount of fees col- 
 lected in a legal proceeding for the solicitor in the 
 cause or for other officials, where he had acted in 
 good faith and under instructions of the solicitor: 
 Nicholas v. Creighton, 13 E. L. R. 275. Action 
 against sheriff for improper sale: McNichol v. 
 McPherson, 15 0. L. R. 393. Execution against 
 deputy sheriff: see Grorden v. Bouter, 6 L. J. 112. 
 See cases under old law, Dig. Ont. Case Law, col. 
 6438. 
 
 25. A bond to secure the sheriff a fixed salary by his 
 deputy is void : Foott v. Bullock, 4 U. C. R. 480. 
 
4 £ CHAPTERS 17, 18, 19, 20. 
 
 37. Money paid to the sheriff upon arrest for debt is 
 held by the sheriff as statutory trustee, and the in- 
 terest, if any, upon such money must be accounted 
 for by him in the same way as the principal: Mc- 
 Kane v. O'Brien, 10 E. L. E. 19, 40 N. B. 392. 
 
 33. The fees earned by a deputy sheriff while the office 
 is vacant by 'reason of the death, resignation or re- 
 moval of the sheriff, of right belong to the deputy 
 himself: McKellar v. Henderson, 27 Gr. 181. 
 
 38. Armour, Titles, p. 396. 
 
 CHAPTER 17. 
 
 The Public Officers' Fees Act/ 
 
 4. — (1) In line 1 " Supreme " is substituted for 
 " High ": 4 Geo. V. ch. 2, Schedule (4). 
 
 CHAPTER 18. 
 
 The Public Inquiries Act. 
 
 2. See particular provisions as to evidence re R. R. 
 Gamey charges, 3 Edw. VII., ch. 10, and comment 
 on bearing of Canada Evidence Act and R. S. 0. 
 1897, ch. 73, sec. 5. See R. S. O. 1914, ch. 76, sec. 7. 
 
 CHAPTER 19. 
 
 The Official Notices Publication Act. 
 
 CHAPTER 20. 
 
 The Consolidated Revenue Fund Act. 
 
CHAPTERS 21, 22, 23, 24. 47 
 
 CHAPTEE 21. 
 The Provincial Loans Act. 
 
 CHAPTER 22. 
 The Public Revenue Act. 
 
 CHAPTER 23. 
 
 The Audit Act. 
 
 19. In lines 8 and 9, for ' ' this section ' ' read ' ' section 
 18 ": 4 Geo. V. ch. 2, Schedule (5). 
 
 Section inserted: 4 Geo. V. ch. 2, Schedule (6). 
 
 CHAPTER 24. 
 
 The Succession Duty Act. 
 
 Refer to: Bayly, Succession Duty in Canada; Han- 
 son, Estate Legacy and Succession Duties ; Remsen, 
 Interstate Succession; Dos Passos, Collateral In- 
 heritance Tax; Article, 16 C. L. T. 296, Succession 
 Duty on Foreign Assets. 
 
 1. There is no considerable number of Ontario decisions 
 as yet in regard to this tax. The Imperial Finance 
 Act, 1894, the New York Statute (ch. 713 Laws of 
 1887) and amendments, the Pennsylvania Statute 
 (Laws of 1887, No. 37), and the New York Taxable 
 Transfers Act (Laws of 1896, ch. 908), are the 
 principal similar statutes. The decisions of the On- 
 tario Courts have in several instances been met by 
 amendments to the statutes. 
 
 2. — (a) Aggregate value was held in Ross v. The Queen, 
 32 0. R. 143, (1901), 1 0. L. R. 487, to be properly 
 
48 CHAPTER 24. 
 
 arrived at by deducting the debts of the estate. This 
 was met by amendments to the statute (1 Edw. VII., 
 ch. 8), and in Atty.-Gen. v. Lee, 9 0. L. R. 9, 10 0. 
 L. E. 79, it was held that in establishing the aggre- 
 gate value of the property of a deceased person the 
 value of the land of the deceased, where such land 
 was mortgaged, was to be regarded and not merely 
 the value of the deceased's equity of redemption. 
 The statute has been amended again: see 5 Edw. 
 VII., .ch. 6. See also Rec.-Gen. of N. B. v. Hayward, 
 35 N. B. Reps. 453. Recently see Atty.-Gen. v. Wood- 
 ruff, 9 0. W. R. 18, 11 0. W. R. 82, 15 0. L. R. 416, 
 12 0. W. R. 611, 1908 A. C. 508, as to property pro- 
 perly omitted in aggregate value: and see also Re 
 Lee, 14 0. W. R. 180, 18 0. L. R. 550. Life insur- 
 ance payable to wife is part of aggregate of estate 
 for purposes of fixing amount of duty, though in it- 
 self exempt from duty : Re Shambrook Estate, 44 C. 
 L. J. 461, 28 C. L. T. 575, 12 0. W. R. 261 (see sec. 
 6 (d)). 
 
 2.— (g) Atty.-Gen. v. Newman, 31 0. R. 340, 1 0. L. R. 
 511. " Property " : Re Roach, 10 0. L. R. 208. 
 
 4. Retrospective construction of enactments fixing the 
 
 " aggregate " and dutiable value: Re Lee, 18 0. L. 
 R. 550. The dutiable value of land is its fair market 
 value at the date of the testator's death: Re Mar- 
 shall Estate, 14 0. W. R. 1199, 1 0. W. N. 256, 20 0. 
 L. R. 116. Succession duties are not a " debt." or 
 testamentary "expenses." Legacies, unless exon- 
 erated, must pay their proportion of the duties 
 levied on the whole estate : Re Bolster, 10 0. L. R. 
 591 ; Re Holland, 3 0. L. R. 406 ; Manning v. Robin- 
 son, 29 0. R. 483; Re Mackey, 6 0. L. R. 292: see 
 sec. 18 (1), note, and notes to sec. 2 (a) supra. Sums 
 bona fide paid by executors for the purpose of set- 
 tling claims against them as such must be considered 
 debts, for the purpose of administration and ascer- 
 taining the amount of succession duty : Ross v. The 
 Queen, 32 0. R. 143, 1 0. L. R. 487. Succession duties 
 are not " expenses " under a will: Re Meudell, 11 
 0. W. R. 1093. 
 
 5. "In a foreign country ' ' : mortgages on . land& in 
 
 Michigan, the mortgages being in decedent's custody 
 
 Ml 
 
CHAPTER 24. 49 
 
 in Ontario at the time of his death, held liable for 
 duty: Treasurer of Ontario v. Pattin, 22 0. L. E. 184. 
 Had the securities been located out of Ontario at 
 the time of death, the rule laid down in Woodruff v. 
 A.-G., 1908, A. C. 508, would prevail. lb. Simple 
 contract debts which would have to be sued for out 
 of Ontario are not taxable here. lb. 
 
 6.— (6) See Cullen v. Atty.-Gen., L. E. 1 H. L. 190. 
 " Carried out in Ontario: Ee Gwynne Estate, 22 0. 
 W. E. 405, 3 O. W. N. 1428. 
 
 6. — (c) See Atty.-Gen. v. Newman, 1 0. L. E. 511; Eoss . 
 v. The Queen, 32 0. E. 143, 1 0. L. E. 487; Ee Een- 
 f rew, 29 0. E. 565 : see sec. 8, note. 
 
 6. — (d) " Money received ": see Insurance Act, E. S. 0. 
 1914, ch. 183, sec. 178 et seq. Query, whether the 
 effect of these sections of the Insurance Act is not 
 to prevent such insurance moneys forming part of 
 the deceased's estate for Succession Duty or other- 
 wise. Query, if they must be disclosed in the in- 
 ventory required to lead to grant of probate or ad- 
 ministration or in the affidavit of value and rela- 
 tionship. See Ee Shambrook Estate, 12 0. W. E. 261. 
 
 For " subsection 3 " in line 3 read " clause (c) ": 
 4 Geo. V. ch. 2, Schedule (7). 
 
 7. — (1) The question of domicile and local situs arises 
 under this section. When the deceased was domi- 
 ciled in Ontario at the time of his death and the tax 
 is levied on property elsewhere, a constitutional 
 question arises, as also when the deceased's last 
 domicile was elsewhere and property locally situ- 
 ated is taxed: see Dicey Conflict of Laws; Hansen 
 on Death Duties : Ee Phipps, 143 N. Y. 641 ; Irwin 
 v. Bank of Montreal, 38 U. C. E. 375; B. N. A. Act, 
 sec. 92 (2), (13) ; In re Campbell's Estate (Mani- 
 toba Act); In re Templeton, 6 B. C. E. 180; Ee 
 _ Abbott, 29 Misc. 567 ; Dos Passos, Col. Inheritance 
 Taxes : Hoyt v. Commers, 23 N. Y. 224 ; Ee Eomaine, 
 127 N. Y. 80 ; Ee James, 144 N. T. 6 ; Wallace v. Atty.- 
 Gen., L. E. 1 Ch. Ap. 1; Thompson v. Atty.-Gen., 12 
 CI. & Fin. 1; Atty.-Gen. v. Jewish Col. Ass'n, 1901, 
 
 S.A.- 
 
50 
 
 CHAPTER 24. 
 
 1 Q. B. 123. See 0. C. 12 Jan., 1906: Atty.-Gen. v. 
 Woodruff, 15 0. L. R. 416, 12 0. W. R. 611, 1908, A. 
 C. 508. Payment of duty under this Act is based upon 
 administration, and duty is payable upon any pro- 
 perty which can be administered in Ontario. Pay- 
 ment of non-negotiable deposit receipts payable 
 after notice at branches in Ontario of Canadian 
 banks, held by a foreigner at the time of his death 
 in the foreign country, cannot be enforced except by 
 his personal representative in Ontario, and succes- 
 sion duty is payable here in respect of the amount 
 covered by them: Atty.-Gen. v. Newman, 31 0. R. 
 340, 1 0. L. R. 511. See also, In re McDonald Est., 
 9 B. C. R. 174; Atty.-Gen. v. Lovitt, 35 N. S. Reps. 
 223; Lovitt v. Atty.-Gen., 23 Occ. N. 212, 33 S. C. R. 
 350; The King v. Lovitt, 1912, A. C. 212; Lambe v. 
 Manuel, 21 Occ. N. 250, Q. R. 18 S. C. 184, (1903), 
 A. C. 68. Foreign bonds transferable by delivery 
 and transferred by deceased to sons in foreign coun- 
 try are not within the Act, the powers of the legis- 
 lature being strictly limited to direct taxation within 
 the province: (B. N. A. Act, sec. 92 (2)). Any at- 
 tempt to levy a tax on property locally situate out- 
 side the province is beyond their competence : Atty.- 
 Gen. for Ontario v. Woodruff, 9 0. W. R. £2, 11 0- 
 W. R. 82, 15 0. L. R. 416, 12 O. W. R. 611, 1908, A. 
 C. 508. It is not within the powers of a Pro- 
 vincial Legislature to impose taxation' on property 
 situate outside the province : Woodruff v. Atty.-Gen. 
 for Ontario, 1908, A. C. 508. Personal property 
 " situate in Ontario:" The King v. Lovitt, 43 S. C. 
 R. 106. Simple contract debts are liable to succes- 
 sion duty whether the deceased was domiciled in the 
 jurisdiction or not : The King v. Lovitt, 1912, A. C. 
 212; Blackwood v. R., 1882, 8 App. Cas. 82. Non- 
 resident deceased: all property which can only 
 be administered in Ontario is property situate 
 within Ontario: Irwin v. Bank of Montreal, 
 38 U. C. R. 375. Mortgages on foreign land, the 
 property of a person resident in Ontario at the time 
 of his death: Treasurer of Ontario v. Patten, 22 0. 
 L. R. 184. Application of rule in Woodruff's case 
 (1908 A. C. 508) : see Treasurer of Ontario v. Patten, 
 22 0. L. R. 184. Duties on transmission of moveables 
 having a local situs outside the provincial bound- 
 aries — Constitutionality: Cotton v. The King, 45 S. 
 
CHAPTER 24.- 51 
 
 C. B. 469; and see same case before Privy Council, 
 1914, A. C. 176, where it was held that the taxation 
 imposed by the Quebec Succession Duty Act, 1906, 
 was not direct taxation within the meaning of sec. 
 92 of the B. N. A. Act and consequently was ultra 
 vires the Provincial Legislature. On the question 
 of what is direct and what is indirect taxation within 
 the meaning of the B. N. A. Act : see also Atty.-Gen. 
 for Quebec v. Beed, 10 App. Cas. 141; Bank of 
 Toronto v. Lambe, 12 App. Cas. 575; Brewers of 
 Ontario v. Atty.-Gen. Ontario, 1897, A. C. 231. Tax- 
 ation of " specialties:" Hope's Case, 1891, A. C. 
 476; Winans v. E., 1908, 1 K. B. 1022; Payne v. E., 
 1902, A. C. 522. Inheritance taxes upon estates of 
 non-residents : see article, 49 C. L. J. 273. 
 
 7. — (2a) The testator, more than a year before his death 
 and while in comparatively good health, conveyed 
 the homestead to his two daughters, the conveyance 
 being at once registered. No change of possession 
 took 'place, the testator continuing: to live in the 
 house until his death. Held, that the conveyance to 
 the daughters could not be deemed to be made in 
 contemplation of death within sub-section (a), But 
 it came within sub-section (6) taken in connection 
 with section 2 (g) whereby property includes real as 
 well as personal estate and was subject to duty : 
 Ee George Eoach Estate, 10 O. L. E. 208. See Atty.- 
 Gen. v. Woodruff, 1908, A. C. 508, and Lord Advo- 
 cate v. Fleming, 1897, LA. C. 152; Lord Advocate v. 
 Galloway, 1884, 11 E. 541; Simms v. Eegistrar of 
 Probates, 1900, A. C. 323. See Dos Passes, Col. Inh. 
 Tax for American Cases. 
 
 7. — (26) Donatio mortis causa given in pursuance of con- 
 tractual obligation for value not dutiable : Att.-Gen. 
 for Ontario v. Brown, 3 O. L. E. 167. 
 
 7. — (2d) Where money passed from the intestate to his 
 niece in pursuance of a contractual obligation for 
 value, it was held not dutiable. The transfer was 
 not a gift but implementing a contract : Atty.-Gen. 
 v. Brown, 5 O. L. B. 167. Nor was it survivorship: 
 lb. See Eeceiver-General of N. B. v. Schofield, 35 
 N. B. Eeps. 67. Settlement: see E. S. O. 1914, ch. 
 74, e.g. 
 
52 
 
 CHAPTER 24. 
 
 7._(2 e, /) See Atty.-Gen. v. Cameron, 27 0. R. 380 : see R. 
 S. 0. 1914, ch. 183, sec. 178 et seq. 
 
 7. — (2g) Double duty: power of appointment: Atty.-Gen. 
 v. Stuart, 2 O. L. R. 403. 
 
 8. Legislation as to percentage of value of estate payable 
 
 as duty does not apply retrospectively: Re Lee, 18 
 0. L. R. 550. Computation of duty where deceased 
 died domiciled abroad, having an aggregate estate 
 over the taxable amount, but leaving property in 
 Ontario under the taxable amount to persons in the 
 preferred class : Re Renfrew, 1897, 29 0. R. 565. Rate 
 of duty leviable : Re Lee, 18 O. L. R. 550, 14 0. W. R. 
 180. 
 
 9. By Imperial Order in Council, 26th October, 1896, it 
 
 was ordered that the 20th section of the Finance Act, 
 1894, shall apply to the Province of Ontario. This 
 section reads as follows : 
 
 20. — (1) Where the Commissioners are satisfied that 
 in a British possession to which this section applies 
 duty is payable by reason of a death in respect of 
 any property situate in such possession and passing 
 on such death, they shall allow a sum equal to the 
 amount of that duty to be deducted from the estate 
 duty payable in respect of that property on the 
 same death. 
 
 (2) Nothing in this Act shall be held to create a charge 
 for estate duty on any property situate in a British 
 possession while so situate, or to authorize the Com- 
 missioners to take any proceedings in a British pos- 
 session for the recovery of any estate duty. 
 
 (3) Provides that the section may be applied by 
 Order in Council. 
 
 (4) Provides that the Order in Council may be re- 
 voked when it appears that the law of the British 
 possession has been so altered that it would not 
 authorize making the order. 
 
 Orders in Council extending the provisions of sec. 
 9 as to allowance of duty paid elsewhere have been 
 passed with regard to the following: United King- 
 dom, 1906; British Columbia, 1908; Manitoba, 1909; 
 New Brunswick, 1907 ; Nova Scotia, 1907 ; Saskatch- 
 ewan, 1908 ; Prince Edward Island, 1912. 
 
CHAPTER 24. 53 
 
 11. The Lieutenant-Governor by Order in Council has 
 approved of the following companies and the bonds 
 of these companies may be filed as security under the 
 Succession Duty Act: Dominion of. Canada Guaran- 
 tee and Accident Insurance Company; Guarantee 
 Company of North America ; London Guarantee and 
 Accident Company, Limited; Employers' Liability 
 Assurance Corporation, Limited; United States 
 Fidelity and Guaranty Company; Imperial Guar- 
 antee and Accident Company; London and Lan- 
 cashire Guarantee and Accident Company of Can- 
 ada; The Maryland Casualty Company; National 
 Surety Company; Railway Passengers Assurance 
 Company of London, England; The Guardian Acci- 
 dent and Guarantee Company of Montreal; Ocean 
 Accident and Guarantee Corporation, Limited; Can- 
 adian Surety Company. 
 
 12. — (1) The Judge, of a Surrogate Court has jurisdic- 
 tion, to determine ; whether a particular estate of 
 which probate or administration is sought is liable 
 or not to pay succession duty, and the amount of 
 such duty: his decision being subject to appeal: Re 
 Renfrew, 29 0. R. 565. , 
 
 12.— (4) See Re George Roach Estate, 10 0. L. R. 208. 
 
 13. ' 4 Legacy given by way of annuity ' ' : Bethune v. The 
 King, 26 0. L. R. 117. 
 
 14. Under the 'former reading, of the section " any per- 
 
 son dissatisfied]. may," etc., it was held that the 
 Treasurer had a right jof appeal that he was not 
 limited to the grounds expressly stated, the whole 
 : appraisement being open toappeaj. And the appeal 
 ■ being for an amount in excess of $10,000, there was 
 a further appeal to a Judge in Court: Re George 
 Roach Estate, 10 O. L. R. 208. Appeal: see Judica- 
 ture Act, R. S : . O. 1914, ch. 56> sec. 26 (2) {n). 
 
 15. In computing the duty on an annuity payable at the 
 testator's death and of which there is present actual 
 enjoyment, the duty thereon must be assessed on 
 its then cash value. On a deferred annuity duty 
 is payable when the right to enjoy it commences. 
 
54. CHAPTER 24. 
 
 Duty is also payable on the capital producing an 
 annuity when it becomes distributable as legacies 
 or as part of the final distribution of the estate. 
 The payment of duty on future estates being de- 
 ferred until they become estates in possession, the 
 duty then payable is not that fixed at the time of 
 the death, but that assessed on the value of such 
 estates or interests at the time the right of posses- 
 sion or enjoyment ensues : Atty.-Gen. v. Cameron, 27 
 0. E. 380. The duty payable on deferred annuities 
 when payable, includes the amount actually dis- 
 tributed whether increased by accumulations or de- 
 creased by loss: Atty.-Gen. v. Cameron,. 28 0. R. 
 571. Income payable for life or years; when duty 
 payable on corpus: Atty.-Gen. v. Toronto General 
 Trusts, 5 0. L. R. 216. 
 
 16. — (7) An executor in negotiating and settling the 
 amount of tax may be a Crown agent and may re- 
 quire for his own protection the consent of the 
 parties liable: (see under the Pennsylvania Act, 
 Seibert's appeal, Pa. Supp., 6 Atl. 105). 
 
 18. Liability of real property residue for payment of 
 
 succession duty: Foxwell v. Kennedy, 24 0. L. R. 
 189. Mixed fund for payment of debts and succes- 
 sion duty: Re Gordon, 1877, L. R. 6 C. D. 531; Fox- 
 well v. Kennedy, 2 0. W. N. 821, 18 0. W. R. 782, 24 
 0. L. R. 189. Succession duty payable in respect of 
 pecuniary legacies should be deducted from them and 
 not from the residue: Kennedy v. Protestant Or- 
 phans' Home, 25 0. R. 235; Manning v. Robinson, 
 29 0. R. 484; Ross v. The Queen, 32 0. R. 143, 1 0. 
 L. R. 487 ; see sec. 4, note. A direction in a will to 
 executors to pay debts, funeral and testamentary ex- 
 penses, does not operate so as to make succession 
 duty a charge on the residue and to exonerate the 
 residue from payment thereof: Re Holland, 3 0. 
 L. R. 406; Re Bolster, 10 0. L. R. 591. A bequest 
 free of ' ' legacy duty ' ' in Ontario, is interpreted as 
 free of " succession duty ": Re Gwynne Estate, 22 
 0. W. R. 405, 3 0. W. JSL. 1428. ■ . ; 
 
 19. Where executors erroneously and in ignorance of 
 
 the existence of claims over valued the estate and 
 paid succession duty for which the estate would not 
 
CHAPTER 24. 55 
 
 have been liable had the amount of such claims been 
 deducted therefrom, they were held entitled to re- 
 cover back from the Crown the amount of the duty 
 wrongly paid: Eoss v. The Queen, 32 0. E. 143, 
 1 0. L. E. 487. 
 
 21. Under the former reading of the Act, the High Court 
 had no jurisdiction to entertain an appeal from a 
 Surrogate Eegistrar. A special forum was held to 
 have been created by the statute: Atty.-Gen. v. Cam- 
 eron, 26 A. E. 103. In litigation under this Act ex- 
 press power is given to the Supreme Court to deal 
 with the costs thereof, and where an estate had paid 
 or was ready to pay all duties which could properly 
 be claimed against it, it was entitled to the costs of 
 opposing a claim for higher duties : Atty.-Gen. v. To- 
 ronto Gen. Trusts, 5 0. L. E. 607. Eecovery of money 
 paid as succession duty in respect of an annuity: 
 Belhune v. Bex, 21 0. W. E. 559, 3 0. W.'N. 941. 
 ' ' Dutiable ' ' property : A.-G. Ontario v. Brown, 5 
 0. L., E. 167. Costs against the Crown: A.-Gf. On- 
 tario v. T. G. T. Co., 5 0. L. E. 607; Lovitt v. A.-G. 
 Nova Scotia, 33 S. C. E. 350. 
 
 23. Eules and regulations made by the Lieutenant-Gov- 
 ernor in Council, 5th May, 1909, for carrying into 
 effect the Succession Duty Act have been printed 
 for distribution by the Department. A recent 
 amendment provides for the filing of an account 
 in the office of the Surrogate Eegistrar, where it is 
 desired to register the original will or an exempli- 
 fication of a foreign probate and obtain his certi- 
 ficate under the Eegistry Act, E. S. 0. 1914,. ch. 124, 
 sec. 55, sub-sec 4. Forms have also been approved 
 and published covering, 1, Affidavit of Value and 
 Eelationship ; 2, Short Affidavit of Value (optional 
 where gross value under $5,000), Schedules A and 
 B to the foregoing affidavits; 2a, Notice of Appli- 
 cation for Letters; 3, Bond by Applicants; 4, Affi- 
 davit of Debts and Schedule of Debts; 5, Direction 
 to Surrogate Judge to Make Valuation and Assess 
 Duty; 6, Order of Judge Directing Hearing and 
 Service of Persons Interested ; 7, Notice by Surro- 
 gate Judge to Interested Persons; 8, Eeport of 
 Sheriff; 9, Certificate of Discharge; 10, Certificate 
 of Filing Account for Eegistration. 
 
5(J CHAPTERS 25, 26. 
 
 CHAPTER 25. 
 
 The Law Stamps Act. 
 
 6. An appearance to a writ was filed in the office of a 
 deputy clerk of the Crown who was also clerk of the 
 County Court, but, by mistake, was put with County 
 Court papers and a stamp necessary for appearance 
 in the Superior Court was not affixed. The plaintiff 
 signed judgment as on default of appearance. It 
 was held that the appearance was a nullity and was 
 absolutely void under the Stamp Act, and leave was 
 refused to have the stamp affixed as of the date of 
 filing or to take it off the County Court files : Bank 
 of Montreal v. Harrison, 4 P. E. 331. Until the law 
 stamps have been attached to or impressed on the 
 paper upon which a judgment is drawn up, there is 
 no complete effective or valid judgment. An ap- 
 pearance tendered after all the work of signing 
 judgment in default of appearance has, been com- 
 pleted, except attaching the stamps, should be re- 
 ceived and entered: Smith v. Logan,, 17 P. R. 219: 
 see Macbeth v. Smart, 1 Ch. Ch. 269; Jones v. Jones, 
 4 P. R. 194; Denmark y. McConaghy, 8 P. R. 136. 
 Deeds executed in England conveying land in this 
 province do not require to be stamped under the 
 provisions of the English Stamp Acts: Murray v. 
 Vanbrocklin, 1 Ch. Ch. 300. Constitutionality: see 
 Attorney-General v. Reed, 10 App. Cas. 141, 3* Cart. 
 190 ; ; County of Hastings v. Ponton, 5 A. R. 543; 
 Atty^-G-en. for Quebec v. Queen Ins. Co., 3 App. Cas. 
 1090, 1 Cart. 117. 
 
 CHAPTER 26. 
 
 The Mining Tax Act. 
 
 14. ' ' Income derived from the mine ' ' : see Re Conlagas 
 and Cobalt, 15 O. L. R. 386. See also R. S. 0. 1914, 
 ch. 195, sec. 40. 
 
CHAPTERS 27, 28. 57 
 
 21. Where lands were sold in a Mechanic's Lien action, 
 the purchaser took subject to^the tax : Wesner Drill- 
 ing Co. v. Tremblay, 18 0. L. R. 439, 13 0. W. R. 
 1017. 
 
 37.— (1) In line 8 for "High Court Division" read 
 " Supreme Court ": 4 Geo. V. ch. 2, Schedule (8). 
 
 43. In line 1 for " 29 " read " 28 ": 4 Geo. V. ch. 2, 
 Schedule (9). 
 
 CHAPTER 27. 
 The Cobpobations Tax Act. 
 
 CHAPTER 28. 
 The Public Lands Act. 
 
 2. — (d) Slides and dams constructed on streams running 
 through Crown lands, out -of logs the property of 
 the Crown, are not assessable. Timber licenses are 
 not assessable and there is nothing to remove the 
 
 i lands over which they are granted from the category 
 of Crown lands exempt from taxation : Re Shier ; Re 
 Dyment, 14 0. L. R. 210. Public lands : law imregard 
 to fences and cattle running at large: Fensom v. 
 C. P. R., 7 0. L. R. 254, 8 0. L. R. 688. See R. S. 0. 
 1914, ch. 247. " Virgin soil . . . hardly de- 
 serves to be called waste lands. The waste lands 
 of the Crown in England are something entirely 
 different. . . . There is no sort of suggestion 
 of any commonable rights over such lands ; the con- 
 trary is abundantly evident": Per Meredith, J.: 
 . Fensom v. C. P. R., 7 0. L. R., at p. 270. 
 
 14. A receipt for purchase money of land from the 
 Crown entitles the purchaser to maintain trespass: 
 Deedes v. Wallace, 8 C. P. 385 ; Glover V. Walker, 5 
 C. P. 478; Alexander v. Bird, 8 C. P. 539; Whiting 
 v. Kernahan, 12 C. P. 57, but actual possession is 
 necessary : Henderson v. McLean, 8 C. P. 42. What 
 
58 CHAPTER 28. 
 
 is a purchaser: see Wells v. Cummings, 27 U. C. R. 
 470. A person holding land under a license of occu- 
 pation from the Crown is entitled to a demand of 
 possession before ejectment brought by a gran- 
 tee of the Crown: Doe d. Creen v. Friesman, 5 
 0. S. 661. The Crown cannot at its pleasure divest 
 a purchaser of his right to eject intruders nor change 
 a wrongful occupant into a rightful occupant to the 
 prejudice of their own vendee; Doe d. Henderson 
 v. Seymour, 9 U. C. E. 47; Doe d. Henderson v. 
 Westover, 1 E. & A. 465. A widow is entitled to 
 dower in the lands purchased from the Crown by 
 her deceased husband and of which he died pos- 
 sessed, although no patent had issued and the pur- 
 chase money was not all paid. She is also entitled 
 to one-third of the rents and profits for six years 
 before commencement of action: Craig v. Temple- 
 ton, 8 Gr. 483. Where a dispute arose between 
 vendor and purchaser before issue of patent the 
 Court would not interfere as the whole estate legal 
 and equitable was in the Crown: Bown v. West, 1 
 0. S. 287. A widower was locatee and agreed to 
 assign his interest to his son in return for certain 
 services. The locatee married again and subse- 
 quently the patent issued to the son. The widow was 
 refused dower: Burns v. Burns, 21 Gr. 7. One 
 through whom the plaintiff claimed obtained a re- 
 ceipt on sale of a certain lot, in 1855. Thirteen 
 years later the person in whose possession the re- 
 ceipt was handed it back, procured his name fraudu- 
 lently to be substituted and he and the defendant 
 who claimed under him remained in possession of 
 the land. The application was pending until 1889, 
 when the Commissioner ordered a patent to issue 
 to the defendant, but allowed the plaintiff time to 
 assert his title in the Courts. It was held he was 
 not barred by the Statute of Limitations: McLure 
 v. Black, 20 0. R. 70. The locatee of Crown lands 
 under the Act of 1868 had no power to sell or dis- 
 pose of pine timber growing thereon: Hughson v. 
 Cook, 20 Gr. 238. The interest of a debtor in land 
 bought from the Crown and for which at his death 
 he had not fully paid and had not obtained a patent, 
 is available for the benefit of his creditors and their 
 right is not destroyed by a friend having paid the 
 balance of the purchase money and having procured 
 
CHAPTER 28. 59 
 
 the issue of the patent to the heirs : Ferguson v. 
 Ferguson, 16 Gr. 309. Court will order sale of 
 locatees' interest under an execution, and order him 
 to join in the conveyance to enable the purchaser 
 to apply for a patent as vendee or assignee of the 
 locatee: Yale v. Tollerton, 13 Gr. 302. Trespass: 
 Henderson v. McLean, 8 C. P. 42, and 16 U. C. E. 
 630. Nicholson v. Page, 27 U. C. R. 505; Bruyea v. 
 Eose, 19 0. E. 433; Killichan v. Robertson, 6 O. S. 
 468; Greenlaw v. Fraser, 24 C. P. 230. A patent 
 operates by way of feoffment with livery of 
 seizin. (76.) A receipt was not sufficient evi- 
 dence of title to maintain ejectment. A license 
 of occupation or a patent was necessary: Walker 
 v. Eogers, 12 C. P. 327. But is sufficient to maintain 
 trespass : Whiting v. Kernihan, 12 C. P. 57 ; and see 
 Deedes v. Wallace, note to sec. 14; and also Arm- 
 strong v. Campbell, 4 C. P. 15. In Young v. Scobie, 
 10 Ui C. E. 372, it was held that receipts prima facie 
 imported a sale to the plaintiff in ejectment. Where 
 a married woman claims under letters patent from 
 the Crown, her husband need not have entered on 
 the land in order to entitle him to a tenancy by the 
 eurtesy, the letters patent constituting seizin in fact : 
 Weaver v. Burgess, 22 C. P. 104. Non-compliance 
 with the terms of the Act : see Barton v. Muir, L. E. 
 6 C. P. 134; Tooth v. Power, 1891, A. C. 284. Dis- 
 tress for taxes on located Crown lot: Pattison v. 
 Emo, 4 O. W. N. 807, 28 O. L. R. 228. Ejectment as 
 between trespassers on unpatented lands: Effect of 
 possessory acts under colour of title: See Annota- 
 tion, 1 D. L. R. 28; see also notes to R. S. O. 1914, 
 ch. 75, sees. 5 and 6 (4). 
 
 15. Where the Department has considered opposing 
 claims and a patent is directed to issue to one claim- 
 ant the Court cannot review the decision although 
 it might- have taken a different view in the first 
 instance : Kennedy v. Lawlor, 14 Gr. 224 ; see Boul- 
 ton v. Jeffrey, 1 E. & A. Ill ; Barnes v. Boomer, 10 
 Gr. 224. The. Court has jurisdiction to relieve 
 against a fraudulent assignment by a locatee before 
 the issuing of letters patent, but the complainant 
 must shew why it was necessary to come to the 
 Court: Bull v. Frank, 12 Gr. 80; see Yale v. Fuller- 
 ton, 13 Gr. 302, supra. Express notice of an un- 
 
60 CHAPTER 28. 
 
 registered assignment of unpatented land has the 
 same effect as the like notice of an unregistered 
 conveyance after patent issued: Goff v. Lister, 13 
 Gt. 406, 14 Gr. 451. Mortgagee of Crown vendee: 
 see Garside v. King, 2 Gr. 673. The omission to 
 register does not invalidate the transfer as against 
 the assignor ; it operates to prevent the locatee dying 
 beneficially entitled and defeats any claim of the 
 widow under the Dower Act: Brown v. Brown, 8 
 0. L. B. 332. It is no part of the functions of the 
 Court to take evidence or find facts upon which the 
 officers of the Crown may act in the disposition of 
 the rights to claimants to grants of Crown lands: 
 Brouse v. Cram, 14 Gr. 677. 
 
 16. Court will not review decision of the Commissioner : 
 Kennedy v. Lawlor* 14 Gr. 224. Evidence required for 
 cancellation : Attorney-General v. Garbutt, 5 Gr. 181. 
 Concealment: Fritch v. Seheck, 10 Gr. 254; Mahon 
 v. McLean, 13 Gr. 361 ; Attorney-General v. McNulty, 
 8 Gr. 324 ; Lawrence v. Pomeroy, 9 Gr. 474. Fraudu- 
 lent misrepresentation : Atty.^Gen. v. Contois, 25 Gr. 
 346. Commissioner's error: Mclntyre v. Attorney- 
 General, 14 Gr. 86. Grant to wrong person : Atty.- 
 Gen. v. Garbutt, 5 Gr. 383. Grant of reserved 
 square : Saugeen v. Church Society, 6 Gr. 538. Con- 
 cealment of improvements : Bailey v. Du Cailland, 
 6 0. W. E. 506. Concealment : Atty.-Gen. v. Mc- 
 Gowan, 24 Occ. N. 136. Nondisclosure: Lakeview 
 Mining- Co. v. Moore, 36 N. S. Reps. 333. Descrip- 
 tion to accord with grants of other parcels : Drulard 
 v. Welsh. 7 0. W. R. 575, 11 0. L. B. 647 (also 9 0. 
 W. R. 491, 14 0. L. R. 54). Derogation from pre- 
 vious grant : Kilgour v. Port Arthur, 10 0. W. B. 
 841. Issue by error or improvidence, scire facias, 
 Attorney-General's flat: Farah v. Bailey, 10 0. W. 
 R. 252 ; see also Farah v. Glen Lake Mining Co., 11 
 0. W. R. 1020, 17 0. L. R. 1. Misrepresentation: 
 Zock v. Clayton, 4 0. W. N. 1047, 28 O. L. R. 447. 
 Grant by Dominion Government: subsequent statu- 
 tory grant by province: McGregor v. Esquimault, 
 etc., Ry., 1907, A. C- 450. Occupancy of lands under 
 French title and title of occupants under Imp. Acts, 
 14 Geo. III., ch. 83, and 31 Geo. III., ch. 31, sec. 33: 
 see Drulard v. Welsh, 11 0. L. R. 647 (also see S. C. 
 14 0. L. R. 54) . The Crown cannot, any more than 
 
CHAPTER 28. 61 
 
 a private person, derogate from its own grant: 
 Boehner v. Hirtle, 6 D. L. R. 548, 11 E. L. R. 222. 
 As to dealing with, title by legislation and refusal 
 of Dominion Government to disallow: see 7 Edw. 
 VII., ch. 15, 45 C. L. J. 297 ; and see article V Prof. 
 Dicey, 45 C. L- J. 457, and see Florence Mining Co. 
 v. Cobalt Lake, 10 0. W. R. 38, 225, 18 0. L. R. 275, 
 13 0. W. R. 837. Where a bill is filed by a private 
 individual to repeal letters patent the onus of proof 
 is on the plaintiff, even if it may involve proof of 
 a negative : Mclntyre v. Atty.-Gen., 14 Gr. 86. Con- 
 sideration of the provisions of the Land Titles Act 
 where patents affected: see Farah v. Bailey, 10 0. 
 W. R. 252; Farah v. Glen Lake Mining Co., 17 O. L. 
 R. 1 ; Zock v. Clayton, 28 0. L. R. 447. See notes to 
 sec. 22, infra. 
 
 17. Adverse possession: see Maddison v. Emmerson, 24 
 Occ. N. 204. Ejectment as between trespassers of 
 unpatented lands. Possessory acts under colour of 
 title : see Annotation, 1 D. L. R. 28. 
 
 20. A patent of land is to be upheld rather than avoided, 
 and is to be construed most favourably for the gran- 
 tee: Doe d. Devine v. Wilson, 10 Moo. P. C. 502; 
 Hyatt v. Mills, 20 O. R. 351 ; see 19 A. R. 329. When 
 the Crown has issued letters patent in view of all 
 the facts the grant is conclusive and a party can- 
 not set up equities behind the patent: Farmer v. 
 Livingstone, 8 S. C. R. 140. Reference may be had 
 to papers in Crown lands office in construing patent : 
 Brady v. Sadler, 13 O. R. 462, 16 0. R. 49, 17 A. R. 
 365. Grants from the Crown for value or special 
 favour are to be construed in the same manner as 
 deeds from subject to subject : Clark v. Bonnycastle, 
 5 0. S. 528. 
 
 22. Cases in which the High Court has exercised juris- 
 diction in respect^ef Crown Patents are collected in 
 Holmested and Langton, pp. 24, 25. Action by Atty.- 
 Gen. to set aside patent obtained by fraud: A.-G. v. 
 Devlin, 15 0. W. R. 584, 1 0. W. N. 554. An action 
 to declare void a Crown patent for land on the 
 ground that it was issued through fraud, error or 
 improvidence, may be maintained in the Supreme- 
 Court of Ontario and the Attorney-General is. not 
 
62 CHAPTER 28. 
 
 a necessary party. History of jurisdiction and leg- 
 islation and review of authorities: see Farah v. 
 Glen Lake Mining Co., 17 0. L. E. 1; Zock v. Clay- 
 ton, 4 0. W. N. 1047, 28 0. L. R. 447. See In re 
 Clarke, 7 Moo. P. C. 77. See also cases noted sec. 
 
 16 supra, and as to operation of Land Titles Act 
 where patents affected. 
 
 24. Liability of locatee for taxes unpaid by previous 
 locatee: Pattison v. Emo, 28 O.'L. E. 228. 
 
 29. Administration of oath by Crown Timber Agent: E. 
 v. Johnston, 17 0. W. E. 78, 2 O. W. N. 106. 
 
 30. Nicholson v. Page, 27 U. C. E. 318. 
 
 31. The Ontario Legislature had jurisdiction to enact 
 this section except so far as it relates to land in the 
 harbours and canals, if any of the latter be included 
 in the words " other navigable waters of Ontario ": 
 A.-G. of Canada v. A.-G.'s of Ontario, Quebec and 
 Nova Scotia, 1898, A. C. 700. 
 
 33. What is Free Grant Territory: Lakefield v. Shairp, 
 
 17 A. E. 322, 19 S. C. E. 657. 
 
 35. See 'Shanassy v. Joachim, 1 App. Cas. 82. 
 
 38. Meek v. Parsons, 31 0. E. 529 ; Chapiewski v. Camp- 
 bell, 29 0. E. 343. False representation as to per- 
 formance of settlement duties: Atty.-Gen. v. Devlin. 
 1 0. W. N. 554, 15 0. W. E. 584. 
 
 39. Where by forfeiture the interest of a locatee m land 
 
 has ceased, the lien of the municipality for taxes 
 which is a charge on the interest of the locatee, 
 ceases also to exist: Pattison v. Emo, 28 0. L. R. 
 228, 4 0. W. N. 807, 12 D. L. E. 309. 
 
 42. A locatee of free grant lands who has sold the pine 
 trees on his land before the issue of the patent and 
 contrary to the provisions of the Act, is not, nor 
 anyone claiming under him, after its issue, estopped 
 from denying the validity of the sale: Chapiewski 
 v. Campbell, 29 0. E. 343. The right of the locatee 
 is only to cut and dispose of trees during the pro- 
 cess of actually clearing the land for cultivation, 
 
CHAPTER 28. 63 
 
 where it appears to be and is requisite that the 
 trees should be removed. He cannot sell the stand- 
 ing timber on the parcel en bloc, even though he may 
 bona fide intend to clear the land: McArthur v. 
 Deans, 21 0. E. 380. A patent in the usual form of 
 a patent in fee was issued referring to the lot as 
 1 ■ located and sold." The township was within the 
 geographical limits of the section, but had never 
 been appropriated or set apart under the provisions 
 of the Act. It was held that the patent was not sub- 
 ject to the reservations as to timber. Persons en- 
 tering and cutting timber after the issue of this 
 patent were liable in damages : Lakefield, &c, v. 
 Shairp, 17 A. R. 322, 19 S. C. R. 657. Under a 
 patent containing the clause usual in 1796, reserving 
 to the Crown all white pine trees, a transferee of 
 the patentee could maintain trover for the white 
 pine — for the soil where they grew was his and he 
 was entitled to their shade as against a stranger: 
 Gasselman v. Hersey, 32 U. C» R. 333. See as to 
 power to enter and cut pine : Martin v. Romleskie, 
 12 0. W .R. 1165. Logs : ownership of : McWilliams 
 v. Dickson, 8 0. W. R. 211. Noncompliance with 
 terms of Act : see Tooth v. Power, 1891, A. C. 284. 
 
 44. This section does not prevent an agreement being en- 
 tered into bef oie the issue of a patent for the grant of 
 land after the issue thereof. "Where such agree- 
 ment was entered into it was enforced after the issue 
 of the patent and where all requisites had been com- 
 plied with by the locatee. The Act refers to aliena- 
 tion and any transfer short of a conveyance of title 
 is not alienation : Meek v. Parsons, 31 0. R. 54,' 529 ; 
 see Re Beatty and Finlayson, 27 0. R. 642. See 
 also, Chaprewski v. Campbell, 29 0. R. 343; Hoig v. 
 Gordon, 17 Gr. 599. The section is considered in 
 Meek v. Parsons, 31 0. R. 529, which must be con- 
 sidered as overruling Chaprewski v. Campbell, 29 
 0. R. 343, so far as opposed to it. Incumber- 
 ing unpatented lands: McMillan v. American- Abell 
 Engine Co., 11 West. L. R. 185, 42 S. C. R. 377. 
 Effect of this section where wife of locatee does not 
 join in conveyance of an interest in the land : Austin 
 v. Riley, 16 0. W. R, 668, 19 0. W. R. 40, 23 0. L. 
 R. 593. A patentee was described as a Free Grant 
 settler, but the patent did not contain the necessary 
 
g4 CHAPTER 28. 
 
 statements under the Free Grants Act. The paten- 
 tee took absolutely and unconditionally : Canada Per- 
 manent v. Taylor, 31 U. C. C. P. 41. Wife of 
 locatee not joining, agreement void : American Abell 
 Co. v. McMillan, 42 S. C R. 377. Where locatee and 
 wife negotiated an exchange of their free grant land 
 within 20 years after issue of patent but the wife 
 failed to sign the contract, the contract was held 
 valid and enforceable : Asselin v. Aubin, 16 0. W. 
 E. 566, 1 0. W. N. 986. See Armour, Eeal Property, 
 pp. 305-306. 
 
 44. — (3) For " High Court Division " in line 11 read 
 " Supreme Court " : 4 George V. ch. 2 Schedule (10). 
 
 45. An execution against the lands of a patentee on a 
 judgment for a debt incurred before location of the 
 lands, does not operate as a charge against the lands 
 when sold by his devisee even after the expiry of 
 twenty years from the date of the location: Re 
 Beatty & Finlayson, 27 O. R. 642. A locatee duly 
 obtained patents, subsequently he and his wife sold, 
 taking back mortgages to secure the purchase money. 
 These mortgages were not interests in the lands 
 exempt from levy under execution. The exemption 
 only extends to the original location title. Where 
 there has been a valid alienation, a mortgage taken 
 by the original locatee does not vest in him qua 
 locatee. The word interest does not extend to the 
 chattel interest of a mortgagee: Cann v. Knott, 19 
 O. R. 422, 20 O. R. 294; Armour, Titles, pp. 181 and 
 392. See notes to R. S. 0. 1914, ch. 80, sec. 3. 
 
 47. Armour, Real Property, pp. 122 and 133. Seizure 
 of goods of new locatee for taxes : Pattison v. Emo, 
 28 0. L. R. 228, note to sec. 39, supra. 
 
 53. Martin v. Romleskie, 12 0. W. R. 1165. 
 
 53, 54. Sections construed as to ownership of minerals: 
 Austin v. Riley, 2 0. W. N. 1007, 19- 0. W. R. 40, 23 
 O. L. R. 593. 
 
 57. A reservation in a Crown grant of a right to resume 
 possession for public purposes not void for perpetu- 
 ity : Cooper v. Stuart, 14 App. Cas. 286 : see also as 
 
CHAPTER 28. 65 
 
 to resumption of possession by Crown in virtue of 
 reservation in original grant: Natal (Col. Sec.) v. 
 Behrens, 14 App. Cas. 331 ; Sydney Municipal Coun- 
 cil v. Atty.-Gen. New South "Wales, 1894, A. C. 444; 
 Davenport v. R., 3 App. Cas. 115. Conditions in 
 grants : Hoggan v. Esquimalt, 1894, A. C. 478 ; Abbott 
 v. Minister of Lands, 1895, A. C. 425; Tearle v. 
 Edols, 13 App. Cas. 183. Eeservation in Crown 
 grant ; land bordering on river : Williams v. Pickard, 
 17 0. L. R. 547. Reservation of " free access to 
 the shore for all vessels, boats and persons " gives 
 a right of access only from the water to the shore : 
 Regina v. Davy, 27 A. R. 508. Effect of pine reser- 
 vations under the Mines Act : Gordon v. Moose Moun- 
 tain, 22 0. L. R. 373. Consideration of reservations 
 in Crown grants : Farquharson v. Barnard, etc., Oil 
 and Gas Co., 20 0. W. R. 351, 25 0. L. R. 93, 1912, 
 A. C. 864. Presumptions in grants from the Crown : 
 Bartlett v. Delaney, 27 0. L. R. 594, 5 0. W. N. 200. 
 Construction of grants : Riparian owners on ' ' navi- 
 gable and floatable rivers:" MacLaren v. Atty.- 
 Gen. Quebec, 1914, A. C. 258. Reservation of mines 
 and minerals by the Crown and subsequent rescis- 
 sion (8 Edw. VII. ch. 17) of such reservation. Ef- 
 fect of the Statute is to operate as a withdrawal ab 
 initio of the reservation and confirmation of the title 
 of the original patentee and those claiming under 
 him: Austin v. Riley, 19 0. W. R. 40, 2 0. W. N. 
 1007, 23 0. L. R. 593. See R. S. 0. 1914, ch. 32, sec. 
 Ill and notes. As to reservation of pine trees in 
 grants of mining lands, R. S. 0. 1914, ch. 32, sec. 112. 
 
 S.A. 
 
gg CHAPTER 29. 
 
 CHAPTER 29. 
 
 The Cbown Timber Act. 
 
 3.— (1) The plaintiff (timber licensee) sold his interest 
 in the license and limits to W., but the transfer was 
 not approved by the Crown as required. It was 
 held that the legal title to the limits and timber was 
 in the plaintiff, and W.'s possession was the plain- 
 tiff's, who was entitled to maintain an action for 
 damages to the limits: Booth v. Mclntyre, 31 C. P. 
 183. Where timber licenses were subject to the 
 right of a railway acquired before Confederation to 
 construct across the lands in question, the defend- 
 ants, assignees of the railway, were not liable for 
 damages for cutting timber on the limits in carrying 
 on the building of the railway: Foran v. Mclntyre, 
 45 U. C. R. 288; see Booth v. Mclntyre, 31 C. P. 183. 
 Crown timber agents have no right to dispose of 
 timber on lands sold by Crown land agents, and 
 cannot affect the rights of purchasers against tres- 
 passers : Alexander v. Bird, 8 C. P. 539 ; see Farqu- 
 harson v. Knight, 25 U. C. R. 413. A purchaser 
 holding a receipt for an instalment, and having 
 actual possession, may maintain trespass against all 
 comers, though not against the Crown: Glover v. 
 Walker, 5 C. P. 478. 
 
 4. Effect of sale of lands on license and of issue of 
 patent: Farquharson v. Knight, 25 U. C. R. 413; 
 McMullen v. Macdonell, 27 U. C. R. 36. Replevin 
 against a wrongdoer in interval between licenses: 
 Gilmour v. Burk, 24 C. P. 187. Hay on lands under 
 license : Graham v. Heenan, 20 C. P. 340 ; McDonald 
 v. Bonfield, 20 C. P. 73. Timber on road allowances : 
 see Burleigh v. Campbell, 20 C. P. 369 ; note to sec. 
 11. A party obtaining from the Crown agent a license 
 to enter and cut a quantity of timber of particular 
 dimensions, not having exclusive possession, cannot 
 maintain trespass : McLaren v. Rice, 5 U. C. R. 151. 
 An agreement for the sale of a share in a timber 
 limit held under license is an agreement for the 
 sale of an interest in land within the 4th section of 
 the Statute of Frauds : Hoeffler v. Irwin, 8 0. L. R. 
 740. The appellants cut timber on land afterwards 
 
CHAPTER 29. 67 
 
 licensed to the respondent, and removed the timber 
 after the actual grant of the license to the respon- 
 dent, their contention being that the logs having 
 been cut before the commencement of the respond- 
 ent's title were not his property, but the property of 
 the Crown. The appellants were held wrongdoers. 
 The respondents' title was good as against them, 
 and they were not entitled to set up a jus tertii 
 against the respondents: Glenwood Lumber Co. v. 
 Phillips, 1904, A. C. 405. The licenses are granted 
 simply for a year, and under the Crown Lumber 
 Regulations, expire on April 30th, each year. In 
 case a license is not renewed promptly and a fire 
 occurs in the interval, the licensees have no status 
 to claim damages : Gillies v. Temiscaming and Nor- 
 thern (No. 1), 10 0. W. E. 971. Timber licenses are 
 not real property, and are not assessable. What 
 the holder has is the right to convert into personal 
 property and thereby acquire a title in himself, in 
 that which until the act of conversion is real pro- 
 perty of the Crown: Ee Shier, 14 O. L. E. 210. Lum- 
 ber camps and slides and dams on Crown lands are 
 not assessable: Ee Shier, 14 O. L. E. 210. What 
 amounts to taking possession and part' perform- 
 ance : Thomson v. Playf air, 25 O. L. E. 365. Where 
 timber unlawfully taken from Crown property was 
 taken by force out of the hands of the first takers 
 who recovered a judgment against the trespassers 
 which included the value of the timber, the Crown 
 was held entitled to claim so much of their pay- 
 ment as represented the value of the timber exclu- 
 sive of the labour and money expended on it. Attor- 
 ney-General v. Price, 15 Gr. 304. And the defend- 
 , ant was ordered to pay the costs of the relators. 
 Atty.-Gen. v. Price, 18 Gr. 7. Licenses are personal 
 estate: Bennett v. O'Meara, 15 Gr. 396. Query, 
 whether as was assumed in this case the holder of a 
 license which has expired may sue for trees cut 
 during its currency: White v. Dunlop, 27 U. C. E. 
 237. The licenses are sufficiently proved by the evi- 
 dence of the Crown timber agent who issued them 
 in the discharge of his duty and acting as such agent : 
 Boyd v. Link, 29 U. C. E. 365. Interest of lienor 
 in insurance moneys representing value of logs : 
 Chew v. Caswell, 13 O. W. E. 548, 14 0. W. E. 415, 
 19 0. L. E. 77. A firm being Crown timber licensees 
 with a right to cut timber on specified lands wrong- 
 
gg CHAPTER 29. 
 
 fully entered on other lands, cut pine and manu- 
 factured railway ties which they proceeded to de- 
 liver under contracts. The Crown Timber Agent 
 ordered them to desist when they had removed all 
 but a few ties and afterwards permitted removal of 
 the others, charging dues in respect of all pine cut, 
 including that cut on the respondent's lands. It was 
 held that the property in the pine continued in the 
 Crown after it was cut. The respondents if they 
 had possession, were merely bailees for the Crown 
 and could not maintain trover or detinue against 
 the appellants, who were entitled to rely on the title 
 of the Crown. Also that the appellants were not by 
 reason of having received the benefit of the pine 
 trees cut, liable in trespass for the acts committed 
 by them: Eastern Construction Co. v. National 
 Trusts, 1914, A. C. 197. A judgment debtor's in- 
 terest in lands as a licensee thereof under the Crown 
 Timber Act is liable to seizure and sale under a Fi. 
 Fa. goods and lands : Glenwood Lumber Co. v. Phil- 
 lips, 1904, A. C. 405; McPhersoh v. Temiscaming, 
 1913, A. C. 145. Where an execution is levied on 
 timber cut by an assignee of a Crown timber licensee 
 under an assignment made subsequently to the issue 
 of the writ, the levy is valid unless the assignee took 
 in good faith, for value, and without notice of the 
 execution, and has paid his purchase money: Mc- 
 Pherson v. Temiscaming, 1912, A, C. 145, 23 0. W. 
 E. 458, P. C. 
 
 6. Manufacturing condition as to pine on Crown lands; 
 application of Statute: Smylie v. The Queen, 31 0. 
 E. 202. 
 
 11. Licensees of timber limits are not liable for cutting 
 timber on road allowances under the authority of 
 the Crown : Burleigh v. Campbell, 18 C. P. 457. See 
 
 • also under former rule as to by-laws: Barrie v. 
 Gillies, 20 C. P. 369. 
 
 12. See Public Lands Act, E. S. O. 1914, ch. 28, sees. 44, 
 45, 52, 53, 55, as to timber on Free Grant lands. 
 
 14. Authority of Crown Timber Agent to administer 
 oaths : E. v. Johnston, 17 0. "W. E. 78, 2 0. "W. N. 106. 
 
 20. A Crown agent was not authorized to seize boards 
 made from Crown timber wrongfully: Miller v. 
 Clark. 10 IT. C. E. 9. 
 
CHAPTER 30. QQ 
 
 CHAPTEE 30. 
 
 The Fobest Eeseeves Act. 
 
 CHAPTER 31. 
 
 The Bed of Navigable Watebs Act. 
 
 Navigable water within meaning of this statute : Wil- 
 liams v. Salter, 23 0. W. E. 34. Eight of Grown 
 grantee to land encroached on by waters of Lake 
 Erie: Volcanic Oil Co. v. Chaplin, 27 0. L. E. 34, 
 484. Lands bordering on Lake Erie: Poulin v. 
 Eberle, 4 0. W. N. 1545, 24 0. W. E. 792. History 
 of Toronto Harbour: proprietary and riparian 
 rights in Ashbridge's Bay: Merritt v. Toronto, 23 
 O. L. E. 365, 27 0. L. E. 1, 48 S. C. E. 1. Title to 
 lands in Detroit Eiver : Bartlett v. Delaney, 4 0. W. 
 N. 577, 27 0. L. E. 594. The Act does not apply 
 where the patent expressly grants bed of river : 
 Bartlett v. Delaney, 5 0. W. N. 200. The title to a 
 piece of land in the St. Lawrence Eiver above tide- 
 water and formed by earth and stone deposited in 
 the bed of the river was held to be in the Crown. 
 The presumption in Keewatin v. Kenora, 16 0. L. 
 
 . Rv 184* that the. title to the alveus is in the riparian 
 proprietor was rebutted and this section was held 
 •to justify .the conclusion : Haggerty v. Latreille, 29 
 0. L. R. 300. See also Dixon v. Snetsinger, 23 C. P. 
 235. Crown grant of lands bordering on river : Wil- 
 liams v. Pickard, 15 0. L. E. 655, 17 0. L. E. 547. 
 See the Surveys Act, E. S. 0. 1914, ch. 166, sec. 34. 
 See also R. S. 0. 1914, ch. 28, sec. 57, notes. 
 
 Bed of navigable waters : Keewatin v. Ontario, 13 0. 
 L. R. 237, 16 O. L. R. 184; Johnson v. O'Neil, 1911, 
 A. C. 552; Minor v. Gilmore, 12 Moo. P. C. 131. 
 Navigable waters : 26 S. C. R. 444; 1898, A. C. 700. 
 Review of cases: Merritt v. Toronto, 22 0. W. R. 
 710, 3 0. W. N. 1550, 27 0. L. R. 1, 48 S. C. R. I. 
 
7Q CHAPTER 32. 
 
 CHAPTER 32. 
 The Mining Act. 
 
 Eefer to: Price, Ontario Mining Commissioners' 
 Cases; Mining and Water Cases Annotated; Mc- 
 Pherson and Clark, Law of Mines in Canada; Arti- 
 cle, 42 C. L. J. 89, J. M. Clark; Armstrong, Law of 
 Gold Mining in Australia; De Lissa, Kemp, (Aus- 
 tral.), MacSwinney, Bainbridge (Eng.). 
 
 2.— (ft) " Mining ":-Coniagas v. Cobalt, 13 0. W. R. 333, 
 15 0. W. R. 761, 20 0. L. R. 622. 
 
 2. — (I) Meaning of a reservation of mines of coal, iron- 
 stone, slates and other mineral: Lord Provost of 
 Glasgow v. Fairlie, 13 App. Cas. 657. See also post, 
 notes to sec. 119. 
 
 2. — (w) Commission on sale of " Mining 'Lands ": Cava- 
 nagh v. Glendenning, 10 O. W. E. 475; Wiley v. 
 Blum, 10 0. W. R, 565. Mining rights: Florence 
 Mining Co. v. Cobalt Lake, 13 O. Wi R. 837, 18 0. L. 
 R. 275. Meaning of " mining rights " in convey- 
 ances of land other than from the Crown : see R. S. 
 0. 1914, ch. 109, sees. 16-19. 
 
 2. — (r) Crown prerogative to precious metals: Florence 
 Mining Co. v. Cobalt Lake, 10 O. W. R. 38, 225, 13 
 0. W. R. 837, 18 0. L. R. 275: and see sec. Ill note. 
 
 2. — (w) Meaning of " mining rights " and " surface 
 rights ' ' in conveyances of land other than from the 
 Crown: see R. S. 0. 1914, ch. 109, sees. 16-19. 
 
 2. — (x) " Valuable Mineral ": Re Blye and Downey, 11 
 0. W. R. 393, 12 0. W. R. 986; Florence Mining Co. 
 v. Cobalt Lake, 13 0. W. R. 837, 18 0. L. R. 275, and 
 see note to R. S. 0. 1914, ch. 28, sec. 16. 
 
 8. In line 11 f or " in which " read " of which ": 4 Geo. 
 V. ch. 2, Schedule (11). 
 
 19. Cf. R. S. B. C. ch. 18, sec. 104. 
 
CHAPTER 32. q\ 
 
 22. Prospecting after expiry of license: Ee Sanderson 
 and Savffle, 3 0. W. N. 1560, 22 0. W. R. 672, 26 0. 
 L. E. 616; and see sec. 176 {n). A licensee is not 
 required by the Act to do the staking, blazing, etc., 
 bnt the affidavit must be made on first hand knowl- 
 edge and not guess work or information of others: 
 Ee McLeod and Armstrong, 5 0. W. N. 145. 
 
 28. Cf. R. S. B, C, ch. 18, sec. 7. 
 
 31. Cf . E. S. B. C, ch. 18, sec. 6. 
 
 35. In Ontario, the essential starting point is a sufficient 
 
 discovery of mineral; the proper location of it fol- 
 lows : Ee Wright and Coleman, 12 0. W. R. 248, 13 
 O. W. E. 900; Atty.-Gen. of Ontario v. Hargrave, 8 
 0. W. E. 127, 10 0. W. E. 319 ; Ee McNeil and Plotke, 
 17 0. L. E. 621. The primary requisites are the 
 possession of a miner's license and discovery made 
 on lands open for prospecting : Florence Mining Co. 
 v. Cobalt Lake, 18 0. L. E. 275, at 286. Discovery: 
 Ee Blye and Downey, 11 0. W. E. 323, 12 0. W. E. 
 986. No bona fide discovery: Ee Spurr & Murphy, 
 14 0. W. E. 1239, 1 0. W. N. 287. Action for services 
 in discovering claims and for fees paid: Easch v. 
 Heckler, 1 0. W. N. 288. Contest between one alleg- 
 ing valuable discovery and one who has reset posts 
 marking a cancelled claim : Munro v. Downey, 14 0. 
 W. E. 523, 19 0. L. E. 249. The Act does not per- 
 mit the affidavit on which the claim is based to be 
 made on information and helief. The knowledge 
 must be first hand: Ee McLeod and Armstrong, 5 
 0. W. N. 145. " Transfer his interest." The sec- 
 tion does not prescribe how the transfer is to 
 be made nor apparently does it relate back 
 prior to 14th May, 1906, when the section came 
 in force. As to application of Statute of Frauds 
 to such transfers: see Harrison v. Mobbs, 12 
 0. W. E. 465; (see sec. 71, notes). Sale by 
 sheriff under fi. fa. to one who is not a licensee: 
 see Ee Clarkson v. Wishart, 22 0. W. E. 901, 3 0. W. 
 N. 1645, 1913, A. C. 828. Compensation for surface 
 rights: see sec. 104, notes. 
 
 36. This section referred originally only to town sites 
 transferred by 0. C. to the T. and N. 0. Ey. Com- 
 mission under 4 Edw. VII., ch. 7, sec. 3, and not to 
 
72 CHAPTER 32. 
 
 lands included on plans registered by private indi- 
 viduals: Western and Northern Lands Corporation 
 v. Goodwin, 18 0. L. E. 63, 13 0. W. E. 177. Mines 
 and minerals under right of way of Temiskaming 
 and Northern Ontario Ey. : Eight of Way Mining 
 Co. v. La Eose Mining Co., 10 0. W. E. 1110. Appli- 
 cation of Act to town site of town of Cobalt : Conia- 
 gas Mines v. Cobalt, 13 0. W. E. 333. Lands open 
 to prospecting: Ee Smith and Hill, 14 0. W. E. 881, 
 
 I 0. W. N. 98, 19 0. L. E. 577. Construction of 
 Crown grant of mining lands: reservation of rail- 
 way right of way : La Eose Mining Co. v. T. and N. 
 O. Ey. Commission, 9 0. W. E. 513, 10 0. W. E. 516. 
 Prima facie a railway is not entitled to minerals 
 under land purchased by it or taken under compul- 
 sory powers : E. S. 0. 1914, ch. 185, sec. 133. 
 
 39. Withdrawal of lands from prospecting rights: Flor- 
 ence Mining Co. v. Cobalt Lake, 10 0. W. E. 38, 225, 
 12 0. W. E. 297, 13 0. W. E. 837, 18 0. L. E. 275. 
 Lands open to prospecting: Ee Smith and Hill, 19 
 0. L. E. 577. 
 
 51. Having regard to the instructions that claims must 
 be 20 acres, this section can only apply where lands 
 have been surveyed into 640 acres and 320 acres, 
 and to lands unsurveyed: Ee McLeod and Arm- 
 strong, 5 0. W. N. 145. 
 
 54. — (1) Planting discovery post: Ee Blye-and Downey, 
 
 II 0. W. E. 323, 12 0. W. E. 986. 
 
 54. — (2) Claim extending to shore of lake: boundary ex- 
 tends to edge of non-tidal lake in its natural condi- 
 tion at low water mark : Ee Sinclair, 12 0. W. E. 138. 
 
 55. Consideration of procedure after discovery: Stak- 
 ing out: Eecording: Time: Munro v. Smiih, 10 0. 
 W. E. 97, at 101. A claim can be staked and 
 recorded though previously staked and recorded, the 
 previous staking continuing to exist on the lands 
 when the party re-staking has knowledge which jus- 
 tifies his belief that the prior claim has expired, 
 lapsed, been abandoned or cancelled : Ee McNeil and 
 Plotke, 17 0. L. E. 621. 
 
CHAPTER 32. 73 
 
 57, A licensee who had staked out a mining claim on the 
 following day took up the stakes, obliterated the 
 markings and restaked and subsequently recorded 
 in the last staking. It was held that his claim was 
 barred and that he had no status to question the 
 claim of another licensee: Ee Munro and Downey, 
 19 O. L. E. 249, 14 0. W. E. 523; and see Ee Cash- 
 man and Cobalt and James, 10 0. W. E. 658. Ee 
 staking periodically as a device for retaining claim 
 which is in dispute, and position of intervening 
 bona fide discoverer: Ee Wright and Coleman, 12 
 0. W. E. 248, 13 0. W. E. 900, 1 0. W. N. 1129. 
 
 59. — (1) The first staking must be recorded: Ee Munro 
 and Downey, 19 0. L. E. 249 ; Ee Cashman and Co- 
 balt and James, 10 0. W. E. 658. Consideration of 
 results flowing from failure to record within fifteen 
 fifteen days : Munro v. Smith, 8 0. W. E. 452, 10 O. 
 W. E. 97. Not to record within 15 days is an aban- 
 donment Within section 83 : Ee Wright and Coleman, 
 12 0. W. E. 248, but see 13 O. W. E. 900. The 
 boundaries of a mining claim are those shewn on 
 the claim filed. If the mining record shews them 
 more extensive, that does not enlarge the true 
 area. Ee Olmstead and Exploration Syndicate: 5 
 0. W. N. 8; 24 0. W. E. 974. 
 
 59. — (3) An affidavit of discovery which complies with 
 the requirements of the Act is not invalidated by 
 reason of a reference to a prior claim which had 
 been staked and recorded but which the deponent 
 stated he believed to be invalid: Ee McNeil and 
 Plotke, 17 0. L. E. 621, 13 0. W. E. 6. History of the 
 legislation and difference where application is for 
 working permit : see Ee McNeil and Plotke, 13 0. 
 W. E. 6 at p. 11; (see note to sec. 94). What the 
 affidavit contemplates; full disclosure: Munro v. 
 Smith, 8 O.i W, E. 452, 10 0. M. E. 97. An untrue 
 affidavit of discovery will invalidate the Crown lease. 
 The Land Titles Act gives no protection when the 
 root of title is thus founded : Atty.-Gen. for Ontario 
 v. Hargrave, 8 0. W. E. 127, 10 O. W- E. 319. Affi- 
 davit not in accordance with the requirements of 
 the Act; adverse claims: Ee Isa Mining Co. and 
 Francey, 10 0. W. E. 31. Affidavit of discovery : Ee 
 Smith and Hill, 1 0. W. N. 98, 14 0. W. E. 881, 19 
 0. L. E. 577. 
 
74 
 
 CHAPTER 32. 
 
 62. — (1) The recorder has no judicial function to per- 
 form in reference to the filing of the application or 
 its remaining on the files: Re Isa Mining Co. and 
 Francey, 10 0. W. E. 31. After an application has 
 been received to record a claim the mining recorder 
 may not refuse to receive an application from an- 
 other person to record the staking out of the same 
 claim. It is the duty of the recorder to receive the 
 application so that it may be dealt with under the 
 provisions of the Act: Munro v. Smith, 8 0. W. E. 
 452, 10 0. W. E. 97. There is nothing in these 
 sections requiring anything like the exercise of judi- 
 cial functions : Munro v. Smith, 8 0. W. E. 452, 10 0. 
 W. E. 97; see also Ee Wright and Coleman, 12 0. 
 W. E. 248, 1 0. W. N. 1129, 13 0. W. E. 900. (As 
 to recorder's judicial functions, see sees. 130-132, 
 post). 
 
 62. — (2) Priorities: sees. 60-66 discussed. See Campsall 
 v. Allen, 4 O. W. N. 130, 23 0. W. E. 140. 
 
 63. Disputing applications: by licensee not entitled to 
 interest in lands or mining rights: Ee Smith and 
 Hill, 1 0. W. N. 98, 14 0. W. E. 881, 19 0. L. E. 577: 
 see also: Ee McNeil and Plotke, 17 O. L. E. 621. 
 Service on disputant of notice of appeal: Ee Pin- 
 nelle & Thompson, 2 0. W. N. 711, 18 0. W. E. 683. 
 
 65. See Munro v. Smith, 8 0. W. E. 452, 10 0. W. E. 97. 
 
 67. The Act requires more than a " belief " in a dis- 
 
 covery of mineral in place. It requires a discovery 
 in fact: Ee Blye and Downey, 11 0. W. E. 323, 12 
 0. W. E. 986. Setting aside Crown lease at instance 
 of the Crown: Atty.-Gren. for Ontario v. Hargrave, 
 8 0. W. E. 127, 10 0. W. E. 319. 
 
 68. Property right arising from location made under 
 
 Mining Act: Buoknall v. B. C. Power Co., 4 0. W. 
 N. 164, 23 0. W. E. 155. After issue of certificate 
 the licensee is a tenant at will of the Crown: see 
 position discussed: Ee Clarkson & Wishart, 22 0. 
 W. E. 901, 3 I. W. N. 1645, 27 0. L. E. 70. TJnder 
 a writ of fi. fa. an undivided interest in a mining 
 claim in respect of which a certificate of record but 
 no patent has issued, is liable to seizure and sale: 
 Clarkson v. Wishart, 1913, A. C. 828. 
 
CHAPTER 32. 75 
 
 70. Declaration of trusteeship : Re Wright and Coleman, 
 12 0. W. E. 248, 1 0. W. N. 1129, 13 0. W. E. 900. 
 
 71. As to questions arising out of transfers of mining 
 
 claims before 1906. and under the Acts of 1906 and 
 1907 : see Harrison v. Mobbs, 12 O. W. E. 465. This 
 section and section 72 now prescribe the manner in 
 which the sale of a staked and recorded mining 
 claim is to be evidenced so as to be capable of en- 
 forcement. It may become a question whether the 
 doctrine of part performance is not superseded : 
 Harrison v. Mobbs, 12 O. W. E. 465, at p. 468. Appli- 
 cation of the Statute of Frauds: Chevrier v. Trust 
 and Guarantee, 18 0. L. E. 547, 14 0. W. E. 101. 
 
 72. Seizure by sheriff of licensee's interest: Ee Clark- 
 son and Wishart, 22 O. W. E. 901, 3 O..W. N. 1645, 
 27 G. L. E. 70, 1913 A. C. 828, see sees. 68, 77, notes. 
 
 74. See Irish v. Smith, 2 O. W. N. 1302, 19 O. W. E. 
 529, 21 O. W. E. 297. 
 
 75. Appeal within 15 days : see sec. 133, notes ; Cf . E. S. 
 
 O. 1897, ch. 136, sec 92; see E. S. 0. 1914, ch. 124, 
 sec. 75. 
 
 77. Independently of the amendment of 1912, the Privy 
 
 Council held that an unpatented mining claim was 
 1 ' lands ' ' within the meaning of the Execution Act : 
 Clarkson v. Wishart, 24 0. W. E. 937 (P. C), 1913, 
 A. C. 828. The interest of the holder of an un- 
 patented mining claim is not a mere tenancy at will 
 and is exigible under a writ of execution: Clarkson 
 v. Wishart, 24 0. W. E. 937, P. C, 1913 A. C. 828, 
 reversing 27 0. L. E. 70, 
 
 78. Object of these provisions considered : Munro v. 
 Smith, 8 0. W. E. 452, 10 O. W. E. 97. ' ' Immediately 
 following " construed: Burns v. Hall, 3 0. W. N. 
 315, 20 0. W. E. 526, 25 0. L. E. 168. Non-perform- 
 ance of working conditions: Ee Perkins and Dowl- 
 ing, 1 0. W. N. 290. 
 
 81. Application: Irish v. Smith, 2 0. W. N. 1302, 19 0. 
 W. E. 529, 21 0. W. E. 297. 
 
76 CHAPTER 32. 
 
 82. A second location made for the purpose of protect- 
 ing the original location of itself constitutes no evi- 
 dence of abandonment of the first: Re Wright and 
 Coleman, 12 0. W. R. 248, but see 13 0. W. R. 900; 
 (see sec. 57, notes). 
 
 83. The claim owner is possessor for an estate determin- 
 able only by voluntary abandonment de facto or by 
 those breaches of conditions which amount to a con- 
 structive abandonment or forfeiture: Walhalla v. 
 Mulcahy, 40 L. J. P. C. 43, quoted with approval: 
 Re "Wright and Coleman, 12 O. W. R. 248, but see 
 13 0. W. R. 900. 
 
 84. Lack of discovery goes to the root of the title: see 
 
 sees. 35 and 89 ; Atty.-Gen. for Ontario v. Hargrave, 
 8 O. W. R. 127, 10 O. W. R. 319; Re McNeil and 
 Plotke, 17 0. L. R. 621. Forfeiture of hydraulic 
 mining lease on breach of condition : right of Crown 
 to re-enter : R. ex rel. Atty.-Gen. for Canada v. Bon- 
 anza Creek Hydraulic, 40 S. C. R. 281. Discovery 
 by miner with expired license: Re Sanderson and 
 Saville, 3 0. W. N. 1560, 22 0. W. R. 672, 26 0. L. 
 R. 616. 
 
 85. Special renewal license: Re Sanderson and Saville, 
 26 0. L. R. 616. 
 
 91. Cancellation of claim after office hours stands as of 
 the following day : Re Blye and Downey, 11 0. W. R. 
 323, 12 0. W. R. 986. Application of section: Irish 
 v. Smith, 19 0. W. R. 529, 3 0. W. N. 711, 21 0. W. 
 R. 297. 
 
 94. Application for working permit : non-compliance with 
 this section: see Re Isa Mining Co. and Francey, 
 10 0. W. R. 31; and see notes to sec. 59 (3), as to 
 applications for mining claim. History of legisla- 
 tion and distinction between these two applications : 
 Re McNeil and Plotke, 13 0. W. R. 6, at p. 11, 17 
 0. L. R. 621. 
 
 104.— (1) To what extent the patentee of the minerals 
 must give support to surface: whether right of 
 support extends to support of buildings: distur- 
 bance of surface where veins are vertical : Coniagas 
 
CHAPTER 32. 77 
 
 Mines v. Cobalt, 13 0. W. E. 333. The compensation 
 payable for damage done to surface rights is claim- 
 able only as against the licensee who staked out the 
 claim, and not as against his transferee: Bassett v. 
 Clarke Standard Mining Co., 10 0. W. R. 752, 12 
 0. W. R. 584, 13 0. W. E. 97, 18 0. L. E. 38. Com- 
 pensation to be paid owners of surface rights: 
 Western, etc., Corporation v. Goodwin, 18 0. L. E. 
 63, 13 0. W. E. 177. In spite of the determination 
 of legal rights of locatee, it is usual for the Crown 
 to exercise its grace in favour of the locatee, and 
 may waive its rights as paramount owner: Clary 
 v. Lake Superior Corporation, 11 0. W. E. 381. 
 Measure of damages for unlawful working: Atty.- 
 Gen. v. Tomlin, 5 Ch. D. 750; Ee Merthyr Col- 
 lieries Co., L. E. 15 Eq. 46. No legal right of com- 
 plaint of an injury to right of support of land 
 round a house arises until there has been an actual 
 interference with the enjoyment of the property: 
 Backhouse v. Bonomi, 9 H. L. Cas. 503. 
 
 104. — (4) The effect is to give a lien, not to affix a per- 
 sonal liability. The transfer of the rights of the 
 staking licensee does not in itself operate as a trans- 
 fer of liabilities : Bassett v. Clark Standard Mining 
 Co., 12 O. W. E. 584, 13 0. W. E. 97, 18 0. L. E. 38. 
 
 111. Construction of Crown grant of mining lands: 
 reservation of railway right of way: La Eose Min- 
 ing Co. v. T. and N. 0. Ey. Co., 9 0. W. E. 513, 10 
 0. W. E. 516. Semble, in a Crown grant of a min- 
 ing location subject to the provisions of the Act of 
 1906, metals and minerals of every description, in- 
 cluding the precious or royal metals, passed: Flor- 
 ence Mining Co. v. Cobalt Lake, 10 0. W. E. 38, 225, 
 12 0. W. E. 297, 18 0. L. E. 275. As to reservations 
 of minerals in patents : see E. S. 0. 1914, ch. 28, sec. 
 57; also Austin v. Riley, 23 0. L. R. 593. 
 
 112. Reservation of timber: Gordon v. Moose Mountain 
 Co., 17 0. W. R. 661, 2 0. W. N. 333, 22 0. L. R. 373. 
 Reservation of pine timber in grant of mining land : 
 National Trust v. Miller, 19 0. W. R. 38, 2 0. W. 
 N. 933, 46 S. C. R. 45. Effect of provisions in this 
 section on patents issued under R. S. 0. 1897, ch. 36, 
 sec. 39 : Gordon v. Moose Mountain, 22 0. L. R. 373. 
 
78 
 
 CHAPTER 32. 
 
 Conversion of timber : measure of damages : Phillips 
 v. Conger, 22 0. W. E. 436, 3 0. W. N. 1436; Greer 
 v. Faulkner, 40 S. C. R. 399. 
 
 118. China clay as a mineral : Great Western Ry. v. Car- 
 palla U. C. C. Co., 1909, 1 Ch. 218. Brick clay as 
 mineral and compensation for loss of lands of 
 special value taken for railway right of way: 
 Davies v. James Bay, 28 0. L. R. 544; and see R. 
 S. 0. 1914, ch. 185, sec 133. 
 
 119. " Gas " is not within the term " mines or miner- 
 als " reserved in a deed in 1867. History of oil and 
 gas fields in Western Ontario : Farquharson v. Bar- 
 nard, etc., Gas Co., 22 0. L. R. 319, 25 0. L. R. 93, 
 1912, A. C. 864, see now, ante sec. 2 (e). 
 
 119. — (Id) For "providing" in line 1, read "prov- 
 ing"^ Geo. V. ch. 2, Schedule (12). 
 
 121. Breach of condition in hydraulic mining lease : right 
 of Crown to re-enter : R. ex rel. Atty.-Gen. for Can- 
 ada v. Bonanza Creek Hydraulic Concession, 40 S. 
 C. R. 281. 
 
 123. Ownership of location : Armstrong v. Crawford, 10 
 0. W. R. 381, 534. 
 
 125. Powers of Commissioner: Bassett v. Clarke Stand- 
 ard Mining Co., 10 0. W. R. 752, see also S. C. 18 
 0. L. R. 38. 
 
 128. " Court or Judge " does not mean the Master in 
 Chambers in this section: Harrison v. Mobbs, 9 0. 
 W. R. 545. The Court of Appeal may remit case 
 for trial by Mining Commissioner: Re Wright and 
 Coleman, 13 0. W. R. 900. 
 
 130. Judicial powers of Recorder : Munro v. Smith, 8 0. 
 W. R. 452, 10 0. W. R. 97. Power to extend time: 
 Re Pinnelle and Thompson, 2 0. W. N. 711, 18 0. 
 W. R. 683. 
 
 130. — (3) Date of entry of cancellation: Re Blye and 
 Downey, 11 0. W. R. 323, 12 0. W- R. 986, see also 
 19 0. L. R. 249. 
 
CHAPTER 32. 79 
 
 130.— (4) " Person affected ": Ee Cashman and Cobalt 
 and James Mines, 10 0. W. E. 658 ; and see Ee Munro 
 and Downey, 19 0. L. E. 249. 
 
 132. Enforcement of an award of the Commissioner 
 under the Act of 1906: Bassett v. Clarke Standard 
 Mining Co.,. 10 O. W. E. 752. 
 
 133. — (1) " Person affected by the decision " (sub-sec. 
 1); "parties adversely interested" (sub-sec. 3): 
 see Ee Cashman and Cobalt and James Mines, 10 
 O. W. E. 658 ; and see Ee Munro and Downey, 19 0. 
 L. E. 249. Appeal from Eecorder: Ee McNeil and 
 Plotke, 17 O. L. E. 621. Where Commissioner found 
 that claim was blunderingly but sufficiently staked: 
 appeal : Ee Sinclair, 12 0. W. E. 138. 
 
 133. — (3) The dates of the recording and the date of fil- 
 ing the appeal are matters of record and accepted: 
 Ee Munro and Downey, 19 0. L. E. 249, 14 0. W. E. 
 523. Under the provisions of this section the Min- 
 ing Commissioner can make order extending time 
 and can do so ex parte : Ee Munro and Downey, 19 
 O. L. E. 249, 14 O. W. E. 523. Appeal from deci- 
 sion of Eecorder : date of cancellation : Ee Blye and 
 Downey, 11 0. W. E. 323, 12 0. W. E. 986. Parties 
 who alleging the discovery of valuable ore have 
 staked out a claim and filed an application are 
 " parties adversely interested " as against one who 
 has staked out a similar claim on the property and 
 filed his application, and if notice of appeal has not 
 been duly filed and served upon them, the appeal 
 must be dismissed: In re Petrakos, 9 0. W. E. 367, 
 
 13 O. L. E. 650. In line 4, for the first " of " read 
 " on ": 4 Geo. V. ch. 2, Schedule (13). 
 
 137. Powers of Mining Commissioner within the scope 
 of provincial legislative power: Munro v. Downey, 
 
 14 O. W. E. 523. 
 
 139. Eight of inspection of defendant's mine in action 
 to restrain defendants from trespassing: Eight of 
 Way Mining Co. v. La Eose Mining Co., 9 0. W. E. 
 678. 
 
 140. Meaning of section and of " justice of the case ": 
 Campsall v. Allen, 23 0. W. E. 140, 4 0. W. N. 130. 
 
80 
 
 CHAPTER 32. 
 
 151. Powers of Commissioner: Bassett v. Clarke Stand- 
 ard Mining Co., 10 0. W. R. 752. Appeal from 
 decision of Commissioner that no bona fide dis- 
 covery had been made: Re Spurr and Murphy, 
 14 0. W. R. 1239, 1 0. W. N. 287. 
 
 152.— (1) " Fifteen days ": Hunter v. Bucknall, 9 0. W. 
 R. 817. 
 
 152. — (2) " Deemed to be abandoned." Rogers v. 
 McFarland, 14 0. W. R. 943, 19 0. L. R. 622. Special 
 note on the use of the word " deem:" see 14 0. 
 W. R. at pp. 951-2. 
 
 152.— (3) Re Smith and Hill, 1 0. W. N. 98, 12 0. W. R. 
 1258, 14 0. W. R. 881, 19 0. L. R. 577. 
 
 153. The same rules apply as in appeals from the deci- 
 sions of any other judicial officer: Re Rodd, 10 0. 
 W. R. 671. Matters in the High Court of Justice 
 should not be intituled " Pursuant to the Mining 
 Act ": Munro v. Smith, 8 0. W. R. 452, at p. 456. 
 Procedure on appeals : notice : Hunter v. Bucknall, 9 
 0. W. R. 817. 
 
 164. Results flowing from breach of statutory duty and 
 liability for ensuing accident: Pressick v. Cordova 
 Mines, 24 0. W. R. 631, 25 0. W. R. 228, 4 0. W. 
 N. 1334, 5 0. W. N. 263; and see Groves v. Wim- 
 borne, 1898, 2 Q. B. 402. 
 
 164. — (23) Former wording " suitable pentice ": see 
 Siven v. Temiskaming, 3 0. W. N. 695, 25 0. L. R. 
 524, 46 S. C. R. 643, 23 0: W. R. 312. 
 
 164. — (40) Defect in works: Siven v. Temiskaming, 19 
 0. "W. R. 436, 21 0. W. R. 454, 25 0. L. R. 524, 23 
 0. W. R. 312, 3 0. W. N. 695, 46 S. C. R. 643. 
 
 176. Prospecting after expiry of license: Re Sanderson 
 and Saville, 26 0. L. R. 616. 
 
 181. See Crim. Code, sec. 164. The offence is none the 
 less a crime: Re Sanderson v. Saville, 3 0. W. N. 
 1560, 22 0. "W. R. 672, 26 0. L. R. 616. 
 
CHAPTERS 33, 34, 35, 36, 37. g^ 
 
 185. In lines 5 and 6 for ' ' section 1 and sections 3 to 11 " 
 read " section 2 and sections 4 to 11 ": 4 Geo. V. 
 ch. 2, Schedule (14). 
 
 194. Effect of repeal on 7 Edw. VII., ch. 11, sec. 122, and 
 E. S. 0., 1897, ch. 36, sec. 39: Gordon v. Moose 
 Mountain, 22 O. L. E. 373. 
 
 CHAPTEE 33. 
 
 The Metal Eeeining Bounty Act» 
 
 CHAPTEE 34. 
 The Town Sites Act. 
 
 CHAPTEE 35. 
 The Ontario Public Works Act. 
 
 CHAPTEE 36. 
 
 The Public Works Peace Preservation Act. 
 
 CHAPTEE 37. 
 
 The Bureau of Labour Act. 
 
 S.A.— o 
 
82 
 
 CHAPTER 38. 
 
 CHAPTER 38. 
 
 The Temiskaming and Nobthebn Ontario Railway Act. 
 
 fi 
 
 4. Damages : limitation : Lumsden v. Temiskaming. and 
 Northern Ry. Co., 15 0. L. R. 469. Liability for non- 
 feasance: Gillies v. Temiskaming and Northern, 10 
 0. W. R. 975. 
 
 13. Vesting lands in Commission: Lumsden v. T. & N. 0. 
 Ry., 15 0. L. R. 469. Reservation of railway right 
 of way in Crown grant of mining lands an actual 
 exception of a piece of land and not a mere ease- 
 ment : La Rose Mining Co. v. T. and N. 0. Ry. Com., 
 9 0. W. R. 513, 10 0. W. R. 516. Damages for en- 
 croachment and taking mineral: T. and N. 0. Ry. 
 Com. v. Alpha Mining Co., 10 0. W. R. 1110. " Un- 
 granted lands ": Coniagas Mines v. Cobalt, 13 0. 
 W. R. 333, 15 0. W. R. 761, 1 0. W. N. 625, 20 0. 
 L. R. 622. 
 
 21. Mines and minerals under the right of way of the 
 Temiskaming and Northern Ontario : Right of Way 
 Mining Co. v. La Rose Mining Co., 10 0. W. R. 1110; 
 6 Edw. VII., ch. 11, sec. 109 (Mines Act, 1906), refers 
 to town sites transferred to the T. and N. 0. Ry. 
 Commission and not to lands merely included on 
 plans registered by private individuals: Western 
 and Northern Lands Corporation v. Goodwin, 18 
 0. L. R. 63. See R. S. 0. 1914, ch. 32, sec. 36. 
 
 23. Approval of withdrawal of lands from prospecting 
 
 rights: Florence Mining Co. v. Cobalt Lake Mining 
 Co., 12 0. W. R. 297, 13 0. W. R. 837. 
 
 24. Streets and lots: town site: plan: right to search 
 for minerals: Coniagas Mines v. Cobalt, 13 0. W. 
 R. 333, 15 0. W. R. 761, 20 0. L. R. 622, 1 0. W. N. 
 625. 
 
 32. In line 1 for " 26 and 27 " read " 11, 31, 33 and 34 ": 
 4'Geo. V. ch. 2, Schedule (15). 
 
/ CHAPTER 39. g3 
 
 CHAPTER 39. 
 
 The Power Commission Act. 
 
 7. Powers of Provincial Legislatures : right of Courts to 
 enquire into validity of Statutes : Beardmore v. To- 
 ronto, 20 0. L. R. 165, 21 0. L. R. 505 ; Smith v. Lon- 
 don, 20 0. L. R. 133. Professor Dicey 'g views on 
 legislation, 9 Edw. VII., ch. 19; #5 C. L. T. 457. 
 Hydro-Electric legislation intra vires : Beardmore v. 
 Toronto, 20 0. L. R. 165, 21 0. L. R. 505; Smith v. 
 London, 20 0. L. R. 133. 
 
 8. — (a) " Acquire ": Felker v. McGnigan Cons. Co., 1 
 * 0. W. N. 946, 16 0. W. R. 417. \ 
 
 8.— -(c) Does the doctrine of Fletcher v. Rylands apply 
 to electricity? Young v. Gravenhurst, 22 0. L. R. 
 291. Jurisdiction of province to take water from 
 Niagara River has no bearing on question of tres- 
 pass arising out of construction of transmission 
 line: Felker v. McGuigan, 1 0. W. N. 946, 16-0. 
 W. R. 417. 
 
 18. — (2) The Ontario municipality is wholly a creature 
 of the legislature without abstract rights, and the 
 legislature has power to vary a contract made by a 
 municipal corporation, thus interfering with rights 
 as between litigants: Smith v. London, 13 0. W. R. 
 1148, 20 0. L. R. 133. 8 Edw. VII, ch. 22, sec. 4. 
 Article on Hydro-Electric contracts and their valida- 
 tion: 24 C. L. J. 137, 257, 285. By-law: contract for 
 supply of electric power: validation by legislature: 
 Smith v. London, 11 O. W. R. 1148, 12 0. W. R. 668, 
 675, 13 0. W. R. 1148, 19 0. L. R. 139, 1 0. W. N. 
 280, 14 0. W. R. 148, 1248, 20 0. L. R. 133; Beard- 
 more v. Toronto, 1 0. W. N. 278, 419, 14 0. W. R. 
 1262, 20 0. L. R. 165, 21 0. L. R. 505 ; Harrigan v. 
 Port Arthur, 14 0. W. R. 973, 1087, 1 0. W. N. 169, 
 216. 
 
 18. — (5) Non-submission of contract to ratepayers : Har- 
 rigan v. Port Arthur, 14 0. W. R. 1087, 1 0. W. N. 
 169, 216. 
 
£4 CHAPTERS 40, 41. 
 
 18. — (6) It is a necessary implication from this section 
 that municipal corporations cannot enter into con- 
 tracts with the Hydro-Electric Power Commission- 
 ers without first obtaining the approval of the elec- 
 tors: Ee Scott and Patterson, 12 O. "W. R. 637, 17 
 0. L. R. 270. The Court will not compel a mayor to 
 sign a contract which does not conform to the terms 
 of the by-law submitted to the electorate: Re Scott 
 and Patterson, 17 0. L. R. 270. By-laws authoriz- 
 ing contracts with the Hydro-Electric Power Com- 
 mission confirmed: see 8 Edw. VII., ch. 22, and see 
 also Re By-law of Gait; Scott v. Patterson, 17 0. 
 L. R. 270, 12 0. W. R. 637. 
 
 35. The Power Commission and the Attorney-General's 
 fiat from the standpoint of the Common Law: see 
 46 C. L. T. 100. Stay of action: Smith v. London, 
 11 0. W. R. 1148, 12 0. W. R. 668, 675, 13 0. W. R. 
 1148, 19 0. L. R. 139, 14 O. W. R. 148, 1248, 20 0. L. 
 R. 133; Beardmore v. Toronto, 1 0. W. N. 278, 419, 
 14 0. W. R. 1262, 20 0. L. R. 165, 21 0. L. R. 505; 
 Harrigan v. Port Arthur, 14 O. "W. R. 973, 1087, 1 
 O. W. N. 169. 
 
 CHAPTER 40. 
 
 The Highway Improvement Act. 
 
 4. Action where land damaged by improvement to 
 highway: Martin v. Middlesex. 4 0. W. N. 682, 23 
 0. W. R. 974. 
 
 22. Liability of county for maintenance and repair: 
 Armstrong Cartage Co. v. Peel, 4 0. W. N. 1031, 24 
 0. W. R. 372, 10 D. L. R. 169. 
 
 CHAPTER 41. 
 
 The Colonization Roads Act. 
 
CHAPTERS' 42, 43, 44, 45, 46, 47. g5 
 
 CHAPTER 42. 
 
 The Provincial Aid to Drainage Act. 
 
 CHAPTER 43. 
 
 The Municipal, Drainage Aid Act. 
 
 CHAPTER 44. 
 The Tile Drainage Act. 
 
 CHAPTER 45. 
 
 The Department of Agriculture Act. 
 
 CHAPTER 46. 
 The Agricultural Associations ' Act. 
 
 CHAPTER 47. 
 
 The Agricultural Societies' Act. 
 
 By his will a testator, directed his executors to invest 
 moneys and pay the yearly interest to an agricul- 
 tural society. The legacy was payable out of a 
 mixed fund consisting in part of impure personalty. 
 It was held that the society came under the Mort- 
 main Act and in so far as the bequest consisted of 
 impure personalty it was void. The society was not 
 bound to expend annually the interest received, but 
 must not divert it from the purposes directed by 
 
gg CHAPTERS 48, 49, 50, 51. 
 
 the testator: Kinsey v. Kinsey, 26 0. R. 99. Statu- 
 tory rights: Ireson v. Holt Timber Co., 4 0. W. N. 
 1106, 24 0. W. E. 4£3. 
 
 CHAPTER 48. 
 The Horticultural Societies Act. 
 
 CHAPTER 49. 
 The Vital Statistics Act. 
 7. Armour, Titles, pp. 125, 328. 
 15, 21, 22, 23. Armour, Titles, p. 328. 
 
 CHAPTER 50. 
 
 The Queen Victoria Niagara Falls Pabk Act. 
 
 2. There is no liability on the part of the Commissioners 
 for the park to the public using the highways in the 
 park by reason of the absence or insufficiency of a 
 railing on the edge of the cliff, there being no such 
 statutory obligation imposed on them. Nor are they 
 liable for an accident happening to a visitor who 
 is a bare licensee. There would be no liability un- 
 less the accident occurred by reason of some unusual 
 danger known to the Commissioners and unknown 
 to the person injured. The Commissioners are 
 agents of the Crown, which is not liable for the acts 
 of the subordinate servants of the Commissioners: 
 Graham v. Commissioners, .28 0. R. 1. 
 
 27.— (2) In line 1, for " 29 to 31 " read " 31, 33 and 
 34 ": 4 Geo. V. ch. 2, Schedule (16). 
 
 CHAPTER 51. 
 
 The Queenston Heights Paek Act. 
 
CHAPTERS' 52, 63, 54. g7 
 
 CHAPTER 52. 
 
 The Provincial Paeks Act. 
 
 CHAPTER 53. 
 
 The Burlington Beach Act. 
 
 21.— (2) In line 1 f or " 26 and 27 " read " 11, 31, 33 and 
 34 " : 4 Geo. V. ch. 2, Schedule (17). 
 
 CHAPTER 54. 
 
 The Privy Council Appeals Act. 
 
 Refer to: Beauchamp, Privy Council Jurisprudence; 
 Bent-wich, Practice in P. C.; Safford and Wheeler, 
 Practice of the Privy Council (being Macpherson's 
 Privy Council Practice) ; Masters, Canadian Ap- 
 peals; Johnson, Costs; Judicial Committee Rules, see 
 41 S, C. R. Appendix. 
 
 2. Under the Statute permitting appeal only where the 
 matter in controversy exceeds $4,000, it is essential 
 that an appeal to the King in Council should be ad- 
 mitted by the Ontario Court. The Court is bound 
 to exercise its judgment whether any particular case 
 is appealable or not; and where it appears by its 
 order that it has left that question open, the appeal 
 is incompetent : Gillett v. Lumsden, 1905, A. C. 601, 
 74 L. J. P. C. 155. Special leave to appeal will not be 
 given where the question has been settled by a 
 colonial legislature, the function of the Judicial 
 Committee being the application, not the policy 
 of legislation : Tilonko v. Atty.-Gen. for Natal, 1907, 
 A. C. 461. In cases where there is an alternative 
 , appeal either to the High Court or the Privy Council 
 and parties have made their election to appeal to 
 the High Court, special leave to appeal from the 
 High Court will not be given except in very excep- 
 tional circumstances: Victorian Ry. Commissioners 
 
eg CHAPTER 54. 
 
 v. Brown, 1906, A. C. 381. Concurrent judgments 
 of fact in the Court below will not be reversed unless 
 the appellant adduces the clearest proof of error 
 and points to the source of that error : Allen v. Que- 
 bec Warehouse Co., 12 App. Cas. 101; Whitney v. 
 Joyce, 95 L. T. 74 P. C. There is no power to 
 relax or dispense with an enactment prescribing 
 the exact conditions under which applications for 
 u new trial must be made: George D. Emery Co. 
 v. Wells, 1906, A. C. 515. Applications for special 
 leave to appeal to the Privy Council will not be 
 granted ' ' save where the case is of gravity, involv- 
 ing matters of public interest or some important 
 question of law or affecting property of consider- 
 able amount or where the case is otherwise of some 
 public importance or of a very substantial char- 
 acter ": " Daily Telegraph " v. McLaughlin, 1904, 
 
 A. C. 776; Prince v. Gagnon, 8 App. Cas. 103; Cite 
 de Montreal v. Ecclesiastiques de St. Sulpice, 14 
 App. Cas. 660; Clergue v. Murray, 1903, A. C. 521; 
 Ewing v. Dominion Bank, 1904, A. C. 806; C. P. E. 
 v. Blain, 1904, A. C. 453. Court of Appeal has no 
 jurisdiction to grant leave to appeal to Privy Coun- 
 cil : Beardmore v. Toronto, 2 O. W. N. 479, 17 O. W. 
 
 B. 1056. When appeal lies as of right under the 
 Act and considerations affecting giving of leave: 
 
 C. P. B. v. Toronto, 14 O. W. E. 1065, 1 O. W. N. 
 189, 19 O. L. B. 663. Beduction of amount of dam- 
 ages claimed so as to prevent appeal to Privy Coun- 
 cil: McKay v. Toronto By., 9 O. W. B. 832, 893; 
 Preston v. Toronto By., 13 O. L. B. 79, 8 O. W. E. 
 753. "Matter in controversy": Milligan v. To- 
 ronto By., 12 0. W. E. 1103, 13 0. W. B. 513, 18 0. L. 
 E. 109, see 42 S. C. E. 238; and cf. Supreme Court 
 Act, sec. 48; Toronto v. Toronto Electric Light, 11 
 0. L. E. 310; Townsend v. Northern Crown Bank, 
 4 0. W. N. 1165, 1245, 24 0. W. E. 516. Judicial 
 Committee Bules, 1908, with rules as to printing 
 and schedule of fees : see 41 S. C. B. Appendix. Ap- 
 peals to Privy Council from Supreme Court and 
 from Court of Appeal: H. & L. notes, pp. 1082-3. 
 Proceedings in obtaining leave to appeal: H. & L. 
 notes, pp. 1083-4. Appeal in forma pauperis; H. & 
 L. notes, p. 1085. 
 
 3. Construction of this and following sections: Stavert 
 v. Campbell, 25 0. L. E. 515. 
 
CHAPTER 55. 89 
 
 4. Effect of repeal of E. S. 0. 1897, ch. 48; Stavert v. 
 
 Campbell, 21 0. W. E. 172, 174, 370, 3 0. W. N. 591, 
 641,716,25 0. L. E. 515. 
 
 5. See former Con. Eule 831 ; H. & L. notes, p. 1085. 
 
 Sections 5 to 9 inclusive correspond respectively to 
 Con. Eules 831, 830 (5), 830 (6), 830 (7), and 830 
 (8), Payment into Court of $1,000 did not satisfy 
 Eule 831: Florence Mining Co. v. Cobalt Lake, 14 
 O. W. E. 507, 19 O. L. E. 342. Bond of approved 
 surety company: see E. S. O. 1914, ch. 56, sec. 69, 
 cb. 190, sec. 8," note. 
 
 10. Judgment of Supreme Court of Canada: appeal to 
 Privy Council : Forum to stay execution : Thomp- 
 son v. Equity Fire, 1 O. W. N. 137. Stay of execu- 
 tion on perfecting security: Stavert v. Campbell, 25 
 O. L. E. 515. 
 
 13. When costs of appeal to the Privy Council have been 
 allowed they are not subject to the rules of prac- 
 tice of the lower Courts : there is no right of set-off 
 and no right to modify the direction to pay, which 
 means forthwith after the amount is fixed : Metallic 
 Eoofing Co. v. Jose, 17 O. L. E. 237. See Earle v. 
 Burland, 8 0. L. E. 174, 9 0. L. E. 663; see H. & L. 
 notes, pp. 1061 and 1094; see former Con. Eule 818 
 (a), (b), 1255-6, and 1913, Eule 524, which give 
 effect to this section. 
 
 CHAPTEE 55. 
 
 The Dominion Courts Act. 
 
 2. See Atty.-Gen. of Ontario v. Atty.-Gen. of Canada, 39 
 
 S. C. E, 14, at p. 45. 
 
 3. Provision that in cases where the amount in contro- 
 
 versy is under $1,000 no appeal shall lie from the 
 decision of the Court of Appeal to the Supreme 
 Court except by leave of a Judge of the former 
 Court, was ultra vires, and not binding on the Su- 
 preme Court : Clarkson v. Eyan, 17 S. C. E. 251, 4 
 Cart. 439. Matter in controversy: Toronto v. To- 
 ronto Electric Light, 11 0. L. E. 310. Matter in 
 controversy in the appeal, 12 0. W. E. 1103, cf. 
 
90 
 
 CHAPTER 56. 
 
 Supreme Court Act, sec. 48, Exchequer Court Act, 
 sec. 72. Eeduction of amount of damages to pre- 
 vent appeal : Preston v. Toronto Ey., 8 O. W. R. 753, 
 13 0. L. R. 79; McKay v. Toronto By., 9 0. W. R. 
 832, 893.. Appeals to Supreme Court: when appeal 
 lies: H. & L. notes, pp. 1074, 1075. Questions not 
 appealable : 1075, 1076. Questions appealable : 1076- 
 1078. Leave to appeal, p. 1078. Security to be 
 given: pp. 1078-1079. Leave to appeal when neces- 
 sary: p. 1079. Time for appeal: p. 1079. Notice 
 of appeal: p. 1080. Case to be settled: p. 1080. 
 Stay of proceedings pending appeal : p. 1081. Fac- 
 tums : p. 1081. Notice of hearing : p. 1082. Setting 
 down appeal for argument : p. 1082. 
 
 CHAPTER 56. 
 
 The Judicature Act. 
 
 Refer to: Holmested and Langton, Judicature Act 
 (Ont.); Holmested and Langton, Forms; Annual 
 Practice (White Book) ; The Yearly Supreme Court 
 Practice; Seton's Judgments and Orders; Daniell's 
 'Practice of the Chancery Division; Daniell's Forms; 
 Chitty's Archbold; Chitty's K. B. D. Forms. 
 
 2. — (a) " Action ": Christie Brown v. Woodhouse, 4 0. 
 W. N. 1265, 24 O. W. R. 619. Definition considered: 
 R. v. Graves, 21 O. L. R. 329, at p. 353. Third party 
 proceedings: Bucknall v. Mitchell, 13 O. W. R. 44; 
 Kinnear v. Clyne, 18 O. L. R. 457i 
 
 2. — (h) " Defendant ": Hazeltine v. Consolidated Mines, 
 13 O. W. R. 271. As to corporations and especially 
 foreign corporations: see Rule 159; H. & L. notes, 
 p. 291; 1913, Rule 23. 
 
 2.— (r) " Plaintiff ": Bucknall v. Mitchell, 13 O. W. R. 
 44. 
 
 3. See the Judges' Act, R. S. C, ch. 138. 
 
 4. " High Court," " Court of Appeal ": see Re Erb, 12 
 
 O. W. R. 108. 
 
CHAPTER 56. 91 
 
 10. As to law before 1902 : see Clarke v. Trask, 1 0. L. 
 R. 207. 
 
 12. The civil jurisdiction of the Court of Appeal was 
 purely statutory in its origin. The criminal juris- 
 diction of the Court of Appeal extended only to 
 those cases where it was conferred by Dominion 
 legislation or where an appeal was given by Statute 
 of Ontario for breaches of law within the power of 
 the province to enact. No appeal lay to the Court 
 of Appeal from an order of a Divisional Court 
 quashing a conviction of a Police Magistrate for 
 breach of a municipal by-law: R. v. Cushing, 26 
 A. R. 248. Nor at the instance of the defendant by 
 leave or not from an order of a Divisional Court 
 respecting a Magistrate's conviction under an On- 
 tario Statute: R. v. Pierce, 10 O. L. R. 297. (This 
 latter case was under the 1904 amendment.) As 
 to the authority of a Provincial Legislature in re- 
 gard to offences under Provincial Acts: see Atty.- 
 Gen. v. Hamilton S. Ry. So., 1903, A. C. 524. The 
 Court had original jurisdiction under R. S. O. 1897, 
 84, and in election cases. Jurisdiction of the Court 
 of Appeal and of a Judge thereof considered and 
 compared with the jurisdiction of the English Court : 
 see Embfee v. McCurdy (No. 2), 14 O. L. R. 325. 
 
 13. For Imperial Statutes regulating the jurisdiction of 
 the Court of Chancery in England and which 
 became part of the law of Ontario : see R. S. 0. 1897, 
 Vol. III.; see as to criminal jurisdiction: B. N. A. 
 Act, sec. 91 (27), and 93 (14). The High Court 
 of Justice was a Superior Court of criminal juris- 
 diction within the meaning of the Criminal Code: 
 see Code, R. S. C, ch, 146. As to power to make 
 rules in ^criminal matters: see Code, sec. 576. Es- 
 treated bail bonds: see R. S. O. 1897, ch. 106; R. S. 
 O. 1914, ch. 104. Powers of the High Court in mat- 
 ters testamentary considered: see R. S. O. 1914, ch. 
 62, sec. 32; Mutrie v. Alexander, 23 O. L. R. 396. 
 The High Court has jurisdiction to try the validity 
 of wills even after probate granted by the Surrogate 
 Court (after a contest in which the plaintiff in the 
 High Court action was not a party) : Badenach v. 
 Inglis, 4 0. W. N. 1495, 29 0. L. R. 165. On 
 a motion to quash a conviction in a criminal 
 
02 CHAPTER 56. 
 
 On a motion to quash a conviction in a criminal 
 matter and not merely for a penalty imposed by or 
 under provincial legislation, no jurisdiction is con- 
 ferred on the High Court to give costs to the appli- 
 cant against the prosecutor or magistrate: Eex v. 
 Bennett, 4 0. L. E. 205. Under the Judicature Act, 
 as before it, the claim in an action on a foreign judg- 
 ment may contain counts claiming to recover on 
 the original consideration: Bugbee v. Clergue, 27 
 A. E. 96, 31 S. C. E. 66. Plaintiff owning land in 
 U. S. got specific performance of contract to ex- 
 change for land in Ontario : Montgomery v. Eup- 
 pensburg, 31 0. E. 433. A receiver was appointed 
 in respect of the rents and profits of lands out of 
 the jurisdiction over which the plaintiff had an 
 equitable claim: Duder v. Amsterdamseh Trustees 
 Kantoor, 1902, 2 Ch. 132. The; Court has jurisdic- 
 tion to set aside an agreement in respect of lands 
 some of which are out of the jurisdiction: Mackay 
 v. Colonial Inv. Co., 4 0. L. E. 571; but will not 
 entertain an action to enforce a lien on lands out of 
 the jurisdiction by a judgment for sale or recovery 
 of possession: Gr. N. W. Ey. v. Charlebois, 1899, A. 
 C. 114. A s to service of a writ of summons out 
 of the jurisdiction : see Con. Eule 162, 1913, Eule 25. 
 Proper parties: see Mackay v. Colonial Inv. and 
 Loan Co., 4 0. L. E. 571. Since the Judicature 
 Act, the compromise of an action will be enforced 
 by an order of the Court: Pirung v. Dawson, 9 0. L. 
 E. 248. 
 
 16. — (a) Equitable relief: see Cope v. Creighton, 30 0. 
 E. 603. Court appointed a guardian, for long 
 unheard-of absentee and directed that he be served 
 with office copy of order for partition and notice 
 for the absentee: Ee Hynes, 19 P. E. 217. The 
 equitable jurisdiction of the High Court was ex- 
 pressed in the Judicature Act, E. S. 0. 1897, sec. 
 51, to be " the like jurisdiction as by the laws of 
 England were on the 4th day of March, 1837, pos- 
 sessed by the Court of Chancery in England in 
 respect of the matters hereinafter enumerated, that 
 is to say: 
 
 (1) In all cases of fraud and accident. Fraud : audit: 
 see Teacher v. Calder, 1899, A. C. 451. 
 
CHAPTER 50. 93 
 
 (2) In all matters relating to trusts, executors 
 and administrators, co-partnership and account, 
 mortgages, awards, dower, infants, lunatics and their 
 estates. The re-marriage of mother, sole surviv- 
 ing guardian of an infant, is not in itself a reason 
 for the Court appointing a co-guardian. The bene- 
 fit of the infant is the sole ground for interfer- 
 ence. Where second husband of different religion 
 that also may be no ground if infant is left alone 
 and brought up properly: Ee X.; X. v. Y., 1899, 1 
 Ch. 526: (see provisions of the Infants' Act, E. S. 
 0., 1914, ch. 153, and notes). Power of Judge to 
 order committee of lunatic to exercise election to 
 take under or against will : Ee Earl Sef ton, 1898, 2 
 Ch. 378; (see the Lunacy Act, E. S. 0., 1914, ch. 68 
 and notes). See E. S. 0., 1914, ch. 102, sec. 9; 
 29 Car. II., ch. 3, sec. 7, as to declarations or 
 creations of trusts. Eemuneration of trustees 
 and executors, E. S. 0., 1897, ch. 129, sec. 40; 
 E. S. O., 1914, ch. 121, sec. 67. Proceedings on tak- 
 ing accounts: Con. Eule G67, et.seq.; H. & L. notes, 
 1913, Eule 410, etc. See also The Annual Practice, 
 Williams on Account, Seton's Judgments. As to ac- 
 counts between principal and agent: Mackenzie v. 
 Johnson, 4 Mad. 373; Lake v. Bell, 34 Ch. D. 462; 
 Statute of Limitations no bar where there is express 
 trust; Eochefoucauld v. Boustead, 1897, 1 Ch. 196; 
 mutual accounts: Phillips v. Phillips, 9 Hare 471; 
 accounts between patentee and infringer : Watson v. 
 Holliday, 20 Ch. D. 780; where account is the proper 
 remedy : Job v. Potton, L. E. 20 Eq. 84. Awards : see 
 E. S. O., 1897, ch. 62; E. S. O., 1914, ch. 65. See also 
 as to what may be the subject of an arbitration: 
 Baker v. Townshend, 1 Moore 120, Hewitt v. Hewitt, 
 1 Q. B. 110; as to what is a submission, Ee Hammond 
 and Waterton, 62 L. T. Eep. 808; if the parties to a 
 submission are to be -deprived of any legal right, it 
 must be clearly stated : Ee Green and Balfour, 63 L. 
 T. Eep. 97, 325; duty of arbitrator in hearing evi- 
 dence : Nickalls v. Warren, 6 Q. B. 615, Johnstone v. 
 Cheape, 5 Dow 247; arbitrators not liable for negli- 
 gence: Tharsis Sulphur v. Loftus, L. E. 8 C. P. 1; 
 certainty requisite in an award: Hawkins v. Col- 
 clough, 1 Burr. 275, Watson v. Watson, Styles' Ee- 
 ports, 28 ; reference to arbitrators and stay of action : 
 Manchester Ship Canal v. Pearson, 1900, *2 Q. B. 606. 
 
94 CHAPTER 56. 
 
 See also Eussell on Arbitration, Eedman on Arbi- 
 tration, and Tbe Annual Practice, where the Arbi- 
 tration Act, 1889, is annotated. Appeals from 
 awards of arbitrators under Dominion- Ry. Act, 
 E. S. C, ch. 37, sec. 209; Brirely v. H. & B. Ry., 
 25 0. R. 88. Infants: see E. S. 0. 1897, ch. 168; R. 
 S. 0. 1914, ch. 153. 
 
 (3) To stay waste. 
 
 (4) To compel the specific performance of agree- 
 ments: Specific performance of agreements of per- 
 sonal property: Cudder v. Eutter, 2 White and 
 Tudor, 416; specific delivery up of chattels: Pusey 
 v. Pusey, 2 White and Tudor, 454; acts of part per- 
 formance enabling specific performance of parol 
 agreement to be decreed notwithstanding the Statute 
 of Frauds : Lester v. Foxcrof t, 2 White and Tudor, 
 460; specific performance with compensation: Seton 
 v. Slade, 2 White and Tudor, 475; difference as to 
 admission of evidence where specific performance is 
 sought and where it is resisted : Woollam v. Heam, 
 2 White and Tudor, 513. Eefer to : Fry on Specific 
 Performance; Rawlins on Specific Performance; 
 Seton 's Judgments and The Annual Practice. Speci- 
 fic performace: when remedy applies, see note 1 D. 
 L. E. 354; grounds for refusing, note, 7 D. L. E. 340; 
 lands out of the jurisdiction, note 2 D. L. E. 215, and 
 see Smith v. Ernst, 20 W. L. E. 772, 21 W. L. E. 483. 
 Montgomery v. Euppenberg, 31 O. E. 433. Con- 
 tract for sale of reversionary interest will not 
 be specifically enforced where a long delay has 
 taken place and the reversion fallen into possession: 
 Levy v. Stogdon, 1899, 1 Ch. 5. Lien for unpaid 
 purchase money: default in last instalment was 
 made by purchaser who thereupon went away for 
 a time and the vendor entered and leased. Pur- 
 chaser held not entitled to specific performance nor 
 to recover instalments, but was entitled to damages 
 as the contract on the facts was considered not 
 abandoned or repudiated : Cornwall v. Henson, 1900, 
 2 Ch. 298. Specific performance of agreement to 
 devise farm in return for care and services: see 
 Smith v. Smith, 29 O. R. 309, 26 A. R. 397. The 
 purchaser under a contract for sale of land who 
 seeks specific performance, must have been prompt 
 
CHAPTER 56. 95 
 
 in performing the duties devolving on him under 
 the contract : Hesslein v. Wallace, 29 N. S. Rep. 424, 
 29 S. C. R. 171. Where time of essence of agree- 
 ment: failure of purchaser to close in time: Snell v. 
 Brickies, 28 0. L. R. 358. How provision as to time 
 of essence may be waived : Dahl v. St. Pierre, 5 0. W. 
 N. 230, 25 0. W. R. 261; Webb v. Hughes, L. R. 19 
 Eq. 281. Waiver of right of rescission: Foster v. 
 Anderson, 15 0. L. R. 362, 16 0. L. R. 565; Norman 
 v. McMurray, 4 0. W. N. 1256, 24 0. W. R. 532, 10 
 D. L. R. 757. Where there is a deficiency, specific 
 performance in regard to what the vendor has may 
 be decreed at the suit of the purchaser: Dixon v. 
 Dunmore, 24 0. W. R. 774, 4 O. W. N. 1501; Mc- 
 Laughlin v. Mayhew, 6 0. L. R. 174; Kennedy v. 
 Spence, 3 O. W. N. 76, 20 0. W. R. 61. A contract 
 was made of land for sale by trustees to A. and A. 
 entered into another contract to sell the same lands- 
 to one of the trustees. A. was held bound to com- 
 plete his contract, and not entitled to specific per- 
 formance of the sub-contract : Delves v. Gray, 1902, 
 2 Ch. 606. Equitable jurisdiction of County Court: 
 see R. S. 0. 1897, ch. 55, sec. 23, R. S. O. 1914, ch. 59, 
 sec. 22. Damages in lieu of specific performance: 
 see sec. 18, notes. 
 
 (5) To complete the discovery of concealed papers 
 or evidence of such as may be wrongfully withheld 
 from the party claiming the benefit of the same. 
 
 (6) To prevent multiplicity of suits: see sec. 16 (h). 
 
 (7) To decree the issue of Letters Patent from the 
 Crown to rightful claimants. 
 
 (8) To repeal and avoid Letters Patent issued erro- 
 neously or by mistake or improvidently or by fraud. 
 The mere fact that a patent has expired is not a 
 sufficient reason why a petition for its revocation 
 should not be presented: North Eastern Marine 
 Engineering Co. v. Leeds Forge Co., 1906, 2 Ch. 498, 
 75 L. J. Ch. 720. Jurisdiction of the High Court to 
 repeal patent: scire facias: fiat of Attorney-General: 
 see Farah v. Bailey, 10 0. W. R. 252 ; Farah v. Glen 
 Lake Mining Co., 17 0. L. R. 1; also Con. Rule 
 
- --"TO 
 
 gg CHAPTER 56. 
 
 241, 1913 ; Bule 5' (2). The language of the Judica- 
 ture Act is sufficiently wide to include the jurisdic- 
 tion vested in the Court of Chancery by E. S. 0. 1877 
 ch. 23, sec. 29, and includes the cancellation of patents 
 at the suit of private persons. History of legislation 
 and jurisdiction and review of authorities : see Farah 
 v. Glen Lake Mining Co., 17 O. L. E. 1; Zock v. Clay- 
 ton, 4 0. W. N. 1047, 28 O. L. E, 447, and notes to 
 E. S. O. 1914, ch. 28, sec. 22. 
 
 16. — (b) The Court is sparing and cautious in its use of 
 declaratory judgments : Prowd v. Spence, 4 0. W. N. 
 998, 24 0. W. E. 329. An action will not lie in 
 Ontario for a declaration that under a transaction 
 entered into outside Ontario, land situate beyond the 
 limits of the province is held by the defendants as 
 mortgagees : Gunn v. Harper, 30 O. E. 650, 2 0. L. 
 E. 611. Where a special forum is created by statute 
 for determining rights of parties, a declaration of 
 right will not be made in an action which the Court 
 has no jurisdiction to entertain: Atty.-Gen. v. 
 Cameron, 26 A. E. 103. The High Court will not 
 usurp the functions of another tribunal, e.g., the 
 Surrogate Court, under the guise of a declaratory 
 judgment: Mutrie v. Alexander, 23 0. L. E. 396. 
 Declaration : practical difficulties : Barton v. Hamil- 
 ton, 13 0. W. E. 1118 at 1129. The Court, in the 
 exercise of its discretion as to declaratory judg- 
 ments, refused to allow a company, which deemed 
 itself liable for infringement, to bring an action 
 after the patent had expired for a declaration that 
 the patent was void ab initio'. North Eastern Marine 
 Engineering Co. v. Leeds Forge Co., 1906, 2 Ch. 498. 
 Plaintiff seeking equitable execution held to have 
 no locus standi to claim a declaration as to the right 
 of judgment debtor in lands : Thomson v. Cushing, 
 30 0. E. 123, 30 0. E. 388.. The plaintiff erected a 
 fence around a piece of land. The local authority 
 pulled it down, claiming that the land formed part 
 of the highway. The plaintiff claimed that this 
 action prevented him from selling the land. Held, 
 that the assertion of the defendants' claim to the 
 land gave the plaintiff no cause of action, and, there- 
 fore, he could not be given a declaratory judgment. 
 His only cause of action was for pulling down the 
 fence: Offin v. Eochford Eural Council, 75 L. T. Ch. 
 
CHAPTER 56. 97 
 
 348, 1906, 1 Ch. 342. " Direction ": " Declaratory 
 Judgment ": see Stoddart v. Owen Sound, 27 0. L. 
 E. 221; Burghes v. Atty.-Gen., 1911, 2 Ch. 139; Bun- 
 nell v. Gordon, 20 0. B. 281; Thomson v. Cushing, 
 30 0. E. 123; Stewart v. Guibord, 6 0. L. E. 262. 
 A declaration will not be made where the question 
 is a mere academic one: Patching v. Euthven, 10 
 0. W. E. 620. Action to have the validity of a life 
 insurance policy declared : when premature : Honour 
 v. Equitable Life, 1900, 1 Ch. 852. The High Court 
 has no jurisdiction to make a declaration of nullity 
 of : marriage on the ground that one party was of 
 unsound mind: A. v. B., 23 0. L. E. 261; Caine v. 
 Bernien, 18 0. W. E. 627, 2 0. W. N. 796. Declara- 
 tory judgment involving validity of marriage: see 
 May v. May, 2 0. W. N. 68, 413, 16 0. W. E. 1006, 
 18 O. W. E. 515, 22 0. L. E. 559. Prowd v. Spence, 
 24 0. W. E. 329, 4 0. W. N. 998, 10 D. L. E. 215. Ee- 
 marks on declaratory judgments : N. Y. & 0. Ey. v. 
 Cornwall, 5 0. W. N. 304. A declaratory judgment 
 will not be made when resort may be had to avail- 
 able statutory provisions for determining the ques- 
 tion: Ottawa Y. M. C. A. v. Ottawa, 5 0. W. N. 383. 
 Declaratory judgments : see Armour, Titles, p. 186. 
 
 16. — (d) Counterclaim sounding in damages: Company 
 Act provisions: Grills v. Farah, 21 O. L. E. 457. 
 Belief against co-defendant: Cope v. Crichton, 18 
 P. E. 462. Third party procedure: see Eule 209, 
 H. & L. notes, pp. 388-396: see 1913, Eule 165 et 
 seq., and see provisions of sec. 126 post. 
 
 16. — (e) -Undisclosed equities: see note 1 D. L. E. 76. 
 
 16.— (/) Staying procedings: what cases within this sec- 
 tion : see Cole v. Canadian Fire Ins. Co., 10 0. W. E. 
 906, 15 O. L. E. 336. Injunction to restrain enforce- 
 ment of judgment. ' Attempt to raise new defences : 
 Boeekh v. Gowganda Queen, 4 0. W. N. 27. New 
 litigation after a settlement or compromise is car- 
 ried out : McCollum v. Caston, 1 0. L. E. 240 ; David- 
 son v. Merritton Wood, etc., Co., 18 P. E. 139. Prior 
 action pending • see Tilbury West v. Eomney, 19 
 P. E. 242. Where the law is well settled and clear 
 against the plaintiff: Lawry v. Tuckett-Lawry, 2 
 
 S.A. — 7 
 
gg CHAPTER 56. 
 
 0. L. R. 162. Consolidation : Kunla v. Moose Moun- 
 tain, 22 0. W. R. 64, 3 0. W. N. 1085, 1203. Where 
 there is no reasonable probability of an action suc- 
 ceeding it ought to be dismissed as frivolous and 
 vexatious: Birch v. Birch, 1902, P. 130. Stay of 
 proceedings pending winding-up : see R. S. C, 1906, 
 ch. 144, sees. 5, 46 ; see Canada Consolidated Mineral 
 Co. v. Savoie, 11 0. W. R. 380. As to restraining 
 frivolous and vexations actions: see (in addition 
 to notes under section) H. & L. notes, Con. Rule 
 261, p. 469, 1913, Rule 124. Prohibition; general 
 principles: see Martin v. Mackonochie, L. R. 3 Q. 
 B. D. 730, 4 Q. B. D. 697, 6 App. Cas. 424; prohibition 
 to a coroner: R. v. Herford, 3 E. & E. 115; prohibition 
 lies to a pretended court as well as to a real one: 
 Chambers v. Jennings, 2 Salk. 553. See also Seton's 
 Judgments. See 1913 Rule 207 (11), 208 (9), 622- 
 624, Con. Rule 1100, H. & L., pp. 1307-8. 
 
 16. — (g) Alimony and registration of judgments in ali- 
 mony : see sec. 73, post. 
 
 16. — (h) See as to principle which should prevail to 
 avoid multiplicity of action: McHenry v. Lewis, 
 1882, 22 Chy. D. 397. As applied to foreclosure 
 actions to avoid separate redemption action: see 
 Federal Life v. Siddall, 12 O. W. R. 529, (See 
 also 22 O. L. R. 96.) Judgment against a 
 syndicate and its members: BigeloW v. Powers, 
 1 O. "W. N. 599. Staying one action to let mat- 
 ters in question be tried on another: Berry v. 
 Hall, Hall v. Berry, 10 O. W. R. 496. A writ of 
 summons was issued by mortgagees in the District 
 Court for the district where the land was situated, 
 a writ endorsed for a claim to recover possession 
 of the land. The plaintiffs had also brought an 
 action in the High Court for a declaration of right 
 in regard to the same land, in which they might have 
 claimed the same relief, but this was held no ground 
 for enjoining them from proceeding in the District 
 Court : Central Trust Co. v. Algoma Steel Co., 6 0. 
 L. R. 464. Where it can possibly be done without 
 injustice or inconvenience, one action should be suffi- 
 cient: see Morton v. Grand Trunk, 8 O. L. R. 381; 
 Reid v. Goold, 8 0. W. R. 642. Proceedings under 
 the Mechanics' Lien Act will not be interfered with 
 
CHAPTER 56. 99 
 
 if the plaintiff also chooses to issue a writ for the 
 same relief in a personal action: Hamilton Bridge 
 v. General Contracting Co., 14 0. W. E. 646, 1 0. 
 W. N. 34. Where plaintiff's claim can be disposed 
 of in pending winding-up proceedings : see E. S. C. 
 1906, ch. 144, sees. 5, 46; Canada Consolidated 
 Mineral Co. v. Savoie, 11 0. W. E. 380. Exercise of 
 powers of Court in adding defendant: Strathy v. 
 Stephens, 5 0. W. N. 119. 
 
 17. Mandamus: a prerogative writ of mandamus is 
 . stricti juris. The applicant must show strict com- 
 pliance with the rules governing his right to the 
 relief asked, and establish his legal right to the 
 performance of the duty which he seeks to 
 compel: Ee Williams and Brampton, 12 0. W. 
 E. 1235, 17 O. L. E. 398. Summary application 
 for prerogative writ of mandamus to enforce 
 statutory duty of a public body: Toronto 
 Public Library Board v. Toronto, 19 P. E. 329. 
 A writ of mandamus will not be granted when, if 
 issued, it would be unavailing : Ee Giles v. Welling- 
 ton, 30 0. E. 610. Writ of mandamus discussed: 
 Bich v. Melancthen, 3 0. W. N, 826, 21 0. W. E. 
 517. Mandamus to Council to submit local option 
 by-law under the Liquor License Act, E. S. 0. 1897, 
 ch. 245, sec. 141 (3) : requirements : Ee Williams and 
 Brampton, 17 0. L. E. 398; Ee Carter and Clapp, 
 12 0. W. E. 1275. Mandamus to compel company 
 to transfer shares on company's books: Nelles v. 
 Windsor, Essex and Lake Shore Eailway, 14 0. W. 
 E. 463, 16 0. L. E. 359. Semble, a prerogative writ 
 of mandamus cannot be granted in an action but 
 only on motion : in any event, it will not be granted 
 to enforce private rights arising under an agree- 
 ment: Kingston v. Kingston, Portsmouth, etc., By., 
 25 A. E. 462. Mandamus in action granted where 
 plaintiff shows that he will suffer injury by await- 
 ing result of the action : Nelles v. Windsor, 11 0. W. 
 E. 463, 16 O. L. E. 359. As to mandamus in cases 
 of statutory duty: E. v. Payn, 6 A. & E. 392; position 
 of servants of the Crown : E. v. Lords Commissioners 
 to the Treasury, L. E. 7 Q. B. 387. 
 
 Injunction: this section does not extend the jur- 
 isdiction of the Court nor alter the principles 
 on which the Court gives summary relief by 
 
100 
 
 CHAPTER 56. 
 
 interlocutory injunction: Lawson v. Crawford, 
 10 OvW. E. 871. Injunction to prevent oral slander: 
 Quirk v. Dudley, 4 0. L. E. 532. Injunction to restrain 
 apprehended wrong: Bradley v. Barber, 30 O. E. 
 443. Injunction restraining landlord's distress: 
 Neal v. Sogers, 2 O. W. N. 507, 17 O. W. E. 1070. 
 Injunction to prevent publication of employer's 
 stenographic notes: Laidlaw v. Lear, 30 O. E. 26. 
 Motion to dissolve interim injunction: McCuaig 
 v. Conmee, 18 P. E. 45. Where a plaintiff resides 
 out of the jurisdiction and is required- to give 
 security for costs before prosecuting an action, 
 he must also give the undertaking of a responsible 
 person in the jurisdiction as one term of getting 
 an interlocutory injunction: Delap v. Eobinson, 18 
 P. E. 231. Where serious loss and public inconven- 
 ience would necessarily result from granting in- 
 junction and no irreparable loss from refusing it: 
 see Dwyre v. Ottawa, 25 A. E. 121. Alteration of 
 circumstances is not an answer to an action for an 
 injunction to restrain breach of a covenant: Duke 
 of Bedford v. Trustees British Museum, 2 My. & K. 
 552; Sayers v. Collyer, 28 Ch. D. 103; interlocutory 
 injunctions : Griffith v. Blake, 27 Ch. D. 474, Newson 
 v. Pender, 27 Ch. D. 43; mandatory injunctions: Lon- 
 don Brewery v. Tennant, 9 Ch. D. 212, Isenberg v. 
 East India House, etc., 3 De Gt. J. & S. 263. See Kerr 
 on Injunctions, Seton's Judgments, The Annual 
 Practice, Holmested & Langton, pp. 76 to 96, 1913 
 Eules 216, 211, 221. Injunctions in County Courts : 
 see E. S. O. 1914, ch. 59, sec. 23. Power of Local 
 Judge of High Court : see 1913 Eule 211, also Bald- 
 win v. Chaplin, 4 O. W. N. 1574, 24 O. W. E. 860. 
 
 Equitable execution: Thomson v. Cushing, 30 0. 
 E. 123, 388; Ee Mclnnes v. McGaw, 30 O. E. 
 38. Equitable execution: voluntary payment by 
 -the Crown: Stewart v. Jones, 19 P. E. 227, 
 1 O. L. E. 34. Practice under order appoint- 
 ing receiver: see McLean v. Allen, 18 P. E. 
 255. Judgment debtors, a limited liability com- 
 pany incorporated and doing business abroad had 
 no assets which could be got at by ordinary 
 execution, nor could the judgment creditor make 
 the affidavit under the rules to attach debts by 
 garnishee proceedings, being ignorant of the par- 
 ticulars of the debts. In view of the facts' and of the 
 
■> 
 
 U 
 
 CHAPTER 56. 101 
 
 likelihood of the debtors collecting the funds them- 
 selves, there were special circumstances which made 
 it just and convenient to allow the judgment creditor 
 equitable execution by way of a receiver: Gold- 
 schmidt v. Oberrheinische Metallwerke, 1906, 1 K. 
 B. 373, 75 L. J. K. B. 300. See also as to rights of 
 judgment creditors: Anglo-Italian Bank v. Davies, 
 9 Ch. D. 275. An assignee for value of a debt 
 has priority over a person who subsequently ob- 
 tains an order appointing him receiver by way 
 of equitable execution over such debt, although the 
 order was obtained before notice of the assignment 
 was given by the assignee to the debtor : In re Bris- 
 tow, 1906, 2 Ir. E. 215. Equitable execution for 
 patent: see R. S. O. 1914, ch. 80, sec. 18, Edwards 
 v. Picard, 1909, 2 K. B. 903. In order to justify the 
 making of an order appointing a receiver at the 
 instance of a judgment creditor, the circumstances 
 must be such as would have enabled the Court of 
 Chancery to make such an order before the Judi- 
 cature Act: O'Donnell v. Faulkner, 1 O. L. R. 21; 
 Re Asselin and Cleghorn, 6 O. L. R. 170. Receiver 
 by way of equitable execution: Manufacturers' Lum- 
 ber Co. v. Pigeon, 22 O. L. R. 36, 378, 17 O. W. R. 9, 
 691, 19 O. W. R. 818; Kelly v. Ottawa Journal, 14 O. 
 W. R. 934; Neal v. Rogers, 22 O. L. R. 588. Princi- 
 ples of equitable execution: see Thompson v. Gill, 
 1903, 1 K. B. at p. 795. Right of a mortgagee to a 
 receiver : Re Prytherch, P. v. "Williams, 61 L. T. Rep. 
 799; Truman v. Redgrave, 18 Ch. D. 547. The Court 
 will not appoint a receiver against an executor un- 
 less good cause shown: Richmond v. White, 12 Ch. 
 D. 361, Duties of managers appointed by the Court : 
 Taylor v. Neale, 39 Ch. D. 538. See Kerr on Re- 
 ceivers, Cabale on Attachment, Seton on Decrees, 
 Holmested & Langton, pp. 99-103. 
 
 18. Damages in lieu of specific performance in sale of 
 goods: different principle involved in considering 
 title to lands: see Confederation Life v. Labatt, 27 
 A. R. 321. Specific performance and damages in 
 lieu: Mclntyre v. Stockdale, 23 O. W. R. 586, 4 O. 
 W. N. 482, 27 O. L. R. 460. 
 
 19. The Court will not relieve against forfeiture of lease 
 through breach of covenant not to assign or under- 
 let: Eastern Telegraph Co. v. Dent, 1899, 1 Q. B. 
 
1Q2 CHAPTER 56. 
 
 835. Assignment for benefit of creditors as breach 
 of covenant not to assign or sublet: Gentle v. 
 Faulkner, 1900, 2 Q. B. 267. Forfeitures under 
 stipulations in leases; see E. S. O. 1914, ch. 155, 
 sec. 20. Eequirement of notice and condition 
 limiting time for proofs of loss under accident 
 insurance policy; no power to relieve against con- 
 sequences of non-compliance : Johnston v. Dominion 
 Guarantee and Accident, 17 0. L. E. 462. Belief 
 against forfeitures by insurance companies : (see E. 
 S. O., 1914, ch. 183, sec. 164; Johnson v. Domin- 
 ion of Canada G. & A. I. Co., 11 O. W. E. 363, at p. 
 374. " Double value " is not a penalty or forfeiture 
 against which the Courts can relieve : Webb v. Box, 
 15 0. W. E. 205, 20 O. L. E. 220. Belief against for- 
 feiture: Mortmain: see Armour, Eeal Property, p. 
 278. Belief against forfeiture in contract for sale of 
 lands where instalment provided for: Kilmer v. B. 
 C. Orchard Lands, 1913, A. C. 319. Default of pay- 
 ment of instalments of purchase money under a con- 
 tract of sale where time is of the essence and there 
 are provisions for cancellation and forfeiture on de- 
 fault, relief will be given the purchaser as from for- 
 feiture and specific performance in a proper case: 
 Boyd v. Bichards, 29 O. L. E. 119. Belief from for- 
 feiture; benefit of doubt given in favour of relief: 
 North Bay v. Martin, 1 0. W. N. 1108. 
 
 20. Appeals to Supreme Court: see Union Colliery v. 
 Atty.-Gen., B. C. 27 S. C. B. 637; see also B. S. 0., 
 1897, ch. 84, E. S. 0., 1914, ch. 85. The following 
 cases, among others, have been put either under 
 that Act, or this section : Ee Local Option, 18 A. E. 
 572, 24 S. C. B. 145, 170; as to 53 Vict., ch. 56, sec. 
 18 : Atty.-Gen. for Canada v. Atty.-Gen. for Ontario, 
 20 0. E. 222, 19 A. E. 31, 23 S. C. E. 458; as to 51 
 Vict., ch. 5: Ee Assignments and Preferences Act, 
 20 A. E. 489, 1894, A. C. 189; Ee Queen's Counsel, 
 23 A. E. 792, 1898, A. C. 247; Ee Medical Act, 13 
 0. L. E. 501. 
 
 21. Where there are substantial reasons for double 
 
 litigation, the Court will not stay proceedings in 
 Ontario until after determination of same case in 
 a foreign Court : First Natchez Bank v. Coleman, 2 
 0. L. E. 159. 
 
CHAPTER 56. 103 
 
 22. Difference at law and in equity where possession 
 taken under parol demise : Eogers v. National Drug 
 and Chemical Co., 23 0. L. E. 234, 24 0. L. E. 486. 
 
 24. Appeal as to costs: Gates v. Seagram, 14 0. W. E. 
 182, at p. 188, 19 0. L. E. 216. Error in principle : 
 Crawford v. Broddy, 18 P. E. 233. In District 
 Court: Schaffer v. Armstrong, 13 0. L. E. 40. 
 Third party costs: appeal: Eussell v. Eddy, 5 0. 
 L. E. 379. Appeal from consent order: Be Jus- 
 tin, 18 P. E. 125; Davis v. Winn, 22 0. L. E. 111. 
 This section does not apply to an order made in 
 invitum where jurisdiction is given by consent: 
 Davis v. Winn, 22 0. L. E. 111. Order of Master in 
 Chambers within this section : Davis v. Winn, 16 O. 
 W. E. 945, 17 0. W. E 105, 2 0. W. N. 47, 123, 22 0. 
 L. E. 111. Leave to appeal: Gates v. Seagram, 17 0. 
 L. E. 493. 
 
 26. — (1) To invoke the aid of the Court to quash pro- 
 ceedings where appeal does not lie or where taken 
 against good faith the respondent should apply 
 promptly: Federal Life v. Siddall, 22 0. L. E. 96. 
 Jurisdiction of Divisional Court to hear appeal from 
 order appointing new trustee : Ee Jones Trusts, 
 15 0. W. E. 554, 20 0. W. E. 457. See Monro 
 v. Toronto By., 5 0. L. B. 15 (prior to amend- 
 ment of 1904) ; also Boss v. East Mssouri, 1 O. L. 
 E. 353. Construction of section as enacted in 1904 : 
 see Eex v. Pierce, 10 0. L. B. 297. Practice on 
 appeal : see Payne v. Caughell, 24 A. B. 556. Agree- 
 ment of parties: Be Myles and G. T. E., 3 0. W. N. 
 259. Appeals from discretionary orders: see note 
 3 D. L. E. 778. 
 
 26. — (2), (h) Stated cases: Powers of Divisional Court 
 under case stated by Police Magistrate: B. v. Dom- 
 inion Bowling, 19 0. L. E. 107; see E. S. C., 1906, ch. 
 146, sec. 761; E. S. 0., 1914, ch. 90, sec. 4. 
 
 26. — (2), (i) Powers of Divisional Court: application for 
 second writ of habeas corpus : B. v. Miller, 14 0. W. 
 B. 202, 19 0. L. B. 288. 
 
 26. — (2), (o) Surrogate Court appeals: H. & L. notes, 
 p. 131. 
 
104 CHAPTER 56. 
 
 26. — (2), (p) County Court appeals: see H. & L. notes, 
 pp. 1036,1047. On appeal from District Court where 
 amount was over $1,000 : Drewry v. Percival, 20 O. 
 L. E. 489, 15 O. W. E. 617, 1 O. W. N. 564. 
 
 26. — (2), (q) Division Court appeals: H. & L. notes, pp. 
 131-132. 
 
 27. — (1) The hearing of an appeal from a decision of a 
 Judge without a jury, is a rehearing of the case, and 
 it is the duty of the Court of Appeal to reconsider 
 the evidence, and, if the circumstances warrant, to 
 differ from the Judge, even on a question of fact 
 turning on the credibility of witnesses: Coglan v. 
 Cumberland, 1898, 1 Ch. 704. The onus is on the 
 appellant to satisfy the Court that the Judge below 
 was wrong: Colonial Securities Trusts Co. v. Mas- 
 sey, 1896, 1 Q. B. 38. The rule is generally followed 
 by Appellate Courts not to reconsider concurrent 
 findings of facts by the Court below: see G. T. E. 
 v. Eainville, 29 S. C. E. 201 ; Matthews v. Bouchard, 
 28 S. C. E. 580, and the same idea governs when 
 the decision of the Judge of first instance depends 
 on the balance of testimony: Cook v. Patterson, 10 
 A. E. 645. The Supreme Court of Canada will take 
 questions of fact into consideration on appeal: see 
 Lefeunteum v. Beaudoin, 28 S. C. E. 89. Too liberal 
 damages reduced: see McGarr v. Prescott, 4 O. L. 
 E. 280. Excessive verdicts: see note 1 D. L. E. 386. 
 
 27. — (3) Effect of allowing appeal on non-appealing 
 party : Challoner v. Lobo, 1 O. L. E. 292. 
 
 31. Interim order during vacation to prevent prejudice 
 to the claims of any party pending an appeal: and 
 what may be done by a Judge during vacation may 
 be done by the Court at any other time : Embree v. 
 McCurdy (No. 2), 14 O. L. E. 325, 10 O. W. E. 131. 
 Power of single Judge of Court of Appeal to admit 
 to bail : Ee Watts, 3 O. L. E. 279. Appeals to Divi- 
 sional Courts: see 1913, Eules 491 et seq. When 
 matters are no longer pending: see Hargrove v. 
 Eoyal Templars, 2 O. L. E. 126; Erie v. Burland, 8 
 0. L. E. 174, 176. 
 
 32. Eule to be followed where English Case Law ^and 
 
 Ontario Case Law differ: see Trimble v. Hill, 1879, 
 
CHAPTER 56. 205 
 
 5 App. Cas. 342 ; but see Toronto v. Toronto By., 4 
 0. W. E. 330. Decision of Court of co-ordinate 
 jurisdiction: Mercier v. Campbell, 9 0. W. E. 
 101. Conflict of authority: following " known 
 decision": Ee Shafer, 10 O. W. E. 409, 865, 
 15 O. L. E. 266: Ee Shafer, 15 0. L. E. 266, 
 followed; Dom. Express v. Alliston, 14 0. W. 
 E. 196; see also Eyckman v. Bandolph, 20 0. L. E. 
 •1, 15 0. W. E. 1013. Decision ' ' deemed wrong ' ' : 
 Ee Dinnick & McCallum, 26 0. L. E. 551. Authority 
 of previous decision : Pearson v. Adams, 22 0. W. E. 
 71, 909, 3 0. W. N. 1205, 1660; Stinson and Col. 
 Physicians and Surgeons, 4 0. W. N. 627, 27 0. L. 
 E. 565. Conflicting decision: Ee Dinnick & Mc- 
 Callum, 3 0. W. N. 1061, 21 0. W. E. 897, 26 0. L. 
 E. 551. The doctrine of stare decisis in County 
 Court and Mechanics' Lien appeals: see 47 C. L. 
 J. 443. 
 
 33. See E. S. 0. 1914, ch. 85. Eemarks on practice of 
 notifying Attorney-General: Bartlett v. Delaney, 5 
 0. W. N. 200. 
 
 34. The effect of this enactment that in all cases where, 
 in the opinion of the Court, the payment of a just 
 debt has been improperly withheld, and it seems 
 fair and reasonable that the party in default should 
 make compensation by payment of interest, it is 
 incumbent on the Court to allow interest for such 
 time and at such rate as the Court may think right : 
 Toronto Eailway v. Toronto, 1906, A. C. 117, 75 L. 
 J. P. C. 36. Eight to interest: Patterson v. Dart, 
 24 0. L. E. 609. When claim for interest a proper 
 subject of special indorsement : see George v. Green, 
 13 0. L. E. 189, 14 0. L. E. 578; and see Sinclair v. 
 Preston, 31 S. C. E. 408; Beam v. Beatty, 3 0. L. 
 E. 345. Moneys retained by executors under irregu- 
 lar judgment: executors not chargeable with in- 
 terest: Boys' Home v. Lewis, 3 0. L. E. 208. Foreign 
 judgment : Humphrey v. Clergue, Bugbee v. Clergue, 
 27 A. E. 96, 31 S. C. E. 66; Swaizie v. Swaizie, 31 
 0. E. 324; Bitter v. Fairfield, 32 0. E, 350. Eesident 
 of one province sued in another: Deacon v. Chad- 
 wick, 1 0. L. E. 346. 
 
 35. — (1) Interest on arrears of annuity: Ee Salvin, 
 Worseley v. Marshall, 1912, 1 Ch. 332. Payment of 
 interest : Ee Dale, 3 0. W. N. 329, 20 0. W. E. 546. 
 
106 CHAPTER 56. 
 
 35. — (4) Adding interest to amount of verdict: Milligan 
 v. Toronto Ey., 42 S. C. E. 238. Damages : interest 
 running from date of Eeferee's report: Astover 
 Mines v. Jackson, 1911, 2 Ch. 355. 
 
 36. No rights are given by a certificate of lis pendens — 
 the whole effect is that notice is given that rights 
 are being claimed. The plaintiff has a right to 
 give such notice and the defendant to get the certifi- 
 cate vacated must show that under no circumstances 
 can the facts, as set out in the pleading, give any 
 right to the plaintiff in respect of the land: Brock 
 v. Crawford, 11 0. W. E. 143; Armour, Titles, pp. 
 189-195; Brock v. Crawford, 11 0. W. E. 143; Farah 
 v. Glen Mining Co., 17 0. L. E. 1. In an action 
 brought for a declaration of an inchoate right to 
 dower a lis pendens registered was vacated as vex- 
 atious: King v. King, 13 0. W. E. 760. Where ac- 
 tion was brought for a commission for sale of land 
 and damages for failure to give option, the lis pen- 
 dens registered was vacated with costs: Jenkins v. 
 McWhinney, 23 0. W. E. 29, 4 O. W. N. 90. Where 
 a lis pendens was said to interfere with the winding 
 up of an estate, the Master refused to vacate it, but 
 ordered the trial to be expedited: Salter v. McCaf- 
 frey, 4 0. W. N. 478, 23 0. W. E. 611. See also Ken- 
 nedy v. Kennedy, 4 0. W. N. 1370, 24 0. W. E. 626. 
 
 37. — (3) The party registering the lis pendens may 
 obtain ex parte an order vacating it: McGillivray 
 v. Williams, 4 0. L. E. 454 ; see Ehum v. Pasternack, 
 9 0. W. E. 130. 
 
 37.— (5) Appeal: order dismissing motion to vacate 
 lis pendens not appealable : Hodge v. Hallamore, 18 
 P. E. 447. 
 
 39. — (12) A Judge cannot sit as a member of a Divisional 
 Court hearing an appeal from himself, and equally 
 cannot, after the setting down of an appeal from 
 his judgment, make an order that execution shall 
 not be stayed : Mullin v. Provincial Construction Co., 
 16 0. L. E. 241. 
 
 43. Jurisdiction of single Judge to pronounce the opinion 
 on special case stated by arbitrators pursuant to 
 E. S. 0., ch. 62, sec. 41, E. S. 0., 1914, ch. 65, sec. 29: 
 
CHAPTER 56. 107 
 
 Re Geddes and Cochrane, 2 0. L. R. 145. Order of 
 a Judge presiding at jury sittings: see Bank of 
 Toronto v. Keystone Fire Insurance Co., 18 P. R. 
 113. 
 
 45. See Potter v. Orillia Export Lumber Co., 8 0. W. R. 
 804. 
 
 50. History of sections 50-52, and application discussed : 
 see Vezina v. Will H. Newsome Co., 10 O. W. R. 17, 
 14 O. L. R. 658. 
 
 53. In actions of libel it is not necessary to file and 
 
 serve a jury notice : Puterbaugh v. Gold Medal Mfg. 
 Co., 3 0. L. R. 259. Interlocutory judgment in action 
 under Libel Act: Whitling v. Fleming, 16 0. L. R. 
 263, 11 .0. W. R. 822. 
 
 54. Actions against municipal corporations for injuries 
 through non-repair : see R. S. 0. 1914, ch. 192, 
 sec. 460. The present wording covers actions 
 for the recovery of damages " occasioned by 
 such default, whether the want of repair was 
 the result of nonfeasance or misfeasance." The 
 following cases refer to the distinction drawn 
 between nonfeasance and misfeasance: — Non-re- 
 pair: Burns v. Toronto, 13 0. L. R. 109; Arm- 
 strong v. Euphemia, 7 0. W. R. 552; Hobin v. 
 Ottawa, 8 0. W. R. 589; Armour v. Peterborough, 
 10 0. L. R. 306. Non-repair and misfeasance: Cle- 
 mens v. Berlin, 7 0. L. R. 33 ; Kirk v. Toronto, 7 0. L. 
 R. 36; Ince v. Toronto, 27 A. R. 410, 31 S. C. R. 323. 
 " Non-repair," defined: Armour v. Peterboro, 10 
 O. L. R. 306, at p. 308. " Non-repair," discussion 
 of authorities and meaning of word: Brown v. To- 
 ronto, 21 0. L. R. 230. Non-repair: misfeasance 
 and nonfeasance : see note, 46 C. L. J. 317 ; see also 
 McGuire v. Burk's Falls, 14 0. W. R. 569; Jackson 
 v. Toronto, 2 0. W. N. 24, 16 0. W. R. 931. 
 
 56. — (1) Since the Rules provide for separate jury and 
 non-jury sittings, it is desirable, at any rate in To- 
 ronto, to have it settled at as early a date as possible 
 whether the case is to be tried with or without a 
 jury: Montgomery v. Ryan, 13 0. L. R. 297, 8 0. 
 W. R. 855; Clisdell v. Lovell, 15 0. L. R. 397, 10 0. 
 W. R. 609, 925. This rule may well be extended to 
 
108 CHAPTER 56. 
 
 all cases: Bryans v. Moffatt, 15 0. L. R. 220, 10 0. 
 W. R. 1027. Irregularity: see McKenzie v. Shoe- 
 botham, 10 0. W. R. 1055. Striking out jury notice : 
 (Montgomery v. Ryan, 13 0. L. R. 297, and Clisdell 
 v. Lovell, 10 0. W. R. 925; Bryans v. Moffatt, 15 
 0. L. R. 220, considered) ; Stavert v. McNaught, 13 
 0. W. R. 921, 1105, 18 0. L. R. 370. The jurisdic- 
 tion to strike out a jury notice in Chambers should 
 be confined to cases where it is obvious that no 
 Judge would try the issues upon the record with a 
 jury : Dyment v. Dyment, 13 0. W. R. 461 ; but see 
 Stavert v. McNaught, 18 0. L. R. 370; Stavert v. 
 McNaught, followed ; Hurdman v. Gall Lumber Co., 
 14 0. W. R. 143 ; see Puterbaugh v. Gold Medal Mfg. 
 Co., 3 0. L. R. 259; Hawke v. O'Neil, 18 P. R. 164. 
 Common law action: Schantz v. Berlin, 4 0. L. R. 
 730. Malpractice actions: Town v. Archer, 4 0. 
 L. R. 383. Striking out jury notice and duty of 
 presiding Judge to transfer to non-jury list: Bank 
 of Toronto v. Keystone Fire Ins. Co., 18 P. R. 113. 
 Judge in Chambers can strike out jury notice: 
 Peoples Loan v. Stanley, 4 0. L. R. 90; Schantz v. 
 Berlin, 4 0. L. R. 730. Jurisdiction: Ferguson v. 
 Eyre, 3 0. W. N. 505. Discretion: Miller v. Park, 
 2 0. W. N. 186, 17 0. W. R. 283. The exercise of the 
 discretion of a Judge in Chambers as to striking out 
 a jury notice is not properly reviewable by an Ap- 
 pellate Court: Cornish v. Boles, 4 0. W. N. 1551, 24 
 0. W. R. 877. Leave to file jury notice : delay a rea- 
 son for refusal: Gillies v. McCamus, 1 0. W. N. 1020. 
 
 56. — (4) Exclusive jurisdiction of Chancery before 1873: 
 Hall v. McPherson, 13 O. W. R. 929. An action to 
 enforce a mechanics' lien being a new statutory 
 right which, like this section, had no existence before 
 the 29th March, 1873, cannot come strictly within 
 it: Trussed Concrete Steel Co. v. Wilson, 9 0. W. 
 R. 238. Equitable issue : Bryans v. Moffatt, 15 0. 
 L. R. 220; Clisdell v. Lovell, 15 0. L. R. 397; Sawyer 
 v. Robertson, 19 P. R. 172. Action to restrain nuis- 
 ance a Common Law action: Discretion: Schantz 
 v. Berlin, 4 0. L. R. 730. Action for declaration of 
 trust in respect of land in exclusive jurisdiction of 
 Chancery: Roscoe v. McConnell, 4 0. W. N. 126, 23 
 0. W. R. 108. An action to establish a will trans- 
 ferred from the Surrogate Court is within the for- 
 mer exclusive jurisdiction of the Court of Chancery : 
 
CHAPTER 56. 109 
 
 Jarrett v. Campbell, 26 0. L. E. 83. Where both 
 legal and equitable issues: see Con. Eule 551, 1913, 
 Rule 259. 
 
 58. Agreement of ten jurors but not the same ten on 
 each of several questions: Zufelt v. C. P. R., 23 0. 
 L. R. 602. 
 
 61. "What amounts to a direction to give a general ver- 
 dict: Ede v. Canada Foundry Co., 12 0. W. R. 809; 
 Still v. Hastings, 13 O. L. R. 322 (where section as 
 it then read discussed, and amendment suggested). 
 Oral questions submitted to jury : Herron v. Toronto 
 Ry., 4 0. W. N. 12, 22 0. W. R. 933. 
 
 63. Consideration of practice under the procedure sub- 
 stituted for certiorari. The right to take the new 
 procedure which is substituted for certiorari is con- 
 fined to cases in which, prior to this enactment, the 
 defendant would have been entitled to a writ of 
 certiorari: R. v. Cook, 12 0. W. R. 829, 18 O. L. R. 
 415. Cf. R. S. 0., 1897, ch. 90, sec. 7 (2), as amended 
 1902 and 1904; see also Martin v. Garlow, 14 0. W. 
 R. 969. The Attorney-General is entitled to certior- 
 ari of absolute right and absolutely in all cases. The 
 new procedure does not affect that right: R. v. 
 Nelson, 18 0. L. R. 484. Infant defendant: recog- 
 nizance: R. v. Reid, 12 0. W. R. 1037. This section 
 is explicit as to what return the magistrate shall 
 make upon a motion to quash a conviction. Within 
 these lines his return cannot be questioned. Outside 
 these limits his statements are extra-judicial and ir- 
 relevant: R. v. Davey, 5 0. W. N. 464. See provi- 
 sions of Liquor License Act, R. S. 0. 1914, ch. 215, 
 sees. 94, 110 and 113. Appeal certificate of Atty.- 
 General: see R. v. Leach, 21 0. W. R. 919. See also 
 as to appeal: R. v. Miller, 19 0. L. R. 125; R. v. Teas- 
 dale, 20 0. L. R. 382; R. v. Graves, 21 0. L. R, 329; 
 R. v. Major, 1 0. W. N- 223, and provisions of R. S. 
 0. 1914, ch. 90, sec. 10. 
 
 65. Where an action was referred to a District Court 
 Judge and he, instead of making a report, directed 
 judgment to be entered, his direction was treated 
 as a report: Mazza v. Port Arthur, 1 0. W. N. 223. 
 
 69. Companies whose bonds may be taken, see R. S. 0. 
 1914, ch. 190, sec. 8, note. 
 
HO CHAPTER 56. 
 
 72. As regards infants, the Court may order some per- 
 
 son to execute a conveyance instead of the infants : 
 E. S. 0. 1897, ch. 168, sec. 5, R. S. 0. 1914, ch. 153, 
 sec. 14. As to persons committed for contempt in 
 refusing to execute : see E. S. 0., 1897, ch. 324, sec. 
 18, post, sec. 137 : see also Trustee Relief Act, E. S. 
 0., 1897, ch. 336, sees. 5-19; Trustee Act, 1914, ch. 
 121, sees. 6-16. Vesting orders: see Armour on 
 Titles, pp. 387-389; see also R. S. 0., 1897, ch. 119, 
 see. 15; R. S. 0. 1914, ch. 109, sees. 21, 56. 
 
 73. A wife has no right, without cause, to impose un- 
 reasonable restrictions on marital rights as a condi- 
 tion of co-habitation. Under such circumstances a 
 husband is not guilty of desertion in separating him- 
 self from his wife: Synge v. Synge, 1900, P. 180, 
 1901, P. 317. A husband willing to live with his 
 wife, but refusing to give up adulterous intercourse, 
 is held to have deserted his wife: Koch v. Koch, 
 1899, P. 221. Legal cruelty does not necessarily 
 depend on physical acts or threats of violence: as 
 to what constitutes matrimonial cruelty: see Lovell 
 v. Lovell, 13 O. L. R. 569. The Court must be satis- 
 fied that the husband's offer to take back his wife 
 is bona fide : Rae v. Rae, 31 0. R. 321. Commital of a 
 lunatic wife to an asylum is not cruelty or desertion: 
 Hill v. Hill, 2 O. L. R. 289, 541, 3 0. L. R. 202. 
 Injunction to restrain husband from parting with 
 leasehold property not granted: Carter v. Carter, 
 
 1896, P. 35. Amount of alimony: Sykes v. Sykes, 
 
 1897, P. 306; Kettlewell v. Kettlewell, 1898, P. 138; 
 Bonson v. Bonsor, 1897, P. 77; Stanley v. Stanley, 
 
 1898, P. 227; Kirk v. Kirk, 1902, P. 145; Ashcroft 
 v. Ashcroft, 1902, P. 270. Remedy of wife living in 
 house of husband who refuses to supply her clothing 
 is not alimony, but to pledge her husband's credit 
 for necessaries: Price v. Price, 21 0. L. R. 454. 
 Wife entitled to alimony even where she had delib- 
 erately deserted her husband and children where 
 she had been guilty of no other misconduct and of- 
 fered to return but the defendant refused to receive 
 her: Ney v. Ney, 4 0. W. N. 1536, 24 0. W. R. 873. 
 Registered judgment for alimony : Abbott v. Abbott, 
 3 0. W. N. 683, 21 0. "W. R. 281. An order for pay- 
 ment of interim alimony may be registered : see Con. 
 Rules 370, 371, H. & L. notes, 576-579, 1913 Rules, 
 
CHAPTER 56. 
 
 Ill 
 
 386-388. Registration of a judgment for alimony: 
 see R. S. 0., 1897, ch. 136, sees. 52, 29; R. S. 0. 1914, 
 eh. 124, sees. 23 (8), 43; H. & L. Forms, 842. As to 
 effect of registered judgment under R. S. 0., 1897, 
 ch. 147, sec. 11 : see Armour, Titles, p. 174. R. S. 0. 
 1914, ch. 134, sec. 14. Arrest of defendant in alimony 
 action : see R. S. 0. 1914, ch. 83, sec. 6. 
 
 74. The Court has jurisdiction to award costs of a mo- 
 tion to quash a conviction under an Ontario Statute 
 against either the Justice of the Peace or the in- 
 formant : Rex v. Maneion, 8 0. L. R. 24 ; see Rex v. 
 Bennett, 4 0. L. R. 205. The costs of proceedings 
 by habeas corpus are within this section : Re 
 Weatherall, 1 0. L. R. 542. Court has jurisdiction 
 to award costs against applicant for discharge under 
 habeas corpus of prisoner convicted under provin- 
 cial statute : R. v. Leach^ 17 0. L. R. 643. Real liti- 
 gant ordered to pay : Re Sturmer and Beaverton, 25 
 0. L. R. 190, 566. Where by an interlocutory order 
 ' costs are made ' ' costs in the cause ' ' it merely leaves 
 these costs to be dealt with in the discretion of the 
 trial Judge, and is not a final disposition of them: 
 Dickerson v, Radcliffe, 19 P. R. 223. Execution for 
 costs of application for leave to appeal to Court of 
 Appeal : Peoples Loan v. Stanley, 4 0. L. R. 247. 
 
 76. — (1), (h) A Local Registrar is not one of the " tax- 
 ing officers " mentioned in R. S, 0., 1897, ch. 121, 
 sec. 30 : Re Drinkwater and Kerr, 10 0. W. R. 511, 15 
 0. L. R. 76; R. S. 0. 1914, ch. 112, sec. 30 (4). 
 
 76. — (1), (q) Deputy Registrar and Deputy Clerk of the 
 Crown : see Re Solicitor, 10 0. L. R. 393. 
 
 78. See H. & L. note, p. 652. 
 
 82. Place for Court offices: Rodd v. Essex, 19 0. L. R. 
 659. 
 
 86. A Drainage Referee is not an Official Referee. Pro- 
 visions of R. S. 0. 1897, chs. 51, 62 and 226, dis- 
 cussed : see McClure v. Brooke, 4 0. L. R. 97, 5 0. L. 
 R. 59. Cf. R. S. 0. 1914, chs. 56, 65, 198. 
 
 89. Procedure in case of pending resignation of local 
 Master: see Re Glen, 27 A. R. 144. 
 
112 CHAPTER 56. 
 
 107. See Allstadt v. Gartner, 31 0. E. 495. 
 
 111. See Smerling v. Kennedy, 5 O. L. E. 430, where the 
 result of legislation in E. S. 0., 1897, ch. 51, sec. 28, 
 being special provision for saving existing proce- 
 dure, is summarized. 
 
 114. Jurisdiction of Deputy County Court Judge as 
 local Judge of the High Court: Keyes v. McKeon, 
 23 0. L. E. 529. Powers of local Judges when exer- 
 cised by deputies: Keyes v. McKeown, 2 0. W. N. 
 997, 1014, 19 0. W. E. 21. Judges of District Courts 
 who were Local Judges of the High Court had no 
 jurisdiction to deal with applications under the 
 Vendor and Purchaser Act, or under the Land Titles 
 Act: In re Michell, 31 0. E. 542. 
 
 122. See 4 Geo. II., ch. 26, sec. 1 ; 6 Geo. II., ch. 14, sec. 5. 
 
 123. See 1 Edw. VII., ch. 7, sec. 1, and 1 Anne, ch. 2, sec. 
 4. 
 
 124. Eent may lawfully be made to fall due on Sunday, 
 and if not paid, distress can be made on the follow- 
 ing day: Child v. Edwards, 1909, 2 K. B. 753. This 
 section taken from 29 Car. 2, ch. 7, sec. 6. 
 
 125. See 8 & 9 Wm. III., ch. 11, sec. 8. Practice and pro- 
 cedure in an action on a bond subject to this section 
 and in an ordinary action: see Star Life v. South- 
 gate, 18 P. E. 151 ; see Con. Eule 585 ; H. & L. notes, 
 p. 775; 1913 Eule, 43. As to replevin bonds: see 
 1913 Eules, 359 et seq. 
 
 126. 2 Geo. H., ch. 22, sec. 13 : see Judicature Act, 1897, 
 sec. 57 (7), and ante sec. 16 (d) ; H. & L. notes, pp. 
 445, et seq., especially pp. 446-7, and 1913, Eule 115 ; 
 see also Dig. Ont. Case Law, cols. 6349-6373. For 
 history of this and two following sections : see Gates 
 v. Seagram, 14 O. W. E. 182, at p. 185, 17 0. L. E. 
 493, where the law of set-off and counterclaim is dis- 
 cussed. 
 
 127. 8 Geo. II., ch. 24, sec. 5. 
 
 128. See C. S. TJ. C, ch. 22, sec. 104. History of section: 
 nature of set-off and counterclaim: proper judg- 
 ment where set-off exceeds plaintiff's claim: set-off 
 
CHAPTER 56. 213 
 
 pleaded as counterclaim: Gates v. Seagram, 19 0. 
 L. E. 216. 
 
 129. See 4 & 5 Anne, ch. 3 (or 16 in Buff head's Ed.), 
 sec. 22. 
 
 130. See 4 & 5 Anne (or ch. 16 in Buff head's Ed.), sec. 13. 
 
 131. See 4 & 5 Anne, ch. 3 (or 16 in Buff head's Ed.), 
 sec. 27. 
 
 132. See 46 Ed. III., part (a). " Affected by any re- 
 cord:" see Be Chantler and the Clerk of the Peace 
 
 ■- of the County of Middlesex, 8 0. L. B. 111. 
 
 133. See Imp. Act, 5 & 6 Vic. ch. 69, sec. 1. 
 
 134. Imp. Act, 5 & 6 Vic. ch. 69, sec. 2. 
 
 135. Special case : see Con. Bule 372 ; H. & L. notes, p. 33 
 and pp. 579 et seq; 1913 Bule 126. 
 
 136. See Imp. Act, 13 & 14 Vic. ch. 35, sec. 17. Lis Pen- 
 dens : see Judicature Act, 1897, sees. 97-100, H. & L. 
 notes, pp. 147-9; ante, sec. 37; also B. S. O. 1897 
 ch. 136, sec. 52; B. S. 0. 1914, ch. 124, sec. 43, note. 
 
 137. See Imp. Act, 11 Geo. IV. and 1 Wm. IV., ch. 36, 
 sec. 15, sub-sec. 15. See Judicature Act, 1897, sec. 
 36; H. & L. notes, pp. 31, 32 (ante, sec. 72) ; also Con. 
 Bule 861; H. & L. notes, p. 1119; 1913 Bule 551. 
 Costs : see Con. Bule 1130 ; H. & L. notes, p. 1139 ; 
 ante, sec. 74. See also provisions of B. S. 0. 1897, 
 ch. 336, sees. 5 to 19 ^ see now B. S. 0. 1914 (Lunacy 
 Act), ch. 68, sees. 24 et seq., and B. S. 0. 1914, ch. 
 121, sec. 6 et seq. (The Trustee Act.) 
 
 138. See Imp. Act, 11 Geo. IV. and 1 Wm. IV., ch. 36, 
 sec. 15, sub-sec. 16. Sequestration: see Con. Bules 
 857-861 ; H. & L. notes, p. 1113 et seq., especially pp. 
 1114-1116, as to documents in custody of contemnor ; 
 see also 1913 Eules 547 et seq. 
 
 139. See Imp. Act, 11 Geo. IV. & 1 Wm. IV., ch. 36, sec. 
 15, sub-sec. 18. See Con. Bule 861, H. & L. notes, 
 
 S.A. — 8 
 
114 CHAPTER 56. 
 
 p. 1119, and Con. Rule 856, H. & L. notes, pp. 1112-3, 
 1913 Rule 551. 
 
 140. S.ee Imp. Act. 1 & 2 Vict. ch. 110, sec. 14. Holding 
 shares " in his own right." These words have not 
 the same meaning for the purpose of a charging 
 order as they have for purposes of qualification 
 under the Companies Act. In the former case bene- 
 ficial interest is required: Sutton v. English and 
 Colonial Produce Co., 1902, 2 Ch. 502. This section 
 does not apply where stocks have been fraudulently 
 assigned to avoid execution: Caffrey v. Phelps, 24 
 Gr. 344. Charging order is a matter of discretion: 
 Re Cockrell's Estate, 1911, 2 Ch. 318; 1912, 1 Ch. 23. 
 " Stocks or shares ' in a public company does not 
 include the debentures of a company: 1904, Sellar 
 v. Bright, 2 K. B. 446. A settlement of equitable 
 reversionary personalty may be a settlement 
 within the scope of 13 Eliz. ch. 5, R. S. O. 
 1914, ch. 105, sec. 3, since a creditor may reach 
 such property by a charging order (under this 
 section), or by appointment of a receiver by 
 way of equitable execution: Ideal Bedding Co. 
 v. Holland, 1907, 2 Ch. 157, and cases cited. 
 Contingent interest of judgment debtor: see Bol- 
 land v. Young, 1904, 2 K. B. 824. Service out of 
 jurisdiction: see Kolchmann v. Meurice, 1913, 1 K. 
 B. 534. As to charging order in favour of solicitor 
 on property recovered or preserved: see Rule 1129 
 H. & L. notes, p. 1333-7. 
 
 141. See Imp. Act, 1 & 2 Vict. ch. 110, sec. 15. Where 
 an order has been made charging a judgment deb- 
 tor's interest in shares with the amount due on the 
 judgment, that order cannot be enforced by an order 
 made in the original action: Kolchmann v. Meurice, 
 1903, 1 K. B. 534; Leggott v. Western, 12 Q. B. D. 
 287. See Con. Rule 911, H. & L. notes, p. 1157, 1913 
 Rule 590. As to costs: Con. Rule 1130, H. & L. 
 notes, p. 1339. Ante sec. 74. 
 
 142. See Imp. Act, 3 & 4 Anne, ch. 82, sec. 1. 
 
 143. See 4 Henry VII. ch. 20. 
 
 144. See 18 Eliz. ch. 5. Such an action cannot be brought 
 by an infant by his next friend : Garrett v. Roberts, 
 
CHAPTER 56. 
 
 115 
 
 10 A. E. 650; see Eule 436, H. L. notes, pp. 643-4; 
 1913, Eule 396. 
 
 145. See 18 Eliz. ch. 5. This Province has power to 
 enact that any person who, having violated the pro- 
 visions of the Liquor License Act, compromises 
 such offence, should be imprisoned: see E. v. Board- 
 man, 30 U. C. E. 553. Where a plaintiff agreed to 
 discontinue a qui tarn action on being paid his costs, 
 and in a subsequent action for those costs recovered 
 much less than he thought the jury should have given 
 him, the Court from the nature of the transaction in 
 view of this statute refused any relief: Bleeker v. 
 Myers, 6 U. C. E. 134. See Eules 436-438, H. & L. 
 notes, pp. 643-4, 1913, Eules 393-396. 
 
 146. See 2 Edw. VII. ch. 1, sec. 11. The jurisdiction of 
 the Master in Chambers in quo warranto proceed- 
 ings is confined to such proceedings under the Muni- 
 cipal Act, and does not extend to applications, pro- 
 vided for in sections 146-9 of this chapter. As to 
 writ of summons in quo warranto: see Con. Eule 
 120, H. & L. note, p. 257, 1913, Eule 5. As to costs : 
 see Con. Eule 1130, H. & L. note, p. 1339, ante, 
 sec. 74. 
 
 150. As to jurisdiction of Master in Chambers in pro- 
 ceedings under the Municipal Act in the nature of 
 quo warranto: see E. S. O. 1914, ch. 192, sec. 160, 
 et seq., and as to appeals, see sec. 179. H. & L. 
 notes, p. 218. 
 
 151. An application on habeas corpus to discharge a pri- 
 soner convicted under an Ontario statute is not a 
 criminal matter so as to exclude the jurisdiction of 
 the H. C. J. to award costs : E. v. Leach, 13 O. W. E. 
 86, 17 O. L. E. 643. See E. v. Bennett, note to sec. 13. 
 As to power of High Court to award costs in quasi- 
 criminal proceedings: see Eex v. Mancion, 8 O. L. 
 E. 24. What is a " criminal matter ": see Cope- 
 land-Chatterson v. Business Systems, 11 O. W. E. 
 762. 
 
HQ OHAPTEES 57, 58. 
 
 CHAPTER 57. 
 The Extba Judicial Services Act. 
 
 CHAPTER 58. 
 
 The County Judges Act. 
 
 3. See Bicknell v. Seager, D. C Act, p. 15. 
 
 10. A Deputy County Court Judge in case of illness of 
 the County Judge, has jurisdiction to hold a recount 
 of ballots in an election for the Provincial Legis- 
 lature : Re Prince Edward, 9 0. L. R. 463. Appoint- 
 ment under this section: Keyes v. McKeon, 2 0. 
 W. N. 997, 1014, 19 0. W. R. 21, 23 0. L. R. 529. 
 Jurisdiction of Deputy County Judge as Local Judge 
 of High Court: Keyes v. McKeon, 23 0. L. R. 529. 
 
 14. Signature of requisition to call out troops to quell 
 riot: R. v. Sault Ste. Marie, 1 0. W. N. 1144. 
 
 15. The Judge of another County Court has jurisdiction 
 upon the request of the Judge of the County Court 
 of the County where the land lies to hear a petition 
 to amend a plan by closing part of the street allow- 
 ances. To hear such a petition is one of the judicial 
 duties to be performed by a Judge of a County 
 Court where application is made to him : Re McDon- 
 ald & Listowel, 6 0. L. R. 556. A provision of the 
 Ontario Legislature that the County Judge of one 
 county might preside at the sessions in a county 
 other than that of which he was Judge was not within 
 the competence of the Legislature : Gibson v. McDon- 
 ald, 7 0. R. 401, 3 Cart. 319. 
 
CHAPTER 59. 117 
 
 CHAPTER 59. 
 
 The County Courts Act. 
 
 Refer to: Gorman, County Court Manual (Can.) 
 1914, 3rd Ed.; Robertson, Law of County Courts in 
 Ontario, 1898; Wickham and Saunders' Handy 
 Guide to the County Court (Eng.) ; Holmested and 
 Langton, Judicature Act; The Annual Practice; 
 The Yearly Practice. Bicknell and Kappele, Practi- 
 cal Statutes, pp. 234-237. 
 
 3. As to Judges being Local Judges of the High Court 
 
 Division: see Judicature Act, R. S. 0. 1914, ch. 56, 
 sec. 114. As to concurrent jurisdiction with Master 
 in Chambers: see 1913, Rules 209, 210, 211, 212. 
 
 4. No jurisdiction even by consent to appoint deputy 
 
 without statutory requirements: McMally v. Black- 
 ledge, 1911, 2 K. B. 432. Jurisdiction and appoint- 
 ment of deputy : Keyes v. McKeown, 2 0. W. N. 997, 
 1014, 19 O. W. R. 21, 23 0. L. R. 530. 
 
 5. Place for Court offices : Rodd v. Essex, 19 0. L. R. 659. 
 
 19. Application — Convenience : Ferguson v. Anderson, 4 
 0. W. N. 830, 24 0. W. R. 68. 
 
 22. Effect of passing of the Act, 10 Edw. VIL, ch. 30, 
 on pending actions in regard to costs of matters 
 within increased jurisdiction: Johnson v. Birkett, 
 21 0. L. R. 319, at p. 328, 1 0. W. N. 917; Noble 
 v. Gunn Limited, 1 0. W. N. 884. 
 
 22. — (la). When a sum up to the limit of jurisdiction 
 is agreed on by the parties as remuneration for ser- 
 vices to be performed or the price of an article sold, 
 if the service be performed or the article delivered 
 in pursuance of the bargain, the amount can be recov- 
 ered in the County Court denial of contract and price 
 not availing to oust jurisdiction: Ostrom v. Ben- 
 jamin, 21 A. R. 467. The pleadings should be looked 
 to to ascertain what was in dispute : Brown v. Hose, 
 14 P. R. 3. No jurisdiction to entertain suit on Divi- 
 sion Court judgment: Crowe v. Grahame, 17 0. W. 
 
;Qg CHAPTER 59. 
 
 R. 143, 2 0. W. N. 158, 22 0. L. R. 145. Amount of 
 claim within limit and claim for interest making the 
 total over the limit : Malcolm v. Leys, 15 P. R. 485. 
 By sec. 119 of the Judicature Act the provisions of 
 sec. 34 of that Act as to interest apply to County 
 Courts. Actions where the amount of the debt or 
 damages claimed is above a certain amount: see H. 
 & L. notes, p. 1363. 
 
 22. — (lb) The term "personal actions " means com- 
 mon law actions. The County Courts had common 
 law jurisdiction only: McGugan v. McGugan, 21 
 O. R. 289, 19 A. R. 56, 21 S. C. R. 267. Action 
 for delivery up of a promissory note held to 
 sound in tort: Plummer v. Coldwell, 15 P. R. 144. 
 As to jurisdiction in action for more than stated 
 limit on a general guarantee for payment of the 
 price of goods: see Thomson v. Eede, 22 A. R. 
 105. The test as to the quaniam of costs is the 
 amount recovered: Moffatt v. Link, 2 0. W. N. 56, 
 16 0. W. R. 984. Scale of costs: Ramsay v. Luck, 
 3 0. W. N. 1053; Striker v. Rosebush, 17 0. W. 
 R. 205, 2 0. W. N. 160. By sec. 119 of the 
 Judicature Act, the provisions of sec. 71 of 
 that Act regarding tender of amends in cases 
 of tort, and the provisions of sees. 58-62, providing 
 for jury trials and the duty of the Judge in cases 
 of malicious prosecution apply to County Courts. 
 Jurisdiction ousted in particular classes of actions: 
 see H. & L. notes, p. 1362. 
 
 22. — (lc) In an action for injury to land the value of the 
 property and not the amount of damages sustained 
 was formerly the factor in determining jurisdiction: 
 Moffatt v. Carmichael, 14 O. L. R 595; Ross v. 
 Vokes, 14 O. W. R. 1142, 1 0. W. N. 260; Fortier v. 
 Chenier, 12 0. W. R. 5. Value of property — lessee's 
 interest and freehold value: Angel v. Jay, 1911, 1 
 K. B. 666. 
 
 Title to land does not on mere suggestion neces- 
 sarily come into question under a plea of not 
 guilty by statute : Ball v. G. T. R., 16 C. P. 252. Nor 
 where the question is whether a right to impound 
 arises out of a right of pasturage: Graham v. 
 Spettigue, 12 A. R. 261. Nor where the question is 
 
CHAPTER 59. 119 
 
 if a township is liable to repair a highway : Re 
 Knight v. Medora, 14 A. B. 112. Nor where the 
 dispute is as to the terms of the tenancy : Ee English 
 & Mnlholland, 9 P. E. 145, or as to breach of coven- 
 ant in a lease: Talbot v. Poole, 15 P. E. 99. Nor 
 where the question was the ownership of rails put by 
 mistake on another's land for a line fence : Bradshaw 
 v. Duffy, 4 P. E. 50; Nor where a conveyance of 
 land was given as security for a promissory note 
 where the note was sued on : McGokick v. Eyall, 26 
 0. E. 435. The bare assertion of the defendant that 
 the right on title to a corporeal or incorporeal here- 
 ditament is in question will not oust the jurisdiction. 
 The Judge has authority to enquire into so much of 
 the case as will satisfy him on the point, and if 
 the facts lead to only one conclusion, and that 
 against the defendant, there is no such bona fide dis- 
 pute as will oust the jurisdiction $>f the Court: 
 Moberly v. Collingwood, 25 0. E. 625. (This was 
 a case of surrender of lease). See also Crawford v. 
 Seney, 17 0. E. 74, where the question was a claim 
 for use and occupation, and the defendant set up a 
 contract for sale. And where title was denied after 
 attornment, the Court had jurisdiction because the 
 title was not open to question by the defendant: 
 Bank of Montreal v. Gilchrist, 6 A. E. 659. 
 
 There is no jurisdiction in matters of tort relating to 
 personal chattels if the title to land is brought in in- 
 cidentally: Trainor v. Holcombe, 7 U. C. R. 548. Nor 
 in an aetion by remaindermen against tenant for 
 selling timber where the life tenant's defence was 
 that payments had been made on an existing mort- 
 gage, and claiming to be subrogated to the mort- 
 gagee's rights: Whitesell v. Eeece, 9 O. L. E. 182. 
 Nor in an action for conversion where the question 
 was whether the house was part of the freehold : Port- 
 man v. Patterson, 21 U. C. E. 237. Prima facie proof 
 of title being given and that such title must come 
 into question, and no cause being shown to the con- 
 trary, jurisdiction is ousted : Bradshaw v. Duffy, 4 P. 
 E. 50. The title to corporeal hereditaments is in 
 question whether the existence thereof or the right of 
 the claimant is denied: Adey v. Trinity House, 22 
 L. J. Q^ B. 3. Where the plaintiff would require to 
 prove his title in a claim for damages for cutting 
 
120 CHAPTER 59. 
 
 timber, jurisdiction was ousted: Danaker v. Little, 
 13 P. E. 361, but not where the action was simply- 
 one of trespass to land: Bailey v. Bleecker, 5 C. L. 
 J. 99. Where upon pleadings the title to land is 
 brought in question : see Seabrook v. Young, 14 A. R. 
 97: Flett v. Way, 14 P. E. 123; Worman v. Brady, 
 12 P. E. 618; Brown v. Hose, 14 P. E. 3; Neely v. 
 Parry Sound, 8 O. L. E. 128. When title to land is 
 " in question ": Dobner v. Hodgins, 14 0. W. E. 
 265, 593, 1 O. W. N. 12. Jurisdiction in action for 
 possession by landlord : Walters v. Wylie, 20 0. W. 
 E. 994, 3 O. W. N. 567. See H. & L. notes, p. 1362. 
 
 22. — (le) The County Court's authority to make vest- 
 ing orders : see E .S. 0. 1914, ch. 56, sees. 119 and 72. 
 As to lis pendens : see ch. 56, sees. 119 and 36. And 
 see sec. 28 infra. Note on this provision and the 
 next following sub-section, 47 C. L. J. 205. 
 
 22. — (Ig) Partnership accounts: Allen v. Fairfax, 21 
 0. E. 598. 
 
 22. — (lh) Legacy charged on land: s^ee Eustin v. Brad- 
 ley, 28 0. E. 119. Action against executor for speci- 
 fic legacy : venue : see sec. 30 infra ; Curlette v. Ver- 
 milyea, 1 0. W. N. 693, 15 0. W. E. 863. 
 
 22. — (li) An action for a legacy charged on land is a 
 matter involving equitable relief. The subject mat- 
 ter involved in such an action is the amount of the 
 legacy, not the value of the land : Eustin v. Bradley, 
 28 0. E. 119: see now sub-sec. (h). When a cause 
 of action is within the jurisdiction, an injunction may 
 be granted to restrain an apprehended wrong, and 
 a declaration of right may be had whether substan- 
 tive relief is sought or not in as full and ample a 
 manner as in the Supreme Court: Bradley v. Bar- 
 ber, 30 0. E. 443. A County Court has jurisdiction, 
 whatever the amount of the mortgagee's claim may 
 have been when power of sale exercisedj to enter- 
 tain an action for the recovery of surplus from the 
 sale not exceeding the money limit, although the 
 existence of the surplus is denied: Eeddick v. Tra- 
 ders Bank, 22 0. E. 449. A County Court can give a 
 judgment for nominal damages and grant an injunc- 
 tion' in an action for trespass where the limit 
 
CHAPTER 59. 121 
 
 of jurisdiction is not exceeded. A counterclaim 
 on which no relief can be given makes no dif- 
 ference as to the jurisdiction: Fitchett v. Mel- 
 low, 18 P. E. 161; see Neely v. Parry Sound, &c, 
 Co., 8 0. L. B. 128. Plaintiff had a Division Court 
 judgment for $92, and costs, and brought an action 
 to set aside a chattel mortgage for $520, made by the 
 defendant as fraudulent. The subject-matter in- 
 volved was the amount of the judgment and the 
 Court had jurisdiction: Thomson v. Stone, 4 0. L. 
 E. 333. Equitable Eelief : see H. & L. notes, on var- 
 ious matters of equitable jurisdiction, pp. 13-25. 
 Specific performance: H. & L. notes, p. 23 ad fin. 
 Eelief against forfeiture : H. & L. p. 48. Declaratory 
 judgments : H. & L. note, p. 51. Actions for equitable 
 relief not falling within section: see H. & L. notes, p. 
 1364-5. How far equitable jurisdiction of the County 
 Courts restored : see Halliday v. Eutherf ord, 23 Occ. 
 N. 200. By sees. 119 and 23 of the Judicature Act, E. 
 S. 0. 1914, ch. 56, the provisions of sees. 16 to 22 of 
 that Act have effect in all Courts so far as 
 the matters to which they relate are cognizable by 
 such Courts. This includes the giving of equitable 
 relief (sec. 16 (a)), making declaratory judgments 
 and orders (sec. 16 (b)), giving effect to equitable 
 defences: (see. 16 (c), (d). Giving effect to equit- 
 able rights and enforcing equitable duties (sec. 16 
 (e) ). Injunction, mandamus (but see Eich v. Melanc- 
 thon Board of Health, 26 0. L. E. 48) ; receiver (sec. 
 16 (f), 17) ; relief against forfeiture (sec. 20). And 
 it also includes sec. 22, by which the rules of equity 
 are made to prevail. 
 
 22. — (1^') Jurisdiction of Division Court: see E. S. 0, 
 1914, ch. 63, sec. 62 (le). Eight to rank on insolvent 
 estate: see Whidden v. Jackson, 18 A. E. 439. 
 
 22.— (1) By the provisions of E. S. 0. 1914, ch. 56, sec. 
 119, and 50-52, the County Court have power similar 
 to the Supreme Court in the case of Quebec judg- 
 ments, have the same powers as to costs (sec. 74), in- 
 terest (sec. 34), sheriffs (sec. 115), gaols (sec. 116), 
 and are bound by decision in the same way (sec. 32). 
 The jurisdiction of the County Court is also limited, 
 in addition to matters referred to in this section, in 
 interpleader, see Con. Eules 1123-8; H. & L. notes, 
 pp. 1329-1332; 1913 Eules 644, 645. No jurisdiction 
 
122 CHAPTER 59. 
 
 in County Court to entertain action against a ben- 
 evolent order for sick benefits in absence of cor- 
 rupt motive of domestic tribunal: Thompson v. 
 Court Harmony, A. O. F., 1 0. W. N. 870. The 
 County Courts have jurisdiction to any amount 
 named in the statement of claim when the defend- 
 ant does not dispute liability, either by his appear- 
 ance or statement of defence: Pearce v. Toronto, 
 
 25 0. W. E. 321. 
 
 22. — (3) Eemoval of action to Supreme Court: Emmons 
 v. Dymond, 4 0. W. N. 1363, 1405; 24 0. W. E. 657, 
 735 ; Farrow v. McPherson, 2 O. W. N. 70, 16 W. E. 
 1009 ; see also H. & L. notes, pp. 192-3. 
 
 22. — (7) Discretion as to costs on removal from County to 
 High Court : Donkin v. Pearson, 1911, 2 K. B. 412. 
 
 23. — (1) Plaintiff's claim in excess of jurisdiction, but de- 
 fendants' set-off reduced it below the County Court 
 maximum. The Court had jurisdiction : Finn v. Gos- 
 nel, 14 0. W. E. 830. A County Court has not juris- 
 diction merely by reason of the existence of a set-off : 
 Caldwell v. Hughes, 4 0. W. N. 1192, 24 O. W. E. 498. 
 Counterclaim beyond jurisdiction: Wallace v. 
 Peoples' Life, 30 0. E. 438. A plaintiff having a 
 claim against which the defendant may if he pleases 
 set up a set-off, must sue in the Supreme Court, for 
 he cannot compel the defendant to set up his claim 
 by way of set-off and he cannot by voluntarily 
 admitting it, confer jurisdiction upon the inferior 
 Court: Caldwell v. Hughes, 24 0. W. E. 498; Everly 
 v. Dunkly, 5 O. W. N. 65, 25 0. W. E. 29. 
 
 23. — (2) Transferring causes frdm County Court to High 
 Court where the defence or counterclaim involves 
 matter beyond the jurisdiction of the Court : see H. 
 & L. notes, pp. 192-193. 
 
 24. Appeal to the Supreme Court of Canada in a case in 
 which the action was commenced in the County Court 
 and transferred to the High Court: Young v. -Tucker, 
 
 26 A. E. 162, 30 S. C. E. 185. 
 
 28. See Judicature Act, E. S. 0. 1914, ch. 56, sec. 23, 
 which makes the provisions of sees. 16 to 22 appli- 
 cable to County Courts. (See note to sec. 22 (li) 
 
CHAPTER 59. 123 
 
 ante). See also E. S. 0. 1914, ch. 56, sec. 119, which 
 makes the following sections of the Judicature Act 
 applicable to County Courts, viz.: sec. 32 (stare 
 decisis), sec. 34 (interest), sec. 36 (lis pendens), sees. 
 50-52 (Quebec judgments), sees. 58-62 (jury trials, 
 malicious prosecution), sec. 71 (tender of amends in 
 tort), sec. 72 (vesting orders), sec. 74 (costs), sec. 
 115 (sheriffs), and sec. 116 (gaols), as well as sec. 24 
 (orders subject to appeal). This section was held to 
 give the County Court no jurisdiction to issue a per- 
 emptory writ of mandamus: Eich v. Melancthon 
 Board of Health, 26 0. L. E. 48. 
 
 29. Where the action itself should not be removed it is 
 impossible to remove a part of it or a proceeding in 
 it : Ee Hill and Telford, 12 0. W. E. 1056. An action 
 cannot be removed after verdict or judgment in 
 favour of the plaintiff leaving that judgment in 
 force with right to either party to move against it 
 in the High Court: Sherk v. Evans, 22 A. E. 242. 
 When action removable: see Martin v. Mitchell, 
 1 Ch. Ch. 384; Ee McGugan v. McGugan, 21 0. E. 
 289 ; Ee McKay & Martin, 21 0. E. 104; Struthers v. 
 Green, 14 P. E. 486. The High Court cannot remove 
 an action from the County Court after trial and 
 judgment : Eoche v. Allan, 23 0. L. E. 478. ' ' Fit to 
 be tried in the High Court:" Emmons v. Dymond, 
 4 O. W. N. 1363, 1405, 24 0. W. E. 657, 735. 
 
 30. Venue in County Court action. Convenience: Em- 
 pire Cream Separator v. Pettypiece, 13 0. W. E. 704, 
 902; Baughart Bros. v. Miller, 4 0. W. N. 1368, 
 24 0. W. E. 629. Adequate reason for change of 
 venue : McEeedie v. Dalton, 15 0. W. E. 875. An 
 action against an executor for a specific legacy or 
 in default of damages is within this provision: 
 Curlette v. Vermilyea, 1 0. W.^N. 693, 15 0. W. E. 
 863. The fact that judgment has been signed 
 against one defendant does not deprive the other 
 defendants of the right to have the trial at the place 
 which is most convenient: Martin v. McLeod, 5 0. 
 W. N. 79, 25 0. W. E. 66. Venue: see H. & L. 
 notes, pp. 1449, 218; Con Eule 529 b; H. & L. notes, 
 pp. 734, 736; 1913 Eule 245. " Brought and tried:" 
 see H. & L. notes, p. 259. 
 
224 CHAPTER 59. 
 
 32. See in particular: 1913 Rules 764-771. Rules con- 
 sidered: notice required of contention to be raised 
 that legislation ultra vires: garnishment of bank 
 with head office in Ontario in respect of a deposit in 
 Calgary: McMulkin v. Traders Bank, 3 0. W. N. 787, 
 21 0. W. R. 640, 26 0. L. R. 1; see R. v. Lovitt, 
 1912, A. C. 212. 
 
 36. See H. & L. notes, p. 1254. 
 
 39. See Judicature Act, R. S. 0. 1914, ch. 56, sec. 26 (2 p.) 
 as to appeals to Divisional Court, and see 1913 Rules 
 491 et seq. ; see H. & L. notes, pp. 1036-1047. Surro- 
 gate Court appeals are upon the like practice and 
 procedure: R. S. 0. 1914, ch. 62, sec. 34 (3). Appeal 
 where the Judge at the conclusion of the plaintiff's 
 evidence withdraws the case from the jury and dis- 
 misses the action: Hagen v. C. P. R., 30 0. R. 138. 
 Former practice of moving against verdict before 
 County Court Judge at quarterly sittings ; Norton v. 
 McCabe, 12 P. R. 506, and see H. & L., pp. 1038, 1039. 
 Discovery of new evidence : Butler v. McMicken, 32 
 0. R. 422. "Where findings of jury reversed in term : 
 Booth v. C. P. R., 13 0. L. R. 91, and see also Irish- 
 man v. Garland, 3 0. L. R. 241 ; Irvine v. Sparks, 31 
 O. R. 603 ; Donaldson v. Wherry, 29 0. R. 552. 
 
 40.— (1) See provision of Judicature Act, R. S. 0. 1914. 
 ch. 56, sees. 119 and 24, and notes to that section. 
 Section considered and construed: Forbes v. Forbes, 
 2 0. W. N. 976, 19 O. W. R. 47. Right of 
 appeal from orders. Section considered: Gibson v. 
 Hawes, 24 0. L. R. 543. Where the Master in Cham- 
 bers directed an interpleader issue to be tried in the 
 County Court without jurisdiction, which was appar- 
 ent on the face of the order, all proceedings under it 
 were coram non judice, and there was no right of 
 appeal from the judgment of the County Court on 
 the issue : Teskey v. Neil, 15 P. R. 244. An appeal 
 lies from the order of a County Court disposing of 
 an issue upon a garnishing application and the claim- 
 ant, plaintiff in the issue but not an original party, 
 may be appellant : Henderson v. Rogers, 15 P. R. 241. 
 There was no appeal from an order dismissing an 
 application made by a claimant under sec. 30 of the 
 Assignments Act, R. S. 0. 1897, ch. 147; R. S. 0. 
 1914, ch. 134, sec. 34; Simpson v. Clafferty, 18 P. 
 R. 402. 
 
CHAPTER 59. 225 
 
 40. — (le) After judgment dismissing action with costs 
 and notice of appeal therefrom given by plaintiffs, an 
 order was made requiring the plaintiffs to give addi- 
 tional security or have their action dismissed. This 
 was interlocutory and not appealable: Arnold v. 
 Van Tuyl, 30 0. B. 663. On a motion to set aside as 
 irregular a judgment by default, the Judge held the 
 judgment regular but set it aside on terms as to 
 costs. This order was not in its nature final and the 
 appeal did not lie: O'Donnell v. Guinane, 28 0. R. 
 389; see also Fisken v. Stewart, 17 C. L. T. Occ. N. 
 82; Slater v. Trader, 17 C. L. T. Occ. N. 83. " Final 
 order:" see Johnson v. Eefuge Assurance Co. 
 1913, K. B. 259. An appeal lies from an order 
 committing the defendant to gaol as a judg- 
 ment debtor for making away with his pro- 
 perty to defraud creditors, it being in its nature 
 final: Baby v. Eoss, 14 P. E. 440. The defendant 
 paid into Court $95 in full which the plaintiff ac- 
 cepted. The County Court Judge made an order 
 allowing the defendant to set off the amount of his 
 County Court costs in excess of what he would have 
 incurred in a Divisional Court, and to issue execu- 
 tion for the excess if any. This order was, in its 
 nature, final, and therefore appealable under this 
 section. Babcock v. Standish, 19 P. E. 195. An 
 order of a County Judge discharging the defendant 
 from arrest under ca. sa. is not final within the 
 meaning of this section,, and an appeal does not lie : 
 Gallagher v. Gallagher, 31 O. E. 172. An order 
 approving sale and making disposition of the funds 
 of a company which was being voluntarily wound 
 up, was in its nature final and appealable and held 
 a nullity: Ee D. A. Jones Co., 19 A. E. 63. On order 
 for summary judgment, unless money paid into 
 Court is in its nature final: Castle v. Kouri, 14 0. 
 W. E. 125, 18 0. L. E. 462. An order of a County 
 Court Judge under Con. Eule 261 (1913, Eule 124) 
 is in its nature final, and an appeal will lie : Smith 
 v. Traders Bank, 11 0. L. E. 24. A County Court 
 Judge's order dismissing an appeal from a ruling 
 as to the scale of costs awarded the plaintiff by his 
 judgment, is interlocutory and not final, and no ap- 
 peal lies to a Divisional Court : Leonard v. Burrows, 
 7 0. L. E. 316. So also is an order dismissing an 
 application to vary minutes under Con. Eule 625 
 
226 CHAPTER 59. 
 
 (2), (1913, Eule 527) : Ee Taggart and Bennett, 6 
 0. L. E. 74. Appeal from order made by a County 
 Court Judge under Con. Eule 907: see H. & L. 
 notes, p. 1144 (see 1913, Eule 587), and see also H. 
 & L. notes, pp. 1040-3. Final or interlocutory order, 
 pp. 1040-1. Judgments and orders appealable, pp. 
 1041-2. Judgments and orders not appealable, p. 
 1042. Appeal from order of Surrogate Judge that 
 security for costs be given: see E. S. 0. 1914, ch. 62, 
 sec. 34: Forbes v. Forbes, 23 O. L. E. 518. There 
 is no appeal from an interlocutory order under any 
 clause of the section : Gibson v. Hawes, 20 O. "W. E. 
 109, 3 O. W. N. 91, 24 O. L. E. 543. 
 
 40. — (2) Where Judge is persona designata: see 9 Edw. 
 VII., ch. 46, sec. 4; E. S. O. 1914, ch. 79; H. & L. r 
 p. 1043. 
 
 41. See H. & L. notes, p. 1043. 
 
 42. See H. & L. notes, pp. 1043-5. It is not a valid 
 objection to an appeal that the C. C. Judge has not, 
 in certifying the proceedings, expressed that they 
 are certified " to the Court:" Baby v. Eoss, 14 P. 
 E. 440. The provisions of sections limiting time to 
 set do"wn appeals were peremptory, and there was 
 no power to dispense with such provisions or en- 
 large the time (Beekie v. McNeil, 31 O. E. 444), 
 until the enactment in 1904 of sub-section 2 of sec- 
 tion 44: see Paul v. Eutledge, 16 P. E. 140. The 
 Court can always extend time on application where 
 the appeal has been lodged and will do so as a 
 matter of course where there has been no wanton 
 delay in giving security within the time allowed by 
 the County Judge: Gilmour v. McPhail, 16 P. E. 
 151. 
 
 43. This section was Con. Eule 794. 
 
 44. Power to extend time for appealing after time ex- 
 pired : Hunter v. Patterson, 2 O. W. N. 61, 16 Q. W. 
 E. 993; see 1913, Eule 176. As to appeals: see H. 
 & L. p. 1044; see 1913, Eules 491 et seq. " Thirty 
 days from the judgment " (sec. 44 (1)). One month 
 from the date of judgment (1913, Eule 491) : see 
 also under former wording: Fawkes v. Swayzie, 31 
 
CHAPTERS 60, 61. 127 
 
 0. E. 256 ; Maxon v. Irwin, 15 0. L. R. 81, at p. 89, 
 10 0. W. R. 537 ; Allan v. Place, 15 0. L. R. 148, 10 
 0. W. R. 603. 
 
 45. Former Con. Rule 498. 
 
 46. Where an appeal from a County Court decision was 
 
 dismissed by a Divisional Court with costs, as of a 
 motion to quash on the ground that no appeal lay, 
 the costs are taxable on the High Court scale, and 
 recoverable by execution in the High Court : Francis 
 v. Huff, 11 0. W. R. 343. Case remitted to County 
 Judge under this section to enable the defendants 
 to develop their defence fully: Farmers Bank v. 
 Big Cities Realty, 1 0. W. N. 397 : see H. & L., p. 
 1043 ; see Former Con. Rule 818. 
 
 CHAPTER 60. 
 
 The G-enebal Sessions Act. 
 
 3. Statute 53 Vic, ch. 18, sec. 2 (o), which authorizes 
 police magistrates to try and convict persons 
 charged with forgery, was considered ultra vires 
 under B. N. A. Act, sec. 91, sub-sec. 27, in Reg. v. 
 Toland, 22 0. R. 505; but in Reg. v. Levinger, 22 
 0. R. 690, it was held within the powers of a Pro- 
 vincial Legislature as being in relation to the con- 
 stitution of a Provincial Court of criminal jurisdic- 
 tion and not a matter of criminal law or procedure. 
 Appeals to Sessions under R. S. 0. 1914, ch. 90, sec. 
 10 (The Summary Convictions Act) now lie on the 
 complaint of any (person who thinks himself 
 aggrieved, whether complainant or defendant. The 
 Appeal is to Sessions where the conviction adjudges 
 imprisonment. In all other cases to the Division 
 Court. 
 
 CHAPTER 61. 
 
 The County Judges' Criminal Courts Act. 
 
228 CHAPTER 62. 
 
 CHAPTER 62. 
 
 The Stjkbogate Coubts Act. 
 
 Eefer to: Howell, Probate Practice; Weir, Law of 
 Probate; Tristram and Coote, Probate Practice 
 (with Canadian Cases); Williams, Executors and 
 Administrators; Powles and Oakley, Law and 
 Practice relating to Probate and Administration 
 (Browne on Probate). 
 
 4. Evidence : as to proof of wills by certified copy where 
 registered: see Armour, Titles, pp. 124, 115, 348; 
 R. S. 0. 1897, ch. 136, sec. 28; E. S. 0. 1914, ch. 124, 
 sec. 22, ch. 76, sees. 46, 47. 
 
 8. A Junior County Judge who has heard the evidence 
 and tried the issue in a Surrogate Court while the 
 office of Senior Judge is vacant, has the right to 
 deliver judgment in such case after the new Senior 
 Judge has been appointed: Speers v. Speers, 28 
 0. E. 188. 
 
 14. Place for Court offices: Eodd v. Essex, 19 0. L. E. 
 659. 
 
 19. The Surrogate Courts are not statutory Courts, hav- 
 ing only those powers which are conferred upon 
 them by this Act. They are invested with the auth- 
 ority and jurisdiction over executors and adminis- 
 trators, the committing of letters of administration 
 and the grant of letters probate' as were in use in 
 the Ecclesiastical Courts of England, except in so 
 far as the same have been revoked by subsequent 
 legislation or rules: Grant v. Great Western, 7 C. 
 P. 438 ; Cunningham v. Cunningham, 2 0. L. E. 511, 
 at p. 518; Ee Wilson and Toronto General Trusts, 
 13 0. L. E. 82; but see as to inherent jurisdiction; 
 Ee Mercer, 26 0. L. E. 427. For historical review 
 of origin and general jurisdiction of Surrogate 
 Courts in Ontario: see judgment of Draper, C.J. : 
 Grant v. G. W. Ey., 7 C. P. 438. For review of 
 powers of the Court as to accounting: see Cunning- 
 ton v. Cunnington, 2 0. L. E. 511; Ee Eussell, 8 
 0. L. E. 481 ; Union Trust v. Beasley, 12 0. W. E. 
 336; and see notes to sec. 71 infra. The Surrogate 
 
CHAPTER 62. 
 
 129 
 
 Court alone has jurisdiction to determine whether 
 an absentee be dead and whether he died intestate : 
 Re Coots, 1 0. W. N. 807, 17 0. W. E. 727 (but see 
 provisions of Insurance Act, R. S. 0. 1914, ch. 
 183, sec. 165). The Supreme Court of Ontario 
 has no jurisdiction to revoke the grant by a 
 Surrogate Court of letters of administration: 
 McPherson v. Irvine, 26 0. R. 438. Supreme 
 Court will not interfere to revoke grant of 
 letters : Belanger v. Belanger, 2 0. W. N. 543, 1360, 
 24 0. L. R. 441. Jurisdiction of Supreme Court to set 
 aside a will as having been executed under improper 
 influence or without sufficient capacity without wait- 
 ing for a revocation of probate : "Wilson v. Wilson, 24 
 Gr. 377. Where a probate has been granted in com- 
 mon form and a subsequent will is adduced ; jurisdic- 
 tion to try the validity of the probate : Perrin v. Per- 
 rin, 19 Gr. 259. The Supreme Court has no jurisdic- 
 tion to deal with a retractation or renunciation of 
 probate : Foxwell v. Kennedy, 2 0. W. N. 821, 1299, 
 18 0. W. R. 782, 24 0. L. R. 189. The Supreme 
 Court has no power to interfere with the particular 
 jurisdiction of the Surrogate Court: Belanger v. 
 Belanger, 2 0. W. N. 543, 1360, 19 0. W. R. 695, 24 
 O. L. R. 441; Murtrie v. Alexander, 18 0. W. R. 
 836, 23 0. L. R. 396. Effect of change in wording 
 from R. S. O. 1897, ch. 59, sec. 17: Badenach v. 
 Inglis, 4 O. W. N. 1495, 29 0. L. R., 165. The 
 Supreme Court has jurisdiction to entertain an 
 action for a declaration of the invalidity of a 
 will, notwithstanding a decision of the Surro- 
 gate Court admitting the will to probate after 
 a eontest to which, the plaintiff in the Supreme 
 Court action was not a party. The validity 
 of the will was not res adjudicata by the decision of 
 the Surrogate Court: Badenach v. Inglis, 29 0. L. 
 R. 165 ; see Judicature Act, R. S. 0. 1897, ch. 51, sec. 
 38 ; R. S. 0. 1914, ch. 56, sec. 12, and see notes to sec. 
 32 infra. 
 
 20. Insolvent executor: Johnson v. Mackenzie, 20 0. R. 
 131 ; Gladdon v. Stoneman, 1 Mad. 143 (n) ; Langley 
 v. Hawten, 5 Mad. 46; Dowd v. Hawten, 19 Ch. D. 
 61. Grant of probate to infant: see Cumming v. 
 Landed Banking, 20 0. R. 382; Toll v. C. P. R., 8 
 
 S.A.— 9 
 
230 CHAPTER 62. 
 
 W. L. R. 795 ; and see provisions of E. S. 0. 1897, 
 ch. 337, sees. 3 and 4. As to grant of administration 
 durante minore aetate : post, sees. 50 and 51. 
 
 24. If the Court had jurisdiction, the grant of adminis- 
 tration is valid though obtained irregularly and 
 issued improvidently : London and Western Trusts 
 v. Traders Bank, 11 0. W. E. 977, 16 0. L. E. 382. 
 To what Court grant shall belong: Book v. Book, 
 15 0. E. 119; McPherson v. Irvine, 26 0. E. 438; 
 London and Western Trusts Co. v. Traders Bank, 
 11 0. W. E. 977, 16 0. L. E. 382. The existence of 
 real or personal estate at the time of death is not 
 essential to give jurisdiction: Jennings v. G. T. E., 
 15 A. E. 477. Foreign domicile : Ee Medbury, Loth- 
 rop v. Medbury, 11 0. L. E. 429. Foreign domicile 
 of family on whose behalf action under E. S. 0. 
 1914, ch. 151, is brought: Gyorgy v. Dawson, 13 O. 
 L. E. 381. Where there was a supposed intestacy 
 and the administrator sold lands : action by devisees 
 of lands against purchasers where will subsequently 
 discovered: Hewson v. Shelley, 1913, 2 Ch. 384. 
 Will discovered after sale by administrator: Article, 
 49 C. L. J. 608. Effect of revocation of erroneous 
 grant: see E. S. O. 1914, ch. 121, sec. 50 and notes; 
 see infra, sec. 27 and notes. 
 
 27. A grant of administration is a judgment in rem 
 which is unquestionable while it stands, unless it is 
 shewn that the person whose estate is in question 
 is not dead, or that the Court had no jurisdiction: 
 London and Western Trusts v. Traders Bank, 16 
 O. L. E. 382; Jennings v. G. T. E., 15 A. E. 477. 
 Letters of administration issued after action and 
 before trial are sufficient to support the action even 
 where the plaintiff has no interest in the estate : 
 Dim v. Fauquier, 8 0. L. E. 712. But where the 
 person entitled to obtain administration is not the 
 one who begins the action: see Chard v. Eae, 18 0. 
 E. 371. Letters of administration rightly granted 
 to plaintiff as widow support the action: Doyle v. 
 Diamond Flint Glass, 8 0. L. E. 499. A grant of 
 administration to an infant widow not a nullity: 
 Belanger v. Belanger, 2 0. W. N. 543. The High 
 Court has no jurisdiction to revoke a grant of admin- 
 istration: McPherson v. Irvine, 26 0. E. 438; and 
 
CHAPTER 62. 
 
 131 
 
 see notes to sec. 19 ante ; and see Jennings v. Grand 
 Trunk, 15 A. R. 477; London and Western Trusts 
 Co. v. Traders Bank, 11 0. W. E. 977, 16 0. L. E. 
 382. Letters of administration as evidence of title 
 in intestacy: Armour, Titles, pp. 339, 340. Bevoca- 
 tion of erroneous grant: see ante, sec. 26 and notes; 
 see also E. S. 0. 1914, ch. 121, sec. 50 and notes. 
 
 28. Eight of trial by jury in question of testamentary 
 
 capacity: Jarret v. Campbell, 21 0. W. E. 447, 2 0. 
 W: N. 872, 21 0. W. E. 770, 3 0. W. N. 905, 26 0. L. 
 E. 83. 
 
 29. Time of sittings: Eyers v. Ehora, 3 0. W. N. 1130. 
 
 31. Production of testamentary writings : Ee Shepherd, 
 1891, P. 323. 
 
 32. The powers of the High Court in matters testamen- 
 tary considered: Mutrie v. Alexander, 23 0. L. E. 
 396. Jurisdiction to remove an executor is also 
 given to the High Court : see E. S. 0. 1897, ch. 51, 
 sec. 39; E. S. 0. 1914, ch. 56, sec. 12. The High 
 Court cannot revoke a grant of letters of adminis- 
 tration: McPherson v. Irvine, 26 0. E. 438. The 
 validity of a will is not res adjudicata by the 
 judgment of the Surrogate Court: Badenach v. In- 
 glis, : 29 0. L. E. 165, and notes to sees. 19-27, ante. 
 See also E. S. O. 1914, ch. 56, sec. 13, notes. 
 
 33. — (1) Application to remove cause into High Court: 
 Ee Wilcox v. Setter, 7 0. W. E. 65 ; Ee Graham v. 
 Graham, 11 O. W. E. 700; Ee Eeith v. Eeith, 11 
 0. W. E. 883, 16 0. L. E. 168. Immediately an order 
 is made removing a matter to the High Court, it 
 ceases to be a Surrogate Court matter: Justin v. 
 Goodwin, 18 P. E. 174. Where there was a conten- 
 tion between the widow and the next of kin as to 
 grant of administration it was held that the juris- 
 diction to award grant being of a discretionary kind 
 could be better exercised by the Surrogate Judge 
 and the cause not removed: Ee McLeod, 16 P. E. 
 261. Where a matter was transferred and the order 
 contained terms as to costs: see Ee Forster, 18 P. 
 E. 65. Time for filing jury notice where cause 
 removed into the High Court: see McKenzie v. 
 
132 CHAPTER 62. 
 
 Shoebotham, 10 0. W. R. 1055. Reference or re- 
 moval to the Supreme Court: see Judicature Act, 
 1897, ch. 51, sec. 40 (1). The Supreme Court 
 has original jurisdiction to appoint an administra- 
 tor ad litem : see Con. Rule 195 ; see now 1913, Rule 
 90. As to jurisdiction of Supreme Court in probate 
 and administration: see H. & L. notes, p. 36, and 
 notes to sec. 19 ante. 
 
 33. — (3) In an application under this section the im- 
 portance of the case and its nature are not to be 
 tried on counter affidavits — it is enough if it appears 
 from the nature of the contest and the magnitude of 
 the estate that the higher Court should be the forum : 
 Re Reith v. Reith, 11 O. W. R. 883, 16 O. L. R. 168. 
 Difficulty of question and amount of estate as affect- 
 ing removal of cause to High Court: Pattison v. 
 Elliott, 3 O. W. N. 1327, 22 O. W. R. 232. 
 
 34. — (1) Immediately an order is made removing a mat- 
 ter from a Surrogate Court to the Supreme Court 
 it ceases to be a matter in the Surrogate Court and 
 an appeal from the order under this section cannot 
 be entertained. The Supreme Court Practice is to 
 be followed: Justin v. Goodwin, 18 P. R. 174. 
 Where Surrogate Judge adjudicated by consent on 
 claim as to whether certain money in a savings bank 
 passed as donatio mortis causa, a right of appeal 
 was held to exist as from an award to a Judge in 
 Single Court, under the Arbitration Act: Re Gra- 
 ham, 3 O. W. N. 202, 20 O. W. R. 297, 25 0. L. R. 
 5. Appeals to Divisional Court: see Judicature 
 Act, 1897, ch. 51, sec, 75 (4) ; H. & L. notes, p. 131; 
 R. S. 0. 1914, ch. 26, sec. 2 (o). 
 
 34.— (2) The $200 refers to property belonging to the 
 estate itself: Forbes v. Forbes, 2 0. W. N. 976, 19 
 0. W. R. 47, 23 0. L. R, 518. An appeal lies from 
 an order for security for costs though less than 
 $200 in amount : Forbes v. Forbes, 23 0. L, R. 518. 
 
 34.— (3) See R. S. 0. 1914, ch. 59, sees. 39, 40. No 
 security for costs is required on motion or appeal 
 to Divisional Court: see as to application of (1892) 
 Surrogate Court, Rule 57: Re Nichol, 1 0. L. R. 213; 
 Re Wilson, 17 P. R. 407. Irregularities: see Taylor v. 
 
CHAPTER 62. I33 
 
 Delaney, 3 0. L. E. 380. Extension of time for 
 appealing: Union Trust v. Bensley, 12 0. W. E. 336, 
 1069. 
 
 34.— (5) Appeal from order allowing an executor com- 
 pensation : Ee Alexander, 31 0. E. 167 ; and see 1913, 
 Eules 502 et seq. 
 
 35. Presumption of death : Doe d. Hagerman v. Strong, 
 8 U. a E. 291; Ee Benham's Trusts, L. E. 4 Eq. 
 416; Ee Alston, 1892, P. 142; Ee Matthews, 1898, P. 
 17; Ee Eobertson, 1896, P. 8. Cf. provisions of In- 
 surance Act as to when death may be presumed : E. 
 S. 0. 1914, ch. 183, sec. 165 and notes. Proof of will 
 where witnesses could not be found: Ee Young, 27 0. 
 E. 698. Where witnesses dead: see Trott v. Skedmore, 
 2 Sw. & Tr. 12. Contents of lost will: Stewart v. 
 Walker, 6 O. L. E. 495 ; Sugden v. Lord St. Leonard, 
 1 P. D. 154, 252; Ee Pearson, 1896, P. 289; Wood- 
 ward v. Groulstone, 11 A. C. 469. 
 
 38. Where there is a contention between the widow and 
 
 the next of kin and the assets are separable, admin- 
 istration may be granted quoad, i.e., to the widow 
 as to one part and to the next of kin as to the other 
 part ; or there may be a joint grant : Ee McLeod, 16 
 P. E. 261. Where all the next of kin resident in 
 Ontario consented to the appointment of the hus- 
 band of the daughter of the sister of the deceased 
 as administrator, and a brother, resident in a foreign 
 jurisdiction brought an action to revoke the grant, 
 it was held that the Surrogate Judge had exercised 
 his discretion properly, considering the illiteracy, 
 age, etc., of certain parties, and that even if he had 
 not, the grant would not have been revoked: Carr 
 v. O'Eourke, 3 0. L, E. 632. 
 
 39. Administration durante absentia: see Chambers v. 
 
 Bicknell, 2 Hare, 536 ; Ee Cassidy, 4 Hogg, 360. 
 
 44. Where applications for administration are made in 
 more than one Surrogate Court, preference will be 
 given to the party nearest in the order in which 
 administration is usually granted. Ee Tougher, 3 
 0. L. E. 144. 
 
234 CHAPTER 62. 
 
 45. Lodging a caveat in the Surrogate Court is not 
 " instituting proceedings to set aside a will:" Ee 
 McDevitt, 5 0. W. N. 333. 
 
 48. This is the statute, 21 Henry VIII., ch. 5, sec. 6; R. S. 
 
 0. 1897, ch. 337, sec. 1. 
 
 49. This is the statute, 21-22 Vict., ch. 95, sec. 16 ; R. S. 
 0. 1897, ch. 337, sec. 2. 
 
 50. This is the statute, 38 Geo. Ill, ch. 87, sec. 6; R. S. 0. 
 
 1897, ch. 337, sec. 3; see Re Stewart, 3 P. & D. 244; 
 Merchants Bank v. Monteith, 10 P. R. 334; Cum- 
 mings v. Landed Banking & Loan, 20 0. R. 382. 
 
 51. This is the statute 38 Geo. III., ch. 87, sec. 7; R. S. 0. 
 1897, ch. 337, sec. 4. 
 
 52. Copy of will as appearing in Probate omitting im- 
 portant word bearing on construction: see Re Cooper, 
 
 5 0. W. N. 151. 
 
 53. The powers of an administrator pendente lite cease 
 when final judgment has been given: Wieland v. 
 Bird, 1894, P. 262. A testator, A., died, leaving B. 
 his executrix. She died, leaving a will, the validity 
 of which was disputed. It. being required to pay 
 money to A.'s estate, the Court appointed an ad- 
 ministrator pendente lite: In Goods of Fawcett, 14 
 P. D. 152. As to authority of the High Court to 
 appoint administrator pendente lite, which is only 
 when an action is pending in it touching the validity 
 of the will of a deceased person : see Beatty v. Hal- 
 dan, 4 A. R. 239, and, perhaps, under sees. 33 to 
 35, where a cause is removed into the High Court: 
 Re Gooderham, 8 0. W. R, 685. The Supreme Court 
 has jurisdiction to appoint an administrator ad 
 litem when an action is pending in it : see Con. Rules 
 194, 195; 1913, Rule 90; H. & L. notes, pp. 340-347. 
 Judgment against an administrator ad, litem binds 
 the general administrator: see cases collected, H. 
 
 6 L. notes, p. 345. The High Court may also ap- 
 point a receiver in a proper case to act in the place 
 of an executor: see H. & L. notes, p. 991. "Where 
 the Court of Chancery had appointed a receiver, 
 administration pendente lite was made to him : Tich- 
 borne v. Tichborne, 1 P. & D. 730; Re Evans, 15 P. 
 
CHAPTER 62. 235 
 
 D. 215; see also Beatty v. Haldan, 4 A. R., at p. 
 245. 
 
 54. — (1) This section is based on the common law, 31 
 Edw. III., St. 1, ch. 11, and 21; Henry VHL, ch. 5, 
 sec. 2; see E. S. 0. 1897, ch. 337, sec. 5. Where 
 party entitled in priority is missing : see Ee Chap- 
 man, 1903, P. 192. A husband or wife surviving 
 after dissolution of marriage is not entitled to grant 
 of administration : Ee "Wallas, 1905, P. 326. Passing 
 over husband or wife whose adultery has been estab- 
 • lished though marriage not dissolved : Ee Frost, 
 1905, P. 140 ; or where there has been a separation 
 order: Ee Elizabeth Jones, 74 L. J., P. 27, 164. 
 Where a husband has renounced his marital right 
 to share in his wife's estate before marriage, and in 
 order to it, he is not entitled to administration : for 
 administration follows interest ? Dorsey v. Dorsey, 
 29 O. E. 475, 30 O..R. 183. In cases where some one 
 is not named as executor and no duties are indi- 
 cated in the will which would constitute him execu- 
 tor according to its tenour, but who has such an 
 interest that in spite of his not being named execu- 
 tor he might be looked on to act as such, the practice 
 as indicated is to grant, not probate, but let- 
 ters of administration with will annexed: Ee Cole- 
 man, 9 O. W. E. 985. Appointment of universal de- 
 visee and legatee administrator with will annexed : 
 see Ee Pryse, 1904, P. 301. An administrator c.t.a. 
 has no authority as such to compromise a dower claim 
 by assigning the claimant some of the decedent's real 
 estate: Irwin v. T. G. T. Co., 24 A. E. 484. Where a 
 will bequeathed property to A-, disposed of no other 
 property, appointed no executor and contained no 
 other bequests or directions, the Court granted ad- 
 ministration with will annexed to A., limited to the 
 property described in the will, without requiring the 
 next of kin to be cited : Ee Baldwin, 1903, P. 61. In 
 granting administration the' Court will not direct, 
 control or suggest anything with regard to the ad- 
 ministration of the property beyond granting ad- 
 ministration in due course of law: Ee Cory, 1903, 
 P. 62. Grant of administration to an infant : Belan- 
 ger v. Belanger, 24 O. L. E. 441. Where a sole 
 executrix and universal legatee was incapable of 
 taking probate owing to ill health, the Court allowed 
 
136 CHAPTER 62. 
 
 a joint grant to her nominees: Ee Davis, 1906, P. 
 330. Where doubts arose as to the legitimacy of 
 the next of kin, administration was granted to one 
 of their number chosen by the persons interested 
 in the estate : Ee Minshull, 14 P. D. 151. This sec- 
 tion is applied under Ontario Practice more liber- 
 ally than the corresponding English section, 20 and 
 21 Vict., ch. 77, sec. 73 has been applied: Carr v. 
 O'Eourke, 3 0. L. E. 632; Ee Keho, 7 0. W. E. 825. 
 Executors' accounts: for review of the jurisdiction 
 of the Ecclesiastical Court, the administrative 
 powers of the High Court: see Ee Eussell, 8 O. L. 
 E. 481. Authority and jurisdiction of Courts over 
 executors and administrators: see Cunnington v. 
 Cunnington, 2 O. L. E. 511 ; see sec. 70 et seq., post, 
 and notes. 
 
 54.— (3) " Special circumstances," murder of wife by 
 husband: Ee Crippen, 1911, P. 108. 
 
 56. This in the statute 31 Edw. III., St. 1, ch. 11 ; E. S. O. 
 337, sec. 6. 
 
 57. The Surrogate Courts have the same authority as 
 the English Probate Courts in respect of limited 
 grants of administration: Ee Thorpe, 15 Gr. 76. 
 Probate of a lost will is limited until original will 
 is proved: Sugden v. Lord St. Leonards, 1 P. D. 
 154. 
 
 58. See statute 21 Henry VIL, ch. 5, sec. 4, and E.S. 0. 
 1897, ch. 337, sec. 9. Eemarks on practice as to 
 inventories: see Ee Eussell, 8 O. L. E. 481, at p. 
 491 et seq; see Surrogate Court Eule 19 (1892). 
 
 59. A power of sale having been given to executors qua 
 
 executors, and not by name, they could not, after 
 having once renounced, execute the power : Travers 
 v. Gustin, 20 Gr. 106. Liability notwithstanding re- 
 nunciation : Vannatto v. Mitchell, 13 Gr. 665. Execu- 
 tor who has renounced is not a proper defendant: 
 Stinson v. Stinson, 2 Gr. 508. The renunciation 
 of an executor cannot be recalled on the death 
 of the acting executor: : Allen v. Parke, 17 C. 
 P. 105. Executor who is also trustee: see Doe d. 
 Berringer v. Hiscott, 6 O. S. 23. A renunciation 
 
CHAPTER 62. ^37 
 
 operates, although the executor's name 'was ex- 
 punged from the will : Re Noddings, 2 Sw. & Fr. 15. 
 In a proper case, where circumstances have altered 
 one of several executors may be allowed to retract 
 his renunciation and carry on his executorship : Re 
 .Phipps, 9 0. W. R. 982. Retraction of renunciation : 
 Re Gill, 3 P. & D. 113; Re Stiles, 1898, P. 12; Re 
 Wheelwright, 3 P. D. 71. Effect of renunciation: 
 Foxwell v. Kennedy, 2 0. W. N. 821, 1299, 18 0. W. 
 R. 782, 19 0. W. R. 595, 24 0. L. R. 189. This section 
 has not changed the law: Re Phipps, 9 0. W. R. 982. 
 Effect on renunciation of previous intermeddling: 
 Harcourt v. Burns, 10 0. W. R. 786. 
 
 60. When an executor is appointed under a will the 
 executorship is transmitted: see R. S. 0. 1897, ch. 
 337, sec. 13; R. S. 0. 1914> ch. 121, sec. 59. Payments 
 under administration afterwards revoked : Belanger 
 v. Belanger, 2 0. W. N. 543. Removal of executor : 
 see Johnson v. Mackenzie, 20 O. R. 131 ; Harrold v. 
 Wallis, 9 Gr. 443; Aikins v. Blain, 11 Gr. 212. Ap- 
 pointment of trustee to perform duties of executor : 
 Re Bush, 19 O. R. 1. 
 
 64. The costs of an application for assignment of bond 
 are not taxable as costs in the action on the bond, 
 but should be recovered as damages consequent on 
 the breach of condition sued for: Closson v. Post, 
 6 L. J. 141: see also Re Hilts, 1 Ch. Ch. 386; Stapf 
 v. McCarron, 35 U. C. R. 22. 
 
 68. As to bonds of guarantee companies: see R. S. 0. 
 1914, ch. 190. 
 
 69. — (1) " Claim or demand " refers to claim of credi- 
 tor: Re Graham, 25 0. L. R. 5; see also Re Mc- 
 Intyre, 11 0. L. R. 136. 
 
 69. — (6) Amount involved: Re Graham, 25 0. L. R. 5. 
 
 69.— (10) Right of appeal : Re Graham, 25 0. L. R. 5. 
 
 70. Appointment of receiver where executor out of juris- 
 diction and refuses to account : Re Beaird, 4 0. W. 
 N, 720, 23 0. W. R. 955. 
 
138 CHAPTER 62. 
 
 71. In Cunnington v. Cunnington, 2 0. L. E. 511, it was 
 held that the Surrogate Courts are invested with 
 the authority and jurisdiction over executors and 
 administrators, and the rendering of inventories 
 and accounts conferred in England on the Ordinary 
 under 2 Henry VIII., ch. 5. In Re Russell, 8 0. L. 
 R. 481, it was held that this accounting was of a 
 very restricted character and that for full enquiry 
 and investigation resort must be had to the admin- 
 istrative powers of the High Court. The legisla- 
 ture then enacted sub-sections (3) and (4). Sub- 
 sequently, in 1911, (5) was added. On passing an 
 executor's accounts under this section (as amended 
 in 1905), the Judge has no jurisdiction to call upon 
 a creditor of the estate to prove his claim and to 
 adjudicate upon that claim and allow it or bar it. 
 If the executor has, in good faith, paid the claim 
 before bringing in his accounts,, the Judge has juris- 
 diction to consider the propriety of the payment and 
 to allow or disallow the item: Re Mclntyre, 11 0. 
 L. R. 136. Retainer of. his own claim by an executor 
 is on the same basis: Shaw v. Tackaberry, 5 0. "W. 
 N. 255. The amendment of 1905 was a result of 
 the narrow construction placed on the statute in Re 
 Russell, 1904, 8 0..L. R. 481. The acts of a Surro- 
 gate Judge in passing accounts of executors, are 
 those of the Court, and not of the Judge as persona 
 designate/,. He has inherent jurisdiction to set aside 
 an order which he has been induced to make by the 
 fraud of the applicant, and to set aside or vary an 
 order which he has made by mistake though not to 
 correct errors made in the judicial determination 
 of any question: Re "Wilson and Toronto General 
 Trusts, 13 0. L. R. 82, 8. 0. W. R. 677, 15 0. L. R. 
 596. For review of powers of Court prior to amend- 
 ment of 1905 as to accounting: see Cunnington v. 
 Cunnington, 2 0. L. R. 511; Re Russell, 8 0. L. R. 
 481; and see now Union Trust v. Beasley, 12 0. W. R. 
 336, 1069; and Re Wilson and T. G. T. Co., 13 
 0. L. R. 82, 15 O.'L. R. 596. Where order 
 made on consent for removal of executor and 
 passing his accounts in High Court, the account 
 passed by the Surrogate Court Judge in the absence 
 of fraud or mistake is binding : Gibson v. Gardner, 
 13 0. L. R. 521, 8 0. W. R. 526. , Binding adjudica- 
 tion : see Cunnington v. Cunnington, 2 0. L. R. 511 ; 
 
CHAPTER 62. I39 
 
 Ee Wilson and T. G. T. Co., 15 0. L. E. 596; Ee 
 Daly, 39 S. C. E. 122. It is only so far as mistake 
 or fraud is shewn and not where mistake or fraud 
 is shewn that the binding effect of the approval is 
 taken away : Ee Wilson and Toronto General Trusts, 
 11 0. W. E. 214, 15 0. L. E. 596. The Court can set 
 aside order obtained by fraud, but has no jurisdic- 
 tion to correct errors in judicial determination: Ee 
 Wilson and T. G- T. Co., 13 0. L. E. 82, 15 0. L. E. 
 596. An executor who is a minor is not liable to ac- 
 count: Nash v. McKay, 15 Gr. 247; see also Young 
 v. Purves, 11 0., E. 597. Audit of executor's ac- 
 counts — discretion: Ee Corkett, 4 0. W. N. 632; see 
 Smith v. Clarkson, 7 0. L. E. 460. Jurisdiction over 
 accounts of trustees under will: Grant v. Maclaren, 
 23 S. C. E. 310. As to compensation which may be 
 allowed executors; etc.: see E. S. 0. 1914, ch. 121, 
 sec. 67, and notes. 
 
 72. See statute 1 Jac. II, ch. 17, sec. 6; E. S. 0. 1897, 
 ch. 337, sec. 7. 
 
 74. Where a person resident abroad dies possessed of 
 mortgages in Ontario, the Surrogate Court of the 
 county where the land lies alone has jurisdiction: 
 Ee Thorpe, 15 Gr. 76. Where a note was made by 
 A., a resident of Ontario, payable to B., who died 
 in New York, having the note in his possession, it 
 was held that B.'s administrators appointed in that 
 State could endorse the note to enable it to be sued on 
 here without taking out administration here : Hard 
 v. Palmer, 21 TJ. C. E. 49. Powers and obligations 
 of a foreign administrator dealing in Canada with 
 foreign assets and settling claims of Canadian 
 creditors, considered : Grant v. McDonald, 8 Gr. 
 468. See notes to Succession Duty Act, E. S. 
 0. 1914, ch. 24, sec- 7. A foreign administrator 
 cannot discharge a mortgage on land in this 
 province: : In re Thorpe, 15 Gr. 76. A will 
 executed by a person domiciled in the Pro- 
 vince of Quebec before two notaries there, in ac- 
 cordance with the law of that province not acted 
 on or proved in any Court there, is not within the 
 statute regarding Ancillary Probates : Ee McLaren, 
 22 A. E. 18. Where money in Court is the property 
 of a person domiciled out of the province, on his 
 death payment out will be ordered only to a personal 
 
140 CHAPTER 62. 
 
 representative appointed by the Courts of Ontario : 
 • Stewart v. Whitney, 14 P. E. 147; see Con. Eule 
 72; H. & L. notes, p. 232; 1913 Eule 725. Be-seal- 
 ing colonial probate: see Ee Saunders, 1900, P. 292. 
 Proclamation bringing 51 Vict. ch. 9, Ontario, into 
 full force published in Gazette, May 27th, 1893. For 
 Imperial O. C. applying " The Colonial Probates 
 Act, 1892 " to the Province of Ontario and for rules 
 under that Act : see Statutes of Ontario, 1895, p. x. 
 
 79. The right to costs is wholly statutory. All items 
 taxed must be allowed in the. tariff: Ee Morrison, 
 13 O. W. E. 767. 
 
 In Schedule A, part 2, strike out of this heading the 
 words " or in section 175 of the Ontario Insurance 
 Act ": 4 Geo. V. ch. 2, Schedule 18. 
 
 Schedule A to the Act covers fees payable to the 
 Crown and Schedule B fees payable to the Judge. 
 As to fees and costs to solicitors and counsel the 
 following tariff came in force March 16th, 1914: 
 
 The following shall be the tariff of fees and costs to 
 be allowed in respect of proceedings in the Surro- 
 gate Courts in non-contentious cases to solicitors and 
 counsel, viz.: 
 
 1. Drawing all necessary papers and proofs 
 to lead grant and obtaining order for pro- 
 bate or letters of administration, in ordin- 
 ary cases, and taking out same. 
 
 (a) When the value of the property de- 
 volving is $1,000 or under $ 10.00 
 
 (b) Over $1,000 and not exceeding 
 $5,000 15.00 
 
 (c) Over $5,000 and not exceeding 
 $10,000 20.00 
 
 (d) Over $10,000 and not exceeding 
 $20,000 30.00 
 
 (e) Over $20,000 and not exceeding 
 $50,000 50.00 
 
 (/) Over $50,000 and not exceeding 
 
 $100,000 75.00 
 
 (g) Over $100,000 100.00 
 
 2. In cases of temporary administration . . 10.00 
 
 (a) On application to revoke any grant 10.00 
 
CHAPTER 62. 
 
 141 
 
 (To be increased in the discretion of the 
 
 Judge in cases of a special or important 
 
 nature, subject to approval by a Judge of 
 
 the Supreme Court upon a report from the 
 
 Judge). 
 
 3.' For obtaining Letters of Guardianship. . $10.00 
 
 (To be increased in the discretion of the 
 
 Judge in cases of a special or important 
 
 nature, subject to approval by a Judge of 
 
 the Supreme Court upon a report from the 
 
 Judge). 
 
 4. Drawing the necessary affidavits, inven- 
 tories and schedules under the Succession 
 Duty Act: — 
 
 (a) Short form, where the aggregate 
 value of the property does not ex- 
 ceed $5,000 5 .00 
 
 (&) Above $5,000, where no duty is 
 
 payable 10.00 
 
 (To be increased in the discretion of the 
 Judge in cases of a special nature, subject 
 to approval by a Judge of the Supreme 
 Court upon a report from the Judge). 
 
 (e) Where duty is payable, in addition 
 to the foregoing fees for preparing 
 proofs for succession duty, for all 
 services settling with the Solicitor 
 to the Treasury the amount of duty 
 payable and attending to payment 
 or to securing payment (by bond 
 
 or otherwise) of same 20.00 
 
 (To be increased in the discretion of the 
 Judge in cases of a special nature, subject 
 to approval by a Judge of the Supreme 
 Court upon a report from the Judge). 
 
 5. On preparing petition, affidavits, accounts 
 and all other necessary papers and services 
 in auditing and passing of accounts of an 
 executor, administrator, guardian or trus- 
 tee, and including the fixing of the remun- 
 eration of such executor, administrator, 
 guardian or trustee. 
 
 (a) "Where the receipts do not. exceed 
 
 $2,000 25.00 
 
 (&) Where the receipts exceed $2,000, 
 
 but do not exceed $5,000 30.00 
 
142 » CHAPTER 62. 
 
 (c) Where the receipts exceed $5,000, 
 
 but do not exceed $10,000 $40 . 00 
 
 (d) Where the receipts exceed $10,000, 
 
 but do not exceed $20,000 50.00 
 
 (e) Where the receipts exceed $20,000, 
 
 but do not exceed $50,000 75.00 
 
 (/) Where the receipts exceed $50,000, 
 
 but do not exceed $100,000 100.00 
 
 (Any of the preceding fees, in cases of an 
 important nature, may be increased by the 
 Judge, but such increase shall be subject to 
 approval by a Judge of the Supreme Court 
 upon a report from the Judge). 
 (Where the receipts exceed $100,000, the 
 fees shall be such as the Judge deems fair 
 and proper. His order allowing the same 
 shall be subject to approval by a Judge of 
 the Supreme Court upon a report from the 
 Judge). 
 
 6. To solicitors for other parties (including 
 the official guardian) properly attending on 
 ^audit of accounts a fee may be allowed in 
 the discretion of the Judge not exceeding in 
 the whole one-half of the above amounts 
 and subject to increase with approval of a 
 Judge of the Supreme Court upon report 
 from the Judge. 
 
 7. In all contentious cases and proceedings 
 not hereinbefore provided for, the same fees 
 and disbursements as are provided for pro- 
 ceedings in the County Court, so far as the 
 same may be applicable may be charged 
 and allowed on taxation. 
 
 8. In addition to the foregoing fees and 
 costs, there shall be allowed all proper dis- 
 bursements made by the solicitor in connec- 
 tion with the foregoing matters. 
 
 9. Where it has been proved to the satis- 
 faction of the Judge that proceedings have 
 been taken by solicitors out of Court to ex- 
 pedite proceedings, save costs, or compro- 
 mise actions or disputes, a fee may be al- 
 lowed therefor in the discretion of the 
 Judge. 
 
CHAPTER 63. 143 
 
 CHAPTER 63. 
 
 The Division Cotjbts Act. 
 
 Refer to: Bicknell and Seager, Division Courts Acts; 
 Higgins, Division Court Law; Holmested and Lang- 
 ton, Judicature Act and Rules; The Annual County 
 Courts Practice; The Yearly County Court Practice. 
 
 8. This does not enable Division Court judgments to 
 be sued on in the higher Courts: Crowe v. Graham, 
 22 0. L. R. 145. 
 
 10. Jurisdiction of deputy: R. v. Fee, 3 0. R. 107; Keyes 
 v. McKeon, 23 0. L. R. 530. 
 
 20. Jurisdiction of deputy : Keyes v. McKeon, 19 O. W. 
 R. 21, 2 0. W. N. 997, 1014, 23 0. L. R. 530. 
 
 34. Where a clerk issues a summons with a blank for 
 the name of the party, afterwards filled in by the 
 bailiff pursuant to the clerk's instructions, though 
 in breach of this section, it does not affect the juris- 
 diction of the Court nor is it a ground for prohibi- 
 tion, but is a matter of practice to be dealt with by 
 the D. C. Judge: Re Gerow v. Hogle, 28 0. R. 405. 
 Except in the few special cases provided for in the 
 Act the bailiffs have the right to serve summonses 
 and the plaintiff is not entitled as of right to effect 
 service himself : In re Wilson v. McGinnis, 10 0. L. 
 R. 98. 
 
 46. Except in a few special cases {e.g., sees. 75, 37, 91 
 
 and 115), the bailiffs of the Court have the right 
 to serve summonses, and a plaintiff is not entitled 
 as of right to effect service himself: Re Wilson v. 
 McGinnis, 10 0. L. R. 98. 
 
 47. New sub-sec. (4) inserted: 4 Geo. V. ch. 2, Schedule 
 
 (19). Applies where emoluments of clerk or bailiff 
 are under $500. 
 
 61. A Division Court Judge has power to allow a 
 plaintiff to amend his particulars at the trial so as 
 to bring within the jurisdiction a case which, from 
 
144 CHAPTER 63. 
 
 the nature of the cause of action, was originally out- 
 side it. Where in such a case the defendant 
 answered the claim, the Judge proceeded with the 
 trial and found facts showing jurisdiction, prohibi- 
 tion was refused; Ee Sebert v. Hodgson, 32 0. E. 
 157. Where the Judge at trial found that the evi- 
 dence showed that the case was beyond the juris- 
 diction of the Court and ruled that no further evi- 
 dence should be given, the plaintiff having sub- 
 mitted to this and judgment for non-suit entered 
 and a motion to set this aside and for a new trial 
 refused, it was held that a mandamus would not lie. 
 In such a case the plaintiff has no right of appeal 
 under this Act: Ee Eatcliffe and Crescent Mill, 1 
 0. L. E. 331. As to jurisdiction of Division Courts : 
 see Bicknell and Seager D. C. Act, pp. 53 et seq.; 
 H. & L. notes, p. 1365; see also Con. Eule 1132 
 (1913, Eule 649), as to inferior Court actions brought 
 in the High Court and H. & L. notes, especially pp. 
 1362 et seq. 
 
 61. — (a) The bare assertion by the defendant that the 
 right or title to any corporeal or incorporeal here- 
 ditament comes in question is not sufficient to oust 
 the jurisdiction of the Court. The Judge has auth- 
 ority to inquire into so much of the case as is neces- 
 sary to satisfy himself on the point: Ee Moberly 
 and Collingwood, 25 0. E. 625; Ee Hamilton v. 
 Garner, 12 0. W. E. 758. Where an action is 
 brought in the Division Court and it appears that 
 the title to land is involved, the action formerly could 
 not be transferred to the County Court, no matter 
 how little might be involved or how small the value 
 of the land: Thurston v. Brandon, 12 O. W. E. 1228; 
 see E. S. 0. 1897, eh. 51, sec. 186; but see now E. S. 
 0. 1914, ch. 59, sec. 22 (1), (c). When title as to 
 land is in question: see E. S. 0. 1914, ch. 59, sec. 22 
 (1), (c), notes. Eent under a lease of land is an 
 incorporeal hereditament and the Division Court 
 has no jurisdiction when the right or title to it 
 comes in question: Kennedy v. MacDonell, 1 0. L. 
 E. 251. Jurisdiction considered: Ee McGolrick and 
 Eyall, 26 0. E. 435. 
 
 61. — (e) A Division Court judgment cannot be sued on 
 in the Supreme Court nor in the County Court: 
 Crowe v. Graham, 22 O.L. E. 145 (sec. 196 note). As 
 
CHAPTER 63. 145 
 
 to actions on High Court judgments before 61 Vict., 
 ch. 15 : see Aldrich v. Aldrich, 23 0. E. 374, 24 0. 
 E. 124; see H. & L. notes, p. 1095; also Eule 853, 
 H. & L. notes, p. 1107 (1913, Eule 545) ; see also 
 E. S. 0. 1897, ch. 60, sec. 113; Bicknell and Seager 
 notes, p. 187, now sec. 98 post. 
 
 62. — (1) When action within competence of Division 
 Court and brought in High or County Court : see as 
 to costs, Con. Eules 1132; 1913, Eule 649, and see 
 application of this: Osterhout v. Fox, 10 O. W. E. 
 157, 14 0. L. E. 599. 
 
 62. — (lc) Where the instrument sued on is in the form 
 of a promissory note with additional terms*' giving 
 right to resell goods in certain event, the Division 
 Court has no jurisdiction beyond $100: Bisnett v. 
 Schrader, 12 0. W. E. 656. Where plaintiff sued on 
 promissory note which formed an item of an account 
 covered by a mortgage, the Court had jurisdiction : 
 Green v. Crawford, 15 0. W. E. 822, 1 0. W. N. 688, 
 21 0. L. E. 36. Within sixty days before making 
 an assignment, an insolvent transferred goods to a 
 third person, which being sold, the proceeds were 
 divided among certain creditors who thereby ob- 
 tained a preference. The Division Court had juris- 
 diction to try a claim by the assignee against each 
 of the creditors so preferred, the transfer being 
 divisible into parts: Beattie v. Holmes, 29 0. E. 264. 
 Annual payments under covenant: see Osterhout v. 
 Fox, 10 0. W. E. 157, 14 0. L. E. 599. 
 
 62. — (Id) This section (passed 1904) was declaratory 
 and applied to actions pending: Ee Thorn and Mc- 
 Quitty, 8 0. L. E. .705. Where other extrinsic evi- 
 dence beyond the mere production of the document 
 and the proof of the signature is required to estab- 
 lish the plaintiff's claim, the Division Court has no 
 jurisdiction in cases over $100: Ee Thorn and Mc- 
 Quitty, 8 0. L. E. 705. The extrinsic evidence re- 
 ferred to has reference to the defendants' liability, 
 not to the plaintiff's title: Eenaud v. Thibert, 3 0. 
 W. N. 1649, 22 0. W. E. 923, 27 0. L. E. 57. Pro- 
 duction of promissory note, proof of signature of 
 defendant as endorser and production of protest 
 
 S.A.— 10 
 
146 CHAPTER 63. 
 
 make a prima facie case within the jurisdiction of 
 the Division Court: Slater v. Laberee, 9 0. L. 
 E. 545. The plaintiff sued on a promissory- 
 note. The question whether it had become 
 merged in a mortgage was matter of defence 
 and did not oust the jurisdiction: Ee Green and 
 Crawford, 1 0. W. N. 688, 15 0. W. E. 822, 21 0. 
 L. E. 36. Actions depending entirely on docu- 
 mentary evidence: Mcllhargey v. Queen, 2 0. W. 
 N. 364, 17 0. W. E. 872. The signature of the 
 defendant to an agreement containing terms of 
 purchase is not an ascertainment of the amount 
 within the meaning of section 62 (Id), as 
 amended, 1904: Ee Thorn and McQuitty, 8 0. L. E. 
 705. And see where note contained undertaking on 
 default to give further security: McCormack v. 
 Warner, 3 0. L. E. 427 (before amendment of 1904). 
 " Document " may be read " documents," and the 
 increased jurisdiction exercised where the claim can 
 be established by the production of one or more 
 documents and proof of signatures: Slater v. La- 
 beree, 9 0. L. E. 545. Extrinsic evidence required 
 to show performance of contract: see Kreutzer v. 
 Brox, 32 0. E. 418 ; Petrie v. Machan, 28 0. E. 642 ; 
 Ee Sawyer-Massey Co. v. Parkin, 28 0. E. 662. 
 Agency of husband for wife: Davidson v. McClel- 
 land, 32 0. E. 382. Ascertained by signature of 
 defendant : In re Wallace and Virtue, 24 0. E. 558 ; 
 McDermid v. McDermid, 15 A. E. 287; Eobb v. Mur- 
 ray, 16 A. E. 503. " Ascertained ": see Amyot v. 
 Sugarman, 13 0. W. E. 429, 924; Evans v. Chandler, 
 19 P. E. 160; Thompson v. Pearson, 18 P. E. 308, 
 420. Amendment of claim under D. C. Eule 4, to 
 bring it within this section: Matthews & Co. v. 
 Marsh, 5 0. L. E. 540. Abandonment of notarial fees. 
 Substitution of plaintiff: Pegg v. Howlett, 28 0. E. 
 473. An executor de son tort is not within the mean- 
 ing of the word executor in this sub-section: In re 
 Dey v. McGill, 10 O. L. E. 408. Claim for $262.50 
 recovered by plaintiff, less set-off of $69 : Held pro- 
 perly within jurisdiction of County Court: Oster- 
 hout v. Fox, 14 0. L. E. 599. A foreign judgment 
 against "the maker of a promissory note is a simple 
 contract debt and not one ascertained by the signa- 
 ture of the defendant : Ee McMillan and Fortier, 2 
 0. L. E. 231. 
 
CHAPTER 63. ^47 
 
 62. — (le) As to jurisdiction in County Court: see E. S. 0. 
 1914, ch. 59, sec. 22 (lj). An action for a declar- 
 ation to rank against an insolvent estate under E. S. 
 0. 1914, ch. 134, was not, until this amendment, 
 within the jurisdiction of the Division Court: Ee 
 Bergman v. Armstrong, 4 0. L. E. 717. 
 
 62.-^(5) Appeal from magistrate's conviction — Manda- 
 mus: Ee McLeod v. Amiro, 27 0. L. E. 232. As to ac- 
 tions between teachers and school boards: see E. S. 
 0. 1914, ch. 266, sec. 87, ch. 268, sec. 50, ch. 270, sec. 
 54. 
 
 65. See Judicature Act, E. S. 0. 1897, ch. 51, sec. 57 (3) ; 
 H. & L. notes, p. 48, also sec. 186, H. & L. notes, 
 p. 194, E. S. 0. 1914, ch. 56, sec. 19. See Judi- 
 cature Act, E. S. 0. 1914, ch. 56, sec. 23, which 
 makes the provisions of that Act in sees. 16 
 to 22 effective in all Courts so far as they 
 relate to matters cognizable by such Courts. As to 
 matters within the purview of this section, see H. & 
 L. notes, p. 194. If it is necessary to interpret a 
 statute in order to find out whether the Division 
 Court should decide the rights of the parties at all, 
 prohibition will lie if the Judge misinterprets the 
 statute so as to give himself jurisdiction — but if it 
 be necessary to interpret the statute in order to 
 determine what the rights of the parties are, prohi- 
 bition will not lie : Ee Long Point v. Anderson, 18 
 A. E. 405 ; Ee Ameliasburg and Pitcher, 8 0. W. E. 
 915, 13 0. L. E. 417. Where the question to be de- 
 cided is not " in what Court the action should be 
 brought," but " can such an action succeed in law," 
 a Supreme Court Judge has no right to dictate to a 
 Division Court Judge : Ee Errington v. Court Doug- 
 las, 9 O. W. E. 675, 14 0. L. E. 75. In determining 
 whether a certain state of facts gives a cause of ac- 
 tion at law the Judge below may misdecide the law 
 as freely and with as high an immunity from correc- 
 tion, except upon appeal, as any other Judge: Ee 
 Long Point v. Anderson, 18 A. E. 401, 408; Ee Boyd 
 v. Sergeant, 10 0. W. E. 377, 521. As to appeals: 
 see sec. 125 post and notes. Plaintiff seeking purely 
 equitable relief, e.g., specific performance in the 
 Division Court: see Foster v. Eeeves, 1892, 2 Q. B. 
 255. Jurisdiction of Division Court to give judgment 
 
148 CHAPTER 63. 
 
 against married woman dates from 1897 : Ee Hamil- 
 ton v. Perry, 24 0. L. E. 38. 
 
 66. Where a minor enters into a contract of hiring, the 
 wages he earns belong to himself and not to his 
 parent : Delesdernier v. Burton, 12 Gr. 569. Where 
 an infant hires himself to his parent : see Perlet v. 
 Perlet, 15 U. C. E. 165. This section does not re- 
 strict infants from suing in the Division Court for 
 anything but wages : Ferris v. Fox, 11 U. C. E. 612. 
 
 67. — (1) Where a promissory note was included in a 
 larger claim against an insolvent estate, and a divi- 
 dend paid and accepted, the remedy on the promis- 
 sory note was not extinguished but the plaintiff 
 could sue in a Division Court, giving credit for the 
 proportionate amount of dividend received : Harvey 
 v. McPherson, 6 0. L. E. 60. A mortgagee cannot 
 sue in the Division Court for one gale of interest 
 when several are due which bring the whole amount 
 beyond the jurisdiction: Ee Eeal Estate Loan v. 
 Guardhouse, 29 0. E. 602. Money payable by instal- 
 ments with interest: see Ee Clark v. Barber, 26 0. 
 E. 47 ; see also Gordon v. O'Brien, 11 P. E. 287; Pub- 
 lic School Trustees of Nottawasaga, 15 A. E. 310. 
 Unsettled account — Interest : see Ee Lott v. Cameron, 
 29 0. E. 70. Splitting demand — Interest: Ee Mc- 
 Donald v. Dowdall, 28 0. E. 212. Splitting cause of 
 action; money lent — Separate loans: Ee McKay v. 
 Clare, 1 0. W. N. 432, 15 0. W. E. 334, 20 0. L. E. 344. 
 
 67. — (2) Suing for interest on past due mortgage : see Ee 
 Ball y. Bell, 28 0. E. 123, 601. Interest post diem as 
 to which there is no covenant in the mortgage to pay 
 is due qua damages and not qua interest and not 
 within this sub-section : Ee Phillips v. Hanna, 3 0. 
 L. E. 558. This sub-section applies only where the 
 action is brought by the person to whom the money 
 is payable and does not apply to an action brought 
 by the assignee of the mortgagor upon a covenant 
 by his vendee to indemnify him against the mort- 
 gagee : Ee Eeal Estate v. Guardhouse, 29 0. E. 602. 
 
 70. An application under this section will not lie after 
 judgment in the Division Court: Ee Brodericht v. 
 Merner, 17 P. E. 264. See E. S. 0. 1914, ch. 59, sec. 
 29, and ch. 62, sec. 33 and notes. 
 
CHAPTER 63. 149 
 
 71. As to applicability of High Court Rules to Division 
 
 Court matters and effect of non-suit: see sec. 226, 
 infra, and notes ; H. & L. notes, pp. 194 and 1018. 
 
 72. Where the cause of action arises without the pro- 
 vince, but the parties are within, an action under 
 sec. 155 may be entered in the Court nearest the 
 garnishee 's residence : Hopper v. Wollison, 11 0. W. 
 R. 980, 16 0. L. R. 452. Where garnishee proceed- 
 ings to be entered: see sec. 155, notes. Territorial 
 jurisdiction of Division Court: Canadian Oil Co. v. 
 McConnell, 27 0. L. R. 549; Mitchell v. Doyle, 4 0. 
 W. N. 725, 23 0. W. R. 926, 10 D. L. R. 297. A 
 cause of action for damages for flooding lands by 
 the erection of a dam does not altogether < 
 arise where the lands are but in part where 
 the dam is erected: Doolittle v. Electrical 
 Maintenance Co., 3 0. L. R. 460. Non-ship- 
 ment of goods contracted to be sent gives rise to the 
 cause of action; not the subsequent refusal by cor- 
 respondence : Re Diamond v. Waldron, 28 0. R. 478. 
 Cause of action in tort against bailiff of Court : see 
 Re Hill v. Hicks and Thompson, 28 0. R. 390. Cause 
 of action : acceptance of goods ordered by mail and 
 sent by express : Re Taylor v. Reid, 8 0. W. R. 623. 
 
 . 13 O. L. R. 205. Cause of action: contract by cor- 
 respondence : Re McNaughton v. Hay, 12 0. W. R. 
 858, 1033. Court nearest defendant's residence: see 
 Re Sinclair v. Bell, 28 0. R. 483. 
 
 74. Effect of agreement as to place of trial: Formerly 
 
 6 Edw. VII., ch. 19, sec. 22; St. Charles v. Caldwell, 
 12 0. W. R. 1185; Re Shupe v. Young, 10 0. W. R. 
 185, 262; Re Taylor v. Reid, 8 0. W. R. 623, 763, 13 
 0. L. R. 205. A provision in a contract waiving the 
 protection of this section is illegal: Re Shupe and 
 Young, 10 0. W. R. 185. Provision for the deter- 
 mination of the forum for possible actions: retro- 
 activity: Re Sylvester Mfg. Co. v. Brown, 8 0. W. R. 
 984, 9 0. W. R. 89; Bell v. Goodison Thresher Co., 
 8 0. W. R. 567, 618, 12 0. L. R. 611. See, as to ac- 
 tions in Division Courts on premium notes under the 
 Insurance Act, R. S. 0. 1914, ch. 183, sec. 150. 
 
 75. This section applies to foreigners as well as to 
 British subjects. Under sec. 226 the practice of thq 
 Supreme Court Rules, 1913, 26 and 28 applies: Re 
 Coy v. Arndt, 8 0. L. R. 101. 
 
150 CHAPTER 63. 
 
 77. Where judgment was obtained in an action on a pro- 
 missory note dated at one place but made at another 
 in a suit entered in the Court at the place where the 
 note was dated and in spite of a dispute of jurisdic- 
 tion filed, the defendant moved for a new trial, paid 
 the money, into Court as a condition, and then moved 
 for an order for transference, it was held that he 
 had not waived his right to an order for transference 
 under this section: In re Brazil v. Johns, 24 0. E. 
 209. Where an order was made under this section 
 for the transfer of an action and the order should 
 have been made under sec. 79, prohibition was 
 granted without prejudice to the right to apply for 
 an order under sec. 79 : In re Frost v. McMillen, 2 0. 
 
 ■ L. E. 303; McDonald Thresher Co. v. Stevenson, 4 
 O. W. N. 732, 23 0. W. E. 957. 
 
 78. A Division Court Judge has no power after the 
 expiry of the time limited for giving notice of inten- 
 tion to dispute the jurisdiction of the Court, to grant 
 leave to file a notice disputing it: Ee McLean v. 
 Osgoode, 30 0. E. 430. Affidavit not now required to 
 support objection to jurisdiction : Mitchell v. Doyle, 
 4 0. W. N. 725, 23 0. W. E. 926, 10 D. L, E. 297. 
 
 79. If the jurisdiction be disputed and no application for 
 a transfer be made, and if in fact there be jurisdic- 
 tion prohibition will not lie merely because the Judge 
 may assume that as no application for a transfer is 
 made he has jurisdiction. But if in fact there be no 
 jurisdiction, the objection still holds good and pro- 
 hibition will be granted: Ee Thompson v. Hay, 22 
 0. E. 583, 20 A. E. 379. The Court is not given any 
 jurisdiction because objection is not properly taken : 
 Ee Gibbons v. Cannell, 4 0. W. N. 270, 23 0. W. E. 
 401, 8 D. L. E. 232. 
 
 80. Action against bailiff and another: see Ee Hill v. 
 
 Hicks and Thompson, 28 0. E. 390. 
 
 91. Except in the few special cases provided for in the 
 Act, the bailiffs of the Court have the right to serve 
 summonses and a plaintiff is not entitled as of right 
 to effect service himself : In re Wilson v. McGinnis, 
 10 0. L. E. 98. 
 
CHAPTER 63. 151 
 
 93, The High Court Rules as to service of partnership 
 firms did not apply to the Division Court : H. & L. 
 notes, p. 194, but now these rules are mostly incor- 
 porated as sections of the Act: see sees. 93 (6), (7), 
 (8), 94 (2), 95, 96. 
 
 94. Effect of Division Court judgment against a firm 
 considered : Re Reid v. Graham Bros., 26 0. R. 126. 
 
 98. An action in the Division Court for " money received 
 by the defendants for the use of the plaintiff, being 
 money obtained by the defendants from the plaintiff 
 by false representations," is an action for a money 
 demand within this section : Re Mager v. The Cana- 
 dian Tin Plate Decorating Co., 7 0. L. R. 25. 
 
 100. There is nothing in this section which requires that 
 before notice of motion for immediate judgment is 
 given the time for filing of a dispute notice should 
 have first expired : Re McKay v. Talbot, 3 0. L. R. 
 256. See High Court Con. Rule 603; H. & L. notes, 
 pp. 795 et seq.; 1913 Rule 57. " Four clear days," 
 the provisions of Con. Rule 343, 1913 Rule 172, do 
 not apply : see Re McKay v. Talbot, 3 0. L. R. 256 ; 
 Re Stoddard v. Eastman, 12 0. W. R, 226, 674; and 
 sec. 227, notes. This section prevails over a jury 
 notice. The defendant must shew tha"t he has some 
 right to dispute and intends to dispute the plaintiff's 
 claim : Re Talham and Atkinson, 1 0. W. N. 183. 
 
 102. A withdrawal of defence under this section is not a 
 confession of judgment or cognovit actionem : Bank 
 of Hamilton v. Shepherd, 21 A. R. 156. 
 
 105. Effect of non-suit in Supreme Court and in Division 
 Court: see Building $ Loan v.Heimrod, 3 C. L. T. 
 254; Bank of Ottawa v. McLaughlin, 8 A. R. 543. 
 Division Court Judge's power as to non-suit: Re 
 Johnson v. Kayler, 12 0. W. R. 770, 837, 18 0. L. R. 
 248 ; and see sec. 144 infra. 
 
 ! 
 
 106. A verbal agreement is not sufficient: the consent 
 must be in writing and filed: Davidson v. Head, 18 C. 
 L. T. 260, 34 C. L. J. 415. Evidence not taken down : 
 Smith v. Boothman, 4 0. W. N. 801, 24 0. W. R. 106. 
 
152 
 
 CHAPTER 63. 
 
 113. Effect of provision requiring defendant to give 
 notice where he desires to avail himself of a statute 
 as bearing on a note stipulating for an excessive 
 rate of interest in violation of the Money Lender's 
 Act, E. S. C 1906, ch. 122: Bellamy v. Porter, 28 0. 
 L. R. 572. 
 
 121. Judge's decision: reserving judgment till a day 
 named under former wording of section: see Ee 
 Wilson v. Hutton, 23 0. E. 29 ; Ee Tipling v. Cole, 
 21 0. E. 276. " Notify." see Ee Forbes v. M. C. Ey., 
 20 A. E. 584 ; and see cases Dig. Ont. Cas. Law, col. 
 2074-2076. 
 
 122. Order for payment by instalments as a basis for 
 committal in default : see In re Kay v. Storry, 8 O. 
 L. E. 45 ; and see sec. 191 notes. 
 
 123. The provision is for a retrial of the action. There is 
 no provision for a retrial or a new trial where the 
 defendant has been summoned under sec. 190, and 
 an order made under sec. 191 : Ee Wilson and Dur- 
 ham, 13 0. W. E. 762, 18 0. L. E. 328. The practice 
 under High Court Con. Eule 778 (1913 Eule 499), 
 as to setting aside judgment obtained by default of 
 appearance is not applicable to the Division Court, 
 being inconsistent with this section: see Foley v. 
 Moran, 11 P. E. 316. 
 
 123. (1) " Within 14 days:" see Thompson v. McCrae, 
 31 0. E. 674. The provisions of this section as to 
 applying for a new trial within 14 days do not apply 
 to a garnishee: Hobson v. Shannon, 27 0. E. 115 ; Ee 
 McLean v. McLeod, 5 P. E. 467 ; see Tipling v. Cole, 
 21 0. E. 276. As the Act enables any person to repre- 
 sent a suitor in an action in the Division Court a 
 strict and literal compliance with the statute is not 
 contemplated in matters of form. E.g., an applica- 
 tion erroneously worded as a motion for judgment 
 may be treated as an application for a new trial: 
 Follett v. Sacco, 11 0. W. R. 377. 
 
 123. (3) Apart from the jurisdiction conferred by this 
 section a Judge under this Act has no inherent juris- 
 diction to set aside a judgment by reason of its 
 having been procured by fraud and to order a new 
 trial : Ee Nilick v. Marks, 31 0. E. 677. 
 
CHAPTER 63. 253 
 
 124. These powers make a Division Court judgment 
 not in its nature final, and it cannot be sued on in 
 the higher Courts : Crowe v. Graham, 17 0. W. R. 143, 
 2 0. W. N. 158, 22 0. L. E. 145. 
 
 125. Subsequently accrued interest on a judgment can- 
 not be used to make the sum in dispute exceed $100 : 
 Foster v. Emory, 14 P. E. 1. The amount in dispute 
 is the amount claimed; not the sum recovered at the 
 trial : Petrie v. Machan, 28 0. E. 504. Where a de- 
 fendant appealed the sum in dispute was held to be 
 the sum which, if his appeal succeeded, he would be 
 relieved from paying : Lambert v. Clarke, 7 0. L. E. 
 130. The " ordinary right of appeal " given by 
 the Public Schools Act is the right under this Act, 
 Norton v. Bertie, 17 0. L. E. 413. Appeals to Divi- 
 sional Court: see Judicature Act, E. S. 0. 1897, ch. 
 51, sec. 74(4) H. & L. notes, p. 131; E. S. 0. 1914. 
 ch. 56, sec. 26 (2) (q). Application for new trial was 
 formerly necessary preliminary to appeal: Cote v. 
 Halliday, 17 C. L. T. Occ. N. 53; also in proceedings 
 under the Public Schools Act, E. S. 0. 1914, ch. 266: 
 Norton v. Bertie P. S. Trustees, 12 O. W. E. 1249, 17 
 0. L. E. 413. As to prohibition, see ante sec. 65, 
 notes. 
 
 127. As to consent to dispense with taking down evi- 
 dence in cases over $100: see sees. 106, 107. As to 
 retaking evidence: see Davidson v. Head, 18 C. L. 
 T. 26 ; Omission to take down evidence : see Sullivan 
 v. Francis, 18 A. E. 121. Evidence not taken down: 
 Smith v. Boothman, 4 0. W. N. 801, 24 0. W. E. 106. 
 Certified copy of proceedings : Norton v. Bertie P. S. 
 Trustees, 12 0. W. E. 1249, 17 0. L. E. 413. 
 
 128. A Division Court appeal which might have been 
 brought on at the first sittings of the Divisional 
 Court was held over. In the absence of a satisfac- 
 tory explanation the appeal was quashed: Heise v. 
 Shanks, 1 0. L. E. 48. When a certified copy of the 
 proceedings is filed, if filed within the proper time, 
 and the case set down, if set down within the pro- 
 per time and for the proper Court the appeal is pro- 
 perly lodged: as to which the Court may have 
 power of amendment or enlargement of the time: 
 Smith v. Port Colborne Baptist Church, 1 0. L. E. 
 195. The giving of the notice of setting down for 
 
154 CHAPTER 63. 
 
 argument and of the appeal and the grounds thereof 
 is a condition precedent to the right of appeal from 
 a Division Court to a Divisional Court, and where 
 this notice has not been given the Divisional Court 
 has no jurisdiction to deal with the appeal : Bradley 
 v. Wilson, 8 O. L. B. 184; see also Maxon v. Irwin, 15 
 O. L. E. 81 at p. 89, 10 0. W. E. 537. See E. S. 0. 
 1914, ch. 56, sec. 26 (2) (q), notes, and E. S. 0. 1914, 
 ch. 59, sec. 39 notes, H. & L. notes, pp. 131-132. 
 
 128. (2) The Divisional Court has no power to extend 
 time until it is seized of the appeal which is " if and 
 when the said appeal case is filed:" Whalen v. 
 Wattie, 11 O. W. E. 917, 16 0. L. E. 249. This sub- 
 section dates from 1904. 
 
 129. " Of and incidental to an appeal:" see Whalen v. 
 Wattie, 12 0. W. E. 155, where the costs of this 
 case in 11 0. W. E. 97 (see note to sec. 128), were 
 disposed of. 
 
 130. A claim by an insurance company to recover the 
 sum of $30 loss under a policy payment of which was 
 procured by false and fraudulent representations 
 arises ex delicto and can be tried by a jury : London 
 Mutual v. McFarlane, 26 0. E. 15. Where a claim is 
 under $20, the fact that a counterclaim is filed for 
 $40 does not enable the plaintiff to have his claim 
 tried by a jury, but the defendant has that right in 
 respect of his counterclaim : Ee Fraser v. Ham, 7 0. 
 L. E. 449. 
 
 144. Powers of Division Court Judge as to non-suit : Ee 
 Johnson v. Kayler, 12 0. W. E. 770, 837, 18 0. L. E. 
 248. 
 
 146. A garnishee order should not be made to attach a 
 debt where payment under the order will not be a 
 valid discharge to the garnishee of the amount paid : 
 Martin v. Nadel, 1906, 2 K. B. 26. Garnishee pro- 
 ceedings are part of the lex fori. A garnishee order 
 should not be made to attach a debt due from a for- 
 eign corporation : Martin v. Nadel, 1906, 2 K. B. 26. 
 The interest of a residuary legatee in the estate of 
 a testator who had died within a year of the attach- 
 ment was held not attachable under this section: 
 
CHAPTER 63. 255 
 
 Hunsberry v. Kratz, 5 0. L. E. 635. A garnishee 
 order does not amount to an assignment either abso- 
 lute or by way of security of the garnished debt. 
 The effect is to pay not the debt itself, but a sum 
 equivalent to it to the garnishor: Norton v. Yates, 
 1906, 1 K. B. 112. Eent accruing due, but not yet 
 payable cannot be attached in the Division Court: 
 Christie v. Casey, 31 C. L. J. 35; Birmingham v. 
 Malone, 32 C. L. J. 717 ; see Apportionment Act : R. 
 S. 0. 1914, ch. 156 notes. ' ' Could the primary debtor 
 at the date of the garnishee summons have success- 
 fully maintained an action against the garnishee for 
 the money in question?" If not the garnishee sum- 
 mons must be dismissed: McLeod v. Clark, 8 0. W. R. 
 403. A claim under an insurance policy for a loss 
 adjusted and settled is not a debt which can be 
 attached at any rate so long as the company's right 
 to have the money applied in rebuilding is open: 
 Simpson v. Chase, 14 P. R. 280. Prohibition where 
 claim was for damages and garnishee proceedings 
 before judgment taken: Re McCreary v. Brennan, 3 
 0. W. N. 1052. See Con. Rules 911-921, H. & L. notes, 
 p. 1146, et seq. (1913 Rules 590-599). These High 
 Court rules do not apply to the Division Court : see 
 Re Clark v. McDonald, 4 0. R. 310; Simpson v. 
 Chase, 14 P. R. 280. As to attachment of wages : see 
 R. S. 0. 1914, ch. 143. 
 
 147. — (2) Evidence of repute to shew that the primary 
 debtor was married: see Re Rochon v. Wellington, 
 5 0. L. R. 102. 
 
 155. Garnishee proceedings may be in the division of the 
 garnishee's residence though the cause of action does 
 not arise there nor the primary debtor live there: 
 Re McCabe v. Middleton, 27 0. R. 170. Even if the 
 primary debtor resides in another division and dis- 
 putes the jurisdiction, judgment may be given 
 against him although the action be dismissed as 
 as against, the garnishee : Re Lented v. Congdon, 1 0. 
 L. R. 1, 5. Jurisdiction does not obtain under this 
 section where the garnishee resides without the Pro- 
 vince: Wilson v. Postle, 2 0. L. R. 203. Where all 
 parties are within the jurisdiction and the cause of 
 action arose without the Province, the action may 
 properly be entered in the Court nearest the garni- 
 shee's residence: Hopper v. Wollison, 11 0. W. R. 
 
"Lgg CHAPTER 63. 
 
 980, 16 0. L. E. 452. A claim under this section is 
 not removeable under sec. 69 into the High Court 
 where judgment has been given against the primary 
 debtor although the garnishee's position remains 
 undetermined and the object of the proposed removal 
 is to determine it. Ee Brodericht v. Merner, 17 P. E. 
 264. "Where an action was brought in the wrong 
 Court as against garnishees and at trial, the primary 
 creditor abandoned as against the garnishees, it was 
 held that the primary debtor, could not object to this 
 amendment and there was nothing to prevent the 
 Court from having or, if the word be preferred, ac- 
 quiring jurisdiction : Ee Boyd v. Sergeant, 10 0. W. 
 E. 377, 521. Garnishee living outside the Province 
 " carrying on business " within: see Nelson v. Lenz, 
 9 0. L. E. 50. Acceptance of service on behalf of a 
 garnishee residing out of the Province by a solicitor 
 in the Province and his appearance at the hearing 
 do not confer jurisdiction on the Division Court 
 under this section. Wilton v. Postle, 2 0. L. E. 203. 
 
 155. — (4) Service of garnishee summons on local agent 
 of foreign insurance company whose powers were 
 limited to receiving and transmitting applications 
 held effective: Simpson v. Chase, 14 P. E. 280. 
 
 156. See Lented v. Congdon, 1 0. L. E. 1, esp. at p. 5; 
 see note, ante sec. 155. 
 
 157. " Person interested in the proceedings." As to posi- 
 tion of intervener and his right to set up defence of 
 want of jurisdiction where garnishee has submitted 
 to jurisdiction: see Nelson v. Lenz, 9 0. L. E. 50. 
 Defence of garnishee put in after 8 days, but in 
 time for creditor to give notice rejecting it and to 
 transmit such notice to the garnishee, held sufficient ; 
 a garnishee is not bound to appear at the trial if 
 such last mentioned notice is not given : Simpson v. 
 Chase, 14 P. E. 280. . 
 
 160. Where debtor makes assignment for benefit of credi- 
 tors after recovery of Division Court judgment 
 against debtor and garnishee but before payment: 
 see Ee Dyer and Evans, 30 O. E. 637. This section 
 only protects a garnishee against being called on 
 by the primary debtor to pay over again and does 
 
CHAPTER 63. 157 
 
 not protect him against any third person: see Andrew 
 v. Canadian Mutual, 29 0. E. 365; see E. S. 0. 1914, 
 ch. 134, see. 14, notes. 
 
 162. The judgment of the Judge who tries the case is an 
 effective judgment from the day on which it is pro- 
 nounced : where damages are awarded thereby they 
 are attachable without the formal entry of judgment : 
 Davidson v. Taylor, 14 P. E. 78. Transfer of claim 
 by insolvent debtor : attacking : time : Morphy v. Col- 
 well, 3 0. L. E. 314. Assignment of debt attached: 
 trial of question of validity of assignment : Perras v. 
 Keefer, 22 0. E. 672. 
 
 170. Costs in action brought in another Division Court 
 in respect of judgment of first Court : MePherson v. 
 Forrester, 11 U. C. E. 362; Crowe v. Graham, 22 0. 
 L. E. 145. 
 
 173. Money deposited in bank to credit of an unenfran- 
 chised Indian is " personal property outside of the 
 reserve " and attachable under a Division Court 
 judgment: Avery v. Cayuga, 28 0. L. E. 517. 
 
 182. Eeturn of nulla bona: Turner v. Tourangeau, 8 0. L. 
 E. 221. A creditor for less than $40 cannot attach 
 a conveyance of lands as fraudulent: Zilliax v. Deans 
 20 0. E. 539. 
 
 188. Effect of transcript on pending judgment summons 
 proceedings : Eyan v. McCartney, 19 A. E. 423. 
 
 188.^(2) Where the provisions of this action are con- 
 travened, all proceedings under execution issued to 
 the Sheriff of the county may be set aside: Shepp- 
 hard v. Shepphard, 12 0. W. E. 186 at 191. The 
 issue of execution and return of nulla bona in a for- 
 eign Division Court to which a transcript has previ- 
 ously been sent as foundation for proceedings under 
 section 182: see Jones v. Paxton, 19 A. E. 163. 
 
 190. — (2/ If the affidavit required by the section were not 
 filed before the issue of the summons, it would not 
 be open to the defendant after appearing in obedi- 
 ence to the summons to raise an objection to the 
 jurisdiction on that ground. The defect not appear- 
 ing on the face of the proceedings, prohibition would 
 
158 CHAPTER 63. 
 
 not be granted: Ee Hawkins v. Batzold, 2 0. L. R. 
 704. An affidavit stating a sum remains unsatisfied, 
 " as I am informed and believe," is not the affidavit 
 required by the plain terms of the section. Prohi- 
 bition will lie to restrain proceedings on a judgment 
 summons issued pursuant to such an affidavit : Ee 
 Barr v. McMillan, 7 0. L. E. 70, 7 0. L. E. 672. 
 
 191. A Division Court Judge has no power to commit a 
 garnishee for default in making payments pursuant 
 to an order after judgment. Before a garnishee can 
 be examined, the affidavit required by section 190 
 must be filed: Ee Dowler v. Duffy, 29 0. E. 40. As 
 to law before 57 Vic. ch. 23, sec. 18: see Ee Hanna 
 v. Coulson, 21 A. E. 692. There is no provision for a 
 rehearing where an order made under this section. 
 Section 123 does not apply : Ee Wilson and Durham, 
 31 0. W. E. 762, 18 0. L. E. 328. An order for com- 
 mittal is not made as punishment for disobedience 
 of a specific order for payment and in the nature of 
 committal for contempt, but is granted as a punish- 
 ment for the fraudulent conduct of the debtor. The 
 judgment itself is sufficient foundation for the order 
 to commit: Ee Kay v. Storry, 8 O. L. E. 45. An or- 
 der for committal under this Act is not process of 
 contempt but is in the nature of execution: Ee Eeid 
 v. Graham Bros., 25 0. E. 573, 26 0. E. 126. The 
 committal is in the nature of process to coerce pay- 
 ment rather than of a punitive character as for 
 contempt. There is no jurisdiction to make an order 
 for committal of a married woman judgment debtor 
 who refuses to attend for examination even though 
 her non-attendance amounts to' wilful misconduct: 
 Ee Stewart v. Edwards, 11 O. L. E. 378; see also 
 Teasdall v. Brady, 18 P. E. 104; Ee McLeod v. 
 Enrigh, 12 P. E. 450. The proceedings by judgment 
 summons and its consequences are of, a strictly local 
 character. The warrant must be directed to a 
 bailiff of the county and gaoler of the county in 
 which the proceedings are taken. The warrant is 
 not effective beyond the county limits and " back- 
 ing " by a Magistrate of another county will not give 
 it validity there : Ee Hendry, 27 0. E. 297. Where it 
 appears that a judgment debtor was examined before 
 the Judge his order for committal must, on a motion 
 for prohibition, be treated as a complete adjudica- 
 tion as to that which must be made to appear to 
 
CHAPTER 63. 159 
 
 warrant the making of an order under this section : 
 Ee Hawkins v. Batzold, 2 0. L. E. 704. A member 
 of a partnership against which a judgment has been 
 recovered under this Act in the firm name, who has 
 not been personally served with the summons and 
 has not admitted himself to be or been adjudged a 
 partner, cannot be proceeded against for non-attend- 
 ance on a judgment summons: Ee Eeid v. Graham 
 Bros., 26 0. E. 126. Committal for fraud: warrant 
 is " process " within sec. 2 of the Habeas Corpus 
 Act, E. S. 0. 1914, ch. 84: Ee Steckney, 13 0. W. E. 
 1203. " Ability to pay," sub-sec. (e), covers the 
 case of a dishonest debtor who can by working earn 
 the means to pay the debt and contumaciously re- 
 fuses to do anything : Ee Kay v. Storrey, 8 0. L. E. 
 45. There is jurisdiction to commit a judgment 
 debtor, who is a government official, in default of 
 payment, although he has no other source of income 
 than his official salary : Ee Hyde v. Cavan, 31 O. E. 
 189. See also Church's Trustee v. Hibbard (1902), 
 2 Ch. 784. 
 
 195. See Stewart v. Edwards, 11 0. L. E. 378 at 381. 
 
 196. The power to rescind or alter order formerly ex- 
 tended merely to order for payment, not to order for 
 commitment: Ee Wilson and Durham, 13 0. W. E. 
 762, 18 0. L. E. 328. The judgment of a Division 
 Court is not in the nature of a final judgment and 
 therefore cannot be sued on in the High Court: 
 Crowe v. Graham, 22 0. L. E. 145. 
 
 210. A Judge may set aside an attachment which has 
 been improperly issued : Ee Mitchell v. Scribner, 20 
 0. E. 17. 
 
 213. Form of bond : see Kenni v. Macdonald, 22 0. E. 484. 
 
 214. — (a) In the last line of the sub-sec. for " revision " 
 read " reversion ": 4 Geo. V. ch. 2, Schedule (20). 
 
 216. See E. S. 0. 1897, ch. 342, sec. 19; E. S. 0. 1914, ch. 
 155, sec. 55. 
 
 221. Damages for neglect to levy execution: Watson v. 
 White, 1896, 2 Q. B. 9. Action for not executing 
 
IQQ CHAPTER 63. 
 
 warrant: Partridge v. Elkington, L. E. 6 Q. B. 82. 
 See also Smith v. Pritchard, 8 C. B. 565; Reg. v. Co. 
 Judge, Shropshire, 20 Q. B. D. 242. 
 
 226. See Judicature Act, R. S. 0. 1914, ch. 56, sec. 23, by 
 which the provisions of that Act, in sees. 16 to 22, 
 are made applicable to all Courts. Formers sees.' 
 58 and 59 of the Judicature Act, B. S. 0. 1897, ch. 51, 
 did not purport to apply to Division Courts the rules 
 of procedure of administration of justice : see H. & L. 
 notes, pp. 194, 195. Con Rule 343, 1913 Rule 172, 
 whereby holidays are excluded from the com- 
 putation of time in a period of less than six days 
 does not apply to the Division Court: Re Mc- 
 Kay v. Talbot, 3 O. L. R. 256. The High Court 
 Rules as to garnishment do not apply to the Divi- 
 sion Court. Garnishment in the Division Court 
 is governed by the Act itself: Re Clark v. Mc- 
 Donald, 4 0. R. 310; Simpson v. Chase, 14 P. R. 280. 
 As to proceedings against defendants out of the Pro- 
 vince, under sec. 75 and application High Court 
 Rules : see Re Coy v. Arndt, 8 0. L. R. 101. Distinc- 
 tion between this section and corresponding section 
 (164) of the English County Courts Act: see Re 
 Stoddard v. Eastman, 12 0. W. R. 226, 674. 
 High Court Rule as to effect of non-suit does not 
 apply to Division Court: see sees. 105, 144, ante; 
 see also H. & L. notes, p. 1018. The practice in the 
 High Court for setting aside judgments in default 
 of appearance is not applicable to the Division Court, 
 being inconsistent with sec. 123 : see note to that sec. 
 
 227. The following tariff of fees went into effect on the 
 1st April, 1914: 
 
CHAPTER 03. ^g^ 
 
 DIVISION COURT TAEIFF. 
 
 Form I. 
 
 1. — Clerk's Fees. 
 
 1. Receiving claim, numbering and enter- 
 
 ing in procedure book $0.25 
 
 (This item to apply to entering in 
 tbe precedure book a transcript of 
 judgment from another. Court, but 
 not an entry made for the issue of 
 a judgment summons.) 
 
 2. Issuing summons, with necessary notices 
 
 and warnings thereon, or judgment 
 summons (as provided in forms) 
 in all. 
 
 Where claim exceeds $10 and does not 
 
 exceed $20 50 
 
 "Where claim exceeds $20 and does not 
 
 exceed $60 60 
 
 Where claim exceeds $60 and does not 
 
 exceed $100 80 
 
 Where claim exceeds $100 1 . 50 
 
 (N.B. — In replevin and inter- 
 pleader suits the value of goods to 
 regulate the fee.) 
 
 3. Copy of summons, including all notices 
 
 and warnings thereon .25 
 
 4. Copy of claim (including particulars), 
 
 when not furnished by plaintiff .... .25 
 
 5. Copy of set-off or counterclaim or notice 
 
 of defence (including particulars), 
 
 when not furnished by defendant ... .25 
 
 (Note. — In either of the last two 
 preceding items the fee may be taxed 
 against the party ordered to pay 
 costs.) 
 
 6. Receiving and entering bailiff's return 
 
 to any summons, writ or warrant 
 issued under the seal of the Court 
 (except summons to witness and re- 
 turn to summons or paper from an- 
 other division) .15 
 
 I.A.— 11 
 
162 CHAPTER 63. 
 
 7. Taking confession in judgment $0.10 
 
 (This does not include affidavit and 
 oath, chargeable under item 8.) 
 
 8. Every necessary affidavit, if actually 
 
 prepared by the clerk, and adminis- 
 tering oath to the deponent .25 
 
 9. Furnishing duly certified copies of the 
 
 summons and notices and* papers 
 with all proceedings, for purposes of 
 appeal, as required by either party, 
 folio of 100 words 05 
 
 10. Certificate therewith .25 
 
 11. Certifying under seal of the Court and 
 
 delivering to a judgment creditor a 
 memorandum of the amount of judg- 
 ment and costs against a judgment 
 debtor, or garnishee, under The 
 Creditor's Belief Act, or for any 
 other purpose .25 
 
 12. Copies of papers, for which no fee is 
 
 otherwise provided, necessarily re- 
 quired for service or transmission 
 
 to the Judge, each .10 
 
 If exceeding two folios, per folio .... .05 
 
 13. Every notice of defence or admission 
 
 entered, or other notice, required to 
 be given by the Clerk to any party to 
 a cause or proceeding, including mail- 
 ing, but not .postage .15 
 
 14. Entering final judgment by Clerk, on 
 
 special summons, where claim not 
 
 disputed. 
 
 Where claim does not exceed $60 . . .50 
 
 Where claim exceeds $60 .75 
 
 15. Entering every judgment rendered at 
 
 the hearing, or final order made by 
 the Judge. 
 
 Where claim does not exceed $60 50 
 
 Where claim exceeds $60 .75 
 
 (Note. — This fee does not apply to 
 any proceeding on judgment sum- 
 mons.) 
 
 (These fees will include the ser- 
 vice of recording at the trial and 
 afterwards entering in the proced- 
 ure book the judgment, decree and 
 
CHAPTER 63. J£3 
 
 order in its entirety, rendered or 
 made at the trial. If a garnishee 
 proceeding before judgment, these 
 fees will be allowed for the judg- 
 ment in respect to the primary debtor , 
 and like fees for the adjudication, 
 whenever made, in respect to the gar- 
 nishee.) 
 
 16. Subpoena to witness $0.25 
 
 (The subpoena may include any 
 number of names therein and only 
 one original subpoena shall be taxed, 
 unless the Judge otherwise orders.) 
 
 17. .For every copy of subpoena required for 
 
 service .10 
 
 18. Summons for jury (including copy for 
 
 each juryman), when required by 
 parties 1 . 25 
 
 19. Calling and returning jury ordered by 
 
 the Judge .25 
 
 20. Evei;y order of reference, or order for 
 
 adjournment, made at hearing, and 
 every order requiring the signature 
 of the Judge, and entering the same, 
 including finatl order on judgment 
 
 debtor's examination .25 
 
 (Any warning necessary with order 
 forms part of the order.) 
 
 21. Transcript of judgment to another Divi- 
 
 sion Court .50 
 
 22. Every writ, of execution, warrant of at- 
 
 tachment, or warrant of commitment, 
 
 and delivering same to bailiff. 
 "Where claim does not exceed $60 .... .50 
 
 Where claim exceeds $60 and does not 
 
 exceed $100 .75 
 
 Where claim exceeds $100 1.00 
 
 23. Eenewal of every summons or writ of 
 
 execution, when ordered by the judg- 
 ment creditor, or warrant of commit- 
 ment, when ordered by Judge .25 
 
 24. Every bond, when necessary, and pre- 
 
 pared by the Clerk (including affi- 
 davits of justification and of execu- 
 tion) . . ,. 1.00 
 
164 CHAPTER 63. 
 
 25. Transmitting transcript of judgment; 
 
 or transmitting papers for service to 
 another division ; or to the Judge, on 
 application to him, including neces- 
 sary entries and mailing, but not in- 
 cluding postage $0 25 
 
 26. Eeceiving papers from another division 
 
 for service, entering the same, hand- 
 ing to bailiff, receiving and entering 
 his return and transmitting the same 
 (if return made promptly, not other- 
 wise) .30 
 
 27. Search by a person not a party to the 
 
 suit or proceeding to be paid by the . 
 
 applicant — . .10 
 
 Search by a party to the suit or proceed- 
 ing, where the suit or proceeding, is 
 
 over one year old '. .10 
 
 (No fee is chargeable for search 
 to a party to the suit or proceeding, 
 if the same is not over one year old.) 
 
 28. Taxing costs, in defended suits, after 
 
 judgment pronounced .25 
 
 29. Making out statement of costs in detail 
 
 (including bailiff's fees) at the re- 
 quest of any party .10 
 
 (Neither item 28 nor 29 applies to 
 statement of costs endorsed on sum- 
 mons or copy to be served.) 
 
 30. Taxing bailiff's costs, under under sec- 
 
 tion 178 of the Division Courts Act. .25 
 31.. Every necessary letter written to any 
 party to any cause, matter or pro- 
 ceeding in the Court .15 
 
 (A ; letter shall not be considered 
 necessary when a notice contains the 
 same information.) 
 
 2. — Bailiff's Fees. 
 
 1. Service of summons issued under the 
 seal of the Court, or Judge's sum- 
 mons or order on each person, ex- 
 cept summons to witness and sum- 
 mons to juryman: 
 Where claim exceeds $10 and does not 
 
 exceed $20 .40 
 
CHAPTER 63. 
 
 165 
 
 Where claim exceeds $20 and does not 
 
 exceed $60 $0 . 50 
 
 Where claim exceeds $60 and does not 
 
 exceed $100 .75 
 
 Where claim exceeds $100 1 . 00 
 
 (In interpleader suits the value of 
 the goods to regulate the fee.) 
 
 2. For every return as to service under 
 
 item 1; attending at the clerk's office 
 
 and making the necessary affidavit . 15 
 
 3. Service of summons on witness or jury- 
 
 man, or service of notice .25 
 
 4. Taking confession of judgment and at- 
 
 tending to prove .10 
 
 5. For calling parties and their witnesses 
 
 at the sitting of the Court in every 
 defended case, and at the hearing of 
 every judgment summons .15 
 
 6. Enforcing every writ of execution or 
 
 summons of replevin, or warrant of 
 attachment or warrant against the 
 body, each: 
 
 Where claim does not exceed $20 .... .65 
 
 Where claim exceeds $20 and does not 
 
 exceed $60 1 .00 
 
 Where claim exceeds $60 1 . 50 
 
 (Where goods replevied, the value 
 of goods to regulate the amount of 
 the fee. This fee does not include 
 service of summons in replevin on 
 defendant.) 
 
 Fees under Creditor's Belief Act (see 
 section 189 ante and E. S. 0. 1914, 
 ch. 81, sec, 26), shall be. taxed accord- 
 ing to the tariff. 
 
 7. Every mile or fraction of a mile neces- 
 
 sarily travelled to serve summons, 
 or process, or other necessary papers, 
 or in going to seize on a writ of exe- 
 cution, where money, paid on de- 
 mand, or made on execution, or case 
 settled after seizure .15 
 
 8. Mileage going to arrest under warrant, 
 
 when arrest made, per mile or frac- 
 tion of a mile 15 
 
166 CHAPTER 63. 
 
 9. Mileage carrying delinquent to prison, 
 including all expenses and assistance, 
 per mile, or fraction of a mile $0 . 25 
 
 10. Every schedule of property seized, at- 
 
 tached, or replevied, including affi- 
 davit of appraisal, when necessary: 
 Exceeding $10 and not exceeding $20 . . .30 
 Exceeding $20 and not exceeding $60 . . .50 
 Exceeding $60 75 
 
 11. Every bond, when necessary, when pre- 
 
 pared by the bailiff, including affi- 
 davit of justification and execution. 1 00 
 
 12. Every notice of sale, not exceeding 
 
 three, under execution, or under at- 
 tachment, each .25 
 
 13. Eeasonable allowance and disburse- 
 
 ments, necessarily incurred in the 
 care and removal Of property: 
 
 (a) If a bailiff removes property seized, 
 he is entitled to the necessary dis- 
 bursements, in addition to the fees for 
 seizure and mileage. 
 
 (b) If he takes a bond, then to $1.00 
 instead of disbursements for removal 
 of property. 
 
 (c) If assistance is necessary in the 
 seizure, or securing, or retaining of 
 property, the bailiff is entitled to the 
 disbursements for such assistance. 
 
 (d) All charges for disbursements are 
 to be submitted to the clerk for taxa- 
 tion, subject, to appeal to the Judge. 
 
 (e) The bailiff must in all cases endorse 
 a memorandum of all his charges on 
 the back of the execution, or state 
 them on a separate slip of paper! so 
 that the clerk may conveniently tax 
 the bailiff's charges for fees and dis- 
 bursements. 
 
 (/) The Clerk in all cases to sign the 
 memorandum of his taxation and pre- 
 serve it among the papers in the 
 cause, together with the execution, 
 for future reference, and thereby en- 
 able the clerk to certify the bailiff's 
 returns properly. 
 
CHAPTER 63. £67 
 
 14. If execution or process in attachment in 
 
 the nature of execution be satisfied 
 in whole or in part, after seizure and 
 before sale, whether by action of the 
 parties or otherwise, the bailiff shall 
 be entitled to charge and receive 3 per 
 cent, on the amount directed to be 
 levied ; or on the amount of the value 
 of the property seized, whichever 
 shall be the lesser amount. 
 
 15. Poundage on executions, and on attach- 
 
 ments in the nature of executions, 5 
 per cent., exclusive of mileage for 
 going to seize and sell, upon the 
 amount realized from property neces- 
 sarily sold. 
 
 3. — Fees to Witnesses and Appbaisers. 
 
 Allowance to Witnesses. 
 
 Attendance, per diem, to witnesses within 
 three miles of the place where the 
 Court is held, if within the county. . $0.75 
 
 And if without the county 1 . 00 
 
 Attendance, if witness resides over three 
 miles from the place of sittings and 
 
 within the eounty, per diem 1 . 00 
 
 Attendance, if witness resides without the 
 county and more than three miles of 
 the place of sittings, per diem .... 1 . 25 
 Barristers and solicitorSj physicians and 
 surgeons, engineers and veterinary 
 surgeons, other than parties to the 
 cause, when called upon to give evi- 
 dence of any professional service 
 rendered by them, or to give profes- 
 sional opinions, per diem 4.00 
 
 (Note. — Disbursements to survey- 
 ors, architects and professional wit- 
 nesses, such as are entitled to specific 
 fees, by statute, are to be taxed, as 
 authorized by such statute. 
 If witnesses attend in one case only, 
 they will be entitled to the full allow- 
 ance. 
 
168 CHAPTER 63. 
 
 If they attend in more than one case, 
 they will be entitled to a proportional 
 part in each case Only.) 
 The travelling expenses of witnesses, over 
 three miles, shall be allowed according 
 to the sums reasonably and actually 
 paid, but in no case shall exceed 20 
 cents per mile, one way. 
 
 Fees of Appeaisebs. 
 
 Fees to Appraisers of Goods, etc., seized 
 under Warrant of Attachment. 
 
 To each appraiser, $1.00 per day, during the 
 time actually employed in appraising 
 goods — to be paid in the first instance 
 by plaintiff and allowed as costs in 
 cause. 
 
 Fees in Suits not Exceeding $10. 
 
 (Ante, sec. 48.) 
 
 Clerk. 
 
 For all services, from entering action, of 
 suing out a judgment or interpleader 
 summons, up to and including the 
 entering of final judgment, or final 
 order on any such judgment or sum- 
 mons, in case" the action proceeds to 
 judgment or final order $1 . 25 
 
 In case the action' does not proceed to judg- 
 ment or final order, the fees hereto- 
 fore, or that may hereafter be pay- 
 able, but not exceeding in the whole 
 the said sum. 
 
 For issuing writ of execution, warrant of at- 
 tachment, or warrant for arrest of de- 
 linquent and entering the return 
 thereto .50 
 
 Bailiff. 
 
 For all services rendered in serving sum- 
 mons and making return, and any 
 
CHAPTER 64. 
 
 169 
 
 other service that may be necessary 
 before the judgment is entered by the 
 clerk or pronounced by the Judge, 
 
 mileage excepted $0 . 50 
 
 For enforcing execution, schedule of prop-. 
 erty seized, or attached, bond where 
 necessary, and all other necessary 
 acts done by him, after seizure, mile- 
 age excepted, if money made or case 
 
 settled, after levy 1 . 00 
 
 (Necessary disbursements incurred 
 in the care and removal of property 
 shall be allowed to be first allowed by 
 the clerk, subject to the approval of 
 the Judge.) 
 
 CHAPTEE 64. 
 
 THE JUBOES ACT. 
 
 10. The Court House is the reasonable location for 
 offices connected with the Courts and the adminis- 
 tration of justice other than Division Courts: Eodd 
 v. Essex, 14 O. W. E. 953, 19 O. L. E. 659. 
 
 45. A provincial legislature has power to determine the 
 number of grand jurors to serve at Courts of oyer 
 and terminer and general sessions, this being a 
 matter relating to the constitution of the Courts : but 
 the selection and summoning of jurors, including 
 talesmen, and fixing the number of grand jurors by 
 whom the bill may be found relate to procedure in 
 criminal matters in respect of which the Dominion 
 alone has power to legislate. The Dominion Parlia- 
 ment can exercise its power by adopting the provin- 
 cial law, and has done so by the Criminal Code : E. v. 
 Walton, 12 O. L. E. 1. 
 
 61. The restriction imposed by this section upon the dis- 
 closure of the names of the jurors and the inspection 
 of the panel applies in criminal proceedings: Ee 
 Chantler, 9 O. L. E. 529. 
 
170 CHAPTER U. 
 
 63. Jury case not set down : change of venue : Taylor v. 
 Toronto Construction Co., 3 0. W. N. 930, 21 0. W. 
 E. 508; Brown v. G. T. B., 23 O. W. B. 74, 4 O. W. N. 
 113. 
 
 67. See E. v. Walton, 12 0. L. E. 1, note to sec. 45: see 
 also E. v. O'Bourke, 32 C. P. 388, 1 O. E. 464; E. v. 
 Cox, 2 Can. C. C. p. 207; E. v. Noel, 2 0. W. E. 488. 
 
 75. The defendants having delivered separate defences 
 and being separately represented claimed to be en- 
 titled to four peremptory challenges each, and 
 between them challenged six jurors. The trial re- 
 sulted in a verdict for defendants. Held, that there 
 had been a mistrial and that the plaintiff was entitled 
 to a new trial. The defendants were entitled to only 
 four peremptory challenges between them, and the 
 plaintiff, having taken objection at the time, had not 
 waived his right by proceeding with the trial : Empey 
 v. Carscallen, 24 O. E. 658. See Con. Eule 785 as to 
 mistrial as grounds for new trial, and now see Judi- 
 cature Act, E. S. 0. 1914, ch. 56, sec. 28. 
 
 84. " Immediately after the verdict:" what is sufficient 
 compliance: Barker v. Lewis (1913), 3 K. B. 34. 
 
 / 
 
CHAPTER 65. 271 
 
 CHAPTER 65. 
 
 THE ARBITRATION ACT. 
 
 Refer to: The Annual Practice, where " The Arbi- 
 tration Act, 1889," 4s annotated; Russell on Arbi- 
 tration; Redman on Arbitrations; Stephens' New 
 Commentaries, Vol. III., Bk. V., ch. 1; Rudall, Con- 
 duct of a Reference. 
 
 2. — (d) Change in law made by amendment of 1906: 
 Garside v. Webb, 10 0. W. R. 235, 11 0. W. R. 43. 
 Applicability of the provisions of the amendment of 
 1906: Cole v. London Mutual Fire Ins. Co., 10 0. W. 
 R. 930, 15 0. L. R. 619. What may be made the sub-. 
 ject of an arbitration: Hewitt v. Hewitt, 1 Q. B. 110; 
 Baker v. Townshefid, 1 Moo. 120. What is a sub- 
 mission: Re Hammond and Waterton, 62 L. T. Rep. 
 808. If the parties to a submission are to be de- 
 - prived of any legal right, the submission must 
 plainly so state: Re Green and Balfour, 63 L. T. 
 Rep. 97, 325. 
 
 4. There is nothing in the Public Schools Act, R. S. 0. 
 
 1914, ch. 266, to bring an award of arbitrators, ap- 
 pointed under section 21 of that Act, within the ex- 
 ception of this section : Re Churchill and Hullett, 11 
 O. L. R. 284. Applies to awards under Dominion 
 Railway Act: Re Horse Shoe Quarry Co., 17 0. W. 
 R. 757. As to arbitration of claims for lands in- 
 juriously affected by work" done by a municipal cor- 
 poration: see R. S. O. 1914, ch. 192, sec. 332, et seq, 
 also ch. 199. 
 
 5. See Judicature Act, 1897, ch. 51, sec. 26 (2), as to 
 
 jurisdiction of the High Court in regard to awards. 
 See now R. S. 0. .1914, eh. 56, sees. 12, 13, and see 
 also ch. 56, sec. 16 (a) notes. For former practice 
 of Courts of Chancery and Law, see cases col- 
 lected: Holmested ■■& Langton, pp. 17-18. The 
 discretion to giv'e leave to revoke a. submission 
 is to be' exercised bnly Under exceptional cir- 
 cumstances: Rathbun v. Standard Chemical Co., 
 5 0. L. R. 286. In what cases leave given to 
 
172 CHAPTER 65. 
 
 revoke submission: see e.g., James v. Attwood, 
 1 Scott 841; Be Woodcraft, 5 Jur. 771; Scott 
 v. Vandansan, 1 Q. B. 102; Hart v. Duke, 32 L. J. 
 Q. B. 55 ; James v. James, 23 Q. B. D. 12 ; West India 
 Docks v. Kirk, 12 App. Cas. 738. Section 5, which 
 makes submissions of the same effect as an order of 
 the Court, applies by virtue of section 2 to submis- 
 sions in writing : see also Section 6 : Ryan v. Patri- 
 arche, 8 0. W. R. 811, 13 0. L. R. 94. The section 
 only applies to admitted submissions: Re Little 
 Sturgeon and Mackie, 4 0. W. N. 262, 23 0. W. R. 
 273. Submission providing for making of awards 
 from time to time : Quebec v. Ontario, 42 S. C. R. 161. 
 Revocation of submission after award doubtful even 
 of fraud or mistake established: Re Zuber & Hol- 
 linger, 20 0. W. R. 724, 3 0. W. N. 416, 25 0. L. R. 
 252. 
 
 7. The Drainage Referee is not an official referee, and an 
 
 action cannot be referred to him for trial unless he 
 is agreed upon by the parties as a special referee: 
 McClure v. Brooke, 4 0. L. R. 97, 5 0. L. R. 59. Re- 
 ference to experts: see H. & L. notes, p. 264. 
 
 8. The jurisdiction of the Court cannot be ousted as to 
 
 a cause of action which has arisen, but where' no 
 cause of action has arisen there is no jurisdiction. 
 Where an action was brought on an accident insur- 
 ance policy which contained an agreement to submit 
 to arbitration as a condition precedent to action, the 
 Court had no power to compel payment before refer- 
 ence and award contrary to the contract upon which 
 the obligation to pay did not arise until after refer- 
 ence and award : Nolan v. Ocean Accident, 5 0. L. R. 
 544. " The question is not, whether, where a con- 
 tract creates an obligation to pay a sum of money, 
 it is a good answer to an action to recover it ,that 
 disputes have arisen as to the liability to pay the 
 sum, and that the contract provides for the reference 
 of such differences to arbitration, but whether, where 
 the only obligation created is to pay a sum ascer- 
 tained in particular manner; where, in other words, 
 such ascertainment is made a condition precedent to 
 the obligation to pay, the ; Courts can enforce an 
 obligation without reference to such ascertainment. 
 If they could do so, they would not be enforcing the 
 contract made by the parties, but one of a different 
 
CHAPTER 65. 
 
 173 
 
 nature." Per the Lord Chancellor: Caledonian Ins. 
 Co. v. Gilmour, 1893, A. C. 85 ; see also Spurrier v. 
 La Cloche, 1902 A: C. 446; Austrian Lloyd v. Gres- 
 ham Life, 1 K. B. 249, 88 L. T. 6; Scott v. Avery, 
 5 H. L. C. 811. See also, in U. S. Courts : Reed v. 
 Washington Fire, 138 Mass. 572 ; Badenfield v. Mas- 
 sachusetts Mutual Accident, 154 Mass. 77 ; Whitney 
 v. National Masonic Accident, 52 Minn. 378. Where 
 a policy of insurance contains a clause making arbi- 
 tration a condition precedent to action, the person 
 claiming under the policy is bound by the terms of it 
 though not having signed it : Baker v. Yorkshire Fire, 
 92 L. T. Ill ; also Nolan v. Ocean Accident, 5 0. L. R. 
 544. Where a matter in dispute as to an alleged 
 usage was referred to an engineer, although the en- 
 gineer had publicly and privately expressed himself 
 that no such usage existed, yet as he swore that he 
 would give the contention fair consideration should 
 the matter come before him as arbitrator, the action 
 must be stayed: Sherewood v. Balch, 30 0. R. 1. 
 The principle that a tenant who holds over after the 
 expiration of a lease and pays or agrees to pay rent 
 and becomes tenant from year to year, is deemed to 
 hold on all the terms of a yearly tenancy, so far as 
 they are applicable to a yearly tenancy, applies 
 where an express tenancy at will is created. An 
 arbitration clause is not inconsistent with such a 
 tenancy at will and applies during the continuance of 
 the tenancy: Morgan v. Harrison, 1907, 2 Ch. 137. 
 Reference of dispute as condition precedent to right 
 to sue: see Hodson v. Railway Passengers' Assur- 
 ance, 1904, 2 K. B. 833. Party to a submission: In- 
 surers or insured under a policy subject to: R- S. O. 
 1914, ch. 185, sec. 194, Stat. Cond., 21, are parties to 
 a submission within the meaning of this section: 
 Hughes v. Hand-in-Hand Ins. Co., 7 0. R. 615. As 
 to effect of a variation in the condition: see Cole v. 
 London Mutual, 10 0. W. R. 930, 15 0. L. R. 619. 
 Disputes between partners involving questions of 
 law, or where a prima facie case of fraud is set up, 
 should not, as a rule, be referred to arbitration: 
 Barnes v. Young, 1898, 1 Ch. 414. A submission to 
 arbitration does not per se exclude the right to raise 
 the defence of the Statute of Limitations, but if it 
 intended to exclude such a defence an express term 
 to that effect must be imported into the submission : 
 
174 CHAPTER 65. 
 
 Re Astley and Tydlesley Coal Co., 68 L. J. Q. B, 252. 
 Submission means written submission only (see sec. 
 2) : Eyan v. Patriarehe, 13 0. L. R. 94; 8 O. W. R. 81, 
 
 An application for stay of proceedings after delivery 
 of statement of defence will be refused: West Lon- 
 don Ins. Co. v. Abbott, 29 W. R. 584; Cole v. Cana- 
 dian Fire Ins. Co., 10 0. W. R. 906, 15 0. L. R. 336. 
 Defence of arbitration pending: see Ryan v. Patri- 
 arehe, 8 0. W. R. 811, 13 O. L. R. 94. Staying pro- 
 ceedings: Davis v. Starr, 41- Ch. D. 242; Renshaw v. 
 Queen Anne Mansions, 1897, 1 Q. B. 662; Parry v. 
 Liverpool Malt Co., 1900, 1 Q. B., 339 ; Manchester 
 Ship Canal v. Pearson, 1900, 2 Q. B. 606; Ford's 
 Hotel v. Bartlett, 1896, A. C. 1 ; Austrian Lloyd v. 
 Gresham Life Assurance, 1903, 1 K. B. 249. Stay of 
 proceedings because of partisan arbitrators : Bonnin 
 v. Neame, 1910, 1 Ch. 732. Stay of action — claim for 
 rectification of lease: Printing Machinery Co. v. 
 Linotype, 1912, 1 Ch. 566. Award made pendente 
 lite : Doleman v. Ossett, 1912, 3 K. B. 257. Staying 
 action on building contract which provided for refer- 
 ence of disputes to an engineer : Bristol Corporation 
 v. Aird (1913), A. C. 241. 
 
 Step in the proceedings: Ford's Hotel v. Bartlett, 
 1896, A. C. 1; Chappell v. North, 1891, 2 Q. B. 
 252 ; County Theatres v. Knowles, 1902, 1 K. B. 480 ; 
 Richardson v. Le Maitre, 1903, 2 Ch. 222. Filing affi- 
 davits in opposition to motion for receiver is not; 
 Zalinoff v. Hammond, 1898, 2 Ch. 92. An undertaking 
 by one party to an action, — e.g., to deliver an account 
 — constitutes a step in proceedings : Ochs v. Ochs 
 Brothers, 1909, 2 Ch.,121; see also County Theatres 
 v. Knowles, 1902, 1 K. B. 480; Richardson v. Le 
 Maitre, 1903, 2 Ch. 222. 
 
 9. — (1) A submission to two arbitrators with power to 
 appoint an umpire is different from an arbitration 
 of three arbitrators whether the three are appointed 
 when the reference begins or after two have failed 
 to agree. The former is the statutory tribunal. 
 In the other, the parties provide, as they are at 
 liberty to do, for an award by two arbitrators and 
 exclude the contingencies which may arise and are 
 provided for in the simpler form of submission. 
 
CHAPTER 65. 175 
 
 See as to attempt by one of the parties to a reference 1 
 of the latter sort to defeat it by refusing to appoint 
 an arbitrator, and effect of former section, R. S. 0. 
 62, sac. 8: Excelsior Life v. Employers' Liability, 
 2 0. L. R. 301, 3 0. L. R. 93, 5 0. L. R. 609. 
 Where a sole arbitrator has been appointed after 
 the other side has made default as specified, notice 
 after appointment of sole arbitrator should be given 
 to the party in default who, if not notified, is not 
 called on to move against the appointment. Where 
 the agreement imputed that three arbitrators should 
 act from the outset, it was not within the Act, R. S. 
 0. 1897, ch. 62, and section 8 of that Act did not 
 apply: Sturgeon Falls Power Co. v. Sturgeon Falls, 
 2 O. L. R. 585. See also Gumm v. Hallett, L. R. 14 
 Eq. 555. 
 
 9. — (2) Arbitrator made party to application to appoint 
 umpire: Denny v. Standard Export Lumber Co., 
 1912, 2 K. B. 542. Appointment of arbitrators by 
 Court: Re Wilson and Eastern Counties Navigation 
 Co., 1892, 1 Q. B. 81 ; Eyre and Leicester Corpora- 
 tion, 1892, 1 Q. B. 136.' Where two arbitrators had 
 power to appoint an umpire but refused to do so, the 
 Court on application appointed one. Practice con- 
 sidered: Taylor v. Denny (1912), A. C. 666. 
 
 10. — (&) ' ' Stating a case. ' ' Appeal will not lie to Court 
 of Appeal from order of Judge in Chambers direct- 
 ing arbitrator to state a case : Re Frere and Stane- 
 ley, 1905, 1 K. B. 366. Arbitrator after he has made 
 his award cannot state a case nor be ordered to do 
 so: Re Palmer and Hosken, 1898, 1 Q ; B. 131. Juris- 
 diction of Court to order: Re Spillers and Baker, 
 1897, 1 Q. B. 312. Costs of stated case: Re Gonty 
 and Manchester, 1896, 2 Q. B. 439. See post, sec 29, 
 notes. 
 
 10. — (c) On a motion for an order referring back to 
 arbitrators to enable them to correct a clerical error 
 an award made under the Dominion Railway Act: 
 Held, that if provincial legislation applied the mo- 
 tion was needless as the arbitrators had power, 
 under this section, to correct their mistake. If that 
 legislation was not applicable there was no power 
 under the Dominion Railway. Act or otherwise to 
 remit the award nor to correct the error on motion : 
 Re McAlpine, 3 O. L. R. 230. 
 
176 CHAPTER 65. 
 
 11. The assent of parties to the arbitration being pro- 
 
 ceeded with after the time had expired is equiva- 
 lent to a parol submission only: Eyan v. Patriarche, 
 13 0. L. E. 94. It is good cause for enlarging the 
 time for making the award that the arbitrators 
 themselves, pursuant to their powers under the sub- 
 mission, did all they could to enlarge but were un- 
 able to get the original submission whereon to make 
 the endorsement as to enlargement: Ee Clement 
 and Dixon, 17 P. E. 455. Death of one of the 
 parties and the absence of right of appeal would 
 not warrant Court in refusing to enlarge the time: 
 Ee Curry, 12 P. E. 437; see Digest p. 100. Power 
 of Court to extend time: Be Bussell and Baldwin, 
 11 O. W. E. 408; Knowles v. Bolton Corporation, 
 1900, 2 Q. B. 253. Award made out of time: Garside 
 v. Webb, 11 0. W. E. 43. 
 
 12. There are but four grounds on which a matter can 
 be remitted to an arbitrator for reconsideration 
 under sec. 10 of the English Act, 52 and 53 Vic:, ch. 
 49, which corresponds with sec. 12 of our Act, viz. 
 (1) where the award is had on the face of it, (2) 
 where there has been misconduct on the part of the 
 arbitrator, (3) where there has been an admitted 
 mistake and the arbitrator himself asks that the 
 matter be remitted, (4) where there has been ad- 
 ditional evidence discovered after the making of the 
 award: Ee Montgomery and Lilienthal, 1898, 78 L. 
 T. N. S. 406; In re Keighley and Bryan, 1893, 1 Q. 
 B. 405; In re Palmer and Hosken, 1898, 1 Q. 
 B. 131 ; Ee Nuttal'l and Lynton and Barnstaple, 1900, 
 82 L. T. N. S. 17. The Court will not remit the 
 matter to the arbitrators for reconsideration on 
 the ground of mistake unless the mistake appears 
 on the face of the award or is admitted by the 
 arbitrators: Ee G. T. E. and Petrie, 2 O. L. E. 
 284. Where after an award was made, two of the 
 arbitrators certified that they had admitted evi- 
 dence the admissibility of which they considered 
 doubtful, the Court refused to remit, under this 
 section, the matters in question in the arbitration: 
 Ee G. T. E. and Petrie, 2 0. L. E. 284; see also 
 Ee Mc Alpine, 3 O. L. E. 230 (ante sec. 10 (c). There 
 is nothing in the Public Schools Act to bring an 
 award of arbitrators appointed under former sec. 
 
CHAPTER 65. I77 
 
 46 of that Act (E. S. 0. 1914, ch. 266, sec. 21) within 
 the exception contained in sec. 4 of this Act, and 
 there is power in the Court or Judge to remit the 
 matters referred or any of them for reconsidera- 
 tion: Re Churchill and Hullett, 11 0. L. E. 284. 
 An application to remit a case to arbitrators for 
 reconsideration need not be made within the time 
 limited for moving to set aside an award, but it 
 must be made within a reasonable time and the 
 delay satisfactorily accounted for: Ee Citizens 
 Ins. Co. and Henderson, 13 P. E. 70. An award may 
 be remitted to arbitrators under this section 
 although the result of the reconsideration may be 
 to have the award virtually set aside by a different 
 or even contrary decision of the arbitrators. The 
 Court is justified in remitting an award if fraud 
 or fraudulent concealment on the part of the per- 
 sons in whose favour the award is, is established, or 
 new evidence is forthcoming which by the exercise 
 of reasonable diligence could not have been forth- 
 coming before the award was made: Green v. 
 Citizens Ins. Co. 18 S. C. E. 338. Misconduct of 
 arbitrator as ground for remittance: Ee Powell 
 and Lake Superior Power Co., 9 0. L. E. 236, and see 
 sec. 13 notes. Mistake in principle of award : Lemay 
 v. McEae, 16 A. E. 348, 18 S. C. E. 280. An arbi- 
 trator who has made an award is at once functus 
 • officio, and if his award does not really embrace the 
 matters in dispute between the parties, he cannot 
 of his own motion treat it as no award and make 
 another: Stringer v. Eiley, 1901, 1 K. B. 105. A 
 bona fide application having been made to an arbi- 
 trator before the award was signed, to state certain 
 questions of law in a special case for the opinion 
 of the Court or to adjourn the matter until an 
 application to the Court to direct him to state a 
 special case had been disposed of, his refusal to do 
 so was a ground for remittance for further con- 
 sideration: Powell v. Lake Superior Power Co., 
 9 O. L. E. 236; see also In re Palmer and Hosken, 
 1898, 1 Q. B. 131. Where an arbitrator exceeds his 
 authority: see Powell v. Lake Superior Power Co., 
 9 O. L. E. 236. See post, sec. 29, notes. 
 
 13. Con. Eule 652 (1913 Eule 401) does not apply to 
 the case of a submission ordered by consent in 
 
 S.A.— 12 
 
178 CHAPTER 65. 
 
 Court to an arbitrator selected and agreed on be- 
 tween the parties, and the whole award was set 
 aside when the arbitrator improperly heard evi- 
 dence behind the back of one of the parties which 
 affected a portion of the award: Kennedy v. Beal, 
 29 0. E. 599. Misconduct: disqualification: Bright 
 v. Eiver Plate, 1900, 2 Ch. 835; Ee Palmer and 
 Hosken, 1898, 1 Q. B. 131; Ee Haigh and London 
 N. W. By., 1896, 1 Q. B. 649. Misconduct of arbi- 
 trator: Ee Ensch and Zaretzky, 1910, 1 K. B. 327; 
 Freeman v. Chester (1911), 1 K. B. 783; Powell v. 
 Lake Superior Power Co., 9 O. L. E. 236. Arbitra- 
 tion by the servant of one of the parties : see Eckers- 
 ley v. The Mersey Docks, etc. (1894), 2 Q. B. 667. 
 A member of a school board is not a member or 
 officer of a corporation so as to be disqualified as 
 arbitrator; Ee Sarnia and Sarnia Gas, 3 0. W. 
 N. 117, 20 O. W. B, 204. Arbitrators are not liable 
 for negligence or want of care : Tharsis Sulphur Co. 
 v. Loftus, L. E. 8 C. P. 1. 
 
 14. It is no longer necessary to make either the sub-* 
 mission or the award a rule of Court before pro- 
 ceeding to enforce it: see sec. 5 ante and notes. 
 Moving against awards : see sec. 33 infra. Appeals : 
 see sec. 17 infra. Jurisdiction of High Court as to 
 awards: Judicature Act, E. S. 0. 1914, ch. 56, sec. 
 16a. H. & L. notes, pp. 17, 18. An application 
 for an order giving leave to enforce an award need 
 not be made within 6 weeks after the publication 
 of the award. An order under sec. 14 is necessary 
 when the reference has been out of Court. Objec- 
 tions properly the subject of a motion to set aside 
 the award were not given effect to upon appeal 
 from an order under this section: Ee Lloyd and 
 Pegg, 5 O. L. E. 389. The order to enforce an award 
 is in the discretion of the Court and will be made 
 only where the Court deems proper that it should 
 be enforced, and may be withheld: Ee Baker and 
 Kelly, 9 0. W. E. 136, 14 0. L. E. 623. A Local 
 Judge has jurisdiction to make an order for leave 
 to issue execution to enforce an award: Ee Baker 
 and Kelly, 9 0. W. E. 136, 14 0. L. E. 623; and 
 see also as to enforcing award: Aitken v. Fernando, 
 1903, A. C. 200; Ee Horseshoe Quarry Co. and St. 
 Marys, etc. Ey., 22 0. L. E. 429. A summons to 
 
CHAPTER 65. I79 
 
 enforee an award under sec. 12 of the Arbitration 
 Act, 1889 (Imp.), cannot be served on a foreigner 
 resident out of the jurisdiction: Rasch v. Wulfert, 
 1904, 1 K. B. 118. Action to enforce award: accord 
 and satisfaction as to part of amount awarded : War- 
 rell v. Nipissing Trading Co., 12 0. W. R. 933. An 
 award must be certain: Hawkins v. Golclough,. 
 1 Burr. 275, Watson v. Watson, Style's Reports, 28. 
 Where the alleged award is not made in respect of 
 all the matters referred, see : Grarside v. Webb, 11 0. 
 W. R. 43. 
 
 15. Duty of an arbitrator in hearing evidence : Johnstone 
 v. Cheape, 5 Dow 247. 
 
 16. See Re McPherson and Toronto, 16 0. R. 230. 
 
 17. Arbitrators, were appointed under the Municipal 
 Act, and afterwards the submission was enlarged 
 to include a claim for damages for breach of con- 
 tract. They did not provide in the submission for 
 an appeal under this section. The arbitrators 
 awarded one sum for the claim " under the Acts, and 
 in respect of the matters referred to in the submis- 
 sion." Held that the award was indivisible, and as 
 the agreement, as to the submission did not provide 
 for an appeal under the Arbitration Act, no appeal 
 on the merits lay or was possible : Re Field Marshall 
 and Beamsville, 11 0. L. R. 472. Where Judge of 
 Surrogate Court adjudicated by consent a claim be- 
 yond jurisdiction, and right of appeal was reserved, 
 an appeal lay as from an award : Re Graham, 20 0. 
 W. R. 295, 25 0. L. R. 5. Period from which time for 
 appeal runs: Re Burnett v. Durham, 31 0. R. 262. 
 As to appeals against awards for claims for 
 lands injuriously affected by work of a municipal 
 corporation: see R. S. 0. 1914, ch. 192, sec. 345, Re 
 McLellan, 18 P. R. 246. As to matters on appeal 
 from award of arbitrators under Railway Act: see R. 
 S. 0. 1914, ch. 15, sec. 92 (15), (16), and notes. 
 
 17. — (3) Arbitrators proceedings on view of the pro- 
 perty: Meyerscough v. Lake Erie, etc., Ry. 4 0. 
 W. N. 1249, 24 0. W. R. 535. 
 
 19. Upon a proper construction of the Schedules, arbi- 
 trators are not entitled to charge as fees for a day's 
 
180 CHAPTER 65. 
 
 sitting, which extends beyond 6 hours, more than 
 the maximum amount fixed by the Schedules for a 
 single day's sitting: Ee Thornbury and Grey, 15 
 P. E. 192. Claim for excessive fees : see Jones v. 
 Godson, 25 0. E. 444, 23 A. E. 34; see note to sec. 26. 
 
 24. As to costs of arbitrations under the Eailway Act: see 
 notes to E. S. 0. 1914, ch. 185, sec. 90 (10). 
 
 26. An arbitrator is not brought within the punitive 
 provisions of sec. 26, when the payment of the alleged 
 excessive fees is made by cheque to an agent who has 
 power to receive money only, and the arbitrator re- 
 fuses to take the cheque. In order to fix the arbitrator 
 with the penalty, there must, after the expiration of 
 the time named, be either a demand upon him to 
 make, execute and deliver the award, and a refusal 
 to do so, unless excessive fees are paid or actual pay- 
 ment of such larger sum. The person desiring to take 
 up the award may either have the fees taxed and 
 tender the amount or pay the amount demanded and 
 sue for the penalty, which is a sum equal to treble 
 the excess demanded, and not equal to treble the 
 whole amount of fees demanded: Jones v. Godson, 
 25 0. B, 444, 23 A. E. 34. 
 
 29. " The right thus conferred (to have a special case 
 stated) must be respected by the arbitrator, and if 
 a party to an arbitration action, bona fide requests 
 an arbitrator either to state a special case raising 
 a question of law arising in the course of the refer- 
 ence and material for consideration, or to delay his 
 award until the party can apply to the Court for an 
 order directing a special case, and the arbitrator 
 refuses to comply with either of such requests, the 
 arbitrator is prima facie, at all events, guilty of a 
 breach of duty towards such party." Per Lindley, 
 M.E., In re Palmer and Hosken, 1898, 1 Q. B. 131; 
 see also Powell v. Lake Superior Power Co., 9 O. L. 
 E. 236. If the arbitrator when applied to refuses 
 to state a special case, and proceeds to execute his 
 award, the Court will not, while the award stands, 
 remit to the arbitrator to state his award in the 
 form of a case: Eedman, Arbitrations and Awards, 
 4th ed., 255. " The opinion of the Court " on a case 
 stated pursuant to this section is a " decision " and 
 
CHAPTER 65. IgJ 
 
 it is a "final " decision. The effect is to require 
 such a case to be heard before a Divisional Court. 
 A single Judge has no jurisdiction : Re G-eddes and 
 Cochrane* 2 0. L. E. 145; see also In re Knight and 
 Tabernacle, 1892, 2 Q. B. 613,1892, AC. 298, and see 
 H. & L. notes p. 861. The admissibility of evidence 
 is a question of law within the meaning of this sec- 
 tion. The exercise; of the power conferred by this 
 section rests in the discretion of the. Court: Re Rogers 
 and London Canadian, 12 0„ W. R. 1295, 18 O. L. R. 
 8. Admissibility of evidence: Saunby v. London 
 "Water Commissioners, 11 O. W. R. 1076. Where a 
 stated case is directed as to the principal question, 
 it might properly be made to include some minor 
 questions in dispute, although had these latter been 
 the only questions, a stated case would not have 
 been granted : Re Rathbun and Standard Chemical, 
 5 0. L. R. 286. A party to a reference is not entitled 
 ex debito justitiae to have a special case directed 
 whenever a question of law arises in the course of a 
 reference. The matter rests with the discretion of 
 the Court. There is no general rule that where 
 the arbitrators are specially qualified to decide the 
 question of law, this direction should not be given, at 
 all events where the arbitrators have ruled upon the 
 question: Re Rathbun and Standard Chemical Co., 5 
 0. L. R. 286. An application for an order directing 
 arbitrators to state a case as to the admissibility and 
 relevancy of evidence before them, must be made 
 before the execution of the award. It is too late for 
 them to state a case after the award is made : Re 
 G. T. R. and Petrie, 2 0. L. R. 284. The application 
 may be made before the arbitrator gives a ruling on 
 the question of law. ^The making of the order is a 
 matter of discretion, the order granting or refusing 
 the direction to the arbitrator being subject to ap- 
 peal: In re Jenison and Kakabeka Falls, 24 A. R. 
 361. See notes to sees. 10 (&), 12, ante. 
 
 30. In setting aside an award the Court has discretion to 
 deal with costs : Kennedy v. Beal, 29 0. R. 599. 
 
 33. This section does not apply to applications for order 
 for leave to enforce award under sec. 14, but only to 
 applications to set aside awards : Re Lloyd and Pegg, 
 5 0. L. R. 389. Stay of proceedings to enable appli- 
 cation to be made to set aside award: withholding 
 
182 CHAPTER 66. 
 
 order under sec. 14 : Re Baker and Kelly, 9 O. W. R. 
 136. Time: motion to set aside award: Re Caughell 
 and Brower, 24 A. R. 142 (but see now Judicature 
 Act). Time for application to set aside award: Re 
 Zuber and Hollinger, 20 0. W. R. 724, 25 O. L. R. 
 252. 
 
 36. Where valuers are appointed, the price they agree on 
 is not an " award:" Re Laidlaw and Campbellford, 
 etc., Ry., 5 0. W. N. 534. Under the provisions of a 
 lease the award of three arbitrators may be a valua- 
 tion and not an award. If so, no appeal lies: Re 
 Irwin v. Campbell, 4 O. W. N. 156, 5 O. W. N. 229, 
 24 0. W. R. 896, 25 0. W. R. 172; Re Irwin and 
 Hawken, 4 0. W. N. 1562, 24 O. W. R. 878. " Arbi- 
 tration " and " appraisement:" Cole v. London 
 Mutual, 10 0. W. R. 930, 15 0. L. R. 619. 
 
 Schedule A. 
 
 (b) Submission to three arbitrators, power of two 
 arbitrators to make award : U. K. Mutual Steam- 
 ship v. Houston, 1896, 1 Q. B, 567. 
 
 (/) Time for making award: extension: Garside v. 
 Webb, 10 0. W. R. 235, 11 O. W. R, 43. 
 "Called on to act." A notice to arbitrators 
 requiring them to appoint an umpire, is a notice 
 by which they are ' ' called on to act : " Re Baring 
 Gould and Sharpington, 1899, 2 Ch. 80. 
 
 (Jc) Claims outside the reference: jurisdiction: Falk- 
 ington v. Victorian Ry. Commissioners, 1900, 
 A. C. 452. 
 
 CHAPTER 66. 
 The Boabds of Trade General Arbitration Act. 
 
CHAPTERS 67, 68. 183 
 
 CHAPTER 67. 
 
 The Boundary Line Disputes Act. • 
 
 Refer to : Hunt on Boundaries and Fences. 
 
 3. Definition of boundary line: " Centre of the Conces- 
 sion:" Scriver v. Young, 14 0. W. R. 530, 15 0, W. 
 R. 27; line between farm lots (fence- viewers) : Dela- 
 matter v. Brown, 13 0. W. R. 58, 862 (and see R. S. 
 0. 1914, ch. 259, notes) ; line fence: Forrest v. Turn- 
 bull, I 0. W. N. 150, 14 0. W. R. 478; two differing 
 surveys followed : Nikoden v. Salicgycki, 11 W. L. R. 
 148; line between two halves of irregularly shaped 
 lot: Hooey v. Trip, 3 0. W. N. 738, 21 0. W. R. 738. 
 Proof of location of boundary: Lake Erie Excursion 
 Co. v. Berti, 3 0. W. N. 1191, 22 0. W. R. 42, 4 O. W. 
 N. I'll, 23 0. W. R. 94; line between north and south 
 halves of lot: Williams v. Salter, 23 0. W. R. 34. 
 Costs : see Thurston v. Brandon, 12 0. W. R. 1228. 
 
 See also, the Surveys Act, R. S. 0. 1914, ch. 106 ; the 
 Line Fences Act, ch. 259 and notes ; also cases noted 
 ch. 75, sec. 5 ," Boundaries and Boundary Lines." 
 
 CHAPTER 68. 
 
 The Lunacy Act. 
 
 Refer to: Wood Renton, Law and Practice of Lun- 
 acy; Archbold on 7 Lunacy; Pope on Lunacy; Hey- 
 wood and Massey, Lunacy Practice; Bicknell and 
 Kappele, Practical Statutes, p. 243, et seq. 
 
 2. Most of the interpretation clauses are taken from R. 
 S. 0. 1897, ch. 336; Imperial Act, 53 Vict. ch. 5 
 (The Lunacy Act). 
 
 2. — (e) Lunatic — In reference to definition given in Act: 
 see R. v. Shaw, L. R. 1 C. C. 145; Re B., 1892, 1 Ch. 
 459; Re Martin's Trusts, 34 Ch. D. 118; Re Dew- 
 hurst's Trusts, 33 Ch. D. 416; Re Barber, 39 Ch. D. 
 
184 CHAPTER 68. 
 
 187. As to the distinction between sanity and a dis- 
 posing mind for testamentary purposes : see Banks 
 v. Goodfellow, 6 Moo. P. C. 341; Dew v. Clark, 3 
 Add. 797 ; Bonghton v. Knight, L. R. 3 P. & D. 64. 
 
 2.— (/) Senile imbecility: see Be Kelly, 6 P. E. 220; In 
 re W., 21 Occ. N. 340; In re B., 21 Occ. N. 341. 
 Unsoundness of mind as bearing on the power to 
 contract : Molton v. Camroux, 4 Exch. 17. 
 
 3. "Where action brought in name of alleged lunatic by 
 
 next friend, inquiry as to mental condition : Fraser 
 v. Robertson, 1 0. W. N. 843, 800, 894. The Court 
 has no jurisdiction over lunatics not so found: Re 
 Montgomery, 4 O. W. N. 308, 23 O. W. R. 342 : but 
 see sec. 37, post. As to lands of persons of un- 
 sound mind not so found: see Re X., 2 Ch. 415. 
 The committal of a lunatic to a public asylum and 
 the management of his property while there, are 
 regulated by R. S. O. 1914, ch. 295. Private sani- 
 taria are regulated by R. S. 0. 1914, ch. 296. Powers 
 and duties of inspector: R. S. 0. 1914, ch. 301. The 
 Inspector of Prisons and Public Charities is a cor- 
 poration sole: R. S. O. 1914, ch. 301, sec. 6. 
 
 4. See 1913, Rules 207, 208; H. & L. notes, pp. 572, 573; 
 
 former Con. Rules, 42 (5), and 336. 
 
 6. An inquisition is usually directed to be held on the 
 application of a near relative — in fact the nearest 
 relative : Ex parte Persse, 1 Mol., at p. 220 ; but it 
 may be held on application of an executor, a trustee : 
 ( Shelf ord, p. 114); or a creditor: (In re Bell, 2 
 Cooper t. Cott, 163). Necessity for presence of 
 lunatic: see Ex parte Roberts, 3 Atk. 7; Shelford, 
 Lunacy, p. 151. There is jurisdiction to direct an 
 inquisition as to the lunacy of an alien domiciled 
 abroad who is temporarily resident in this country, 
 although all the property of the alleged lunatic, 
 except such personal chattels and cash as he may 
 have brought with him, is situate abroad: Re Bur- 
 bidge, 1902, 1 Ch. 426. Before granting an order 
 declaring a person a lunatic, he must be served with 
 notice of the application, and any counsel "or other 
 person he may desire to see must be allowed access 
 to him: Re Miller, 1 Ch. Ch. 215. As to evidence 
 required to dispense with such service as dangerous 
 
CHAPTER 68. 185 
 
 to the lunatic or useless: see Ee Newman, 2 Ch. 
 Ch. 390; Ee Patton, 1 Ch. Ch. 192; Ee Mein, 2 Ch. 
 Ch. 429. An application when renewed should be 
 before the same Judge: Ee Milne, 1 Ch. Ch. 194. 
 Medical testimony required: Ee Fleming, 13 C. L. 
 J. 167. Affidavit of physician who keeps a private 
 lunatic asylum not received ( Anon. 6 Ir. Eq. E. 389 ; 
 In re Anon., Drur. 286). Application must be sup- 
 ported by the affidavits of more than one medical 
 man: Ee Patton, 1 Ch. Ch. 192. Where an applica- 
 tion was made by a daughter and it appeared that 
 it was made with a view to attacking a disposition 
 which the alleged lunatic had made in favour of 
 another daughter with whom he lived, and that an 
 action had already been begun for the purpose, and 
 it also appeared that the alleged lunatic might 
 properly remain in the care of the daughter with 
 whom he then was, the application was dismissed, 
 although the alleged lunatic undoubtedly was one: 
 Ee Clark, 14 P: B. 370. The alleged lunatic's pro- 
 perty, and the fitness of the proposed committee 
 must be shown on affidavit: Ee Patton, 1 Ch. Ch. 
 192. Interest of alleged lunatic: see Ee Connell, 3 
 0. W. E. 95. Separate committees may be appointed 
 for distant estates : Ee Eobins, 2 Euss. & M., 449, or 
 for person and estate: Ee Talbot, 1882, 20 Ch. D. 
 269. Next of kin are preferred as a matter of con- 
 venience for committeeship of person, but not neces- 
 sarily as to estate: In re Lord Bangor, 2 Mol. 518; 
 In re Webb,. 2 Ph. Ch., at p. 553. A commission may 
 issue against an alien: In re Bariatinski, 1 Ph. Ch. 
 375; In re Houston, 1 Euss. 312; against a subject 
 beyond the jurisdiction but possessing property 
 within: In re Stevens, 2 Coop. t. Cott; 150. and 
 against an infant : Beall v. Smith, 1873, L. E. 9 Ch., 
 at p. 92. Eight of foreign committee to money on 
 deposit in bank in Ontario : Falls v. Bank of Mont- 
 real, 1 O. W. E. 538. Material required to make 
 order under this section and cases referred to also 
 inquiry into mental condition of alleged lunatic: 
 Ee Michael Fraser, 17 O. W. E. 383, 19 O. W. E. 
 545, 22 0. W. E. 354, 1 0. W. N. 1105, 2 0. W. N. 241, 
 2 0. W. N. 1321, 3 0. W. N. 1420, 24 0. L. E. 222, 26 
 0. L. E. 508. Former proceedings by inquisition, etc.: 
 see Ee Stuart, 4 Gr. 44; Ee Milne, 11 Gr. 153; 
 Ee McNulty* 13 Gr. 463; Ee Milne, 1 Ch. Ch. 
 
186 CHAPTER 68. 
 
 194; see also Bicknell and Kappele, Practical Sta- 
 tutes, pp. 243-5. 
 
 7. Issue to be tried: Fraser v. Bobertson, 1 0. W. N. 800; 
 Peel v. Peel, 3 0. W. N. 1127, 19 0. W. E. 511, 21 0. 
 W. E. 945. Proceedings on inquiry under Lunacy Act : 
 presumptions and criterions: Ee Fraser, 24 O. L. E. 
 222, 26 0. L. E. 508. 
 
 7.— (6) Appeal: see Con, Rule, 42 (5) ; 1913, Eule 209. 
 
 9. — (2) Presence of medical adviser at examination of 
 plaintiff. Examination of plaintiff by alienist on 
 behalf of defendants: Smith v. Stanley Mills Co., 
 4 O. W. N. 1269. 
 
 10. Application to supersede order declaring lunatic and 
 
 evidence required thereon : Ee Eobinson, 1 0. W. N. 
 893. Section discussed : proper material to be filed : 
 Ee Annett, 5 0. W. N. 331, 25 0. W. E. 311. 
 
 11. Actions by and against lunatics : see Con. Eules, 217- 
 
 220 ; H. & L. notes, pp. 406-412 ; 1913, Eules 94 et seq. 
 The Inspector of Prisons and Public Charities is 
 ex officio committee of lunatics detained in public 
 asylums and without other committee: see E. S. O. 
 1914, ch. 295, see. 40, et seq. 
 
 11. — (a) Before confirmation of Master's report ap- 
 pointing a committee of the person and estate of 
 a lunatic and propounding a scheme for mainten- 
 ance, the lunatic died: Held, the order should be 
 made, the executors consenting, confirming the 
 report, and for the discharge of the committee and 
 surrender of his bond : In re Garner, 1 0. L. E. 405. 
 
 11. — (d) What will be deemed sufficient security: Ee 
 Ward, 2 Ch, Ch. 188. 
 
 12. Scope of section discussed : Peel v. Peel, 3 0. W. N. 
 1127, 21 0. W. E. 945. Moneys belonging to a luna- 
 tic on deposit in a bank which had been attached 
 by a creditor were, on the application of the com- 
 mittee, ordered. to be paid into Court for the main- 
 tenance of the lunatic in preference to the creditor's 
 claim .- Re Vernon, 20 C. L. T., Occ. N. 309. Money 
 in Court to the credit of a lunatic, though not so 
 
CHAPTER 68. 
 
 187 
 
 found, directed to be paid out in annual sums for 
 maintenance: Re Hinds, 11 P. R. 5. Maintenance: see 
 Re Plenderleith (1893), 3 Ch. 332; Re Faulkner, 3 0. 
 W. R. 391. When the Court intervenes with respect 
 to property of persons not sui juris, the money is 
 not left to private investment, but paid into Court 
 and made subject to its general administration. When 
 part of the estate is converted and part kept for the 
 abode of the lunatic or otherwise, the scheme for 
 dealing with the whole is to be reported to the 
 Court that proper directions may be given; moneys 
 in the hands of the committee and to be collected 
 from debtors or by the sale of land, must be forth- 
 with paid into Court: In re Norris, 5 0. L. R. 99. 
 Case for appointment of guardian: McPherson v. 
 Ferguson, 4 0. W. N. J.564. 
 
 13. The common law right as to the priority of an ex- 
 
 ecution creditor of a lunatic who has an execution 
 in the Sheriff's hands before the lunatic has been 
 declared such, will not be interfered with: In re 
 Grant, 28 Gr. 457. The protection of the Court is 
 not extended to the property of a lunatic from the 
 time an application is f made for a receiver, but only 
 from the time some order is made : Re Clarke, 1898, 
 1 Ch. 336. The Court cannot prevent a judgment 
 creditor from issuing execution against a lunatic's 
 property if the creditor can reach it without inter- 
 fering with the possession of an officer of the Court : 
 Re Clarke, 1898, 1 Ch. 336. 
 
 14. The control of the Court ceases with the death of the 
 lunatic and an order for the distribution of the 
 lunatic's estate will not be made under proceedings 
 in lunacy. Re Brillinger, 3 Ch. Ch. 290. The deeds 
 of idiots and lunatics are voidable : Campbell v. 
 Hill, 22 U. C. C. P. 526, 23 U. C. C. P. 473; Re 
 Walker, 1905, 1 Ch. 160: see also 1 Pres. 327, 330. 
 On a sale of land by an infant under Con- Rules 960, 
 et seq., an order was made barring the dower of the 
 infant's mother who was a lunatic and confined in 
 an asylum: Re Colthart, 9 P. R. 356: see Armour, 
 R. P., p. 132 ; Armour, Titles, p. 204. 
 
 16. Power to sell and convey in the lunatic's name: see 
 Imp. Acts, 16, 17 Vict. ch. 70, sees. 116, 124-139; 53 
 Vict. ch. 5, sees. 120, 124; Re Corbett, L. R. 1 Ch. 
 
188 CHAPTER 68. 
 
 516; Re Wedd, 28 Ch. D. 514. Confirmation of sale 
 of lands : Ee Beard, 1 0. W. N, 807. Conversion and 
 ademption of lunatic 's .property : see Digest English 
 Case Law IX, pp. 684-6. Sale by committee: Re 
 Tugwell, 27 Ch. D. 309; Re Briscoe, 2 DeO.,J. & 
 S. 249. Application of purchase money : Dig. Eng. 
 Case Law, IX., p. 664: Payment into Court: Re 
 Barker, 17 Ck D. 241. Where a "lunatic is tenant 
 for life — power to sell under Settled Land Act, 
 1882, sec. 62 : see Re Ray, 25 Ch. D. 464, which ap- 
 plies only to lunatics so found: Re Boggs, 1894, 2 
 Ch. 416. Execution of lease by committee; Lawrie 
 v. Lees, 7 App. Cas. 19. Power of Judge to order 
 committee of lunatic to exercise election to take 
 under or against will : Re Earl Sefton, 1898* 2 Ch. 
 378. 
 
 # 
 
 19- Where lands are sold for the purpose of effecting a 
 partition, the share retains its character of realty: 
 Thompson v. McCaffrey, 6 P. R. 193 : see also Camp- 
 bell v. Campbell, 19 Gr. 254; Fitzpatrick v. Fitz- 
 patrick, 6 P. R. 134. 
 
 25. Dealing with stock standing in lunatic's name: Re 
 Knight, 1898, 1 Ch. 257. 
 
 26. Vesting order of lands of lunatic mortgagee or trus- 
 tee : see Re Montagu, 1896, 1 Ch. 549. 
 
 35. Petitioners' costs: Re Michael Fraser, 18 0. W. R. 
 96, 2 0. W. N. 597. Disposition of costs of applica- 
 tion in lunacy matter : Re Peel, 2 0. W. N. 1275, 19 
 0. W. R. 511. Costs to be referred to taxing officer 
 at Toronto: In re Norris, 5 0. L. R. 99. Costs: 
 alleged lunatic found of sound mind: Re Cathcart, 
 1892, 1 Ch. 549. Costs of lunacy proceedings gen- 
 erally: see Dig. Eng. Case Law, IX., pp. 628-636. 
 
 37. Proper case to resort to powers of this provision: 
 McPherson v. Ferguson, 4 0. W. N. 1564, 24 0. W. 
 R. 871. 
 
CHAPTER 69. Igg 
 
 CHAPTEK 69. 
 
 The Replevin Act. 
 
 Refer to: Holmested and Langton's Judicature Act 
 and Rules, 3rd edition, pp. 1283-1292, Bicknell and 
 Kappele, Practical Statutes, pp. 249, 250. 
 
 3. When an order of replevin may be obtained : see Con. 
 
 Rules 1067-1079; H. & L. notes, pp. 1284-5; 1913 
 Rules, 359 et seq.: see Digest Ont. Case Law, Vol. 
 III., p. 6126. The Court can take steps for the in- 
 terim preservation of property and for the sale of 
 perishable property: (1913 Rules 369-371). Horses 
 are not within this provision on the ground that 
 their keep is expensive and a trial not to be had 
 quickly: Innes v. Hutcheon, 5 0. W. R. 357, 9 0. L. 
 R. 392. 
 
 4. See provisions of R. S. 0. 1914, ch. 215, sec. 134. 
 
 5. See Holmested and Langton, p. 1291. 
 
 8. As to place of trial: see Howard v. Herrington, 20 
 
 A. R. 175. Jurisdiction: see R. S. O. 1914, ch. 59, 
 
 sec. 22 (1) (e). 
 
 9. See R. S. 0. 1914, ch. 62, sec. 62 (4). 
 
190 CHAPTER TO. 
 
 CHAPTER 70. 
 
 The Doweb Act. 
 
 Note : In addition to Armour on Titles and on Real 
 Property, see Cameron on Dower, and Bicknell and 
 Kappele, Practical Statutes, p. 256 and p. 796. 
 
 2. This section was formerly 25 Edw. I., ch. 7 (Magna 
 
 Charta), subsequently R. S. 0. 1897, ch. 330, sec. 6, 
 and R. S. 0. 1897, ch. 322, sec. 1. 
 There is no right to dower : — 
 
 (1) In wild lands (sec. 6). 
 
 (2) In mining lands since December 31st, 1897, 
 
 (sec. 7). 
 
 (3) In lands dedicated for streets (sec. 8). 
 
 (4) Where wife elopes (sec. 9). 
 
 (5) Where wife bars her dower; or 
 
 (6) (Since April 16th, 1895), has signed deed, 
 
 (sec. 20). 
 
 (7) In case of jointure executed before marriage 
 
 or jointure after marriage if she do not dis- 
 affirm (R. S. O. 1897, ch. 331, sees. 5 & 7). 
 (Statute of Uses, 27 Hen. VIII, ch. 10, sees. 
 4 & 7. R. S. O. 1914, Vol. 3, p. VIII). 
 
 (8) Election against dower under R. S. O. 1914, ch. 
 119, sec. 9 : see Re Pettit Estate, 4 0. L. R. 506. 
 
 (9) Bar by lapse of time: R. S. O. 1914, ch. 75, sec. 
 26: but see Williams v. Thomas, 1909, 1 Ch. 
 
 713. 
 (10). No dower in husband's partnership property. 
 Dower may be barred: — 
 
 (1) By infant married woman: see R. S. 0. 1897, ch. 
 165, sec. 5; R. S. 0. 1914, ch. 150, sec. 6. 
 
 (2) Of lunatic: sees. 14 and 15. 
 
 (3) Where wife living apart from her husband for 
 
 2 years (sec. 14). 
 
 (4) Wife living apart for 5 years (sec. 17). 
 
 (5) Effect in case of mortgages: see sees. 10-12 and 
 
 notes. 
 
 3. This section was formerly 20 Henry III., ch. 1 (St. 
 
 of Merton), subsequently R. S. 0. 1897, ch. 330, sec. 7. 
 Husband dying seized or not : see, as to recovery of 
 
CHAPTER 70. 191 
 
 damages: Morgan v. Morgan, 15 0. R. 194; Hum- 
 phries v. Barnett, 16 U. C. R. 463; Lozee v. Arm- 
 strong, 11 G-r. 517, and cases collected, I Dig. Ont. 
 Case Law, col, 2088. 
 
 4. Originally 4 Wm. IV., ch. 1, sec. 13." Although, since 
 
 the passing of 42 Vict. ch. 22 (now sec. 10), a mar- 
 ried woman is entitled to dower out of an equity 
 of redemption in land whether her husband dies 
 seized of it or not, where such equity has arisen by 
 his having executed a mortgage of the legal estate 
 in which she has joined to bar her doWer; she is 
 not entitled to dower out of an equity of redemption 
 purchased and sold by him in his lifetime, the legal 
 estate never having vested in him: Re Luckhardt, 
 29 0. R. Ill, see the Registry Act, R. S. 0. 1914, 
 ch. 124, sec. 67. It is only when the husband dies 
 beneficially entitled that the wife acquires any right 
 to dower in an equitable estate, and the husband 
 can deal as he pleases with such an estate, and a 
 voluntary conveyance of it made with the object of 
 preventing the wife acquiring any right to dower 
 is unimpeachable by her: Fitzgerald v. Fitzgerald, 
 5 0. L. R. 279. There is no analogy between the 
 common law right to dower in land in which the 
 legal estate is in the husband, which arises out of 
 the marriage relation and of which the wife cannot 
 be deprived by the voluntary act of her husband in 
 alienating the land during their joint lifetime, and 
 the inchoate right to dower out of equitable estate 
 where the wife has a mere chance of becoming dow- 
 able, depending under the statute upon whether the 
 husband does or does not die beneficially entitled : 
 Fitzgerald v. Fitzgerald, 5 0. L. R. 279. A lis pen- 
 dens registered in respect of dower in husband's 
 equitable estates, will be vacated as vexatious where 
 husband still living: King v. King, 13 0. W. R. 760. 
 As to women having jointures : see Statute of Uses, 
 R. S. 0. 1897, ch. 331, sees. 5, 6. 7. Jointures: see 
 3 Pres. 367; Wms. R. P. 317: see Duke of Man- 
 chester's Settlement, 1910, 1 Ch. 106. 
 
 5. See Armour, R. P., pp. 119, 131 ; Armour, Titles, p. 197. 
 
 6. Armour, Titles, p. 197. 
 
 8. See Armour, Real Property, p. 122. This section was 
 formerly sec. 602 of the Consolidated Municipal Act, 
 3 Edw. VII, ch. 19. 
 
192 CHAPTER 70. 
 
 9. This section was formerly 13 Edw. I. (St. of West- 
 
 minster), ch. 34. Subsequently E. S. O. 1897, ch. 
 330, see. 9 : see notes to sec. 14, infra. Application 
 of this section when wife in possession as dowress : 
 Bowman v. Thurman, 14 0. W. B. 254. " Continue 
 with her adulterer ": as to meaning and effect of 
 ' ' continue ' ' in this statute see Ee S., 14 0. L. E. 
 536, 9 0. W. E. 819, also Woodward v. Douse, 10 
 C. B. N. S. 722; Bostock v. Smith, 34 Beav. 57; 
 Graham v. Law, 6 C. P. 310. Though a woman leave 
 her husband by reason of his cruelty, living in adul- 
 tery will cause forfeiture of her dower : Bowman 
 v. Thurman, 14 0. W. E. 254. The right to dower is 
 lost by divorce: Frampton v. Stephens, 21 Ch. D. 
 164. 
 
 10. 42 Vict. 22 (now sec. 10), became law on 11th March, 
 1879, and has no retrospective effect on mortgages 
 existing at that date: Martindale v. Clarkson, 6 A. 
 E. 1. Under the law at that time, the wife having 
 joined to bar her dower could become entitled to 
 dower out of the equity of redemption only in the 
 event of her husband dying beneficially entitled. As 
 long as such mortgage existed, her husband could 
 effectively defeat her dower in the equity by sub- 
 sequent conveyance or second mortgage, even where 
 the second mortgage money is used to pay off the 
 first mortgage and the first mortgage is subsequently 
 discharged, the discharge vesting, by E. S. O. 1897, 
 ch. 136, sec. 76, the legal estate in the second mortga- 
 gees: Anderson v. Elgie, 6 0. L. E. 147: see also 
 Gardner v. Brown, 19 0. E. 202. Dower notwith- 
 standing arrangement with heir: see Mcintosh v. 
 Wood, 15 Gr. 92. Effect of section where husband 
 buys and sells equity of redemption: see Ee Luck- 
 hardt, 29 0. E. Ill, etc., notes to sec. 4. Where a 
 judgment debtor, owning lands subject to mortgage 
 in which his wife had joined, sold them and allowed 
 her to receive part of the purchase money as her 
 dower: Calvert v. Black, 8 P. B. 255. Where lands 
 mortgaged to secure a loan have been sold by 
 the mortgagee, the wife of the mortgagor who has 
 joined in the mortgage to bar her dower is entitled 
 to dower out of the surplus computed on what 
 would be the full value of the land if unincumbered : 
 Gemmell v. Nelligan, 26 0. E. 307 : see also Ee Cros- 
 kerry, 16 0. E. 207; Ee Eobertson, Eobertson v. 
 
CHAPTER 70. 193 
 
 Robertson, 25 (Jr. 276, 486 ; Re Hague, Traders Bank 
 v. Murray, 14 0. R. 660 ; Gardner v. Brown, 19 0. R. 
 202; Martindale v. Clarkson, 6 A. R. 1 (at p. 6). 
 A testator devised a farm to his son subject 
 to the payment by him of certain legacies. The 
 .son mortgaged the farm, his wife joining to bar 
 dower and paid the legacies out of the pro- 
 ceeds. The son died seized of the farm with 
 the mortgage still in force. It was held that the 
 son took under the will the legal seizin, and not a 
 mere equitable estate, nor was the case similar to 
 a mortgage back for unpaid purchase money. His 
 widow was entitled to dower out of the full value 
 of the lands: In re Zimmerman, 7 0. L. R. 489. 
 Right to dower not defeated when mortgage paid 
 off, or when husband alone conveys equity to trustee 
 for creditors: McNally v. Anderson, 4 0. W. N. 901, 
 24 0. W. R. 182. Where a mortgagor, whose wife 
 had joined in the mortgage, assigns his equity of 
 redemption to an assignee for benefit of creditors, 
 his wife retains position as dowress and is entitled 
 to redeem; but not after a binding contract of sale 
 has been made by the mortgagee: Standard Realty 
 v. Nicholson, 24 O. L. R. 46: and see Pratt v. Bun- 
 nell, 21 0. R. 1. Where, however, the mortgage is 
 given to secure a part of the purchase money, the 
 wife of the mortgagor would seem to be entitled 
 only to dower computed in respect of the surplus: 
 Pratt v. Bunnell, 21 0. R. 1: see criticism of this de- 
 cision: Gemmell v. Nelligan, 26 0. R. 307. Basis 
 upon which dower should be allowed where mort- 
 gage given for unpaid purchase money is the sur- 
 plus value of the property over and above the mort- 
 gage, not the total value of the property. History 
 of section and review of cases : Re Auger, 20 0. W. 
 R. 656, 3 0. W. N. 377, 22 0. W. R. 118, 3 0. W. N. 
 1264, 26 O. L. R. 402. Security for bar of dower: 
 validity of chattel mortgage executed by a husband 
 to his wife to secure her against loss by reason of 
 having barred her dower in certain mortgages : Mor- 
 ris v. Martin, 19 0. R. 564. The amendment to the Act 
 of 1879, now incorporated in the section, was passed 
 16th April, 1895, and was formerly R. S. 0. 1897, 
 ch. 164, sec. 8. 
 
 Dower in an equity of redemption: see article by 
 Shirley Denison, K.C., 49 C. L. J. 201, where cases 
 
 S.A.— 13 
 
194 CHAPTER 70. 
 
 Standard Eealty Co. v. Nicholson, 24 0. L. E. 46, 
 and Ee Auger, 26 0. L. E. 402, are considered and 
 the following conclusions stated: (1) Where the 
 husband purchases an equity of redemption the wife 
 has dower only when he dies beneficially entitled; 
 (2) Dower is only assigned to her out of one third 
 of the value of that equity of redemption. The 
 mortgage must be deducted before computing the 
 widow's interest; (3) Before March 11th, 1879, 
 where a wife joins with her husband to bar her 
 dower in a mortgage, she may be deprived of her 
 dower if the equity of redemption is conveyed either 
 by her husband during his lifetime or by the mort- 
 gagee under power of sale ; (4) Where since March 
 11th, 1879, a wife joins with her husband in a mort- 
 gage and bars her dower in lands of which he was 
 previously seized of a legal estate in fee, her in- 
 choate right to dower subsists and is not lost by 
 the husband's conveyance of the equity of redemp- 
 tion in his lifetime; (5) Prior to March 11th, 1879, 
 where a widow has barred her dower by a mortgage 
 but becomes entitled to dower out of the equity of 
 redemption, the amount assignable is 1-3 of the 
 total value of the lands except where the mortgage 
 is to secure unpaid purchase money when she had 
 dower in 1-3 only of the surplus, and it makes no 
 difference whether the surplus is realized from a 
 sale under power of sale or legal process or where 
 it is voluntary; (6) Since March 11th, 1879 (as 
 before) a widow is entitled to dower based on the 
 total value of the land except where the mortgage 
 is for unpaid purchase money, when her dower is 
 based upon the value of the surplus after deducting 
 the mortgage, whether that surplus is realized from 
 power of sale, legal process or by payment of the 
 mortgage by voluntary sale or otherwise. 
 
 See also Armour, Eeal Property, pp. 122-125, Ar- 
 mour on Titles, pp. 200-203. Whether the wife of a 
 mortgagor who has joined in the mortgage to bar 
 her dower should be a party to an action for fore- 
 closure or sale: see H. & L. notes, p. 334, where it is 
 concluded that the safer practice is to add her as a 
 party. As to right of dower under the Land Titles Act 
 when land acquired subject to a charge or where 
 owner after charging land, marries: see E. S. 0. 
 1914, ch. 126, sec. 47. 
 
CHAPTER 70. 195 
 
 11. As to practice in regard to the surplus after payment 
 of the amount found due to the plaintiff, etc.: see 
 Con. Eule 755; H. & L. notes, p. 987; also H. & L. 
 notes, p. 334; 1913, Eule 479. 
 
 14. A husband whose wife has been living apart from 
 him for two years and who for valuable considera- 
 tion released him from all claims for alimony is not 
 entitled to an order under this section. A bar by 
 contract is not a bar " by law " such as is within 
 the section: Ee Tolhurst, 12 0. L. E. 45. An order 
 was made under this section where the wife had not 
 been heard of for several years, having left her 
 husband again and again for the purpose of living 
 as a prostitute. It is unnecessary to show continu- 
 ous living with one man in adultery in order to 
 deprive a wife of an aWard of dower: Ee S., 14 0. 
 L. E. 536, 9 0. W. E. 819 ; and see Ee Soper, 3 0. W. 
 N. 1573, 22 0. W. E. 851; see Graham v. Law, 6 C. 
 P. 310; Woolsey v. Finch, 20 C. P. 132; Neff v. 
 Thompson, 20 C. P. 211; Stat, West. 2 (13 Edw. I., 
 ch. 34), now sec. 9, ante. The. order under this sec- 
 tion is made by a Judge as persona designata, and 
 is not subject to appeal (unless by special leave 
 under the Judges' Orders Enforcement Act, E. 
 S. O. 1914, ch. 79, sec. 4): Be King, 18 P. E. 
 365; Ee Eush, 28 0. L. J. 127. The wrong done by 
 an improvident order would' in many cases be ir- 
 remediable and great care should be taken in the 
 exercise of the large and exceptional power given by 
 the section to ascertain that the case made by the 
 applicant comes clearly within its provisions: Ee 
 King, 18 P. E. 365, at pp. 366-7. An order under 
 this section should not be made ex parte unless under 
 very exceptional, if under any, circumstances. Leave 
 may be given to serve notice by advertisement if 
 search is unsuccessful: Ee King, 18 P. E. 365; Ee 
 Campbell, 25 Gr. 1887 ;EeMeGuin, 7P.E. 310. More 
 need not jbe shown than that the wife had been living 
 'apart from her husband for two years and that the 
 circumstances under which she has been living 
 apart are such that she is not entitled to claim 
 alimony: Ee King, 18 P. E. 365. It must clearly 
 appear that she is not entitled to alimony : Ee Eagles, 
 7 P. E. 241. Judgment dismissing an alimony action 
 in which defendant had set up adultery as a defence 
 
196 CHAPTER 70. 
 
 as evidence of adultery on application under this 
 section: see Ee Campbell, 25 Gr. 480. Forfeiture 
 of dower on account of adultery: see Hetherington 
 v. Graham, 3 M. & P. 399, 6 Bing. 139. A woman 
 forfeits her dower by adultery even though she 
 originally departed from her husband's house in 
 consequence of his cruelty: Woodward v. Douse, 10 
 C. B. N. S. 722, or although her departure may have 
 been brought about by the misconduct of the hus- 
 band: Bostock v. Smith, 34 Beav. 57. Where a wife 
 obtains a divorce on the ground of her husband's 
 misconduct she loses her right to dower: Frampton 
 v. Stephens, 21 Oh. D. 164: see H. & L. notes, pp. 217, 
 131, 255, 572. Armour, Titles, p. 204; Armour, E. 
 P., p. 132. 
 
 18. — (2) Eegistrar's fees for registering Judge's order 
 endorsed on conveyance: see note to Eegistry Act, 
 E. S. 0. 1914, ch. 123, sec. 92 (b). 
 
 20. See Bellamy v. Badgerow, 24 O. E. 278, in conse- 
 quence of which decision doubtless this enactment was 
 made. For right of married women to convey or re- 
 lease dower : see E. S. 0. 1914, ch. 150. Bar of dower 
 under the Eailway Act, see E. S. 0. 1914, ch. 185, 
 sec. 302. 
 
 21. There is no power to compel a dowress to accept a 
 lump sum in lieu of dower against her will: Mc- 
 Nally v. Anderson, 4 0. W. N. 386, 23 0. W. E. 547: 
 see Con. Eules 177 to 179 inclusive; Holmested & 
 La*gton, notes, pp. 320, 321; 1913, Eules 51, 52. 
 
 23. A widow cannot recover damages for detention of 
 dower when her husband did not die seized, even 
 though she made demand for dower: Morgan v. 
 Morgan, 15 0. E. 194; Losee v. Armstrong, 11 Gr. 
 517. The statute has not taken away or diminished 
 the right of a dowress to damages as well as mesne 
 profits as for detention against all persons and in 
 all cases where they were recoverable before August 
 10th, 1850 : Eyan v. Fish, 4 0. E. 335. The mere fact 
 that at the death of or alienation by the husband his 
 lands were of no rentable value, is not alone sufficient 
 to disentitle the widow to damages if the land has sub- 
 sequently been made rentable by reason of improve- 
 ments or otherwise, either by the heir or vendee, as 
 in such a case a portion of the rent is attributable to 
 
CHAPTER 71. 197 
 
 the land: Wallace v. Moore, 18 Gr. 560. Plea of 
 tenant of readiness to render the plaintiff her dower : 
 Eyan v. Fish, 4 0. E. 335. 
 
 29. Eeports of commissioners to admeasure dower prob- 
 ably within Con. Eule 769 : see Holmested and Lang- 
 ton, p. 1005; 1913, Eule 502; see also Con. Eule 667, 
 and Holmested and Langton, note, p. 892 ; 1913, Eule 
 410. As to improvements allowed for, where dower 
 was claimed in land upon a portion of which stood 
 two-thirds of a dwelling house, the remaining third 
 being in adjoining land which was not dowable, this 
 was held not a case within sub-section 2 of this 
 section. The commissioners were not bound, neces- 
 sarityj to assign a portion of the building on the pro- 
 perty, but might give an equivalent. They were 
 bound, however, to assign one-third of the whole 
 property, having regard to value as well as quantity : 
 Mclntyre v. Crocker, 23 O. E. 369. 
 
 CHAPTEE 71. 
 
 The Libel and Slajtdeb Act. 
 
 Note: Eefer to Addison on Torts; Underhill on Torts 
 (Can. edn.); Bullen and Leake's "Pleadings," 
 Odgers on Libel and Slander, Elliott on the News- 
 paper Libel Act, also Praser on the same Act, and 
 Fisher and Strahan's Digest of the Law affecting 
 Newspapers; Kelly, Newspaper Libel; also King 
 (Can.) on Libel and Slander; Bicknell and Kap- 
 pele's Practical Statutes, pp. 115-117. 
 
 2. A printed paper issued daily by the conductors of a 
 mercantile agency to persons who are subscribers 
 to the agency, for the purpose of giving information 
 to such subscribers, is a "newspaper," and 
 " printed for sale " : Slattery v. Dun, 18 P. E. 168. 
 
 4. Pleading apology: nature of plea under this section: 
 
 Harrison v. Madill, 1 O. W. N. 583, 15 O. W. E. 593. 
 
 5. The respective functions of Judge and jury are in 
 
 actions of libel in no way different from such func- 
 tions in other actions except for the statutory pro- 
 vision in this section in favour of the defendant. It 
 
198 CHAPTER 71. 
 
 is the duty of the Court to consider whether there 
 is any reasonable evidence to go to the jury, and if 
 not to dismiss the action: Macdonald v. Mail Print- 
 ing Co., 32 O. R. 163. In a libel action where the 
 jury has found not to be libellous that which is 
 plainly a libel, the plaintiff is entitled to a new trial. 
 Sydney Post v. Kendall, 43 S. C. E. 461; Lumsden v. 
 Spectator, 29 0. L. R. 293. Publication: Wennhak 
 v. Morgan, 20 Q. B. D. 635; Pullman v. Hill (1891), 
 1 Q. B. 524. What is defamatory: I 'Anson v. Stuart, 
 1 Term. Rep. 748; Digby v. Thomson, 4 B. & Ad. 821; 
 Fray v. Fray, 34 L. J, C. P 45. Privilege: Ferguson 
 v. Kinnoull, 9 Cl. and F., 321; Jenoure v. Delmege 
 (1891), A. C. 73; Royal Aquarium v. Parkinson 
 (1892), 1 Q. B. 431. Comment actuated by malice is 
 not fair comment: Thomas v. Bradbury (1906), 2 K. 
 B. 627. See article " The Intent in Libel,*' 42 Can. 
 Law Journal, p. 209, John King. Repetition of libel: 
 Lack of investigation as affecting malice and privi- 
 lege: see Annotation, 9 D. L. R. 73. Repetition of 
 slanderous statements to persons sent by plaintiff 
 to procure evidence thereof: see Annotation, 4 D. 
 L. R. 572. 
 
 6. What amounts to identity of libels to justify consolida- 
 
 tion : Perkins v. Fry, 10 O. W. R. 874, 954. A mem- 
 ber of a class can sue on behalf of the class if 
 defamed : Cooper v. Jack Canuck Pub. Co., 5 O. W. 
 N. 66, 25 O. W. R. 47. See Imperial Act, 51-2 Vic. 
 ch. 64; Con. Rule 435; Holmested and Langton, note, 
 p. 640; 1913 Rule, 320. 
 
 7. Pleading: Duval v. O'Beirne, 20 O. W. R. 884, 3 O. W. 
 
 N. 513. 
 
 8. In an action brought against a newspaper company for 
 
 alleged libellous articles, the notice was addressed 
 to the editor and served on the city editor at the 
 company's office, and a similar notice was served on 
 the chairman of the Board of Directors: Held, this 
 was merely notice to the editor and not to the de- 
 fendants, and was insufficient: Burwell v. London 
 Free Press, 27 0. R. 6. There was omission to give 
 notice in an action for ' ' wrongfully and maliciously 
 publishing " articles calculated to injure the plain- 
 tiffs' business. The plaintiffs set up that the action 
 
CHAPTER 71. 199 
 
 was not libel and that want of notice was not 
 ground for summary dismissal. The matter was 
 left to be disposed of by the trial Judge with leave to 
 amend if desired : Gurney v. Emmett, 7 0. L. E. 604. 
 One is not a candidate for a public office within this 
 section before the date of the writ for the election : 
 Conmee v. Weidman, 16 P. E. 239. Alleged libels 
 against a candidate for a public office and as to 
 pleading and security for costs : Conmee v. "Weidman, 
 16 P. E, 239. The statement of claim must be con- 
 fined to the statements complained of and specified 
 in the notice given by the plaintiff before action. 
 "Where the notice specified parts of an article, and 
 the statement of claim set out the whole of it, the 
 parts not specified in the notice were struck out: 
 Obernier v. Eobertson, 14 P. E. 553. The defendant 
 must make it clear what course he intends to take. 
 He cannot plead at the same time justification, fair 
 comment, retractation and apology: Currie v. Star 
 Publishing Co., 11 0. W. E. 168. Particulars of 
 " places where and persons to whom publication was 
 made " in action against publisher of newspaper: 
 Dingle v. Eobertson, 12 0. W. E. 655. Eequirements 
 of notice : Benner v. Mail Printing Co., 3 O. "W. N. 
 56, 24 0. L. E. 507. Criminal charge : Kelley v. Eoss, 
 14 0. W. E. 617, 698, 1 0. W. N. 48, 116. 
 
 9. After money had been paid into Court and before trial 
 
 the defendant died. On application of the legal repre- 
 sentatives it was held that the Court had jurisdiction 
 to declare to whom- the money should be paid, and 
 under the circumstances ordered it paid to the plain- 
 tiff: Brown v. Feeney, 1906, 1 K. B. 563. Failure 
 of defence under Libel Act : claim to treat money 
 paid in as general payment into Court: Oxley v. 
 Wilkes, 1898, 2 Q. B. 56. 
 
 10. Publication of parliamentary report : Mangena v. 
 Wright, 1909, 2 K. B. 958. 
 
 12. — (1) The publishers of a mercantile agency daily 
 bulletin supplied to subscribers to the agency are 
 entitled to the benefit of the provisions of this sec- 
 tion as to security. for costs: Slattery V. Dun, 18 P. 
 E. 168. On an application for security for costs 
 under this section the plaintiff was not allowed to 
 
200 CHAPTER 71. 
 
 read or use an affidavit made by himself contradict- 
 ing the affidavit of the defendants' agent: Bartram 
 v. London Free Press, 18 P. E. 11. Publication in 
 good faith : security for costs : Georgian Bay v. The 
 World, 16 P. B. 320. An action cannot be con- 
 sidered " trivial or vexatious " merely because a 
 good defence on the merits is shown by the defend- 
 ants' affidavits, and is not contravened by the plain- 
 tiff. The latter may properly consider that on an 
 application for security for costs denial on oath of 
 the charges against him is unnecessary: Macdonald 
 v. The World, 16 P. B. 324. The defence suggested 
 by affidavits filed in motion for security for costs 
 was that the defamatory words did not apply to the 
 plaintiff. The Judge held that on a fair reading 
 they did refer to the plaintiff, and that it did not 
 appear that the defendants had a good defence on 
 the merits, and that the statements were published 
 in good faith, and therefore the order for security 
 for costs was set aside: Lennox v. " Star," 16 P. B. 
 488. On an application for security for costs, it is 
 not for the Judge to pass on disputed facts disclosed 
 in conflicting affidavits; if it appears that the de- 
 fendants have prima facie defence of justification or 
 privilege and that the plaintiff is not possessed of 
 property sufficient to answer costs, the statute is 
 satisfied: Swain v. The Mail, 16 P. B. 132. The de- 
 fendants did not contend that the action was trivial 
 or frivolous, but swore that what they published was 
 substantially true and was published in good faith 
 and without malice, the plaintiff conceding that he 
 had not sufficient property to answer costs. Secu- 
 rity for costs was ordered. The intention of the Act 
 is to protect newspapers reasonably well conducted 
 with a view to the information of the public : Bennett 
 v. The Empire Printing Co., 16 P. B. 63. What is 
 within this enactment: In an action for slander a 
 newspaper editor has no special privileges or immu- 
 nities : Greenhow v. Wesley, 16 0. W. B. 585. Eight 
 of sub-editor to security : Bobinson v. Mills, 13 0. W. 
 B. 606, 763, 853, 19 O. L. E. 162. An action is not 
 frivolous or trivial if the alleged libel may involve 
 the charge of conviction for a crime : Kelly v. Boss, 
 14 0. W. E. 617, 698, 1 0. W. N. 48, 116. Defendant's 
 absence of good faith : St. Clair v. Stair, 4 0. W. N. 
 731, 23 0. W. E. 930. What must be shown to obtain 
 
CHAPTER 71. 201 
 
 security for costs : McVeity v. Ottawa Free Press : 
 18 0. W. E. 146, 2 0. W. N. 703. Affidavit in support 
 of motion for security for costs: St. Clair v. Stair, 
 4 0. W. N. 645, 731, 23 0. W. R. 930. Section must 
 be strictly complied with: McVeity v. Ottawa Free 
 Press, 18 0. W. E. 146, 2 0. W. N. 703. 
 
 12. — (2) Where the plaintiff was accused in the defend- 
 ants ' newspaper with attempted " blackmail," it was 
 held that that might involve the indictable offence 
 denned by section 454 of the Criminal Code, and the 
 question whether it did was for the jury : Macdonald 
 v. The World, 16 P. E. 324. Where insolvency of 
 plaintiff is admitted but publication complained of 
 may involve a criminal charge, see : Pringle v. Finan- 
 cial Post, 12 0. W. E. 912. A statement that the 
 plaintiff was " an unmitigated scoundrel," and that 
 he had endeavoured to ruin his wife by inciting 
 another person to commit adultery with her, did not 
 involve a criminal charge : Bennett v. Empire Print- 
 ing Co., 16 P. E. 63. " Involves a criminal charge " 
 means "involves a charge that the plaintiff has 
 been guilty of a criminal offence:" Georgian Bay 
 v. The World, 16 P. R. 320. A criminal charge is 
 not " involved " in an allegation that an incorpor- 
 ated company had tried to bribe aldermen by issuing 
 to them paid-up stock in the company, for a corpora- 
 tion cannot be charged criminally with a crime in- 
 volving malice or the intention of the offender: 
 Georgian Bay v. The World, 16 P. E. 320. Libel alleg- 
 ing criminal charge : pleading : Greenhow v. Wesley, 
 1 0. W- N. 996. Where the words used are alleged 
 ; by the plaintiff to have been used in a sense involv- 
 ing a criminal charge, and may have that meaning, 
 the case is within sub-sec. 2. That clause is appli- 
 cable to case where an innuendo is necessary to give 
 the words a defamatory sense. There cannot be a 
 trial on the merits on anvapplication for security for 
 costs to determine whether the words used involve 
 a criminal charge: Smyth v. Stephenson, 17 P. E. 
 374. "Blackmailing" as a criminal charge: see 
 Macdonald v. The Mail, 32 0. E. 163, 2 0. L. R. 278. 
 Criminal charge: innuendo: Duval V. O'Beirne, 20 
 0. W. E. 884, 3 0. W. N. 513 ; Kelly v. Eoss, 14 0. W. 
 E. 617, 698, 1 0. W. N. 48. See same case as to plead- 
 ing plaintiff's character: 14 0. W. E. 1078. Barra- 
 try: Mackenzie v. Goodfellow, 13 0. W. E. 30. Alle- 
 gation that bench warrant applied for: Titchmarsh 
 
202 CHAPTER 71. 
 
 v. The World, 15 0. W. E. 362. Where the action 
 was for words imputing a crime and it was shown 
 that the article complained of stated that no one 
 would believe that it referred to the plaintiff, and in 
 a further article published after the commencement 
 of the action, it was stated that the plaintiff was not 
 the person complained of in the article in question, 
 the action was held frivolous and the defendants 
 entitled to security for costs : Graeme v. The Globe, 
 14 P. R. 72. Security for costs : see Con. Rule 1198 ; 
 see Holmested and Langton's notes, pp. 1430, 1431, 
 1437; 1913 Rules 373, 374. 
 
 12. — (4) Where the Master in Chambers has jurisdiction 
 to entertain an application for security for costs, 
 there is no greater right of appeal than if the appli- 
 cation were to a Local Judge: Kelly v. Ross, 14 0. W. 
 R. 617, 698, 823, 1 0. W. N. 48, 116. Appeal: Robin- 
 son v. Mills, 19 0. L. R. 162. 
 
 13. Motion to change venue laid under this section: 
 Baker v. Weldon, 2 0. W. R. 433 ; McAlpine v. Record 
 Printing Co., 12 O. W. R. 1 (see also S. C, 10 0. W. 
 R. 981). Place of trial: Curry v. Star Publishing 
 Co., 10 0. W. R. 960; see Con. Rule, 529; H, & L. 
 notes, p. 735; 1913 Rule 245. 
 
 14. As to defendant being allowed to amend by pleading 
 
 defence under this section : see Morency v. Wilgress, 
 9 0. W. R. 302. 
 
 17. Allowing defendant to amend by pleading defence 
 under this section : see Morency v. Wilgress, 9 O. W. 
 R. 302. Third party procedure : see Con. Rule 209 ; 
 Holmested and Langton note, p. 393; 1913 Rule 165. 
 
 19. In an action for slander within this section, the de- 
 fendant moved for security for costs upon an affi- 
 davit which stated that the defendant had a good 
 defence on the merits, but did not disclose such 
 defence. Affidavit held insufficient, for a prima facie 
 defence must be shown. However, the defendant's 
 cross-examination was permitted to be read and 
 counter affidavits could not be received: Lancaster 
 v. Ryckman, 15 P. R. 199. Where an action com- 
 bined a claim for slander within sub-section 1, with 
 
CHAPTER 71. 203 
 
 a claim for assault, the stay of proceedings granted 
 in the order made for security for costs did not 
 apply to the count for assault: Lancaster v. Byck- 
 man, 15 P. E. 199. An action was commenced hy 
 writ of summons endorsed " the plaintiff's claim is 
 for damages for slander." No appearance was 
 entered, and the plaintiff signed interlocutory judg- 
 ment and set the case down for assessment of dam- 
 ages. There being nothing to shew that the case 
 was within this section, it was treated as an ordinary 
 action for 'slander: the delivery of a statement of 
 claim was unnecessary, and the plaintiff's proceed- 
 ings proper: Stanley v. Litt, 19 P. B. 101. Upon 
 an application for security for costs in an action 
 under sub-section 1, the onus is on the defendant to 
 shew that the plaintiff has not sufficient property 
 to answer the costs of the action ; what this sum may 
 be is not fixed : Flaster v. Cooney, 15 P. E. 290. The 
 plaintiffs were an unmarried woman and a married 
 man and brought action for damages in respect of 
 alleged statements that they had been criminally 
 intimate on three occasions and in respect of a letter 
 to the female plaintiff. The male plaintiff claimed 
 special damage, and the female plaintiff the benefit 
 of this section. The plaintiffs were held entitled to 
 sue in one action for damages in respect of the 
 statements made on the three occasions, there being 
 publication as to all and a common question of law 
 and fact, but the joinder of the claim in respect of 
 the letter, which would at most give an action to 
 the male plaintiff, was improper, and unless amended, 
 was simply in aggravation of damages and should 
 be struck out as embarrassing : Agar v. Escott, 8 0. 
 L. E. 177. What are words imputing unchastity: 
 innuendo : question for jury : Paladino v. Grustin, 17 
 P. E. 553: see Con. Eule 1198, and Holmested and 
 Langton note, pp. 1431, 1432; 1913 Eules 373, 374. 
 The order for security for costs under this section is 
 not obtainable on praecipe: see Con. Eule, 1199; 
 Holmested and Langton note, p. 1437; 1913 Eule 375. 
 imputation of unchastity: Cook v. Cook, 5 0. W. N. 
 52, 25 0. W. E. 25. "Without averment and proof of 
 special damage, only nominal damages can be re- 
 covered under this section : Whitling v. Fleming, 16 
 O. L. E. 263, 11 0. W. E. 820. In default of defence, 
 the action being one for pecuniary damages only 
 
204 
 
 CHAPTER 72. 
 
 interlocutory judgment can be entered to fix 
 damages. The damages, even though nominal, must 
 be fixed by a jury, and the plaintiff is entitled 
 to the costs of such trial: Whitling v. Fleming, 16 
 0. L. B. 263. Security for costs: when the allega- 
 tion of nulla bona is made, the onus is on the plain- 
 tiff to displace it, and the matter is one within her 
 own knowledge : Danard v. Moore, 11 O. W. B. 61. 
 Pleadings: defence: admission. Welburn v. Sims, 
 10 0. W. E. 524. Pleadings in action under this sec- 
 tion: see Pherrill v. Sewell, 10 O. W. E. 71; see Con. 
 Eule 268; 1913 Eule 141. 
 
 CHAPTEE 72. 
 
 The Seduction" Act. 
 
 Eefer to Bicknell and Kappele's Practical Statutes, 
 pp. 119-120. 
 
 2. The mother of a girl seduced, suing as her mistress, 
 
 had a sufficient common law right to bring the action 
 during the residence of the father abroad. The Act 
 is only an enabling Act, enlarging the right to main- 
 tain the action under circumstances which Would 
 not be sufficient at common law: Gould v. ErskLne, 
 20 0. E. 347. In an action after the death of the 
 father by the mother for the seduction of her 
 daughter in the lifetime of the father who was an 
 invalid supported by the mother and daughter, 
 no evidence of the actual relationship of mistress 
 and servant was given: the action was held not 
 maintainable : Entner v. Benneweis, 24 0. E. 407. 
 
 3. Apart from the statute, see as to necessity for relation 
 
 of master and servant : Davies v. Williams, 10 Q. B. 
 725, and what service will suffice : Bennett v. Alcott, 
 2 Term Eep. 166. Under the Act, an action lies by 
 the parent, although the daughter may not have 
 been living with him at the time of her seduction or 
 subsequent illness. "While mere illicit intercourse 
 forms no ground of action, proof of illness or phy- 
 sical disturbance sufficient to have caused loss of 
 service to the parent if the girl had been living with 
 
CHAPTER 73. 205 
 
 the parent, is all that is necessary. While there is 
 under the Act in an action by the parent, an irre- 
 butable presumption of service, there is no presump- 
 tion of loss of service to the parent which must still 
 be proved: Harrison v. Prentice, 28 0. R. 140, 24 
 A. R. 677. If the evidence disclosed a case of rape 
 and not seduction, the plaintiff's right of action 
 would rest on his daughter being his servant, and 
 the provisions of the Act would not apply. E. v. F., 
 10 0. L. E. 489, 11 0. L. R. 582. 
 
 CHAPTER 73. 
 
 The Cbown Administbation op Estates Act. 
 
 Where a person possessed of real and personal estate 
 dies leaving no known relatives in the Province, the 
 Attorney-General may maintain an action to set 
 aside letters probate of the person's will executed 
 without mental capacity and in that action may 
 obtain possession of the real estate, but a grant of 
 administration should be obtained by a separate 
 proceeding. Such an action is not for the purpose 
 of escheating, but to protect the property for the 
 benefit of those who may be entitled : R. v. Bonnah, 
 24 A. R. 220. Armour, Real Property, p. 269. See 
 also the Escheats Act, R. 8. 0. 1914, ch. 104. 
 
206 CHAPTER 74. 
 
 CHAPTEE 74. 
 The Settled Estates Act. 
 
 1. The Act was intended to enable the Court to authorize 
 
 such powers to be exercised as were ordinarily in- 
 serted in a well drawn settlement and ought, accord- 
 ingly, to receive a liberal construction: Be Hooper, 
 28 0. E. 179. Application of the Act : Ee Phipps, 2 
 0. W. N. 1126, 19 0. W. E. 149; Ee CorneU, 9 0. L. 
 E. 128, 5 0. "W. E. 60. Jurisdiction of the Supreme 
 Court: see E. S. O. 1897, ch. 51, sec. 40 (6) ; E. S. 0. 
 1914, ch. 56, sec. 12 et seq ; see Holmested and Lang- 
 ton notes, pp. 1218-1225 inc. Cp. English Settled 
 Estates Act, 1856; Settled Estates Act, 1877, and 
 the Settled Land Act, 1882. 
 
 2. Under the scheme of a will, land was to be rented by 
 
 the executors until the testator's youngest son came 
 of age, unless with the sanction of certain adult 
 children, the executors could sooner sell the property 
 at good advantage. Held, this was substantially a 
 trust for sale, but not until the youngest child was 
 of age, unless sooner sold as directed, and was a 
 limitation " by way of succession," and a sale was 
 directed under this Act: In re Cornell, 9 O. L. E. 
 128; see also Carlyon v. Truscott, L. B. 20 Eq. 348; 
 In re Shephard's Settled Estate, L. E. 8 Eq. 571; 
 Ee Denison, 9 0. W. E. 740; National Trust Co. v. 
 Shore, 16 0. L. E. 177, 11 0. W. E. 228. Principles 
 by which the Court will be guided in appointing new 
 trustee of settled estate : Ee Jones Trusts, 1 0. W. N. 
 418, 532. A person receiving, whether in his own 
 right or as executor, the rents of land under a direc- 
 tion to accumulate, which is avoided by the Thellu- 
 son Act, has the powers of a tenant for life under 
 the Settled Land Act, 1882 : Vine v. Ealeigh, 1896, 
 1 Ch. 37. A restraint on anticipation does not create 
 a ' ' settlement " so as to give a married woman the 
 powers of a tenant for life: Bates v. Kesterton, 
 1896, 1 Ch. 159. 
 
 3. Power to lease with extended right of renewal up to 
 
 999 years may be granted : Ee Watson, 21 0. E. 528. 
 Leases by life tenant of unopened mines on settled 
 
CHAPTER 74. 207 
 
 property: disposition of rent: Ke Eayer, 1913, 2 Ch. 
 210. In leases for years under the Settled Estates 
 Act, the terms of the lease must be such as not to 
 affect or vary the common law liability of the tenant 
 for waste. The ordinary short form covenant has 
 not this effect: Morris v. Cairneross, 14 0. L. R. 544. 
 
 14. A settlement contained a clause : ' ' the trustees may, 
 with the approval of the settlors, sell, but not mort- 
 gage, the trust property, either by public auction 
 or private sale." The trustees desired to raise 
 money by mortgage to rebuild a burnt warehouse on 
 the settled property. It was held that the provision 
 in the settlement meant that the power of sale given 
 to the trustees was not to be construed as including 
 a power to mortgage and was not an " express 
 declaration" that the lands should not be mort- 
 gaged: In re Currie and "Watson, 7 0. L. B. 701. 
 The Court cannot authorize the trustees of a settle- 
 ment to raise money by mortgage to tear down and 
 rebuild houses where it is not necessary for salvage 
 of the property, though beneficial: Ee Montagu, 1897, 
 2 Ch. 8. Trustees may be authorized, but cannot be 
 compelled to make a mortgage : Shepar'd v. Shepard, 
 20 O. W. E. 810, 3 0. W. N. 469. Mortgage required 
 to discharge incumbrance on settled land : Hampden 
 v. Buckinghamshire, 1893, 2 Ch. 531. Where lands 
 devised to A. for life, and A. is directed to pay 
 legacies, they should be paid by mortgaging the 
 estate under this Act: Ee Ames, 5 0. W. N. 95, 25 
 0. W. E. 80. Charging estate of infant in rever- 
 sionary interest with payment for infant's mainten- 
 ance: Ee Badger, 1913, 1 Ch. 385. Mortgage for 
 repairs : Ee Bridgmafi, 1 0. W. N. 468. ' Power to 
 order sale: jurisdiction under this and sec. 16: Ee 
 Graham, 1 0. W. N. 674, 15 0. W. E. 809. Sale of 
 vacant land where life tenant (widow) entitled to 
 income not charged with maintenance of children 
 who were entitled in remainder : effect of sale being 
 to increase the widow's income by relieving her of 
 taxes and to deprive the children of increased value: 
 terms imposed: Ee Hooper, 28 0. E. 179; see Ee 
 Denison, 9 0. W. E. 740. 
 
 18. Where a settled estate is sold under order of the 
 Court under the Settled Estates Act, 1877, convey- 
 ance by the person directed to convey takes effect 
 
208 CHAPTER 74. 
 
 under the section: Eyre v. Saunders, 28 L. J. Ch. 
 439, and cannot be invalidated as against a pur- 
 chaser for any want of concurrence or consent: Re 
 Hall Dare, 21 Ch. D. 41; see sec. 30, 31. It is essen- 
 tial to the validity of a sale under order of the Court 
 that the terms of the order be complied with : Berry 
 v. Gibbons, L. R. 15 Eq. 150. 
 
 19. Right of life tenant of an undivided share to sell: 
 Cooper v. Belsey, 1899, 1 Ch. 639, overruling Re 
 Collinge, 36 Ch. D. 516. 
 
 20.— (3) Holmested and Langton, pp. 1220, 1222. 
 
 20.— (4) See In re Cornell, 9 O. L. R. 128. 
 
 31. " The purchaser is a willing one and will be pro- 
 tected ": see In re Cornell, 9 O. L. R. 128; Re Deni- 
 son, 9 O. W. R. 740. "Where the consent of the pro- 
 tector is given by the same assurance it is immaterial 
 if he execute it after the death of the tenant in tail, 
 Whitmore-Searle v. Whitmore-Searle, 1907, 2 Ch. 
 332 and see ante note to sec. 18. 
 
 33. Payment to induce tenant for life to execute lease: 
 validity of lease: Chandler v. Bradley, 1897, 1 Ch. 
 315. An estate during widowhood is an estate for 
 life within the meaning of this section: National 
 Trust Co. v. Shore, 16 O. L. R. 177, 11 O. W. R. 228. 
 Semble, a person entitled to the income of land 
 under a trust or- direction for payment thereof to 
 him during his own life or any other life is entitled 
 to exercise the power of leasing conferred by this 
 section: Morris v. Cairncross, 14 O. L. R. 544, 9 0. 
 W. R. 918. "Who is a person entitled to exercise the 
 power of leasing conferred by this section : see Mor- 
 ris v. Cairncross, 14 0. L. R. 544, 9 0. W. R. 918; 
 Taylor v. Taylor, L. R. 20 Eq. 298, 1 Ch. D. 426, 3 
 Ch. D. 145; In re Pocock and Prankerd's Contract, 
 1896, 1 Ch. 302. " Fine, or sum of money in the 
 nature of a fine ": see Waite v. Jennings, 1906, 2 
 K. B. 11. Valid exercise of power to lease : Atkin- 
 son v. Farrell, 27 0. L. R. 204. See In re Cornell, 9 
 0. L. R. 128 (ante) ; see also In re Morgan's Settled 
 Estate, L. R. 9 Eq. 587; Re Denison, 9 0. W. R. 740. 
 Tenant for life: Re Marshall, 1905, 2 Ch. 325; Re 
 
CHAPTER 74. 209 
 
 Bennet, 1903, 2 Ch. 136; Re Trenchard, 1902, 1 Ch. 
 378; Re Richardson, 1904, 1 Ch. 777; Re Baroness 
 of Llanover's Will, 1903, 2 Ch. 16. Rights and 
 powers: Re Cornwallis West, 1903, 2 Ch. 150; Re 
 Bracken, 1903, 1 Ch. 265 ; Re Bolton, 1903, 2 Ch. 461; 
 Middlemas v. Stevens, 1901, 1 Ch. 574; Re Aldam, 
 1902, 2 Ch. 46; Boyce v. Edbrooke, 1903, 1 Ch. 836; 
 Pease v. Courtney, 1904, 2 Ch. 503; Re Sitwell, 1905, 
 1 Ch. 460. Sale by tenant' for life : no heir : bona 
 vacantia: Re Bond, 1901, 1 Ch. 15. Under the Eng- 
 lish Settled Land Act, since 1883, a life tenant in 
 possession of settled land may even sell, subject to 
 the settlement and without application to the Court, 
 provided there are, at the time of completion ' trus- 
 tees of the settlement ' (Re Fisher & Grazebrook 
 (1898), 2 Ch. 660), the purchaser being relieved from 
 inquiring whether the statutory notice has been 
 given: Marlborough v. Sartoris, 32 Ch. D. 623; 
 Hatten v. Russell, 38 Ch. D. 334; Mogridge v. Clapp, 
 1892, 3 Ch. 382. 
 
 35. Representation of issue: Macdoriald v. Peters, 2 O. 
 W. N. 1209. 
 
 9.A.— 14 
 
210 CHAPTER 75. 
 
 CHAPTER 75. 
 
 The Limitations Act. 
 
 Eef er to : Darby and Bosanquet, Statutes of Limita- 
 tions; Banning, Limitations of Actions; Anglin, 
 Trustees' Limitations of Actions (Can.); Herbert on 
 Prescription. See also Gale on Easements; Goddard 
 on Easements; Innes, Digest of the Law of Ease- 
 ments; Banks on Support; Bicknell and Kappele, 
 Practical Statutes, pp. 674-692; Armour on Titles; 
 Armour, Real Property. Also the following articles : 
 Mortgagees' Rights under the Statutes of Limita- 
 tions (A, C. Gait), 13 C. L. T. 85; Statutes of Lim- 
 itations as a Conveyancer (Armour), 3 C. L. T. 521, 
 17 C. L. T. 91, 198; Statutes of Limitations and Mort- 
 gages (Armour), 6 C. L. T. 422; Easements and Reg- 
 istration (Armour), 14 C. L. T. 45; Extinguishment 
 of Easements, 20 C. L. T. 279; Executors and the 
 Statute of Limitations, 29 C L. T. 391. As to lim- 
 itations in matters of contract and tort: Darby and 
 Bosanquet on Limitations; Underhill on Torts (Can. 
 Ed.) ; Addison on Torts ; Addison on Contracts ; Bick- 
 nell and Kappele, Practical Statutes, pp. 297-298. 
 
 2. — (c) The word " land " includes incorporeal heredi- 
 taments, and in this respect differs from the English 
 Act. It has been held, however, that this Act, reduc- 
 ing the period of limitation to ten years, does not 
 apply to the interruption of an easement such as a 
 right of way in alieno solo, e.g., a lane, which the 
 defendant had occupied and obstructed for 10 years, 
 but which the plaintiff had used prior to such ob- 
 struction: Mykel v. Doyle, 45 U. C. R. 65; see also 
 McKay v. Bruce, 20 0. R. 709. Abandonment may 
 be shown, however, by acquiescence in acts done by 
 the owner of the servient tenement : Bell v. Golding, 
 23 A. R. 485, where Mykel v. Doyle is considered 
 and doubted. The title of an owner of a building to 
 certain rooms therein may be extinguished by pos- 
 session for the statutory period : Iredale v. London, 
 14 O. L. R. 17, 15 O. L. R. 286, 40 S. C. R. 313. Does 
 ten years limitations apply to actions to recover 
 easements : Mykel v. Doyle, 45 U. C. R. 65 ; Bell v. 
 
CHAPTER 75. 211 
 
 Golding, 23 A. E. 485; Ihde v. Starr, 19 0. L. R., 
 4.71, 21 0. L. E. 407. Lands: a mortgagor's in- 
 terest in a share of the proceeds of land held in 
 trust for sale is an interest in land, and will be 
 barred in ten years: Ee Fox, Brooks v. Marston, 
 1913, 2 Ch. 75. Ownership of subterranean property 
 is not within the„ statute. The possession of the sur- 
 face owner is not inconsistent with the possession 
 of the subjacent proprietor: Farquerson v. Bar- 
 nard, etc, Gas Co., 22 0, L. E. 319. See also 25 0. L. 
 E. 93, (1912), A. C. 864. 
 
 2. — (d) An annuity charged on land is " rent " within 
 the meaning of this Act: Trusts and Guarantee v. 
 Trusts Corporation, 31 0. E. 504, 2 0. L. E. 97. 
 Eent : Grant v. Ellis, 9 M. & W.. 113 ; Adnam v. Sand- 
 wich, 2 Q. B. D. 485; Dublin v. Trumbleston; Bald- 
 win v. Peach, 1 Y. & Coll. 453. Quit rent: Howitt 
 v. Harrington, 1893, 2 Ch. 497 ; De Beauvoir v. Owen, 
 5 Ex. 166. Eoyalties : Darley v. Tennant, 53 L. T. 
 257. Tithes as periodical sums : Payne v. Esdaile, 
 13 App, Cas. 613; see also Dig. Eng. Case Law, IX., 
 qoI. 152 et*Seq. 
 
 PAET I. 
 Eeal Peopeety. 
 
 3. Occupation by permission of true owner: estoppel: 
 
 Dominion Improvident v. Lally, 24 0. L. E. 115. 
 
 4. See 9 Geo. III., ch. 16; E. S. 0., 1897, ch. 324, sec. 41. 
 
 The statute does not run as against the Crown, even 
 when the Crown is trustee : A.-G. v. Midland By., 3 
 0. E. 511; E. v. Williams, 39 U. C. E. 397. Occupa- 
 tion of a portion of a municipal highway by an en- 
 croaching building does not confer any title to the 
 land so encroached upon: Toronto v. Lorsch, 24 0. 
 E. 227. Encroachment on highway: Sterling Bank 
 v. Boss, 17 0, W. E, 2S4, 2 0. W. N. 13, 197: see also 
 as to this section: Emmerson v. Maddison, 1906, A. 
 C. 569; Doe d. Fitzgerald v. Finn, 1 TJ. C. E. 70. 
 
 5. What possession is sufficient: 
 
 Guest: where a nephew resided with his aunt 
 for a couple of years, and afterwards made oc- 
 casional visits and paid taxes, it was held that 
 
212 CHAPTER 75. 
 
 he did not go on the lands on his own behalf, 
 but as guest of his aunt, and paid taxes on her 
 behalf: Hartley v. Maycock, 28 0. E. 508. The 
 owner having died and left one son who, while very 
 young, was taken by his aunt to the house on the 
 land where he stayed one night, his aunt stating to 
 the other persons in the house that he was heir to 
 the property: held, this was not an entry upon the 
 land as owner sufficient to stop the running of the 
 statute: Brock v. Bennes, 29 0. R. 468. 
 
 Possession by husband: Though a man has been 20 
 years in possession of land granted to his wife for 
 life, he does not acquire an absolute title, for he 
 is merely seized, with her, by operation of law of her 
 estate: Nolan v. Fox, 15 C. P. 565. Where a husband 
 remained in possession of lands after his wife's 
 death, having had a son by her, he was held to do so 
 as tenant by the curtesy so as not to work tortiously 
 against the heirs at law of his wife: Ee Murray 
 Canal, 6 0. E. 685. Husband usurping right of mak- 
 ing lease of his wife's land to trespasser : wife bound 
 by his knowledge : Harris v. Mundie*, 7 A. E. 414. 
 
 Possession by widow : McKinnon v. Spence, 13 0. W. 
 E. 186. Widow entering as trespasser : see Hartley 
 v. Maycock, 28 0. E. 508. A man died intestate in 
 1864, seized in fee of certain lands, leaving a widow 
 and several heirs at law. The widow remained in 
 possession and cultivated the farm until her death 
 in 1881, when she devised the lands to A. Held, her 
 possession was not that of dowress even of one- 
 third of the land, and the whole title of the heirs at 
 law was barred: Johnston v. Oliver, 3 O. E. 26, 
 affirmed, Cas. Dig. 653. 
 
 Possession by wife: Where A. left home for 30 
 years, leaving his wife in possession of the lands and 
 after some time she married B. and lived with 
 her new husband on A.'s land, it was held that 
 A.'s absence did not bar his action as the wife's 
 possession was his and, the second marriage being 
 illegal, B.'s possession was no more than that of a 
 bailiff or one working the farm on shares; Mc- 
 Arthur v. ISagleson, 3 A. E. 577. 
 
 Caretaker: B. entered into possession of land which 
 he fenced and cultivated. The agent of the 
 
CHAPTER 75. 213 
 
 owner discovering B. to be in possession allowed 
 him to remain, he agreeing to look after the pro- 
 perty to protect the timber. The statute was held not 
 to run in favour of B. : Greenshields v. Bradford, 28 
 Gr. 299. "Where a person entered as caretaker for one 
 tenant in common, afterwards the property was di- 
 vided and he still continued to exercise nets of owner- 
 ship such as fencing; it was held that he continued 
 to be caretaker and acquired no title by possession. 
 Heward v. O'Donahoe, 18 A. B. 529, 19 S< C. E. 341. 
 Difference between tenant and caretaker: see Hickey 
 v. Stover, 11 0. B. 106 ? and between caretaker and 
 tenant at will: Byan v. Byan, 4 A. B. 563. 
 
 Possession by cattle : "While the defendant was in pos- 
 session as caretaker or tenant at will the owner put 
 his cattle on the land to be fed. The produce of the 
 land which the cattle took away was held to be pro- 
 fits which the owner by his cattle took for his own 
 use, and as long as the cattle were on the land, the 
 defendant was not in exclusive possession and the 
 statute did not begin to run in his favour: Bennie 
 v. Frame, 29 0. E. 586. 
 
 Possession by building: A. entered as a trespasser. 
 To extinguish the rights of the heirs his possession 
 must have been actual, visible and continuous. The 
 dwelling house was burnt, and during a short time, 
 until it was rebuilt, A. did not actually live on the 
 farm, but worked it as usual and lived in the neigh- 
 bourhood. It was held that his possession was a visi- 
 ble one by reason of the building operations and 
 the farm work: Hartley v. Maycock, 28 0. B. 508. 
 Acquiring title to strip of land over which roof of 
 owner's house projects^-title acquired subject to 
 easement: Eooney v. Petrv, 17 0. W. E. 83, 2 0. W. 
 N. 113, 22 0. L. E. 101. 
 
 Part of a house : Possession of an upper room in a 
 building supported entirely by portions of the story 
 beneath may ripen into title thereto under the pro- 
 visions of the Statute of Limitations. Query, 
 whether the use of a stairway leading to such a 
 room can be acquired in less than 20 years : Iredale 
 v. London, 14 0. L. E. 17, 15 0. L. E. 286, 40 S. C. 
 B. 313. See article on this case, 44 C. L. J. 593. 
 
2X4 CHAPTER 75. 
 
 Possession by gates and fences : The plaintiffs being 
 entitled to a right of way, put up gates at the end of 
 a strip of land leading to the defendant's field, which 
 gates they kept locked. These acts were held equi- 
 vocal. When dispossession has to be inferred, the 
 intention with which acts are done is all important. 
 In order to acquire title it is necessary to prove dis- 
 possession of the true owner or discontinuance of 
 his possession: Littledate v. Liverpool College, 69 
 L. J. Ch. 87; 1900, 1 Ch. 19. Enclosing land with 
 fence not enough to give a trespasser title against 
 rightful owners : Campeau v. May, 2 0. W. N. 1420, 
 19 0. W. E. 751. Possession by fencing and cultiva- 
 tion and cropping: Piper v. Stevenson, 28 0. L. E. 
 379. Proof of possession: location of fence: Yock- 
 man v. Johnston, 21 0. W. E. 86, 3 O. W. N. 624. 
 
 Mistake: Where a widow not knowing herself to be 
 the heir to certain lands, but believing them to have 
 descended to her eldest son, made a will giving all 
 her real estate to A., the devise was held ambiguous 
 and not sufficient to pass the property as against the 
 son's possession: Hounsell v. Dunning, 71 L. J. 
 Ch. 259; 1902, 1 Ch. 512. 
 
 Eailway: A title by possession may be acquired as 
 against a railway company to lands originally ob- 
 tained by them for railway purposes: Erie and Nia- 
 gara Ey. Co. v. Eousseau, 17 A. E. 483; Bobbett v. 
 South-Eastern Ey. Co., 9 Q. B. D. 424. As to ac- 
 quirement of title by possession by a railway: see 
 Jessup v. G. T. E., 28 Gr. 583. The Statutes of Lim- 
 itations as to land will not run against a railway 
 unless where it may be shown that the land in ques- 
 tion is not necessary for the railway, and, therefore, 
 capable of being sold: see G. T. E. v. Valliear, 7 0. 
 L. E. 364; McMahon v. G. T. E., 12 0. W. E. 324; 
 E. S. 0., 1914, ch. 185, sees. 54 (c), 95. 
 
 Payment of taxes : Where a vendor was not in pos- 
 session of lands, the fact that for upwards of ten 
 years he had paid the taxes on the property did not 
 show such a possession as is required to bar the 
 right of the owner under the statute : In re Jarvis and 
 CoOk, 29 Gr. 203. As to significance of payment of 
 taxes in making title by possession: see Doe d. 
 
CHAPTER 75. 215 
 
 McDonell v. Batray, 7 U. C. E. 321 ; Davis v. Hender- 
 son, 29 U. C. B. 344; Doe d. Perry v. Henderson, 3 
 U. C. E. 486. Payment of taxes not a payment of 
 rent: see Finch v. Gilray, 16 A. E. 484 (noted tinder 
 " Lessor and Lessee "). Payment of taxes (see 
 " Guest ") : Hartley v. Maycock, 28 0. E. 508. Pos- 
 session of wild lands by mortgagee by payment of 
 taxes: Kirby v. Cowderoy (1912), A. C. 599. 
 
 As between mortgagor and mortgagee: Whether a 
 redemption suit is also an action for the recovery 
 of land was much discussed in Faulds v. Harper, 11 
 S. C. E. 655. The Divisional Court (2 0. E. 405) 
 followed Hall v. Caldwell, 8 TJ. C. L. J. 93, in pref- 
 erence to Foster v. Patterson, 17 Ch. D. 132, and 
 Kinsman v. Eouse, 17 Ch. D. 104. The Court of 
 Appeal treated Hall v. Caldwell as having been 
 overruled. In the Supreme Court, Strong, J., agreed 
 with the Judges of the Divisional Court " for the 
 reason that since the two cases in 17 Ch. D. were 
 decided, the House of Lords has held in Pugh v. 
 Heath, 7 App. Cas. 235, that a foreclosure suit is an 
 action for the recovery of land. ' ' That being so, it 
 follows a fortiori that a redemption suit is also an 
 action or suit for the recovery of land : per Clute, 
 J., Patterson v. Dart, 10 O. W. E. 79, 11 0. W. E. 
 241. See also S. C. 24 0. L. E. 609: see infra, sec- 
 tions 20 et seq. Legal effect of statutory discharge 
 of mortgage as creating new starting point: Brown 
 v. McLean, 18 0. E. 533, Noble v. Noble* 4 0. W. N. 
 359, 27 0. L. E. 342, where authorities reviewed and 
 provisions of this Act and the Eegistry Act consid- 
 ered. Possession by mortgagee of vacant lands : De- 
 laney v. C. P. E., 21 r O. E. 11: see infra " Vacant 
 lands." •" 
 
 Lessor and Lessee: A. being in possession without 
 any title, and accepting a lease from B. as the heir 
 at law, was estopped from setting up the adverse 
 title of the real heir at law against B. and those 
 claiming under him : Brock v. Benness, 29 0. E. 468. 
 A tenant agreed to pay $6 a month and taxes. For 
 18 years he remained" in possession, paying taxes 
 and no rent, and at the expiration of the period gave 
 the landlord an acknowledgment of rent for the 
 whole period. Payment of taxes was held not a 
 payment of rent within the Act, and although the 
 
216 CHAPTER 75. 
 
 tenant had always intended to hold as a tenant, he 
 had acquired title, and could not thereafter make 
 himself liable for the rent by his acknowledgment: 
 Finch v. Gilray, 16 A. E. 484. "Where a landlord 
 places a tenant in possession of Lot 1, and the "tenant 
 knowingly encroaches on Lot 2, the landlord's occu- 
 pation does not enure to create for the landlord a 
 title to Lot 2 : Doe d. Smith v. Leavens, 3 XJ. C. E. 
 411. Where the lessor permits the lessee to continue 
 during the term without paying rent, when the 
 statute begins to run against the owner: Lurey v. 
 Eose, 17 C. P. 186. A tenant taking land adjacent 
 to his own by encroachment must as between 
 himself and his landlord be deemed to take it 
 as part of the demised land, yet that presumption 
 will not prevail for the landlord's benefit against 
 third parties : Bruyea v. Eose, 19 O. E. 433. "Where 
 title to land is extinguished by operation of the sta- 
 tute in favour of a tenant who has paid no rent, all 
 rights of the reversioner are extinguished and no 
 rent remains owing: Ee Jolly, Gathercole v. Nor- 
 folk, 69 L. J. Ch. 661; 1900, 2 Ch. 616. See as to 
 accrual of right of action and possession of lease- 
 hold: East Stonehouse v. Willoughby v 71 L. J. K. B. 
 873; 1902, 2 K. B. 318. A reversion in fee simple 
 expectant upon a lease for years, is not a ' ' future ' ' 
 estate within the meaning of the Act. Where a 
 lessee surrenders his lease to the lessor before the 
 expiration of the term, the surrender does not affect 
 a title acquired against the lessee by a third person. 
 Therefore, in such a case, the right of entry does 
 not accrue to the lessor until the expiration of the 
 time for which the term was granted: Walter v. 
 Yeldon, 71 L. J. K. B. 693; 1902, 2 K. B. 304. En- 
 croachment by tenant on uninclosed lands of land- 
 lord adjoining demised premises : Toronto v. Ward, 
 11 O. W. E. 653, 12 O. W. E. 426, 13 O. W. E. 312, 18 
 O. L. E. 214, and see sec. 7 (1) notes. 
 
 Tax purchaser: The statute does not begin to run 
 against a tax purchaser until the period for redemp- 
 tion has expired : Smith v. Midland Ey. Co., 4 O. E. 
 494; see also Brooke v. Gibson, 27 0. E. 218. 
 
 Successive occupants: The fact of there being no 
 conveyances between successive occupants of land 
 does not prevent a possessory title being acquired 
 
CHAPTER 75. 217 
 
 by virtue of the combined periods of possession 
 provided the possession has been continuous against 
 the true owner, and provided the successive occu- 
 pants claim under each other in some sufficient way. 
 The statute speaks of possession without reference 
 to conveyances : Simmons v. Shipman, 15 0. E. 301 ; 
 see also Handley v. Archibald, 30 S. C. E. 130 
 (under the Nova Scotia Act), and Doe. d. Baldwin 
 v. Stone, 5 U. C. E. 388. A person claiming title by 
 possession to land derived through prior trespassers 
 and by his own possession, can only acquire a title 
 to the land of which there has been actual posses- 
 sion for the statutory period: Brooke v. Gibson, 27 
 0. E. .218. The successive occupants must have fol- 
 lowed one another in an unbroken chain. If there 
 was any interval, the title would revert: Trustees, 
 etc, Agency Oo. v. Short, 17 App. Cas. 793, Hand- 
 ley v. Archibald, 30 S. C. E. 130. The plaintiff hav- 
 ing proved possession by his predecessor, had given 
 sufficient prima facie evidence of a fee simple : Eob- 
 inson v. Osborne, 4 O. W. N. 120, 27 O. L. E. 248. 
 Article on adverse possession: tacking: successive 
 trespassers: 8 D. L. E. 1021. 
 
 Possession of wild lands: see post, note to sec. 6 
 (4). Ejectment as between trespassers of un- 
 patented lands. Effect of possessory acts under 
 colour of title: see annotation: 1 D. L. E. 28. 
 
 Vacant lands : Where a right to entry has accrued 
 to a mortgagee without actual entry by him, and the 
 mortgaged lands are subsequently left vacant before 
 a title by possession has been acquired by anyone, 
 the constructive possession is in the mortgagee, and 
 the Statute of Limitations does not run against him 
 so as to extinguish his title; the mortgage being in 
 default and no presumption of payment arising: 
 Delaney v. C. P. E., 21 0. E. 11. Entering on un- 
 cleared land and cutting trees; not possession, but 
 acts of trespass : Allison v. Eednor, 14 U. C. E. 459 ; 
 Hartley v. Maycock, 28 0. E. 508; see also as to 
 possession of vacant lands: Trustees and Agency 
 Co. v. Short, 58 L. J. P. C. 4, 13 App. Cas. 793, note 
 to sec. 9; see sec. 6 (12) notes. 
 
 Boundaries and boundary lines : Possession in ac- 
 cordance with line fence: see Shepherdson v. 
 
218 CHAPTER 75. 
 
 McCullough, 46 U. C. R. 573; Horton v. Casey, 28 S. 
 C. R. 739. Though the statute will bar an owner from 
 recovering a portion of his lot which his neighbour 
 has had enclosed for the statutory period, yet that 
 would not affect the right to any other portion of his 
 land not actually enclosed, as he could not be held 
 dispossessed of a portion of land which the erron- 
 eous fence, if produced, would embrace: Beckett v. 
 Nightingale, 5 U. C. R. 518; Bell v. Howard, 6 C. P. 
 292; Ferrier v. Moodie, 12 U. C. R. 379. Title by 
 possession to wild land may be made out otherwise 
 than by actual enclosure : e.g., blazed line : Steers v. 
 Shaw, 1 0. R. 26. Where a surveyor ran a line 
 between the lands of A. and his neighbour, 
 which line ran through a wood and for more than 
 10 years thereafter A. and his neighbours recog- 
 nized it as the division line, and were in the habit 
 of cutting timber up to it, it was held that this was 
 sufficient occupation to give A. good title by posses- 
 sion up to the said line, whether it was the correct 
 line or not : McGregor v. Keiller, 9 0. R. 677. The 
 doctrine of constructive possession has no applica- 
 tion to the case of a mere trespasser, having no 
 colour of title, and he acquires title under the stat- 
 ute only to such land as he had actual and visible 
 possession of by fencing or cultivating for the re- 
 quisite period : Harris v. Mudie, 7 A. R. 414. Where 
 one entered on a farm as a trespasser, his posses- 
 sion operated only as to the enclosed part, notwith- 
 standing sales of timber from the uninclosed part, 
 which sales were treated as mere acts of trespass: 
 Hartley v. Maycock, 28 0. R. 508. Where persons 
 have agreed to a division line between lands, and 
 have lived up to it for ten years, even without a 
 fence, such division is conclusive evidence of owner- 
 ship : Forrest v. Turnbull, 14 0. W. R. 930. If part 
 of a boundary is fixed by the Statute of Limitations, 
 that has no effect towards establishing a line in con- 
 tinuation thereof: Charbonneau v. McCusker, 22 0. 
 L. R. 46. Erection of wall within boundary line: 
 discontinuance of possession: Kynoch v. Rowlands, 
 1912, 1 Ch. 527. This case is very like Rooney v. 
 Petry, 22 0. L. R. 101, noted ante " Possession by 
 building." See also R. S. 0. 1914, ch. 67 and cases 
 uoted. 
 
CHAPTER 75. 219 
 
 Kind of possession: " Actual, continuous and vis- 
 ible:" see McConaghy v. Denmark, 4 S. C. R. 609; 
 Sherrin v. Pearson, 14 S. C. R. 581; Hartley v. May- 
 cock, 28 0. R. 508; Doe d. Sheppard v. JBayley, 10 
 U. C. R. 310. Where a squatter occupied adjoining 
 land and raised crops on the land in question in the 
 summer but did nothing in regard to it in the winter 
 except go on occasionally to spread manure, it was 
 held that these were mere acts of trespass covering 
 a very small part of the winter and that possession 
 must have been vacant for the remainder of it, and 
 the operation of the statute would cease until pos- 
 session was taken again in the spring : Coffin v. North 
 American Land Co., 21 O. R. 80. A possession of 
 land, in order to ripen into title and oust the real 
 owner, must be uninterrupted during the whole 
 statutory period. If abandoned at any time, the 
 law will attribute it to the person having title: 
 Handley v. Archibald, 30 S. C. R. 130. See ante 
 " Successive occupants." See also Dig. Ont. Case 
 Law, col. 3996 et seq. Merely fencing in lands 
 in a lot but without putting it to some actual 
 continuous use is not sufficient to make the statute 
 run: Stovel v. Gregory, 21 A. R. 137. Acts of 
 ownership: user of land by passing and repassing: 
 Cosbey v. Detlor, 2 O. W. N. 668. Open, visible, ex- 
 clusive unequivocal and continuous possession 
 is required to extinguish a paper title : Nixon v. 
 Walsh, 2 O. W. N. 1218, 19 O. W. R. 422. Essentials 
 to establish ownership by prescription: Wright v. 
 Olmstead, 20 0. W. R. 701, 3 0. W. N. 434. Adverse 
 possession: dispossession: exclusion: Rooney v. 
 Petrie, 22 0. L. R. 101. Interruptive acknowledg- 
 ment of prescriptive title : Cap Rouge Pier , Co. v. 
 Duchesnay, 44 S. C. R. 130. Where a man knew of 
 a will, he must be assumed to have taken the land 
 under the trusts of the same and his possession is 
 not adverse: Burch v. Flummerfelt, 14 0. W. R. 
 929. To constitute a plaintiff 's title by adverse pos- 
 session, the possession required to be proved must 
 be adequate in continuity, in publicity and in extent, 
 and is displaced by evidence of partial possession 
 by the defendant: Radhamoni Debi v. Collector of 
 Khulna, L. R. 27 Ind. App. 136 (1900), and see 
 Shunk V. Downey, 13 0. W. R. 398. " Continuous " 
 possession: Piper v. Stevenson, 4 0. W. N. 961. As 
 
220 CHAPTER 75. 
 
 to doctrine of " adverse possession:" see Nepean v. 
 Doe and Taylor dem. Atkyns v. Horde, 1 Smith's 
 Leading Cases, pp. 558 et seq. 
 
 Kind of title obtained : see sec. 16, notes. 
 
 The running of the Statute: The Statute of Limita- 
 tions only begins to run in favour of an original 
 owner who is in possession under an unregistered 
 conveyance from the date of the conveyance to the 
 subsequent registered purchaser: McVity v. Tran- 
 outh, 1908, A. C. 60. Where the title of an infant to 
 real proeprty vests in possession where a strnager is 
 in adverse possession as against the infant's prede- 
 cessor, the Statute of Limitations will continue to 
 run against the infant: Garner v. Wihgrove, 1905, 
 2 Ch. 233. Barring rent charge : Shaw v. Crompton, 
 1910, 2 K. B. 370. What amounts to dispossession 
 of true owner, which gives the Act its starting point : 
 Booney v. Petry, 22 O. L. B. 101. See also notes to 
 sec. 9. 
 
 Pleading: A defendant pleading the Beal Property 
 Limitations Act, must set out in his statement of 
 defence or give particulars showing the section or 
 sections on which he relies : Dodge v. Smith, 1 O. L. 
 E. 46. Erroneous citation of wrong statute in 
 pleading: amendment: Cain v. Pearce Co., 1 O. W. 
 N. 1133. 
 
 6. — (1) The fact of possession is prima facie evidence 
 of seizin in fee: per Merror, J., in Asher v. Whit- 
 lock, 35 L. J. Q. B. 17, L. E. 10 Q. B. 1. Onus of 
 proof on occupier against owner of paper title : Mc- 
 Millan y. Atty.-Gen., 2 O. W. N. 1444, 19 O. W. E. 
 799. Title by prescription and paper title: Dom. 
 Imp. Co. v. Lally, 17 O. W. E. 151, 2 0. W. N. 155, 
 1224, 19 0. W. E. 462. What amounts to possession 
 sufficient to bar the true owner : Mclntyre v. Thom- 
 son, 1 0. L. E. 163. The right to enter first accrues 
 to the owner when the lands are fenced against him : 
 Piper v. Stephenson, 28 O. L. E. 379. See ante, sec. 
 5, notes. 
 
 6. — (4) Where a man went into possession of a farm 
 believing mistakenly that the property was devised 
 to him under his father's will, he was taken to be 
 
CHAPTER 75. £21 
 
 in possession of the whole property though only a 
 part of it was cleared and cultivated: Be Bain and 
 Leslie, 25 O. E. 136. The expression " state of 
 nature " is used in contradistinction to the preceding 
 expression " residing on and cultivating " and un- 
 less the patentee of wild lands or some one claiming 
 under him has resided on the land or cultivated, 
 imp'roved or actually used it, the 20 years limitation 
 will apply. Cultivation by trespassers will not avail 
 to shorten this limit: Stovel v. Gregory, 21 A. E. 
 137. Where the plaintiff, in an action for recovery 
 of land, claimed to have acquired title by posses- 
 sion, and originally that of a squatter to land pat- 
 ented and in a state of nature, such possession being 
 without knowledge of the patentee, but failed to 
 show sufficient length of possession, his action failed 
 as against the defendant in possession, although such 
 defendant did not claim through or in priority with 
 the patentee : Donnelly v. Ames, 27 0. E. 271. This 
 sub-section only operates to require 20 years' pos- 
 session of non-cultivated lands in favour of the 
 patentee and those claiming under him, and not in 
 favour of a purchaser at a tax sale : Brooke v. Gib- 
 son, 27 0. R. 218. As to locatees of Crown lands, the 
 rights involved are private and not affecting the 
 Crown. Even in the case of unpatented lands, de- 
 claratory relief can be given subject to the Crown 
 being willing to act on the judgment of the Court : 
 Pride v. Eodger, 27 0. E. 320. Isolated acts of 
 trespass committed on wild lands from year to year, 
 will not give the trespasser a title. To acquire title 
 there must be open, visible and continuous posses- 
 sion known, or which might have been known, to 
 the owner, and not a possession equivocal, occasional 
 or for a special or temporary purpose: Sherrin v. 
 Pearson, 14 S. C. E. 581 : see also Allison v. Eednor, 
 14 U. C. E. 459. Title to wild land can be made out 
 otherwise than by actual enclosure, e.g., by evidence 
 of establishment and use of a blazed line: Steers 
 v. Shaw, 1 O. E. 26. Where wild lands owned by 
 several tenants in common were taken possession by 
 trespassers, and the husband of one of the tenants 
 made a lease to the trespasser ignoring the other 
 tenants, on the expiry of the lease the statute com- 
 menced to run against the wife, notwithstanding the 
 statute regarding wild lands: Harris v. Mudie, 7 
 
222 CHAPTER 75. 
 
 A. E. 414. Possession of wild lands by mortgagee 
 by payment of taxes: Kerby v. Cowderoy, 1912, A. 
 C. 599. A patentee of wild lands and those claim- 
 ing under him barred after 20 years notwithstand- 
 ing the continuation of an outstanding tenancy by 
 the curtesy: Hicks v. "Williams, 15 0. E. 228. Clear- 
 ing land by a person where there was no evidence 
 that he did so under any claim of right Was held 
 not to be a constructive possession of the rest of 
 the lot : McMaster v. Morrison, 14 Gr. 138 : see cases 
 cited, Digest Ont. Case Law, coh 3953 et seq., under 
 " Wild lands — occupation of part " and see also 
 col. 4001 et seq v " Possession as against patentee ": 
 As to vacant lands: see ante, note to sec. 5. See 
 note on ejectment as between trespassers on unpat- 
 ented lands and effect of possessory acts under col- 
 our of title, 1 D. L. E. 28; and also E. S. 0, 1914, ch. 
 28, sec. 14, notes. 
 
 6. — (5) Payment of taxes by tenant not a payment of 
 rent: see Finch v. Gilray, 16 O. E. 393, 16 A. E. 
 484 (see notes to sec. 5 " lessor and lessee.") What 
 amounts to a " wrongful " reception of rent: see 
 Hopkins v. Hopkins, 3 0. E. 223. 
 
 6. — (7) When a testator devised land of which his 
 brother had been in possession for 25 years, to the 
 testator's son after a life estate to the brother, on 
 condition " that he neither rents nor sells without 
 the consent of my son " and the brother made a 
 lease, it was held that the brother having set at 
 naught the conditions of the will, should not be pre- 
 sumed to have accepted the devise: having gone 
 into possession as tenant at will during the testa- 
 tor's lifetime, he had now acquired a title by posses- 
 sion: Cobean v. Elliott, 11 0. L. E. 395. When time 
 begins to run against owner where there is posses- 
 sion under agreement for a lease: Warren v. Mur- 
 ray, 1894, 2 Q. B. 648. Determination of tenancy: 
 creation of fresh tenancy: Jarman v. Hale, 1899, 1 
 Q. B. 994. Entry by landlord to repair: Lynes v. 
 Smith, 1899, 1 Q. B. 486. A purchaser in possession 
 with the assent of his vendor and not in default, is 
 not to be deemed a tenant at will within the meaning 
 of this sub-section: Irvine v. McCaulay, 28 0. E. 92, 
 24 A. E. 446. The effect of the sub-section is that it 
 
CHAPTER 75. 223 
 
 is for the purposes of the statute only that the 
 tenancy at will is to be determined at the expiration 
 of one year from the time it began: McCowan v. 
 Armstrong, 3 0. L. B. 100. Whenever a new tenancy 
 at will is created, this forms a fresh starting point 
 for the statute : Ee Defoe, 2 0. E. 623 : see also Cope 
 v. Crichton, 30 0. E. 603 ; Henderson v. Henderson, 
 23 A. E. 577, and see Dig. Ont. Case Law, col. 4006, 
 et seq. ' ' tenants at will. ' ' 
 
 6. — (8) This sub-section applies to the case of an implied 
 trust: Irvine v. McCaulay, 28 G. E. 92, 24 A. E. 446 
 (note to 6 (7) supra). The relationship arising out 
 of an agreement for the sale of land on payment of 
 the purchase money, and the taking possession by 
 the purchaser, is that Of trustee and cestui que trust, 
 and as the former has no effective right of entry, 
 the Statute of Limitations does not apply in favour 
 of the cestui que trust : Building and Loan v. Poaps, 
 27 0. E. 470; "Warren v. Murray (1894), 2 Q. B. 648. 
 Position of mortgagee registering mortgage in 
 ignorance that anyone else than the mortgagor is in 
 possession under such circumstances: Building and 
 Loan v. Poaps, 27 0. E. 470. 
 
 6. — (11) The sub-section deals with estates which were 
 at one time preceded by another or other estates, and 
 were therefore, at one time, future estates or in- 
 terests, estates which for a time existed in interest 
 only, and afterwards fell into possession. Eemain- 
 ders and reversions are mentioned as examples, and 
 other future estates and interests must be ejusdem 
 generis. That such is the meaning is plain from the 
 last two lines. Per Maclennan, J.A. : Thuresson v. 
 Thuresson, 2 0. L. E. 637, at p. 641. Application of 
 this principal to the exercise of a power of appoint- 
 ment: Thuresson v. Thuresson, 30 0. E. 504, 2 0. 
 L. E. 637. Land was granted by patent in 1838, to 
 the plaintiff's mother. The mother died in 1856, 
 leaving a husband entitled to an estate by the cur- 
 tesy who survived until 1883. Neither husband nor 
 wife nor any heirs at law had been in possession. 
 Defendant claimed by 20 years' possession, com- 
 mencing in 1853. It was held that the patentee had 
 been dispossessed within the meaning of sec. 41 for 
 20 years, and was barred, notwithstanding the 
 
224 CHAPTER 75. 
 
 tenancy by the curtesy: Hicks v. Williams, 15 0. R. 
 228. In the circumstances of this case it was held, 
 that as there was no time prior to the death of the 
 tenant for life when the trustee or the remainder- 
 man could have interfered with the possession of the 
 land, the statute did not commence to run against the 
 remainderman until the death of the life tenant: 
 Adamson v. Adamson, 28 Gr. 221, 7 A. R. 592, 12 S. 
 C. R. 563: see R. S. 0. 1904, ch. 109, sec. 34. 
 
 6.— (12) See Delaney v. C. P. R., 21 0. R. 11, note to sec. 
 5 ' ' vacant lands ' ' : see also Coffin v. N. A. Land 
 Co., 21 O. R. 80; note to sec. 5 " kind of posses- 
 sion." Right of infant heirs of a mortgagor: see 
 Anderson v. Hanna, 19 0. R. 58. Tenancy by the 
 curtesy : McGregor v. McGregor, 27 Gr. 470. Tenant 
 in tail : Re Shaver, 3 Ch. Ch. 379. Possession of no 
 avail against lessor until his right of entry accrues: 
 accretion to demised property: East Stonehouse v. 
 Willoughby, 71 L. J. K. B. 873; 1902, 2 K. B. 318; 
 see also Trustee and Agency Co. v. Short, 58 L. J. 
 P. C. 4, 13 App. Cas. 793. The payment of interest 
 by the assignee for life of an equity of redemption 
 is sufficient payment to keep alive the right of action 
 on the mortgagor's covenant: Dibb v. Walker, 1893, 
 2 Ch. 429. Continuous adverse possession of land: 
 when statute commences to run: Willis v. Howe, 
 1893, 2 Ch. 545. A reversion in fee simple expectant 
 upon a lease for years is not a " future estate ": 
 Walter v. Yelden, 1902, 2 K. B. 304. Where a per- 
 son without title to land or with an imperfect title 
 purports by deed or will to settle it, and the life 
 tenant enters and remains long enough to bar any 
 claim by the true owner, he is estopped as against 
 the remaindermen from disputing the validity of 
 the settlement : Dalton v. Fitzgerald, 1897, 2 Ch. 86. 
 See also Re Earl of Devon's Settled Estates, 1896, 
 2 Ch. 562. 
 
 7. — (1) Effect of receiving order against reversioners 
 interest where judgment more than 20 years old: 
 Kinnear v. Clyne, 13 O. W. R. 1138, 18 0. L. R. 457. 
 A reversion in fee simple expectant upon a lease for 
 years is not a " future estate " within the meaning 
 of the Act: see Walter v. Yeldon, 71 L. J. K. B. 693, 
 1902, 2 K. B. 304; see note to sec. 5 " Lessor and 
 
CHAPTER 75. 225 
 
 lessee." See Adamson v. Adamson, 28 Gr. 221, 7 A. 
 E. 592, 12 S. C. E. 563. Where the estate of a ten- 
 ant for life with power to appoint to uses becomes 
 barred, right of appointee and estate in remainder. 
 See Ee Earl of Devon's Settled Estates, 1896, 2 Ch. 
 562. See Armour, Eeal Property, pp. 457-8. 
 
 Where a creditor dies intestate on the day a debt be- 
 comes payable to him, the Statute of Limitations 
 does not run against the administrator until admin- 
 istration has been taken out : Atkinson v. Bradford, 
 25 Q. B. D. 377. Application of section: Piper v. 
 Stephenson, 4 O. W. N. 961. See Armour on Titles, 
 338; Eeal Property, pp. 276, 443, 451. 
 
 E. permitted L. to go on his land and alleged that in 
 lieu of rent L. was to make improvements which 
 would inure to E.'s benefit and was to give E. pos- 
 session when so required. E. went on the property 
 and spoke to L. about the improvements, telling him 
 to make such as he chose. L. becoming financially 
 embarrassed, restored the land to E. Held, that L. 
 could not have set up title under the Statute of Limi- 
 tations : Workman v. Eubb, 28 Gr. 243, 7 A. E. 389. 
 Where the true owner of land, in exercise of his 
 right,' enters upon any portion of the land which is 
 not in the actual possession of another, the entry is 
 deemed to refer to the whole land: Great Western 
 Ey. Co. v. Lutz, 32 C, P. 166. Entry by procuring 
 acceptance of lease : Arnold v. Cummer, 15 0. E. 382. 
 Where the owners entered, pulled down an old fence 
 and put up a new one, this gave the statute a new 
 starting point against a squatter: Coffin v. North 
 American Land Co., 21 0. E. 80. See also Palmer v. 
 Thorribeck, 21 C. P. 291. Where one of several ten- 
 ants in common enters and dispossesses a trespasser, 
 he is ; as regards his co-tenants, exactly in the same 
 position as a stranger would be, and such possession 
 does not inure to the benefit of his co-tenants : Harris 
 v. Mudie, 30 C. P. 484, 7 A. E. 414. Where a person 
 held land under an inoperative conveyance and made 
 an agreement for sale, thinking he was owner, and 
 died, his widow returning shortly after, finding the 
 proposed purchaser in possession, forcibly took pos- 
 session herself: Held, that she entered as a tres- 
 
 S.A. — 15 
 
226 CHAPTER 75. 
 
 passer : Hartley v. Maycock, 28 0. B. 508. Actual 
 occupation is not necessary. It is sufficient that the 
 owner enter on the land so as to put himself in legal 
 possession of it. Putting up " sale " boards suffi- 
 cient : Donovan v. Herbert, 4 0. E. 635. As to re- 
 moval of. a temporary structure with or without per- 
 mission of claimant of title giving new point of com- 
 mencement for statute : see Griffith v. Brown, 5 A. B. 
 303. A visit made by a father to his son on the lands 
 in question and remaining some days is not an " en- 
 try " sufficient to stop the running of the statute: 
 McCowan v. Armstrong, 3 0. L. E. 100. The statute 
 does not continue to run against the rightful owner 
 of land after an intruder has relinquished possession 
 without acquiring title. Possession so abandoned 
 leaves the rightful owner in all respects as he was 
 before the intrusion took place : Trustees & Agency 
 Co. v. Short, 58 L. J. P. C. 4, 13 App: Cas. 793. Title 
 by possession of upper room as against landlord: 
 Iredale v. London, 14 O. L. E. 17, 15 0. L. E. 286, 
 40 S. C. E. 313. Where the respondent applied to 
 bring land under the Queensland Eeal Property Act 
 and showed a complete documentary title and that 
 he was in possession within 20 years before such 
 application, the onus was held to be on the caveators 
 in possession to show that the applicant's title had 
 been defeated, that his entries had not been made 
 animo possidendi or had been made after his title had 
 been extinguished : Soiling v. Broughton, 1893, App. 
 Cas. 566. Proof required of continuous occupation ad- 
 verse to owner : Eobinson v. Osborne, 4 O. W. N. 120, 
 27 0. L. E. 248. Dispossession : maintenance of roof 
 over land in dispute: dispossession of true owner: 
 Eooney v. Petry, 22 0. L. E. 101. Discussion of the 
 meaning and history of this section : Piper v. Steven- 
 son, 28 0. L. E. 379. See notes to sec. 5, ante, " Suc- 
 cessive occupants," "Sunning of the Statute," etc.; 
 also notes to sec. 6 (1). . See Armour, Eeal Property, 
 pp. 426, 451. 
 
 10. See Armour, Eeal Property, pp. 340, 426. 
 
 11. See Armour, Eeal Property, p. 426. 
 
 12. A tenant in common in an action for the possession 
 
 of land against a person without any title can re- 
 cover judgment only for possession of his share: 
 
CHAPTER 75. 227 
 
 Barnier v. Barnier, 23 0. E. 280. Where one of two 
 tenants in common had possession of land as against 
 his co-tenant, the bringing of an action of ejectment 
 in their joint names and entry of judgment therein 
 interrupted the prescription accruing in favour of 
 the tenant in possession: Handley v. Archibald, 32 
 N. S. Eep. 1, 30 S. C. E. 130. Caretaker of one ten- 
 ant: see Heward v. O'Donohoe, 18 A. E. 529, 19 S. 
 C. E. 341. See note to sec 5 " caretaker." Where 
 one of several tenants in common enters and dis- 
 possesses a trespasser, he is, as regards his co- 
 tenants, in possession simply as a stranger. (But 
 see remarks' of Cameron, J.) : Harris v. Mudie, 30 
 C. P. 484, 7 A. E. 414. Where of five tenants in 
 common of a farm, three acquired title against the 
 other two by virtue of the Statute of Limitations, 
 it was held that the title acquired by the three was 
 a joint tenancy, making them tenants in common of 
 3/5 and joint tenants of 2/5 of the lands : Ee Living- 
 stone, 2 O. L. E. 381 (but now see 1 Geo. V. c. 25, 
 s. 14, E. S. O. 1914, c. 109, s. 14), Where there are 
 several tenants in common of land, of whom all but 
 one are in possession, and before the 10 years have 
 run the latter acquires anotiher undivided share 
 from or under one of those in possession, the statute 
 runs as to both shares from the time the last one 
 was acquired : Hill v. Ashbridge, 20 A. E. 44. Wrong- 
 ful working of coal : tenants in common : where title 
 to minerals is founded on adverse possession it will 
 be limited to that area of which actual possession 
 has-been enjoyed: Glyn v. Howell, 1909, 1 Ch. 666. 
 Possession by one of several tenants in common: 
 McKinnon v. Spence, 14 O. W. E. 1144, 20 O. L. E. 
 57, at p. 64; Foisy v. Lord, 2 0. W. N. 1217, 3 0. W. 
 N. 373, 19 0. W. E. 390, 20 0. W. E. 699. See 
 Hartley v. Maycock, 28 0. E. 508 ; see also Dig. Ont. 
 Case Law, col. 4011, " Tenants in Common." 
 
 13. See Haig v. Haig, 20 0. E. 61; Hartley v. Maycock, 
 28 0. E. 508; Armour, Eeal Property, p. 429. 
 
 14. By an agreement in writing made shortly after the 
 death of the father, between the devisees and lega- 
 tees under the will, the defendant admitted that 
 though the farm was occupied by him, his father was 
 the owner of it, and agreed to abide by the terms of 
 
228 CHAPTER 75. 
 
 the will then unknown. The real object of the 
 arrangement was to avoid any difficulty which might 
 arise owing to the defendant asserting his rights 
 under the Statute of Limitations, of which rights he 
 Was then not aware. The agreement, even as a 
 family arrangement, was held not binding on the 
 defendant: McCowan v. Armstrong, 3 0. L. E. 100. 
 "Written acknowledgment after the statutory period 
 has no effect : Finch v. Gilray, 16 A. R. 484; Coffin v. 
 N. A. Land Co., 21 0. B. 80; Mclntyre v. Canada Co., 
 18 Gr. 367; McDonald v. Mcintosh, 8 U. C. E> 388; 
 Doe d. Perry v. Henderson, 3 U. C. E. 486. Where 
 a mortgagee in .possession wrote to the owner of the 
 equity: " The amount due on your mortgage was 
 $. . . . ; . on (such a date). No part of that sum has 
 since been paid to me, but the rents I have received 
 have nearly kept down the interest." Held, a suffi- 
 cient acknowledgment to give the statute a new 
 starting point: Miller v. Brown, 3 0. E. 210. An 
 acknowledgment of title by the person in possession 
 of land given to a mortgagor is sufficient to prevent 
 the occupant acquiring title under the statute. The 
 mortgagor for such purpose is a " person entitled " 
 and need not be acting as agent for the mortgagee : 
 Hooker v. Morrison, 28 Gr. 369. An" acknowledg- 
 ment to a person's trustee is sufficient: Mclntyre v. 
 Canada Co., 18 Gr. 367. A notice to quit from C. to 
 B. during the currency of the prescriptive period 
 will not save C. from being barred : Doe d. Ausman 
 v. Minthorne, 3 U. C. E. 423. An oral acknowledg- 
 ment will not save the statute : Doe d. Perry v. Hen- 
 derson, 3 U. C. B. 486. Devise to person in posses- 
 sion and admission that will is operative: see Ee 
 Dunham, 29 Gr. 258. Payment of mortgage: see 
 Henderson v. Henderson, 27 0. E. 93, 23 A. E. 577. 
 Acknowledgment by debtor to person entitled to take 
 out letters' of administration and who afterwards 
 does take out such letters is sufficient : Eobertson v. 
 Burrill, 22 A. E. 356. See Dig. Ont. Case LaW, 
 col. 3948 et seq., " Acknowledgment of Title." See 
 sections 54 et seq. infra; see Armour, Titles, p. 13 ; 
 Armour, Eeal Property, pp. 459, 460. 
 
 15. See Brock v. Benness, 29 0. E. 468. 
 
 16. The effect of the statute is simply to bar and extin- 
 guish the right of the party out of possession and 
 
CHAPTER 75. 229 
 
 not to transfer any estate of title to the party in 
 possession: Tichborne v. Weir, 1892, 67 L. T. N. S. 
 735 ; Piper v. Stevenson, 28 0. L. E. 379. The execu- 
 tion and registration of a discharge of an existing 
 mortgage revesting the legal estate in the mortgagor 
 gave the statute a new starting point where, apart 
 from the mortgage, the statutory period had run in 
 favour of a son of the mortgagor : Henderson v. Hen- 
 derson, 27 0. B. 93, 23 A. E. 577. Where title by 
 possession was acquired by two persons who entered 
 under a lease as tenants in common (E. S. O. 1914, 
 ch. 109, sec. 13), it was held that holding over after 
 the expiration of their term and acquiring title by 
 possession, they did so as tenants in common and not 
 as joint tenants, nothing having occurred to alter the 
 nature of their tenure: Brock v. Benness, 29 0. E. 
 468, at p. 472. But ordinarily where title by posses- 
 sion is acquired by two persons they formerly took 
 as joint tenants : Ee Livingstone, 2 0. L. E. 381, note 
 to sec. 12. E. S. 0. 1897, c. 119, s. 11 (E. S. 0. 1914, 
 ch. 109, sec. 13), left untouched the case of title ac- 
 quired in this manner, but now see E. S. 0. 1914, ch. 
 109, sec. 14. As to acknowledgment after the 
 lapse of the statutory period, see Finch v. Gilray, 16 
 : A. E. 484, and other cases noted under sec. 14. A 
 person who had acquired title by possession 
 subsequently took a conveyance from the 
 owner by paper title for expressed valuable 
 consideration, reserving to the grantor the mines 
 and minerals, and gave a mortgage back for 
 $300, " save and except the mines which the mort- 
 gagor has no claim to. ' ' This was held not to revest 
 the mines in the grantor: Dodge v. Smith, 3 0. L. E. 
 305. Where a woman is in possession of lands and 
 married, if the possession ripens into title, it is her 
 separate estate: Myers v. Euport, 8 0. L. E. 668. 
 The title of an owner of a building to certain rooms 
 therein may be extinguished by" possession for the 
 statutory period : Iredale v. London, 14 0. L. E. 17, 
 15 A. L. E. 286, 40 S. C. E. 313. In an action for 
 recovery of land, proof of possession is prima facie 
 evidence of title, and no other interest appearing in 
 .proof, evidence of seizin in fee: Doe d. Hughes v. 
 Dyebalt, Moo. & M. 346 ; Doe d. Carter v. Barnard, 
 13 Q. B. 945; Eccles v. Paterson, 22 U. C. E. 167; 
 Donelly v. Ames, 27 0. E. 271. A plaintiff must, in 
 
230 CHAPTER 75. 
 
 an action for the recovery of land, succeed on the 
 strength of his own title, and if it be proved that the 
 title is in another, the action fails even though the 
 defendant be in possession not claiming under or in 
 priority with that other : Doe d. Carter v. Barnard, 
 13 Q. B. 945; Doe d. Haldane v. Harvey, 4 Burr. 
 2284, 2287; Doe d. Dawn v. Horn, 3 M. & W. 333; 
 Culley v. Doe d. Taylerson, 11 A. & E. 1008; Donelly 
 v. Ames, 27 0. B. 271. The benefit of a restrictive 
 covenant affecting the user of land is a paramount 
 right in the nature of a negative easement binding 
 the land in equity, and a squatter who acquires title 
 under this Act acquires his title subject to it even 
 though he has no actual notice of it : Be Nisbet and 
 Potts, 1905, 1 Ch. 391, 1906, 1 Ch. 386, 75 L. J. C. L. 
 238. Extinguishment of title : McKinnon v. Spence, 
 20 O. L. B. 57, at 64. Effect on operation of statute 
 of discharge of mortgage under Begistry Act form : 
 Noble v. Noble, 25 O. L. B. 379; 27 0. L. B. 342. 
 Acquisition of title subject to easement: Booney v. 
 Petry, 22 0. L. B. 101. Title acquired subject to 
 mortgage: see sec. 23, note. Effect of possession 
 for 10 years as bar to right to easements: Ihde v. 
 Starr, 19 0. L. B. 471, 21 0. L. E. 407; see also Mykel 
 v. Doyle, 45 U. C. E. 65; and see sec. 34; notes. See 
 the provisions of B. S. O. 1914, ch. 126, sec. 29, as 
 to adverse possession against a registered owner un- 
 der the Land Titles Act. Note the present wording 
 of the Begistry Act, E. S. 0. 1914, ch. 124, sees. 62 
 and 67 as to effect of registration of discharge of 
 mortgtge. 
 
 17. ' ' Waste lands of the Crown : ' ' see Fensom v. C. P. B., 
 
 7 O. L. E. 254, at 258. See B. S. 0. 1914, ch. 28, sec. 
 2, notes. 
 
 18. The restrictions placed on the right to recover arrears 
 
 of interest charged on land by sees. 18 and 25, are 
 not applicable to the case of coupons for the pay- 
 ment of interest on railway mortgage bonds, which 
 are secured by mortgage in trust. Such coupons 
 partake of the nature of a specialty and are good for 
 at least 20 years : Toronto General Trusts v. Central 
 Ont. By., 6 0. L. B. 534. Where an executor was 
 also legatee of money charged on land and held the 
 land eight years till it could be sold more advantage- 
 ously the statute had no application, " the hand to 
 
CHAPTER 75. 231 
 
 pay and the hand to receive being one and the same : ' ' 
 In re Yates, 4 0. L. B. 580. The provision that no 
 more than 6 years' arrears of interest charged on 
 land is recoverable only applies where a mortgagee 
 is seeking to enforce payment out of the lands of 
 his mortgage money and interest, and does not apply 
 to an action for redemption or to actions similar in 
 principle: Delaney v. C. P. E., 21 0. E. 11; see also 
 Howeren v. Bradburn, 22 Or. 96. But in an action 
 for redemption by a second mortgagee against a first 
 mortgagee, the latter is entitled to only six years' 
 arrears of interest : McMicking v. Gibbons, 24 A. E. 
 586 ; see fully on this point, H. & L. notes, pp. 970- 
 971. Where property was sold under power of sale, 
 in a suit by the mortgagor for the surplus, the mort- 
 gagee was entitled to retain arrears of interest for 
 more than six years : Ford v. Allen, 15 Gr. 565. The 
 statute is no bar as against a mortgagee in posses- 
 sion to an account for more than six years' rent: 
 Caldwell v. Hall, 9 Gr. 110, 8 U. C. L. J. 93. Where 
 there is the usual provision in a mortgage that in 
 default of payment of interest the principal secured 
 becomes payable, the principal does become due on 
 default and the statute begins to run : McFadden v. 
 Brandon, 6 0. L. E. 247, 8 0. L. E. 610. The 
 Statute of Limitations is not a bar to a claim 
 against a mortgagee in possession for occupa- 
 tion rent : Caldwell, v. Hall, 9 Gr. 110. Inter- 
 est chargeable between mortgagor and mortgagee 
 in redemption or foreclosure action: Macdonald 
 v. Macdonald, 11 0. E. 187; Airey v. Mitchell, 21 
 Gr. 512. The rule in Hunter v. Nockolds (1 Mac. 
 & G. 640), namely, that in a foreclosure action the 
 mortgagee can only recover 6 years' arrears of 
 interest, does -not apply to redemption proceedings 
 taken by the mortgagor, nor where the proceeds of 
 sale have come to the hands of the mortgagee, nor 
 where the mortgagor seeks payment out of Court of 
 the proceeds of land sold in an administration action : 
 Ee Lloyd, Lloyd v. Lloyd, 1903, 1 Ch. 385, where 
 Edmunds v. Waugh, L. E. 1 Eq. 418 ; Ee Marshfield, 
 34 Ch. D. 721, and Dingle v. Coppin, 1899, 1 Ch. 726, 
 and other cases are reviewed. Arrears of interest 
 on' mortgage : see Dig. Eng. Case Law, IX., 224. A 
 mortgage of personal estate is not analogous to a 
 mortgage of real estate so as to induce the Court 
 
232 CHAPTER 75. 
 
 to limit the amount of arrears recoverable to six 
 years : Mellersh v. Brown, 45 Ch. D. 225. The pro- 
 vision of this section does not affect the right of a 
 mortgagee who ha» sold under power of sale to re- 
 tain out of the proceeds more than six years ' arrears 
 of interest : Ee Marshfield, 34 Ch. D. 721. Upon the 
 sale of property subject to a mortgage the purchaser 
 enquired of the mortgagee the amount due, who en- 
 dorsed a memorandum on the mortgage. The deed 
 to the purchaser was made subject to such amount, 
 and contained a covenant to pay it but was not exe- 
 cuted by the purchaser. The statement in the deed 
 was held not to be an acknowledgment of which the 
 mortgagee could take advantage, and as against an 
 incumbrancer claiming under the purchaser he was 
 entitled to six years' arrears only: Colquhoun v. 
 Murray, 26 A. B. 204. Arrears of annuity : the ex- 
 istence of a power of distress will not take the case 
 out of the general rule : Crone v. Crone, 27 Gr. 425. 
 Though the remedy of a creditor to recover the debt 
 be barred by the Statute of Limitations he may hold 
 the collateral securities for such debt till paid: 
 Wiley v. Ledgard, 10 P. E. 182 ; see Holmested and 
 Langton notes, pp. 880-881, and p. 973 ; also pp. 970- 
 972, as to interest, etc. A vendor's lien attaches not 
 only to principal, but extends to interest from the 
 time the lien came into existence, and there is no 
 Statute of Limitations applicable in such a case to 
 the right to recover interest, but the vendor can 
 recover interest for the whole period from the date 
 of the sale: Eose v. Watson, 10 H. L. C. 672; In re 
 Hancock, Hancock v. Berry, 57 L. J. Ch. 793 ; Mel- 
 lersh v. Brown, 60 L. J. Ch. 43, 44, 45 Ch. D. 225, 229 ; 
 In re Stucley, Stucley v. Kekewich, 1906, 1 Ch. 67, 
 75 L. J. Ch, 58. Acknowledgment by one of two ex- 
 ecutors that more than 6 years of interest are due 
 not sufficient to entitle the mortgage in foreclosure 
 to more than 6 years' arrears. Such an acknowledg- 
 ment would, semble, be sufficient against the personal 
 assets : Astbury v. Astbury, 1898, 2 Ch. 111. See 
 Armour, Eeal Property, p. 460. 
 
 19. See Holmested and Langton notes, p. 973. 
 
 20. A conveyance from a mortgagee in possession by 
 which he " conveyed, assigned, released and quitted 
 claim " to the grantees, their heirs, etc., " as 
 
CHAPTER 75. 233 
 
 and for all the estate and interest of the gran- 
 tor " passed the fee and enabled the grantees, tak- 
 ing the benefit of the mortgagee's possession coupled 
 with their own, to claim an absolute possessory- 
 title: Bright v. McMurray, 1 0. W. E. 172. Where 
 actual possession is once obtained by a mort- 
 gagee in assertion of his legal right, it need 
 not be maintained continuously for the statu- 
 tory period: Kay v. Wilson, 24 Gr. 212, 2 A. E. 
 133. Where a mortgagee took possession of the 
 premises to pay himself out of the rents and profits 
 and subsequently sold, the vendee was able to plead 
 the statute in an action for redemption brought by 
 the mortgagor after the lapse of the statutory 
 period: Dedford v. Boulton, 25 Gr. 561. Where a 
 purchaser is in possession of land either under a 
 written contract of sale or with the assent of the 
 vendor, the purchase money being payable by in- 
 stalments, the vendor's right of entry does not first 
 accrue until default occurs in payment of an instal- 
 ment : Irvine v. McCaulay, 28 0. E. 92, 24 A. E. 446. 
 An acknowledgment of indebtedness by letter writ- 
 ten after the creditor's decease by the defendant to 
 the person entitled to take out letters of administra- 
 tion, and who does afterwards take out such letters 
 is an acknowledgment within the statute : Eobertson 
 v. Burrill, 22 A. E. 356. Where a mortgagee has 
 gone into possession under his mortgage, the mort- 
 gagor, subsequent mortgagees, and the grantee of 
 the equity of redemption, are barred after ten years. 
 Section 23 will not apply to hinder the mortgagee 
 from making good title: Ee Thomas and Stephen- 
 son, 9 0. W. E. 625. Where the mortgagor and 
 mortgagee agreed for possession by the mortgagee 
 and for a reconveyance on payment, and a sale if 
 default was made and no sale took place, as long as 
 the mortgagee retained possession for the purposes 
 of the agreement the statute had no application: 
 Patterson v. Dart, 8 0. W. E. 800, 10 0- W. E. 79, 
 11 0. W. E. 241, and see further in reference to same 
 case, 24 0. L. E. 609. Where land and an insurance 
 policy were mortgaged in one instrument to secure 
 one amount and subject to one proviso for redemp- 
 tion, the right to redeem the policy will be barred 
 at the same time as the right to redeem the land: 
 Charter v. Watson, 1899, 1 Ch. 175. Death of mort- 
 gagee in possession: partial intestacy: barring 
 
234 CHAPTER 75. 
 
 equity of redemption: Re Loveridge, Pearce v. 
 Marsh, 1904, 1 Ch. 518. An equitable mortgagee 
 will be barred if there is no acknowledgment as well 
 as a legal mortgagee: Kibble v. Fairthorne, 1895, 
 
 1 Ch. 219. "Who is a person claiming under a mort- 
 gage : see Heath v. Pugh, 6 Q. B. D. 345 ; Thornton 
 v. France, 1897, 2 Q. B. 143; Ford v. Ager, 2 H. & 
 C. 279. Acknowledgment of mortgagor's title by- 
 mortgagee in possession : Re Metropolis, etc., Build- 
 ing Society, 1911, 1 Ch. 698. Possession by mort- 
 gagee where lands vacant: Agency Commissioners 
 v. Short, 13 App. Cas. 793; Delaney v. C. P. R. 21 
 0. R. 11; Kay v. Wilson, 2 A. R. 133; Kerby v. 
 Cowderoy, 1912, A. C. 599 ; Re Jarvis and Cook, 29 
 Gr. 303. As to whether debts payable out of mixed 
 fund may be barred against personal estate under 
 sec. 49, but not against real estate: see Re Raggi, 
 Brass v. Young, 1913, 2 Ch. 2Q6. On the question 
 whether an action to redeem a mortgage is or is 
 not an action to recover land within the meaning of 
 the R. P. Limitations Act : see Faulds v. Harper, 9 
 A. R. 537; but see judgment of Strong, J., in this 
 case in 11 S. C. R. 639, and Heath v. Pugh, 7 App. 
 Cas. 235 ; see note to sec. 5 ' ' mortgagor and mort- 
 gagee ": see Dig. Ont. Case Law, col. 3991 et seq. 
 " mortgagor and mortgagee." 
 
 23. The effect of the usual statutory provision in a mort- 
 gage that in default of payment of the interest 
 thereby secured, the principal thereby secured should 
 become payable is to make the principal due at once, 
 so that a cause of action then accrues: McFadden 
 v. Brandon, 6 0. L. R. 247. This provision does not 
 confer a new right of entry on the mortgagee where 
 at the date of the mortgage a person is in possession 
 adversely to the mortgagor, and the Statute of Limi- 
 tations has already begun to run in his favour 
 against the mortgagor: Thornton v. France, 1897, 
 
 2 Q. B., 143; McVity v. Trenouth, 9 0. L. R. 105, 
 where Cameron v. Walker, 19 0. R. 212, is said to 
 be no longer authority (see Chamberlain v. Clark, 28 
 Gr. 454) ; see also Ludbrook v. Ludbrook, 1901, 2 
 K. B. 96; Archibald v. Lawlor, 1902, 35 Nov. Sco. 
 48. Where mortgagee in possession has obtained 
 title under sec. 20, this section has no application to 
 aid the mortgagor and those claiming under him: 
 
CHAPTER 75. 235 
 
 Ee Thomson and Stevenson, 9 0. W. E. 625. As to 
 recovery of interest : see Delaney v. C. P. E., 21 0. 
 E. 11, where it is held that a mortgagor seeking to 
 redeem mnst pay all arrears of interest up to the 
 statutory limit of the action: see also McMicking 
 v. GribhonSj 24 A. E. 586, which decides that a second 
 mortgagee seeking to redeem need pay only 6 years' 
 arrears : see notes supra. The execution and regis- 
 tration of a statutory discharge of mortgage gave a 
 new starting point to the statute in favour of the 
 , owner as against his son in possession: Henderson 
 v. Henderson, 23 A. E. 577. Payment of interest: 
 see Chamberlain v. Clark, 28 Grr. 45. Mortgage by 
 husband to wife's trustee: mortgage is not barred 
 by nonpayment of interest: Ee Hawes, Burchell v. 
 Hawes, 62 L. J. Ch. 463. „The statute runs from time 
 of first default in payment of interest: Eeeves v. 
 Butcher, 1891, 2 Q. B. 509. Acquiring title subject 
 to mortgage : Fletcher v. Eoblin, 20 0. W. E. 148, 3 
 0. W. N. 155 ; Noble v. Noble, 25 0. L. E. 379, 27 0. L. 
 E. 342. The Act does not confer a new right of 
 entry on a mortgagee when at the time of making 
 the mortgage some person is in possession of the 
 mortgaged property adversely to the mortgagor: 
 Thornton v. France, 1897, 2 Q. B. 143. Difference 
 between rights of mortgagee who acquires his mort- 
 gage before any adverse possession has begun 
 against the mortgagor and after: Thornton v. 
 France, 1897, 2 Q. B. 143; and see also McVity v. 
 Trenouth, 9 0. L. E. 105, 36 S. C. E. 455; 1908, A. 
 C. 60. A. being the owner of land, let B. into pos- 
 session as tenant at will. B. acquired title by pos- 
 session against A., but not as against C, the mort- 
 gagee, whose mortgage A. made payments on and 
 kept alive. After B. had acquired title to the equity 
 of redemption, A. paid off C.'s mortgage, and regis- 
 tered a certificate of discharge. The Court held 
 that A. was not entitled to recover possession from 
 B., but did not decide whether A. was entitled to a 
 lien in respect of the mortgage money paid by him : 
 Noble v. Noble, 27 O. L. E. 342. See also Brown 
 v. McLean, 18 0. E. 533. Power of attorney 
 to realize money out of the rents of lands and 
 registered. Such an instrument has no longer life 
 under the statute than a formal mortgage: Brown 
 v. Thompson, 5 0. "W. N. 19, 24 0. W. E. 967. Pay- 
 ment on account : Eobinson v. Eobinson, 14 0. W. E. 
 
236 
 
 CHAPTER 75. 
 
 155, 1000. Equitable mortgagee : see Kibble v. Fair- 
 thorne, 1895, 1 Oh. 219. If estates A. B. and C. are 
 included in one mortgage, and the owner of A. pays 
 the interest, the mortgagee is not barred from his 
 remedy against B. and C. : Chinnery v. Evans,, 11 H. 
 L. Cas. 115. Unregistered conveyance: subsequent 
 registered conveyance to mortgagee : McVity v. Tra- 
 nouth, 1908, A. C. 60. Extinguishment of mortga- 
 gee's title: Re Hazeldine, 1908, 1 Ch. 34. Section 
 discussed : Noble v. Noble, 25 O. L. R. 379, 27 O. L. R. 
 342. See also notes to sec. 16 ante. 
 
 24. The section merely limits suits which directly affect 
 land or its proceeds to ten years. An action on a 
 covenant in a mortgage may still be brought within 
 twenty years: Allan v. JMcTavish, 2 A. R. 278; Mc- 
 Donald v. Elliott, 12 O. R. 98; (Sutton v. Sutton, 22 
 Ch. D. 511, and Pearnside v. Flint, 22 Gr. 579, not 
 being followed). This applies only to mortgage 
 covenants made before 1st July, 1894, since which 
 date see sec. 49. Notwithstanding this section, 20 
 years is the period of limitation on an action on a 
 judgment of a Court of Record: see sec. 49 and 
 notes: Boice v. O'Loane, 3 A. R. 167; McMahon v. 
 Spencer, 13 A. R. 430; Allison v. Breen, 19 P. R. 
 119, 143; Butler v. McMicken, 32 O. R. 422; Mason 
 v. Johnston, 20 A. R. 412. In Boice v. O'Loane, 3 
 A. R. 167, it was held by the Court of Appeal that 
 the Real Property Limitation Act did not apply to 
 a judgment, and an action might be brought on it 
 as being a specialty within 20 years from the time 
 of its recovery. Following the rule laid down by 
 the Privy Council in Trimble v. Hall, 5 App. Cas. 
 664, the Court would now be compelled to overrule 
 this decision and follow Jay v. Johnstone, 1893, 1 
 Q. B. 189, in which the English Court of Appeal 
 dealing with a section identical in this respect with 
 that in force here as it formerly stood, came to 
 a conclusion, diametrically opposite to Boice v. 
 O 'Loane. But in confirming the Revision of 1887, the 
 legislature adopted the rule in Boice v. O 'Loane by 
 omitting the word judgment altogether from sec. 
 23, so that there is no longer anything in the section 
 to which the English decisions can apply : see H. & 
 L. notes, p. 973. The rule that the only person whose 
 payment on account will prevent foreclosure from 
 
CHAPTER 75. 237 
 
 being barred is tbe mortgagor or bis privy in estate, 
 or tbe agent of eitber of tbem must be qualified so as 
 to include any person who by tbe terms of tbe mort- 
 gage contract is entitled to make payments : Lewin 
 v. Wilson, 9 S. C. R. 637, 11 App. Cas. 639. An ack- 
 nowledgment out of indebtedness by letter written 
 after the creditor's decease by tbe mortgagor to tbe 
 person entitled to take out letters of administration 
 and who does subsequently take them out is a suffi- 
 cient acknowledgment within the statute: Robertson 
 v. Burrill, 22 A. R. 356. A mortgage of lands was 
 given as an additional security to a chattel mort- 
 gage. On default of payment of tbe chattel mort- 
 gage, the mortgagee went through a form of sale, 
 but actually retained tbe goods himself. Over ten 
 years later, the mortgagor's possession not having 
 been interfered with, the mortgagee's assignee at- 
 tempted to exercise the power of sale in the mort- 
 gage of lands. Held, that the intended sale was a 
 1 proceeding ' under this section which the assignee 
 was precluded from taking: McDonald v. Grundy, 8 
 0. L. R. 113. The analogy of the statute applies to 
 applications for leave to issue execution after the 
 lapse of 20 years from the date of tbe judgment: 
 Price v. Wade, 14 P. R. 351 ; see also McCullough v. 
 Sykes, 11 P. R. 337 ; McMahon v. Spencer, 13 A. R. 
 430; see Con. Rule 864; H. & L. notes, pp. 1120-1122 
 (1913 Rule 566). It was field that an execution, 
 fi. fa. lands, in the Sheriff's hands was a lien, and 
 the money mentioned therein ' ' money charged on 
 land " and although duly renewed, where a writ of 
 fi. fa. had been more than 10 years in the Sheriff's 
 hands, and no payment or acknowledgment made 
 meanwhile, the lien was gone and the proceedings on 
 the writ would be restrained : Neil v. Almond, 29 
 O; R. 63; In re Woodall, 8 O. R. 288; Caspar v. 
 Keaehie, 41 IT. C. R. 599, but by amendment of 1905 
 (now, sub-section 2), the lien is not now barred when 
 writ duly renewed: see H. & L. notes, pp. 
 1125-26; 1913, Rule 571. After the Statute of Limi- 
 tations has run against tbe mortgagor of lands, 
 service of notice of : sale by the mortgagee on the 
 mortgagor does not give the mortgagor a right to 
 redeem, the mortgagee's statutory title being in no 
 way affected : Shaw v., Coulter, 11 0. L. R. 630. The 
 effect of the usual statutory provision in a mortgage 
 
238 CHAPTER 75. 
 
 that in default of the payment of the interest the 
 principal shall become payable, is to make the prin- 
 cipal at once due so that the cause of action then 
 accrues: McFadden v. Brandon, 6 0. L. E. 247. 
 Where a subsequent mortgagee took a conveyance 
 of the mortgaged property from an assignee in in- 
 solvency without covenanting and subsequently con- 
 veyed to a third party, and yet continued to pay 
 interest to the first mortgagee till within 10 years 
 of bringing of foreclosure, it was held that under 
 the Insolvent Act of '65, sec. 19, the subsequent 
 mortgagee had become liable primarily to pay off 
 the prior incumbrances and, therefore* his payments 
 kept alive the prior mortgagee's rights: Trust & 
 Loan v. Stephenson, 21 0. E. 571, 20 A. E. 66. Where 
 money was got in by one of two residuary legatees 
 and executors and not accounted to the other as 
 agreed: Ee Kirkpatrick, 3 0. E. 361. A mortgagee 
 who has suffered the statute to run before he asserts 
 his rights, cannot by afterwards getting possession 
 of the property revive his title to it. Court v. Walsh, 
 1 0. B. 167. An assignment by an insolvent mort- 
 gagor does not stop the running of the statute so as 
 to keep alive the claim of a mortgagee against the 
 land: Court v. Walsh, 1 0. E. 167, 3 A. E. 294. A 
 suit of foreclosure is an action to recover land and, 
 after 10 years, the mortgagee is at best only entitled 
 to a judgment on a covenant-(made before 1st July, 
 1894) : Fletcher v. Eodden, 1 0. E. 155. Effect of 
 express trust: see Cameron v. Campbell, 7 A. E. 
 361; see, generally, cases in Dig. Ont. Case Law, 
 col. 3991, et seq. ' ' mortgagor and mortgagee ' ' : see 
 also Bicknell & Seager D. C. Act, p, 230. The time 
 at which a bar to an action for foreclosure arises 
 is not when the personal remedy ceases, but when 
 the remedy against the property subject to the 
 charge is taken away, e.g., personal property is not 
 subject to any similar statute to this, and the chattel 
 mortgagee's right to the property not destroyed: 
 London and Midland Bank v. Mitchell, 1899, 2 Ch. 
 161. An action by a mortgagee against a mortgagor 
 on the covenant to repay in a mortgage of a rever- 
 sionary estate in realty is within the Act, although 
 the estate is still reversionary at the date of the 
 action: Kirkland v. Peatfield, 1903, 1 K. B. 756. 
 
CHAPTER 75. 239 
 
 Money charged on land as a lien under an instru- 
 ment without mention of interest: held to carry in- 
 terest from the time the money becomes payable, 
 and will not be statute barred where the hand to 
 receive and the hand to pay interest are the same : 
 Ee Drax, Saville v. Drax, 1903, 1 Ch. 781. Debts 
 charged on realty : Re Balls, Trewby v. Balls, 1909, 
 
 1 Ch. 791. Money secured on land by express trust : 
 Williams v. Williams, 1900, 1 Ch. 152. A testator 
 left everything to his wife and children, and ap- 
 pointed his wife sole executrix. The plaintiff was 
 the only child and was told about the will and re- 
 ceived part of her share. After her mother's death 
 more than 10 years elapsed before action was taken. 
 Held, that what the plaintiff claimed was a legacy, 
 and that her mother was not express trustee for 
 her, and she was therefore barred : Ee Mackay, Mac- 
 kay v. Gould, 1906, 1 Ch. 25, 75 L. J. Ch: 47. ^imi- 
 tation where there is a mixed fund of real and per- 
 sonal property for payment of debts: Ee Balls, 
 Trewby v. Balls, 1909, 1 Oh. 791. Second life estate : 
 Currie v. Currie, 15 O. W. E. 389, 20 O. L. E. 375, 1 
 O. W. N. 473. Where a mortgagee's right of action 
 in respect of a sum of money charged on the pro- 
 ceeds of sale of land is barred under the statute, the 
 mortgage is not dead: and if money representing 
 the property charged is paid into Court, the mort- 
 gagor can only obtain payment of it out of Court by 
 doing equity and satisfying the mortgage : Ee Hazel- 
 dine 's Trusts, 1907, 1 Ch. 686. Covenant to pay 
 money in settlement money also charged on land: 
 devise in fee to tenant for life being also executor 
 of covenantor: not sufficient to prevent statute run- 
 ning as to personal estate : Ee England, 1895, 2 Ch. 
 820. Claim of residuary legatees to require con- 
 tribution from specific devisees towards payment of 
 charge barred : see Ee Allen, Bassett v. Allen, 1898, 
 
 2 Ch. 499. 
 
 The principle underlying all the statutes of 
 limitation is that a payment to prevent the bar- 
 ring by statute must be an acknowledgment by the 
 person making the payment of his liability, and an 
 admission of the title of the person to whom pay- 
 ment is made: Harlock v. Ashberry, 51 L. J. Ch. 
 394, 19 Ch. D. 539. A part payment to take a case 
 
240 CHAPTER 75. 
 
 out of the statute must be such a payment as implies 
 an acknowledgment of liability and a promise to pay 
 the residue: a payment in bankruptcy proceedings 
 is insufficient: Taylor v. Hollard, 1902, 1 K. B. 676. 
 Payment of interest by the assignee for life after 
 equity of redemption: Dibb v. Walker, 1893, 2 Ch. 
 429. Payment of interest by continuing trustees: 
 liability of retired trustee : Barnes v. Glentom, 1899, 
 
 1 Q. B. 885. Acknowledgment by one of two execu- 
 tors not sufficient to permit mortgagee in foreclosure 
 to recover more than six years ' arrears : Astbury v. 
 Astbury, 1893, 2 Ch. 111. " Person by whom the 
 same is payable or his agent ■' includes any person 
 who, as between himself and the mortgagor, is bound 
 to pay the interest : Bradshaw v. Widdrington, 1902, 
 
 2 Ch. 430; see also Ee Viscount Cobden, 1900, 1 Ch. 
 774. Money " charged upon " land: see Skene v. 
 Cook, 1902, 1 K. B. 682. Breach of trust by trustee 
 who has ceased to be executor: see Be Timmis, 
 Nixon v. Smith, 1902, 1 Ch. 176. " In the mean- 
 time ": Ee Viscount Clifden, 1900, 1 Ch. 774. The 
 existence of a prior mortgage at the date of the 
 creation of a mortgage, does not make the mortga- 
 gor's interest a future estate or interest for the pur- 
 pose of determining the time' when the statute com- 
 mences to run against the puisne mortgagee : John- 
 son v. Brock, 1907, 2 Ch. 533. Where real estate 
 has been specifically devised subject to a mortgage 
 containing the usual covenants for payment of prin- 
 cipal and interest, continued payment of interest by 
 the devisee prevents the statute from taking effect 
 in favour of another specifically devised real estate 
 not subject to the mortgage. Consequently, if the 
 mortgaged property proves insufficient, the mort- 
 gagee will in respect of his debt, notwithstanding 
 the lapse of time, be entitled to an order for the 
 administration of the whole of the testator's real 
 estate : Ee Lacey, Howard v. Lightf oot, 1907, 1 Ch. 
 330. See as to this section: Archibald v. Lawlor, 38 
 C. L. T. 214. 
 
 25. These restrictions not applicable to the case of in- 
 terest coupons in railway bonds : see Toronto Gen- 
 eral Trusts v. Central Ont. Ey. Co., 6 O. L. E. 534. 
 Trusts: See infra, sees. 47, 48. 
 
CHAPTER 75. 241 
 
 26. In an action by a devisee to establish a destroyed 
 will a decree was made declaring tbe devisee entitled 
 to tbe fee simple subject to tbe dower of tbe testa- 
 tor's widow. Tbe decree was beld not to prevent 
 the running of the statute so as to bar tbe remedy 
 of the widow : Cope v. Cope, 26 0. R. 441. Absence 
 from the province does not prevent the statute from 
 running: Ee Foster and Knapton, 13 0. W. R. 176, 
 507. An action for assignment of dower is not 
 within tbe Real Property Limitations Act : Williams 
 v. Thomas, 1909, 1 Ch. 713; Armour on Titles, pp. 
 197, 206 ; Real Property, p. 131. 
 
 27. This section expresses the view of Proudfoot, V.C., 
 in Laidlaw v. Jackes, 27 Gr. 101, dissenting from 
 Spragge, C. and Blake, V.C. : see also Fraser v. 
 Green, 27 Gr. 63. Computation of time within 
 which action can be brought: Re Foster and Knap- 
 ton, 13 O. W. R. 176, 507. Action for assignment of 
 dower; part possession: Williams v. Thomas, 1909, 
 1 Ch. 713. 
 
 32. The husband of one of several tenants in common 
 bought land at a Sheriff 's sale which was known to 
 the other tenants who took no steps to set the sale 
 aside 'until after the lapse of the statutory period. 
 Held, that whether the sale under execution was 
 operative or not, possession had ripened into title: 
 Kennedy v. Bateman, 27 Gr. 380. G. made a convey- 
 ance in fee of certain lands, and the holder of an 
 unsatisfied judgment brought action to set it aside 
 as voluntary. The statute was pleaded as a defence, 
 but it was held that the plaintiff was entitled to suc- 
 ceed as a fraudulent deed remains fraudulent to the 
 end of time, though it may not be effectively im- 
 peachable because purchasers for value without 
 notice have intervened or because the creditor's 
 debts themselves have become barred : Boyer v. Gaf- 
 field, 11 O. R. 571 : ' ' Concealed fraud ' ' as used in 
 this section considered: Re 'McCallum, 1901, 1 Ch. 
 143 ; see also Bulli Coal Mining Co. v. Osborne, 1889, 
 A. C. 351; Re Astley and Lyldesley Coal Co., 68 L. J. 
 Q. B. 252; Ecclesiastical Commissioners v. North 
 Eastern Ry., 4 Ch. D. 845; Willis v. Howe, 1893, 2 
 Ch. 545; Blennerbassett v. Day, 2 Ball & B. 118. 
 
 S.A. — 16 
 
242 CHAPTER 75. 
 
 Concealed fraud: see Dig. Eng. Case Law IX., col. 
 306, et seq.; also col. 121, et seq., Dig. Ont. Case 
 Law, col. 3985, et seq. As to pleading: see Law- 
 rance v. Norreys, 15 App. Cas. 210. There is no time 
 protected fraud in equity: Pickering v. Stamford, 
 2 Ves. J. 280. 
 
 34. After a right of way had been enjoyed for more than 
 the period necessary to obtain title thereto by pres- 
 cription, the tenant of the dominant tenement with- 
 out the knowledge of the owner, gave to the tenant 
 of the servient tenement two pairs of shoes as con- 
 sideration for the exercise of the right. It was held 
 that even if an act of this kind could in any event 
 effect the right that had been acquired, the owner of 
 the dominant tenement was not bound by what the 
 tenant did without his authority : Ker v. Little, 25 A. 
 E. 387. Abandonment of an easement may be shown 
 not only from acts done by the owner of the dom- 
 inant tenement indicating an intention to abandon, 
 but also from acquiescence in acts done by the owner 
 of the servient tenement : Bell v. Goldring, 23 A. E. 
 485. Interruption after acquirement of prescriptive 
 right: Avery v. Fortune, 8 0. W. E. 953. Eight of 
 way to rooms in a house which are acquired by 
 possession for statutory period: Iredale v. London, 
 8 0. W. E. 963, 14 0. L. E. 17, 15 0. L. E. 286, 40 
 S. C. E. 313. No legal possession is acquired by a 
 man walking across the land of a friend or using 
 a private way, thinking it is a public one. There 
 must not only be a corporal detention or that quasi 
 detention which, according to the nature of the right, 
 is equivalent to it, but there must also be the inten- 
 tion to act as owner: Adams v. Fairweather, 13 0. 
 L. E. 490, 8 0. W. E. 886; Gale on Easements, 7th 
 ed., p. 164; Earl de la Warr v. Miles, 17 Ch. D. 535. 
 Unity of possession of the dominant and servient 
 tenements for a period will interrupt the running 
 "of the statute: Ee Cockburn, 27 A. E. 450. Even 
 though the occupation of- the servient tenement be 
 wrongful and without the privity of the true owner : 
 Innes v. Ferguson, 21 A. E. 323, 24 S. C. E. 903. 
 Unity of possession by means of lease : Stothart v. 
 Hilliard, 19 0. E. 542. Where a railway severs a 
 farm, and no crossing is provided by the company, 
 a right of way across the line may be acquired by 
 the owner of the farm by prescription. A right of 
 
CHAPTER 75. 243 
 
 way may be acquired although the dominant tene- 
 ment is not contiguous to the servient tenement: 
 Guthrie v. C. P. E., 27 A. E. 64. The owner of a 
 servient tenement who takes water by an artificial 
 stream from the dominant tenement created by the 
 owner of the latter for his own convenience to dis- 
 charge surplus water, acquires no right to insist on 
 the continuance of the flow. Length of time does 
 not alter the character of the easement nor change 
 the dominant into the servient tenement: Oliver v. 
 Leckie, 26 0. E. 28 ; see as to rights of way : Mykel 
 v. Doyle, 45 U. C. E. 65; McKay v. Bruce, 20 0. E. 
 79, note to sec. 2 (c) ; see also Knock v. Knock, 27 
 S. C. E. 664 ; Maughan v. Casei, 5 0. B. 518 ; Duncan 
 v. Bogers, 15 0. E. 699, 16 A. E. 3. Easement for 
 water pipes for conveying water: Canada Southern 
 v. Town of Niagara Falls, 22 0. E. 41. Party walls : 
 see James v. Clements, 11 0. E. 115. Water rights : 
 Ellis v. Clemens, 21 0. E. 227, 22 O. E. 216. Lateral 
 support: Backus v. Smith, 5 A. E. 341. Injury to 
 easement: 14 0. E. 594. No prescriptive right to 
 nuisance can be acquired: Eegina v. Brewster, 8 C. 
 P. 208. It is a plain common law right to have the 
 use of air in its natural unpolluted state, and an 
 acquiescence in its being polluted for any period 
 less than 20 years will not bar the right. To bar 
 the right within a shorter period there must be 
 such encouragement or other act on the part of the 
 complainant as to make it a fraud in him to object : 
 Eadenhurst v. Coate, 6 Gr. 139. Eight to air as an 
 easement: Cable v. Bryant, 1908, 1 Ch. 259. Pres- 
 criptive right to pollute stream against public pol- 
 icy: E. S. C, 1906, ch. 115, sec. 19; Hunter v. Eich- 
 ards, 26 0. L. E. 458, 4 0. W. N. 854, 28 0. L. E. 
 267. Where there has been long enjoyment of a 
 way in connection with which payment has been 
 made, the presumption is that the payment is rent 
 and the onus of establishing that the enjoyment 
 confers an easement, lies upon the person who claims 
 it as of right : Gardner v. Hodgson's Kingston Brew- 
 ery, 1903, A. C. 229. Where two adjoining tene- 
 ments are held under one common lease, and one 
 tenant has enjoyed uninterrupted access of light for 
 the period of prescription, he thereby acquires in 
 respect of the dominant tenement, an absolute right 
 of light over the servient tenement, not only as 
 
244 
 
 CHAPTER 75. 
 
 against the tenant, but as against the common land- 
 lord : see Fear v. Morgan, 1906, 2 Ch. 406, and cases 
 there considered, but since 1880 see sec. 37 infra. 
 
 The right to support of lands is independent 
 of prescription: Boyd v. Toronto, 23 O. L. E. 
 421. The right to lateral support of land is 'a 
 natural right: Dalton v. Angus, 6 App. Cas. 740, 
 and also the right to vertical support : Davis v. Tre- 
 harne, 6 App. Cas. 460; Butterknowle Colliery 
 v. Bishop Auckland, etc., Co., 1906, A. C. 305; How- 
 ley Park, etc., Co. v. L. & N. W. By., 1913, A. C. 
 11. There is no natural right to. support of land 
 weighted with buildings: Dalton v. Angus, 6 App. 
 Cas. 740, either from subjacent land or adjoining 
 buildings: Peyton v. London Corporation, 1829, 9 
 B. & C. 725; Southwark, etc., Co. v. Wandsworth, 
 1898, 2 Ch. 603. But a right in the form of an ease- 
 ment may be acquired to the continuance of the sup- 
 port afforded to houses by the adjoining land : Dal- 
 ton v. Angus {supra), or by adjoining house: Le- 
 maitre v. Davis, 19 Ch. D. 281; Waddington v. 
 Naylor, 60 L. T. Bep. 480, and these rights may be 
 acquired like other easements. Bights in nature of 
 easements arising from sale of lots on plan showing 
 open places called " private entrance " and 
 "park": Ihde v. Starr, 19 O. L. E. 471, 21 O. 
 L. B. 407. See as to prescription of easements: 
 McGrhie v. B., 7 Exch. C. B. 309. Common practice 
 of early settlers of permitting their neighbours to 
 cross their lands will not establish rights of way: 
 Duncan v. Eogers, 15 O. B. 699; Cameron's Sup. Ct. 
 Cases, at p. 362; Avery v. Fortune, 11 O. "W. B. 784. 
 See the provisions of the Land Titles Act as to ad- 
 verse possession in derogation of the title of a regis- 
 tered owner under that Act : B. S. O., 1914, ch. 126, 
 sec. 29. 
 
 35. What is required to establish prescriptive right: 
 Hunter v. Bichards, 18 O. W. E. 813, 2 O. W. N, 855, 
 22 O. W. E. 408, 3 O. W. N. 1432, 26 O. L. E. 458, 4 
 O. W. N. 854. See as to actions to recover ease- 
 ments: Mykel v. Doyle, 45 U. C. E. 65; McKay v. 
 Bruce, 20 O. B. 709; Bell v. Moulding, 23 A. E. 485; 
 and see notes to sec. 2 (c) ante. Easement by con- 
 tinuous user as of right: Leslie v. Pere Marquette, 
 
CHAPTER 75. 245 
 
 24 0. L. E. 206. Effect of tax sale on easement: 
 Essery v. Bell, 13 0. W. E. 395. Interruption ac- 
 quiesced in for a year before action brought is fatal 
 to action to establish easement in prior use for over 
 20 years : McCullough v. McCullough, 17 0. W. E. 
 639, 2 0. W. N. 331. Extinguishment of easement 
 by cessation of enjoyment: time: intention to re- 
 nounce right : Currah v. Eay, 13 0. W. E. 652. ' ' Con- 
 sent or agreement ": see Easton v. Isted, 1903, 1 
 Ch. 405. It is difficult to acquire a right of way by 
 prescription over railway lands. The right being 
 assumed to rest in the presumption of a grant* if an 
 actual grant would have been illegal and void, an 
 implied grant could not be valid. The rights of a 
 railway to grant lands is practically restricted to 
 cases where such grant is for the benefit of the rail- 
 way company, or is of lands not required for its 
 purposes: see E. S. 0. 1914, ch. 185, sees. 54 (c), 95; 
 G. T. E. v. Valliear, 7 0. L. E. 364; McMahon v. G. 
 T. E., 12 0. W. E. 324. A stranger may acquire 
 title by possession to land vertically over a 
 railway tunnel, even though not superfluous land, 
 subject to' the right of the railway to use the tunnel : 
 Midland Ey. v. Wright, 1901, 1 Ch. 738. Twenty 
 years user of undergrade crossing: prescription: 
 Leslie v. Pere Marquette, 24 0. L. E. 206, 25 O. L. 
 E. 326. Acquisition of right of farm crossing: 
 Guthrie v. C. P. B., 27 A. E. 64; and see notes to sec. 
 5 " Eailways." Acquirement of easement to pen back 
 water: Cardwell v. Breokenbridge, 4 0. W. N. 1295, 
 24 0. W. E. 569. Acquisition of easement: water pri- 
 vilege: Davey v. Foley Eeiger, 19 0. W. E 195, 2 0. 
 W. N. 1028, 19 0. W. E. 531, 2 0. W. N. 1284, 21 0. 
 W. E. 408, 3 0. W. N. 856. Essentials of prescrip- 
 tion to acquire use of lane : Plummer v. Davies, 20 
 O. W. E. 806, 3 0. W. N. 466. What is necessary to 
 acquire a private right of way by prescription : Mc- 
 Lachlin v. Schievert, 2 0. W. N. 649, 18 0. W. E. 
 457. What amounts to proof of right of way : see 
 Albertson v. Harpell, 11 0. W. E. 56. Prescriptive 
 acquisition of right of way : Sinclair v. Peters, 3 0. 
 W. N. 1045, 4 0. W. N. 338* 23 0. W. E. 441. Proof 
 required to establish right of way by prescription: 
 Salter v. Everson, 4 0. W. N. 1457, 24 0. W. E. 757. 
 A right of way in common with the owner of the 
 servient tenement may be acquired. What amounts 
 
246 CHAPTER 75. 
 
 to a substantial change in the ' ' way ' ' : see Cardno 
 v. Cooper, 12 0. W. E. 75. Unity of possession of 
 dominant and servient tenement by a yearly tenant 
 for 23 out of 40 years preceding the action in which 
 a private right of way is sought to be established is 
 fatal to such action : Damper v. Bassett, 1901, 2 Ch. 
 350. Where adjoining tenements are held under one 
 landlord one tenant might acquire by prescription an 
 easement of light (before 1880) as against the other 
 lessee and the landlord : Morgan v. Fear, 1907, A. C. 
 425. An easement created by severance of a tene- 
 ment is not within the Eegistry Act, and is not 
 affected by subsequent dealing with the land : Israel 
 v. Leith, 20 O. E. 361 (see E. S. O., 1914, ch. 124, sec. 
 2 (e), note). Easement: right of way: unity of owner- 
 ship: subsequent severance: revival of easement: 
 reservation: McClellan v. Powassan Lumber Co., 15 
 O. L. E. 67, 17 O. L. E. 32, 42 S. C. E. 249. Unity of 
 possession: right of way: Thompson v. Maxwell, 3 
 O. W. N. 995. Where two tenements are held under 
 one landlord, one tenant cannot acquire an ease- 
 ment as of right over land in the possession of the 
 other. The easements under the section can only 
 be acquired by prescription in respect of the fee: 
 Bright v. Walker, 3 L. J. Ex. 250 ; Kilgour v. Gaddes, 
 1904, 1 K. B. 457. Where title by possession is 
 acquired to an upper room in a building, as to aqui- 
 sition of right of support and access to stairway to 
 room : see Iredale v. London, 14 0. L. E. 17, 15 0. L. 
 E. 286, 40 S. C. E. 313. 
 
 36. In a case in which the right of way in question 
 was a mere track on the snow and not used at 
 other times of the year, notwithstanding this 
 customary use, the cessation of user for one year 
 immediately preceding the commencement was a 
 bar to the action : Knock v. Knock, 27 S. C. E. 664. 
 A right to the use of the water of a spring will not 
 necessarily give a right to have the water run 
 through pipes and an arrangement whereby pipes 
 were maintained was held to be not as of right, but 
 under a license from the owner of the spring, and 
 an interruption to the prescription: McKay v. Bruce, 
 20 0. E. 709. Where a person has enjoyed an ease- 
 ment by having windows overlooking the lands of 
 an adjoining proprietor for any period even one 
 
CHAPTER 75 247 
 
 day over nineteen years (before 5th March, 1880), 
 he cannot be deprived thereof unless he subsequently 
 submits to an interruption of such easement for a 
 period of 12 months : Flight v. Thomas, 11 A. & E. 
 688, 8 CI. & F. 231; Burnham v. Garvey, 27 Gr. 80. 
 Computation of the period during which access and 
 use of light was enjoyed : Hyman v. Van den Bligh, 
 1907, 2 Ch. 516; 1908, 1 Ch. 167. Interruption: Davy 
 v. Foley, 2 0. W. N. 1028; McCulloch v. McCulloch, 
 2 O. W. N. 331. 
 
 37. It is improper to couple " light " and " air " 
 together in every case. A right to maintain 
 openings for air, i.e., ventilation may be estab- 
 lished: Davids v. Newell, 8 O. W. R. 297. To 
 constitute an actionable obstruction to ancient lights 
 it is not enough that the light is less than before. 
 There must be a substantial privation of light enough 
 to render the occupation of the house uncomfort- 
 able according to the Ordinary notions of mankind, 
 or to prevent business being carried on beneficially 
 as before: Colls v. Home and Colonial Stores, 1904, 
 A. C. 179; Jolly v. Sine, 1905, 1 Ch. 480; 1907, A. 
 C. 1. The rules settled by the Court in case of 
 interference with ancient lights have no application 
 to a case where the plaintiff's rights are dependent 
 on a prior conveyance from the common owner of 
 his lot and the adjoining one, the plaintiff being en- 
 titled to receive such access of light through his 
 windows as they had at the time of severance of his 
 lot from the adjoining one. Simpson v. Eaton, 15 O. 
 L. R. 161. A bona fide sale by a mortgagee under 
 power of sale of a portion of the mortgaged prop- 
 erty, carries with it all- legal incidents, and with 
 others, a right to light over the unsold portion: 
 Born v. Turner, 1900, 2 Ch. 211. Light: derogation 
 from grant: see Carter v. Grassett, 14 A. R. 685; 
 Israel v. Leith, 20 O. R. 361; Ruetsch v. Spry, 9 
 O. "W. R. 696. What amounts to an obstruction: 
 Brummel v. Wharin, 12 Gr. 283. Time of prescrip- 
 tion : see Burnham v. Garvey, 27 Gr. 80, note to sec. 
 36. Effect of raising house so as to alter position of 
 windows : Hall v. Evans, 42 U. C. R. 190. An easement 
 of light attached to the dominant tenement let on 
 lease is not extinguished by the acquisition of the do- 
 minant tenement by the owner of the servient tene- 
 ment: Richardson v. Graham, 1908, 1 K. B. 39. A 
 
248 CHAPTER 75. 
 
 green-house is a " building," and where ancient 
 lights have been acquired therein, the right can be en- 
 forced: Clifford v. Holt, 1899, 1 Ch. 698. Ancient 
 lights: alteration of buildings: Colls v. Home and 
 Colonial Stores, 1904, A. C. 179; Andrews v. Waite, 
 1907, 2 Ch. 500; Ankerson v. Connelly, 1907, 1 Ch. 
 678; Scott v. Pape, 31 Ch. D. 554; Hyman v. Vanden 
 Bergh, 1907, 2 Ch. 516, 1908, 1 Ch. 167. Damages 
 for obstruction of ancient lights: Griffith v. Clay, 
 1912, 2 Ch. 291. 
 
 40. An annuity charged on land is " rent " (see sec. 
 
 2 (d) ) in respect of which, apart from the question 
 of disability, the right of action would have been 
 barred in 10 years from the last payment. Sec- 
 tions 40 and 41, extended the. time for 5 years from 
 the removal of the disability, or for 20 years, and 
 the action being thereby brought in time, ,6 years 
 arrears could be recovered: Trusts and Guarantee 
 v. Trusts Corporation, 2 O. L. R. 97. The fact 
 that heirs are resident out of Ontario, entitles them 
 to no longer time to bring their action than 
 if they were residents: 25 Vict. ch. 20; Hartley 
 v. Maycock, 28 O. E. 508. Redemption Action: 
 infant heirs: see Faulds v. Harper, 2 O. R. 405, 9 
 A. R. 537, 11 S. C. R. 639. See also as to applica- 
 bility of these section to actions of redemption: 
 Patterson v. Dart, 10 O. W. R. 79, 11 O. W. R. 241, 
 note to see. 5 " mortgagor and mortgagee," and 
 note to sec. 20, and see also 24 O. L< R. 609. Married 
 woman: disability: husband suing in right of 
 wife: see Hounsell v. Dunning, 1902, 1 Ch. 512. 
 
 41. "Where patentee was dispossessed, her heirs were 
 
 barred in 20 years, notwithstanding outstanding 
 tenancy by the curtesy: see Hicks v. Williams, 15 
 O. R. 228. Where a person enters upon the lands 
 of infants, not being father or guardian, or in 
 fiduciary relation to owner, and remains in posses- 
 sion for the statutable period, the rights of the in- 
 fants will be barred: Re Taylor, 8 P. R. 207, 28 
 Gr. 640. Where the statute begins to run, it will 
 continue, notwithstanding the death of the owner 
 and the succession to the lands of an infant heir: 
 Wigle v. Stewart, 28 U. C. R. 427: see Dig. Ont. 
 Case Law, col. 3987. See Hounsell v. Dunning, 
 1902, 1 Ch. 512, note to sec. 40, supra. 
 
CHAPTER 75. 249 
 
 44. Effect of section considered in case of lease for 999 
 years: Palmer v. Jones, 1 0. L. E. 382. 
 
 PART H. 
 
 Tbusts and Trustees. 
 
 47. — (1) What amounts to a trust: see Be Eowe Jacobs 
 v. Hind, 58 L. J. Ch. 703; James v. Holmes, 4 DeG. 
 F. & J. 470; Soar v. Ashwell, 1893, 2 Q. B. 390; 
 Cunningham v. Foot, 3 App. Cas. 984; Price v. 
 Phillips, 13 E. 191; Ee Watson, 7 Jur. 1001; Pooley 
 v. Budd, 14 Beav. 34 ; and see Dig. Eng. Case Law 
 XIV. 328. 
 
 47. — (2) Action for payment away in breach of trust 
 by a trustee of moneys which he should have 
 held to secure an equity is barred in 6 
 years: How v. Earl of Winterton, 1896, 2 Ch. 
 626. Form of order in action for accounts, where 
 trustees are protected from rendering accounts 
 for more than six years: see Ee Davies: Ellis 
 v.~ Eoberts, 1898, 2 Ch. 142. Where a principal 
 has remitted moneys to an agent for the pur- 
 pose of being invested in the purchase of land, an 
 express trust is created, and the Statute of Limita- 
 tions will be no bar to an action brought for an ac- 
 count of the balance of the money not applied for 
 the particular purpose: North American Land and 
 Timber Co. v. Watkins, 1904, 2 Ch. 233. Action 
 of tenant for life against trustees in respect of 
 innocent breaeh of trust through defalcation of trus- 
 tees ' solicitor : Ee Fountaine, Fountaine v. Amherst, 
 1909, 2 Ch. 382. Payment of interest by trustees to 
 a tenant for life within six years is not an acknow- 
 ledgment amounting to a promise to pay previous 
 interest or uninvested balances: Ee Fountaine, 
 Fountaine v. Amherst, 1909, 2 Ch. 382. Where hus- 
 band seized some separate property of his wife and 
 retained it, his executors could not plead the Statute 
 of Limitations : Wassell v. Leggatt, 1896, 1 Ch. 554. 
 A trifling balance in the hands of the trustee will 
 not prevent the statutory limitation from com- 
 mencing to run: Stephens v. Beaty, 27 0. E. 75. 
 Judgment for administration by some residuary as 
 a starting point to bar other residuary legatees: 
 
250 CHAPTER 75. 
 
 see Boys' Home v. Lewis, 27 A. B. 242. Where an 
 executor paid away the residue of an estate to the 
 detriment of an outstanding guarantee, a claim 
 founded on a devastavit was held barred, when 
 brought more than six years after the handing over 
 of the assets to the residuary legatee: Lacons v. 
 Warmoll, 1907, 2 K. B. 350. Eight of trustees to 
 plead the Statute of Limitations, where estate dis- 
 tributed more than 6 years before action, without 
 provision being made to meet future liabilities under 
 a lease, except an indemnity from beneficiaries. The 
 action being for " administration," and not to 
 recover money, statute held not to apply : Be Blow : 
 Bartholemews Hospital v. Cambden, 1913, 1 Ch. 358, 
 but see Lacons v. Warmoll, 1907, 2 K. B. 350. Ex- 
 ecutors relying on the statement of the testator's 
 solicitor, that funds were retained to pay an annuity, 
 distributed the estate. Subsequently it was found 
 that before the testator's death, the solicitor had 
 misappropriated the money given him to invest, it 
 was held that the executors could avail themselves 
 of the Limitation Act, and that no right of action 
 was kept alive against them by payments made by 
 the solicitor, ostensibly of interest received from 
 the fund: Clark v. Bellamy, 30 O. E. 532, 27 A. B. 
 435. Where a sale is effected under a mortgage 
 made pursuant to the Short Forms Act, and a sur- 
 plus remains in the hands of the mortgagee, the 
 mortgagee becomes an express trustee, and the 
 mortgagor is entitled to an account notwithstand- 
 ing the expiration of six years from the time of 
 sale : Briggs v. The Freehold Loan, 26 A. B. 232, 31 
 S. C. B. 136. Action to recover personal estate 
 from representative under Imp. Act, 23-4 Vict. ch. 
 38, sec. 13 (E. S. O. 1897, ch. 72, sec. 9): see In re 
 Pardee McLaughlin v. Penny, 1906, 1 Ch. 265, 2 Ch. 
 340. Position where person to be sued is co-ex- 
 ecutor, and running of statute in that case : In re 
 Pardoe (supra). Persons having a reversionary in- 
 terest in a trust fund may bring an action to com- 
 pel the trustee to make good, money lost by his 
 negligence, and the limitation of this section does 
 not run against them from the time of the loss, but 
 only from the time their reversionary interest be- 
 comes an interest in possession : Stewart v. Snyder, 
 30 O. E. 10, 27 A. B. 423; see Bicknell & Seager D. C. 
 
CHAPTER 75. 251 
 
 Act p. 242. Where executors were appointed to 
 carry out alternative provisions of a will, which 
 really never took effect, the persons named as ex- 
 ecutors having obtained probate became -trustees 
 for the persons entitled in intestacy and payments 
 made under the alternative provisions became 
 breaches of trust. This section was held a bar as to 
 any breaches occurring more than six years before 
 action brought, and moreover the trustees were en- 
 titled, in view of the doubtful construction of the will 
 to protection from all liability under R. S. 0. 
 1914, ch. 121, sec. 37; Hennirlg v. MacLean, 2 
 0. L. R. 169, 4 0. L. R. 666. One executor hav- 
 ing been guilty of misappropriation, action against 
 estate of co-executor by a new trustee appointed 
 was held barred after six years: Gardner v. Perry, 
 6 0. L. R. 269. Account: Re Page, Jones v. 
 Morgan, 1893, 1 Ch. 304; Re Bowden, 45 Ch. 
 D. 444; How v. Winterton, 1896, 2 Ch. 626. Con- 
 version : Re Gurney, 1893, 1 Ch. 590. Directors of a 
 company: Re Lands Allotment Co., 1894, 1 Ch. 616. 
 Payment of claims barred by the Statute of Limita- 
 tions : claim of executor : Ernes v. Ernes, 11 Gr. 325 ; 
 Crooks v. Crooks, 4 Gr. 615. Claim of executor 
 when disputed by creditor: Re Ross, 29 Gr. 385. 
 Administration order giving statute new day: Re 
 Cannon, Oates v. Cannon, 13 0. R. 70. Claim of 
 wife: Re Starr, 2 0. L. R. 762. Cestui que trust: 
 Stewart v. Snider, 30 0. R. 110. Right of executors 
 to pay statute-barred debts: Norton v. Frecker, 
 1 Atk. 524. Construction of section: Date from 
 which' statute runs: see Nicholls, Hall v. Wild- 
 man, 4 0. W. N. 930, 1511, 24 0. W. R. 216, 29 0. 
 L. R. 206; Re Somerset, Somerset v. Poulet, 1894, 
 1 Ch. 321; Thome v. Heard, 1895, A. C. 495; Re 
 Bowden, Andrew v. Cooper, 45 Ch. D. 444; Moore v. 
 Knight, 1891, 1 Ch. 547 ; Re Swain, Swain v. B ringer- 
 nan, 1891, 3 Ch. 233; Re Timmins, Nixon v. Smith, 
 1902, 1 Ch. 176. See H. & L. notes pp. 62-3 ; see sec. 50 
 infra and notes. 
 
 48. Where money was advanced by a wife to her hus- 
 band to purchase land, it was held that if it was an 
 express trust,, it was at an end when the land was 
 conveyed to him; if it was a loan her. claim was 
 barred by the statute, for the statute is applied in 
 such a claim by a wife against her husband, just as 
 
252 CHAPTER 75. 
 
 if she were not his wife, and as her husband's ex- 
 ecutrix, she had lost her power of retainer, if any, 
 by not registering a caution, as required by the 
 Devolution of Estates Act: Ke Starr, 2 0. L. E. 762. 
 Statute no bar in action by administrator of es- 
 cheated estate against deceased's trustee: Simpson 
 v. Corbett, 5 0. R. 377, 10 A R. 32. Money handed 
 to another for investment: relation of trustee and 
 cestui que trust: statute no bar: Coyne v. Broddy, 
 15 A. R. 159. Conduct of executors whereby they 
 became express trustees, and money in their hands, 
 which one had applied to his own uses was recover- 
 able with interest: Cameron v. Campbell, 7 A. R. 
 361; see also Wall v. Stanwick, 34 Ch. D. 763; In 
 re Hobbs, 36 Ch. D. 553 ; Lyell v. Kennedy, 14 App. 
 Cas. 437. In Clarke v. Macdonell, 20 O. R. 564, it 
 was held that while the father could not obtain a 
 possessory title against his infant children, he could 
 do so after they came of age, when his possession as 
 guardian changed to that of a stranger, but this 
 case and Hickey v. Stover, 11 O. R. 106, were not 
 followed in Kent v. Kent, 20 O. R. 445, 19 A. R. 
 352. But a person entering on lands of infants, not 
 being their father or guardian, or standing in a 
 fiduciary relation, can obtain a possessory title: In 
 re Taylor, 28 Gr. 640: see Dig. Ont. Case Law, 
 col. 3947, et seq. A constructive trustee is in 
 a different position from an express trustee, and 
 can acquire title: Ferguson v. Ferguson, 28 Gr. 
 380; see also Hickey v. Stover, 11 O. R. 106. 
 Possession adverse to trustees of marriage set- 
 tlement: Murchison v. Murchison, 17 0. R. 254; 
 see Dig. Ont. Case Law, col. 3988, et seq. Where 
 one of two executors and residuary legatees got 
 in portions of the residuary estate, in an action 
 for account, the six years bar was held to apply : Re 
 Patrick, 10 P. R. 4; see also Cook v. Grant, 32 C. P. 
 511. Provisions of the statute as regards equitable 
 estates considered. The owner of an equitable 
 estate is still bound to proceed against a trespasser 
 in the name of his trustee: Per Burton, J. A. : Adam- 
 son v. Adamson, 7 A. R. 592, 12 S. C. R. 563. A 
 man married in 1854, conveyed in 1870 certain lands 
 to his wife, and they continued to occupy them. She 
 died in 1872, leaving the lands to two of her infant 
 children by this husband. The husband remained in 
 possession until 1890. Held that the presumption 
 
CHAPTER 75. 253 
 
 was that the husband was in possession of the lands 
 on behalf of his wife and after her death he re- 
 mained on behalf of the children as their natural 
 guardian. This being so the statute never began to 
 run: Kent v. Kent, 20 0. E. 445, 19 A. K. 352. As 
 to legacies being barred by the Statute of Limita- 
 tions, an executor is not, as such, an express trustee : 
 Ee Mulholland and Morris, 1 0. W. N. 214. As be- 
 tween executors of an estate and creditors or lega- 
 tees, no express trust, speaking generally, exists: 
 McKinley v. Graham, 3 0. W. N. 256, 20 0. W. E. 
 441. In an action by an incorporated company 
 against its managing director for the return of 
 moneys retained by him on various pretexts, the 
 Statute of Limitations is not a defence on account 
 of the fiduciary relationship of the parties: Sas- 
 katchewan Land Co. v. Moore, 5 0. W. N. 183, 25 
 O. W. B. 125. The mere fact of the existence of a 
 fiduciary relation does not prevent the defence of 
 the statute : Henry v. Hammond, 1913, 2 K. B. 515. 
 Money charged on land by express trust : Williams 
 v. Williams, 1900, 1 Ch. 152. Mortgagee who has 
 sold under power of sale and has balance in hand is 
 express trustee : Briggs v. Freehold Loan, 26 A. E. 
 232, 31 S. C. E. 136 (see sec. 47 (2) note). If a 
 person commences to receive rent as agent for an- 
 other and afterwards continues to receive such rents 
 without paying them over he must be presumed to 
 receive them as agent, and as to the accumulated 
 profits to have made himself a trustee : Lyell v. Ken- 
 nedy, 14 App. Cas. 437; Smith v. Bennett, 30 L. T. 
 100. Protection of purchaser: Ee Snell v. Dyment, 
 4 0. W. N. 759, 24 0. W. E. 64. Executor's right 
 of retainer of statute barred debt : Crooks v. Crooks, 
 4 Gr. 615; Ernes v. Ernes, 11 Gr. 325. Waiver by 
 executor of right of retainer of statute-barred debt : 
 Trevor v. Hutchins, 1896, 1 Ch. 844. Eight of ex- 
 ecutor to pay statute-barred debt: Norton v. 
 Frecker, 1 Atk. 524. Effect of Devolution of 
 Estates Act and non-registration of caution on 
 right of retainer: Ee Starr, 2 O. L. E. 762; see H. 
 & L. notes, pp. 62, 63; and see notes to sec. 49 (lg) 
 post. 
 
254 CHAPTER 75. 
 
 PART III. 
 
 Pebsonal Actions. 
 
 49. Pleading the Statute of Limitations : see Con. Rule 
 271, Holmested and Langton note, p. 480 : (1913 Rule 
 143). Appearance not the proper place to set up 
 the statute : see Con. Rule 176, Holmested and Lang- 
 ton, p, 320 (1913 Rule 148). Execution on judg- 
 ment after six years : see Con. Rule 864, Holmested 
 and Langton note, p. 1121; (1913 Rule 566) as to 
 period of limitation of judgment. A defendant 
 pleading the Statute of Limitations must set out in 
 his statement of defence or give particulars shewing 
 the section or sections on which he relies : Dodge v. 
 Smith, 1 0. L. R. 47 ; see also Bicknell and Kapelle, 
 Prac. Stat., p. 297. Where writ issued just in time 
 to save the bar of the statute and by defect issued 
 in name of former Sovereign : Bank of Hamilton v. 
 Baldwin, 28 0. L. R. 175. Where the last day ex- 
 pires on Sunday, the plaintiff cannot begin his action 
 on the following Monday. The Rules of Court have 
 no bearing on the running of the Statute of Limita- 
 • tions: Gelmini v. Moriggia, 1913, 2 K. B. 549; but 
 see Interpretation Act, R. S. 0. 1914, ch. 1, sec. 28(h). 
 The statute applies only as between debtor and 
 creditor. Where a third party creates a trust, those 
 within the trust take, despite the statute: Re Kerr, 
 
 2 0. W. N 1342, 19 0. W. R. 642. Administration: 
 Statute a bar in absence of fraud: see Hughes v. 
 Hughes, 6 A. R. 373. 
 
 49. — (lb) What is sufficient to change simple contract 
 debt into specialty: evidence of payment and ac- 
 knowledgment of debt: Bank of Montreal v. Ling- 
 ham, 5 0. L. R. 519, 7 0. L. R. 164. A judgment of 
 a Court of record remains in force 20 years : Mason 
 v. Johnston, 20 A. R. 412; Butler v. McMicken, 32 0. 
 R. 422: Chard v. Rae, 18 0. R. 371; Boice v. O'Loane, 
 
 3 A. R. 167; McCullough v. Sykes, 11 P. R. 337; see 
 notes to sec. 24, ante. The analogy of the statute ap- 
 plies to applications for leave to issue execution: 
 Price v. Wade, 14 P. R. 351. Balancing of accounts 
 and running of statute : Stewart v. Grage, 13 0. R. 458. 
 A foreign judgment not a specialty : North v. Fisher, 
 6 0. R. 206. Effect of covenant implied under Land 
 
CHAPTER 75. 255 
 
 Titles Act charge : Beaty v. Bailey, 26 0. L. B. 145. 
 In case where rent charge barred after statutory 
 period, it was held that the remedy on the covenant 
 was also gone : Shaw v. Crompton, 1910, 2 K. B. 370 ; 
 Sutton v. Sutton, 22 Ch. D. 511 ; but see Allen v. 
 McTavish, 2 A. R. 278; Macdonald v. Macdonald, 
 11 0. B. 187 ; McDonald v. Elliott, 12 0. B. 98. Effect 
 of receivership order on expiry of judgment: Kin- 
 near v. Clyne, 13 0. W. B. 776, 1138, 18 0. L. B. 457. 
 
 49. — (lg) The statute is not a bar to an action for crim- 
 inal conversation where adulterous intercourse be- 
 tween defendant and the plaintiff's wife has con- 
 tinued to a period within 6 years from the time 
 action is brought : Bailey v. King, 27 A. B. 703, 31 
 S. C. B. 338. Payment by trustee to wrong person 
 — money demand : < Be Bobinson, 1911, 1 Ch. 502. 
 Effect of scheduling statute-barred, debt in appli- 
 cation for probate: Be Beavan, 1912, 1 Ch. 196. 
 Limitation where there is a mixed fund of person- 
 alty and realty for payment of debts: Be Balls, 
 Trewby v. Balls, 1909, 1 Ch. 791. If a cause of action 
 accrues after the death of a creditor, the statute only 
 commences to run on the appointment of an executor 
 or administrator: Grant v. McDonald, 8 Gr. 468. 
 Action on running account against executors: Cor- 
 roboration: see Wilson v. Howe, 5 0. L. B. 323. 
 What amounts to conversion of simple contract debt 
 into specialty debt: see Bank of Montreal v. Ling- 
 ham, 5 0. L. E. 519, 7 0. L. B. 164. Limitations in 
 partnership matters: see Storm v. Cumberland, 18 Gr. 
 245; Cotton v. Mitchell, 3 0- E. 421. Where the estate 
 of a deceased person is insolvent, the provisions of 
 the Act respecting trustees displace any right on the 
 part of the executor to retain in full, and as against 
 an executor claiming as creditor any other creditor 
 may set up the Statute of Limitations : Be Boss, 29 
 Gr. 385; see Be Samson; Bobbins v. Alexander, 1906, 
 2 Ch. 584, note to E. S. 0. 1914, ch. 121, sec. 53. (Ex- 
 ecutor's right of retainer of statute-barred debt: see 
 sec. 48, note). A married woman was held still en- 
 titled, notwithstanding B. S. 0. 1877, ch. 125, sec. 
 20, to bring an action in respect of her separate 
 property within 6 years after being discovert: Car- 
 roll v. Fitzgerald, 5 A. B. 322. An action for dam- 
 ages for injuries received by collision with a motor 
 vehicle is not an action within sub-sec. (h), but within 
 
256 
 
 CHAPTER 75. 
 
 sub-sec. (g) : Maitland v. Mackenzie & Toronto Ey., 
 23 0. W. E. 80, 4 0. W. N. 109. 
 
 49.— (lh) Action by shareholder against directors and 
 promoters of a company under the Directors Liabil- 
 ity Sections of the Company Act is not subject to two 
 years' limitation: Thomson v. Lord Clanmorris, 
 1900, 1 Ch. 718. This does not include the period for 
 bringing an action against a municipal clerk for 
 omitting names from the collector's roll: Peterboro' 
 v. Edwards, 31 C. P. 231. 
 
 49. — (1;) Claim for assault subject of a former action: 
 Jordan v. Jordan, 4 O. W.'N. 219, 24 0. W. E. 525. 
 
 49. — (Ik) Mortgage made before 1st July, 1894: Beaty 
 v. Bailey, 3 0. W. N. 990, 21 0. W. E. 848, 26 0. L. E. 
 145. Effect of acceleration clause in mortgage on 
 Statute of Limitations: McFadden v. Brampton, 6 
 0. L. E. 277, 8 0. L. E. 610 ; Cameron v. Smith, 4 
 0. W. N. 1459, 24 O. W. E. 767. Extinguishment of 
 mortgagee's remedy: Be Hazeldine, 1908, 1 Ch. 34. 
 " Contained " in a mortgage. Does this extend to 
 an implied covenant?: see E. S. O. 1914, ch. 112, sec. 
 6; Beatty v. Bailey, 26 0. L. E. 145. Six years' 
 arrears only chargeable as against subsequent in- 
 cumbrancer coming in to redeem: McMicking v. 
 Gibbons, 24 A. E. 586; Cogswell v. Grant, 21 Occ. N. 
 351; see Holmested and Langton, pp. 880-882; supra 
 sec. 18, notes. 
 
 50. The time within which a client must assert his right 
 as against his solicitor to obtain, or, in case of error 
 to open an account, is not limited to six years or to 
 any other definite period: Cheese v. Keen, 1908, 
 
 1 Ch. 245. A dividend paid by an assignee for the 
 benefit of creditors is not such a part payment as 
 will take a debt otherwise barred out of the statute 
 21 Jac. 1 ch. 16; Birkett v. Bisonette, 15 0. L. E. 93. 
 The Statute of Limitations is no bar to an action by 
 a principal against his agent in respect of moneys 
 remitted to the agent for an express purpose : North 
 American L. & T. Co. v. Watkins, 1904, 2 Ch. 233. 
 Onus of proof on party who sets up part payment on 
 partially statute-barred account: Eoss v. Flanagan, 
 
 2 0. W. N. 1267, 19 0. W. E. 499. Cross accounts : 
 items more than 6 years old : Halliwell v. Zwick, 13 
 
CHAPTER 75. 257 
 
 0. W. R. 1. Running account: payments: Scott v. 
 Allen, 3 0. W. N. 1484. Partnership: account con- 
 taining statute-barred items: payment on account: 
 appropriation by creditor: Re Friend, 1897, 2 Ch. 
 421. Trustees ' accounts : see Ellis- v. Roberts, 1898, 
 2 Ch. 142; and see sees. 47-48, ante. Partnership 
 accounts : history of former exception in the Statute 
 of Limitations (21 Jac. 1, ch. 16, sec. 8) as to part- 
 ners: Hamilton Brass Mfg. Co. v. Barr Cash and 
 Package Carrier, 38 S. C. R. 216. Executors' ac- 
 counting : produce and rents and profits ; application 
 of six years bar: see Re Kirkpatrick, 3 O. R. 361, 
 10 P. R. 4; see also Ross. v. Robertson, 7 0. L. R. 
 413; Wilson v. Home, 5 O. L. R. 323; Holmested and 
 Langton, notes, p. 881. 
 
 51. Infancy does not prevent the running of the statute 
 R. S. 0. 1914> ch. 161, sec. 39, in favour of a medical 
 practitioner in an action for malpractice : Miller v. 
 Ryerson, 22 0. R. 369. An infant has 6 years after 
 attaining his majority to bring an action for work 
 and labour performed by him during his infancy; 
 R. S. 0. 1877, ch, 135, sec. 5 (R. S. 0. 1914, ch. 147, 
 sec. 5) in no way interferes with the right: Taylor 
 v. Parnell, 43 IT. C. R. 239; see Con. Rule 944; H. 
 & L. notes, p. 1190; 1913 Rule 608. 
 
 52. To make the statute run in the defendant's favour 
 his return must be open and of sufficiently long dura- 
 ation to have enabled the creditor, if he had known 
 of it, to bring an action, though the creditor's knowl- 
 edge is not essential : Boulton v. Langmuir, 24 A. R. 
 618. A foreign judgment being a mere contract debt, 
 it is, under ordinary circumstances, barred in 6 
 years, but the plaintiff's remedy may be saved under 
 this section: Stewart v. Gruibord, 6 0. L. R. 262; 
 see also Bugbee v. Clergue, 27 A. R. 96. The power 
 given by Con. Rule 162 of service out of the juris- 
 diction does not affect the provisions of this section : 
 see H. & L. notes, p. 299; see 1913 Rule 25. See Moor 
 v. Balch, 1 0. W. R. 824 ; see Digest Ont. Case Law, 
 vol. ii., col 4020. ' 
 
 54. Effect of written acknowledgment or part payment. 
 What amounts to acknowledgment : Dig. Eng. Case 
 Law, IX., col. 89. Conditional acknowledgment: 
 
 S.A.— 17 
 
258 CHAPTER 75. 
 
 ib., col. 109. Signature of acknowledgment, ib., col. 
 112. Proof of, ib., col. 113. By and to whom made, 
 ib., col. 116. Payment on account. What amounts 
 to: ib., col. 125; and see sec. 55 (2) infra. By and 
 to agents, etc.: ib., col. 131. After action: ib., col. 
 139. Proof of : ib., col. 139. Agreements to waive 
 the statute: ib., col. 143. A debt barred by the stat- 
 ute and as to which the remedy is gone, is still a good 
 consideration for a written promise to pay: La 
 Touche v. La Touche, 3 H. & C. 577-, Flight v. Eeed, 
 1 H. & C. 703; Wright v. Wright, 6 P. E. 295; Ken- 
 zie v. Harper, 11 0. W. E. 408, 15 0. L. E. 583. Un- 
 conditional admission of debt with expression of 
 present inability to pay: Cooper v. Kendall, 1909, 
 1 K. B. 405. Acknowledgment: taking notes: prin- 
 cipal and interest before and after maturity: In re 
 Williams, 7 O. L. E. 156, 3 O. W. E. 251. Effect on 
 period of limitation of giving cheque prior thereto 
 and payment thereof within same : Marreco v. Eich- 
 ardson, 1908, 2 Ch. 584. See Ee Friend; Friend v. 
 Friend, 1897, 2 Ch. 421. 
 
 55. In order to take a debt out of the statute there must 
 be either (a) an acknowledgment of the debt from 
 which a promise to pay may be implied; (6) an un- 
 conditional promise to pay the debt : Phillips v. Phil- 
 lips, 1844, 3 Hare 281; or (c) a conditional promise" 
 to pay the debt and evidence that the condition has 
 been fulfilled : Tanner v. Smart, 6 Barn. & Cress. 603. 
 Since the case of Tanner v. Smart, 6 Barn. & Cress. 
 603, there has been a large number of cases, for 
 short and well arranged summaries of which see 
 Darby ^and Bosanquet's Statutes vof Limitations, 
 2nd ed., p. 69; Chitty's Statutes, 5th ed. Limitation, 
 p. 13 et seq. ; Bicknell & Seager D. C. Act, p. 234 et 
 seq.: see also Dig. Ont. Case Law, col. 4029-4034. 
 
 The following cases on acknowledgments given by or 
 to executors: An acknowledgment of a debt not be- 
 ing a debt by specialty must be made to the creditor 
 or his agent. A general acknowledgment of liabil-. 
 ity or an acknowledgment to a third person is not 
 sufficient : Goodman v. Boyes, 17 A. E. 528 ; King v. 
 Eogers, 31 O. E. 573; Beard v. Ketchum, 5 U. C. E. 
 114. An acknowledgment made and signed as testi- 
 mony in an administration action has been held 
 
CHAPTER 75. 259 
 
 sufficient (see B. S. 0. 72, sec. 9) : Eoblin v. McMa- 
 hon, 18 0. E. 219. The executor of a will of one of the 
 joint makers of a promissory note proved the will 
 after the debt had become barred. The executor 
 gave a power of attorney (not knowing of the note) 
 to the other joint maker "to do all things legally 
 requisite for the carrying out of the provisions of 
 the will." A letter written by the surviving maker 
 after the execution of this power was held not to 
 be an acknowledgment within this section. There 
 was no trust to pay debts not any legal obligation 
 on the executor to pay statute-barred debts, and the 
 surviving maker was not an agent " duly author- 
 ized " to exercise the discretion which an executor 
 has to pay such debts : King v. Eogers, 31 0. E. 573. 
 A letter from the executor to the holder of the note 
 to the effect that the holder should look to the sur- 
 viving maker was held not such a recognition as 
 amounted to a promise to pay: King v. Eogers, 31 
 0. E. 573. An acknowledgment of indebtedness writ- 
 ten after the creditor's decease by the defendant to 
 the person who is entitled to take out letters of admin- 
 istration to the creditor's estate and who does after- 
 wards take them out is a sufficient acknowledgment : 
 Eobertson v. Burrill, 22 A. E. 356 ; but see Beard v. 
 Ketchum, 5 U. C. E. 114. An admission by an exec- 
 utor, coupled with a statement that the debt could 
 not be paid for want of assets, is not sufficient: 
 Lampman v. Davis, 1 U. C. E. 179. There must be 
 an express promise by the executor; an admission 
 of the debt due is not sufficient: Watkins v. Wash- 
 burn, 2 U. C. E. 291. An executor de son tort cannot 
 by giving a confession of judgment, making pay- 
 ments or other acts, give a new start to the statute : 
 Grant v. McDonald, 8 Gr. 468; Boatwright v. Boat- 
 wright, L. E. 17 Eq. 71; Ellis v. Ellis, 1905, 1 Ch. 
 613. 
 
 Part payment by the tenant for life of the simple con- 
 tract debt of his testator and of interest thereon is 
 sufficient to keep the debt alive, not only as against 
 the devisees in remainder after the life estate, but 
 also as against devisees of other real estate of the 
 testator: Ee Chant, Bird v. Godfrey, 1905, 2 Ch. 225. 
 A promise to pay such balance of an original debt 
 as may be found due on taking an account is a 
 sufficient promise to take a case out of the Statute 
 
260 CHAPTER 75. 
 
 of Limitations: Langrish v. Watts, 1903, 1 K. B. 636 
 An agent who has authority to pay a debt of his 
 principal has authority to promise to pay it. From 
 payment on account by an agent a promise to pay 
 the balance will be inferred: Ee Hale; Lilley v. 
 Foad, 1899, 2 Ch. 107. Claim for payment for solic- 
 itor's services: acknowledgment: Segsworth v. De 
 Cew, 10 0. W. E. 575. A dividend paid by an assignee 
 under the usual voluntary assignment for bene- 
 fit of creditors is not such a part payment as will 
 take a debt otherwise barred out of the Statute of 
 Limitations: Birkett v. Bisonette, 15 O. L. E. 93. 
 Effect of payment by one joint and several maker 
 of a promissory note as against the other: Paxton 
 v. Smith, 18 O. E. 178. It is sufficient if the pay- 
 ment be made in respect of a larger debt, which is 
 the one sued on : Boultbee v. Burke, 9 O. E. 80. Appli- 
 cation for payment : St. John v. Eykert, 26 Gr. 249, 
 4 A. E. 213, 10 S. C. E. 278. Payment on note made 
 by indorser : Slater v. Musgrave, 29 Gr. 392. Appli- 
 cation of unappropriated payments : 14 O. E. 188. 
 Acknowledgment by person holding power of attor- 
 ney from executor: King v. Eogers, 1 O. L. E. 69. 
 See also on this section: Halliwell v. Zwick, 13 0. 
 W. E. 1. See Imperial Act, 9 Geo. IV. eh. 14, sec. 1, 
 19 & 20 Vic. ch. 97, sec. 13. 
 
 56. Before the section : see Sifton v. McCabe, 6 U. C. E. 
 394. See Imperial Act, 19 & 20 Vic. ch. 97, sec. 14. 
 After the death of one maker of a joint and several 
 promissory note signed by two, the deceased being a 
 surety only, a payment on it out of his own moneys 
 and on his own account was made by the surviving 
 maker, who was the sole executor of his deceased 
 co-maker: held not a sufficient acknowledgment as 
 regarded the estate of the latter: Paxton v. Smith, 
 18 0. E. 178 ; see also King v. Eogers, 31 0. E. 573 
 ante. The provision as to executors being charge- 
 able on an acknowledgment made by one, means 
 " personally chargeable:" Ee Hollingshead, 37 Ch. 
 D. 651 ; Ee Macdonald, 2 Ch. 181. An acknowledg- 
 ment or part payment by a partner of a partner- 
 ship debt during the partnership takes the debt out 
 on the statute : Goodwin v. Parton, 41 L. T. 91, 42 
 L. T. 568; Watson v. Woodman, L. E. 20 Eq. 730. 
 English rule as to payment and acknowledgment by 
 one of co-obligors : Eead v. Price, 1909, 1 K. B. 577, 
 2 K. B. 724. 
 
CHAPTER 76. 261 
 
 58. Imperial Act, 9 Geo. IV. ch. 14, sec. 3 (Lord Tender- 
 ton's Act). Such an indorsement was formerly- 
 admissible as evidence of payment as a statement 
 made by a deceased person against bis interest: 
 Briggs v. Wilson, D. M. & G. 12. Such an entry is 
 still admissible, but not after the debt is barred: 
 Newbound v. Smith, 29 Oh. D. 882. " Operation of 
 this Act," that is in effect, the " Act of King 
 James." 
 
 59. Of. English Act, 9 Geo. IV. ch. 14, sec. 4: Baker v. 
 
 Courage, 1910, 1 K. B. 56. 
 
 CHAPTER 76. 
 
 The Evidence Act. 
 
 Eefer to Taylor on Evidence; Boscoe's Nisi Prius 
 Evidence; Odger's Powell on Evidence (Can. notes) ; 
 The Annual Practice ; Bicknell and Kappele, Practi- 
 cal Statutes, pp. 93-98. 
 
 6. Review of changes in law o£ evidence removing dis- 
 abilities and making persons* Whether parties or 
 notj both competent and compellable witnesses: R. 
 v. Fox, 18 P. R. 343 at p. 350. This section has no 
 reference to an action for criminal conversation 
 which is within section 8 (q.v.) : Fleury v. Campbell, 
 18 P. R. 110. Constitutionality: R. v. Bittle, 21 
 0. R. 605. A plaintiff or defendant called as a wit- 
 ness is not entitled to any other notice or to be sub- 
 poenaed differently from any other witness : Nash v. 
 Bush, 5 C. P. 300. When a party to a suit calls the 
 opposite party he is not necessarily concluded by 
 his answers : Mair V. Cully, 10 U. C. R. 321. As to 
 evidence in Master's office: see Con. Rule 669; H. & 
 L. notes, p. 902; 1913 Rule 411. 
 
 7. — (1) Review of changes in law of evidence removing 
 disabilities: Reg. v. Fox, 18 P. R. 343, at p, 350. 
 In an action for a penalty under the Alien Labour 
 Act it was held that the defendant could be exam- 
 ined for discovery before trial under the correspond- 
 ing Dominion legislation (61 Vic.'ch. 53) : R. v. Fox, 
 18 P. R. 343. In an action for libel the defendant is 
 
262 CHAPTER 76. 
 
 not excused from answering on the ground that the 
 answers might tend to criminate him, and therefore, 
 under Con. Rule 439 (1250), 1913 Rule 327, he is 
 in the same position on examination for discovery. 
 If he objects to answer on that ground his answer 
 is within the protection of the section : Chambers v. 
 Jaffray, 12 O. L. R. 377. Upon a summons calling 
 on the defendant to shew cause why he should not 
 be found guilty of corrupt practices under the Elec- 
 tion Act, the only evidence taken was his own, and 
 was given by him under the general objection that 
 he should not be called on to incriminate himself. 
 It was held that by sec. 189 of R. S. 1897, ch. 9, 
 the defendant haviny truly answered all questions 
 put to him, was entitled to protection and could not 
 be convicted on his own testimony. This section was 
 held not to apply, because it was not a case where 
 but for it " the witness would have been excused 
 from answering : Re Sault Ste. Marie, 10 0. L. R. 85. 
 Prior to the amendment of 1904 it was held that the 
 president of a recreation club need not produce the 
 membership roll, he having stated that its produc- 
 tion might lead to a criminal prosecution against 
 him: Atty. Gen. v. Toronto Junction Recreation 
 Club, 7 0. L. R. 248 j see also Weiser v. Heintzman, 
 15 P. R. 407; Hopkins v. Smith, 1 O. L. R. 659; and 
 as to a corporation: see D'lvry v. The World, 17 
 P. R. 387. But no privilege on the ground that his 
 answers might incriminate him was allowed a plain- 
 tiff who was compelled to give the names of persons 
 for whom he was trustee : Mills v. Mercer, 15 P. R. 
 276. Too late to take objection before Divisional 
 Court: Millar v. McTaggart, 20 O. R. 617; see Con. 
 Rule 455, 467; H. & L., pp. 665, 666, 679 (1913 Rule 
 343) . As to corresponding Dominion legislation : see 
 R. v. Clark, 3 0. L. R. 176 ; R. v. Hammond, 29 0. R. 
 211, where history and authorities are reviewed; 
 R. v. Williams, 28 0. R. 583; R. v. Hendershott, 26 
 0. R. 678: see note to R. S. 0. 1914, ch. 215, sec. 107. 
 
 7. — (2) "But for this section:" see application: Re 
 Sault Ste. Marie, Lamont's Case, 10 0. L. R. 85; and 
 see also Chambers v. Jaffray, 12 0. L. R. 377, noted 
 ante. 
 
 8. An action for criminal conversation and alienating the 
 affections of the plaintiff's wife is an action within 
 
CHAPTER 76. 263 
 
 the meaning of this section, and the defendant cannot 
 be compelled to submit to examination for discov- 
 ery: Fleury v. Campbell, 18 P. E. 110; Mulholland 
 v. Misener, 17 P. E. 132 ; Taylor v. Neil, 17 P. E. 134. 
 
 9. See Conolly v. Murrell, 14 P. E. 187 ; Williamson v. 
 Merrill, 4 0. W. E. 528, 5 0. W. E. 64 ; H. & L., p. 665. 
 
 '10. Expert evidence : limitation of number of witnesses : 
 Galusha v. G. T. E., 1 0. W. N. 559. This section 
 applies to the calling and examination of witnesses 
 at trial and not, for example, to affidavits of medical 
 experts filed on a lunacy application: Ee Michael 
 Fraser, 1 0. W. N. 1105. Effect of disregard of stat- 
 ute: Eiee v. Sockett, 4 0. W. N. 397, 27 0. L. E. 410. 
 See. Con. Eule 96, and H. & L., notes thereto, pp. 
 244 et seq. 
 
 11. See Costello v. Hunter, 12 0. E. 333; Yarwood v. 
 Hart, 16 O. E. 23, 16 A. E. 532. 
 
 12. See Smith's Leading Cases : Price v. Earl of Torring- 
 ton, II. 320, as to admission of entries by a de- 
 ceased person in a book in accordance with his duty 
 or office; Higham v. Eidgway, II. 327, as to admis- 
 sion of entries by deceased person contrary to his 
 interest at the time. Proof of applicant's claim: 
 H. & L., pp. 1188-1189. Nature of corroboration re- 
 quired: H. & L. notes, p. 1189. In an action on a 
 promissory note against the personal representative 
 of the maker the Judge was entitled to compare the 
 signature with the signature on a registered mort- 
 gage, and to act on his own conclusion as to their 
 identity: Thompson v. Thompson, 4 0. L. E. 442. 
 A person interested as cestui que .trust in a claim in 
 question in a proceeding by or against executors is 
 not debarred by his interest from giving material 
 corroborative evidence : Batzold v. Upper, 4 0. L. E. 
 116. Method of keeping accounts : Wilson v. Howe, 
 5 0. L. E. 323. Solicitor and client: donatio mortis 
 causa: Davis v. Walker, 5 0. L. E. 173. Matters 
 occurring after death : no corroboration required : 
 McClenaghan v. Perkins, 5 0. L. E. 129. Evidence 
 of one not claiming adversely: Brown v. Brown, 8 
 0. L. E. 332. Corroboration by cheques, although 
 not shewing on their face whether given for goods 
 supplied or in respect of advances: In re Jelly, 6 
 
264 CHAPTER 76. 
 
 0. L. E. 481. Corroborative evidence within the 
 meaning of the enactment may (semble)' be given 
 by an interested party, as long as he is not the party 
 obtaining the decision: In re Curry, 32 0. E. 150. 
 Gift of chattel without delivery — joint property with 
 '. survivorship: Schwent v. Eoetter, 21 0. L. By 112. 
 Effect of section considered: McClenaghan v. Per- 
 kins, 5 0. L. E. 129. Each item in an account is an 
 independent itransaction requiring corroboration: 
 Ee Eoss, 29 Gr. 385. The corroborating evidence 
 need not be in itself sufficient to establish a case: 
 Thompson v. Coulter, 34 S. C. E. 261. What amounts 
 to sufficient corroboration; running account: see 
 Wilson v. Howe, 5 O. L. E. 323. Corroboration in 
 action against executors : Wilson v. Hare, 5 O. L. E. 
 323; Eadford v. Macdonald, 18 A. E. 167; Green v. 
 McLeod; 23 A. E. 676; Parker v. Parker, 32 U. C. 
 C. P. 113; McGregor v. Currie, 5 0. W. N. 90, 25 
 0. W. E. 58. Instances of corroboration : see Curry 
 v. Curry, 32 0. E. 150; McDonald v. McDonald, 33 
 S. C. E. 145; Green v. McLeod, 23 A. E. 676; Tucker 
 v. McMahon, 1 0. E. 718 ; Little v. Hyslop, 4 O. W. N. 
 285 ; Schwent v. Eoetter, 1 O. W. N. 749 ; 16 O. W. E. 
 5, 21 0. L. E. 112. 
 
 16. — (4) The provision seems to contemplate only the 
 attendance of witnesses at trial and is not applicable 
 to the examination of a party for discovery merely. 
 A defendant resident out of Ontario cannot be com- 
 pelled to attend under Con. Eule 447, 1913 Eule 328, 
 for examination for discovery within Ontario ; aliter 
 where it is sought to examine a plaintiff: Lefurgey 
 v. The Great West Land Co., 11 0. L. E. 617; see 
 Lick v. Eivers, 1 0. L. E. 67 ; Meldrum v. Laidlaw, 
 5 0. W. E. 87. The section does not take away 
 the power of the Court nor deprive the plaintiff 
 of the tight to examine witnesses by commis- 
 sion: Mclntyre v. Fair, 6 P. E. 110; Stratford 
 v. G. W. E., 6 P. E. 91. The term " witness " in- 
 cludes parties to the cause, as well as witnesses in the 
 ordinary sense: Moffatt v. Prentice, 6 P. E. 33. A 
 submission to arbitration made a rule of Court is a 
 suit pending within the section: Elliott v Queen City 
 Assurance Co., 6 P. E. 30. A defendant asking for 
 an order for a subpoena to examine a plaintiff resi- 
 dent in Quebec need not shew that there is no cause 
 
CHAPTER 76. 265 
 
 of action for the same matter pending there: Daly 
 v„ Bobinson, 1 Ch. Ch. 271; but see McPherson v. 
 McPherson, 3 Ch. Ch. 58, sec, 16 (6). The Court has 
 power to grant a subpoena, though the evidence of 
 the proposed witness is not intended to be used at 
 the hearing of the cause : McKeichie v. Montgomery, 
 1 Ch. Ch. 225; see also Young v. O'Eeilly, 24 TJ. C. 
 E. 172. 
 
 16.— (6) As to suit pending in other jurisdiction: see 
 McPherson v. McPherson, 3 Ch. Ch. 58 ; Daly v. Eob- 
 inson, 1 Ch. Ch. 271. 
 
 19. History of section: E. v. Graves, 21 0. L. E. 329. 
 
 21. The books, indictments and records of the Court of 
 General Sessions are public documents which every- 
 one who is interested has a right to see. A defen- 
 dant who has been tried and acquitted at sessions 
 is entitled to a copy of the record of acquittal, and 
 it is not necessary to obtain a fiat of the Attorney 
 General therefor: Atty. Gen. v. Scully, 2 0. L. E. 
 315, 4 0. L. E. 394. Overruling in effect: E. v. Ivry, 
 24 C. P. 78; Hewitt v. Cane, 26 0. E. 133. 
 
 23. See Con. Eule 479, H. and L. notes, pp. 702, 703, re- 
 ferring to sees. 23, 26, 28, 41-49 (1913 Eule 274). 
 
 29. As to sees. 29, 30, 33, see Armour on Titles, 123-6, 
 138-9. 
 
 38. Con. Eule 516, H. and L. notes, pp. 726 to 728, 1913 
 Eule 291. Affidavits sworn by others than the per- 
 sons mentioned, cannot be Used: McEwan v. Boul- 
 ton, 3 Ch. Ch. 63. 
 
 42. See Con. Eule 527, H. and L. notes, pp. 732, 733. 
 Certified copy of registered probate not evidence: 
 Barber v. McKay, 17 0. E. 562, 19 0. E. 50. Not- 
 withstanding the Devolution of Estates Act, Letters 
 Probate are only prima facie evidence of the testa- 
 mentary capacity of the testator, so far as real 
 estate is concerned: Sproule v. Watson, 23 A. E. 
 692. Effect of certified copy where original will reg- 
 istered, see E. S. 0. 1914, ch. 124, sees. 56 (la) (3), 
 22 (1), 10 and sec. 46 post. 
 
266 CHAPTERS 77, 78. 
 
 46. Armour on Titles, pp. 110-117. As to effect of produc- 
 tion of an original duplicate, the registration of 
 which is certified : see E. S. 0. 1914, c. 124, sec. 50. 
 
 50. Order of foreign Court : order in Ontario Court com- 
 
 pelling attendance of an ex-oflficer of a corporation 
 (who is a quasi party and stands for the person to 
 be examined for discovery by the corporation de- 
 fendant), may be made ex parte, where party re- 
 fused to attend to be examined for discovery: 
 Kirchoffer v. Imperial Loan, 7 0. L. B. 295. 
 
 51. Armour Eeal Property, p. 319. 
 
 54. See E. S. O. 1897, ch. 134, of which this was formerly 
 sec. 3. What actions referred to by the section : see 
 London Loan v. Smyth, 32 C. P. 530. 
 
 CHAPTEE 77. 
 
 The Commissionebs fob Taking Affidavits Act. 
 
 10. E. ex Eel. Milligan v. Harrison, 16 O. L. E. 475, 11 
 W. E. 678. 
 
 CHAPTEE 78. 
 
 The Costs of Distress Act. 
 
 4. Bailiff distraining under mortgage: see 45 C. L. T. 
 126. 
 
 6. A judgment of the High Court on a case stated on a 
 summons for treble the amount taken in excess, is a 
 judgment in a criminal cause or matter within the 
 meaning of the Judicature Act: Eobson v. Biggar, 
 1908, 1 K. B. 672. 
 
 16.— (1) See Gormley v. Brophy Cains Limited, 10 O. 
 . W. E. 913, 11 0. W. E. 727. 
 
CHAPTERS 79, 80. 267 
 
 CHAPTEE 79. 
 
 The Judges' Orders Enforcement Act. 
 
 4. There is no right of appeal (except under this sec- 
 tion), where Judge exercises special statutory 
 powers. In such cases, he acts as persona designata : 
 Ee Paquette, 11 P. E. 463; Ee Young, 14 P. E. 303. 
 There is no right of appeal in respect of certificate 
 of County Court Judge, upon audit of engineer's ac- 
 count, under Municipal Drainage Act : Ee Moore and 
 March, 1 O. W. N. 38, 14 0. W. E. 1194, 20 0. L. E. 
 67. Jurisdiction of Judge of the High Court as to 
 appeals from County Judge's order under the As- 
 signments and Preferences Act, E. S. 0. 1914, ch. 
 134^ sec. 25: Ee Aaron Erb, 16 0. L. E. 594, 597, 12 
 0. W. E. 108. See Judicature Act, E. S. 0. 1897, 
 ch. 51, sec 74, H. & L. notes p. 131. Con. Eules 117, 
 761, 793, 835, H. & L. notes, pp. 255, 1001, 1016, 1043, 
 1906, 1913 Eules 3g, 533 et seq. 
 
 CHAPTEE 80. 
 
 The Execution Act. 
 
 Eefer to Mather, Sheriff Law; Anderson, Law of 
 Execution; Elphinstone, Law of Judgments; 
 Chaster, Executive Officers; Smith's Leading Cases, 
 Semayne's Case, I 104, etc. The Annual Practice; 
 The Annual County Court Practice ; Bicknell and 
 Kappele, Practical Statutes, pp. 328-333., 
 
 2. — (a) History of statutory right of seizure and sale: 
 see (1) 13 Edw. I. ch. 18, (2) 29 Car. II, ch. 3, Stat- 
 ute of Frauds, E. S. O. 338, sec. 11, goods not bound 
 till execution in Sheriff's hands (Mcintosh v. Mc- 
 Donell, 4 O. S. 159) (3), 5 Geo. II. ch. 7, applied only 
 to North American Colonies ; made lands saleable as 
 goods saleable in England (4) E. S. 0. 1877, ch. 66. 
 
 2. — (6) The sheriff may be sued for improper sale: Mc- 
 Nichol v. McPherson, 15 0. L. E. 393. 
 
268 
 
 CHAPTER 80. 
 
 \. At Common Law, assets which could not be physi- 
 cally transferred were exempt from seizure, e.g. 
 (a) Choses in action: Eennie v. Quebec Bank, 1 
 
 0. L. R. 303, 3 0. L. E. 541; Moore v. Eoper, 35 
 
 S. C. E. 533 (exceptions now, see sec. 20). 
 (6) Liquor licenses: Walsh v. Walper, 3 0. L. E. 
 
 158. 
 (c) Trademarks : Gegg v. Bassett, 3 0. L. E. 263. 
 {d) An interest requiring partition, e.g., dowress: 
 
 C. B. of Commerce v. Ealston, 4 O. L. E. 106. 
 
 And by statute property exempt from seizure com- 
 prises: • 
 
 (a) Exemptions under this sec: see Pickering v. 
 Thompson, 24 0. L. E. 378; Field v. Hart, 22 
 A. E. 449. 
 
 (b) Inchoate right of dower: see sec. 34 (2). 
 
 (c) Interest of located And his wife before patent 
 of free grant under Public Lands Act, E. S. 0. 
 1914. ch. 28, sec. 45 (1) : Beaty v. Finlayson, 27 
 0. E. 642. 
 
 (d) Interest of patentee and his wife for 20 years 
 after location, E. S. 0. 1914, ch. 28, sec. 45 (2). 
 
 An execution debtor can do as he pleases with the 
 statutory exemptions, and the execution creditor 
 cannot take advantage of the fact that they are in- 
 sufficiently described in a bill of sale : Field v. Hart, 
 22 A. E. 449. Tools and implements ordinarily 
 used in the debtor's occupation are no longer ex- 
 empt from seizure when he changes that occupa- 
 tion to one in which the tools and implements in 
 question are not ordinarily used : Wright v. Hollins- 
 head, 23 A. E. 1. Eight of widow administratrix to 
 exemptions: Pickering v. Thompson, 2 0. W. N. 
 1361, 19 0. W. E. 697, 24 0. L. E. 378. Construction 
 of exemptions under English Act, 51-2 Vict, ch. 21 
 sec. 4 : Boyd v. Bilham, 1909, 1 K. B. 14. Meaning of 
 the words " by law exempt from seizure," e.g. in 
 E. S. 0. 1914, ch. 134, sec. 8 i see Universal Skirt Mfg. 
 Co. v. Gormley, 17 0. L. E. 114, at pp. 136-7. Where 
 exemptions are burned, a judgment creditor cannot 
 attach the insurance money payable in respect of 
 them : Osier v. Muter, 19 A. E. 94. 
 
 6. Goods of a deceased husband exempt from seizure 
 under the Execution Act are not, except as to funeral 
 
CHAPTER 80. 269 
 
 and testamentary expenses, assets in the hands of 
 his executors for the payment of debts, the effect of 
 this section being to give the wife a parliamentary 
 title thereto: Ee Tatham, 2 O. L. E. 343. After 
 death the right to exemptions vests in the widow: 
 Pickering v. Thompson, 24 0. L. E. 378. This right 
 is one to be exercised against the vendor: Picker- 
 ing v. Thompson, 24 0. L. E. 378. 
 
 10. In England, lands bound on signing judgment, goods 
 bound when execution in sheriff's hands, 29 Gar. II. 
 ch. 3, sec. 16, E. S. 0. 1897, ch. 338, sec. 11. In 
 Canada, lands and goods bound from delivery of 
 writ to sheriff: 5 Geo. II., ch. 7; Mcintosh v. Mc- 
 Donell, 4 O. S. 195; Aldjo v. Hollister, 5 0. S. 739; 
 Burnham v. Simmons, 7 U. C. E. 196. The above 
 now includes an equity of redemption (see sec. 17), 
 formerly bound only from time of seizure : McDowell 
 v. McDowell, 1 Ch. C. 140, at p. 144; Allan v. Place, 
 15 0. L. E. 476, at p. 486 ; see also Culloden v. Mc- 
 Dowell, 17 U. C. E. 359; McDougall v. Waddell, 28 
 C. P. 191; Patterson v. McCarthy, 35 U. C. E. 14. 
 Armour Titles, p. 171. On signing judgment or 
 order execution may issue. No notice to debtor is 
 necessary : Eossiter v. Toronto By., 15 0. L. E. 297. 
 ' ' Acquired in good faith : " . knowledge of proceed- 
 ings taken to protect a seizure is notice of the writ: 
 McPherson v. Temiskaming, 2 0. W. N. 553, 854, 18 
 O. W.-E. 319, 811. The Sheriff's right to seize part- 
 nership interest in land and goods, gives only right 
 to debtor's interest in winding-up and gives no right 
 to specific goods : Eennie v. Quebec Bank, 1 0. L. E. 
 103, 3 0. L. E. 541; C. P. E. v. Eat Portage, 10 O. 
 L. E. 273 ; McPherson v. Temiskaming, 2 0. W. N. 
 553. Sale by sheriff of oil leases: these are not 
 saleable as goods, but as incorporeal hereditaments, 
 profits a prendre, to be sold as land : Can. Ey. Acci- 
 dent v. Williams, 1 O. W. N. 991. The licensee of 
 Crown Timber has an interest exigible in execu- 
 tion. A fi. fa. lands will bind the standing timber, 
 and a fi. fa. goods will bind it when cut : McPherson 
 v. Temiskaming, 1912, A. C. 145. An unpatented 
 mining claim is " lands, " within the meaning of this 
 Act: Clarkson v. Wishart, 24 0. W. E. 937 (P.C.) ; 
 (1913), A. C. 828, and now see E. S. 0. 1914, ch. 32, 
 sec. 77 (5). A license under the Liquor License Act 
 
270 CHAPTER 80. 
 
 cannot be seized by the Sheriff under a fi. fa. goods. 
 Walsh v. Walper, 3 0. L. E. 158. The right of prop- 
 erty in a registered specific trademark is not saleable 
 by itself under an execution ; if saleable at all, only 
 as appurtenant to the business in which it has 
 been used: Gregg v. Bassett, 3 0. L. E. 263. 
 Purchase by person who has acquired rights of ex- 
 ecution creditor: Steen v. Steen, 9 O. W. E. 65, 10 
 0. W. E 720. Further as to writs of fi. fa. see Con. 
 Eules 843, 1016, H. & L. notes, pp. 1100, 1252, 1913 
 Eules 538 et seq. Sheriff's sale must always be pre- 
 ceded by actual seizure : Book v. Brooker, 41 S. C. E. 
 331. Mere mistakes or inadequacy of price will not 
 invalidate sale : McNichol v. McPherson, 15 O. L. E. 
 393. Eules governing sales: see C. E. 875-882 and 
 1252, 1913 Eules 557-564. As to renewal of writs 
 of fi. fa., see Con. Eule 872, 1913 Eule 571. Writs 
 other than fi. fa., see H. & L. note p. 1125, 1147 ; also 
 Con. Eue 911, 1913 Eule 590. 
 
 12. At common law, Sheriff could not seize or sell any- 
 
 thing which could not be physically possessed or 
 transferred: see Clarkson v. Wishart, 27 0. L. E. 
 70; and also S. C. in P. C, 24 0. W. E. 937; (1913), 
 A. C. 828. Stock in a company whose head office is out 
 of Ontario: Nickle v. Douglas, 35 U. C. E. 126, 37 U. 
 C. E. 51. Sale of stock: interpleader: Brown v. 
 Nelson, 10 P. E. 421. Stock held in a representative 
 capacity : Eobinson v. Grange, 18 U. C. E. 260. As- 
 signment of stock: Morton v. Cowan, 25 0. E. 529; 
 Brock v. Euttan, 1 C. P. 218. 
 
 13. Copy of writ must accompany notice: Goodwin v. 
 
 0. & P. Ey. Co., 22 U. C. E. 186. Sheriff must 
 comply strictly with Act in seizing stock of incor- 
 porated company: Maloof v. Labad, 21 0. W. E. 
 575, 3 0. W. N. 796, 22 0. W. E. 99, 3 0. W. N. 1235. 
 
 15. What amounts to sufficient following of writ, de- 
 mand and notice: In re Goodwin and 0. & P. Ev. 
 Co., 13 C. P. 254. 
 
 18. Seizure of patent: see Edwards v. Picard, 1909, 2 
 K. B. 903. 
 
 19. As to sale under execution of equity of redemption in 
 
 shares prior to 1899 : see Morton v. Cowan, 25 0. E. 
 
CHAPTER 80. 271 
 
 529. Equity in a term : Chisholm v. Sheldon, 1 Gr. 108. 
 Sale by Sheriff under fi. fa. against lands of the re- 
 versioner after a term of 1,000 years had been 
 created by way of mortgage, carries with it the 
 right to redeem the term: Chisholm v. Sheldon, 2 
 Gr. 178, 3 Gr. 655. Mortgages on leasehold, right 
 of purchaser of equity at Sheriff's sale to redeem: 
 McDonald v. Eeynolds, 14 Gr. 691 ; Waters v. Shade, 
 2 Gr. 457. Sale of equity of redemption in a ship: 
 Bethune v. Corbett, 18 U. C. E. 498; Scott v. Car- 
 veth, 20 U. C. E. 430. Sale of equity of redemption 
 in chattels: Smith v. Cobourg, 3 P. E. 113; Squair 
 v. Fortune, 18 U. C. E. 547; Swift v. Cobourg, 5 
 L. J. 253; Eoss v. Simpson, 23 Gr. 552; see also 
 Allan v. Place, 11 O. W. E. 238, 15 O. L. E. 476. See 
 also Con. Eule 911; H. & L. notes, pp. 1158-9; 1913 
 Eule 590. 
 
 20. The right of a Sheriff to seize under a fi. fa. money 
 or bank notes of an execution debtor, can only be 
 exercised during the debtor's lifetime: Johnson v. 
 Pickering, 1908, 1 K. B. 1. A chose in action is not 
 bound by execution put in the Sheriff's hands, but 
 only by seizure made thereunder: Eennie v. Quebec 
 Bank, 1 O. L. E. 303, 3 O. L. E. 541. Insured's interest 
 in a, policy of insurance not a " security for money " 
 within sec. 20: Ee Asselin and Cleghorn: 6 O. L. E. 
 171. But a paid-up policy is: Canadian Mutual Loan 
 v. Nisbet, 31 O. E. 562, Seizure of money paid to 
 debtor: when property, passes: Hall v. Hatch, 3 
 O. L. E. 147. Interest in mortgage assigned as 
 security: Eumohr v. Marx, 3 O. E. 167. Sale of 
 mortgagee's interest; Parke v. Biley, 3 E. & A. 215, 
 231; Lador v. Creighton, 9 C. P. 295. Money paid 
 into Court: Calverley v. Smith, 3 L. J. 67. Money 
 bond for conveyance of land : E. v. Potter, 10 C. P. 
 39. Fire policy after loss is a security: Bank of 
 Montreal v. McTavish, 13 Gr. 395. Money made 
 under execution at suit of A. cannot be detained 
 by Sheriff under an execution against A. : Sharpe v. 
 Leitch, 2 C. L. J. 132. See Armour on Titles, p. 394. 
 
 24. The right of a Sheriff to an interpleader order de- 
 pends either on his having the subject-matter of 
 the interpleader' in his possession or having the 
 right under an execution accompanied with the in- 
 tention to take possession: Keenan v. Osborne, 7 
 
272 CHAPTER 80. 
 
 0. L. E. 134. Interpleader by Sheriff: see H. & L., 
 p. 1309, 1312-1320, 1324, 1325, 1327, Con. Rules 
 1102 to 1128; 1913 Rules 625 et seq. 
 
 25. See H. & L. p. 1147, Con. Rule 911, 1913 Rule 590: 
 see also Guthrie's decisions on the Registry Act, 1897, 
 p. 9. Where an execution debtor who was a mortgagee 
 of lands had assigned the mortgage, although the as- 
 signment was not registered until after the notice 
 under this section, it was held that the mortgage could 
 not be seized under this section: the Sheriff Gould not 
 interplead, but must wait until the creditors had 
 obtained a declaration that the assignment was void : 
 Keenan v. Osborne, 7 O. L. R. 135. 
 
 30. As to equitable execution: see Thompson v. Gill, 
 
 1903, 1 K. B. at p. 795; see also C. R. 1016-1020. 
 Receiver : see R. S. O. 1914, ch. 56, sec. 17 and notes. 
 The enactment is declaratory. McEvoy v. Clune, 21 
 Gr. 515; see Bank of U. C. v. Brougn, 2 E. & A. 95; 
 Lowell v. Bank of U. C. 10 Gr. 57. As to sales under 
 fi. fa. lands: see Con. Rules 875-882, 911, H. & L. 
 notes pp. 1127-1130, 1158-9; 1913 -Rules 557 et seq. 
 
 31. This applies only to simple cases, and not where 
 
 special equitable procedure required to realize: He- 
 ward v. "Wolfenden, 14 Gr. 188, at p. 190. Receiver 
 by way of equitable execution : see R, S. O. 1914, ch. 
 56, sec. 17 ; ch. 81, sec. 25 notes. Can an equity of re- 
 demption be sold in a judgment on covenant in the 
 mortgage in question : Van Norman v. McCarty, 20 C. 
 P. 42. Mortgage on part of land : Sale under different 
 executions, in different rights: Samis v. Ireland, 
 28 C. P. 478, 4 A. R. 118. Equity in lands which lie in 
 different counties : Heward v. Wolfenden, 14 Gin 188. 
 Execution prior to mortgages: Bank of Montreal v. 
 Thompson, 9 Gr. 51, 3 E. & A. 239. Mortgage by 
 deed absolute in form : McCaber v. Thompson, 6 Gr. 
 175 ; McDonald v. McDonnell, 2 E. & A. 393. Where 
 the interest of the debtor was a life estate which he 
 had conveyed by mortgage by deed absolute in form : 
 Fitzgibbon v. Duggan, 11 Gr. 188. Mortgage by de- 
 visees: see Johnston v. Sowden, 19 Gr. 224. A 
 Right to dower in an equity of redemption is not, 
 before assignment, exigible in execution under a fi. 
 
CHAPTER 80. 273 
 
 fa., nor is the share of one of several tenants in com- 
 mon in an equity of redemption. In such a case 
 an execution creditor seeking equitable execution 
 should proceed under the Rules of Court, and not by 
 action: Bank of Commerce v. Rolston, 4 0. L. R. 
 106. "Interest in -mortgage assigned as security: 
 Rumohr v. Marx, 3 0. R. 167. Where lands are sub- 
 ject to charge for maintenance, the interest of the 
 persons beneficially interested therein, subject to 
 the charge, is saleable under execution: Rathbun v. 
 Culbertson, 22 G. R. 465. Where there are two mort- 
 gages, no sale can be had: Kerr v. Styles, 26 Gr. 
 309; Donovan v. Bacon, 16 Gr. 472; Re Keenan, 3 
 Ch. Ch. 285; Shaw v. Tims, 19 Gr. 496; McDonald v. 
 Reynolds, 14 Gr. 691; unless the mortgages cover 
 different portions of property : Rathbun v. Culbert- 
 son, 22 Gr. 465. Where a mortgagee bought an 
 equity of redemption at a Sheriff's sale (the sale 
 being invalid on a technical ground), and went in 
 bona fide, and dealt with the property for seventeen 
 years, an action to redeem was dismissed as inequit- 
 able: Skae v. Chapman, 21 Gr. 534. Invalid sale: 
 see Howes v. Lee, 17 Gr. 459; Lee v. Howes, 30 U. 
 C< R. 292. Where a mortgagee purchased under an 
 execution, and the sale proved inoperative, it was 
 held that he could not add the amount paid to his 
 mortgage debt : Paul v. Ferguson, 14 Gr. 230. Equity 
 of redemption in leasehold : McDonald v. Reynolds, 
 14 Gr. 691. Mortgage prior to judgment: Pegge v. 
 Metcalfe, 5 Gr. 628. Partnership real eastate : death 
 of one partner after judgment and before execution: 
 Baxter v. Turnbull, 2 Gr. 521. Judgment against 
 executors of mortgagor : Walton v. Bernard, 2 Gr. 
 344. Equity of redemption in a term of 1,000 years : 
 Chisholm v. Sheldon, 1 Gr. 108, 2 Gr. 178, 3 Gr. 655. 
 Sale under mortgage after sale of equity: Fisken v. 
 McMullen, 12 C. P. 85 : see Armour on Titles, p. 392 ; 
 R. S: O. 1897, ch. 136, sec. 76; R. S. O. 1914, ch. 124, 
 sees. 62, 67. Deeds of lands sold under Court process 
 must be registered within 6 months to retain their 
 priority: R. S. 0. 1897, ch. 136, sec. 90; R. S. 0. 1914, 
 ch. 124, sec. 78. 
 
 32. See R. S»0. 1897, ch. 136, sees. 76, 83; R. S. 0. 1914, 
 ch. 124, sees. 62, 67, and cases cited. 
 
 S.A.— 18 
 
274 
 
 CHAPTER 80. 
 
 33. See Armour, Real Property, p. 208; Armour on 
 Titles, p. 393. See as to operation of statutory pro- 
 visions, where equity purchased by devisees of mort- 
 gagee: Woodruff v. Mills, 20 U. C. R. 51. 
 
 34. A right to dower in an equity of redemption before 
 
 assignment is not exigible under a writ of fi. fa.: 
 Bank of Commerce v. Rolston, 4 O. L. R. 106; Mc- 
 Annany v. Turnbull, 10 Gr. 298. As to dower see 
 also Allen v. Edinburgh Life, 25 Gr. 306: Douglas 
 v. Hutchinson, 12 A. R. 110. The equitable inter- 
 est of an assignee from the purchaser under a con- 
 tract for sale of lands, is exigible under fi. fa. against 
 lands of assignee, and the purchaser is entitled to 
 specific performance of the contract: Ward v. 
 Archer, 24 O. R. 650. Lands vested in trustee; ex- 
 ecutions against cestui que trust : Trusts Corporation 
 v. Medland, 22 O. R. 539. Interest of certificated 
 holder of mining claim before patent: Re Clarkson 
 and Wishart, 27 O. L. R. 70 ; and in P. C, 24 O. W. R. 
 937; (1913), A. C. 828^ and see R. S. O. 1914, ch. 32, 
 sec. 77 (5). Execution binding on interest of Crown 
 timber licensee: Glenwood Lumber Co. v. Phillips, 
 1904, A. C. 408. Seizure of rights of timber licensee: 
 McPherson v. Temiscaming, 20 O. W. R. 13, 23 O. W. 
 R. 458 (P.O.), 1912, A. C. 145, and see note to sec. 10 
 ante. Reversionary interest in fee, subject to a term 
 for 1,000 years : Wightman v. Fields, 19 Gr. 559. In- 
 terest of husband in his wife's freehold: Moffatt v. 
 Grover, 4 C. P. 402. See Armour on Titles, pp. 180, 
 390. Charging estate of infant in reversionary in- 
 terest, with payment for infant's maintenance: Re 
 Badger, 1913, 1 Ch. 385. 
 
 36. The lands of a testator or intestate are liable to be 
 
 sold only for his debt. Where the execution 
 creditors were never creditors of the deceased, a 
 sale cannot be supported : Freed v. Orr, 6 A. R. 690. 
 Heirs impeaching sale : McEvoy v. Clune, 21 Gr. 515. 
 Execution against executor, testator's debt, ; heirs 
 bound : Lovell v. Gibson, 19 Gr. 280. Lands as assets 
 in the hands of executors and administrators: see 
 Digest Ont. Case » Law, Vol. II., cols. 2754, 2755, 
 2756 : see also Armour, Real Property, p. 103. 
 
 37. Formerly 3 Edw. VII., ch. 19, sec. 471 : see Con. Rule 
 
 843, 1913 Rule 538. 
 
CHAPTER 81. 275 
 
 CHAPTER 81. 
 
 The Cbedixors Relief Act. 
 
 Refer to Bicknell and Kappele, Practical Statutes, 
 pp. 430, 431. 
 
 4. The Act dates from 1880. Priority : see H. & L. notes, p. 
 
 961. Notice to execution creditors in foreclosure : see 
 Con. Rules 393, 750, H. & L. notes, pp. 603, 980; 1913 
 Rule 489. Distribution of residue of purchase money- 
 after sale in mortgage action : Con. Rule 755 ; H. & L. 
 notes, p. 987 ; 1913 Rule 479. 
 
 5. The provisions as to attachment must be construed to 
 
 refer only to a case where the facts would entitle 
 the Sheriff, if there had been no attaching order 
 issued by a creditor, to obtain one at his own in- 
 stance, under sub-sec. 1. To entitle him to such an 
 order, there must be in his hands several executions 
 and claims, and not sufficient lands or goods to pay 
 all and his own fees, and a debt owing to the execu- 
 tion debtor by a person resident in the bailiwick: 
 Re Thompson, 17 P. R. 109: see Con. Rule 911; H. 
 & L. notes, p. 1147 and p. 1160 (as to money realized 
 under equitable execution) ; Con. Rule 914; H. & L. 
 notes, p. 1164, and Con. Rule 921 ; H. & L. notes, p. 
 1169 (1913 Rules, 590, 594, 599). 
 
 6. — (1) " Forthwith " in this section means " without 
 any delay," and even if equivalent to " within a rea- 
 sonable time," a delay of 15 days was not reason- 
 able: Maxwell v. Scarf e, 18 O. R. 529. The Act is 
 intended to abolish priority, not to alter the legal 
 effect of the executions themselves or to effect a dis- 
 tribution of separate and partnership assets in the 
 manner in which such assets are administered in 
 bankruptcy: McDonagh v. Jephson, 16 A. R. 607. 
 The provisions of the Act are not to be extended to 
 cases not actually provided for by the Act : McLean 
 v. Allen, 14 P. R. 84. The fact that the Crown is 
 the debtor, will not stand in the way of the Court 
 going as far as it can, without assuming to direct 
 what shall be done by the Crown, toward making 
 
276 
 
 CHAPTER 81. 
 
 such an asset of a judgment debtor available to sat- 
 isfy the claim of his judgment creditor : Steward v. 
 Jones, 19 P. E. 227. 
 
 6.— (4) Execution creditors' rights under this section 
 against an assignee for the benefit of creditors, can- 
 not arise, and the section does not come into play 
 so as to override E. S. 0. 1914, ch. 134, sec. 14, at 
 least until the execution creditors have a judgment 
 in their favour in an interpleader or some other 
 binding way: Sykes v. Soper, 29 0. L. E. 193, 4 0. 
 W. N. 1554, Construction of section, status of as- 
 signee : Ee Henderson Eoller Bearings, 22 0. L. E. 
 306, 24 0. L. E. 356. Aff . sub nom : Martin v. Fowler, 
 46 S. C. E. 119. Eeference of contesting creditors: 
 Soper v. Palos, 24 O. W. E. 526, 4 0. W. N. 1258. 
 Eights of creditors in interpleader proceedings: 
 Bank of Hamilton v. Durrell, 15 A. E. 500; Levy 
 v. Davies, 12 P. E. 93; Eeid v. Gowans, 13 A. E. 
 501. Claim under chattel mortgage: Interpleader: 
 execution subsequently obtained: Wait v. Sager, 14 
 P. E. 347: see Con. Eule 1103; H. & L. notes, p. 1318 
 (1913 Eule 625). 
 
 6.-r-(10) Adjustment of rights of execution creditors 
 and under registered judgment for alimony : Abbott 
 v. Abbott, 3 0. W. N. 683, 21 O. W. E. 281. 
 
 8. Where a prior creditor has filed a Sheriff's certificate 
 under this section, it is not necessary for a subse- 
 quent creditor to do so. Semble, that the provi- 
 sions of the section are directory only, and also that 
 it is not open to another creditor to question the 
 sufficiency of the affidavit ot claim, where the execu- 
 tion debtor does not object: Ee Secord and Mowat, 
 12 0. L. E. 511. 
 
 11. Although a creditor who does not come in within the 
 period prescribed, may not be entitled to rank for a 
 dividend, he is interested in the proper distribution 
 of the moneys realized and entitled to contest the 
 certificates of claim of other creditors : Bank of 
 Hamilton v. Aitken, 20 A. E. 616. An order made 
 at the instance of a contesting creditor, setting aside 
 a judgment and execution is appealable : see H. & L. 
 notes, p. 1042, and cases cited there. 
 
CHAPTER 81. 277 
 
 24. Disposition by Sheriff of surplus proceeds of mort- 
 gagee's sale under power: Re Ferguson and Hill, 4 
 O. W. N. 1339, 24 0. W. R. 634. Payment to Sheriff 
 of fund, in Court: Campbell v. Croil, 8 0. W. R. 67: 
 see Dawson v. Moffatt, 11 0. R. 484. 
 
 25. Receiver by way of equitable execution: Mfrs. 
 
 Lumber Co. v. Pigeon, 2 0. W. N. 79, 341, 1437 ; 17 
 O. W. R. 9, 691 ; 19 O. W. R. 818 ; 22 0. L. R. 36, 378. 
 Kelly v. Ottawa Journal, 14 0. W. R. 934. See also 
 notes to R. S. 0. 1912, ch. 56, sec. 17, and to ch. 80, 
 sees. 30, 31. 
 
 26. — (4) No power by staying proceedings to enable 
 creditors to rank, to interfere with the Sheriff's 
 proceeding upon writs of fi. fa. regularly in his 
 hands ! Mason v. Cooper, 15 P. R. 418. 
 
 27. Two writs of execution were placed in the Sheriff's 
 hands on the same day, no further steps being taken 
 by the first, but the second directing the Sheriff to 
 advertise and sell lands, which he did, under the 
 second writ. It was held that the advertisement 
 was in law the seizure, and the second creditor was 
 entitled to payment in full of his taxed eosts and 
 costs of execution: McGuinness v. McGruinness, 3 
 0. L. R. 79. 
 
 30. Creditors whose executions are placed in the 
 Sheriff's hands after th*e execution debtor has made 
 assignment for benefit of creditors, are not entitled 
 to share in the proceeds of goods seized by the 
 Sheriff under prior executions before the assign- 
 ment was made, the proceeds being insufficient to pay 
 these prior executions: Roach v. McLaughlin, 19 
 A. R. 496; Breithaupt v. Marr, 20 A. R. 689. 
 
 33. By Section 30 of the Assignments Act, R. S. 0. 1897, 
 ch. 147, an assignee is enabled to take the proceed- 
 ings authorized by this section: Re Simpson and 
 Clafferty, 18 P. R. 402: see R. S. 0. 1914, ch. 134, 
 sec. 34. 
 
 39. An assignee for benefit of creditors having taken 
 under R. S. 0. 147, sec. 30, the proceedings author- 
 ized under sec. 33 of this Act ; it was held that there 
 was no appeal from the order of a County Court 
 
278 CHAPTER 82. 
 
 Judge, dismissing an application by a claimant to 
 vary the scheme of distribution made by the assig- 
 nee, the Judge being persona designata : Be Simpson 
 and Clafferty, 18 P. E. 402. 
 
 CHAPTER 82. 
 
 The Absconding Debtors' Act. 
 
 Eefer to Sinclair, Absconding Debtors (Can.); 
 Holmested and Langton, Judicature Act and Rules, 
 3rd edition; Bicknell and Kappele, Practical 
 Statutes, pp. 264-266. 
 
 3.— (1) See H. & L. p. 1277 et seq., where section fully 
 noted. The Court has no right to enforce a personal 
 money claim against a person who is neither domi T 
 ciled nor resident within its jurisdiction, unless he 
 has appeared to the process or agreed to submit to the 
 jurisdiction: Sirdar Gurdyal Singh v. Rajah of 
 Faridkote (1894), A. C. 670; Emanuel v. Symon 
 (1908), 1 K. B. 302. If there is property within the 
 jurisdiction : see 1913 Rule 25 (h). What amounts to 
 being " resident." Consideration of acts indicating 
 an intention to acquire domicile or residence by 
 foreigner, who comes into the jurisdiction and then 
 departs: Emperor of Russia v. Proskouriakoff, 18 
 Man. L. R. 56, "Served with process." Considera- 
 tion of position where tort committed within Ontario 
 by tort-feasor, who has property within jurisdiction : 
 Anderson v. Nobels Explosive Co., 12 O. L. R. 644. 
 
 3. — (2) Con. Rule 1058. The proceedings are those in 
 an ordinary action : Bank of Hamilton v. Aitken, 20 
 O. R., at p. 626. 
 
 4. See H. & L., p. 1277 et seq. Where defendant has left 
 the jurisdiction, as to writ: see Con. Rule 162 et 
 seq., 1913 Rules, 25 et seq. Form of affidavit for 
 order of attachment: H. & L. Forms, 12l4, 1215. 
 What must appear in the affidavit, and the indebted- 
 ness for which attachment may issue : see H. & L., 
 pp. 1278-9. Corroboration required: see Tolles v. 
 Cohen, 4 O. W. N. 819, 24 O. W. R. 66. Application 
 for order ex parte: see Con. Rules 42, 45, 1913 
 
CHAPTER 83. 279 
 
 Rules, 208, 209. Where order granted by County 
 Court Judge, who may set it aside: see Disher v. 
 Disher, 12 P. R. 518; H. & L., p. 1279-80. Form of 
 order: see H. & L. Forms, 1216. 
 
 7. Con. Rule 1061. 
 
 8. Effect of attachment: see H. & L., p. 1280-81. Appli- 
 
 cation of Creditors' Relief Act: see sees. 16-18 post. 
 
 13. Letting in the defendant to defend : see H. & L. notes, 
 p. 1282, especially as to former law. 
 
 18. See H. & L. notes, p. 1281, as to former effect of 
 
 Creditors' Relief Act. 
 
 19. Order directing third persons to deliver up debtor's 
 property : see Bunting v. Williams, 16 P. R. 43. 
 
 CHAPTER 83. 
 
 Fraudulent Debtors' Abbbst Act. 
 
 Refer to Holmested and Langton's Judicature Act 
 and Rules, 3rd edition (especially at pages indi- 
 cated) ; Bicknell and Kappele, Practical Statutes, pp. 
 275-278. 
 
 3. — (1) " Person liable to arrest:" see note to sec. 12 
 infra, as to persons permanently and temporarily 
 exempt. As to arrest of non-resident temporarily 
 within the jurisdiction in respect of a debt con- 
 tracted in his own domicile: see Elgie v. Butt, 26 
 A. R. 13 ; Butler v. Rosenf eldt, 8 P. R. 175. As to 
 debt contracted in Ontario, while formerly resident : 
 Kersteman v. MacLellan, 10 P. R. 122 ; Scane v. Cof- 
 fey, 15 P. R. 112. The expected departure from 
 Ontario with intent to defraud is an essential ingred- 
 ient of the case to be made out by the applicant for 
 order for arrest, but it is a question of fact, and the 
 Judge may infer it from the facts and circumstances 
 of the affidavits: Beam v. Beatty, 2 O. L. R. 362. 
 Intent to leave 'territory: intent to defraud: Grant v. 
 Reiner, 3 W. L. R. 506 ; see also Phair v. Phair, 19 
 P. R. 67; Fleming v. McCutcheon, 8 O. W. R. 368. 
 
280 CHAPTER 83. 
 
 The former conduct of the defendant in regard to 
 the same debt is a fact or circumstance to be con- 
 sidered on the question of intent: Beam v. Beatty, 
 
 2 0. L. E. 362. Former sec. E. S. 0. 1897, ch. 80, 
 sec. 1: see H. & L., p. 1256-7, 1268-71, 1276. The 
 affidavit may be sworn before the plaintiff's solic- 
 itor: see 1913 Eule 297. Form of order: see H. & 
 L., Form 1183. Defective affidavit : Laing v. Slinger- 
 land, 12 P. E. 366 ; Eunciman v. Armstrong, 2 C. L. 
 J. 165. By 1913 Eule 208 the Master-in-Chambers, 
 cannot dispose of an application for arrest. Former 
 practice as to ca. sa. and ne exeat: see H. & L. p. 
 1255. 
 
 3— (2) Order for arrest: Bank of Montreal v. Partridge, 
 
 3 O. W. N. 149, 20 O. W. E. 206. 
 
 4. Con. Eule 1023 ; Holmeated & Langton, p. 1258, as to 
 
 what needed for second order. 
 
 5. E. S. O. ch. 80, sec. 9 and 10. 
 
 6. Con. Eule 1022 ; H. & L., p. 1258. As to proceedings 
 
 against a defendant in alimony about to quit On- 
 tario : see also Judicature Act, E. S. O. 1897, ch. 51, 
 sec. 34: seeH. &L.,p. 29. 
 
 7. Con. Eule 1024. The form of order given as form 135 
 
 in the appendix of the Con. Eules, H. & L. forms 
 1183, appears to be directed to the Sheriff of what- 
 ever county the defendant may be found in. This 
 section provides for concurrent or duplicate orders. 
 When a writ of ca. sa. has expired by lapse of time, 
 a concurrent writ cannot issue: Merchants Bank v. 
 Sussex, 4 O. L. B. 524. 
 
 8. Con. Eule 1026. 
 
 9. Con. Eule 1025; H. & L., p. 1259. 
 
 10. Con. Eule 1027; H. & L., p. 1260. 
 
 11. Con. Eule 1028. 
 
 12. Certain persons are permanently exempt from arrest 
 e.g., the members of the Eoyal family and their 
 households, Ambassadors and their households, 
 
CHAPTER 83. 281 
 
 Judges, married women (see. 14). Certain others 
 are temporarily exempt, e.g., members of the Legis- 
 lature (see E. S. 0. 1914, ch. 11, sec. 47), members 
 of the Parliament of Canada, Barristers on Circuit, 
 Solicitors attending Court, bail, etc: see Archibald's 
 Practice, and H. & L. notes, p. 1256-7. E. S. 0. 1897, 
 ch, 80, sec. 4. 
 
 13. E. S. 0. 1897, ch. 80, sec. 5. See Con. Eule 853; H. & 
 L. notes, pp. 1105-1107; and cases there cited 
 as to when non-payment of money may be 
 punishable by attachment. See also Fawkes v. 
 Griffin, 18 P. E. 48, where a receiver was liable to 
 attachment for disobeying the' order of the Court 
 as to payment of moneys. See 1913 Eule 545. 
 
 14. E. S. O. 1897, ch. 80, sec. 6. An order may be made 
 for the commitment of a married woman to gaol 
 for refusal to attend for examination as a judgment 
 debtor: Watson v. Ontario Supply Co., 14 P. E. 96. 
 See E. S. O. 1897, ch. 163, sec. 3 (2) ; E. S. O. 1914, 
 eh. 149, sec. 4 (2) ; Con. Eule 900; H. & L. notes, pp. 
 1136-7; 1913 Eule 580. It seems that the freedom 
 from arrest given to married women by this section 
 continues in favour of widows: Doull v. Doelle, 4 
 O. W. E. 525, 10 O. L. E. 411. 
 
 15. Where an order for arrest is made - on materials 
 which justify it, although the defendant may be dis- 
 charged from custody under it upon fresh affidavits, 
 the Judge may, in his discretion, impose terms of 
 bringing no action, and may withhold costs: Sulli- 
 van v. Allen, 1 O. L. E. 53. Con. Eule. 1036; H. & L., 
 p. 1263. Form of Bond : H. & L. Forms, 1186. Allow- 
 ance of Bond : sec. 19, p&st. 
 
 16. Con. Eule 1037 (1) ; H. & L., p. 1264. Forms : see H. & 
 L., forms 1186-1188. 
 
 17. Con. Eule 1038. 
 
 18. Con. Eule 1039. 
 
 19. Con. Eule 1040; H. & L., p. 1265. 
 
 20. Con. Eule 1041; H. & L., p. 1265. 
 
2g2 CHAPTER 83. 
 
 21. Con. Rule 1042, 1043. 
 
 22. Con. Rule 1044 (1) ; H. & L., p. 1266. Delivery of 
 statement of claim: see Winch v. Traviss, 18 P. R. 
 102. 
 
 23. Con. Rule 1045; H. & L., p. 1266-7. 
 
 24. Con. Rule 1046; H. & L., p. 1267. 
 
 25. Con. Rule 1047; H. & L., p. 1268-71. The right to 
 make a motion to be discharged from custody on the 
 merits, being founded on Com Rule 1047, which 
 itself is founded on a succession of statutes, is en- 
 tirely confined to the case of an order for arrest 
 made before judgment, and does not extend to a 
 ca. sa., unless there has been concealment or perver- 
 sion of material facts : Kidd v. O'Connor, 43 TJ. C. R. 
 193; Bank of Montreal v. Campbell, 2 TJ. C. L. J. N. 
 S. 18; Gossling v. McBride, 17 P. R. 585; Merchants 
 Bank v. Sussex, 4 O. L. R. 524. The debtor in such 
 a case can only be discharged under this Act: see 
 H. & L. notes, pp. 1273 to 1276. An appeal lies to 
 the undoubted jurisdiction of the Court to set aside 
 in its discretion orders made by the wilful conceal- 
 ment or perversion of material facts: Merchants 
 Bank v. Sussex, 4 O. L. R. 524. Appeal on new 
 material from the discretion of the Judge who made 
 the order in such application having for its object the 
 setting aside of the order and writ must fail : Damar 
 v. Busby, 5 P. R. 356 at p. 389 ; Merchants Bank v. 
 Sussex, 4 O. L. R. 524. Where defendant was ar- 
 rested under an order in the nature of a ca. re. and 
 was released by giving bail by deposit of a sum of 
 money with the Sheriff, he had not thereby waived 
 his right to relief under C. R. 1047, and the material 
 filed being such that the order should not have been 
 made, the sum deposited was ordered to be returned 
 to him : Adams v. Sutherland, 10 O. L. R. 645. Appeal : 
 Onus: Beam v. Beatty, 2 O. L. R. 362. What is 
 necessary to succeed in action for malicious arrest 
 under civil process : Fichet v. Watson, 22 O. L. R. 40. 
 
 26. Con. Rule 1048; H. & L., p. 1271. 
 
 27. Con. Rule 1049, 1050; H. & L., p. 1272, 1273. 
 
CHAPTER 33. 283 
 
 28.— (1), (2) E. S. 0. 1897, ch. 80, sec. 8. 
 
 28— (3) Con. Eule 874; H. & L., p. 1126. Where a debtor 
 is in custody under a Ca. Sa. the Court cannot make 
 an order for his discharge, except under the Act: 
 Gossling v. McBride, 17 P. R. 585. See provisions of 
 this Act for discharge of debtor from custody, sees. 
 51-58 post. Assignment for benefit of creditors : see 
 McEachern v. Gordon, 18 P. R. 459. A concurrent writ 
 of ca. sa. cannot be issued after the original writ with 
 which it is concurrent has expired by a lapse of time : 
 see sec. 7. It was held that attachment lies against a 
 receiver for default in compliance with an order to 
 pay money into Court. This was not for the purpose 
 of recovering or enforcing payment of a civil debt, 
 but to punish an officer of the Court who had dis- 
 obeyed its order. A specific order should be made 
 to pay over the balance: Fawkes v. Griffin, 18 
 P. R. 48. 
 
 29. Con. Rule 1052; H. & L., p. 1274: see Proctor v. Mc- 
 Kenzie, 11 A. R. 846. 
 
 30. Con. Rule 1053; Hi & L., p. 1275. 
 
 31. Con. Rule 1054. 
 
 32. Con. Rule 1055; H. & L., p. 1275. 
 
 33. Con. Rule 1029. " Convenient house " to be selected 
 by sheriff now: H. & L., p. 1260. 
 
 34. R. S. 0. 1897, ch. 80, sec. 13. 
 
 35. Dealing with bond: Should remain on the records 
 of- the Court and in proper case an exoneratur 
 entered thereon: Beam v. Beatty, 2 O. L. R. 362: 
 Con: Rule 1030 ; H. & L., p. 1260. 
 
 36. R. S: 0. 1897, ch. 80, sec. 15. 
 
 37. R. S. 0. 1897, ch. 80, sec. 16. 
 
 38. R. S. O. 1897, ch. 80, sec. 17. 
 
2g4 CHAPTER 83. 
 
 39. E. S. 0. 1897, ch, 80, sec. 18. 
 
 40. E. S. O. 1897, eh. 80, sec. 19. 
 
 41. E. S. 0. 1897, ch. 80, sec. 21, Am. 
 
 42. E. S. 0. 1897, ch. 80, sees. 22, 23. 
 
 43. E. S. 0. 1897, ch. 80, sec. 24; Con. Eules 1031, 1032; 
 H. & L., pp. 1261, 1262. Form of assignment of 
 bond:H. &L. forms, 1185. 
 
 44. Con. Enle 1033; H. & L., p. 1262: see 1913 Eule 574. 
 
 45. Con. Enle 1035: see 4 Anne, ch. 16, sec. 20; H. & L. f 
 p. 1263. 
 
 47. E. S. O. 1897, ch. 80, sec. 25. 
 
 48. E. S. O. 1897, ch. 80, sees. 26, 27. 
 
 49. E. S. 0. 1897, ch. 80, sees. 30-31. 
 
 50. E. S. O. 1897, ch. 80, sec. 32. 
 
 51. E. S. O. 1897, ch. 81, sec. 8. A defendant arrested 
 
 and imprisoned nnder a ca. sa. is a debtor in close 
 custody under this Act: Hay v. Paterson, 11 P. E. 
 114. Supersedeas : see Wheatley v. Sharpe, 8 P. E. 
 307. 
 
 52. E. S. O. 1897, ch. 81, sec. 8. 
 
 53. E. S. O. 1897, ch. 81, sec. 9. The expression " if the 
 matter thereof is deemed satisfactory," referring 
 to the examination of the debtor means " if he fully 
 and credibly gives the information called for by 
 viva voce questions." The object of the statute is 
 to test the verity of the debtor, and if it truly 
 appears that his affidavit is correct he should be dis- 
 charged from custody, although his manner of deal- 
 ing with his property may have been unsatisfactory^ 
 for example, by having fraudulently disposed of his 
 property: Peoples Loan v. Dale, 18 P, B. 338; Me- 
 Dougall v. McKinnon, 9 O. W. E. 689; Wallis v. 
 
CHAPTER 83 285 
 
 Harper & Gibson, 3 P. E. 50. It is the duty of the 
 debtor to give information. It is not enough to say 
 that he does not know, or does not remember, if he 
 have the means at hand to qualify himself to explain : 
 Foster v. Van Wormer, 2 P. R. 597. An order of a 
 County Judge discharging a defendant from arrest 
 under ca. sa. ; is not in its nature final, and is not 
 appealable: Gallagher v. Gallagher, 31 0. E. 172. 
 
 54. E. S. 0. 1897, ch. 81, sec. 11. 
 
 55. E. S. 0. 1897, ch. 81, sec. 12. 
 
 56. E. S. 0. 1897, ch. .81, sec 13. Attachment : release 
 of debtor by mistake of gaoler without order: Court 
 has no jurisdiction to allow a further writ of attach- 
 ment to issue against him for the same offence: 
 Church's Trustees v. Hibbard, 1902, 2 Ch. 784. 
 
 57. E. S, Q. 1897, ch. 81, sec. 14. 
 
 58. Con. Eule 899 ; H. & L., p. 1135. 
 
 60. E. S. 0. 1897, ch. 81, sec. 15. Forms prescribed by 
 the former Eules 874, 899, 1021-1057 : see Order for 
 arrest (Con. Eule 1021) ; H. & L., form 1183. Bail to 
 Sheriff (Con. Eule 1023) ; H. & L., form 1184. Assign- 
 ment of bail bond (Con. Eule 1031; H. & L., form 
 1185. Security in action by defendant (Con. Eule 
 1036) ; H. & L. form 1186. Form of bond and affi- 
 davits: Forms 200, 201, 202; H. & L. forms 1186- 
 1188. 
 
2g6 CHAPTER 84. 
 
 CHAPTER 84. 
 
 The Ontario Habeas Cobptjs Act. 
 
 2. The Supreme Court of Ontario has no jurisdiction to 
 issue a writ of habeas corpus directed to a person who 
 is outside the jurisdiction of the Court : R. v. Pinckney, 
 1904, 2 K. B. 84. A person confined or restrained of 
 his liberty is limited to one writ of habeas corpus to 
 be granted by a Judge of the Supreme Court, return- 
 able before himself or another Judge in Chambers or 
 a Divisional Court, with a right of appeal under sec. 
 8, which is final ; and, where no such appeal is taken, 
 the judgment which might have been appealed be- 
 comes final, and may be pleaded as res judicata: 
 Taylor v. Scott, 30 O. R. 475 ; Re Harper, 23 0. R. 63. 
 See H. & L., notes, pp. 40-41, 122 Con. Rule 366; 
 H. & L. notes, p. 572; 1913 Rule 207. A " Court of 
 record " means the Superior Courts of record, and 
 does not include a Magistrate's Court: R. v. Gibson, 
 29 O. R. 660. On the return to a habeas corpus 
 where warrant shews jurisdiction, a Judge cannot 
 try on affidavit evidence the question where the 
 alleged offence was committed: R. v. Defries, 25 
 O. R. 645. It is a fatal objection to a writ if the 
 prisoner is in custody by virtue of a conviction or 
 order of a Court of record : R. v. St. Denis, 8 P. R. 
 16 ; R. v. Murray, 28 O. R. 549. In such case a writ 
 should not issue, but if it does, the prisoner should 
 be remanded to gaol. His remedy, if any, is by way 
 of review on a reserved case: R. v. Harrison, 10 0. 
 W. R. 35. Where the defendant was in custody un- 
 der a writ of attachment and a motion was pending 
 for his discharge on the return of a writ of habeas 
 corpus, a fiat or order that he be brought before the 
 Court for the purpose of moving in person for his 
 discharge from custody was refused, for, if the sher- 
 iff obeyed such an order (which he would not be 
 bound to do), the defendant would not be in proper 
 and legal custody : Roberts v. Donovan, 16 P. R. 457. 
 An order made by a Judge of a County Court in 
 Chambers for the commitment to close custody of a 
 party to an action for default of appearance to be 
 re-examined as a judgment debtor is " process " 
 
CHAPTER 84. 287 
 
 within the exception in the section. A writ of habeas 
 corpus granted was quashed as improvidently is- 
 sued: Ee Anderson and Vanstone, 16 P. E. 243. 
 A warrant is " process:" Ee Stickney, 13 0. W. E. 
 1203. If a prisoner, who has applied for a writ of 
 habeas corpus, escapes after the issue of such writ 
 and pending the argument on its return, and thus 
 puts an end to his detention, he waives all right 
 which he might have had under the writ, and no 
 order can afterwards he made for his release, even 
 though he afterwards come into the custody of the 
 same Sheriff. The Court is not precluded from 
 granting him another writ when there has not heen 
 an adjudication on the merits : Ee Bartells, 15 0. L. 
 E. 205. Application to Divisional Court for second 
 writ: E. v. Miller, 14 0. W. E. 202, 19 0. L. E. 125, 
 288. Issue of second writ : E. v. Eobinson, 10 0. W. 
 E. 338 ; Ee Bartells, 15 0. L. E. 205. Power of Court 
 to award costs to Crown: E. v. Leach, 12 0. W. E. 
 1016, 1026, 13 0. W. E. 86, 17 0. L. E. 643 at 
 670. Application of Act on appeals under Liquor 
 License Act: E. v. Leach, 21 0. W. E. 919. Jur- 
 isdiction of Divisional Court : Liquor License ap- 
 peals: see Ee Harper, 23 0. E. 63, Ee Teasdale, 
 20 O. L. E. 382 ; E. v. Graves, 1 0. W. N. 973. Secur- 
 ity for costs may be ordered in habeas corpus pro- 
 ceedings and may cover past as well as future costs : 
 Ee Frederick Kenna, 4 0. W. N. 1395, 5 0. W. N. 
 40, 25 0. W. E. 35. Power of Judges of Supreme 
 Court of Canada to issue writs of habeas corpus, see 
 Ee Sproule, 11 S. C. E. 140; Ee Trepanier, 12 S. C. 
 E. 111. Jurisdiction of Supreme Court of Canada as 
 to habeas corpus in criminal matters: Ee Boucher, 
 Cas. Dig. 180. See also Ee Smart Infants, 16 S. C. 
 E. 396; Ex p. James v. Macdonald, 27 S. C. E. 683; 
 Ee Lazier, 29 S. C. E. 630. As to habeas corpus 
 generally; see Dig. Ont. Case Law, col. 2995, 3004. 
 
 6. The very language of this section would seem to re- 
 quire, when papers have been returned pursuant to 
 the certiorari that the Court should look into them, 
 and if it finds the conviction bad and insufficient to 
 justify the commitment or the evidence and deposi- 
 tions inadequate to sustain the conviction, order the 
 discharge of the prisoner. In England the return of 
 a conviction, regular in form and on its face valid 
 
288 CHAPTER 84. 
 
 and sufficient, is, unless there be a question of juris- 
 diction, a conclusive answer to a motion for dis- 
 charge on habeas corpus : E. v. Farrell, 10 0, W. E. 
 791, 15 O. L. E. 100. On the return of habeas corpus 
 for the discharge of a prisoner under a conviction, 
 regular on its face, the Court will not re-hear the 
 case, or weigh the evidence or sit in appeal, but will 
 examine the depositions to see if there is evidence 
 to sustain the conviction : E. v. Farrell, 10 O. W. E. 
 791, 15 O. L. E. 100. See also E. v. Masier, 4 P. E. 
 64; E. v. St. Clair, 27 A. E. 308; E. v. Brisbois, 15 
 O. L. E. 264, 10 O. W. E. 869. Where a prisoner is 
 discharged as of right, there is no power to impose 
 a condition as to not bringing an action because of 
 illegal detention. The provisions in the Code and 
 in the Ontario Statutes, as to protecting Magistrates, 
 do not apply to habeas corpus where everything is 
 left as it stands when the prisoner is discharged: 
 E. v. Lowery, 10 O. W. E. 755, 15 O. L. E. 182. Method 
 of review of decision of Commissioner under Child- 
 ren's Protection Act: Ee Kenna, 4 O. W. N. 1395, 5 
 0. W. N. 392 ; Ee Maher, 4 0. W. N. 1009, 28 0. L. E. 
 419 ; Ee Granger, 28 O. E. 555. 
 
 7. Sections 7 and 6 are not intended to apply to criminal 
 
 cases where no preliminary examination has taken 
 place: E. v. Defries, 25 0. E. 645. However illegal 
 or unwarranted the original caption, if the prisoner 
 is rightly and properly detained and the- warrant 
 returned to the writ of habeas corpus shews such 
 lawful detention the Court will not grant the dis- 
 charge: Eeg. v. . Whitesides, 8 0. L. E. 622, where 
 difference between civil and criminal proceedings is 
 pointed out. Parties allowed to examine each other 
 for discovery before hearing after return to writ 
 of habeas corpus: Ee Smart Infants, 12 P. E. 2. 
 Sections 1120 and 1132 of the Criminal Code over- 
 come technical objections based on defects in war- 
 rants of commitment : E. v. Macdonald, 21 0. L. 
 E. 38. Where writ issues for production of child 
 with view to its future custody, practice, on return of 
 writ and evidence that may be taken : see Ee Kenna, 
 4 0. W. N. 1395, 5 0. W. N. 392. 
 
 8. See Taylor v. Scott, 30 0. E. 475; Ee Harper, 23 0. E. 
 
 63. As to propriety of granting bail in extradition 
 
CHAPTER 85. 289 
 
 proceedings otherwise than de die in diem pending 
 the hearing of a motion for habeas corpus on an 
 appeal: see Ee Watts, 3 0. L. E. 279. Effect of this 
 section on E. S. 0. 1914, ch. 215, sec. 113 : see E. v. 
 Eobinson, 10 0. W. E. 338. A special right of appeal 
 is given to the Crown under E. S. 0. 1914, ch. 215, 
 sec. 113. In such a case the provisions of this section 
 are inapplicable: E. v. Eeid, 12 0. W. E. 819, 17 
 O. L. E. 578. See Judicature Act, E. S. 0. 1914, ch. 
 56, sec. (2) (i). 
 
 See Habeas Corpus Act, 31 Cfcis. II. ch. 2, E. S. 0. 
 1897, vol. iii. p. xxxvi. Action for £500 penalty under 
 31 Car. 2, sec. 5 : see Arscott v. Lilley, 11 0. E. 153, 
 14 A. E. 297; E. v. Arscott, 9 0. E. 541 (E. S. 0. 
 1897, Vol. Ill, Pt. iii, p. xxxix). 
 
 CHAPTEE 85. 
 
 The Constitutional Questions Act. • 
 
 See Judicature Act, E. S. 0. 1914, ch. 56, sees. 26 
 (2t), 33; H. & L., notes, p. 48. The Supreme Court 
 of Canada had no jurisdiction to entertain an appeal 
 from the opinion of * a provincial Court upon a refer- 
 ence made by the Lieutenant-Governor in Council 
 under a provincial statute authorizing him to refer 
 to the Court any matter he thinks fit, and although 
 the statute provides that such opinion shall be- 
 deemed an opinion of the Court: Union Colliery v. 
 Atty. Gen. of British Columbia, 27 S. C. E. 637. As 
 to questions which should be put under this chapter, 
 and to the difficulties and dangers of hypothetical 
 questions and the worthlessness of speculative opin- 
 ions thereon : see Atty. Gen. for Ontario v. Hamilton 
 Street Ey., 1903, A. C. 524. See for examples of cases 
 submitted: Atty.-Gen. for Canada v. Atty-Gen. for 
 Ontario, 20 0. E. 222, 19 A. E. 31, 23 S. C. E. 458; 
 Ee Provincial Fisheries, 26 S. C. E. 444 ; Ee Assign- 
 ments and Preferences Act, 1894, A. C. 189; Ee 
 Queen's Counsel, 23 A. E. 792, 1898, A. C. 247; Ee 
 Local Option, 18 A. E. 572, 24 S. C. E. 145, 170, 
 1896, A. C. 348; Ee The Lords' Day Act, 1 0." W. E. 
 
 S.A.— 19 
 
290 CHAPTER 86. 
 
 312, 1903, A. C. 524; Ee Ontario Medical Act, 8 
 0. W. R. 766, 13 0. L. E. 501; Ee Bread Sales Act, 
 23 0. L. E. 238. Case stated as to meaning and 
 effect of 8 Edw. VII. ch. 54, sec. 11: Ee Liquor 
 License Act, 5 0. W. N. 225. Eefer also to Atty.-Gen. 
 Ontario v. Hamilton Street By., 1903, A. 0. 524; 
 Atty. Gen. for Ontario v. Atty. Gen. for Canada, 
 1896, A. C. 348; Ee Provincial Fisheries, 26 S. C. E. 
 444; Ee Eeferences by Governor General in Coun- 
 cil, 43 S. C. E. 536. Cases stated and transmitted 
 by the Judges of County Courts under special Acts, 
 (e.g., The Assessngpit Act, The Voters' Lists Act), 
 do not stand on the same footing as questions re- 
 ferred by the Lieutenant-Governor in Council under 
 this Act: Ee Knox, 12 0. W. E. 499; Ee Norfolk 
 Voters' Lists, 15 0. L. E. 108, 10 0. W. E. 743 (where 
 the Court declined to answer the questions sub- 
 mitted). And even in cases under this Act the Court 
 may not answer every kind of question submitted: 
 Ee Ontario Medical Act, 13 0. L. E. 501, 8 0. W. E. 
 766. 
 
 8. See Judicature Act, sees. 26 (2t), 33. 
 
 CHAPTEE 86. 
 
 The Damage by Flooding Act. 
 
 4. A suitor may, if he chooses, pursue his ordinary 
 remedy instead of proceeding before a Stipendiary 
 Magistrate: Blair v. Chew, 21 C. L. T. 404. But by 
 doing so he incurs the risk of being deprived of his 
 costs by the Judge who tries the action: Nealy v. 
 Peter, 4 0. L. E. 293. But the Judge may award 
 him full costs: Neely v. Parry Sound Eiver Imp. 
 Co., 8 0. L. E. 129. 
 
CHAPTER 8T. 291 
 
 CHAPTER 87. 
 
 The Justices of the Peace Act. 
 
 Eefer to Crankshaw (Can.), Practical Guide to Po- 
 lice Magistrates and Justices of the Peace; Seager 
 (Can.), Practical Guide for Justices of the Peace; 
 Stone, Justices' Manual. 
 
 5. Constitutionality: The right of Provincial Legisla- 
 tures to legislate in relation to the administration of 
 justice, includes a right to make provision for the 
 appointment of Justices of the Peace and Police 
 Magistrates : Eeg. v. Bennett, 1 0. E. 445, 2 Cart. 634. 
 
 11. The interest of a Justice of the Peace in property in 
 respect of which he qualifies discussed : sufficiency of 
 the estate or interest mentioned in the section: see 
 Weir v. Smyth, 19 A. E. 433. The Court refused to 
 quash a conviction under the Canada Temperance 
 Act, on the ground that the convicting magistrate 
 had not the necessary property qualification, the 
 defendant not having negatived the magistrate's 
 being a person within the terms of the exception of 
 the section: E. v. Hodgins, 12 0. E. 367. 
 
 12. Objection to qualification of Magistrate, because of 
 his failure to take oath : public acquiescence will not 
 avail to make the adjudication binding: Ex parte 
 Mamville, 1 Can. Cr. Cas. 528. But where his quali- 
 fication has not been contested at the time of the 
 trial, the judgment is that of a Judge de facto, and 
 binding : Ex parte Curry, 1 Can. Crhn. Cas. 532 : see 
 Ex parte Gaynor and Grieve, 9 Can. Crim. Cas. 252 ; 
 E. v. Mackay, 1 D. L. E. 481. 
 
 20. Liability of Police Magistrate acting ex officio as 
 Justice of the Peace, to make returns: Hunt v. 
 Shaver, 22 A. E. 202. Time for return being made : 
 sufficiency : Longway qui tain v. Avison, 8 0. E. 357 ; 
 McLellan v. Brown, 12 C. P. 542. The Justice of the 
 Peace is liable to a separate penalty for each con- 
 viction not returned: statutes reviewed: see Dar- 
 r'agh q. t. v. Paterson, 25 C. P. 529 : see also Donagh 
 
292 CHAPTER 87. 
 
 v. Longworth, 8 C. P. 437. The returns must be 
 made on or before the second Tuesday in March, 
 June, September and December respectively follow- 
 ing the dates of the convictions: Corsant q. t. v. 
 Taylor, 23 C. P. 607. An order for payment of 
 money under the Master and Servant Act, is not 
 a conviction which it is necessary to make a re- 
 turn of: Eanney v. Jones, 21 U. C. R. 370. "What 
 amounts to a sufficient return: Ball v. Fraser, 18 
 II. C. R. 100; see also cases Ont. Dig. Case Law, 
 cols. 3724-3728. 
 
 31. Form of action under former section : the defend- 
 ant having in fact made a conviction, he could 
 not object that the plaintiff's declaration did not 
 shew he had jurisdiction to convict: Bagley q. t. v. 
 Curtis, 15 C. P. 366 : see also Drake v. Preston, 34 
 U. C. R. 257. No right of action vests in the plain- 
 tiff until the action is brought: Masson v. Mossop, 
 29 U. C. R. 500. Venue : see Con. Rule 529 ; H. & L. 
 notes, p. 735; 1913 Rule 245. 
 
 36. When the Justice of the Peace is not entitled to any 
 fee whatever, the action under this section for a 
 penalty does not lie. The action provided, is for 
 wilfully receiving a larger amount of fees than the 
 Justice of the Peace is entitled to: McGillivray v. 
 Muir, 6 O. L. R. 154. The question whether the fees 
 were received " wilfully " or not is a question of 
 fact for the tribunal trying the action: Brashier v. 
 Jackson, 6 M. & W. 549. Where there is no statute 
 authorizing the taking of a fee for an indictable 
 offence, the Justice of the Peace, who takes such a 
 fee cannot be sued for a penalty, for none is at- 
 tached : Bowman v. Blyth, 7 El. & Bl, 26. In such a 
 case the Justice might be indicted for extortion 
 under the Criminal Code: see R. v. Tisdale, 20 
 IT. C. R. 272. 
 
CHAPTER 88. 293 
 
 CHAPTER 88. 
 
 The Police Magistrates Act. 
 
 Refer to Crankshaw (Can.), Practice and Guide to 
 Police Magistrates and Justices of the Peace ; Seager 
 (Can.), Practical Guide for Justices of the Peace; 
 stone, Justices' Manual; Atkinson's Magistrates An- 
 nual Practice ; Paley on Convictions. 
 
 2. Constitutionality : Right of Province to appoint Police 
 
 Magistrates : R. v. Bennett, 1 0. R. 445, 2 Carl;. 634 ; 
 R. v. Lee, 15 0. R. 353; Richardson v. Ransom, 10 
 O. R. 387, 4 Cart. 630; R. v. Richardson, 8 0. R. 651; 
 R. v. Reno, 4 P. R. 281, 1 Cart. 810. 
 
 3. The plaintiff was appointed by the Provincial Govern- 
 
 ment, of its own motion, Police Magistrate without 
 salary, under section 8. The plaintiff then demanded 
 a salary under this section (b), which was for a time 
 conceded, but at first reduced and then withdrawn 
 altogether, by resolution of council. The council 
 had the right to do so : Ellis v. Toronto Junction, 28 
 0. R. 55, 24 A. R. 192. The salary of a Police Mag- 
 istrate cannot be seized or attached: Central Bank 
 v. Ellis, 20 A. R. 364. 
 
 8. The effective act of appointment is the Order in Coun- 
 cil, not the Commission: R. v. Reedy 18 O. L. R. 1. 
 see Ellis v. Toronto Junction, 28 0. R. 55, 24 A. R. 
 192, note to sec. 3, supra. 
 
 10. A Police Magistrate who has once undertaken a case 
 must continue: Re Hohnan and Rea, 27 0. L. R. 432. 
 
 13. The salary of a Police Magistrate cannot be seized 
 
 or attached, on grounds of public policy, he being the 
 holder of " an office which is a public judicial office : " 
 Central Bank v. Ellis, 20 A. R. 364. And it makes 
 no difference if he is appointed by resolution, under 
 this section: Lee v. Ellis, 8 0. W. R. 396. 
 
 14. Effect on jurisdiction of Justice of Peace, where 
 police Magistrate is appointed for a portion of dis- 
 trict: R. v. Reedy, 13 0. W. R. 265, 18 0. L. R. 1. 
 
294 CHAPTER 88. 
 
 17. But see Ellis v. Toronto Junction, 28 0. E. 55, 24 
 A. E. 192, note to sec. 3, supra. 
 
 18. A Police Magistrate appointed for a town, notwith- 
 
 standing he has jurisdiction as a Justice of the Peace 
 for the whole county, has no jurisdiction to act at 
 the trial of an offence committed in another town, 
 for which there is a Police Magistrate, except at 
 general sessions, or in case of the illness, absence, or 
 at the request of such other Police Magistrate: E. 
 v. Holmes, 14 O. L. E. 124. In case of request, his 
 jurisdiction is unquestioned : E. v. Farrell, 10 0. W. 
 E. 790, 15 0. L. E. 100. The jurisdiction of a Police 
 Magistrate for a county was not superseded by the 
 appointment of another Police Magistrate for that 
 county, whose commission did not appoint him " in 
 the place and stead " of the former Magistrate: E. 
 v. Spellman, 8 0. W. E. 700, 13 0. L. E. 43. The 
 section does not limit the territorial jurisdiction of 
 County Magistrates, but prohibits them from acting 
 " in any case for any town " (the limitation being 
 as to cases, and not as to place), only when not re- 
 quested, and when the Police Magistrate is not 
 absent. Therefore in any case arising in a county 
 outside of a city, a county Justice having jurisdic- 
 tion while sitting in the county, may adjudicate while 
 sitting in the city: E. v. Eiley, 12 P. E. 98. The 
 words " Justice or Justices " in E. S. 0. 1897, ch. 
 245, sec. 118 (6), did not include a Police Magistrate: 
 E. v. Smith, 11 0. L. E. 279, but see present section, 
 E. S. 0. 1914, ch. 215, sec. 118 (6), where the word 
 ' ' magistrate is used, as to the meaning of which 
 see ch. 215, sec. 2 (k). What amounts to " request," 
 and how it must appear : E. v. Akers, 1 0. W. N. 585, 
 780, 15 0. W. E. 679, 21 0. L. E. 187. 
 
 23. It is sufficient if a suitable room or chamber is pro- 
 vided in any building belonging to the municipality, 
 although by doing so, the hours for the transaction 
 of police business may be limited: Mitchell v. Pem- 
 broke, 31 0. E. 348. Liability for stationery extend- 
 ing beyond a year: Mitchell v. Pembroke, 31 0. E. 
 348. 
 
 24. A prosecution under E. S. 0. 1914, ch. 215, may be had 
 
 (sec. 86), before a Police Magistrate, even though 
 
CHAPTER 88. 295 
 
 a Stipendiary Magistrate may be appointed for the 
 district: R. v. Irwin, 11 0. W. R. 728, 16 0. L. E. 
 454. An offence under the Liquor License Act, com- 
 mitted in the township of Barton was properly dis- 
 posed of before the Police Magistrate of Hamilton, 
 both being in the County of Wentworth : E. v. Gully, 
 21 0. E. 219: see also Reg. v. Sharp, 5 P. E. 135; 
 E. v. Mikelham, 11 0. L. E. 366. Police Magistrate's 
 jurisdiction: Holman v. Rea, 4 0. W. N. 207, 434, 
 23 0. W. E. 219, 428, 27 O. L. E. 432. The Police 
 Magistrate has the powers of a Justice of the Peace, 
 but when he acts, he acts as a Police Magistrate: 
 Hunt v. Shaver, 22 A. E. 202; E. v. Eeedy, 13 0. W. 
 E. 265, 18 0. L. R. 1. 
 
 26. Jurisdiction of Justices of the Peace, sitting for 
 Magistrate in absence of Magistrate : Eeg. v. Gordon, 
 16 0. E. 64; Eeg. v. Lynch, 19 0. E. 664. Once a 
 Magistrate is seized of a prosecution, he has no 
 power to discharge himself or request another Mag- 
 istrate to act for him: E. v. McEae, 28 0. E. 569; Ee 
 Holman and Eea, 27 0. L. E. 432. What amounts 
 to «, request and how it must appear : E. v. Akers, 21 
 O. L. E. 187. Bequest gives jurisdiction: E. v. 
 Farrell, 15 0. L. E. 100. 
 
 28. The great inland lakes of Canada are within the ad- 
 miralty jurisdiction, and offences committed on them 
 are as though committed on the high seas, and, there- 
 fore, any Magistrate of this province has authority 
 to enquire into offences committed on said lakes, 
 although in American waters: E. v. Sharp, 5 P. R. 
 135; see, also, as to county jurisdiction extending 
 into lakes : R. v. Mickleham, 11 0. L. R. 366, note to R. 
 S. 0. 1914, ch. 215, sec. 11. " When sitting elsewhere 
 than within city or town for which he is Police Magis- 
 trate, though not divested of his individuality as a 
 Police Magistrate, and in fact, exercising jurisdiction 
 because he is a police magistrate, and, therefore, ex 
 officio Justice of the Peace for the county, his powers 
 and jurisdiction are merely those of two Justices of 
 the Peace; and what two or more Justices of the 
 Peace are not authorized to do, he may not do." per 
 Anglin, J., R. v. Holmes, 9 0. W. R. 750, 14 0. L. R. 
 124. The city Police Magistrate is ex officio a Justice 
 of the Peace for the county, and could as Police 
 
296 CHAPTER 89. 
 
 Magistrate sitting alone, do anything that two 
 Justices of the Peace sitting together, could do : E. 
 v. Spellman, 13 0. L. R. 43; see also E. v. Smith, 11 
 0. L. E. 279. Jurisdiction under Master and Servant 
 Act, E. S. 0. 1914, ch. 144: Ee O'Neill and Duncan 
 Litho. Co., 13 0. W. E. 511. See E. v. Eeedy, 13 0. 
 W. E. 265, at p. 267, 18 0. L. E. 1, at p. 4. 
 
 31. Police Magistrate's jurisdiction and duty: Holman v. 
 Eea, 4 0. W. N. 207, 434, 23 0. W. E. 219, 428, 27 
 0. L. E. 432. 
 
 34. Magistrate having once undertaken a case must con- 
 tinue to the end: Ee Holman and Eea, 27 0. L. 
 E. 432. 
 
 CHAPTEE 89. 
 
 The Public Atjthokities' Pbotection Act. 
 
 Eefer to Bicknell and Kappele, Practical Statutes, 
 pp. 128-132. 
 
 The object of the Act is to protect those fulfilling a 
 public duty, even though in the performance of it, 
 they may act wrongfully or erroneously. Plaintiff 
 must allege malice and lack of reasonable and prob- 
 able cause. Where a person entitled to the protec- 
 tion of the Act, does something not imposed on him 
 in the discharge of any public duty, this is not re- 
 quired: Kelly v. Barton, 26 O. E. 608, 22 A. E. 
 522, where cases are reviewed. Action under sec. 3, 
 must charge malice and absence of reasonable and 
 probable cause, and lies where the defendant is act- 
 ing within his jurisdiction, but goes wrong. If the 
 defendant acts without jurisdiction, under sec. 4 the 
 claim need not contain these charges, and the plain- 
 tiff need not prove them in order to recover : Piggott 
 v. French, 1 0. W. N. 715, 15 0. W. E. 852, 21 0. L. E. 
 87. Police Magistrate issuing warrant for arrest of 
 witness on evidence insufficient to justify arrest : Gor- 
 don v. Denison, 24 0. E. 576, 22 A. E. 315 ; see also 
 Mechiam v. Home, 20 0. E. 267, where there was 
 some excess of jurisdiction. The action is in tort : Cor- 
 sant q. t. v. Taylor, 10 C. L. T. 320. Form of pleading: 
 
CHAPTER 89. 297 
 
 Drake v. Preston, 34 U. C. E. 257. The action need 
 not be qui tarn: lb. Plaintiff's costs: Stinson v. 
 Guess, 1 C. L. T. 19, Brush v. Taggart, 16 C. P. 415. 
 Pleading defence under this statute: Titchmarsh 
 v. Graham, 13 0. W. E. 618. Constitutionality: 
 Titchmarsh v. Graham, 14 0. W. E. 277. 
 
 4. — (1) "The distinction between the case of an official 
 acting within the jurisdiction conferred on him by 
 law, but blundering by the way, and an official act- 
 ing without, or in excess, of his legal jurisdiction, is 
 very clearly pointed out in the statute. By sec. 3, 
 it is necessary to allege, and also to prove, malice 
 and the absence of reasonable and probable cause. 
 By sec. 4, it is not." Per Curiam: Moriarity v. 
 Harris, 10 0. L. E. 610, at p. 613, where cases are 
 - reviewed. See also Polly v. Fordham, 1904, 20 Times 
 L. E. 639.~ Justice of the Peace not acting bona fide : 
 Cummins v. Moore, 37 U. C. E. 130. 
 
 4. — (4) Second warrant : Habeas corpus : see Arscott v. 
 Lilley, 11 O. E. 153, 14 A. E. 297. 
 
 5. Orders requiring a Justice of the Peace to do 
 
 any Act relating to the duties of "his office under this 
 section, are not final, but are appealable, and should 
 be heard before a Judge in Court, and not before a 
 Divisional Court: E. v. Meehan, 3 O. L. E. 361. A 
 mandamus lies to a Police Magistrate to compel him 
 to consider and deal with an application for an 
 information for voting in more than one ward at a 
 municipal election by general vote : Ee E. v. Meehan, 
 3 O. L. E. 567. 
 
 6. Motion for order nisi : Ee Eex v. Graham, Ex p. Titch- 
 
 marsh, 2 0. W. N. 326, 463, 17 0. W. E. 660, 1058. 
 
 7. Where a Magistrate had jurisdiction, and his convic- 
 
 tion was set aside on the ground that certain omis- 
 sions rendered the warrant defective on its face, the 
 Magistrate was held entitled to protection and secur- 
 ity for costs: Titchmarsh v. Graham, 14 0. W. E. 
 619, 690, 1043, 1 0. W. N. 27, 208. 
 
 8. Order for protection conditioned on payment of costs 
 
 of habeas corpus application: E. v. Eobinson, 10 0. 
 
298 CHAPTER 89. 
 
 W. E. 338. When a prisoner is entitled to his dis- 
 charge under a writ of habeas corpus by reason of 
 no offence being disclosed in the material under 
 which he was committed, such discharge cannot be 
 made conditional on no action being brought against 
 the Magistrate : E. v. Lowery, 15 0. L. E. 182. 
 
 9. As to what is a case within this section, and when ap- 
 plication should be made: see Webb v. Spears, 15 
 P. E. 232. 
 
 12. Where Justices have a general jurisdiction over the 
 subject-matter upon which they have issued a war- 
 rant of commitment to the gaoler* though their pro- 
 ceedings are erroneous, the gaoler is not liable. 
 Secus if the proceedings be wholly void: Ferguson 
 v. Adams, 5 U. C. E. 194. When a Constable is 
 entitled to the protection of this statute: Alderich 
 v. Humphrey, 29 O. E. 427. Constable executing a 
 warrant in good faith, outside of the territorial jur- 
 isdiction of the Magistrate issuing it, and without 
 having the warrant backed: Alderich v. Humphrey, 
 29 0. E. 457. Assault by Police Constable under cir- 
 cumstances outside his official authority: Moriarity 
 v. Harris, 8 0. L. E. 251, 10 0. L. E. 610. Police 
 Constable searching plaintiff's dwelling for liquor: 
 question whether acting bona fide in discharge of his 
 duty : Bell v. Lott, 9 0. L. E. 15. Constable execut- 
 ing warrant protected : Gaul v. Ellice, 3 0. L. E. 438. 
 Police Sergeant laying information: Eaves v. Nes- 
 bitt, 1 0. L. E. 244. Action against Constable: Eob- 
 inson v. Morris, 19 0. L. E. 633, 14 0. W. E. 1001; 
 and see E. S. 0. 1914, ch. 94, notes. 
 
 13. — (1) Operation of English Public Authorities Protec- 
 tion Act, 1893, discussed : see Pearson v. Dublin Cor- 
 poration, 1907, A. C. 351. Under the English statute 
 (Public Authorities Protection Act, 1893), where a 
 municipal council acquire and operate a tramway 
 under statutory powers, negligence on the part of 
 their servants is a neglect or default in the execution 
 of a public duty or authority, ^and consequently 
 action must be commenced within 6 months. The 
 English Act expressly applies to any alleged neglect 
 or default in the execution of any statutory duty or 
 authority: see Parker v. London County Council, 
 
 .,:■-, 
 
CHAPTER 89. 299 
 
 1904, 2 K. B. 501 (but see sec. 17 of this Act). 
 " Done in the execution of his office " includes 
 medical superintendent of a public hospital: Pye 
 v. Toronto, 9 0. W. R. 632. Where the defend- 
 ant holds a public office, the pleadings must be 
 looked to to ascertain whether he is sued in that 
 capacity: Parkes v. Baker, 17 P. R. 345; Lane v. 
 Clinkinbroomer, 3 0. W. R. 613. See also Logan v. 
 Hurlburt, 23 A. R. 628. Acts done while not fulfill- 
 ing a public duty : McDonald v. Dickenson, 25 0. R. 
 45, 21 A. R. 485. A school trustee sued for act done 
 in his corporate capacity: see Spry v. Mumby,. 11 
 0, P. 285. Breach by guardians of a union of a pro- 
 vate contract entered into by them in the perfor- 
 mance of their public duties is not within the Eng- 
 lish Act: Sharpington v. Fulham Guardians, 1904, 
 2 Ch. 449. Protectipn of public officer for unlawful 
 innocent act: Piggott v. French, 21 0. L. R. 87. 
 Where an official has acted without jurisdiction: 
 Sinden v. Brown, 17 A. R. 173 ; McGuiness v. Daf oe, 
 23 A. R. 704. Where act is of nature and descrip- 
 tion within his general official authorization: Mc- 
 Guiness v. Dafoe, 23 A. R. 704: see also Friel v. 
 Ferguson, 15 C. P, 584. Bailiff, in action for seizure 
 and sacrifice of plaintiff 's goods: Pearson v. Ruttan, 
 15 C. P. 79. Action against tax collector: Spry v. 
 Mumby, 11 C. P. 285; Howard v. Harrington, 20 
 A. R. 175. Where action is for an omission, not an 
 act done : Harrison v. Brega, 30 U. C..R. 324 ; Harrold 
 v. Simcoe, 16 C. P. 43. Action for mandamus to 
 compel license commissioners and inspectors to per- 
 form their duties, and for damages, etc. : Haslam v. 
 Schnarr, 30 0. R. 89 ; but see also Leeson v. Dufferin, 
 19 O. R. 67. Action against a Division Court Clerk for 
 money receiyed under a judgment : Dale v. Cool, 6 C. 
 P. 544; McLeish v. Howard, 3 A. R. 503. Action 
 against license commissioners : McDonnel v. Grey, 1 
 0. W. N. 527. Protection extended to Inspector, etc., 
 seizing liquor where no conviction: see R. S. 0. 
 1914, ch. 215, sec. 133. An action for negligently sup- 
 plying water impregnated with sand, and thereby in- 
 juring the plaintiffs elevator, is one of breach of con- 
 tract: Scottish Ontario v. Toronto, 24 A. R. 208. Pro- 
 tection of pathmaster : Stalker v. Dunwich, 15 0. R. 
 342. Registrar (to recover excess fees) : Ross v. 
 McLay, 40 U.C. R. 83; Co. Bruce v. McLay, 11 A. 
 
300 CHAPTER 89. 
 
 B. 477. Wrongfully registering documents : Ontario 
 Industrial Loan v. Lindsey, 3 0. B. 66. Vexatious 
 action: Eochford v. Brown, 25 0. L. B. 206. Where 
 principal object of the action is to obtain an injunc- 
 tion: Campbell v. Wallaceburg, 14 O. W. E. 473. 
 Action not brought within six months : Gaul v. Ellice, 
 
 3 0. L. E. 438. Time for commencement of action: 
 see Hanns v. Johnston, 3 0. E. 100. Pleading stat- 
 utory defence : Denny v. Bennett, 44 W. E. 333. 
 
 13. — (3) Successful defendant entitled to his costs as 
 between solicitor and client : see Ing Kon v. Archi- 
 bald, 17 O. L. E. 484. See also Arscott v. Lilley, 
 14 A. E. 283 ; Bostock v. Eamsay, 1900, 1 Q. B. 357, 
 1900, 2 Q. B. 616. 
 
 16. — (1) Security for costs : The statute is not ultra vires, 
 or, if so, is practically re-enacted by Criminal Code, 
 sees. 1131 and 1148 : Titchmarsh v. Graham, 14 0. 
 W. E. 277. Who come within the provisions of ^he 
 Act: see Lewis v. Dalby, 3 O. L. E. 301; Eaves v. 
 Nesbitt, 1 O. L. E. 244; Kelly v. Barton, 26 0. E. 
 608, 22 A. E. 522 ; Paley on Convictions, 7th ed., p. 
 77. See sec. 3 notes. See Con. Eule 1198: Special 
 application necessary— order not obtained on pre- 
 cipe: H. & L. notes, p. 1437; 1913 Eules 373, 374. 
 As to orders for security for costs in actions against 
 Justices, etc. : see H. & L., notes, p. 1432. For form 
 of order: see Thompson v. Williamson, 16 P. E. 
 368 ; Ashcroft v. Tyson, 17 P. E. 42. Where action 
 is tort in respect of unofficial act: Fritz v. Jelfs, 
 
 4 0. W. N. 1271, 1408, 24 0. W. E. 610, 807 ; Meredith 
 v. Slemin, 4 0. W. N. 885, 1038, 24 0. W. E. 155, 315. 
 
 16. — (2) Security furnished by plaintiff: what he must 
 shew: Burns v. Loughrie, 1 0. W. N. 805. The affi- 
 davit is a prerequisite, and must shew: (1) The 
 nature of the action; (2) The nature of the defence; 
 (3) That the plaintiff is not possessed of property 
 sufficient to answer the costs of the action; and (4) 
 either, (a) that the defendant has a good defence 
 on the merits, or (b) that the grounds of the action 
 are frivolous. The words " on the merits " are 
 essential. As to both the alternatives 4 (a) and 4 
 (b) the affidavit must set out the facts: Eobinson v. 
 Morris, 11 0. W. E. 361, 559, 15 0. L. E. 649. Where 
 a magistrate has jurisdiction and his warrant is set 
 
CHAPTER 90. 301 
 
 aside for omissions, rendering it defective on its 
 face, he is entitled to security for costs and protec- 
 tion under sec. 7, ante: Titchmarsh v. Graham, 14 
 0. W. E. 619, 1 0. W. N. 27. While the defendant 
 must apply on notice and affidavit, that does not pre- 
 clude him from invoking the aid of Con. Eule 419 
 (1913 Eule 228), to examine the plaintiff: Lowry v. 
 Wood, 12 0. W. E. 855. The manner in which a 
 County Court Judge exercises his jurisdiction under 
 this section is not a matter for prohibition, but for 
 his own discretion: Ee Hill and Telford, 12 0. W. 
 E. 1090. 
 
 17. The Act does not apply to a municipal corporation: 
 Glynn v. Niagara Falls, 5 0. W. N. 285. Actions 
 against municipal corporations: Hodgins v. Huron, 
 3 A. & E. 169; McCarthy v. Vespra, 16 P. E. 416; 
 Scottish Ontario v. Toronto, 24 A, E. 208 (sec. 13 
 ante, note). Actions against municipal corporations 
 for anything done under a by-law, etc., invalid in 
 whole or in part, see E. S. 0. 1914, ch. 192, sec. 349. 
 
 CHAPTEE 90. 
 
 The Ontabio Summaby Convictions Act. 
 
 Crankshaw, Criminal Code; Tremeear, Criminal 
 Code Annotated; Snow, Annotated Criminal Code; 
 Paley on Convictions ; Magistrates ' Annual Practice ; 
 Stone's Justices' Manual. 
 
 3. Jurisdiction of Justice of the Peace out of sessions 
 
 to try misdemeanours is statutory: E. v. Carter, 5 
 0. E. 651. See Judicature Act, 1897, ch. 51, sees. 
 49, 50 {h) ; H. & L., notes, p. 40 ; E. S. 0. 1914, ch. 56, 
 sec. 26(2) (h). 
 
 4. Part XV. of the code deals with Summary Convic- 
 
 tions. 
 
 705: Interpretation. 
 706: Application. 
 
 707-709: Jurisdiction: Certiorari in case of convic- 
 tion made by a Magistrate without jurisdiction : where 
 the offence for which a conviction is made is found 
 not to come within the statute denning the offence or 
 
302 CHAPTER 90. 
 
 the municipal by-law denning the offence is ultra 
 vires of the statute on which it is based there is such 
 absence of jurisdiction as warrants the issue of a 
 certiorari: B. v. St. Pierre, 4 0. L. E. 76. Where 
 it did not appear on the face of the conviction 
 that the offence was committed within the territorial 
 jurisdiction of the convicting Justices of the Peace, 
 but upon the depositions it was clear that it was, 
 the conviction was sustained : E. v. Perrin, 16 0. E. 
 446. Eight of defendant to writ of certiorari : E. v. 
 Cook, 12 0. W. E. 829, 18 0. L. E. 415. E. v. Eenaud, 
 
 18 0. L. E. 420. 
 
 710: Information and Complaint. 
 711-713: Summons and Warrant. 
 714-722: Trial. 
 
 By the Criminal Code, sees. 721 (3) and 638 
 the Magistrate is required to put the evidence 
 taken by him in writing, and authenticate it by his 
 signature. The witness need not sign: sec. 721 (5). 
 In convictions under the Liquor License Act, in 
 addition to the practice under the Criminal Code 
 introduced by this section E. S. 0. 1914 ch. 215 sec. 
 87, directly provides that in all cases the evidence of 
 the witnesses examined shall be reduced to writing, 
 read over and signed by the witness, unless a sworn 
 stenographer takes it down. As to taking down 
 evidence: see E. v. Brisbois, 10 0. W. E. 869; E. 
 v. Farrell, 10 0. W. E. 790, 15 0. L. E. 100. Pro- 
 ceedings under Criminal Code, sec. 718 (before the 
 present Act) : E. v. Coote, 2 0. W. N. 6, 229, 22 
 0. L. E. 269. Enlargement : adjournment commence- 
 ment of hearing: Code, sees. 708, 722: E. v. Miller, 
 
 19 0. L. E. 125, 288. 
 
 723-725 : Defects and Objections. 
 Conviction on a charge not formulated is bad, even 
 though the evidence and adjudication establish an 
 offence: E. v. Mines, 25 0. E. 577. As to whether 
 the provisions as to amendment of proceedings be- 
 fore Justices of the Peace applicable to prosecutions 
 under Provincial Acts apply to proceedings under 
 the Liquor License Act, 1902, but only to summary 
 proceedings before Justices: see E. v. Foster, 5 0. 
 L. E. 624, and (contra) E. v. Eudolph, 1 0. W. N. 
 1057. Uncertainty as to date, place, etc., could be 
 cured upon the facts in evidence : E. v. Myers, 6 0. 
 L. E. 120. Defects regarded as irregularities: see 
 
CHAPTER 90. 303 
 
 R. v. Collier, 12 P. R. 316. Excess of jurisdiction : 
 costs : distress : R. v. Elliott, 12 0. R. 524. Where 
 defendant took many objections and the merits were 
 against him : R. v. Lynch, 12 0. R. 372. See also R. 
 v. Whitesides, 8 0. L. R. 622. - 
 726-740 : Adjudication. 
 
 The provision in sec. 734 as to dismissal a bar in 
 certain cases where assault charged is intra vires: 
 Flick v. Brisbois, 26 O. R. 423 ; but not where there 
 was an unauthorized change in the offence charged : 
 Miller v. Lea, 25 A? R. 428 ; see also Nevills v. Bal- 
 lard, 28 0. R. 588. Section 739 of the code applies 
 to convictions in matters within the jurisdiction of 
 the province: award of distress for nonpayment of 
 fine: cases before and after the enactment of this 
 clause considered: R. v. Reid, 14 O. W. R. 71, 153. 
 Proceedings under sec. 685, 726-727 of the code : see 
 R. v. Dagenais, 23 0. L. R. 667. 
 741-747 : Enforcing Adjudication. 
 Where the maximum penalty under a statute was 
 imposed and in addition the conviction provided 
 for distress in default of payments, the conviction 
 was quashed, the defect not being cured by the 
 then statutory provisions: R. v. Logan, 16 0. R. 
 335; R. v. Sparham, 8 0. R. 570. Distress provided 
 in a by-law may be merely a means of collecting 
 the penalty and not as part of the punishment : R. v. 
 Flory, 17 0. R. 715. 
 
 748: Sureties to keep the peace: amount must be 
 fixed: Re Doe, Q. R. 2 Q. B. 600. 
 749-760 : Appeal : see sec. 10, notes. 
 761-769: Stating a case. The Act, R. S. 0. 1914, ch. 
 90 provides for appeal. The magistrate cannot state 
 a case : R. v. Robert Simpson Co., 28 0. R. 231 : un- 
 less constitutionality of statute is in question: see 
 sec. 11, notes. As to stated cases and hearing: see 
 R. v. Dom. Bowling Club, 19 0. L. R. 107. A ques- 
 tion of admissibility of evidence cannot form part 
 of a stated case, ibid. An application to a Magistrate 
 to state a case in regard to a prosecution under an 
 Ontario statute should be made within a reasonable 
 time: R. v. Ferguson, 12 0. L. R. 411, 8 0. W. R. 
 306. As to effect of stating case: see R. v. Boult- 
 bee, 23 U. C. R. 457. See R. ex rel. Brown v. R. Simp- 
 son Co., 28 0. R. 231, as to law prior to amendment of 
 1901. Jurisdiction to hear case stated : R. v. Henry, 
 
304 CHAPTER 90. 
 
 19 0. L. E. 494, 1 0. W. N. 567. Sections 761-9 of 
 
 the Criminal Code cover the matter of a magistrate 
 
 stating a case: E. v.i Harvey, 1 0. W. N. 1002. 
 
 1121: Convictions affirmed or amended on appeal: 
 
 see E. v. Whitesides, 8 0. L. E. 622. 
 
 1124: Conviction or warrant in cases of certiorari, 
 
 etc. : see notes to sees 709-709, ante. 
 
 1125: Irregularities. 
 
 1142 : Time limit. Where no time is specially limited 
 
 for laying complaint : E. v. McKinnon, 3 O. L. E. 508. 
 
 5. See e.g. : E. v. Boomer, 10 0. W. E. 978, 15 0. L. E. 
 
 321; E. v. White, 21 C. P. 354; and E. S. 0. 1914, ch. 
 215, sec. 50; and Form 6, Nos. 5 and 6 to that Act. 
 
 6. " Penalty:" meaning considered: E. v. Leach, 17 0. 
 
 L. E. 643. Penalty : distress in default of payment : 
 E. v. Eeid, 14 0. W. E. 71, 153. 
 
 7. A charge of fifty cents for drawing up a convic- 
 
 tion under the Liquor License Act is authorized by 
 this section: E. v. Excell, 20 0. E. 633. In a convic- 
 tion under the Master and Servant Act there is 
 power to award imprisonment in default of pay- 
 ment, and by this section that power covers costs 
 as well as the fine : E. v. Lewis, 5 0. L. E. 509. Costs 
 of " Conveying to prison:" (see wording of former 
 sec. 89 E. S. 0. 1897, ch. 245), E. v. Whitney, 2 0. 
 W. N. 1491, 19 0. W. E. 888. Distress: imprison- 
 ment: E. v. Degan, 12 0. W. E. 1029, 17,0. L. E. 366. 
 The omission to ascertain the costs and insert the 
 amount in the conviction is only an irregularity and 
 may afterwards be rectified : E- v. Irwin, E. v. Pettit, 
 11 0. W. E. 728, 730, 16 0. L. E. 454. 
 
 9.— (1) In line 3 before " any," insert " in ". 4 Geo. V. 
 ch. 2, Schedule (21). 
 
 10. The Legislature of this province in plain words, 
 adopting the practice of the Courts of the United 
 States (by the amendment of 1912) has prohibited 
 certiorari in all cases in which an appeal giving 
 adequate relief lies against convictions and orders 
 made under provincial enactments: E. v. Keenan, 
 28 0. L. E. 441. Appeal in case of conviction under 
 Public School Act for refusal to act as trustee: 
 see E. v. Tucker, 10 0. L. E. 506. Payment of 
 
CHAPTER 90. 305 
 
 fine does not bar the right of appeal when pay- 
 ment is made contemporaneously with expres- 
 sions of intention to appeal and under pain 
 of distress: E. v. Tucker, 10 0. L. E. 506. 
 Recognizance to appear at the general sessions and 
 " enter an appeal:" R. v. Tucker, 10 0. L. E. 506. 
 Upon the allowance of such appeal repayment of fine 
 and costs and payment of the costs of the appeal 
 are properly awarded : E. v. Tucker, 10 O. L. E. 506. 
 As to amendment of sentence on appeal: McLellan 
 v. MeKinnon, 1 O. E. 219. Eeturn of amended con- 
 viction by Justice : Ee Eyer and Plows, 46 U. C. B. 
 206; E. v. Smith, 35 IT. C. E. 518. Condition attach- 
 ing to order quashing conviction: E. v. Moringstar, 
 11 O. L. E; 318. Effect where right of appeal given : 
 E. v. Cook, 18 O. L. E. 415, 12 O. W. E. 829. Ade- 
 quate remedy by appeal: E. v. Eenaud, 18 O. L. E. 
 420, 13 O. W. E. 1090. And see where want of juris- 
 diction: E. v. St. Pierre, 4 O. L. E. 76. Where a 
 conviction is affirmed on appeal, certiorari will be 
 only for want or excess of jurisdiction and not for 
 refusal to admit evidence, even if such refusal is 
 erroneous in law: E. v. Dunning, 14 O. E. 52. 
 Subpoena to person in another province to compel 
 attendance on appeal to quarter sessions : E. v. Mc- 
 Donald, 2 Can. C. C. 64. Appeal from judgment of 
 autrefois acquit: E. v. Bombardier, 11 Can. C. C. 
 216. Discretion as to costs cannot be reviewed: E. 
 v. Mcintosh, 28 O. E. 603. The order referred to in the 
 section formerly did not include an order of dis- 
 missal : E v. Toronto Public School Board, 31 O. E. 
 457; Ee Murphy and Cornish, 8 P. E. 420. A pro- 
 vincial statute authorizing a Judge of one county to 
 preside at the general sessions in another county 
 held ultra vires: Gibson v. McDonald, 7 O. E. 401. 
 As to new evidence on appeal : see E. v. Washington, 
 46 U. C. E. 221. Application of sec. 4, and procedure 
 on appeal : E. v. Keenan, 4 O. W. N. 1034, 28 O. L. E. 
 441. As to appeals from convictions under the 
 Liquor License Act : see E. v. Coote, 16 O. W. E. 903, 
 17 O. W. E. 470, 2 O. W. N. 6, 229, 22 O. L. E. 269, 
 and E. S. 0. 1914, ch. 215, sec. 110 notes. 
 
 10; — (3) Adequate relief by appeal: E. v. Keenan, 4 0. 
 W. N. 1034, 28 0. L. E. 441 ; E. v. Eenaud, 18 0. L. E. 
 420. 
 
 S.A. — 20 
 
306 CHAPTER 91. 
 
 11. — (1) The Attorney General certified his opinion that 
 the decision of the High Court quashing a conviction 
 made under an Ontario statute involved a question 
 on the construction of the B. N. A. Act, and the 
 appeal was brought on. It plainly appeared that 
 the appeal involved no such question, and the cer- 
 tificate appeared to have been granted inadvert- 
 ently. The appeal was quashed with costs to be 
 paid by the prosecutor, the appellant, whose pro- 
 ceeding was in the nature of a qui tarn action : Eeg. 
 v. Reid, 26 A. R. 181. Appeal on certificate of the 
 Atty. Gen. from the judgment of general sessions: 
 R. v. Maher, 10 0. L. R. 102T. Case stated when the 
 constitutional validity of a statute is involved, and 
 not when the decision depends merely on whether 
 the statute is applicable or not: R. v. Toronto Rail- 
 way, 26 A. R. 491. Nor when the constitutional valid- 
 ity of some statute other than the one under which 
 the Justice has acted, such as a statute regulating 
 procedure or evidence is collaterally attacked: R. v* 
 Edwards, 19 A. R. 706. Question of constitutional 
 validity of Medical Act, R. S. 0. 1914, ch. 161 : see R. 
 v. Hill, 15 0. L. R. 406, 11 0. W. R. 20. Jurisdiction 
 of Court of Appeal to hear an appeal on a case stated 
 under this Act for contravention of a provincial 
 statute: R. v. Henry, 20 O. L. R. 494, 1 0. W. N. 567. 
 
 11. — (6) As to Rules of the High Court applicable to con- 
 victions under Provincial Statutes: see Holmested 
 & Langton (3rd ed.) Judicature Act, sec. 25 p. 13. 
 See also p. 1454, notes. 
 
 CHAPTER 91. 
 
 The Ceown Attorneys' Act. 
 
 7, — Crown Attorney defendant in action against Magis- 
 trate for false imprisonment : Titchmarsh v. Graham, 
 15 0. W. R. 139, 1 0. W. R. 367, 418. Place for office 
 of Clerk of Peace and Crown Attorney: Rodd v. 
 Essex, 19 0. L. R. 659. 
 
 8. — (c) It is the right of everyone to make a complaint 
 with the view to the institution of criminal proceed- 
 ings, and also, under certain circumstances, to prefer 
 
CHAPTER 92. 307 
 
 a bill of indictment, yet the prosecutor is no party 
 to the prosecution, nor, indeed,' bound by any judg- 
 ment that may be made in it. He may with the con- 
 sent of the proper authorities proceed in the name 
 of the Sovereign, but, against the will of both parties, 
 he has no power over or voice in the proceedings, 
 per Meredith, J.: E. v. Grilmore, 6 0. L. E. 286. 
 
 CHAPTEE 92. 
 
 The Coroners' Act. 
 
 Eefer to Johnson on Coroners (Can.) ; Boys on 
 Coroners (Can.) ; Jervis on Coroners. 
 
 6. Doctor who attended deceased not competent to hold 
 
 inquest: Ee Haney & Mead, 34 C. L. T. 330. 
 
 7. When an inquest should be held : see Ee Hull, 9 Q. B. 
 
 D. 692. Territorial jurisdiction: see E. v. 'Berry, 
 9 P. E. 123. In issuing his warrant the coroner is 
 acting in a ministerial capacity. Proceedings on 
 default in obeying summons : Ee Anderson and Kin- 
 rade, 18 0. L. E. 362, 13 0. W. E. 1082. It is an in- 
 dictable offence to dispose of the body before the 
 coroner's jury sits: E. v. Clark, 1 Salk. 377. Burning 
 a dead body with intent to prevent an inquest : E. v. 
 Stephenson, 13 Q. B. D. 331. 
 
 15. A coroner's Court is a criminal Court: Garnett v. 
 Ferrand, 6 B. & C. 611 ; E. v. Herf ord, 3 E. & E. 115. 
 Thomas v. Chirton, 2 B. & S. 475; E. v. Hammond, 
 29 0. E. 211. Subsequent use of depositions on trial : 
 
 E. v. Hendershott, 26 0. E. 678; E. v. Williams, 
 28 0. E. 583; E. v. Hammond, 29 0. E. 211. A bar- 
 rister cannot insist upon being present at a coroner's 
 inquest and upon examining and cross-examining 
 witnesses, and can maintain no action against the 
 coroner for excluding him: Agnew v. Stewart, 21 
 U. C. E. 396. A coroner's inquest held on Sunday is 
 invalid : Ee Cooper, 5 P. E. 256. It is not improper 
 for the County Crown Attorney acting for the prose- 
 cution to enter the jury-room after the jury have 
 arrived at their verdict where the object is to advise 
 
308 CHAPTER 92. 
 
 the jury as to the proper language to he used in 
 drawing Up their verdict t E. v. Sanderson, 15 0. E. 
 106. 
 
 16. The coroner should not, without the consent of the 
 Crown Attorney, direct a post mortem examination 
 for the purpose of determining whether an inquest 
 should he held, but only where the coroner had deter- 
 mined to hold the inquest and gave the direction as 
 a proceeding incident to it. The provision is direc- 
 tory, and, in any event, does not render an act done 
 by a surgeon in good faith under the direction of the 
 coroner unlawful because the coroner had neglected 
 to obtain the prescribed consent. A post mortem 
 may be held before impannelling a jury: that is a 
 matter of procedure in the discretion of the coroner. 
 Having determined that an inquest should be held, 
 the coroner has power to summon medical witnesses 
 and direct them to hold a post mortem : Davidson v. 
 Garrett, 30 0. E. 653. 
 
 17. Where a coroner summoned a second medical man 
 as witness and to perform a post mortem but it was 
 not shewn that such practitioner had been sum- 
 moned to attend in accordance with the statute, a 
 mandamus to the coroner to make his order on the 
 County Treasurer was refused: Ee Harbottle and 
 Wilson, 30 U. C. E. 314. A medical witness during 
 two inquests held on 52 persons and occupying sev- 
 eral days was held entitled to $5 per day for each 
 day's attendance (not for each body), together with 
 his mileage : Ee Askin and Charteris, 13 U. C. E. 498. 
 
 20. A constable may be a juror : a juror may be a wit- 
 ness : E. v. Winegarner, 17 O. E. 208. 
 
 28. Investigation of fires by coroner: fees: Ee Fergus 
 and Cooley, 18 U. C. E. 341. 
 
 35. A Warrant to apprehend issued by a coroner could 
 not formerly be validly executed out of his county: 
 Ee Anderson & Kinrade, 18 O. L. E. 362, 13 O. W. 
 E. 1082. 
 
CHAPTERS 93, 94, 95.- 309 
 
 CHAPTER 93. 
 
 The Dominion Commissioners op Police Act. 
 
 CHAPTER 94. 
 
 The Constables' Act. 
 
 3. Liability of municipality for negligent performance by 
 a constable of bis <luty : see McKen^ie v. Chilliwack, 
 15 B. C, R, 256; Hesketb y. Toronto, 25^ A, R. 449; 
 . Winterbotbam v. London Police Commissioners, 1 
 0. L. R. 549, 2 0. L. R. 105; Pease v. Moosomin, 5 
 Terr. L. R. 207; Gaul v. ElUce, 3 0. L. R. 438; Mc- 
 Cleave v. Moncton, 32 S. C. R. 106; Tremblay v. Que- 
 bec, 7 Can. Cr. Cas. 343; Nettleton v. Prescptt, 16 
 0, L. R. 538. 
 
 Protection of constable as a public pfficer : R, v. Rit- 
 ter, 8 Can. Cr. Cas. 31; Moriarty v. Harris, 8 0. 
 L. R. 251, 10 0. L. R. 610. Railway constable: 
 Thomas v. C- P. R- ? 14 O. L. R. 55. See R. S. 0. 
 1914, ch. 89, sec, 12, notes. 
 
 CHAPTER 95. 
 The Police Constables' B4il Act. 
 
310 " CHAPTER 96. 
 
 CHAPTER 96. 
 
 The Administration of Justice Expenses Act. 
 
 3. Payment of certain fees for services rendered in 
 
 former years will not prevent the charges being 
 disputed in subsequent years: Askin v. London, 1 
 U. C. R. 292. Enforcing payment of fees for re- 
 turns: Re Mack and Board of Audit, 2 0. W. N. 
 1413, 3 0. W. N. 282, 19 0. W. R. 740, 20 0. W. R. 
 454, 25 0. L. R. 121. Schedule of fees to Clerk of the 
 Peace: see R. S. 0. 1914, p. 1143; In re Dartnell, 26 
 U. C. R. 430; In re Poussett, 22 U. C. R. 412; In Re 
 Fenton, 31 C. P. 31; In Re Stanton, 3 0. R. 86, as to 
 discussion of various tariff items, and when manda- 
 mus will lie to the Board of Audit. 
 
 4. Salary of Clerk of Peace " in lieu of all fees:" Sub- 
 
 sequent statute providing fees: see Pringle v. Mc- 
 Donald, 10 U. C. R. 254. If the Clerk accepts a salary 
 in lieu of all fees, he is entitled only to such salary: 
 Askin v. London, 1 U. C. R. 292. 
 
 8. Where the Clerk, at the request of the Justices or 
 the municipality or the county auditors, renders ser- 
 vices for which he is not bound to render, and for 
 which no fee is allowed, although he might not be 
 able to sue for his charges, yet when they have been 
 duly audited and paid, the municipality cannot re- 
 cover them, and the same rule applies in case of dis- 
 bursements, stationery, etc.: Lambton v. Poussett, 
 21 U. C. R. 472. The section, making it penal to 
 receive more than the legal fee for services per- 
 formed by the Clerk of the Peace, does not apply 
 to services or disbursements not properly belonging 
 to his office. The enactment is not confined to fees 
 demanded of individuals for public services. The 
 penalty does not interfere with the right to reclaim 
 fees received contrary to the Act: lb. Where the 
 fees are within the Act and have been received con- 
 trary thereto they may be recovered back as money 
 illegally received, although the accounts have been 
 •audited and passed: lb. 
 
CHAPTERS 97, 98. 3H 
 
 11. The gist of this section is to empower the Warden 
 and County Crown Attorney to authorize a constable 
 or other person to perform special services not with- 
 in the ordinary tariff, and which they think neces- 
 sary to detect crime or to capture persons thought 
 to have committed serious crimes, and to pledge 
 the credit of the county for such special services, 
 whether the account is certified by the Warden and 
 County Crown Attorney as required by the section 
 or not : Sills v. Lennox and Addington, 31 0. E. 512. 
 
 16. History of legislation : payment of fees : Ee Mack and 
 Board of Audit, etc., 25 a L. E. 121. 
 
 20. Mandamus: Ee Mack and Board of Audit, etc., 25 
 0. L. E. 121. 
 
 22. Audit : see In re Poussett and Lambton, 22 U. C. E. 
 80 ; In re Sheriff of Lincoln, 34 U. C. E. 1 ; Lambton 
 V. Poussett, 21 U. C. E. 472. 
 
 41. Liability of Province for fees for returns by inspec- 
 tors of prisons : Ee Mack and Stormont, 2 0. W. N. 
 1413, 19 0. W. E. 740. 
 
 CHAPTEE 97. 
 
 The Ceown Witnesses Act. 
 
 . CHAPTEE 98. 
 
 The Esteeats Act. 
 
 A recognizance of bail is taken in open Court by the 
 Clerk of the Court addressing the parties being then 
 before him in open Court, by name, and stating the 
 substance of the recognizance; and the verbal ac- 
 knowledgment of the parties is sufficient without 
 more: Ee Talbot's Bail, 23 0. E. 65. The estreat 
 roll was sufficiently signed by the Clerk when he 
 signed the affidavit at tho foot of it: lb. What is 
 
312 CHAPTER 98. 
 
 sufficient evidence of forfeiture of the recogni- 
 zance : lb. 
 
 3. The proceedings to collect a debt due to the Crown 
 under a forfeited recognizance are civil and not 
 criminal, and the writ following the form given in 
 the Act is not open to objection: Ee Talbot's Bail, 
 23 0. E. 65. 
 
 7. The provision requiring a written order of the Judge 
 for the estreating or putting in process of a recog- 
 nizance applies only to recognizances to appear to 
 prosecute, to give evidence, to answer for common 
 assault or articles of the peace, and does not apply 
 to a recognizance whereby the bail become bound 
 for the appearance of their principal to stand trial 
 on an indictment: Ee Talbot's Bail, 23 0. E. 65. 
 
 11. It is no ground for discharging the estreat of a recog- 
 nizance to appear as witness that the Magistrate did 
 not give him notice when he was to appear: E. v. 
 Thorpe H. T., 6 Vict.; E. v. Schram, 2 U. C. E. 91; 
 but otherwise when the Magistrate misinformed him : 
 E. v. Mayer, 14 U. C. E. 621. The Court will not 
 interfere after return of the writ and payment of the 
 estreat: E. v. Le Clerc, 4 Vict. Grounds for dis- 
 charging the estreat: E. v. Matthews, 6 0. S. 152. 
 Discharge of estreat on terms where there was mis- 
 understanding : E. v. McLeod, 24 U. C. E. 458. The 
 sheriff is entitled to poundage : E. v. Vinning, H. T. 
 3 Vic. Although the recognizance was expressed to 
 be joint and several by the prisoner and his sureties 
 and was acknowledged by the sureties alone, and the 
 prisoner discharged without getting his acknowl- 
 edgment, the sureties were held liable: Eastall v. 
 Atty.-Gen., 17 Gr. 1, 18 Gr. 138. 
 
CHAPTERS 99, 100, 101. 313 
 
 CHAPTEE 99. 
 
 The Pines and Fobfeittjbes Act, 
 
 6. Where the defendant was liable for $400 penalty under 
 sec. 94 (5) of E. S. 0. 1897, ch. 9 (The Election Act) 
 for not having taken the oath of qualification re- 
 quired to be taken by agents voting under certificate, 
 but, as he had not been asked to take the oath, and 
 the plaintiff was present, and did not object, the pro- 
 visions of this Act were applied, and the penalty 
 reduced to $40: Smith v. Carey, 5 0. L. E. 203; 
 Carey v. Smith, 5 O. L. E. 209. What is a penalty 
 within the meaning of this Act — and what a mere 
 liability which will not be relieved against: see 
 Boucher v. Capital Brewing Co., 9 O. L. E. 266. Be- 
 lief from penalties : Webb v. Box, 20 0. L. E. 220, 
 15 O. W. B. 423. Eemission of penalty under part- 
 nership Eegistration Act : Dixon v. Georgas Bros, 4 
 O. W. N. 462, 23 O. W. E. 524. See the provisions of 
 E. S. O. 1914, ch. 56, sec. 19. 
 
 CHAPTEE 100. 
 The Niagara Falls Magistbates' Act. 
 
 CHAPTEE 101. 
 
 The Pbopebty and Civil Eights Act. 
 
 English statutes are in force in Ontario under four 
 main provisions (a) 32 Geo. III., ch. 1, recited in 
 preamble of this Act: see E. S. O. 1897, ch. Ill, 
 whereby in matters of property and civil right, 
 resort is had to the laws of England, as they stood 
 on 15th October, 1792. (6) Chancery Act, 1837, 7 
 Wm. IV. : see Judicature Act, E. S. O. 1897, ch. 51, 
 sec. 26, introducing the jurisdiction of chancery and 
 rules of decision as of 4th March, 1837. (c) Where 
 
314 CHAPTER 101. 
 
 no adequate remedy exists at law: as of 10th June, 
 ' 1857 : see Judicature Act, E. S. 0. 1897, ch. 51, sec. 
 28 e.g., under this head the Trustees' Relief Act, 11 
 & 12 Vict, (d) Statutes expressly stated to be in 
 force throughout the British Empire, e.g., the Merch- 
 ants Shipping Act. See also Armour, Real Property, 
 p. 25. 
 
 2. The common law of England relative, to property and 
 civil rights, as introduced into this province in 1792, 
 and now enacted by this section, except in so far as 
 repealed by Imperial Legislation having force in 
 this Province or by Provincial enactments is the 
 rule for the decision of the same : Keewatin v. Ken- 
 ora, 16 O. L. R. 184, 11 0. W. R. 266. Decisions of 
 the House of Lords are binding on the Courts of 
 this Province: Trimble v/Hill, 1879, 5 App. Cas. 
 342, at p. 344. 
 
 As to Imperial Statutes in force in Ontario : see R. 
 S. 0. 1897, Vol. III., where are set out: 
 
 1. Constitutional Acts, pp. 7-20. 
 
 2. Certain Imperial Statutes of general practical 
 
 utility in force in Ontario ex proprio vigore, 
 pp. 21-35. 
 
 3. The Habeas Corpus Act, 36. 
 
 4. A table of Imperial Statutes in force in Canada at 
 
 the end of 1901, ex proprio vigore, p. 43: (see 
 also, Black v. Imperial Book Co., 8 0. L. R. 9). 
 At page 3899 of the same volume, is a Schedule 
 " A " of Imperial Acts, relating to property and 
 civil rights appearing to be in force in Ontario at 
 the end of 1897 by virtue of Provincial legislation, 
 and repealed (within Ontario) from the day Vol. 
 III. of the R. S. 0. 1897, took effect. At p. 3903 is 
 Schedule B., shewing Imperial Acts consolidated in 
 R. S. 0. 1897, Vol. III. At p. 3914, is Schedule C. 
 of Imperial Acts in force, and not repealed, revised 
 or consolidated. See also R. S. 0. 1914, Vol. 3, where, 
 in Appendix A, are set out certain Acts and parts 
 of Acts not repealed by R. S. 0. 1914, and in force in 
 Ontario subject thereto. These include Magna 
 Charta; St. Marlbridge, 52 Hen. III., ch. 1; The 
 Statute of Monopolies ; The Act Respecting Champ- 
 erty, 33 Ed. I. ; The Statutes De Donis Conditionali- 
 bus, Quia Emptores, etc., and the Statutes of Uses. 
 
CHAPTER 102. 315 
 
 CHAPTER 102. 
 
 The Statute of Fbaxjds. 
 
 Refer to Agnew on the Statute of Frauds; Leake, 
 Pollock, Smith, Addison, Chitty, Anson on Con- 
 tracts; Benjamin on Sale; Roscoe's Nisi Prius; 
 Bicknell and Kappele, Practical Statutes, pp. 304- 
 309; Dart, Vendors and Purchasers, etc., etc. 
 
 2. See the preamble to 29 Car. 2, ch. 3, as set out in R. 
 
 S. 0. 1897, ch. 338, sec. 2: see also R. S. 0. 1897, ch. 
 119, sec. 7, R. S. 0. 1914, ch. 109, sec. 9. Occupation 
 under lease void under the Statute of Frauds : Doe 
 d. Rigge v. Bell, 2 Smith's L. C. 119. 
 
 3. See 29. Car. 2, ch. 3, sec. 3; R. S. 0. 1897, ch. 338, sec. 
 
 4: see R. S. 0. 1897, ch. 119, sees. 3, 7; R. S. 0. 1914, 
 ch. 109, sees. 4, 9. The law in England and in On- 
 tario is the same as to surrender of leases: Mickle- 
 borough v. Strathy, 23 0. L. R. 33. 
 
 4. See 29 Car. 2, ch. 3, sec. 2. 
 
 5. R. S. 0. 1897, ch. 338, sec. 5; 29 Car. 2, ch. 3, sec. 4. 
 
 Promise to answer for the debt, etc., of any other 
 person. For discussion of cases on the 4th section 
 of the Statute of Frauds, and especially on this 
 . clause, see Birkmyr v. Darnell, 1 Smith L. C, 11th 
 edn., p. 299. What is a sufficient signature under 
 the Statute of Frauds: Wain v. Warlters, 1 Smith 
 L. C. 323. What amounts to a promise to answer for 
 the debt of another : Davys v. Biiswell, 1913, 2 K. B. 
 47. Engagement to pay debt of another: Young v. 
 Milne, 1 0. W. N. 460, 20 0. L. R. 366. Agreement to 
 answer for default of another : Isle of Coves v. Willis- 
 croft, 2 0. W. N. 558, 18 0. W. R. 344. Promise to 
 answer for liability of another : Simpson v. Dolan, 
 16 0. L. R. 459. Services rendered to a third per- 
 son: Halliwell v. Zwick, 13 0. W. R. 1. Guarantee 
 of payment of notes by president of company: in- 
 solvency of guarantor, proof of claim where notes 
 mature after date of assignment: Clapperton v. 
 Mutchmor, 30 0. R. 595. Guaranty: novation: 
 
315 CHAPTER 102. 
 
 Bailey v. Gillies, 4 0. L. E. 182. A promise made by 
 a third person to a creditor to pay or see paid a 
 debt due to him by the debtor, whether such promise 
 is absolute or conditional is within the statute: 
 Beattie v. Dinnick, 27 O. E. 285. Guarantee: indem- 
 nity: see Harburg India Eubber Comb Co., 1902, 1 
 K. B. 778: see also Fraser v. Heaslip, 4 W. L. E. 
 520 (Man.); Sulin v. Jarvinen, 5 W. L. E. 189 
 (B.C.) ; Boorstein v. Moffatt, 36 N. S. B. 81 ; Allen v. 
 Shehyn, 35 N. B. E. 635; Trotter v. McKinnon, 42 
 N. S. E. 406; Shea v. Lindsay, 20 Man. L. E. 208. 
 Operation of Statute of Frauds in contracts of 
 suretyship: see Dig. Ont. Case Law, col. 5700. 
 
 Consideration of marriage. 
 
 The principle applied in Forster v. Hale, 3 Ves. 696, 
 5 Ves. 308, and Dale v. Hamilton, 16 L. J. Ch. 126, 
 397, to contracts of partnership is also applicable to 
 a marriage contract, and the defence of the Statute 
 of Frauds will not avail : Ee De Nicols : De Nicols v. 
 Curlier, 1900, 2 Ch. 410. Ante-nuptial agreement not 
 in writing: Finn v. St. Vincent de Paul, 22 0- L. E. 
 381. Promise to convey land on marriage : postpone- 
 ment on account of the insanity of one of the parties : 
 Freel v. Eoyal, 10 O. W. E, 258. 
 
 Contract or sale of lands. 
 
 Interest in land: mining claim, part performance: 
 Harrison v. Mobbs, 12 O. W. B~. 465; Chevrier v. 
 Trusts and Guarantee, 14 0. W. B, 101, 18 O. L. E. 
 547. Interest in lands and interest in the proceeds 
 of sale of lands distinguished: see Corbett v. Mc- 
 Neil, 39 S. C. E. 608. A wife made a verbal contract 
 with her husband, that if he would buy a certain 
 house, she would make him a present of it. The 
 husband bought the house which they occupied for 
 several years, but the wife refused to pay the pur- 
 chase price. It was held that an action could be 
 maintained on the verbal contract, as it was not a 
 contract or sale of an interest in or concerning lands 
 within the section: Boston v. Boston, 1904, 1 K. B. 
 124, Where a defendant made a parol agreement 
 for the purchase of land and a dwelling to be built 
 by the plaintiff at an agreed price according to a 
 plan approved, the defendant's conduct in visiting 
 the works and inducing alterations was held to be of 
 
CHAPTER 102. 317 
 
 such unequivocal nature as to imply the existence of 
 an agreement, parol evidence of which was admis- 
 sible, and the alterations amounted to a part per- 
 formance, so as to prevent the defence of the Statute 
 of Frauds: Dickenson v. Barrow, 1904, 2 Ch. 339. 
 A definite oral bargain for the sale of land, good 
 except for the Statute of Frauds, is sufficient con- 
 sideration for a cheque drawn by the defendant upon 
 a bank in favour of the plaintiff for part of the pur- 
 chase money : Kinzie v. Harper, 15 0. L. E. 582. Acts 
 constituting part performance : Bodwell v. McNiven, 
 5 O. L. B. 332. Part performance : possession : Mc- 
 Laughlin v. Mayhew, 6. 0. L. B. 174. Part perfor- 
 mance of father's parol agreement to convey farm 
 to son in consideration of his working the farm and 
 paying an annual rental during joint lives of father 
 and mother, and son had carried out his obligations : 
 Wilson v. Cameron, 5 0. W. N. 234, 25 0. W. E. 216. 
 In consideration of taking care of her uncle and 
 working his farm, the uncle agreed to give the 
 farm to his niece. Though the niece entered into 
 possession, it was held in an action brought after 
 the Uncle's death that her possession was not un- 
 equivocally referable to the agreement, and the 
 statute was an answer to her claim : Coulter v. Elvin, 
 18 0. W. B. 99, 2 0. W. N. 678. Part performance 
 of a parole agreement by conveying certain 
 other lands: Meisner v. Meisner, 36 S. C. B. 34. 
 Part performance of oral agreement for use of road- 
 way: Fairweather v. Lloyd, 36 N. B. B. 548. Pay- 
 ment of a portion of purchase money not part per- 
 formance: Gass V. Dickie, 7 E. L. B. 1Q4. Part 
 performance and acts of possession : see annotation, 
 2 D. L. B. 43. Agreement for lease: part per- 
 formance: possession taken prior to and contin- 
 ued after agreement : Hodson v. Henland, 1896, 2 
 Ch. 428. Payment of increased rent as part per- 
 formance : Miller v. Aldworth, 1899, 1 Ch. 622. Offer 
 to sell or let : acceptance of offer to let : sufficient con- 
 tract : Lever v. Koffler, 1901, 1 Ch. 543. Part per- 
 formance : verbal agreement to demise and payment 
 of rent, is not sufficient unless possession is taken: 
 Thursby v. Eceles, 70 L. J. Q. B. 91. Occupation 
 under lease void, under the Statute of Frauds : Doe 
 d. Bigge v. Bell, 2 Smith's L. C. 119. A verbal 
 agreement by a wife to keep her husband indemnified 
 
318 CHAPTER 102. 
 
 in respect of the rent of a house is not an interest in 
 lands within the statute: In re Banks: Weldon 
 v. Banks,' 58 S. J. 362. An agreement whereby 
 an estate agent who had land for sale, and in 
 order to induce a sale, guaranteed to forfeit $1,000 
 if the lands were not resold by a certain date was 
 held an agreement not affecting lands and not within 
 the statute: Grippen v. Hitchner, 18 W. L. B. 259. 
 Where land was conveyed in consideration of a ver- 
 bal promise to support the grantor's son for life, 
 the grantee's promise was not a contract for the sale 
 of lands or any interest in lands, and could be proved 
 by parole evidence : Spencer v. Spencer, 24 W. L. B. 
 420, 11 D. L. B. 801 ; see also Smith v. Ernest, 22 Man. 
 L. E. 363; Morgan v. Griffith, L. E. 6 Ex. 170. Al- 
 though part of a contract for purchase of land may 
 not be binding under the statute, another part of it, if 
 in the alternative and distinct from the agreement to 
 purchase, e.g., that either party will pay the other a 
 named sum, if he does not fulfill his part of the agree- 
 ment, may be enforced : Mercier v. Campbell, 14 O. L. 
 B. 639. The decision in Mercier v. Campbell, 14 O. L. 
 B. 639, commented on: 46 C. L. T. 273, 433, 583, quot- 
 ing articles from Law Quarterly Eeview and Law 
 Times. A partnership may be formed by parol agree- 
 ment notwithstanding it is to deal in lands, the Statute 
 of Frauds not applying to such a case : McNerhanie v. 
 Archibald, 29 S. C. E. 564. Application of the 
 Statute of Frauds in making of contract for sale of 
 land: see Dig. Ont. Case Law, col. 7152. In what 
 cases the statute applies, col. 7153. Memorandum 
 to satisfy the statute, col. 7167. 
 
 Agreement not to be performed within a year. 
 Contract of hiring : application of Statute of Frauds : 
 see Harper v. Davies, 45 U. C. E. 442; Booth v. 
 Prittie, 6 A. E. 680. General hiring and hiring for 
 a year : see Bain v. Anderson, 27 O. B. 369, 24 A. B. 
 296, 28 S. C. B. 481. Contract of hiring of farm 
 labourer for year: servant leaving employment be- 
 fore expiration of term : effect of Statute of Frauds : 
 position of claim of quantum meruit: Collins v. 
 Smith, 11 O. W. B. 350. A memorandum in writing 
 of an agreement for service must shew the date at 
 which the service is to begin to satisfy the statute: 
 and also some definition of the nature of the service : 
 
CHAPTER 102. 3^9 
 
 Re Alexander's Timber Co., 70 L. J. Ch. 767. An 
 agreement for a year's service to commence " to- 
 morrow," is an agreement not to be performed 
 within a year : Smith v. Gold Coast, etc., Lim., 1903, 
 1KB, 538. " Within a year," a sub-contract to 
 employ a salesman so long as the employer's contract 
 with a third person remains in force, that contract 
 being terminable at any time, is not within the 
 statute : Glenn v. Rudd, 3 0. L. R. 422. Contract con- 
 taining provision for determining it within a year : 
 Hanan v. Ehrlich, 1911, 2 K. B. 1056, 1912, A. C. 39. 
 Possible performance within a year: Reeve v. Jen- 
 nings, 1910, 2 K. B. 522. Where lands were con- 
 veyed in consideration of the grantee's verbal prom- 
 ise to support the grantor's son, the grantee's con- 
 tract was not within the statute, for it would not 
 necessarily by its terms, endure beyond a year: 
 Spencer v. Spencer, 24 W. L. R. 420, 11 D. L. R. 801, 
 and see Slater v. Smith, 10 U. C. R. 630; McGregor 
 v. McGregor, 21 Q. B. D. 424. A hiring at " $700 to 
 be increased per year until $1,000 is reached," is 
 within the statute : Pairgrieve v. O 'Mullin, 40 N. S. 
 R. 215. A contract of service for a period of more 
 than a year terminable at any time on 6 months 
 notice on either side, is within the statute: Hanan 
 v. Erlich (1912), A. C. 39. Agreement for service: 
 time of commencement : Elliott v. Roberts, 107 L. T. 
 18; Curtis v. B. U. R. T. Co., 28 T. L. R. 585. Con- 
 tracts not to be performed within a year : see article 
 48 C. L. J. 413, 
 
 Memorandum in writing'. 
 
 Memorandum of contract: auctioneer's authority to 
 sign where there is a mistake : Van Praagh v. Ever- 
 idge, 1903, 1 Ch. 434. Auctioneer's entry of name of 
 purchaser: Dewar v. Mintoff (1912), 2 K. B. 
 373. Signature by agent: document signed by 
 agent recognizing terms of agreement made by 
 bis principal may be sufficient thougb the agent 
 was not authorized to sign the document as a 
 record of the agreement : Griffiths Cycle Corporation 
 v. Humber & Co., 1899, 2 Q. B. 414. A Sheriff sell- 
 ing lands as assignee for creditors under R. S. O. 
 134, cannot, as when selling under an execution, sign 
 a memorandum which will bind a purchaser under 
 the Statute of Frauds : Mclntyre v. Faubert, 26 O. R. 
 
320 CHAPTER 102. 
 
 427. The travelling salesman of a wholesale dealer 
 is presumably not authorized by the customer to 
 sign a contract for the customer as purchaser: this 
 is not rebutted by the salesman actually signing in 
 the customers presence and handing the latter a 
 duplicate: Imperial Cap Co. v. Cohen, 11 0. L. B. 
 382. Authority of agent: McWilliam v. Sovereign 
 Bank, 14 O. W. E. 561. When the vendor's name was 
 not disclosed in a contract for the sale of land, but 
 it was signed " P. W. Black, agent," it was held in- 
 sufficient to satisfy the statute: Bradley v. Elliott, 
 11 O. L. E. 398. See also as to contract signed by 
 agent and effect where terms of agency exceeded: 
 Maybury v. O'Brien, 25 O. L. E. 229, 26 O. L. E. 628, 
 6 D. L. E. 268. Offer to purchase land made to 
 vendor 's agent : agent accepting on behalf of princi- 
 pal: sufficient: Filby v. Hounsell (1896), 2 Ch. 737; 
 Selkirk Land and Inv. Co. v. Eobinson, 25 W. L. E. 
 392. Agent need not be authorized in writing. Writ- 
 ing the purchaser's name near the beginning of an 
 agreement for sale may be sufficient though the 
 agreement is signed by the vendor only: Mcllcride 
 v. Mills, 16 Man. L. E. 276; McMillan v. Bentley, 16 
 Gr. 387; Evans v. Hoare (1892), 1 Q. B. 592; 
 Schneider v. Norris, 2 M. & S. 286. Signing by agents 
 for owner : Eossiter v. Miller, 3 App. Cas. 1140. Con- 
 tract signed by agent " subject to approval by 
 owner," and, it being shewn that the owner subse- 
 quently approved, the contract was enforceable : Col- 
 ney v. Paterson, 20 W. L. E. 722. Memorandum in 
 writing signed by defendant, as vendor, but not shew- 
 ing name of plaintiff, or his agent as purchaser: 
 Eckroyd v. Eodgers, 24 W. L. E. 318,- 11 D. L. E. 
 626. See also Keighley Maxsted & Co. v. Durant 
 (1901) A. C. 210. Signature of party followed by 
 words shewing him to be agent : see annotation 2 D. 
 L. E. 99. Note or memorandum in writing : see Cox v. 
 Hoare, 95 L. T. 121, 96 L. T. 719. Memorandum to 
 satisfy, 4th section of Statute of Frauds : Bailey v 
 Dawson, 20 O. W. E. 908, 3 0. W. N. 560. Contract 
 by letters : destruction of the letters : Stuart v. Thom- 
 son, 23 O. E. 503. Contract for sale of land: insuf- 
 ficiency of parol evidence: McKinnon v. Harris 14 
 O. W. E. 876, 1 O. W. N. 101. Chattel mortgage' ex- 
 ecuted in blank: Wade v. Bell Engine Co., 16 O. W. E. 
 
CHAPTER 102. 321 
 
 636. Contract evidenced by letters : Hussey v. Home- 
 Payne, 3 App. Cas. 316; Lloy v. Wells, 21 W. L. R. 
 50. Option and cheque with terms differing, held not 
 a sufficient memorandum: Pearson v. O'Brien, 18 
 W. L. R. 563, 20 W. L. R. 510. Writing not contain- 
 ing the purchaser's name, but acknowledging cheque 
 on account, but cheque not the cheque of purchaser 
 or his agent : not a sufficient memorandum : Grant v. 
 Reid, 16 Man. L. R. 527. Letter containing name of 
 one party only, but enclosed in envelope addressed to 
 other party sufficient : Pearce v. Gardner (1897), 1 
 Q. B. 688. Omission of terms of payment of pur- 
 chase money: Rogers v. Hewer, 8 D. L. R. 288, 22 
 W. L. R. 807; Green v. Stevenson, 9 O. L. R. 671; 
 Martin v. Pycroft, 2 DeG. M. & G. 785. Terms of 
 bargain incompletely set out in a receipt. Defendant 
 proved additional parol terms which constituted a 
 successful defence under the statute: Green v. 
 Stevenson, 9 O. L. R. 671. A letter repudiat- 
 ing sale may, along with a receipt, satisfy the 
 statute: Berry v. Scott, 3 W. L. R. 84, 4 W. L. R. 
 282. Transfer in blank: cheque in part pay- 
 ment supplying the name of the purchaser: not 
 open to contradict acknowledgment in transfer 
 of receipt of whole purchase money : Taylor v. Grant, 
 6 Terr. L. R. 353. A contract for the purchase of 
 lands, incomplete in not containing express provi- 
 sions for the payment of the principal of a mort- 
 gage to be given, will not be specifically enforced: 
 Reynolds v. Foster, 4 O. W. N. 694, 9 D. L. R. 836, 
 23 0. W. R. 933; nor where the letter relied on did 
 not definitely fix the amounts of the deferred pay- 
 ments, nor the times at which they were to be made : 
 Mclnnes Farms v. McKenzie, 23 W. L. R. 863. See 
 Gibb v. McMahon, 9 0. L. R. 522, 37 S. C. R. 362; 
 Hussey v. Home-Payne, 4 App. Cas. 311 ; Chinnock 
 v. Marchioness of Ely, 4 DeG. J. & S. 645 ; Fenske v. 
 Farbacher, 21 W. L. R. 53. Where there is a valid 
 agreement to satisfy the statute, specific perform- 
 ance of it may be decreed, though at the time of 
 contracting, the parties verbally agreed on subsid- 
 iary conditions, and collateral terms for conveniently 
 carrying out the written agreement: Anderson v. 
 Douglas, 18 Man. L. R. 254. Circumstances creating 
 a novation on new consideration where former con- 
 tract within the statute : Bailey v. Gillies, 4 0. L. R. 
 
 S.A.— 21 
 
322 CHAPTER 102. 
 
 182. Where the expressed terms impossible of per- 
 formance and terms were omitted : Manley v. Mackin- 
 tosh, 10 B. C. E. 84. " 24 acres of land at T," is suffi- 
 cient description of the vendor's lands at T. to make 
 extrinsic evidence admissible : Plant v. Browne, 1897, 
 2 Ch. 281. Sufficiency of description: Shardlow v. 
 Cotterill, 20 Ch. D. 90; Caisley v. Stewart, 18 W. L. 
 R. 420; Lewis v. Hughes, 4 W. L. R. 269. Incorrect 
 surplus description may be rejected : Foster v. And- 
 erson, 16 O. L. R. 562. Purchaser described as 
 " you," and not named: payment of purchase money 
 admitted by vendor : held sufficient description : Carr 
 v. Lynch, 1900, 1 Ch. 613. " Vendor " is not a suffi- 
 cient description of one of the contracting parties. 
 The memorandum must contain either their names 
 or a sufficient description : Potter v. Duffield, L. R. 
 18 Eq. 4; Williams v. Jordan, 6 Ch. D. 517; White v. 
 Tomalin, 19 O. R. 513; Maber v. Penkalski, 24 C. L. 
 T. 407. Oral modification of contracts required by 
 the Statute of Frauds to be in writing: see article 
 49 C. L. T. 567. See also reference to Benjamin 
 on Sale, post sec. 12 note. 
 
 Pleading : 
 
 As to pleading the statute : See Pullen v. Snelus, 40 
 L. T. N. S. 363, where it was held that the plaintiff is 
 entitled to know which section of the statute the de- 
 fendant means to rely on: but see James v. Smith 
 (1891), 1 Ch. 384, where it was held that no 
 particular section need be specified, and if the wrong 
 section is specified, leave to amend may be refused. 
 See also Brunning v. Odhams, 75 L. T. 602. Oral con- 
 tract: admission in pleading: see Annotation, 2 D. L. 
 R. 637. Pleading Statute of Frauds : see Con. Rule 
 271; H. &. L. notes, p. 480-1, also Con. Rule 282; H. 
 & L. notes, p. 488; 1913 Rules 143, 154. Odgers on 
 Pleading, pp. 97, 163, 215. 
 
 6. See R. S. O. 1897, ch. 146, sec. 8 : see De Colyar, 3rd 
 
 ed., p. 164: see Union Bank v. Clark, 12 O W R 
 532. 
 
 7. See R. S. O. 1897, ch. 146, sec. 6; see Imperial 
 
 Act, 9 Geo. IV., ch. 14 sec. 5, which however 
 does not authorize ratification by agent. If an 
 infant avails himself of the right he has to avoid 
 a contract which he has entered into, and on the 
 
CHAPTER 102. 323 
 
 faith of which he has obtained goods, he is bound to 
 restore those which he has in his possession at the 
 time he so repudiates. The effect of repudiating is to 
 revest the property in the vendor : London Mfg. Co. 
 v. Milmine, 14 0. L. E, 532, 15 0. L, E. 53, 532. 
 Infant not liable for fraudulent misrepresentation, 
 that he is of full age: Jewell v. Broad, 19 0. L. 
 E. 1, 20 0. L. E. 176. Acceptance of bill of exchange 
 after infant attains full age, for a debt contracted 
 during infancy : -Belfast Banking Co. v. Doherty, 4 
 L. E. Ir. 124. Breach after attaining full age, of 
 agreement not to solicit customers entered into dur- 
 ing infancy: Brown v. Harper, 68 L. T. 488. New 
 promise: Ee Foulkes, 69 L. T. 183; Smith v. King, 
 1892, 2 Q. B. 543. Batification by continued pay- 
 ment of instalments of purchase money: Whitting- 
 ham v. Murphy, 60 L. T. 956. The Act applies 
 to promise of marriage : Coxhead v. Mullis, 3 
 C. P. D. 439: see Ditcham v. Worrall, 5 C. 
 P. D. 410; Northcote v. Doughty, 4 C. P. D. 385; 
 Holmes v. Brierley, 36 W. E. 795. Appointment of 
 agent by infant : void appointment incapable of rati- 
 fication: Johannson v. Gudmundson, 11 W. L. E. 
 176 (Man.). Conditional ratification: Lynch v. Ellis, 
 7 E. L. E. 14 (P.E.I.). Batification of bond: Beam 
 v. Beatty, 4 0. L. E. 554 What amounts to a ratify 
 cation within the statute : see Harris v. Hall, 1 Ex. 
 122; Mawson v. Blane, 10 Ex. 206; Eowe v. Hop- 
 wood, L. E.4Q.B.1; Ee Hodson, 1894, 2 Ch. 421; 
 Maccord v. Osborne, 1 C. P. D. 568; London Mfg. 
 Co. v. Milmine, 14 0. L. E. 532, 15 0. L. E. 53, 532. 
 Contracts of infants : see 42 Can. Law Journal, p. 129. 
 
 8. See E. S. 0. 1897, ch. 146, sec. 7. If a person induces 
 another to accept bills on behalf of a third person, 
 not for the purpose of obtaining further credit from 
 that person, but to obtain payment of a debt due 
 himself, the case is outside the statute: Clydesdale 
 Bank v. Paton, 1896, A. C. 381. An incorporated 
 company is a " person " within the meaning of this 
 section, and not liable for representation as to credit 
 of another person not signed by it, but by its agent : 
 Hirst v. West Biding Banking Co., 1901, 2 K. B. 
 560. Estoppel of company by act of its secretary: 
 see Bishop v. Balkis Consolidated, 25 Q. B. D. 512. 
 
324 CHAPTER 102. 
 
 9. See E. S. 0. 1897, ch. 338, sec. 6 ; 29 Car. 2, ch. 3, sec. 7. 
 
 What amounts to intention on part of deceased to 
 declare himself trustee : Re Cozens, Green v. Brisley, 
 1913, 2 Ch. 478. The Statute of Frauds does not 
 prevent proof of a fraud. It is a fraud for a person 
 to whom land is conveyed as a trustee to deny the 
 trust and claim the land as his own: Eochefaucauld 
 v. Bowstead, 1897, 1 Ch. 195; Kaul v. Trusts and 
 Guarantee Co., 12 0. W. R. 301, at p. 306. Where land 
 was conveyed in consideration' of a promise by the 
 grantee to support the grantor's son, if the transac- 
 tion amounted to the creation of an express trust 
 this section of the statute could not be invoked to 
 enable the defendant to perpetuate the fraud and 
 refuse to perform the trust: Spencer v. Spencer, 24 
 W. L. R. 420, 11 D. L. R. 801. See Re Duke of Marl- 
 borough (1894), 2 Ch. 292; Smith v. Ernst, 22 Man. 
 L. R., at pp. 377-8 ; Gordon v. Handf ord, 16 Man. L. 
 R. 292. See Judicature Act, 1897, ch. 51, sec. 26 (2) ; 
 H. & L. notes, pp. 15-16; R. S. O. 1914, ch. 56, sec. 
 16(a). 
 
 10. See R. S. O. 1897, ch. 338, sec. 7, 29 Car. 2, ch. 3, 
 sec. 8. 
 
 11. See R. S. 0. 1897, ch. 338, sec. 8, 29 Car. 2, ch. 3 
 sec. 9. 
 
 12. See R. S. 0. 1897, ch. 146, sec. 9, ch. 338, sec. 12, 29 
 
 Car. 2, ch. 3, sec. 16 (17 Ruff head's Edn.). For dis- 
 cussion of cases and policy of this enactment, see 
 article in the Law Quarterly Review, vol. 1, p. 1, by 
 Sir Frederick Pollock and Mr. Justice Stephen. The 
 " 17th section " of the Statute of Frauds is fully 
 discussed in Benjamin on Sale, 4th Edn., pp. 93, et 
 seq. What contracts are within the statute: Lord 
 Tenterden's Act: " Value " and " Price:" distinc- 
 tion between "sales" and "work and labour 
 done ": furnishing chattel to be affixed to freehold: 
 rule in Lee v. Griffin, 1 B. & S. 272 : Benjamin, pp. 
 93-110. What are goods, wares and merchandise : 
 choses in action are not: where growing crop is to 
 be severed before property passes, it is an executory 
 agreement for the sale of goods within Lord Tenter- 
 den's Act: where property passes before severance 
 from the soil, then, if fructus naturales, the " 4th 
 
CHAPTER 102. 325 
 
 section" (ante, sec. 5), applies, but if fructus 
 industriales, "17th section" applies: are fructus 
 industriales " goods," while growing: sale of ten- 
 ant's fixtures : crops not yet sown : Benjamin, pp. 111- 
 129. What is a contract for the "price " or the 
 "value" of £10: several articles sold on one oc- 
 casion : auction sales of several lots : uncertain value : 
 different contracts for a single consideration: Ben- 
 jamin, pp. 130-132. Construction of the words " ex- 
 cept the buyer shall accept part of the goods so sold 
 and actually receive the same:" what is an accept- 
 ance: what is an actual receipt: Benjamin, pp. 133- 
 171. " Or give something in earnest to bind the 
 bargain or in part payment:" agreement to set off 
 debt as part payment : goods supplied ' ' on account ' ' 
 of a debt : board and lodging supplied in part pay- 
 ment : giving a bill or note on account : Benjamin, pp. 
 172-178. ' ' Or that some memorandum in writing of 
 the said bargain be made and signed by the parties 
 to be charged by such contract or their agents there- 
 unto lawfully authorized:" evidence admissible and 
 not: what is a " note or memorandum in writing:" 
 what is a sufficient note of the bargain made: what 
 signature is required and how made: who are 
 agents authorized to sign, and how brokers' con- 
 tracts are evidenced : Benjamin, pp. 179-272. This 
 section, unlike sec. 5 supra, affects the validity of 
 the contract. Can a sale, valid under sec. 12 be in- 
 valid under sec. 5: Prested Miners Co. v. Garner, 
 1910, 2 K. B. 766, 1911, IK. B. 425. A writing con- 
 taining all the terms of a contract' for the sale of 
 goods requisite to constitute a memo, under the 17th 
 section of the Statute of Frauds may be used for 
 that purpose though it repudiates the sale : Haubner 
 v. Martin, 22 A. R. 468, 26 S. C. R. 142. A contract 
 for the sale of goods is incomplete, where though 
 the price is stated, the contract shews on its face 
 that the time for payment is left for further negotia- 
 tion. The fact that possession is taken does not neces- 
 sarily affect the rights of the parties: House v. 
 Brown, 15 O. L. R. 500. Effect of statute on jurisdic- 
 tion of Division Court, where plaintiff and defendant 
 resident in different counties : Re Taylor and Reid, 13 
 O. L. R. 205. In an action for damages for conver- 
 sion of goods the plaintiff must prove an unquestion- 
 able title in himself. If it appears that such title is 
 
326 CHAPTER 102. 
 
 based on a contract, the defendant may successfully 
 urge that such contract is void under the Statute of 
 Frauds though no such defence is pleaded : Kent v. 
 Ellis, 31 S. C. E. 110. Contract for sale of flour. 
 Letter signed "by plaintiff, entry in defendants books : 
 Nasmith Co. v. Brown, etc., Co., 9 O. L. E. 21. Order 
 for goods : agency : correspondence : Imperial Cap Co. 
 v. Cohen, 11 0. L. E. 382. See National Malleable 
 Casting Co. v. Smith's Falls Malleable Casting Co., 
 14 0. L. E. 22. What amounts to acceptance: 
 
 1. Delivery to buyer for testing or approbation in- 
 
 sufficient: House v. Brown, 14 O. L. E. 500. 
 
 2. Delivery to carrier may be sufficient if buyer 
 
 must accept when delivered: Bigelow v. Craig- 
 ellachie, 37 S. C. E. 55. Otherwise if buyer may 
 reject : Norman v. Phillips, 14 M. & W. 277. 
 
 3. Eesale by buyer before delivery is acceptance: 
 
 Eobinson v. Gordon, 23 U. C. E. 143. 
 
 4. Eesale by buyer while goods in customs is suffi- 
 
 cient: Tower v. Tudhope, 37 U. C. E. 200. 
 
 5. Order to engrave name on plate sufficient : Walker 
 
 v. Boulton, 3 O. S. 252. 
 A contract for the sale of goods, not in writing, 
 signed by the party to be charged, and not to be per- 
 formed within _a year, is unenf orcable, notwithstand- 
 ing acceptance by the buyer of part of the goods 
 sold: Prested Miners Gas, etc., Co. v. Garner (1911), 
 1 K. B. 425. 
 
 Note the wording of this section, which is composed 
 partly of 29 Car. 2, ch. 3, sec. 17, and partly of 9 
 Geo. TV., ch. 14, sec. 7 per E. S. 0. 1897, ch. 146, 
 sec. 9 (now repealed), as affecting the question of 
 " value " in Lord Tenterden's Act, and the line of 
 cases interpreting " price " in the original Act. See 
 also the (Eng.) Sale of Goods Act (1893), sec. 4, 
 where the 17th section of the Statute of Frauds and 
 Lord Tenterden's Act are also amalgamated. Gen- 
 erally : what contracts within the Statute of Frauds : 
 see Dig. Ont. Case Law. col. 6229. Acceptance and 
 receipt, col. 6231. Note or memorandum, col. 6324. 
 Part payment, col. 6236. 
 
CHAPTER 103. 327 
 
 CHAPTER 103. 
 
 The Mortmain and Chabitable Uses Act. 
 
 Eefer to (Bristowe's) Tudor 's Charitable Trusts; 
 Bourehier-Chilcott on Mortmain; White and Tudor 's 
 Leading Cases ; Lewin on Trusts ; Jarman on Wills ; 
 Story's Equity; Bicknell and Kappele, Practical 
 Statutes, pp. 573-4. 
 
 1. The statute 55 Vict., ch. 20, which was subsequently 
 R. S. 0. 1897, 112, was based upon the English Act 
 of 1891. The Act of 1902, 2 Edw. VII., ch. 2, also 
 known as R. S. O. 1897, ch. 333, was based upon the 
 earlier English Act of 1888. But by sec. 1 of the 
 Act of 1902, it was provided that that Act should 
 be read as part of ch. 112 : the result being to put the 
 two Ontario Acts practically in the same position as 
 the two English Acts : Re Barrett, 10 O. L. R. 337, 
 where the history and position of legislation on this 
 subject are discussed. See also Re Kinny, 6 O. L. R. 
 454; and as to the corresponding English Acts of 
 1888 and 1891: Re Hume (1895), 1 Ch. 422. For his- 
 tory of legislation in Ontario: see Armour, Real 
 Property, pp. 278-286: see Bristowe on the English 
 Mortmain Act :. The Mortmain Act is to be. strictly 
 construed: Philpott v. St. George's Hospital, 6 H. 
 of L. Cas. 338. 
 
 2.— (la) "Assurance:" Re Kinny, 6 0. L. R. 459; Re 
 Barrett, 10 0. L. R. 337; Madill v. McConnell, 16 
 0. L. R. 314, 17 0. L. R. 209; Re Battershall, 10 
 0. W. R. 933; and see notes to sees. 6 and 10. 
 
 2. — (lc) Meaning of " personal estate arising from or 
 connected with land ": see Re Barrett, 10 0. L. R. 
 337: Re Johnson, 5 0. L. R. 459; In re Brown, 
 32 0. R. 323; Manning v. Robinson, 29 0. R. 483: 
 See Re Wilkinson, 1902, 1 Ch. 841. Meaning of 
 "land": see Re Barrett, 10 0. L. R. 337. In- 
 cludes leaseholds: Re Kershair, 37 Ch. D. 674. 
 
 2. — (2) A bequest to provide luxuries for the inmates of 
 the county poor house, is a good charitable bequest : 
 
328 CHAPTER 103. 
 
 In re Brown, 32 0. E. 323. A provision postponing 
 the sale of lands left for charitable purposes is in- 
 valid unless the period is postponed by the Court: 
 lb. Meaning of " protestant charitable institu- 
 tions : ' ' Manning v. Eobinson, 29 0. B. 483. A devise 
 to a bishop in trust for his diocese is not a devise to 
 a charitable use: Ee McCauley, 28 0. E. 610. The 
 fact that an archbishop was trustee to distribute the 
 fund was held insufficient to shew that all the pur- 
 poses of the testator were charitable in view of the 
 law: Ee Davidson; Minty v. Bourne, 1909, 1 Ch. 567. 
 " Emigration " is not a charitable use: Ee Sidney; 
 Hingston v. Sidney, 1908, 1 Ch. 488. Gift "for the 
 good of religion:" Dunne v. Byrne, 1912, A. C. 407. 
 As to gifts to religious associations for other than 
 charitable purposes: see E. S. O. 1897, ch. 307, sec. 
 24, notes to E. S. 0. 1914, ch. 286, sec. 20 and Article, 
 48 C. L. T. 406. A good charitable bequest is not sub- 
 ject to the law against perpetuities: In re Clarke, 
 1901, 2 Ch. 110. Devise of lands to be sold and the pro- 
 ceeds used to advance the principles of, the Eeformed 
 Presbyterian Church is a good charitable bequest: 
 Ee Johnson, 5 O. L. E. 459. A bequest for missions 
 is a charitable use: Toronto General Trusts Co. v. 
 "Wilson, 26 O. E. 673; MadiU v. McConnell, 11 O. W. 
 E. 345, 16 0. L. E. 314, 17 0. L. E. 209. Voluntary 
 schools : Ee Beard, 1904, 1 Ch. 270. National schools : 
 Ee Blunts Trust, 1904, 2 Ch. 767. Benefit of inhabi- 
 tants : Ee Mann, 1903, 1 Ch. 232 ; Ee Sandbach School, 
 1901, 2 Ch. 317. Widows and neglected children in a 
 congregation : Ee Kinny, 6 O. L. E. 459. Inn of Chan- 
 cery: voluntary association: Smith v. Kerr, 1902, 1 
 Ch. 774. Gifts for religious purposes : see Ee Bar- 
 rett, 10 O. L. E. 337; Ee Archer, 9 0. W. E. 
 652, 14 O. L. E. 374, at p. 377. Gift to a con- 
 gregation of Hicksite friends to be applied in 
 charitable purposes as they may direct: Ee 
 Huyck, 10 O. L. E. 480. A bequest for religious pur- 
 poses is prima facie a bequest for charitable pur- 
 poses : White v. White, 1893, 2 Ch. 41, 62 L. J. Ch. 
 342 ; Arnott v. Arnott, 1906, 1 Ir. E. 127. A bequest 
 for " charitable, educational or other institutions 
 of the town of K." is a valid charitable gift: Dolan 
 v. Macdermot, L. E. 5 Eq. 60, L. E. 3 Ch. 676; Ee 
 Allen, Hargreaves v. Taylor, 1905, 2 Ch. 400, 74 
 L. J. Ch. 593. A bequest to bell-ringers to ring a 
 
CHAPTER 103. 329 
 
 peal each year in commemoration of the restoration 
 of the Monarchy: Ee Pardoe, McLaughlin v. Atty. 
 Gen., 1906, 2 Ch. 184. Such charitable and benevo- 
 lent institutions as A. shall determine : Blair v. Dun- 
 can, 1902, A. C. 37; Grimond v. Grimond, 1905, A. C. 
 124. Non-existing charity : Ee Clergy Society, 2 K. & 
 J. 615; Ee Davis, 1902, 2 Ch. 876. Eepair of a 
 churchyard: Ee Douglas, 1905, 1 Ch. 279. Officers' 
 library: Ee Good, 1905, 2 Ch. 60. See Ee Eyland; 
 Ee Sidebottam; Ee Wilkinson, infra, sec. 6. A de- 
 vise of real estate to a bishop in trust for the use of 
 his diocese is not a devise " to or for the benefit of 
 any charitable use:" Ee McCaulay, 28 O. E. 610. 
 A bequest " for such objects of benevolence and 
 liberality as the trustee in his own discretion shall 
 most approve," is not a charitable legacy: Morice v. 
 Bishop of Durham, 9 Ves. 399, 10 Ves. 521. Bequest 
 of residue to trustees to apply ' ' to such benevolent 
 and charitable purposes as they think proper," is 
 not void for uncertainty: Miller v. Eowan, 5 CI. & 
 Fin. 99. See also Ee Jarman's Estate, 8 Ch. Div. 
 584; Philpott v. St. George's Hospital, 6 H. of L. 
 Cases 338; Ee Hewett's Estate, 53 L. T. Ch. 132. A 
 bequest, of money for paying for masses for the re- 
 pose of the testator's soul is not invalid in Ontario 
 as a superstitious use: Elmsley v. Madden, 18 Gr. 
 386 : Armour, E. P., p. 282. 
 
 See Madill v. McConnell, 16 O. L. E. 314, 17 O. L. 
 E. 209; " Land shall not be assured, etc." A devise 
 of lands in Toronto by a testator dying in 1891, " to 
 promote and aid 17. S. citizens of African descent " 
 was held a charitable devise, and void under 9 Geo. 
 II. ch. 36. The fact that the trust was to be executed 
 in a foreign country made no difference: Lewis v. 
 Doerle, 28 O. E. 412, 25 A. E. 206; See also as to 
 9 Geo. II. ch. 36: Sills v. Warner, 27 O. E. 266; 
 Macdonell v. Purcell, 23 S. C. E. 101; Whitby v. 
 Liscombe, 23 Gr. 1; Doe d. Anderson v. Todd, 2 U. 
 C. E. 82. A provision for divesting under a will is 
 not rendered of no avail by the fact that the gift over 
 is void by the Statutes of Mortmain: Eobinson v. 
 Wood, 27 L. J. Ch. 726; Ee Archer, 14 O. L. E. 374. 
 " Under the authority ... of a statute:" see E. S. O. 
 1914, ch. 203, sec. 12; Ee Battershall, 10 O. W. E. 933, 
 at p. 939. Alienation in mortmain, e.g., to a corpor- 
 ation not empowered to hold lands, is voidable only 
 
330 CHAPTEE 103. 
 
 and not void : McDiarmid v. Hughes, 16 O. E. 570, 4 
 Cart. 701; Euclid Ave. Trusts v. Hohs, 18 0. W. R. 
 787, 19 0. W. R. 991, 23 0. L. R. 377, 24 0. L. R. 447. 
 Power of corporations to hold land: London and 
 Canadian v. Graham, 16 0. R. 329; McDiarmid v. 
 Hughes, 16 0. R. 570, 4 Cart. 701, and see R. S. 0. 
 1914, ch. 178, sec. 26, and notes. 
 
 6. This section does not apply to wills, but only to assur- 
 ances inter vivos : Re Barrett, 10 0. L. R. 337 ; In re 
 Hume Forbes v. Hume, 1895, 1 Ch. 422. The provi- 
 sions of the Georgian Mortmain Act, 1736 (9 Geo. II. 
 ch. 36) are reproduced in the Mortmain Act, and 
 still apply to conveyances inter vivos of land and 
 personal estate directed to be laid out in land for. 
 charitable purposes. One of the provisions so repro- 
 duced is that the assurance must be without any 
 power of revocation, etc. This provision has been 
 relaxed from time to time (24 Vic. ch. 9, 27 Vic ch. 
 13, sec. 4), and the relaxations are reproduced by two 
 clauses : sub-sees. 4, 5 : Enc. Laws Eng., art. ' ' Chari- 
 ties," p. 463. The word " assurance " refers to a 
 deed, not to a will, thus leaving R. S. 0. 1897 ch. 112, 
 sec. 4 untouched. Under that section a devise in 
 favour of charity is good, though made within six 
 months before the testator's death: Re Kinny, 6 0. 
 L. R. 459; Re Barrett, 10 0. L. R. 337. As to six 
 months limitation in R. S. 0. 1897, ch. 307, sec. 24, 
 which is held to be repealed by R. S. O. 1897, ch. 
 112, sec. 4: see Re Barrett, 10 0. L. R. 337. As 
 to " assurance " including " will:" see re Batter- 
 shall, 10 0. W. R. 933, at p. 939; Madill v. Mc- 
 Connell, 11 O. W. R. 345, 16 0. L. R. 314, 17 0. 
 L. R. 209; and see ante, sec. 2 (1) (a). Bequest 
 of mixed property to missions : Madill v. McConnell, 
 16 0. L. R. 314, 17 0. L. R. 209; Toronto General 
 Trusts Co. v. Wilson, 26 0. R. 673. Fund out of 
 which charitable legacies payable: Re Harris, Har- 
 ris v. Harris, 1912, 2 Ch. 241. Gift of land to charity 
 under English statutes, and of personal estate aris- 
 ing from land : see Cocks v. Manners, L. R. 12 Eq. 
 574; Re Sidebottom, 1902, 2 Ch. 389; Re Delany, 
 1902, 2 Ch. 642 ; Re Good, 1905, 2 Ch. 60 ; Re Ryland, 
 1903, 1 Ch. 467. 
 
 8.— (2) This statute does not affect the operation of the 
 revised statute as to public parks: Re Battershall, 
 10 0. W. R. 933 ; R. S. 0. 1914, ch. 203, sec. 12. 
 
CHAPTER 104. 331 
 
 10. It is no matter if the will was made before the 14th 
 April, 1892: Ee Bridger, 1894, 1 Ch. 297, 1893, 1 Ch. 
 44: See Re Archer, 14 0. L. E. 377. " Land:" De- 
 vise of land on trust for sale personal estate aris- 
 ing from land: Ee Sidebottom, 1902, 2 Ch. 389; Ee 
 Wilkinson, 1902, 1 Ch. 841. Trnst for sale : ' ' land : ' ' 
 Ee Eyland, 1903, 1 Ch. 467. This section repeals the 
 six months limitation in E. S. 0. 1897, ch. 307, sec. 
 24: Ee Barrett, 10 0. L. E. 337; Madill v. McConnell, 
 16 0. L. E. 314, 17 0. L. E. 209; see also Baker v. 
 Sutton, 1 Keene 224, at p. 232; Townsend v. Carus, 
 3 Ha. 257; Thorton v. Howe, 31 Beav. 14. This sec- 
 tion unaffected by sec. 7 of the Act of 1902 : Ee Kinny, 
 6 0. L. E. 459. Validity of devise to church of " rents 
 and profits ' ' of lands : Thomas v. McTear, 14 0. W. 
 E. 386. 
 
 11. Personal estate to be laid out in purchase of land: 
 Ee Sutton, 1901, 2 Ch. 640. 
 
 14. Legislation permitting societies to take gifts in mort- 
 main: Ee Youart, 10 O. W. E. 373. 
 
 14.— (2) After " Act " in line 2, insert " by:" 4 Geo. V. 
 ch. 2, Schedule 22. 
 
 CHAPTEE 104. 
 
 The Escheats Act. 
 
 2. Escheat a feudal survival: see Atty. Gen. v. 0' Eeilly, 
 26 Gr. 126, 6 A. E. 576, 5 S. C. E. 538, 8 App. Cas. 
 767. Although sec. 102 of the B. N. A. Act invests 
 the general public revenues in the Dominio%, yet by 
 sec. 109 the casual revenue arising from lands es- 
 cheated to the Crown after Confederation was re- 
 served to the Province, being a " royalty " within 
 the meaning of sec. 109 : Atty. Gen. v. O 'Eeilly ; Atty. 
 Gen. v. Mercer, 8 App. Cas. 767. See Armour on Eeal 
 Property, pp. 267* 268. No escheat of equitable 
 estate : on failure of heirs use vests in the person 
 having the seizin : see Ee Eeycraft, 20 0. L. E. 437. 
 
 4. See Atty. Gen. for Canada v. Atty. Gen. for Ontario, 
 Quebec and Nova Scotia, 1898, A. C. 700. < 
 
332 CHAPTER 105. 
 
 CHAPTER 105. 
 The Fraudulent Conveyances Act. 
 
 Refer to May on Fraudulent Conveyances ; Bicknell 
 and Kappele, Practical Statutes, pp. 370-371. 
 
 1. Legislation. (1) 1377: 50 Edw. III. ch. 6. (2) 1488: 3 
 Henry VII. ch. 4. (3) 1571 : 13 Eliz. ch. 5 ; see sees. 3, 4, 
 5. (4) 1585: 27 Eliz. ch. 4; see sees. 7, 8, 9. (5) 1845: 
 Insolvency Act (repealed). (6) 1872: 35 Vic. ch. 1; 
 see sees. 6, 10, 11. See also The Assignments and 
 Preferences Act, R. S. O. 1914, ch. 134, and the Do- 
 minion Winding-up Act, R. S. 0. 144. 
 
 3. Intent to . . . defraud. " A conjoint wrongful 
 purpose that must be proved:" Derry v. Peek, 14 
 A. C. 337. This wrongful purpose may be inferred 
 inter al. from: (a) a voluntary conveyance which de- 
 feats a creditor; (b) Grantee's knowledge of grant- 
 or's insolvency; (c) Some other benefit to grantor 
 than the mere consideration for the transfer, e.g.: 
 Mulcahy v. Archibald, 28 S. C. R. at p. 529; Middle- 
 ton v. Pollock, 2 Ch. D. 104; (d) Secrecy and absence 
 of corroborative evidence of good faith: Morton v. 
 Mehan, 5 A. R. 207; (e) Relationship, haste, inade- 
 quacy, etc. 
 
 Creditors protected may be: 1. Generally all who 
 have a legal demand on the grantor: May 163. 
 2. Simple contract creditors when suing on behalf 
 of themselves and all other creditors: Longeway v. 
 Miiflhell, 17 Gr. 170; Colver v. Swayzie, 26 Gr. 395; 
 Oliver v. McLaughlin, 24 O. R. 41. 3. Secured cred- 
 itors not fully secured : Sun Life v. Elliott, 31 S. C. 
 R. 91; Crombie v. Young, 26 O. R. 194. 4 Claimants 
 under an implied contract of indemnity: Oliver v. 
 McLaughlin, 24 O. R. 41. 5. Judgment and execution 
 creditors : Sawyers v. Linton, 23 Gr. 43 ; Manley v. 
 Young, 3 0. W. N. 400. 6. Assignees for benefit of 
 creditors and sheriff : Lumsden v. Scott, 4 O. R. 323. 
 7. Subsequent creditors where by the transfer the 
 debtor denudes himself of all property available for 
 
CHAPTER 105. 333 
 
 creditors: Sun Life v. Elliott, 31 S. C. E. 91; Stru- 
 ther v. Glennie, 14 0. E. 726 ; Ottawa Wine Vaults 
 Co. v. McGuire, 24 0. L. E. 591, 27 0. L. E. 319, 48 
 S. C. E. 44. 
 
 " The purchaser must have notice not only of the 
 debt, but of the covin — the fraudulent intention, for, 
 if mere notice of debts were sufficient to avoid a sale, 
 otherwise honest purchaser ought to have not only an 
 abstract of the vendor's title, but an abstract of the 
 vendor's circumstances, and he must be examined 
 like a bankrupt: a conveyance, therefore, cannot be 
 invalidated under this Act, where there is a bona 
 fide purchaser:" May on Fraudulent Conveyances, 
 2nd ed., p. 79; In re Johnson, Golden v. Gillam, 
 1881, 20 Ch. D. 389. The Court must look at the 
 whole circumstances surrounding the conveyance: 
 Ee Holland, 1902, 2 Ch. 360. A deed of arrange- 
 ment is not necessarily void under 13 Bliz. ch. 5, 
 either because it contains provisions in favour 
 of a debtor or because a particular creditor is in- 
 tentionally excluded from its operation : Maskelyne v. 
 Smith, 1902, 2 K. B. 158. A settlement of equitable 
 reversionary personalty may be a settlement within 
 the scope of 13 Eliz. ch. 5, since a creditor may reach 
 such property by a charging order (see E. S. 0. 1914, 
 ch. 56, sec. 140), or by appointment of a receiver 
 by way of equitable execution : Ideal Bedding Co. v. 
 Holland, 1907, 2 Ch. 157, and cases cited. Since 
 choses in action became attachable, an assignment 
 of them may be void under 13 Eliz. ch. 5, as tending 
 to defeat, hinder or delay creditors. If the effect, 
 not necessarily the object, of the assignment is to 
 defeat, hinder or delay one particular creditor only, 
 the assignment will be void under the statute: Ed- 
 munds v. Edmunds, 1904, P. 362. A voluntary con- 
 veyance by M. to his wife denuded him of the greater 
 part of his available assets, and was made to protect 
 the property conveyed against future creditors, and 
 therefore void as against them: Ottawa Wine 
 Vaults v. McGuire, 24 O. L. E. 591, 27 0. L. E. 319, 
 48 S. C. E. 44. Conveyance, husband to wife, set 
 aside as fraudulent : Canada Carriage Co. v. Lea, 11 
 0. L. E. 171, 14 0. W. E. 725, 1 0. W. N. 71. A volun- 
 tary conveyance of land is void though the vendor 
 
334 CHAPTER 105. 
 
 was solvent when it was made, if it results in denud- 
 ing him of all his property and rendering him insol- 
 vent thereafter. A mortgagee whose security is ad- 
 mittedly insufficient may bring an action to set aside 
 such conveyance without first realizing his security: 
 Sun Life v. Elliott, 31 S. 0. E. 91. Where a husband 
 made a voluntary settlement of half his assets on his 
 wife just before entering into a considerable specula- 
 tion in oil lands, it was held that property so held by 
 the wife was available for creditors : Alexander Oil 
 Co. v. Cook, 14 0. W. E. 604, 1 0. W..N. 22. See also 
 Mackay v. Douglas, L. E. 14 Eq. 106 ; Ex p. Eussell 
 L. E. 19 Ch. D. 588; Webb v. Hamilton,, 12 O. W. E. 
 380; Darland v. Chadsey, 14 0. W. E. 129; Jones v. 
 McGrath, 16 0. E. 617. Where a debtor conveyed all 
 his real estate on trust to sell and pay debts and as to 
 any ultimate surplus in trust for his wife, it, was held 
 in a suit by a subsequent purchaser for value at a sale 
 in execution of the grantor's interest in some of the 
 lands that the deed of conveyance was not void as 
 intended to defeat or delay creditors, and that not 
 being fraudulent in fact, it was not fraudulent in 
 law under 13 Eliz. ch. 5: Godfrey v. Poole, 57 L. J. 
 P. C. 78, 13 App. Cas. 497. Intent to hinder and 
 delay: Stecher v. Ontario Seed Co., 22 0. L. E. 577. 
 Intent to defeat claims for damages: see Watson v. 
 Gordanier, 11 0. W. E. 62. Eight of creditors to 
 follow profits: Fraudulent conveyances: 1 D.-L. E. 
 841. See H. & L. notes, pp. 1242-1254. 
 
 5. Unless the marriage be a mere fraudulent contrivance 
 for defeating creditors, the Courts will uphold a 
 settlement of the husband's property made previous 
 to and in consideration of an honest marriage, not- 
 withstanding the embarrassed circumstances of the 
 husband, even where the wife has contracted the 
 marriage with full knowledge of the husband's em- 
 barrassments : May on Fraudulent Conveyances, 2nd 
 ed., p. 332. Assignment of judgment debt in con- 
 sideration of an antecedent debt owing to assignee: 
 forbearance and subsequent advances as considera- 
 tion: Glegg v. Bromley. 1912. 3 K. B. 474. Consider- 
 ation: see Ee Eidler, 22 Ch. D. 81; Ottawa v. 
 McGuire, 24 0. L. E. 591, 4 O. W. N. 318, 27 
 0. L. E. 319, 48 S. C. E. 44. Letter accepting 
 proposal of marriage on condition of property be- 
 ing settled: suspicious circumstances: Fallis v. 
 
CHAPTER 105. 335 
 
 Wilson, 15 0. L. E. 55. Where the settlement was 
 voluntary : see Thompson v. Gore, 12 0. E. 651 ; and 
 the woman implicated in the fraud: Bulmer v. Hun- 
 ter, L. E. 8 Eq. 46; Colombine v. Penhall, 1 Sm. & 
 Giff. 228. Post nuptial settlement: Ee Holland; 
 Gregg v. Holland, 1902, 2 Ch. 360. 
 
 It having been held that the statute 13 Eliz. ch. 5 (sees. 
 3, 4, 5 ante) did not apply where there was valuable 
 consideration and intention to vest the property in 
 the transferee, even though there was fraudulent 
 intent, the Act 35 Vic. ch. 11 was passed, now repre- 
 sented by this section and sees. 10, 11 post : see Smith 
 v. Moffatt, 28 U. C. E. 486; Cameron v. Cusack, 17 
 A. E. 489; Gurofsky v. Harris, 27 0. E. 201, 23 A. E. 
 717 ; McDonald v. Horan, 12 0. W. E. 1151. Nor did 
 13 Eliz. ch. 5 apply to fraudulent preferences : Gur- 
 ofsky v, Harris, 27 0. E. 201, 23 A. B. 717. Nor to 
 the case of a purchaser defrauded by a voluntary 
 conveyance. 
 
 The Provincial Act merely provides that a valuable 
 consideration and intent to pass the interest of the 
 grantee shall not prevent the application of 13 Eliz. 
 ch. 5, sees. 1 and 2, unless the property was acquired 
 bona fide and without notice or knowledge on the 
 part of the purchaser of any fraud or intended 
 fraud by the vendor : Gurofsky v. Harris, v 27 0. E. 
 201-206, 23 A. E. 717. The cases which caused the 
 passing, of the declaratory section were inter al.: 
 Smith v. Morton, 27 TJ. C. E. 195, 28 U. C. E. 486, 
 and Dalglish v. McCarthy, 19 Gr. 578. In these 
 cases sales made with intent to defeat creditors, but 
 bona fide, intended to pass the property and for good 
 consideration actually paid, were upheld, following 
 the English case, Wood v. Dixie, 7 Q. B. 892. Al- 
 though no similar declaratory Act has been passed 
 in England, it is now held there that a fraudulent 
 intent to which the purchaser is_ a party will override 
 all enquiring into the consideration: see Ex parte 
 Chaplin, 26 Ch. D. 319. A similar result has been 
 reached elsewhere, e.g. : Cummings v. McDonald, 24 
 S. C. E. 321, on appeal from Nova Scotia. A cred- 
 itor's assignee, not himself a creditor cannot main- 
 tain an action to set aside a voluntary transfer or con- 
 veyance made by the debtor prior to the assignment 
 under which he claims : Lumsden v. Scott, 4 0. E. 323. 
 
336 CHAPTER 105. 
 
 A plaintiff suing in tort is not a creditor within the 
 meaning of the statute as to preferences : Gurof sky v. 
 Harris, 27 0. E. 201, 23 A. E. 717; Ashley v. Brown, 
 17 A. E. 500. The statute gives effect as against sub- 
 sequent purchasers to prior voluntary conveyances 
 executed in good faith and to them only. A voluntary 
 conveyance to a wife for the purpose of protecting 
 property from creditors was held not good as against 
 a subsequent mortgage to a creditor : Eichardson v. 
 Armitage, 18 Gr. 512. Where a debtor makes a pay- 
 ment believing in good faith and reasonably that he 
 is, though he in fact is not legally bound to make it, 
 such payment is not a fraudulent preference: Mc- 
 Donald v. Curran, 14 O. W. E. 838, 15 O. W. E. 218, 
 1 0. W. N. 121, 389. It may be noted that 13 Eliz. 
 ch. 5, sec. 2 is omitted from the present Act. This 
 was the penalty section. Under it an action by the 
 party aggrieved to recover a moiety of the penalty 
 imposed might be joined with an action to set aside 
 a fraudulent transfer : Miller v. McTaggert, 20 0. E. 
 617. The penalty and forfeiture clauses also af- 
 fected the question of production: see Con. Eule 
 464, H. & L. notes, p. 679. Summary inquiries in aid 
 of execution: H. & L. notes, pp. 1242-1245. Eefer 
 to Armour on Titles, p. 97. See E. S. 0. 1914, ch. 
 134, sec. 5 and cases noted. 
 
 7. This section and sees. 8 and 9 represent 27 Eliz. ch. 4, 
 the object being to avoid voluntary or revocable con- 
 veyances made to defraud purchasers and mort- 
 gagees from grantor in good faith. The statute did 
 not extend to personal property (as to which see the 
 Chattel Mortgage Act), nor to conveyances made for 
 good consideration and bona fide (see sees. 8 and 9), 
 nor to voluntary conveyances, if a purchaser has 
 bought in good faith and for value from the grantee, 
 and such purchaser has registered his deed before 
 any new conveyance from the original grantor (see 
 sees. 10 and 11). See Volunteers and Purchasers: 
 Armour on Titles, p. 97. 
 
 9. A voluntary conveyance under 27 Eliz. ch. 4 is void- 
 able only, and is good and valid until avoided : Har- 
 per v. Culbert, 5 0. E. 152. Absence of power of 
 revocation in a voluntary settlement not ground for 
 setting it aside : Hillock v. Britton, 29 Gr. 490. Ee- 
 f ormation of mortgage : when not voluntary so as to 
 
CHAPTERS 106, 107. 337 
 
 exclude reformation; Bank of Toronto v. Irwin, 28 
 Gr. 397. A judgment creditor not a purchaser for 
 value within 27 Eliz. ch. 4: Gillespie v. Van 
 Egmondt, 6 Gr. 533. Special facts: see Doe d. 
 Spafford v. Breckenridge, 1 C. P. 492. 
 
 CHAPTER 106. 
 
 The Powers op Attobney Act. 
 
 Refer to Evans on Principal and Agent ; Bythewood 
 and Jarman Conveyancing, Vol. IV.; Bicknell and 
 Kappele, Practical Statutes, p. 300. 
 
 1. Subject to the statutory provisions, the law with re- 
 gard to the revocation of a power of attorney and 
 the determination of the attorney's authority is the 
 same as the law with regard to the revocation and 
 determination of the authority of agents generally. 
 Powers of attorney are construed strictly, and give 
 such authority only as they confer expressly or by 
 necessary implication: Bryant v. La Banqne du 
 People, [1893] App. Cas. 170. See Conveyancing 
 Act (Imp.) (1882), sees. 8, 9, 47. When registered, 
 provision for registration in other offices : see R. S. 
 O. 1897, ch. 136, sec. 53; R. S. O. 1914, ch. 124, sec. 
 44. Provisions as to registration of instruments 
 executed by power of attorney: R. S. O. 1897, ch. 
 136, sec. 62 ; R. S. O. 1914, ch. 124, sec. 49. As to 
 powers of attorney charging commission: see R. S. 
 0. 1897, ch. 136, sec. 88; R. S. 0. 1914, ch. 124, sec. 76 
 Married women may. appoint: R. S. O. 1897, ch. 165, 
 sec. 2 ; R. S. 0. 1914, ch. 150, sec. 3. Registration of 
 powers of attorney: see R. S. 6. 1897, ch. 136, sees. 
 2, 60, 63; R. S. 0. 1914, ch. 124, sees. 2, 47, 50. As to 
 powers of attorney given for value : comments on this 
 statute and matters affecting powers of attorney 
 relating to conveyances of land: see Armour on 
 Titles, p. 118 et seq. 
 
 CHAPTER 107. 
 
 The Swabms op Bees Act. 
 
 3. Liability of owner of bees for damage done by them : 
 Lucas v. Pettit, 8 0. W. R. 315. 
 
 S.A.— 22 
 
338 CHAPTERS 108, 109. 
 
 CHAPTER 108. 
 
 The Aliens Real Property Act. 
 
 1. " Transmit," thereby enabling aliens to make wills: 
 see R. S. 0. 1897, ch. 128, sec. 10, and notes; R. S. 0. 
 1914, ch. 120, sec. 9. For remarks on this Act: see 
 Armour, Real Property, p. 269, 270. An alien may 
 not hold shares in a British ship. For cases before 
 the Act: see Dig. Ont. Cas. Law, col. 18. Alienage 
 in ejectment: see Her y. Elliott, 32 U. C. R. 434; 
 Rumrell v. Henderson, 22 C. P. 180. Aliens : prop- 
 erty and civil rights of non-residents in province': 
 see 9 D. L. R. 346. 
 
 CHAPTER 109. 
 
 The Law and Transfer of Property Act. 
 
 Refer to Armour on Titles; Armour on Real Prop- 
 erty; Bicknell and Kappele, Practical Statutes, pp„ 
 587-593 ; Hunter, Real Property Statutes ; White and 
 Tudor 's Leading Cases; Smith's Leading Cases; 
 Williams Conveyancing Statutes; Goodeve Real 
 Property; Sugden on Powers; Fearne on Contin- 
 gent Remainders ; Warren, Choses in Action ; Kehoe, 
 Choses in Action ; Bateman on Auctioneers, etc., etc. 
 
 2. — (6) Land: Compare the definition of this term in 
 various statutes. As to what will pass under a con- 
 veyance of land: see Winfield v. Fowlie, 14 O. R. 
 102; Miles v. Ankatell, 29 O. R. 21, 25 A. R. 458, 
 and notes to sec. 15 infra. 
 
 3. Freehold estates other than immediate and conse- 
 quently not accompanied by possession are not with- 
 in the enactment, as they lay in grant before it : see 
 Armour on Real Property, pp. 87, 221-223, and as 
 to grants, pp. 341-343. Estates cannot usually be 
 created in chattels analogous to estates in lands: 
 Woodmeston v. Walker, 2 Russ. & My. 197 ; McFar- 
 lane v. Henderson, 16 O. L. R. at p. 176. Life inter- 
 est in chattels : Williams, Personal Property, 363 
 
CHAPTER 109. 339 
 
 et seq. No life estate possible in things quae usu 
 . consumuntur : Ee Tuck, 10 0. L. E. 309. 
 
 4, Dowress conveying a greater estate than for her own 
 life : Armour on Eeal Property, p. 125. Life tenant : 
 lb., p. 160, 161; and as to conveyance by feoffment: 
 lb., pp. 336-340. 
 
 5. — (1) " In fee," " in fee simple," no words of limita- 
 tion: see In re Ethel and Mitchell and Buller's Con- 
 tract, 1901, 1 Ch. 945. See Armour on Eeal Prop- 
 erty, pp. 324-325, 327-329. 
 
 5.— (2) See Burch v. Flummerf'elt, 14 0. W. E. 929, 1 
 0. W. N. 133. 
 
 5. — (3) Prior to the Act an equitable estate could not 
 be created without words of interitance: Dearberg 
 v. Letchf ord, 72 L. T. 489; Lovate v. Whiston, 1894, 
 1 Ch. 661. Compare the provision as to wills : E. S. 
 0: 1897, ch. 128, sec. 30; E. S, 0. 1914, ch. 120, sec. 31. 
 See Armour on Eeal Property, pp. 106-107. 
 
 7. At common law the parties were estopped by the re- 
 ceipt in the body of the deed, but in equity it might 
 be shewn that the money was unpaid, and after the 
 Judicature Act this rule prevailed: but see E. S. 0. 
 1897, ch. 136, sec. 98; E. S. 0. 1914, ch. 124, sec. 73, 
 as to effect of registration. The section is not to be 
 restricted to claims on alleged vendor's liens and the 
 like: see Jones v. McGrath (2), 16 0. E. 617. An 
 assignee of a mortgage takes subject to the equities 
 between the original parties: Wilson v. Kyle, 28 
 Gt. 104. The word " conveyance " in this section 
 includes "mortgage:" see sec. 2 (a): See E. S. 
 0. 1897, ch. 121, sec. 33; E. .S. 0. 1914, ch. 
 112, sec. 12. See Armour on Titles, pp. 85, 95 
 112. Armour, Eeal Property, pp. 323-324. To 
 constitute a receipt there must be express words 
 acknowledging the receipt of the consideration 
 money: Eeuner v. Tolley, 68 L. T. 815. Without 
 this the purchaser must pay the expense of proving 
 that there is no vendor's lien for unpaid purchase 
 money, should he insist upon such proof: Ee Scott 
 and Alvarez, 1895, 1 Ch. 596. Eeceipt in deed : pur- 
 chaser for value without notice : Lloyds Bank v. Bul- 
 lock, 1896, 2 Ch. 192. 
 
340 CHAPTER 109. 
 
 9. Partition: see Armour on Eeal Property, pp. 252, 
 
 346-7. Leases required by law to be in writing : see 
 E. S. 0. 1897, ch. 338, sees. 2, 3; E. S. 0. 1914, 
 ch. 102, sees. 2, 3, 4. While not good as a lease be- 
 cause not by deed, such a lease may be good as an 
 agreement, and specific performance of it decreed: 
 Walsh v. Lonsdale, 21 Ch. D. 9 ; Lowther v. Heaver, 
 41 Ch. D. 264; Armour on Eeal Property, pp. 137, 
 185-6. Position of tenant to compel performance of 
 agreement for lease : possession under parole demise. 
 Eule at law and in equity : Eogers v. National Drug 
 and Chemical Co., 23 O. L. E. 234, 24 O. L. E. 486. 
 Surrenders: see E. S. 0. 1914, ch. 102, sees. 2, 3, 4, 
 notes ; Armour on Eeal Property, pp. 349-351 ; Gnult 
 v. Sheppard, 14 A. E. 209 ; Mickleborough v. Strathy, 
 23 0. L. E. 33- 
 
 10. Does not extend to entry for condition broken, but 
 only to entry where there has been disseizin, though 
 both are covered by E. S. 0. 1897, ch, 128 sec. 10; 
 E. S. 0. 1914, ch. 120, sec. 9 ; Armour on Eeal Prop- 
 erty, p. 156, and cases there referred. As to entry 
 for condition broken : see E. S. O. 1897, ch. 330, sees. 
 12, 13; 32 Henry VIII. ch. 34; E. S. 0. 1914, ch. 
 155, sec. 4 et seq. As to estates tail: see Armour 
 on Eeal Property, p. 104, 487 et seq. Executory 
 interests: see E. S. O. 1897, ch. 128, sec. 10; E. 
 S. 0. 1914, ch. 120, sec. 9, and Armour on Eeal 
 Property, p. 233. Possibility coupled with an inter- 
 est, e.g., inchoate right of dower or a devise to the 
 survivor of several persons. As to reversion expec- 
 tant on dissolution of corporation: see Armour on 
 Eeal Property, p. 270. Eeversions and vested re- 
 mainders: Armour on Eeal Property, pp. 293-4. 
 Contingent interests: Armour on Eeal Property, p. 
 226 et seq. Anything that can be conveyed under 
 this section can be sold by the sheriff : see Execution 
 Act, E. S. 0. 1914, ch. 80; Armour on Titles, p. 390; 
 Bicknell D. C. Act, p. 402. As to interest not within 
 the section: see Little v. Hawkins, 19 Gr. 268. In 
 an action under 32 Henry VIII. ch. 9, sec. 2, against a 
 buyer of a right of entry the onus is on the plain- 
 tiff to prove not only that the title purchased was bad 
 but also that the purchaser knew it to be fictitious. 
 The mere fact that the right purchased was barred 
 by the Statute of Limitations does not necessarily 
 
CHAPTER 109. 341 
 
 render the title " pretenced " within the meaning of 
 the Statute 32 Henry VIII. ch. 9: Kennedy v. Lyell, 
 15 Q. B. D. 491, (32 Henry VIII. ch. 9, was repealed in 
 Ontario by S. L. B. Act, 1902). A grant of lands 
 to which the grantor has a title in fact, but of which 
 he has never been in possession, and on which he 
 has only a right of entry, is valid, even though at 
 the time of grant litigation is pending as to the 
 title : Jenkins v. Jones, 9 Q. B. D. 128. A tenant at 
 will has. no interest as denned by this section : Be 
 Clarkson & Wishart, 27 0. L. E. 70, 3 0. W. N. 
 1645. See, however, this case in P. C., where held 
 that interest under mining certificate not a tenancy 
 at will: 24 0. W. E. 937; (1912), A. C. 828. See the 
 provisions of E. S. 0. 1914, ch. 195, sec. 180, as to 
 rights of entry adverse to tax purchaser. 
 
 11. Former objection to the use of the word " grant:" 
 see Armour on Eeal Property, pp. 342, 482. 
 
 13. A testator by his will devised certain land to two 
 sisters, naming them, and also gave them his resid- 
 uary estate. As to the lands, it was held that they 
 would have taken as tenants in common, and there r 
 fore as to the deceased sister's share there was a 
 lapse, and it was undisposed of, but as to the person- 
 alty, they would have taken as joint tenants, and 
 the survivor took the whole: Ee Gamble, 13 0. L. 
 E. 299. Heirs also take as tenants in common: see 
 E. S. 0. 1897, ch. 127, sec. 56; E. S. O. 1914, ch. 119, 
 sec. 18. Executors and trustees still take as joint ten- 
 ants. The effect of the statute is to create a tenancy in 
 common only in cases where there would have been 
 a joint tenancy : Ee Shaver & Hart, 31 U. C. E. 603. 
 For exposition of law relating to estates in joint ten- 
 ancy and estates in common : see Armour, E. P., 239. 
 Cases: see Dig. Ont. Case. Law, col. 2227 to 2232. 
 At common law it seems that a corporation and a 
 natural person can hold lands only as tenants in 
 common and not as joint tenants. This has been 
 altered in England, 62 and 63 Vict., ch. 20. Difficulty 
 may arise here over the appointment of a corpora- 
 tion as trustee jointly with an individual : Ee Thomp- 
 son, Thompson v. Alexander, 1905, 1 Ch. 229. In 
 England co-heirs take as joint tenants : Owen v. Gib- 
 bons, 1902, 1 Ch. 636: see E. S. 0. 1897, ch. 127, sec. 
 
342 CHAPTER 109. 
 
 J 
 
 26. Devise to two persons as joint tenants: Ee 
 Gignac and Denis, 16 0. W. E. 965, 2 0. W. N. 40. 
 Variance between grant and habendum: Ee Finger- 
 hut and Barnick, 17 0. W. E. 730, 2 0. W. N. 372. 
 
 14. Section 13 refers only to lands granted, etc., and not 
 to lands acquired by possession where joint posses- 
 sors took as joint, tenants, and not as tenants in 
 common prior to this section: McKinnon v. Spence, 
 20 0. L. E. 57, at 65: Ee Livingstone, 2 0. L. E. 381, 
 and notes E. S. O. 1914, ch. 75, sec. 12. 
 
 15. The general words of the section are intended to 
 pass easements and privileges legally appendant and 
 appurtenant to the property conveyed, but will not 
 pass an easement in navigable waters, which is a 
 matter of public law, nor will it confer upon a grantee 
 any right to insist on the grantor limiting the use 
 of premises retained by him to an extent inconsis- 
 tent with the intention to be implied from the cir- 
 cumstances existing at the time of the grant 
 to the knowledge of the grantee: Hamilton Steam- 
 boat Co. v. Mackay, 10 0. W. E. 295. The rule 
 that a man may not derogate from his grant is a 
 legal and not an equitable rule and not founded 
 on any implied covenant. It operates to bind per- 
 sons claiming through the grantor even though they 
 are bona fide purchasers without notice: Cable v. 
 Bryant, 1908, 1 Ch. 259. Where a parcel of land is 
 accurately described by metes and bounds the gen- 
 eral words will not pass lands with buildings thereon, 
 not embraced in the specific description, merely be- 
 cause the buildings were previously used and occu- 
 pied with the property described : Hill v. Broadbent, 
 25 0. E. 159. Eight of way: circumstances under 
 which severance having taken place, a right-of-way 
 was not included in the words of the section: 
 Maughan v. Casci, 5 0. E. 518. " Trees ": "Wrongful 
 removal of timber from lands : Subsequent bona fide 
 sale: Faulkner v. Greer, 14 0. L. E. 360. " Way:" 
 Duty of grantor to define the right of way he is grant- 
 ing: Burney v. Moore, 4 0.. W. N. 173. Way of neces- 
 sity : how acquired and how lost : see 49 C. L. J. 398. 
 What amounts to ' ' way, " " appurtenance, " " held, ' ' 
 etc., within the meaning of the section: Sinclair v. 
 Peters, 23 0. W. E. 441, 48 S. C. E. 57. Eight to fence 
 
CHAPTER 109. 343 
 
 a right of way on both sides, and put gate at highway 
 entrance: Eoss v. McLaren, 2 0. W. N. 861, 18 0. 
 W. B. 818. "Lights:" The rules settled by the 
 Courts as to interference with ancient lights, are 
 not applicable to a case where the plaintiff's rights 
 depend on a prior conveyance from the common 
 owner of his lot and the adjoining one, the plaintiff 
 being entitled to receive such access of light through 
 his windows, as they had at the time of the severance 
 of his lot from that owned by the defendants : Simp- 
 son v. Eaton, 15 0. L. E. 161, 10 0. W. E. 151, 569: 
 see Ellis v. White, 11 0. W. E. 181 ; Euetsch v. Spry, 
 
 14 0. L. E. 233, 9 0. W. E. 696. Grant of right, ex- 
 press or implied: derogation: building agreement: 
 injury to light : Quicke v. Chapman, 1903, 1 Ch. 659. 
 A grantee of a new house is not entitled to all of 
 the light actually falling on the windows of the house, 
 where that would be inconsistent with the intention 
 to be implied from the circumstances at the time of 
 the grant and known to the grantee: Godwin v. 
 Schweppes Lim., 1902, 1 Ch. 926 : see also Pollard v. 
 Gare, 1 Ch. 834; Broomfield v. Williams, 1897, 1 Ch. 
 602. "Easements:" Effect of tax sale on ease- 
 ments: Essery v. Bell, 13 0. W. E. 395. The 
 right to air through a defined aperture is an ease- 
 ment which can be granted : Cable v. Bryant, 1908, 1 
 Ch. 259. Passing of right to dam back water 
 though not expressly mentioned: Cain v. Pearce, 1 
 0, W. N. 1133, 2 0. W. N. 887. " Appurtenances :" 
 see Praser v. Mutchmoor, 8 0. L. E., at p. 616. See 
 E. S. 0. 1914, ch. 115, Schedule B. cl. 3, notes, as to 
 what is included in short forms grant. 
 
 16. Eeservation in conveyance of metals, minerals, and 
 oils, does not include natural gas: Barnard Argue 
 Both v. Alexandra Oil., etc., Co., 22 0. L. E. 319, 25 
 0. L. E. 93, 23 0. W. E. 90, 1912, A. C. 864. Nature 
 of interest of certificated holder of mining claim 
 before patent: Eeilly v. Doucette, 2 0. W. N. 1053; 
 Ee Clarkson and Wishart, 27 0. L. E. 70; (1913), 
 A. C. 828. 
 
 18. Surf ace rights : Coniagas v. Cobalt, 13 0. W. E. 333, 
 
 15 0. W. E. 761, 20 0. L. E. 622. 
 
 20. As to grants to individuals and Corporations jointly : 
 see Ee Thompson, 1905, 1 Ch. 229, note to sec. 13. 
 See Armour, E. P., pp. 371-2. 
 
344 CHAPTER 109. 
 
 21. A certificate of lis pendens is not an incumbrance 
 within the meaning of this section: Molsons Bank 
 V; Eager, 10 0. L. E. 452. Where an applicant is 
 not entitled to pay money into Court under this sec- 
 tion, he may nevertheless be entitled to an inter- 
 pleader order under Con. Eule 1103 (1913 Eule 
 704) : Molsons Bank v. Eager, 10 O. L. B. 452. An 
 annuity is an incumbrance within the section. The 
 Court directed that the lands subject to the annuity 
 be sold, the purchase money being paid into Court, 
 or a statutory mortgage given by the purchaser, the 
 interest from which would produce a revenue slightly 
 greater than the annuity : Ee Dowd, 9 0. W. E. 746 : 
 see Bicknell v. Kappele, Stat. p. 590. Where a muni- 
 cipal corporation acquired the property of a com- 
 pany, which was subject to a mortgage made by the 
 company for a large sum, and an application was 
 made by the municipality for its greater conveni- 
 ence, the Court refused the payment of the money 
 into Court to charge the company with the difference 
 between the mortgage rate (5 per cent.), and the 
 Court rate (3 per cent.), for the period the mortgage 
 had to run, and to deduct the principal, interest and 
 such bonus from the purchase money : Ee Kingston 
 Light, etc., Co., and Kingston, 8 O. L. E. 249: see 
 Armour on Titles, pp. 150, 292-3, 388-9. 
 
 22. Liability of vendor conveying as beneficial owner to 
 indemnify purchaser in respect of breach of implied 
 covenant: effect of knowledge of purchaser: Great 
 Western Eailway v. Fisher (1905), 1 Ch. 316. Com- 
 pare Short forms Act, E. S. 0. 1897, ch. 124; E. S. 0. 
 1914, ch. 115, where the covenants, if made by more 
 than one covenantor are joint, unless words are used 
 to make them joint and several. The covenants are 
 expressed to extend only to the covenantor's own 
 acts, and herein differ from the Imperial Act, 44- 
 45 Vict., sec. 7. Effect of implied joint covenant: 
 see Merc. Amt. Act, E. S. 0. 1914, ch. 133, sec. 6. 
 
 24. A mere power over the estate of another is not an 
 estate: Earl of Devons' Case, 1896, 2 Ch. 562. Exer- 
 cise of general powers; (a) by deed under this sec- 
 tion; (b) by will: see E. S. 0. 1914, ch. 120, sees. 13, 
 30; (c) In Equity: Ee Walker, 1908, 1 Ch. 560. 
 Armour, Eeal Property, p. 319 ; Cf . Imp. Act, 22-23 
 
CHAPTER 109. 345 
 
 Vict., eh. 35, sec. 12. Where a power is exercised 
 by will, the will must comply with the requirements 
 of the Wills Act : R. S. 0. 1914, ch. 120. 
 
 25. Imperial Act, 44-45 Vict., ch. 41, sec. 52: see Re 
 Collard and Duckworth, 19 0. R. 735. Release of 
 power of appointment by married woman over 
 property, in which she has a life interest,, sub- 
 ject to restraint on anticipation: Re Chisholm's 
 Settlement, 1901, 2 Ch. 82. 
 
 29. Sections 29, 31, 32 are the " Statute of Marlbridge." 
 Waste may also be punished by damages or by in- 
 junction: see Judicature Act, R. S. 0., 1914, ch. 56 
 sees. 17, 18. Waste : Alterations in building : Hold- 
 erness v. Lang, 11 0. R. 1. Clearing land : Lewis v. 
 Godson, 15 0. R. 252 ; Saunders v. Breakie, 5 0. R. 
 603. Tapping trees : Campbell v. Shields, 44 U. C. R. 
 449. Boring for oil : Lancey v. Johnston, 29 Gr. 67. 
 Mortgagor: Lumber cut off mortgaged premises: 
 Scott v. Vosberg, 8 P. R. 336; McLeod v. Avey, 16 
 0. R. 365. Timber cut by tenant for life : Taylor v. 
 Taylor, 5 0. S. 501; Weller v. Burnham, 11 U. C. R. 
 90; Saunders v. Breakie, 5 0. R. 603; Munsie v. Lind- 
 say, 10 P. R. 173 ; Drake v. Wigle, 24 C. P. 405. Im- 
 peachment of tenant for life for waste : see also Clow 
 v. Clow, 4 0. R. 355. 
 
 32. Yellowly v. Gower, 11 Exch. 274, which held that a 
 
 tenant for years is liable for permissive waste, was 
 rightly decided, and its authority has not been im- 
 pugned by any subsequent case, or by the Judicature 
 Act : Morris v. Cairncross, 14 0. L. R. 544, 9 0. W. 
 R. 918. Effect of short forms covenants, and the 
 exceptions in them considered : Morris v. Cairncross, 
 14 0. L. R. 544. 
 
 33. Release of part of lands charged with a rent charge 
 
 and concurrence of owner of rent charge, who grants 
 and quit claims all his interest in the premises, oper- 
 ates to release the moiety granted from all liability 
 in respect of the rent charge, but does not convey 
 the rent charge or any part of it to the grantees: 
 Price v. John, 1905, 1 Ch. 744. See Armour, R. P., 
 p. 83. 
 
346 CHAPTER 109. 
 
 34. See Sugden on Powers. The effect of this section is 
 discussed in judgment of Maclennan, J.A., in Thures- 
 son v. Thuresson, 2 0. L. E. 637, at p. 643, and in 
 dissenting judgments of Boyd, C., at p. 644, and 
 Street J., at p. 649. 
 
 35. Contingent remainders: see Dig. Eng. Case Law 
 XIV., col. 1567, et seq.: see also Contingent Remain- 
 ders Act, 1877 (40-41 Vict. ch. 33). Remainders 
 are construed as vested if possible: White v. Sum- 
 mers, 1908, 2 Ch. 256. As between contingent re- 
 mainders and executory interests the Court favours 
 construction as contingent remainders: Re Nash, 
 1910, 1 Ch. 1. Preservation of contingent remainder : 
 Re Scott, 1911, 2 Ch. 374. See Armour, R. P. 226- 
 229. 
 
 36. As to merger : see Armour, Real Property, pp. 235-6. 
 
 37. A purchaser made lasting improvements under the 
 belief that he had acquired the fee, and then made 
 a mortgage to a person who took in good faith under 
 the same mistake of title. The purchaser had really 
 acquired only the title of a life tenant. The mort- 
 gagee was held an ' ' assign ' ' within the section, and 
 entitled to a lien, which he was entitled to enforce 
 actively: McKibbon v. Williams, 24 A. R. 122. It 
 seems that the section would not affect the Crown 
 and if the title were in the Crown, when the improve- 
 ments were made, the Crown's grantee would take 
 free from any lien: Commissioners Queen Victoria 
 N. F. Park v. Colt, 22 A. R. 1. In cases coming 
 under this section, the amount by which the value 
 of the land has been enhanced is to be allowed, not 
 the cost or value of the improvements. lb. The 
 possessors are not chargeable with profits, but only 
 a fair occupation rent. lb. Where a person pur- 
 chased a life estate, believing it to be the fee, and 
 made improvements, he was entitled to a lien to the 
 extent to which the value of the land was enhanced. 
 He was held liable for mesne profits, and the one 
 was set off against the other : Bullen v. Nesbitt, 10 
 O. W. R. 119. Where in administration proceedings, 
 an heir being advised that he was a life tenant only, 
 made a claim for improvements, the matter was re- 
 ferred back to the Master to report specially: (1) 
 whether the applicant made the improvements in the 
 
CHAPTER 109. 347 
 
 belief that the land was his own; (2) the particulars 
 of the improvements; (3) the amount by which the 
 value of the land was enhanced: Ee Coneter, 10 0. 
 W. E. 342. Where on the construction of a compli- 
 cated devise, the vendor was found to have an estate 
 pur autre vie, and not a fee simple, the purchasers 
 who had entered under an agreement were ordered to 
 give up possession, given a lien for lasting improve- 
 ments and purchase moneys paid after being charged 
 with a fair occupation rent: Young v. Denike, 2 0. 
 L. E. 723. Where a person purchased land at a tax 
 sale, and also took a conveyance from the mortgagor 
 of the equity of redemption, and failed to establish 
 that taxes were in arrear for which the land might 
 rightly be sold, he had no valid claim for lasting im- 
 provements against a mortgagee seeking to foreclose, 
 as he took subject to the mortgage, and was simply 
 improving his own land : Hislop v. Joss, 3 0. L. E. 
 281. A person who purchased lands under the mis- 
 taken belief that the vendor took an estate tail 
 under a will, when in reality he took an estate for 
 life with remainder in fee to his children, was held 
 entitled to a lien for lasting improvements, and the 
 statute was held to apply to a mistake of title de- 
 pending on a question of law. The point for deter- 
 mination is whether the person claiming for the im- 
 provements made them within the bona fide belief 
 that the land was his own : Chandler v. Gibson, 2 0. 
 L. E. 442. And even where the true owner sent the 
 possessor a notice threatening action, but did not 
 follow it up nor disclose how title was claimed — it 
 not being obvious from the Eegistry — the possessor 
 was entitled to a lien, being charged with occupation 
 rent: Corbett v. Cdrbett, 8 0. W. E. 88, 12 0. L. E. 
 268. Husband's expenditure on wife's property: Till 
 v. Till, 15 0. E. 133. Expenditure by purchaser under 
 invalid sale by executors : Beaty v. Shaw, 14 A. E. 
 600. Improvements made under mistake of title are 
 not to be allowed for as freely or as liberally as im- 
 provements by a mortgagee in possession : Munsie v. 
 Lindsay, 10 P. E. 173. Method of computing enhanced 
 value and of fixing occupation rent : Munsie v. Lind- 
 say, 10 P. E. 173, 11 0. E. 520. Improvements by 
 grantee where conveyance set aside for improvidence : 
 Shanagan v. Shanagan, 7 0. E. 209. Deed obtained im- 
 properly: McGregor v. McGregor, 27 Gr. 470. No 
 
348 CHAPTER 109. 
 
 occupation rent should be charged against one who 
 has been in occupation under mistake of title in re- 
 spect of the increased value thereof arising from 
 improvements which are not allowed him : McGregor 
 v. McGregor, 5 0. E. 617. What are improvements : 
 a well and a rail fence: — held, evidence to go to a 
 jury : Morton v. Lewis, 16 C. P. 485. Damages may 
 be assessed for improvements made by defendant 
 on land not his own, in consequence of an erroneous 
 survey: Mozier v. Keegan, 13 C. P. 547. What 
 amounts to an unskilful survey, which misleads : Doe 
 d. Hare v. Potts, 5 IT. C. E. 492; Doe d. Menle v. 
 Campbell, 8 IT. C. E. 19; Swanston v. Strong, 21 U. 
 C. E. 279. There is no difference whether the sur- 
 vey is by public or private authority: Doe d. Gal- 
 lagher v. McConnel, 6 0. S. 347 ; Campbell v. Fergu- 
 son, 4 C. P. 414; Hulton v. Trotter, 16 C. P. 367. In- 
 terest is allowed on enhanced value from time the 
 money was expended : method of computation of en- 
 hanced value : Fawcett v. Burwell, 27 Gr. 445. Set off 
 of rent : McCarthy v. Arbuckle, 31 C. P. 405. Manner 
 of enforcing lien : Gummerson v. Bunting, 18 Gr. 516 ; 
 O'Connor v. Dunn, 37 IT. C. E. 430; McBride v. Mc- 
 Neil, 27 0. L. E. 390. Effect of statute where mort- 
 gagee purchased equity of redemption, and the sale 
 was considered valid and acquiesced in by all parties 
 for many years, although invalid on technical 
 grounds : Skae v. Chapman, 21 Gr. 534. The belief 
 of ownership must be a reasonable belief: Smith 
 v. Gibson, 25 C. P. 248. Encroachment on neigh- 
 bour's land: Ward v. Saunderson, 3 0. W. N. 802, 21 
 0. W. E. 254. Wall built on strip of land in dis- 
 pute: belief of ownership: Parent v. Latimer, 17 
 0. W. E. 368, 2 O. W. N. 210, 1159, 19 0. W. E. 
 461. Improvements under mistake of title: Col- 
 onial Loan v. Longley, 13 O. W. E. 388. Lien for 
 permanent improvements : Eose v. Parent, 2 0. W. N 
 783, 18 0. W. E. 745; McBride v. McNeil, 4 0. W. N. 
 475. Lien for enhanced value : Patterson v. Dart, 2 
 0. W. N. 429, 17 0. W- K- 766, 3 0. W. N. 127, 20 
 0. W. E. 213, 24 0. L. E. 609. Lien of purchaser 
 at tax sale for improvements and money expended: 
 Eichard v. Collins, 27 0. L. E. 390. Improvements 
 made under mistake of title : see H. & L. notes, pp. 
 889 etseq. Armour on Titles, p. 429. As to improve- 
 ments to chattels under mistake of title: see 42 C 
 L. J., p. 329. 
 
CHAPTER 109. 34.9 
 
 38. Purchase of reversions: see Armour, E. P., pp. 237, 
 238. 
 
 39. The doctrine of constructive notice, and the defence 
 
 of purchase for value without notice as applicable 
 to this country, commented on : Henderson v. Graves, 
 2 E. & A. 9 (prior to the section). The defence of 
 purchase for value without notice is not available 
 against the Crown; Atty-Gen. v. McNulty, 11 Gr. 
 281, 581: see Con. Eule 276; H. & L. notes, p. 486, 
 1913 Eule 148. 
 
 40. As to consideration in conveyances to assignor's 
 
 wife : see Jones v. McGrath, 16 0. E. 617 ; Whitehead 
 v. Whitehead, 14 0. E. 621. Armour, E. P., p. 300; 
 Armour on Titles, p. 379. 
 
 42. See the provisions of the Insurance Act, E. S. O. 
 1914, ch. 183, sec. 165. 
 
 49. — (1) The statute has not affected the principles of 
 equitable assignment: Hughes v. Pumphouse Hotel 
 Co., 1902, 2 K. B. 196; Elgie v. Edgar, 9 O. W. E. 
 614; Ee McEae, 6 O. L. E. 238; Durham v. Eoberts, 
 1898, 1 Q. B. 765; Alexander v. Steinhart, 1903, 2 
 K. B. 108 ; Lane v. Dungannon Driving Park Associa- 
 tion, 22 O. E. 264; Quick v. South Colchester, 30 O. 
 E. 614. Assignee may sue without joining assignor. 
 But where the assignment is not " absolute:" see 
 Mills v. Small, 14 O. L. E. 105. Bringing in as- 
 signor's as defendants to counterclaim: Sovereign 
 Bank v. Parsons, 11 O. W. E. 845, 968, 18 0. L. E. 
 665. Assignment with secret defeasance : transferee 
 again assigns absolutely to another who takes with- 
 out notice: second transferee obtains a valid title: 
 Quebec Bank v.. Taggart, 27 0. E. 162. What is 
 necessary for assignment of chose in action Under 
 this section, and under E. S. 0. 1887, ch. 122, sees. 
 6-12 : Eennie v. Quebec Bank, 1 0. L. E. 303. Notice 
 to debtor: sufficiency: McMillian v. Orillia Export 
 Lumber Co., 6 0. L. E. 126. What is meant by an 
 " absolute " assignment: Mills v. Small, 14 0. L. E. 
 105; Fairbanks v. Saunders, 9 0. W. E. 184. Dis- 
 tinction between assignment of the whole debt as 
 security for a smaller sum and assignment of only 
 sufficient of the debt to secure the smaller sum : Sov- 
 ereign Bank v. International Portland Cement Co., 
 
350 CHAPTER 109. 
 
 14 0. L. E. 511. Parol assignment of book debts 
 valid under E. S. 0. 1887, cb. 122, sec. 7 : assent of 
 debtor not required: Trusts Corporation v. Eider, 
 27 0. E. 593, 24 A. E. 157. Validity of assignment of 
 book debts as against anotber creditor in absence 
 of notice given to debtor: Eby Blain v. Montreal 
 Packing Co., 17 0. L. E. 292. What cboses in action 
 can be assigned under this provision : Cohen v. Web- 
 ber, 24 0. L. E. 171. To constitute a good equitable 
 assignment of a debt, all that is necessary is that 
 the debtor should be given to understand that the 
 debt has been made over to some third person, and 
 if the debtor disregards such notice, he does so at 
 his peril : Brandt v. Dunlop Eubber Co., 1905, A. C. 
 454, 74 L. J. K. B. 898. Notice of assignment given 
 by executor of deceased second transferee of mort- 
 gage : see Bateman v. Hunt, 1904, 2 K. B. 530. Notice 
 of assignment: Thomas v. Standard Bank, 1 0. W. 
 N. 379, 548, 15 0. W. E. 188. What amounts to sufficient 
 notice to debtor of assignment of chose in action: 
 Denney v. Conklin, 1913, 3 K. B. 177. Where assign- 
 ment is absolute in form, it is immaterial to the 
 status of the plaintiff that he holds in trust : Colville 
 v. Small, 22 0. L. E. 1. If on construction of the 
 document, it appears to be an absolute assignment 
 though subject to an equity of redemption express 
 or implied, the consideration is immaterial : Hughes 
 v. Pumphouse Hotel Co., 1902, 2 K. B. 190. An abso- 
 lute assignment of mortgage even if it appears on 
 the face of the instrument that it was given as col- 
 lateral security for a debt of lesser amount is suffi- 
 cient to come within the Act, as long as it did not 
 purport to be by way of ^charge only: Mercantile 
 Bank v. Evans, 1899, 2 Q. B. 613; Ee Bland and 
 Mohun, 5 0. W. N. 522. Eight of mortgagor in pos- 
 session subject to a lease made before the mortgage 
 to sue, without adding the mortgagee and in his own 
 name, for damages for breach of covenant to repair 
 by lessee of mortgaged premises : Turner v. Walsh, 
 1909, 2 K. B. 484. Distress for rent by assignee of 
 landlord : see Armour, Eeal Property, p. 79. Action 
 by mortgagee : assignment of mortgage : substitution 
 of assignee as plaintiff: Biggar v. Kemp, 12 0. W. E. 
 628, 700, 17 0. L. E. 360. Assignment of wages claim 
 against company: Lee v. Friedman, 20 0. L. E. 49. 
 
CHAPTER 109. 35I 
 
 Set-off by defendant of debt assigned to him: Ben- 
 nett v. White, 1910, 2 K. B. 1, 643. Fraud of debtor 
 set-off as against the assignee: Stoddart v. Union 
 Trust, 1912, 1 K. B. 181. Doubtful validity of assign- 
 ment of part of claim : Seaman v. Canadian Stewart 
 Co., 18 0. W. E. 56, 2 0. W. N. 576; Shipper v. Hallo- 
 way, 1910, 2 KB. 630; Forster v. Baker, 1910, 2 K. 
 B. 626. An assignment was made in consideration of 
 a covenant, that in case the assignee should be able to 
 recover the debt he would pay the proceeds, less his 
 costs to the assignor. This was not maintenance: 
 Fitzroy v. Cave, 1905, 2 K. B. 364. Priorities as be- 
 tween verbal assignment and subsequent written 
 assignment : Heyd v. Millar, 29 O. R. 735. A Sheriff 
 cannot sell under execution the interest of a partner 
 in a partnership, only in the tangible property of the 
 partnership : Rennie v. Quebec Bank, 1 0. L. R. 303, 3 
 O. L. R. 541. A claim for damages is not an assignable 
 chose in action : McCormack v. Toronto Ry., 13 O. L. 
 R. 656, 8 O. W. R. 467. A right to compensation for 
 damage arising by reason of a notice given by a rail- 
 way under the Railway Act in respect of damage in 
 the lawful exercise of the railway powers, is a chose 
 in action within the meaning of this section, and cap- 
 able of being assigned: Dawson v. Great Northern, 
 1905, 1 K. B. 260. Equitable assignment of choses 
 in action: 10 D. L. R. 277. 
 
 49— (1) In line 9, after " had," insert " not:" 4 Geo. 
 V. ch. 2, Schedule (23). 
 
 49.— (2) Payment into Court under R. S. O. 1897, ch. 
 336, sec. 4 (and 2), by trustee de son tort: Re Pres- 
 ton, 13 0. L. R. 110: see Trustee Act, R. S. 0. 1914, 
 ch. 121, sec. 38. 
 
 51. Where by a mistake an auctioneer accepts a bid less 
 
 than the reserved bid, the bidder has no action 
 against the auctioneer, as the bid and acceptance are 
 both conditional on the reserve price being reached : 
 McManus v. Fortescue, 1907, 2 Q. B. 1. " Reserved 
 price," " reserved bid:" see Gilliatt v. Gilliatt, L. 
 R. 9 Eq. 60. 
 
 52. Where a sale is without reserve, and puffers are em- 
 ployed by the vendor, specific performance will not 
 
352 CHAPTER 110. 
 
 be decreed: Meadows v. Tanner, 5 Madd. 34; Robin- 
 son v. Wall, 16 L. J. Ch.401; Thornettv. Haines, 15 
 M. & W. 367. Declaration by auctioneer as to puffers : 
 Woodward v. Miller, 15 L. J. Ch. 6. Puffers and re- 
 served bidding: see Dig. Eng. Case Law I., eol. 931 
 et $eq. Claim for payment by puffer: Walker v. 
 Gascoigne, 13 Vin. 543, pi. 13: Walker v. Nighten- 
 gale, 4 Bro. P. C. 193. 
 
 53. See Mortimer v. Bell, 35 L. J. Cb. 25 ; Smith v. Clarke, 
 8 R. R. 359, 12 Ves. 477; Flint v. Woodin, 9 Hare 
 618. 
 
 55. See Armour on Titles, p. 43. 
 
 56. Right of purchaser before and after final order of 
 foreclosure: Foresters v. Regg., 19 P. R. 254. " Pur- 
 chaser "within the meaning of the section and cases : 
 Hazel v. Wilkes, 1 O. W. N. 1096, 2 0. W. N. 131. As 
 to conveyancing presumption that things rightly 
 done: see Armour, Titles, p. 137. As to judicial 
 sales and judicial titles : see Armour, Titles, p. 383. 
 
 CHAPTER 110. 
 
 The Accumulations Act. 
 
 1. This statute, formerly R. S. O. 1897, ch. 332, is com- 
 monly known as the Thellusson Act, and is based on 
 the statute, 39 and 40 Geo. III., ch. 98, rendered 
 necessary by the will of the testator upheld in Thel- 
 lusson v. Woodford, 4 Ves. 227. 
 
 2. — (1) The general rule as to perpetuities may be stated 
 as follows : Legal and equitable remainders and exe- 
 cutory interest which are not so limited as necessarily 
 to vest or fail of effect within lives in being and 21 
 years, are void for perpetuity : 2 Pres. 152 ; Re Frost, 
 43 Ch. D. 246; Sibley v. Ashforth, 1905, 1 Ch- 
 535. A child en ventre sa mere is to be treated as a life 
 in being: Re Wilmer, 1903, 2 Ch. 411. See also Baker 
 v. Stuart, 28 O. R. 439 ; Ferguson v. Ferguson, 39 U. 
 C. R. 232, 1 A. R. 452, 2 S. C. R. 497 ; Meyers v. Ham- 
 ilton Provident, 19 0. R. 358; Heron v. Walsh, 3 Gr. 
 606 ; Harrison v. Harrison, 7 0. L. R. 297 ; Harrison 
 v. Spencer, 15 0. R. 692 ; Re Youart, 10 0. W. R. 373 ; 
 
CHAPTER 110, 353 
 
 Ee Travis: Frost v. Greatorex, 1900, 2 Ch. 541; 
 Re Pope, 1901, 1 Ch. 64; Re Clutterbuck, 1901, 2 Ch. 
 285 ; Re Barones Llanover, 1903, 2 Ch. 330 ; Re Gardi- 
 ner, 1901, 1 Ch. 697; Re Stephens, 1904, 1 Ch. 322; 
 Re Heathcote, 1904, 1 Ch, 826. The rule against 
 perpetuities does not apply to charities : Re Kinney, 
 6 O. L. R. 459. The gift of an annuity in perpetuity 
 is invalid: Re Corbit, 5 0. W. R. 239. Contingent 
 reversionary interest in deed may violate the rule 
 against perpetuities. Re St. Patrick Market, 14 O. 
 W.R. 794, 10. W.N. 92. 
 
 Direction for accumulation in foreign state: see 
 Parkhurst v. Roy, 27 Gr. 361, 7 A. R. 614. Void ac- 
 cumulation clause: see Re Hughes, 1906, 2 Ch. 642. 
 Disentailing assurance, cesser of accumulations : Re 
 Trevanion, 1910, 2 Ch. 538. Distinction drawn be- 
 tween accumulation of income and savings out of in- 
 come : Re Lindsay's Trustees, 1911, S. C. 584. Valid- 
 ity of provision in will directing a portion of the 
 rents of leasehold property to be invested to create 
 a fund against uncertain claims for delapidations : 
 Re Hurlbatt, 1910, 2 Ch. 553, following Varlo v. 
 Paden, 27 Beav. 255. 
 
 2. — (Id) A testator may validly direct accumulation 
 during the minority of a person not born until after 
 the testator's death: Re Cattell, Cattell v. Cattell, 
 1907, 1 Ch. 567. 
 
 3. "Provision for raising portions," held not within 
 
 sec. 2 of the Thellusson Act: Mackay's Trustees v. 
 Mackay, 1909, S. C. 139. " Provision for raising 
 portions," within the meaning of the Thellusson Act, 
 so as to exclude sec. 1: Colquhoun's Trusts v. Col- 
 quhoun, 1907, S. C. 346. Trust for accumulation to 
 meet liability under a lease: Re Hurlbatt,' 1910, 2 
 Ch. 553. Where debts or portions have been paid 
 and satisfied out of a provision in a will for accumu- 
 lation to recoup capital is not within the exceptions 
 and cannot take effect after 21 years from the 
 testator's death: Re Heathcote, Heathcote v. 
 Trench, 1904, 1 Ch. 826. 
 
 4. See former section R. S. O. 1897, ch. Ill, sec. 3 over- 
 
 ruling Harrison v. Spencer, 15 O. R. 692. See Baker 
 v. Stuart, 28 O. R. 439 ; Harrison v. Harrison, 7 O. 
 L. R. 297. 
 
 S.A.— 23 
 
354 CHAPTERS 111, 112. 
 
 CHAPTER 111. 
 
 The Petty Tbespass Act. 
 
 5. The honest belief of a person charged with an offence 
 under this Section, that he had the right to do the 
 act complained of is not sufficient to protect him; 
 there must be fair and reasonable ground in fact for 
 that belief: E. v. Davey, 27 A. R. 508. The provi- 
 sion as to reasonable supposition of right is not ex- 
 tended to the Game Law : R. v. Harran, 3 0. W. N. 
 1107, 21 0. W. R, 951. 
 
 CHAPTER 112. 
 
 Mortgages of Real Estate. 
 
 Refer to Armour on Titles; Armour on Real Prop- 
 erty; Hunter Mortgage Law of Ontario; Hunter 
 on Power of Sale; Bicknell and Kappele, Practical 
 Statutes, pp. 606-611; Hunter, Real Property Stat- 
 utes; Fisher on Mortgages; Coote on Mortgages. 
 
 2.— (c) See Wood v. Curry, 12 O. W..R. 345. 
 
 3. Mortgagees in possession acquired by transfer a sec- 
 ond mortgage on the same property, and sued co- 
 venantors in the first mortgage, who had parted 
 with the equity of redemption before the second 
 mortgage was given, and who demanded a reconvey- 
 ance, upon payment of the amount of the first mort- 
 gage, subject io the equities in other parties. It was 
 held that the defendants were entitled to this, and 
 that the plaintiffs could not tack the second mortgage 
 to the first. Before action the defendants tendered 
 the amount of the first mortgage and an assignment, 
 but this the plaintiffs being mortgagees in posses- 
 sion, were not bound to give. Subsequently they 
 offered to take a reconveyance* but the plaintiffs' mis- 
 conduct in attempting to consolidate, was not such 
 as to deprive them of costs : Stark v. Reid, 26 0. R. 
 257. Where the plaintiff, the mortgagor of certain 
 
CHAPTER 112. 355 
 
 lands sold the same for an amount greater than the 
 mortgage, the purchaser raising the excess by- 
 mortgage to the defendant, the original mortgagee, 
 the plaintiff was entitled to an assignment of 
 the mortgage made by him on his paying to the 
 defendant merely the amount due thereon: Wheeler 
 v. Brooke, '26 0. E. 96. Mortgagors of land sold it 
 subject to the mortgage, the purchaser giving them 
 a second mortgage to secure part of the purchase 
 money. He then sold the land subject to both mort- 
 gages, which the sub-purchaser covenanted to pay 
 off. Subsequently the first mortgagors, under threat 
 of action; paid the first mortgage and took an assign- 
 ment of it. The sub-purchaser on being called on 
 by the first mortgagors, and the first purchaser for 
 indemnity against the first mortgage- was held bound 
 to pay it, and not entitled to an assignment of it 
 Without also paying the second mortgage : Thomp^ 
 son v. Warwick, 21 A. E. 637. The owner of land 
 mortgaged it and then, reserving a life estate to him- 
 self conveyed it in fee subject to the mortgage. The; 
 grantee was not entitled on payment of the mortgage 
 to an assignment of it to himself or his nominee ex- 
 cept in such a way that it would remain an en- 
 cumbrance on the remainder in fee vested in him : 
 Leitch v. Leitch, 2 0. L. E. 233. Where a mortgagor 
 of land sold his equity to various grantees one of 
 whom agreed to pay off the mortgage and some of 
 whom executed further mortgages on the land,, the 
 first mortgagee proceeding to foreclose and sue the 
 mortgagor in his covenant, was held bound to ex- 
 ecute an assignment of his mortgage to a nominee of 
 the mortgagor who had advanced the money to pay 
 off the mortgage, notwithstanding the subsequent in- 
 cumbrances. Even if the redemption money had 
 been that of the mortgagor himself it would have 
 made no difference: Queen's College v. Claxton, 25 
 0. E. 282. The owner mortgaged to the plaintiff and 
 then sold subject thereto, taking from the purchaser 
 a second mortgage, which he assigned to the plaintiff- 
 The purchaser then sold to the defendant, Who, to 
 obtain an extension of time on the first mortgage, 
 covenanted to pay it, and then sold the property.; 
 The plaintiff in foreclosure claimed payment of the 
 first mortgage- on this covenant, but the defendant 
 refused to pay it unless the plaintiff would assign 
 
356 CHAPTER 112. 
 
 the mortgage to him. It was held that the plaintiff 
 was not bound to assign unless the defendant paid 
 off both mortgages: Muttlebury v. Taylor, 22 G. E. 
 312. No covenant can be insisted on, but the usual 
 trustee covenant. The assignor is entitled to have 
 the transaction fully set out and even collateral 
 notes specified therein : Gooderham v. Traders Bank, 
 16 0. E. 438. Position of mortgagor asking recon- 
 veyance where title to land acquired against him 
 under Statute of Limitations : Noble v. Noble, 25 0. 
 L. E. 379, 27 0. L. E. 342. Application of section: 
 Syms v. McGregor, 14 O. L. E. 748, 1 0. W. N. 94: 
 see also Teevan v. Smith, 20 Ch. D. 724, at p. 730-1; 
 Bythewood's Conv. Prec. 4th ed., Supp. 202 j Ander- 
 son v. Elgey, 24 Ch. D. 567 ; Armour on Titles, p. 
 256-261, H. & L. notes, pp. 989, 990. 
 
 4. See Armour on Titles, pp. 108, 109, Armour, E. P., 
 
 p. 187. 
 
 5. This section formerly appearing in the Judicature 
 
 Act, does not confer on a mortgagor entitled to the 
 receipt of the rents and profits of land on lease at 
 the date of the mortgage, the rights of a legal as- 
 signee of the reversion so as to entitle him in his 
 own right to recover possession of the land on a 
 forfeiture for breach of covenant in the lease : Mat- 
 thews v. Usher, 1900, 2 Q. B. 535. Eight of mort- 
 gagor to sue lessee for breach of covenant to repair : 
 Turner v. Walsh, 1909, 2 K. B. 484. Possession of 
 mortgagor : redemise : trespass : Charbonneau v. Mc- 
 Cusker, 17 O. W. E. 18, 2 O. W. N. 83, 22 Q. L. E. 
 46. Possession of mortgagor: McMullen v. Free, 
 unreported decision of Divisional Court, 8th Jan., 
 1887 : see Charbonneau v. McCusker, 17 O. W. E. 18, 
 ' 2 O. W. N. 83, 22 O. L. E. 46. Actions to protect 
 property: see Armour, E. P., pp. 186-7. 
 
 6. See Holmested and Langton notes, pp. 976-978, and 
 
 cases there cited: see also Armour, R. P., pp. 194- 
 197. 
 
 7. When covenant implied : National Trust v. Brantf ord, 
 
 3 0, W. N. 1615, 4 0. W. N. 1341, 24 0. W. E. 
 787. A covenant by the assignor in an assignanent 
 of mortgage that the mortgage assigned is a good 
 
CHAPTER 112. 357 
 
 and valid security does not mean that it is a suffi- 
 cient security for the mortgage debt, but only that 
 the mortgage is valid in law: Agricultural Savings 
 v. Webb, 15 0. L. E. 213. Question whether an im- 
 plied covenant in a mortgage is a covenant "-con- 
 tained " in a mortgage within the meaning of R. 
 S. 0. 1914, ck 75, sec. 49 (Ik) and notes; Beatty v. 
 Bailey, 26 0. L. B. 145, and see H. & L. notes, p. 586. 
 
 9. ' ' This provision is a very singular one, and not to be 
 
 extended beyond its letter ... I certainly would 
 not extend it to a person who was not a mortgagee 
 at the time, but became so afterwards : ' ' per Esten, 
 V.-C, Bank of Montreal v. Thompson, 9 Gr. 51. To 
 make the Act apply there must be two mortgages, 
 each forming a charge on the same property, and it 
 had no application where the assignee pro tanto of a 
 vendor's lien, holding in priority to the assignee 
 of the remainder, subsequently took a conveyance of 
 the land to himself: Finlayson v. Mills, 11 Gr. 218. 
 Where a. purchaser paid off prior incumbrances be- 
 fore the conveyance of land to him, he had no prior 
 equitable charge under the circumstances, as their 
 was no evidence of intention to preserve it: Arm- 
 strong v. Lye, 27 A. E. 287 : see E. S. 0. 1914, ch. 
 109, sec. 36 ; H. & L. notes, p. 64 ; Ont. Dig. Oase Law, 
 col. 4347, et seq. 
 
 10. Probate must be registered: see E. S. O. 1897, ch. 
 136, sec. 78 ; E. S. G. 1914, ch. 124, sec. 65 : Ee Taylor 
 and Martyn, 14 0. L. E. 132. The registration of a cer- 
 tificate given by the survivor of several mortgagees 
 upon payment in money of the mortgage debt effect- 
 ually discharges the mortgage and revests the legal 
 estate : Dilke v. Douglas, 26 Gr. 99, 5 A. E. 63 : The 
 statute only authorizes executors to convey the legal 
 estate on payment of the mortgage debt. It does not 
 authorize them to convey to a purchaser from them- 
 selves : Hunter v. Parr, 23 U. C. E. 324 ; Bobinson v. 
 Byers^ 9 Gr. 572. A surviving executor cannot give 
 a valid discharge of a mortgage which he himself has 
 given to his co-executor to secure moneys owing to 
 the decedent 's estate : Beaty v. Shaw, 14 A. E. 600. 
 A foreign administrator cannot effectually release 
 a mortgage on land in this province. Payment to 
 him and a release by the heirs are not sufficient to 
 
358 CHAPTER 112. 
 
 entitle the owner to a certificate of title free from 
 incumbrance under the Quieting Titles Act: In re 
 Thorpe, 15 Gr. 76. One of several executors can 
 execute a valid discharge of a mortgage : Ex p. John- 
 son, 6 P. E. 225, but see Armour on Titles, p. 
 263-4, where this case is discussed and considered 
 unreliable. Note also on this point the present word- 
 ing of E. S. 0. 1914, ch. 124, sec. 62, as compared with 
 E. S. 0. 1897, ch. 136, sec. 76. Where the mortgagee 
 appoints the mortgagor one of his executors, a dis- 
 charge given by him alone of his own mortgage, is of 
 doubtful validity : McPhadden v. Bacon, 13 Gr. 591 : 
 and see Bacon v. Shier, 16 Gr. 485. See Armour on 
 Titles, pp. 263-4, 358-9; Armour, E. P., p. 213: and 
 see E. S. 0. 1897, ch. 129, sees. 16-25; E. S. 0. 1914, 
 ch. 121, sees. 43-47. Cases under the English Vendor 
 and Purchaser Act, 1874, sec. 4 (Ee Spradery 's Mort- 
 gage, 14 Ch. D. 514; Ee White's Mortgage, 51 L. J. 
 Ch. 856; Ee Brook's Mortgage, 46 L. J. Ch. 865); 
 hold that the Act is confined to cases where the mort- 
 gage is paid off and the estate reconveyed. The legal 
 personal representative cannot on receiving pay- 
 ment of the mortgage debt, convey the estate to a 
 transferee. As to mortgages or advances on joint 
 account : see E. S. 0. 1914, ch. 133, sec. 4, and notes. 
 
 11. See Gray v. Eichmond, 22 0. E. 256, as to what is 
 money payable on an express or implied trust or 
 for a limited purpose within the meaning of the 
 section : see also McMillan v. McMillan, 21 Gr j 594 ; 
 Moore v. Mellish, 3 0. E. 174. 
 
 13. See Edmonds v. Ham. Pro. & L. Society, 18 A. E. 
 . 347: considered in Armour, E. P. p. 204-5. Instruc- 
 tions to bailiff destraining under mortgage: see 45 
 C. L. J. 126. 
 
 14. Position of mortgagee as landlord claiming in assign- 
 ment: see Munro v. Commercial Building, etc., 
 Society, 36 U. C. E. 464; Hobbs v. Ontario Loan and 
 Debenture Co., 18 S. C. E. 483, and see notes to E. 
 S. 0. 1914, ch. 155, sees. 38 and 40. 
 
 15. See Hill v Bowlands, 1897, 2 ch. 361; E. S. C. 127, 
 sec. 7. See Armour, E. P., pp. 189-190. 
 
• CHAPTER 112. 359 
 
 19. See as to exercise of power of sale and rights and 
 duties of mortgagee : R. S. Q. 1914, ch. 117 ; Proviso 
 14 and notes. 
 
 21. Exercise of statutory power of sale by notice requir- 
 ing payment three months hence: Baker v. Illing- 
 worth, 1908, 2 Ch. 2G, Service on infant heirs : see 
 notes to R. S. 0. 1914, ch. 117, proviso 14. 
 
 22. Requisition demanding proof of service of notice 
 of exercising power of sale: Life Interest &c, v. 
 Hand in Hand, 1898, 2 Ch. 230. Constructive 
 notice: Ware v. Egmont, 4 De. G. M. & G. 460; 
 Bailey v. Barnes, 1894, 1 Ch. 25. Damages for 
 improper exercise of power: Ames v. Higdon, 69 
 L. T. 292. 
 
 23. Disposal of surplus proceeds of sale under power 
 of sale: Re Ferguson and Hill, 4 0. W. N. 1339; 
 24 O. W. R. 634. Payment out of Court of money 
 paid in by mortgagee as surplus proceeds of mort- 
 gage sale: Weber v. Morris, 5 0. W. N. 166; 25 0. 
 W. R. 123. Distribution of surplus: executions: 
 Creditors Relief Act: Edmonton Mortgage Co. v. 
 Gross, 18 W. L. R. 385. 
 
 29. After the Statute of Limitations has run against a 
 mortgagor of lands, service of a notice of sale by 
 the mortgagee on the mortgagor does not give the 
 mortgagor a right to redeem: Shaw v. Coulter, 
 11 O. L. R. 630. After the lapse of ten years, 
 during which time a mortgagor's possession 
 had not been interfered with, the assignee of 
 the mortgage was restrained from taking sale 
 proceedings: the intended sale was a "pro- 
 ceeding" under R. S. 6. 1897, ch. 133, sec. 23; 
 McDonald v. Grundy, 8 0. L. R. 113. (Note present 
 wording of corresponding section, R. S. 0. 1914, ch. 
 75, sec. 24). A mortgagee issued a writ and moved 
 for speedy judgment against the mortgagor on the 
 covenant, and, without leave, served notice of exer- 
 cising power of sale but before the hearing of the mo- 
 tion, gave notice of the abandonment of the notice of 
 sale and all costs in respect thereof. It was held 
 that the effect of the notice was to give the defend- 
 ant time, and the motion could not be entertained, 
 
360 CHAPTER 112. 
 
 but the object of this section was fully attained by 
 directing that the motion should stand over until 
 after the expiration of thirty days mentioned in 
 the notice: Lyon v. Ryerson, 17 P. R. 516. An 
 advertisement of lands for sale is a " proceeding " 
 within the meaning of the section and will be re- 
 strained by injunction: Smith v. Brown, 20 0. R. 
 165. Where a power of sale in a mortgage auth- 
 orized a sale without notice and, after default, 
 notice of sale was given exercisable forthwith, it 
 was held that as there was no proviso for notice, 
 the Act could not be invoked to restrain an action 
 for possession brought immediately afterwards 
 by the mortgagee without leave: Canada Per- 
 manent Bldg. Socy. v. Teeter, 19 0. R. 156. See 
 Armour on Titles, pp. 415-6 ; Armour, R. P. p. 203. 
 Printing and posting bills are " proceedings." Dis- 
 bursements for Sheriff's certificate and searches in 
 the Registry Office might have been incurred before 
 notice, and are not proceedings : Re McArthur, 12 0. 
 W. R. 177. Costs means solicitor's taxable costs: 
 Re McArthur, 12 0. W. R. 177. Power of sale 
 can be exercised after order for foreclosure nisi, 
 only by leave of Court: Stevens v. Theatres 
 Limited, 1903, 1 Ch. 857. As to application of this 
 section: see H. & L. notes pp. 584-5. 
 
 30. No appeal lies from the taxation of a mortgagee's 
 costs had under this section: Re Vanluven and 
 Walker, 19 P. R. 216. Right of subsequent incum- 
 brancer to have costs of first mortgagee taxed : see 
 Re Cronyn, 8 P. R. 362; Re McDonald, 8 P. R. 88; 
 Re Crerar, 8 P. R. 56. A Local Registrar who is 
 not a Local Master has no jurisdiction to tax mort- 
 gagees costs of sale proceedings: Re Drinkwater 
 and Kerr, 15 0. L. R. 76, 10 0. W. R. 511. Tax- 
 ation of mortgagee's costs; see H. & L. notes, p. 
 1407. 
 
CHAPTER 113. 361 
 
 CHAPTEE 113. 
 
 The Estates Tail Act. 
 
 2. — (a) " Actual tenant in tail:" see Armour, R. P., p. 
 487. Estates tail in chattels cannot usually be 
 created. Absolute interest generally conferred: 
 Puller v. Anderson, 20 O. E. 424; Williams, Personal 
 Property, p. 363. 
 
 3. Armour* R. P. p. 482. 
 
 4. For sections 1-8: see Armour, E. P. " Who may bar 
 
 an entail," pp. 487-489. The lands of an infant, 
 being an estate tail in possession can be sold under 
 the provisions of E. S. 0. 1914, ch. 153, sees. 5, 16 
 and 17; In re Gray, 26 0: E. 355. The words 
 " Die without leaving living Issue " in a will do 
 not give the meaning of an indefinite failure of 
 issue, but estate tail that can be barred : Ee Fraser 
 and Bell, 21 0. E. 455. Words sufficient to bar an 
 entail: Ee Gold and Eowe, 4 0. W. E. 642, 23 0. 
 W. E. 794. Whether estate tail well barred: Mil- 
 bank v. Vane, 1893, 3 Ch. 79; Collier v. Walters, 
 L. E. 17 Eq. 252; Schank v. Scott, 22 W. E. 513. 
 Disentailing deeds: see Dig Eng. Case Law, VII. 
 27. Infant tenant in tail : interests of remainder- 
 men : election on behalf of infant : direction to con- 
 vey: Ee Montagu, 1896, 1 Ch. 549. Fee simple 
 deed by married woman: Ee Drummond and 
 Davies, 1891, 1 Ch. 524. All remainders and estates 
 in defeasance of the estate tail are barred by the 
 disentailing deed: Milbank v. Vane, 1893, 3 Ch. 
 79. A mere declaration of trust will not bar an 
 entail: Green v. Paterson, 32 Ch. D. 95. Nor a 
 conveyance which fails through the grantees dis- 
 claimer: Peacock v. Eastland, L. E. 10, Eq. 17. A 
 prohibition against barring an entail is invalid: 
 Dawkins v. Penrhyn, 6 Ch. D. 318, 4 App. Cas. 51. 
 Bar by equitable tenant in tail : Green v. Paterson, 
 32 Ch. D. 95. Does a sale under execution bar an 
 entail? See E. S. 0. 1914, ch. 80, sec. 34, and ch, 109, 
 sec. 10. 
 
362 CHAPTER 113. 
 
 5. Grant of estate tail from the Crown: when not bar- 
 
 rable: see Eobinson v. Gifford, 1903, 1 Ch. 865. 
 
 6. See Armour, Real Property, p. 504. 
 
 8. A tenant in tail having mortgaged in fee by mortgage 
 
 duly registered within 6 months, containing the 
 usual proviso to be void on payment at a named 
 date, but no discharge or reconveyance having been 
 registered or made thereby barred the entail and 
 converted the estate into a fee simple in favour 
 of the owner as well as the mortgagee, by the mere 
 execution and registration of the mortgage: Cul- 
 bertson v. McCullough, 27 A. L. 459. The regis- 
 tration of a statutory discharge of a mortgage in 
 fee reverts an estate in fee simple in the mort- 
 gagor: Lawlor v. Lawlor, 6 A. R. 312, 10 S. C. 
 R. 194 ; Re Lawlor, 7 P. R. 242 : See also re Dolsen, 
 4 Ch. Ch. 36. To avoid this effect it would be 
 necessary to contract or stipulate for a resettle- 
 ment in tail on the discharge of the mortgage : per 
 Osier, J. A. : Culbertson v. McCullough, 27 A. R. 
 459. This is also the effect of Plomley v. Helton, 
 1888, 14 App. Cas. 61, which was a case, not of 
 mere mortgage, but of a mortgage with a provision 
 for a resettlement of the land or redemption on the 
 original conditions and which provision the Court 
 enforced. "Where lands were devised to A. and to 
 three heirs of his body lawfully, together with 
 power to appoint one or more of such heirs to 
 take the same, A. was held to have taken an estate 
 tail, and there being no trust in favour of his 
 children, mortgages executed by him took preced- 
 ence of an appointment which he subsequently ex- 
 . ecuted in their favour: Trust & Loan v. Fraser, 
 -18 Gr. 19: see Armour, R. P. " Bar by mortgage," 
 pp. 505-6. Specific performance as against a tenant 
 in tail : see Graham v. Graham, 6 Gr. 372. 
 
 9. The owner of the, prior life estate as protector : Re 
 
 Dudson, 8 Ch. D. 628; Re Ainslie, 54 L. J. Ch. 8. 
 Tenant in tail 'also protector to settlement: Re 
 Wilmer, 1910, 2 Ch. 111. Protector appointed by 
 settlor: see sec. 16. Protector: see Dig. Eng.- Case 
 Law, VII. 24. For sees. 10 to 22: see Armour, R. 
 P., " Protector of the settlement," pp. 489-496. 
 
CHAPTER 113. 363 
 
 11. Armour, B. P. p. 502. 
 
 16. Survivorship of office of protector: Cohen v. 
 Bayley-Worthington, 1908, A. C. 97. Protector 
 appointed by settlor: Bell v. Holtby, L. B. 15 
 Eq. 178; Clarke v. Chamberlin, 16 Ch. D. 176. 
 
 19. Consent of the protector: Be Drummond and 
 Davie, 1891, 1 Ch. 524. Land was devised to 
 trustees under an accumulation clause to pay 
 annuities which was void after 21 years. On the 
 determination of the trustees estate the land went 
 to J. in tail with remainders over. After the 21 
 years the heir took the surplus rents during the life 
 of the surviving annuitant. Held that the heir 
 was not protector of the settlement, that there was 
 no protector and a disentailing deed made by J. 
 was effective: Be Hughes, 1906, 2 Ch. 642. See 
 as to effect of Married Women's Property Act: 
 Be Drummond and Davies, 1891, 1 Ch. 524. The 
 express consent of the protector to the settlement 
 is not necessary to bar an estate tail. Where the 
 tenants in tail and the mother, who was protector 
 to the settlement having an estate during widow- 
 hood in the land, joined in a mortgage in fee under 
 the Short Forms Act to secure moneys to pay off 
 legacies charged on the whole estate, including the 
 mother's interest, her consent sufficiently appeared 
 and the entail was barred: 1 Ostrom v. Palmer, 3 
 A. B. 61 ; Armour, B. P., ' ' How entail may be 
 barred," pp. 496-500; " Consent of Protectors," p. 
 500-505; see also lb. pp. 99-102. 
 
 21. In line 1, for "advice " read " device:" 4 Geo. V. 
 eh, 2, Schedule (24). 
 
 26. " Disposition " hot a technical word, but ordinary 
 English word of wide meaning : Green v. Pater- 
 sbn, 32 Ch. D. 95; Carter v. Carter, 1896, 1 Ch. 
 62; Inrolment, 3 and 4 Wm. IV. ch. 74; Gibbons 
 v. Snape, 32 Beav. 130, 1 DeG. J. & S. 621; Hony- 
 wood v. Forster, 30 Beav. ; Boyd v. Pawle, 14 L. 
 T. 753; Morgan v. Morgan, L. E, 10 Eq. 99. 
 
 28. Specific performance: Bankers v. Small, 36 Ch. 
 D. 716. ; Application to rectify deed : Hall-Dare 
 v. Hall-Dare, 31 Ch. D. 251. Declaration of Trust: 
 Carter v. Carter, 1896, 1 Ch. 62. 
 
364 CHAPTER 114. 
 
 CHAPTEE 114. 
 
 The Paetition Act. 
 
 Note: The Partition Act, 1868, 31-32 Vic. ch. 40, 
 and The Partition Act, 1876, 39-40 Vic. ch. 17, are 
 edited: see "Walker on Partition." 
 
 1. History of legislation: see Ontario Power Co. v. 
 
 Whattler, 7 0. L. R 198. 
 
 2. For interpretation of the word ' ' land ' ' for the pur- 
 
 poses of different statutes : see Armour, Real Pro- 
 perty, p. 59. 
 
 3. Jurisdiction of Master in Chambers: see Con. Rule 
 
 42 (9); H. & L. notes, pp. 28, 37, 217; 1913 Rule 
 
 208. 
 
 4. "Where an estate is vested in several persons as joint 
 
 tenants or tenants in common, the entirety can be sold 
 under an order of the Court in a partition suit* not- 
 withstanding the dissent or disability of any person 
 interested who is a party to the suit, his estate pass- 
 ing by vesting order :,Basnett v. Moxon, L. R. 20 
 Eq. 182; Beckett v. Sutton, 19 Ch. D. 646. Partition 
 by deed : see Re Frith & Osborne, 3 Ch. D. 618. 
 Status of applicant : doWress : Deverealix v. Kearns, 
 11 P. R. 452; Fram v. Fram, 12 P. R. 185; Re Hew- 
 ish, 17 O. R. 454. Mortgagee: Mulligan v. Hender- 
 shott, 17 P. R. 227; Laplante v. Seamen, 8 A. R. 577; 
 McDougall v. McDougall, 14 Gr. 267. Remainder- 
 men: Murcar v. Bolton, 5 O. R. 164. Tenant for 
 life : Lalor v. Lalor, 9 P. R. 455 ; Fisken v. If e, 28 
 O. R. 595. Trustee for sale : Keefer v. McKay, 29 
 Gr. 162. Interest in equity of redemption : Wood v. 
 i Hurl, 28 Gr. 146. Infants as parties : Tryon v. Peer, 
 13 Gr. 311 ; Brown v. Brown, 9 P. R. 245. Lessee for 
 years : Fitzpatrick v. Wilson, 12 Gr. 440. See further 
 as to parties : H. & L., notes, p. 1204. There must 
 be some common title admitted in the land in ques- 
 tion in the petitioner and respondents : Bennetto v. 
 Bennetto, 6 P. R. 145. As to joint estates : see Ar- 
 mour on Real Property, pp. 239 et seq. Incidents 
 of estates in common : see p. 252. 
 
CHAPTER 114. 365 
 
 5. Courts are chary of interfering with administration 
 
 by personal representative: see C. R. 954; 1913 
 Bule 61&; Re MeCully, 23 0. L. R. 156. " May take 
 proceedings:" for procedure: see Con. Rules 956- 
 958, 1913 Rules 212, 615, 616. As to writ: see H. & 
 L. notes, p. 1203. Acting on agreement to partition: 
 Wood v. Wood, 16 Gr. 471. Consent: In re East- 
 wood, 1 U. C. R. 3; In re Usher, 1 U. C. R. 527. 
 Adverse title by possession: Hopkins v. Hopkins, 3 
 O. R. 223. Where party claims adversely, or where 
 an infant seeks partition : see H, & L. notes,, p. 1203, 
 1913 Rule 615. Partition is not granted of unpatented 
 lands : Sale of lands at the instance of representa- 
 tives of a deceased locatee: Abell v. Weir, 24 Gr. 
 464; Pride v. Rodger, 27 O. R. 320. A squatter's 
 heirs should apply to the government: Jenkins v. 
 Martin, 20 Gr. 613. Period of partition under will: 
 see Murphy v. Mason, 22 Gr. 405. Where infant's 
 lands are sold to effect a partition the infant's 
 share retains its character as realty: Thompson v. 
 McCaffrey, 6 P. R. 193. Minor coming of age set- 
 ting aside' partition: Merritt v. Shaw, 15 Gr. 321. 
 Form of judgment: see C. R. form 158; see also 
 Ontario Power Co. v. Whattler, 7 O. L. R. 198. 
 
 6. Absentee: guardian: see Re Hynes, Hodgins v. An- 
 
 drews, 19 P. R. 217. 
 
 7. History of the statute law under which the Court 
 
 has authority to direct a sale instead of a partition : 
 C R. form 158, considered: see Ontario Power Co. 
 v, Whattler, 7 O. L. R. 198. As to parties, etc. : see 
 notes to. sees. 4, 5 ante. Partition and sale of Crown 
 lands not decreed : Abell v. Weir, 24 Gr. 464 ; Pride 
 v. Rodger, 27 O. R. 320. The heirs of squatters on 
 Crown lands must apply to the Government— the 
 Court will not order partition among them,: Jen- 
 kins, v. Martin, 20 Gr. 613; note to sec. 5 ante. Par- 
 tition to be made by the real representative: In re 
 Foster, 1 Ch. Ch, 103. When sale ordered: number 
 of claimants : In re Dennie, 10 U. C. R. 104. Mature 
 of property requiring sale: Bennett v. Bennett, 8 
 Gr. 446. Outstanding term: Fitzpatrick v. Wilson, 
 12 Gr. 440. Property not susceptible of equal par- 
 tition: sale beneficial: Stephen v. Hunter, 14 Gr. 
 541. Consideration of what is for benefit of infants 
 
3g6 CHAPTER 115. 
 
 interested : , Stephen v. Hunter, 14 Gr. 541. Infants ' 
 share when sold retains its character of realty : 
 Thompson v. McCaffrey, 6 P. E. 193; see also H. & 
 L. notes, p. 1205. Sale under registered judgment 
 for alimony : position of dowress : Abbott v. 
 Abbott, 3 O. W. N. 683, 21 0. W. R. 281. Sale in 
 pareels — one unsold: procedure for confirmation: 
 In- re Westervelt, 10 U. C. L. J. 15. Allowance 
 for improvements : see Wood v. Wood, 16 Gr. 471 ; 
 Biehn v. Biehn, 18 Gr. 497; Hovey v. Ferguson, 18 
 Gr. 498 ; Foster v. Emmerson, 5 Gr. 185. Account of 
 rents and profits and allowance for improvements : 
 H. & L. notes, p. 1206. As to confirmation of the re- 
 port and examination into it: see Dunn v. Dowl- 
 ing, 1 Ch. Ch..365; see also O 'Lone v. 'Lone, 2 Gr. 
 642. Apportionment of costs: Bernard v. Jarvis, 
 1 Ch. Ch. 24; Cartwright v. Diehl, 13 Gr. 360. Party 
 and party costs are the rule as in other suits, and 
 where any party is not sui jurisj costs as between 
 solicitor and client are not decreed, even by con- 
 sent : Harkness v. Conmay, 12 Gr. 449. Urinneces- 
 sary suit : Carroll v. Carroll, 23 Gr. 438. 
 
 8. See Gleeson v. Byrne, 25 L. R. Ir. 361. 
 
 CHAPTER 115. 
 
 The Shobt Forms of Conveyances .Act* 
 
 3. Where a covenant does not use the statutory words, 
 no assistance can be had from this Act to extend its 
 meaning to include assigns: Roche v. Allan, 2 O. 
 W. N. 787, 913, 18 O. W. R. 749, 23 0. L. R 300, 478. 
 Adherence to statutory forms: Re Gilchrist, 11 0. R. 
 537; Clark v. Harvey, 16 O. R. 159; Barry v. 
 Anderson, 18 A. R. 247 ; Roche v. Allan, 2 0. W. N. 
 0. R. 537; Clark v. Harvey, 16 0. R. 159; Barry v. 
 Anderson, 18 A. R. 247; Roche v. Allan, 2 0. W. N. 
 787, 913. 
 
 5. See Dewar v. Goodman, 1907, 1 K B. 612; note to 
 R. S. 0. 1914, ch. 155, sec. 4. 
 
CHAPTER 115. 367 
 
 Schedule "A." 
 
 A declaration inserted in the testing' clause of a deed 
 which purports to affect or qualify any of the pro- 
 visions in the body of the deed has no legal effect: 
 Blair v. Assets Co., 1896, A. 0. 409. The operation 
 of an ordinary short form deed conveying land to 
 trustees considered: Seaton v. Lunney, 27 Gr. 169. 
 
 Schedule " B." 
 
 1. As to joint covenants: see Mercantile Amendment 
 
 Act, R. S. 0. 1914, ch. 133, sec. 6. 
 
 2. In a deed purporting to be under the Short Forms 
 
 Act, the covenant was that the grantor had the 
 right to convey, omitting the words ' ' notwithstand- 
 ing any. act of the said covenantor." Although not 
 in accordance with the statute, this was held to bind 
 the covenantor as an absolute covenant that he was 
 seized and. had a right to convey in fee simple : 
 McKay v. McKay, 31 C. P. 1; and see Brown v. 
 v. O'Dwyer, 35 IT. C. R. 354. 
 
 3. A conveyance made in pursuance of this Act of a 
 
 lot according to a registered plan upon which a lane 
 is laid out does not pass any interest in the lane 
 - when it has not been in fact opened on the land, and 
 has not been used or enjoyed with the lot in ques- 
 tion. Per Maclennan, J. A. : Bell v. Golding, 23 A. 
 R. 485 ; and see notes to Registry Act, R. S. 0. 1914, 
 ch. 124, sees. 81, 84. The word " appurtenances " in 
 the long form of this covenant does not cover quasi 
 easements which have never existed or which have 
 ceased to. exist by reason of unity of ownership, 
 such as right of access of light and air, and right 
 to flow water, although the question does not seem 
 to be free from doubt and difficulty: But where 
 the owner of two tenements having actual use and 
 enjoyment of certain lights and owning also adjoin- 
 ing land sells one, he cannot build on the adjoining 
 land so as to obstruct or interrupt the enjoyment of 
 those lights: Ruetsch v. Spry, 9 0. W. R. 696, 14 
 0. L. R. 233; see Harris v. Smith, 40 U. C. R. 33, at 
 p. 39; see also Meighen v. Pacand, 40 S. C. R. 188; 
 
368 CHAPTER 115. , 
 
 R S. 0. 1914, ch. 109, sec. 15 and notes. As to ease- 
 ments which are included: see Edinburgh Life v. 
 Barnhart, 17 C P. 63. 
 
 4. Where A. being assignee of the judgment on which 
 
 the execution was founded, purchased the equity of 
 redemption sold under a fi. fa. lands against a mort- 
 gagor, conveyed the equity back to the mortgagor by 
 a short forms conveyance and then assigned the 
 unpaid balance of the judgment, ,it was held that 
 the statutory covenants as to incumbrances and 
 release of all claims contained in the conveyance to 
 the mortgagor did not operate to release the judg- 
 ment or the execution: Chittick v. Lowery, 6 0. L. 
 - R. 547. The clause refers to incumbrances, judg- 
 ments or executions which affect the lands in con- 
 travention of the grantor's absolute ownership, is- 
 sued or enforceable against the lands in his hands, 
 and which, as against his vendee, he ought to pay: 
 lb., p. 549. 
 
 5. Covenant for further assurance : see Reddy v. Stro- 
 
 ple, 44 S. C. R. 246. 
 
 8. See Chittick v. Lowery, 6 O. L. R. 547 ante, clause 4. 
 Clause 8 had its origin in the abortive .legislation 
 of Lord Brougham in the English Short Forms Act 
 of 1845, which, after remaining in disuse for many 
 years, was repealed by sec! 71 of the Conveyancing 
 Act of 1871 : Chittick v. Lowrey, 6 O. L. R. 547, at 
 p. 549. 
 
CHAPTER 116. 369 
 
 CHAPTER 116. 
 
 The Short Forms op Leases Act. 
 
 5. Contract to renew lease: Effect on assigns: Alex- 
 ander v. Herman, 21 0. W. R. 461, 3,0. W. N. 755. 
 Covenants running with reversion : see R. S. 0. 1914, 
 ch. 155, sees. 4 et seq. Apportionment of condition 
 of re-entry, ch. 155, sec. 8. 
 
 Schedule " A." 
 
 What is a sufficient reference to the, Act to bring a lease 
 within its provisions : see Davis v. Pitchers, 24 C. P. 
 516. Where the lessee was ejected by title para- 
 mount to the lessor he could not recover on an im- 
 plied covenant in the word " demise," as it is con- 
 trolled by the express covenant for quiet enjoy- 
 ment which is limited to the acts of the lessor and 
 those claiming under him: Davis v. Pitchers, 23 C. 
 P. 516. 
 
 Schedule " B." 
 
 1. As to joint covenants: see Mercantile Amendment 
 Act, R. S. 0. 1914, eh. 133, sec. 6. 
 
 3. An ordinary lease under this Act containing the 
 words " and to pay taxes " covers a special rate 
 created by corporation by-law as well as all other 
 taxes : Re Michie and Toronto, 11 C. P. 379. Where 
 a tenant agrees to pay taxes on the land demised to 
 him, the omission of his name from the assessment 
 roll or the failure of the landlord to resort to the 
 Court of Revision to have the omission rectified 
 would not relieve him from his obligation: Janes v. 
 O'Keefe, 26 0. R. 489, 23 A. R. 129. A covenant to 
 pay taxes on the demised premises will not include 
 the payment of taxes on buildings erected over a 
 lane described as " north of the demised prem- 
 ises:" Janes v. O'Keefe, 26 0. R. 489, 23 A. R. 129. 
 The covenant to pay all " taxes . . which now 
 are or shall at any time be rated, etc.," refers to 
 
 S.A.— 24 
 
370 CHAPTER 116. 
 
 the kinds of taxes, rates, etc., and not to the com- 
 mencement of the tenancy. Consequently a tenant 
 taking a lease ,in September did not have to pay any 
 of the taxes for that year, as they had already been 
 assessed against the landlord: McNaughton v. 
 Wigg, 35 U. C. E. Ill; but see Heydonv. Castle, 15 
 0. E. 257. The covenant includes local improve- 
 ment rates and percentages added under the 
 Assessment Act on amounts in ,arrear : Boulton v. 
 Blake, 12 0. E. 532. A tenant became purchaser 
 at a tax sale of the lands of which he was tenant, 
 and in respect of which he had covenanted to pay 
 the taxes for which the land was sold. In an action 
 brought by the mortgagee, it t was held that he could 
 not hold title so acquired against his lessors: Hey- 
 den v. Castle, 15 0. E. 257; see Meehan v. Pears, 
 30 O. E. 433. Covenant to pay " all rates and 
 taxes " payable in respect of the demised property 
 includes water rates where the water service is in- 
 stalled at the time of the demise : Bourn v. Salmon 
 
 6 Co., 1907, 1 Ch. 616. And see now in Ontario, pro- 
 visions of E. S. 0. 1914, ch. 204, sec. 27. Construction 
 of covenant to pay taxes : what are regular and ordin- 
 ary taxes: St. Mary's Young Men's, etc., Society v. 
 Albee, 43 S. C. E. 288. Covenant of lessor to pay taxes : 
 increase consequent on sub-lease: Salaman v. Hol- 
 ford, 1909, 2 Ch. 64, 602. Covenant to pay taxes: 
 see Foulger v. Arding, 1902, 1 K. B. 700; Surtees 
 v. Woodhouse, 1903, 1 K. B. 396; Wise v. Eutson, 
 1899, 1 Q. B. 474; Baylis v. Jiggins, 1898, 2 Q. B. 
 315; Floyd v. Lyons, 1897, 1 Ch. 633. Eepair of 
 drains: Brett v. Eogers, 1897, 1 Q. B. 525; Farlow 
 v. Stevenson, 1900, 1 Ch. 128. Liability: Ee War- 
 riner, 1903, 2 Ch. 367. See also Assessment Act, E. 
 S. 0. 1914, ch. 195, sec. 97, and Landlord and Tenant 
 Act, ch. 155, sec. 27. When tenant's covenant to pay 
 taxes includes drainage assessment: E. S. O. 1914, 
 ch. 198, sec. 92. 
 
 4. Effect of this covenant " to keep the demised prem- 
 ises in good repair . . and all fixtures," etc., 
 and covenant that the lessee may remove his fix- 
 tures : see Cronkhite v. Imperial Bank, 8 0. W. E. 
 18, 9 0. W. E. 326, 14 0. L. E. 270. Covenants 4, 
 
 7 and 9 considered: Statutory covenants 4 and 7 
 
CHAPTER 116. 371 
 
 are qualified by the exception contained in statu- 
 tory covenant 9 (g_.v.) : Morris v. Cairncross, 9 
 0. W. E. 918,, 14 0. L. R. 544; Emmett v. Quinn, 
 7 A. E. 306; Delamalter v. Brown, 9 0. L. E. 
 351. Under this covenant the tenant is bound 
 to repair the demised premises and all fixtures 
 made or erected during the term which he had a 
 right to make. The right to erect such fixtures 
 exists to this, extent, that they shall not diminish 
 the value of the demised premises, nor increase 
 the burden upon them as against the landlord, nor 
 impair the evidence of title. The landlord's rever- 
 sion not being injured by acts such as these, there 
 is not waste and no forfeiture : Holderness v. Lang, 
 11 O. E. 1. Covenant to repair, and implied coven- 
 ant by tenant not to commit waste : Def ries v. Milne, 
 1913, 1 Ch. 98; but see Witham v. Kershaw, 1885, 
 16 Q. B. D. 613, 616. Notice by sanitary authority to 
 construct outside drain: Howe v. Botwood, 1913, 2 K. 
 B. 387. Effect of covenant by tenant to repair : Born- 
 stein v. Weinberg, 4 0. W. N. 534, 27 0. L. E. 536. 
 Natural decay of old building: Surcott v. Wakely, 
 1911, 1 K. B. 905. Damages for breach: Clare v. 
 Dobson, 1911, 1,K. B. 35. Eepairs voluntarily done 
 by landlord and negligently executed by landlord's 
 servants: injury to tenant's wife: non-liability of 
 landlord: Malone v. Laskey, 1907, 2 K. B. 141. Duty 
 of landlord to repair, and his liability to stranger 
 injured on the premises : Marcille v. Donnelly, 1 0. 
 W. N. 195. Covenants to repair: see art. 47 C. L. 
 J. 733, 48 C. L. J. 8. 
 
 5. Effect of covenants in farm leases : Atkinson v. Far- 
 
 rell, 4 O. W. N. 73, 27 0. L. E. 204, 8 D. L. E. 582. 
 
 6. A covenant provided that the lessee was not to cut 
 
 down timber " for any purpose whatever, except 
 for firewood, but that the lessee is to have the priv- 
 ilege of using for any purpose all the lying down 
 hardwood timber, cedar only excepted." This cov- 
 enant restricted the statutory covenant but ex- 
 tended the common law right, which was limited to 
 lying down dead timber. The covenant allowed 
 the lessee to use all lying down hardwood timber, 
 sound or unsound, subject to the exception as to 
 cedar : Smellie v. Watson, 9 L. E. 635. 
 
372 CHAPTER 116. 
 
 7. See Crawford, v. Brigg, 12 0. R. 8. Notice to repair: 
 
 form: Holman v. Knox, 20 0. W. R. 121, 3 0. W. N. 
 151, 25 0. L. R. 588. See effect of this clause, in 
 view of , the provisions of the Settled Estates Act: 
 Morris v. Cairncross, 14 0. L. R. 544, note to R. S. 0. 
 1914, ch. 74, sec. 3. 
 
 8. The right of re-entry under this Act applies to the 
 
 breach of negative as well as affirmative covenants, 
 so that there is re-entry for breach of this coven- 
 ant. The making of an agreement for the assign- 
 ment of lease, the settlement of the terms, and the 
 entry of the assignee, constitute sufficient breach; 
 the actual making of. the document of transfer is 
 immaterial : McMahon v. Coyle, 5 0. L. R. 618 ; Tor- 
 onto Hospital v. Denham, 31 C. P. 207; Eastern 
 Telegraph Co. v. Dent, 1899, 1 Q. B. 835. Measure 
 of damages for breach of covenant: The lessor 
 was held entitled to a quarter's rent accruing 
 due at the time of the breach, without deduction 
 for rents realized by him during the quarter: 
 Patching v. Smith, 28 .0. R. 201 ; see Williams v. 
 Earle, L. R. 3 Q. B. 739. The words " any person " 
 in the long form of the covenant include the orig- 
 inal lessee. "Where an assignment has been made 
 by him with consent, a re-assignment to him with- 
 out a fresh consent is a breach of the covenant: 
 Munro v. Waller, 28 0. R. 29. Where the landlord 
 knew of the assignment and did not claim a forfeit- 
 ure, but insisted on claiming rent from the lessee, 
 the lessee was entitled to recover from the assignee 
 what he was obliged to pay, although the consent 
 of the lessor had not been procured : Brown v. Len- 
 nox, 22 A. R. 442. When a landlord gives a license 
 to assign part of the demised premises, he may en- 
 ter on the remainder for breach of the covenant, not- 
 withstanding that the proviso for re-entry requires 
 re-entry on the whole or a part in the name of the 
 whole: Baldwin v. Wanzer, 22 0. R. 612. While 
 acceptance of rent with knowledge of the breach 
 will waive forfeiture, does it follow that the lessors 
 are disentitled to rely on the breach as a ground 
 for refusing to renew: Finch v. Underwood, 2 Ch. 
 D. 310; see Fitzgerald v. Barbour, 17 O. L. R. 254. 
 When persons become assignees of a lease with this 
 
CHAPTER 116. 373 
 
 clause with, leave, they become bound by the coven- 
 ant and provision: Fitzgerald v. Barbour, 12 0. W. 
 R. 807, 17 0. L. R. 254 ; and see sec. 5 ante. Assign- 
 ing and sub-letting: see Varley v. Coppard, L. R. 
 7 C. P. 505 ;.Bristol v. Westcott, 12 Ch. D. 461; Hor- 
 sey v. Stieger, 1898, 2 Q. B. 264; Langton v. Hew- 
 son, 92 L. T. 805 ; Barrow v. Isaacs, 1891, 1 Q. B. 
 417; Fitzgerald v. Barbour, 11 0. W. R. 390, 12 
 O. W. R. 807, 17 0. L. R. 254. Liability of execu- 
 tors: consideration of this and covenant to repair: 
 Crawford v. Brigg, 12 0. R. 8. .Where an assign- 
 ment was made by the administrator of lessee in 
 spite of a covenant of the deceased not to assign, 
 etc., the administrator was, by Richards, C.J., con- 
 sidered not bound by the covenant, because not named 
 in it, but A. Wilson, J., inclined to think that the cov- 
 enant was one concerning land which would bind the 
 assigns though not named, but that the proviso for 
 re-entry did not apply to it : Lee v. Lorsch, 37 TJ. C. R. 
 262. Where it is stipulated that leave to assign shall 
 not be ' ' unreasonably withheld " : as to unreason- 
 ableness see Re Sparks Lease; Berger v. Jenkinson, 
 1905, 1 Ch. 456. Leave unreasonably • withheld : 
 Evans v. Levy, 1910, 1 Ch. 452. Proviso that leave 
 to assign shall not be unreasonably withheld: Con- 
 struction of this, in view of proposed assignment 
 to a company s : Jenkins v. Price, 1908, 1 Ch. 10. See 
 provision that leave to assign not to be unreason- 
 ably withheld: R. S. 0. 1914, ch. 155, sec, 23. 
 Effect of assigning part -of demised premises 
 on covenant for renewal: C. P. R. v. Brown 
 Milling Co., 18 0. L. R. 85, 42 S. C. R. 600. As- 
 signment to co-partner * breach of covenant: Fitz- 
 gerajd v. Loveless (Barbour), 17 0. L. R. 254, 42 
 S. C. R. 254. Giving temporary permission to cross 
 property not a breach of this covenant: Kinnear v. 
 Shannon, 13 0. W. R. 502. Covenant not to assign : 
 McEachern v. Colton, 1902, A. C. 104; Grove v. 
 Portal, 1902, 1 Ch. 727; Harman v. Ainslie, 1904, 1 
 K. B. 698. Covenant not to assign, save to"a re- 
 sponsible and respectable person " does not extend 
 to include a company : Willmott v. London Road Car 
 Co., 1910, 1 Ch. 754. Breach of covenant against 
 sub-letting: Curry v. Pennock, 4 O. W. N. 712, 1065, 
 23 O. W. R. 922, 24 0. W. R. 357, 10 D. L. R. 166, 548. 
 
374 CHAPTER 116. 
 
 9. A lease under this Act contained a covenant to 
 
 " leave the premises in good repair, ordinary wear 
 and tear only excepted." It was held that the added 
 words were not, an exception or qualification within 
 the meaning of the Act, and the covenant had to 
 be construed as it stood, without the aid of the long 
 form, and therefore, that the exception as to dam- 
 age by fire did not apply: Delamatter v. Brown, 9 
 O. L. E. 351 ; see also Morris v. Cairncross, 9 O. W. 
 E. 918, 14 0. L. E. 544, as to deviations from statu- 
 tory form of this covenant and effect on conditions 3 
 and 6, which are qualified by the statutory exception 
 in this covenant : also Emmett v. Quinn, 7 A. E. 306. 
 The covenant to leave the demised premises in re- 
 pair does not restrict the right of the tenant to re- 
 move his trade fixtures : Argles v. McMath, 26 0. E. 
 224, 23 A. E. 44. Destruction by fire : see Evans v. 
 Skelton, 16 S. C. E. 637; Williams v. Tyas, 4 Gr. 533. 
 Covenant to repair runs with the land, and an as- 
 signee of the term is only liable for breaches occur- 
 ring previous to his assignment to another: Craw- 
 ford v. Brigg, 12 0. E. 8. Covenant to leave in re- 
 pair buildings to be erected by tenant. Eight of 
 grantee of lands to sue : Lucas v. McFee, 12 0. W. E. 
 939. 
 
 10. Where the determination of a lease depends upon 
 an uncertain event such as -an election to forfeit 
 upon making an assignment for the benefit of cred- 
 itors, a reasonable time must be allowed for the re- 
 moval of trade fixtures after the election to forfeit: 
 Argles v. McMath, 26 0. E. 224, 23 A. E. 44. A 
 tenant when he renews his lease must be careful 
 to preserve his rights to remove fixtures, and with- 
 out express stipulation he may lose the right. 
 Words of the proviso considered : Cronkhite v. Im- 
 perial Bank, 8 0. W. E. 18, 9 0. W. E. 326, 14 0. L. 
 E. 270. Where a tenant surrenders his lease to his 
 landlord. a mortgagee or purchaser from the tenant 
 has a right to remove fixtures within a reasonable 
 time. This also applies in favour of debenture 
 holders of a company which forfeits its lease by 
 passing a winding-up resolution : Ee Glasdir Cop- 
 per Mines, 1904, 1 Ch. 819: A covenant to deliver 
 up premises with all fixtures extends to all fix- 
 tures on the premises: Leschalles v. Woolf, 1908, 
 1 Ch. 641. Fixtures : see Lyon v. London City and 
 
CHAPTER 116. 375 
 
 Midland Bank, 1903, 2 K. B. 135; Monti v. Barnes, 
 1901, 1 K. B. 205; Eeynolds v. Ashby, 1904, A. C. 
 466; In re Hnlse, Beattie v. Hulse, 1905, 1 Ch. 406; 
 Leigh v. Taylor, 1902, A. C. 157. 
 
 11. "In case of fire:" see Accidental Fires Act, B. S. 0. 
 1914, ch. 118." 
 
 12. Under a lease under this Act containing a covenant 
 not to assign or sub-let without leave, when the lessor 
 gives leave to assign part of the demised premises 
 he may re-enter upon the remainder for breach of 
 the covenant not to assign or sublet, notwithstand- 
 ing that the proviso for re-entry requires the right 
 of re-entry on the whole or a part in the name of 
 the whole: Baldwin v. Wanzer, 22 O. R. 612. The 
 right of re-entry exists for the breach of a negative 
 as well as, an affirmative covenant. There is a right 
 of entry for breach of the covenant not to assign 
 or sublet without leave: McMahon v. Coyle, 5 O. 
 L. E. 618; Toronto Hospital v. Denham, 31 C. P. 
 207. The following additions to the statutory form 
 did not exclude the application of the statute: Pro- 
 viso for re-entry by the said lessor on non-payment 
 of rent, whether lawfully demanded or not, or on 
 non-performance of covenants, or seizure or for- 
 feiture of the said term for any of the causes afore- 
 said; and the proviso extended to covenants after 
 as well as before it in the lease: Crozier v. Tabb, 
 38 U. C. R. 54. Acquiescence in failure to observe 
 terms of lease: Peterson Lake v. N. S. Silver Co- 
 balt, 1 O. W. N. 619, 2 O. W. N. 970. Retraction of 
 forfeiture: see Denison v. Maitland, 22 O. R. 166, 
 note to R. S. 0. 1914, ch. 155, sec. 20 (6). License to 
 assign part: re-entry on remainder: see Baldwin v. 
 "Wanzer, 22 0. R. 612, note to R. S. 0. 1914, ch. 155, 
 sec. 24. Forfeiture for bankruptcy or assignment 
 for benefit of creditors : R. S. 0. 1914, ch. 155, sec. 20 
 (9), note. Power of Court to relieve against for- 
 feiture: see R. S. 0. 1914, ch. 155, sec. 20. Pro- 
 viso for re-entry on default of performance of cov- 
 enants is not limited to breaches of affirmative cov- 
 enants : Harman v. Ainslie, 1904, 1 K. B. 698. What 
 amounts to waiver of forfeiture: effect of payment 
 and tender of rent and of bringing action and dis- 
 tress: Fenny v. Casson, 12 0. W. R. 404, 722. Breach 
 
376 " CHAPTER 116. 
 
 of condition for which, the lessors are entitled to enter 
 puts an end to a right of renewal provided for in 
 the lease : Fitzgerald v. Barbour, 17 0. L. E. 254, 
 12 0. W. E. 807. 
 
 13. Quiet enjoyment: The effect of the covenant is 
 that the lessor agrees to be bound by any act of 
 interruption by himself or by any person whom 
 he has expressly or impliedly authorized to do the 
 the act, but is not responsible for wrongful or 
 negligent acts which he has not authorized: San- 
 derson v. Berwick, 13 Q. B. D. 547; Williams v. 
 Gabriel, 1906, 1 K. B. 155, 75 L. J. K. B. 149. 
 When the lessee was evicted by title paramount 
 to the lessor, it was held that he could not recover 
 as for breach of covenant for quiet enjoyment, 
 which is limited to the acts of the lessor and those 
 claiming under him: Davis v. Pitchers, 24 C. P. 
 516. Lessee entitled to continuation of existing 
 light and ventilation as an appurtenance to the 
 lands demised: Ellis v. White, 11 0. W. E. 184; 
 see E. S. 0. 1914, ch. 109, sec. 15; E. S. 0. 1914, 
 ch. 115, ch. 2, 3. Attempt by lessors to impose fee 
 for entrance to park in which leased house is erected : 
 Irving v. Grimsby Park Co., 11 0. W. E. 748. 
 16 0.. L. E. 386. Quiet enjoyment: right to sup- 
 port and protection against subsidence: Mark- 
 ham v. Paget, 1908, 1 Ch. 697. Quiet enjoyment: 
 Baynes v. Lloyd, 1895, 2 Q. B. 610; Jones v. Lav- 
 ington, 1903, 1 K. B. 253. Nuisance on adjoining 
 property: Davis v. Town Properties, 1903, 1 Ch. 
 797. 
 
CHAPTER 117. 377 
 
 CHAPTER 117. 
 
 The Shoet Fobms of Moetgages Act. 
 
 2. Lands, what included: Fixtures: see Woods v. 
 Curry, 12 0. W. E. 345. In the absence of express 
 stipulation to the contrary, a mortgagor in pos- 
 session has the right to permit trade fixtures to 
 be put up and removed from the mortgaged 
 premises, provided they are removed before the 
 mortgagee takes possession; but this right of re- 
 moval ceases when possession is taken by the 
 mortgagee: Ellis v. Glover, 1908, 1 K. B. 388; 
 Seeley v. Caldwell, 12 0. W. R. 1245; see also 
 Stack v. Eaton, 4 0. L. R. 335. Chattels under 
 hire, purchase agreement attached to the freehold; 
 right of mortgagee as to : see Hobson v. Gorringe, 
 1897, 1 Ch. 182; Reynolds v. Ashby, 1903, 1 K. 
 B. 87, 1904, A. C. 466; R. S. 0. 1914, ch. 136, sec. 9 
 and notes. 
 
 4. The numbering is no essential part of the short form 
 covenants and provisoes : Northly v. Trumenhiser, 
 30 U. C. R. 426. 
 
 Schedule " B." 
 
 1. Bar of dower : see notes to R. S. 0. 1914, ch. 70, sec. 10. 
 
 2. Where it was impossible to give literal effect to all 
 
 the parts of a mortgage, the defeasance clause 
 being irreconcilable with particulars regarding pay- 
 ments, the Court regarded the general scope and 
 intent of the deed and construed it so as to give 
 effect thereto : Coleman v. Hill, 10 0. R. 172. 
 
 3. Words superadded in writing are entitled to have 
 
 greater effect attributed to them than the printed 
 clauses in the short forms mortgage. For this 
 reason, and because it camrfrtirst in the mortgage, 
 words added in writing after the covenant to 
 pay the mortgage money (Cov. 4) were held to 
 modify and control the distress clause (Cov. 15) : 
 
378 CHAPTER 117. 
 
 McKay v. Howard, 6 0. E. 135. As to joint cov- 
 enants: see Mercantile Amendment Act, E. S. 0. 
 1914, ch. 133, sec. 6. 
 
 7. There is nothing in this covenant repugnant to the 
 provision No. 14. A mortgagee when his mort- 
 gage is in default may under the covenant, with- 
 out giving notice, make any lease which will not 
 interfere with the mortgagor's right to redeem. 
 The action intended in the proviso (14), is not 
 the mere taking possession to keep down the in- 
 terest, but the entering on the lands to lease or 
 - sell in such wise that the right of redemption may 
 be postponed or destroyed. Where the security is 
 scanty, it is competent for the mortgagee to make 
 the best provision he can for his safety, even to 
 cutting down trees, subject to an account at the 
 proper time: Brethour v. Brooke, 23 0. E. 658, 
 21 A. E. 144. 
 
 12. Where insurance moneys are received by a mort- 
 gagee under an insurance effected under this 
 covenant, the mortgagee is not bound to apply the 
 insurance moneys in payment of arrears, but may 
 hold them in reserve as collateral security while 
 any portion of the mortgage moneys is unpaid, 
 nor, though he applies part upon overdue principal 
 is he bound to apply the balance in discharge of 
 overdue interest: Edmonds v. Hamilton Provi- 
 dent, 19 0. E. 677, 18 A. E. 347. See Armour, E. 
 P. pp. 194, 197. See H. & L. notes pp. 976-8 as to 
 application of insurance money under mortgages. 
 
 14. Where a sale is effected pursuant to the Short 
 Forms power, the mortgagee is a trustee of 
 the proceeds of sale, and the mortgagor is en- 
 titled to bring an action against him for an account 
 notwithstanding the expiration of six years from 
 the time of sale: Briggs v. Freehold Loan, 26 A. 
 E. 232. Mortgagees offered lands for sale under 
 power of sale by auction and privately but without 
 result. They then foreclosed, and pending fore- 
 closure brought ^separate action on the covenant 
 against the executors of the mortgagor and sold 
 under execution other lands of the mortgagor, and 
 applied the proceeds on the mortgage debt. Some 
 
CHAPTER 117. " 379 
 
 time after foreclosure they sold to a purchaser 
 and conveyed to him by ordinary short form dee'd 
 without recitals, the purchaser heing aware of the 
 proceedings under judgment on the covenant. It 
 was held that the proceedings on the covenant 
 opened the foreclosure and any person entitled to 
 redeem might bring action without setting aside 
 the final order but that the sale by private con- 
 tract and conveyance could be supported as an 
 exercise of the power of sale: Chalfield v. Cun- 
 ningham, 23 0. E. 153; see Brethour v. Brooke, 
 23 O. E. 658, 21 A. E. 144, (note to ci. 7). Sale 
 without notice: " Provided that the said mort- 
 gagee on default of payment for two months may 
 without giving any notice enter on and lease or 
 sell the said lands." The assignee of this mort- 
 gage was .held unable to confer good title on his 
 purchaser in as much as notice was dispensed with 
 which was not an exception or qualification of the 
 short form, but an abolition of one of its terms, 
 so that resort could not be had to the long form 
 for construction: Ee Gilchrist and Island, 11 0. 
 E. 537. But a power of sale without notice may 
 be exercised by the mortgagees, construing the 
 words in their strictest sense if the act does not 
 apply so long as the power is exercised by and 
 against those strictly within its wording. And in 
 such a case if the mortgagees give notice to some 
 incumbrancers, they are not thereby required to 
 give notice to all: Ee British Canadian and Eay: 
 16 O. E. 15. Where the power was " Provided 
 that the mortgagee on default for one day may 
 without any notice enter on and lease or sell said 
 lands," a sale made by the mortgagee himself 
 was upheld: and held also that under the power, 
 entry on the land was not necessary prior to sale. 
 On appeal, a Divisional Court was equally divided : 
 Clark v. Harvey, 16 0. E. 159. For variation per- 
 mitting assignees of the mortgage to exercise it 
 validly: see Barry v. Anderson, 18 A. E. 247. 
 A power of sale in a mortgage to a building society, 
 expressed to be exercisable by the trustee or trustees 
 for the time being of the society without mention- 
 ing assigns, is not exercisable by an assign: Ee 
 Eumney and Smith (1897), 2 Ch. 351. Where a 
 power of sale was exercisable by mortgagees, but not 
 
380 
 
 CHAPTER 117. 
 
 by their assigns, and the mortgage was made to trus- 
 tees, it was held that new trustees appointed were 
 not assigns, but stood as if appointed by the original 
 deed creating the trust, and could exercise the power : 
 Ee Gilmour and White, 14 0. R. 694. A notice stat- 
 ing that unless payment is made, proceedings will be 
 instituted to obtain possession, is insufficient to sup- 
 port a sale : Bartlett v. Jull, 28 Gr. 140. A proviso for 
 sale on " one month's notice " is within the covenant 
 and a valid variation: Ee Green and Artkin, 14 0. 
 E. 697. 
 
 Execution creditors are " assigns " and entitled to 
 notice, but only those having executions in the Sher- 
 iff's hands at the time notice of sale is given need be 
 served: Ee Abbott and Metcalf, 20 O. E. 299, Ee 
 Martin and Merritt, 3 O. L. E. 284, at p. 290. Notice 
 must be given to persons having interest in the land 
 vested or claimable by them of whose interest the 
 mortgagee has notice: Stewart v. Eowson, 22 O. E. 
 533. Where a power of sale provides that on one 
 month's default the power may be exercised on one 
 month's notice, the month's default and the notice 
 cannot run concurrently: Gibbons v. McDougall, 20 
 Gr. 214. But where the power provided that on three 
 months ' default the power might be exercised with- 
 out notice, and then the mortgagees covenanted 
 to give one month's notice, it was held that the 
 notice and default might run concurrently: Grant 
 v. Canada Life, 29 Gr. 256. After the Statute of 
 Limitations has run against a mortgagor, service 
 of notice of sale by the mortgagee on the mort- 
 gagor does not give the mortgagor a right to 
 redeem, the mortgagee's statutory title not being 
 in any way affected: Shaw v. Coulter, 11 0. L. 
 E. 630. The wife of a mortgagor joining to bar 
 her dower is not an " assign " within the mean- 
 ing of the statutory power, and service of the 
 notice of lexercising power of sale need not be 
 made on her: Ee Martin and Merritt, 3 0. L. 
 E. 284. After the coming into force of the Devolu- 
 tion of Estates' Act and after the expiration of 
 the period limited in sec. 13 of that Act, no cau- 
 tion having been registered, it is not necessary to 
 serve notice of sale on the personal representa- 
 tives of a deceased mortgagor: Ee Martin and 
 
CHAPTER 117. 381 
 
 Merritt, 3 0. L. E. 284. It is sufficient to serve 
 the heir through an infant, where the power is 
 to be exercised on notice to fhe heir: Ee Martin 
 and Merritt, 3 0. L. E. 284, at p. 290; Bartlett 
 v. Jull, 28 Gr. 140, at p. 142-3 ; Tracy v. Lawrence, 
 2 Drew. 403. But see as to statutory implied power 
 of sale: E. S. 0. 1897, ch. 121, sec. 20; E. S. 0. 1914, 
 ch. 112, sec. 21. The short forms power probably 
 permits substitutional service at the residence, 
 though the mortgagor may be within the jurisdiction : 
 O'Donohoe v. Whiley, 2 0. E. 424. As to what may 
 be sufficient service of notice of exercising power of 
 sole on agent in Ontario for a mortgagor residing 
 abroad: Fenwick v. Whitham, 1 0. L. E. 24. See 
 also as to what constitutes a good notice and proper 
 service : Ee Abbott and Metcalf , 20 0. E. 299 ; see 
 Dig. Ont. Case Law, col. 4468-4472. Eequisition de- 
 manding proof of service of notice of exercising 
 power of sale: Life Interest, &c, v. Hand in Hand, 
 1898, 2* Ch. 230. 
 
 Damages for improper exercise of power: Ames 
 v. Higdon, 69 L. T. 292. Constructive notice : Ware 
 v. Egmont, 4 DeG. M. & G. 460 ; Bailey v. Barnes, 
 1894, 1 Ch. 25. Validity of purchase under power 
 of sale by mortgagee's solicitor: Nutt v. Easton, 
 1899, 1 Ch. 873, 1900, 1 Ch. 29. Sale by mortgagee to 
 one of several mortgagors, tenants in common: 
 Kennedy v. DeTrafford, 1897, A. C. 180. When a 
 valid contract of sale was made by a mortgagee 
 under power of sale before any notice of intention 
 to redeem was received from the wife of the mort- 
 gagor, the wife had lost any right she previously had 
 to redeem. If the land had been foreclosed instead, 
 qucere: Standard Eealty Co. v. Nicholson, 2 O. W. 
 N. 1189; 19 0. W. E. 1189; 24 0. L. E. 46. A mort- 
 gagee selling under power, and who pays off an en- 
 cumbrancer, who, to his knowledge, holds collateral 
 security, must take over such collateral for the bene- 
 fit of execution creditors who are to be treated as 
 encumbrancers : Glover v. Southern Loan, 1 0. L. E. 
 59. Tender of redemption money must be made a rea- 
 sonable time before the sale : Gentles v. Canada Perm- 
 anent, 32 0. E. 428." On sale by mortgagee under 
 power he may retain more than six years arrears 
 of interest notwithstanding E. S. 0. 1914, ch. 75, sec. 
 
382 CHAPTER 117. 
 
 18: Ford v. Allen, 15 Gr. 565; Ee Marshfield, 34 Ch. 
 D. 721. Purchase of lands at sale under power— pur- 
 chaser acting as trustee for mortgagor: Kane v. 
 Trusts and Guarantee Co., 12 0. W. E. 301. On a sale 
 of real estate by a mortgagee under power of 
 sale in the lifetime of the mortgagor, surplus pro- 
 ceeds are personal estate notwithstanding that the 
 power directs them to be paid to the mortgagor 
 " his heirs or assigns " and that the mortgagor 
 was a lunatic: Ee Grange; Chadwick v. Grange, 
 1907, 2 Ch. 20. A member of the investment com- 
 mittee of a friendly society is under suspicion as 
 purchaser under sale proceedings taken under one 
 of the society's mortgages. The onus is on him 
 to shew the fairness of the transaction: Hodson 
 v. Deans, 1903, 2 Ch. 647. Duties, powers and 
 rights of mortgagees selling under power : Wilson 
 v. Taylor, 4 O. W. N. 253, 1376, 23 O. W. E. 359, 
 24 0. W. E. 669; Barnes v. Queensland Bank, 
 1906, St. E. Qu. 133. Hazeltine v. Consolidated 
 Mines, 13 0. W. E. 271, 994; Haddington Island 
 Quarry Co. v. Huson (1911), A. C. 729. Duty of 
 mortgagee to exercise power in good faith, not to 
 make misstatements or omissions of material facts 
 nor fix conditions by which persons would be deter- 
 red from bidding: Kaiserhof Hotel v. Zuber, 23 0. 
 L. E. 481, 25 0. L. E. 194, 46 S. C. E. 651. The words 
 " absolutely dispose of in the Short Forms power, 
 are applicable to an exchange as well as a sale for 
 money: Smith v. Spears, 22 0. E. 286: see Armour 
 on Titles, p. 399, etc. Where there has been a 
 sale under power the position is not at all the 
 same as after a foreclosure in respect of " open- 
 ing up." On a sale after foreclosure, the mortgagee 
 may make a gain, he has not to account, and if 
 he does not make enough to pay the amount of 
 his debt, he cannot sue for the balance. Where 
 the property is sold under power, the mortgagee 
 cannot make a gain, he must account for any sur- 
 plus, but can sue for a deficiency: Burnham v. 
 Gait, .16 Gr. 417; Pegg v. Hobson, 14 O. E. 272; 
 Eudge v. Eichens, L. E. 8, C. P. 358; Standard 
 Eealty y. Nicholson, 24 0. L. E. 46. Position of pur- 
 chaser in good faith, making no enquiry as to title, 
 where the owner of the equity not properly served: 
 Doctrine of constructive notice held not to apply as 
 
CHAPTER 117. 383 
 
 against purchaser: Williams v. Sun Life, 19 W. L. 
 E. 564; 21 W. L. E. 271. See also, Jones v. North 
 Vancouver Land Co., 1910, A. C. 317. An order for 
 foreclosure nisi does not extinguish power of sale: 
 Stevens v. Theatres Limited, 1903, 1 Ch. 857. It 
 would appear that where there is default in a mort- 
 gage containing an acceleration clause, and the mort- 
 gagee sues for the whole amount of the mortgage, 
 the Court will relieve as from a forfeiture : Tylee v. 
 Hinton, 42 U. C. E. 228, 3 A. E. 53. It was after- 
 wards held that this rule was not to be extended to 
 the case where the mortgagee proceeds to exercise his 
 power of sale, and no suit is instituted: Eobertson 
 v. Hetherington, 3 C. L. T. Occ. N. 141. This latter 
 case was really a construction of the then Eule, Ch. 
 O. 461, afterwards Con. Eule 388, and 1913 Eule 485. 
 Upon a construction of clause 16, of the Short Forms 
 Act, E. S. 0. 1914, ch. 117, it was held that as a 
 matter of contract, the mortgagee must accept his 
 arrears and costs and, on his refusal, would be re- 
 strained from proceedings : Todd v. Linklater, 1 0. 
 L. E. 103. 
 
 Sale under power: see Dig. Eng. Case Law, IX., 
 pp. 1771, et seq : Existence of power, p. 1171 ; Valid- 
 ity of power, p. 1773 ; Notice to mortgagor, p. 1778 ; 
 Sale by auction or private contract, p. 1780; Price, 
 p. 1780; Management and conduct, p. 1782; Condi- 
 tions, p. 1783; Eights to proceeds, p. 1784. As to 
 concurrent proceedings: see E. S. O. 1914, ch. 112, 
 sec. 29 and notes thereto. Validation of sale prior 
 to 23rd March, 1888: see E. S. 0. 1897, ch. 121, 
 sec. 34, (unrepealed). Proceedings when mortgage 
 provides for sale without notice: E. S. 0. 1914, ch. 
 112, sec. 27 (2) ; or alternative provisions in lieu 
 of proceeding under this covenant: E. S. 0. 1914, 
 ch. 112, sec. 27 (1). Provision for registration of 
 notice of exercising power of sale and proof of 
 service : E. S. 0. 1914, ch. 124, sec. 58. As to appli- 
 cation of proceeds of sale: surplus proceeds and 
 their distribution: Campbell v. Croil, 8 0. W. E. 67; 
 Ee Ferguson and Hill, 24 0. W. E. 634; 4 0. W. N. 
 1339; 10 D. L. E. 855; and see notes to E. S. 0. 1914, 
 ch. 112, sec. 23. As to service of notice on personal 
 representative within and after three years from 
 death of owner of equity: see Ee Martin and Mer- 
 ritt, 3 0. L. E. 284; and E. S. 0. 1914, ch. 119, sec. 13, 
 
3g4 CHAPTER 117. 
 
 and notes. For form and effect of power, notice of 
 sale, and conveyance : see Armour on Titles, p. 399, 
 el seq. 
 
 15. Attornment clause in mortgage as constituting a 
 tenancy at will: Ex. p. Voisey re Knight, 21 Ch. 
 D. 442. The relation of landlord and tenant may 
 be created by proper words between mortgagee 
 and mortgagor for the bona fide purpose of secur- 
 ing the debt without being either a fraud on credi- 
 tors or an evasion of the Chattel Mortgage Act: 
 Trust and Loan v. Lawrason, 6 A. R. 286, 10 S. 
 G. R. 679. The provision should create a tenancy 
 at will with a fixed rent, i.e., the amount of the 
 interest, and payable at the same times. There 
 is no repugnancy between such a provision and 
 the covenant for quiet enjoyment (17), which latter 
 is made subject to the provision creating the 
 tenancy: Pegg v. I. O. F., 1 0. L. R. 97. Mort- 
 gagee's right to distrain: see R. S. 0. 1914, ch. 112, 
 sec. 14, and notes. 
 
 16. Under a mortgage in which the principal is pay- 
 
 able in instalments extending beyond five years, 
 the mortgagor was entitled to a discharge upon 
 payment of principal 'and interest and three 
 months' additional interest under R. S. C. 1886, 
 ch. 127, sec 7; and it made no difference that the 
 mortgage was given to secure a balance of princi- 
 pal money and under special agreement: Re 
 Parker, 24 0. R. 373 ; and see now R. S. 0. 1914, 
 ch. 112, sec. 17. When a judgment has been 
 recovered it cannot be set aside on payment of 
 interest and costs. The acceleration clause is a 
 matter of contract and is not a penalty: Wilson 
 v. Campbell, 15 P. R. 254. Default in an instal- 
 ment of principal: see Biggs v. Freehold Loan, 
 26 A. R. 232, 31 S. C. R. 136. The effect of this 
 clause is to give a right in every case to the mort- 
 gagor or his assigns to, pay all arrears and lawful 
 charges and thereupon restrain the mortgagee from 
 taking further proceedings for the principal if not 
 due except under this acceleration clause, unless 
 a judgment has been obtained: Todd v. Linklater, 
 1 0. L. R. 103. This clause has the effect that on 
 default in payment of interest the principal is 
 
CHAPTERS 118, 119. 385 
 
 made payable as if the time for payment had fully 
 come, and a right of action arises and the Statute 
 of Limitations begins to run : McFadden v. Bran- 
 don, 6 0. L. E. 247, 8 0. L, R. 610; R. S. 0. 1914, 
 ch. 75, sec. 18, and notes. Stay of proceedings on 
 payment of interest: Hazeltine v. Consolidated 
 Mines, 13 0. W. R. 994. 
 
 CHAPTER 118. 
 
 The Accidental Fibes Act. 
 
 CHAPTER 119. 
 
 The Devolution of Estates Act. 
 
 Refer to Armour on Devolution ; Armour on Titles ; 
 Bicknell and Kappele, Practical Statutes, pp. 631- 
 633; Williams on Executors. 
 
 This Act does not interfere with an express power 
 of sale given by a will to executors and extend- 
 ing beyond the periods of vesting prescribed by 
 the Act. There is nothing in it to interfere with 
 the provisions which testators may themselves 
 have made as to the time and manner in which 
 their estates are to be dealt with: Re Koch and 
 Wideman, 25 O. R. 262; Mercer v. Neff, 29 0. R. 
 680; Re Fletcher, 26 0. R. 499. Where an auth- 
 ority to sell real estate is given to executors the 
 fee simple is impliedly vested in them for that 
 purpose: Re Roberts and Brooks, 10 0. L. R. 
 395; see also R. S. 0. 1897, ch. 129, sec. 21; R. 
 S. 0. 1914, eh. 121, sec. 44. Where land is devised 
 to executors on trusts and the estate vests in the 
 executors in consequence of the devise and not by 
 statute, they may resort to the statute to supple- 
 ment their powers under the devise : Re Koch and 
 Wideman, 25 0. R. 262; Re Roberts and Brooks, 
 10 0. L. R., 395; Mercer v. Neff, 29 0. R. 680; 
 Re Hewett and Jermyn, 29 0. R. 383: and see also 
 
 S.A. — 25 ' 
 
3gg CHAPTER 119. 
 
 Ee Ross and Davies, 7 0. L. E. 433. Where by a 
 man's will property was devised to his wife for 
 life and after her death to the children equally on 
 the youngest attaining 21, a daughter who sur- 
 vived her father, married, and died without issue 
 in her mother's lifetime, was held to have a 
 " share " in which her husband had an interest. 
 The widow of a deceased son also had her proper 
 interest under this Act: Ee Stainsby, 9 0. W. E. 
 839, 14 0. L. E. 468. The Act has not superseded but 
 is to be read in conjunction with E. S. 0. 1897, ch. 128, 
 sees. 36 and 37 ; E. S. 0. 1914, ch. 120, sees. 37 and 38 ; 
 Mason v. Mason, 13 0. E. 725; Scott v. Supple, 23 0. 
 E. 393. Under this Act the executor of a deceased 
 lessor can make a valid renewal of a lease pur- 
 suant to the covenant of the testator to renew: 
 Ee C. P, E. and the National Club, 24 0. R. 205. 
 Title outstanding in personal representative: Mar- 
 tin v. Magee, 19 0. E. 705, 18 A. E. 384, and see 
 sec. 13 infra. Where special executors for pro- 
 perty in Australia, and also general executors were 
 appointed, the latter alone were the " personal 
 representatives," and could make title to land in 
 England without the concurrence of the special 
 executors: Ee Cohen's Executors and L. C. C. 
 1902, 1 Ch. 187. Eight of executors to appropriate 
 special assets to answer shares of the residue not 
 interfered with, at all events in cases where there 
 is a trust for sale and conversion : In re Beverly, 
 1901, 1 Ch. 681. Effect of devolution of Estates 
 Act where a charge was created by the testator but 
 the estate not expressly vested in any trustee: 
 Yost v. Adams, 13 A. E. 129. Devise to trustees 
 without adding " and their heirs." Executors of 
 survivors unable to make title: Ee Crunden and 
 Meux, 1909, 1 Ch. 690. Devolution of trusteeship 
 on executors of will of surviving trustee: Ee 
 Waidanis: Eivers v. Waidanis, 1908, 1 Ch. 123. 
 Appointment of new trustees by donee of power 
 ousting executors of surviving trustee: Ee Rout- 
 ledge, Eoutledge v. Saul, 1909, 1 Ch. 280. " Dis- 
 tributed as personal property." Brothers and 
 sisters of the half blood share equally with those 
 of the whole blood: In Ee Wagner, 6 0. L. E. 680; 
 (see sec. 30 infra). For consideration of the term 
 " limited to the heir as special occupant," in 
 
CHAPTER 119. 387 
 
 former section: see In re Inman: Inman v. In- 
 man, 1903, 1 Ch. 241; and eases there distinguished 
 and applied: Wilson v. Butler, 2 0. L. E. 576. 
 This section must be read as subject to E. S. 0. 
 1897, ch. 77, sec. 4; E. S. 0. 1914, ch. 80 sec. 6; 
 the effect of which is to give a widow a parlia- 
 mentary title to the goods of her deceased hus- 
 band which are exempt from seizure: Ee Tatham, 
 2 0. L. E. 343; and see also sec. 12 infr a. Devisees 
 are not necessary parties to an aetion for dower: 
 Malone v. Malone, 17 0. E. 101. " Devolve upon " 
 means "pass to:" see Ee Booths Estate, 16 0. 
 B. 429 (notes to see. 19). Devolution of Estates Act 
 and real assets: Ee McGarry, 18 0. L. E. 524. This 
 case discussed, see 45 C. L. J. 621. Where motion 
 for administration under Con. Eule 944 (1913 
 Eule 608) the executor or administrator must 
 have 14 clear days' notice. When heirs and devi- 
 sees necessary parties, see H. & L. notes p. 1193. 
 
 4. It is held in England that notwithstanding the pro- 
 
 visions of the Land Transfer Act, 1897, sec. 1 (1), 
 a grant to the nominee of the Crown as adminis- 
 trator to an intestate without known relatives, 
 should go as before the Act to the personalty only 
 Without reference to the real estate: Ee Hartley, 
 (1899), P. 40. What effect if any has the power 
 conferred on the Surrogate Court to grant adminis- 
 tration as to realty upon the jurisdiction of the 
 High Court Where real estate is involved 1 ? Mutrie 
 v. Alexander, 23 0. L. E. 396. Accounting prior 
 to this Act by heir-at-law and by devisees in pos- 
 session: see H. & L. notes p. 888. Compensation 
 prior to this Act to executors intermeddling with 
 realty: H. & L. notes p. 883. Where a mortgage 
 comprised both real and personal estate: See H. 
 & L. notes p. 983, Judgment against personal rep- 
 resentative: see H. & L. notes p. 344 and p. 339. 
 
 5. Eeal estate is on an equality with personal as re- 
 
 gards administration, and this provision has ren- 
 dered it unnecessary for a testator to direct that 
 his real estate be charged with payment of debts. 
 But where such a direction is in fact made, the 
 Court will give effect to it at the instance of pecu- 
 niary legatees: Ee Kempster, Kempster v. 
 
ggg CHAPTER 119. 
 
 Kempster, 1906, 1 Ch. 446; Ee Roberts, 1902, 2 
 Ch. 834. This Act vests the real as well as the 
 personal estate of a deceased person in his personal 
 representatives for the purpose of 'paying his 
 debts, but (except in the case specially provided 
 for in sec. 6), the order in which the different 
 classes of property are applicable to the payment 
 of debts has not been changed by the Act: Re 
 Hopkins, 32 0. R. 315; see also Scott v. Supple, 
 23 0. R. 393. " Assets "—payment of debts. Realty 
 not to be sold until general personal estate not 
 specifically bequeathed is exhausted: Re Hopkins, 
 32 0. R-. 315; Re Talham, 2 0. L. R. 343, 348; Re 
 Moody, 12 0. L. R. 10; Re McGarry, 14 0. W. 
 R. 244, 18 0. L. R. 524. (See Article, 45 C. L. J. 
 621, where Re McGarry is discussed). Where lands 
 were held in trust by a deceased intestate, the Court 
 refused to direct the official guardian to approve of a 
 conveyance from the administrator to the beneficial 
 owner, as this Act only permits sale of lands for 
 payment of debts and for purposes of distribu- 
 tion: Re Davis, 12 0. W. R. 653. See sees. 20, 21 
 infra. 
 
 6. This section is only applicable where there is both 
 realty and personalty in the residue: Re Moody, 
 12 0. L. R. 1Q. Goods exempt from seizure under 
 the Execution Act are not, except for funeral and 
 testamentary expenses, assets in the executor's 
 hands for payment of debts: Re Tatham, 2 O. L. 
 R. 343. The testator's debts, funeral expenses 
 expenses of his will, and the expenses attending 
 the administration of his estate, should be charged 
 rateably on his real and personal estate according 
 to their respective values: Re Way, 6 0. L. R. 
 614; Re Thomas, 2 0. L. R. 660; Scott v. Supple, 
 23 0. R. 393. Devise of incumbered land: see 
 Scott v. Supple,, 23 0. R. 393; Mason v. Mason, 13 
 0. R. 725. . The Devolution of Estates Act has not 
 disturbed the earlier decisions as to personalty 
 being the primary fund for creditors: Re Mc- 
 Garry, 14 0. W. R. 244, 18 0. L. R. 524. Liability of 
 real estate for costs of administration action ordered 
 to be paid " out of the estate:" In re Vickerstaff, 
 1906, 1 Ch. 762. Except in the case of a residuary de- 
 vise especially provided for in this section, the order 
 
CHAPTER 119. 3gg 
 
 in which different classes of property are applic- 
 able to the payment of debts has not been changed 
 by this act: Ee Hopkins, 32 0. E. 315. Mixed 
 fund for payment of debts, etc.: Foxwell v. Ken- 
 nedy, 2 0. W. N. 821, 18 0. W. E. 782, 24 0. L. E. 
 189. Eeal and personal estate comprised in a 
 residuary bequest, primarily and pari passu liable 
 for a mortgage burden: Ee Austoh, 2 0. W. N. 
 1358, 19 0. W. E. 684. Duty of executor and not 
 of trustee to realise on real property to pay debts : 
 Foxwell v. Kennedy, 24 0. L. E. 189. 
 
 The widow of an intestate having elected to take her 
 interest under this section is entitled to one third of 
 his real estate absolutely: Ee Eeddan, 12 0. E. 781. 
 Time for electing: see Baker v. Stuart, 25 A. E. 445. 
 Election by widow where lands of intestate have 
 been sold and money is in Court : Baker v. Stuart, 
 29 0. E. 388, 25 A. E. 445. Where a widow elects 
 to take under this section, she must do so by an 
 attested instrument in writing, pursuant to the sec- 
 tion, even where the lands have been sold under 
 an order of the Court at her instance free from 
 dower ^ and the proceeds are in Court: Ee Galway, 
 17 P. E. 49. An election by a widow may be made 
 by will, Which, as to such election, speaks from the 
 time of its execution : Ee Ingolsby, 19 0. E. 283. 
 This section does not apply where, by marriage 
 settlement, the widow has received an equivalent in 
 lieu of dower : Toronto General Trusts Co. v. Quin, 
 25 0. E. 250. This section applies only to the case 
 of the descent of the inheritable lands of the intes- 
 tate : see Cowan v. Allen, 26 S. C. E. 292, at p. 314. 
 Administrator of widow is entitled to payment out 
 of proceeds of sale of deceased husband's real estate 
 of the amount of dower, according to her expectancy 
 at the time of sale, she having elected to take dower 
 in lieu of her distributive share : Ee Pettit, 4 0. L. 
 E. 506. By bringing an action for the construction 
 of her late husband's will a widow may have made 
 her election to take under the will, and it may be 
 too late for her to elect to take her distributive 
 share under this section: Eudd V. Harper, 16 0. E. 
 422. The only person who can assign dower is the 
 executor, in whom the whole inheritance of the tes- 
 tator is vested. A conveyance from the devisee of 
 
qoq CHAPTER 119. 
 
 the lands is of no avail : Allan v. Eever, 4 0. L. E. 
 309. Instrument evidencing widow's election: Mc- 
 Ewen v. Gray, 2 0. W. N. 945, 18 0. W. E. 888. 
 When widow put and not put to her election: see 
 e.g.: Ee Shunk, 31 0. E. 175: Leys v. Toronto Gen- 
 eral Trusts, 22 0. E. 605; Laidlaw v. Jackes, 27 
 Gr. 101; Amsden v. Kyle, 9 0. E. 439; Ee Quimby, 
 5 O. E. 738; Mutchmoor v. Mutchmoor, 8 0. L. E. 
 271 ; King v. Yorston, 27 O. E. 1 ; Ee Hurst, 11 0. L. 
 E. 6. A devise of all testator's lands, to widow 
 durante viduitate puts her to her election : Ee Hor- 
 ace B. Allen, 4 0. W. N. 240, 23 0. W. E. 253, 7 D. 
 L. E. 494. 
 
 10. In addition to the administrator, infant children of 
 deceased intestate mortgagor are proper parties in 
 foreclosure : Keen v. Good, 14 P. E. 182 ; see H. & L. 
 notes, p. 388. Eepresentation where no caution has 
 been registered : see Eamus v. Dow, 15 P. E. 219, note 
 to sec. 13. As to the general representative capacity 
 of the administrator in respect of realty : see H. & 
 L. notes, pp. 339, 342; E. S. 0. 1914, ch. 62, sees. 56, 
 57. Where decree of foreclosure made against mort- 
 gagor who dies before final order obtained, the mort- 
 gagor's estate devolves on his personal representa- 
 tive. Where there are infants concerned: see Con. 
 Eule 595; H. & L. notes, p. 787; 1913 Eule 466. The 
 Court may on the application of a mortgagee in a 
 mortgagee action appoint an administrator to the 
 estate of an intestate mortgagor: McLaren v. Eiv- 
 ett, 7 C. L. T., Occ. N. 202. 
 
 11. — (1) Necessity for application to Court in certain 
 cases to enable administrators to sell free from 
 dower : see Ee Eedman, 10 0. W. E. 16. 
 
 11.— (3) Gross sum: see Ee Pettit, 4 0. L. E. 506. 
 
 12. For the purpose of computing the rights of a widow,- 
 the " real and personal estate " means all that he 
 has whether in possession, reversion or contin- 
 gency: Ee Heath, Heath v. Widgeon, 1907, 2 Ch. 
 270. Executor of widow of deceased intestate: 
 Widow not having taken out administration of her 
 husband's estate being less than £500 (Intestate 
 Estates Act, 1890, sec. 1) : Ee Bryant (1896), P. 159. 
 
CHAPTER 119. 391 
 
 Where all the legatees and the executor named in 
 the will predecease the testator, he has died intes- 
 tate within the meaning of this Act: Ee Cuffe, 
 Fooks v. Cuffe, 1908, 2 Ch. 500. This section does 
 not apply where there is a partial intestacy: Ee 
 Harrison, 2 0. L. E. 217 ; Ee ; Twiggs Estate, 1892, 
 
 1 Ch. 579. The widow of an intestate who has left 
 no issue is entitled to $1,000 out of his real estate 
 in Ontario, notwithstanding that she has received 
 other benefits under the laws of another country out 
 of his estate in that country : Sinclair v. Brown, 29 
 O. E. 370. Deed by widow : Bowman v. "Watts, 13 
 O. W. E. 481. The proportionate part of the 
 widow's charge has priority over her right of 
 dower: Ee Charriere; Duret v. Charriere, 1896, 1 
 Ch. 912. 
 
 13. The provisions of this section do not apply where 
 there is an express or implied devise of the fee to 
 the executors under the will: Hewitt v. Jermyn, 29 
 O. E. 387; and see Be Eoberts and Brooks, 10 O. 
 L. E. 395 ; Ee Koch and Wideman, 25 O. B. 262, etc., 
 etc. ; notes to sec. 3 ante. It is only while the estate 
 remains vested in the personal representatives of 
 deceased person that they are to be deemed in law 
 his heirs. After the expiry of that period it is un- 
 necessary to serve the personal representatives 
 with a notice of exercising power of sale under the 
 Short Forms Act. This is in spite of the fact that 
 by a caution filed subsequently lands can be re- 
 vested in the personal representative. Upon whom 
 notice is to be served is determined according to the 
 actual circumstances existing at the time notice is 
 given: Ee Martin & Merritt, 3 0. L. E. 284. ^ After 
 the lapse of the period limited by this section an 
 executor loses his right of retainer by not register- 
 ing a caution and by treating the property as vested 
 in the devisees : Ee Starr, 2 0. L. E. 762. An heir 
 in whom lands will have become vested before a day 
 fixed for the sale by them by the personal repre- 
 sentative is entitled -to an injunction restraining 
 the sale. The subsequent registration of a caution 
 cannot affect his right of action: Byer v. Grove, 
 
 2 0. L. E. 755. An administrator ad litem ap- 
 pointed after the period limited by the section has 
 no locus standi to maintain an action to set aside 
 
392 CHAPTER 119. 
 
 a tax sale of land belonging at the time of death to 
 the estate of the deceased: Eodger v. Moran, 28 0. 
 E. 275. When in administration lands of an intes- 
 tate have been sold by the Court, the widow may 
 although the period limited by the section has ex- 
 pired, elect to take her distributive share in lieu of 
 dower, provided the estate be not distributed, on the 
 footing of her having retained her dower right: 
 Baker v. Stuart, 29 0. E. 388, 25 A. E. 445. In a 
 mortgage action against the surviving husband and 
 children of the mortgagor, begun within the period 
 after the death of the mortgagor limited by this 
 section, the plaintiff was held entitled, after the 
 expiry of the period, to judgment for the enforce- 
 ment of the mortgage without having the personal 
 representative before the Court, no administrator 
 having been appointed and no caution having been 
 registered: Eamus v. Dow, 15 P. E. 219: see Eule 
 193, H. & L. notes, p. 339; Eule 194, H. & L. notes, 
 p. 344; 1913 Eules 74, 90. The devisee of real 
 estate has a transmissible interest in the lands of 
 the testator during the period pending which they 
 are vested under the Act in the personal repre- 
 sentatives: Ee McMillan, 24 0. E. 181. Since the 
 Devolution of Estates Act the right of an heir-at- 
 law to sue to set aside a conveyance (e.g., from a 
 father to his daughters) as improvident and for 
 undue influence is not higher than (if as high as) 
 the right of a residuary legatee to sue in respect 
 of personal property. Such a plaintiff has no right 
 to bring the action at all until the expiration of the 
 period of three years fixed by sec. 13 ; and the fact 
 that the personal representative is made a defen- 
 dant does not assist the plaintiff: Empey v. Fick, 
 13 0. L. E. 178, 15 0. L. E. 19. Where land " has 
 become " vested in heir under this section, and 
 without conveyance: effect of the words " shall be- 
 come," and repeal of 3 W. & M., ch. 14: Beer v. 
 Williams, 15 0. W. E. 868, 1 0. W. N. 702, 21 0. 
 L. E. 49. The Statute of Fraudulent Devises, 3 & 
 4 W. & M., ch. 14, is now- obsolete: see 2 Edw. VII. 
 ch. 1, sec. 2 : Beer v. Williams, 21 0. L. E. 49. Vest- 
 ing of estate in legatee on assent of executor and 
 consequences flowing therefrom: see Attenborough 
 v, Solomon, 1913, A. C. 76 ; Thome v. Thorne, 1893, 
 
CHAPTER 119. 393 
 
 3 Ch. 196. A caution under this section is an " in- 
 strument " within the meaning of the Begistry Act; 
 B. S. 0. 1914, ch. 124, see. 2 (d). 
 
 14. Executors and administrators under this Act are 
 not in all respects in the same position as a trustee 
 for sale of lands. It is the duty of the latter to sell. 
 Upon the former is cast a discretion to be exer- 
 cised only for certain purposes and in certain 
 events: Ee Fletcher, 26 0. E. 499. Nothing in the 
 Act derogates from any right possessed by an ex- 
 ecutor or administrator independently of the Act. 
 The Act does not apply where executors have a stat- 
 utory power of sale to satisfy a charge: Ee Moore 
 and Langmuir, 21 C. L .T. 562 ; 37 C. L. J. 824. Where 
 the executors take under a devise and not under the 
 statute, a caution need not be registered to retain the 
 fee in them: Mercer v. Neff, 29 0. E. 680; Ee Hew- 
 ett & Jermyn, 29 0. E. 383. Where executors are 
 given an express power to sell lands, such power 
 can be exercised by the survivor. This Act does 
 not interfere with express powers of sale given to 
 executors by the will: Ee Koch and Wideman, 25 
 O. E. 262 ; see also Ee Hewitt v. Jermyn, 29 O. E. 
 383; Mercer v. Neff, 29 0. E. 680; see notes to sec. 
 3 ante. 
 
 15. — (1) As to cases where probate has been taken out 
 or letters of administration granted after the ex- 
 piry of the time limited in the section and the effect 
 of the registration of a caution in such cases: see 
 In re Martin, 26 Q. E. 465; In re Baird, 13 C. L. 
 T. 277. Effect of registration of caution after ex- 
 piry of time limit: Ianson v. Clyde, 31 0. E. 579. 
 Construction of section: Ee Bowerman & Hunter, 
 13 0. W. E. 891, 18 0. L. E. 122; and see Byer v. 
 Grove, 2 0. L. E. 755. 
 
 15. — (lc) An administrator who is also the only adult 
 interested in the real estate is not deprived of his 
 right to consent to the registration of a caution. 
 His application to register a caution is sufficient 
 evidence of consent: Ee Hart Estate, 13 0. L. E. 
 379, 9 0. W. E. 285. 
 
 15. — (Id) Effect of order of Judge permitting regis- 
 tration of caution under this section : see Ianson v. 
 
394 CHAPTER 119. 
 
 Clyde, 31 0. B. 579. Ex parte application to register 
 caution: Ee McCully, 23 0. L. E. 156. Leave to file 
 caution: Ee Mills, 3 0. W. N. 1036, 21 0. W. E. 887. 
 Appeal from order allowing registration of caution 
 lies to Divisional Court: Ee McCully, 2 0. W. N. 
 407, 662, 17 0. W. E. 846, 18 0. W. E. 236, 23 0. L. 
 E. 156. 
 
 15. — (3) The effect of the registration of a caution after 
 the expiry of the time therefor is to plaee the. lands 
 of the testator again under the power of the execu- 
 tors so that they can sell them to satisfy debts. The 
 operation of a devise of lands is by the Act only 
 postponed for the purpose of administration: Ian- 
 son v. Clyde, 31 0. E. 579. ' ' Certain points in con- 
 nection with the Devolution of Estates Act :" see art- 
 icle F. P. Betts, 43 C. L. J. 752, where the question 
 of whether title can be made to a purchaser under 
 the provisions relating to belated cautions where 
 there are no unsatisfied debts, and whether in mak- 
 ing title under such a caution, it is not necessary to 
 obtain releases of dower from married beneficiaries. 
 
 18. Co-heirs since 1834 would take in England as joint 
 
 tenants (Owen v. Gibbons, 1902 r 1 Ch. 636), but in 
 Ontario they take as tenants in common: see E. 
 S. 0. 1914, ch. 109, sec. 13. 
 
 19. Where under the will authority to sell real estate is 
 given to executors, the fee simple is impliedly vested 
 in them for that purpose. Where executors get 
 such power under the will, they get it independently 
 of this Act, and can make title without the consent 
 of the Official Guardian : Ee Eoberts and Brooks, 10 
 0. L. E. 395 ; see Ee Koch and Wideman, 25 0. E. 
 262; Ee Fletcher, 26 0. E. 499; Much v. Neff, 29 0. 
 E. 680; and see notes to sec. 3 ante. The consent 
 of the Official Guardian is not necessary to the con- 
 veyance of partnership lands to the surviving part- 
 ner. The Act does not apply to such a case, the 
 property devolving on the personal representative 
 virtute officii and not by virtue of the statute: Ee 
 Fulton and Mclntyre, 7 0. L. E. 445. This Act does 
 not apply to a case where the executor derives his 
 title to the lands from and acts under the will and 
 the provisions of the Trustee Act (E. S. 0. 1914, 
 
CHAPTER 119. 395 
 
 ch. 121) : Mercer v. Neff, 29 0. E. 680. Where the ex- 
 ecutors take under a devise to them on trust to sell, 
 the Official Guardian's consent is not necessary: Ee 
 Booth, 16 0. E. 429. Nor where, though infants 
 were concerned, the land was devised to the execu- 
 tor in trust in fee with power of sale : Ee Dorothy 
 Bryant (unrep. 22 Dec. 1890). Nor where the will 
 did not give the executor the estate on the land, but 
 did give him express power to sell and distribute: 
 Ee Detwiller (unrep. Dec. 22, 1894). The word " de- 
 volve " does not here mean " falling upon by way 
 of succession," but simply " passing:" Ee Booth's 
 Estate, 16 0. E. 429. Where land was sold under this 
 section with the approval of the Official Guardian, 
 and by consent of the widow, free from dower, on 
 the understanding that she was to get a gross sum 
 in lieu of dower, the widow was allowed the gross 
 sum in spite of the opposition of creditors : Ee Eose, 
 17 P. E. 136. Order of Judge at trial sufficient to 
 dispense with consent of Official Guardian: Bel- 
 anger v. Belanger, 2 0. W. N. 543, 24 0. L. E. 439. • 
 Mode of procedure in sale of infant's lands: Ee 
 Sugden, 4 0. W. N. 924, 24 0. W. E. 212. An in- 
 fant's deed is invalid: Beam v. Beatty, 3 0. L. E. 
 345, 4 0. L. E. 554; Confederation Life v. Kinnear, 
 23 A. E. 497 ; Nottingham v. Thurston, 1903, A. C. 6. 
 Infant's lands may also be conveyed under The 
 Settled Estates Act, E. S. O. 1914, ch. 74; the Parti- 
 tion Act, E. S. 0. 1914, ch. 114, sec. 9 ; The Infants 
 Act, E. S. 0. 1914, ch. 153, sec. 5. An infant cannot 
 make a will: E. S. 0. 1914, ch. 120, sec. 11. Notice to 
 Official Guardian: see Con. Eule 971; 1913 Eule 690. 
 Application to Judge for direction and procedure as 
 to taxation : payment'into Court to credit of infants, 
 etc. : see Con. Eule 972 ; 1913 Eules 691, 733. Where 
 the approval of the Official Guardian is not required, 
 notice need not be given to him: Ee Fletcher, 26 
 0. E. 499 ; see H. & L. notes, p. 1217. 
 
 20. An executor or administrator cannot make the lands 
 of the testator the subject of speculation or ex- 
 change by him in the same manner as if the lands 
 were his own: Tenute v. Walsh, 24 0. E. 309. 
 Where lands are conveyed to husband and wife 
 they now take as tenants in common, and the hus- 
 band can, under this Act as administrator of his 
 
396 CHAPTER 119. 
 
 wife and in his own right, make a valid convey- 
 ance of the whole lands, although there are no debts 
 to pay : Ee Wilson and Toronto Incandescent Light 
 Co., 20 0. E. 397. Where there is a devise of the 
 fee simple, directly or impliedly under the will to 
 the executors, they take the lands independently of 
 this Act : see Ee Eoberts and Brooks, 10 O. L. E. 
 395; Ee Koch and Wideman, 25 O. E. 262; Ee 
 Fletcher, 26 0. E. 499; Mercer v. Neff, 29 0. E. 680; 
 and the provisions of sec. 13 do not apply: Hewitt 
 v. Jermyn, 29 0. E. 387. As to general representa- 
 tive capacity of administrator in regard to realty: 
 see E. S. O. 1897, ch. 59, sec. 61; and H. & L. notes, 
 pp. 339, 342; E. S. 0. 1914, ch. 62, sec. 56, 57. 
 
 21. — (1) Power of executors to sell: see sees. 3, 20, 21, 
 of this Act, and E. S. 0. 1914, ch. 121, sees. 20, 44, 47. 
 The power to sell for payment of debts is not quali- 
 fied by sub-sec. 2. That sub-section was intended to 
 make it clear that executors had power to sell for 
 purposes of distribution where there were no debts, 
 and the consent of the official guardian on behalf 
 of infants, lunatics and non-concurring heirs and 
 devisees is only necessary where the sale is for pur- 
 poses of distribution only: Ee Eoss and Davies, 7 
 0. L. E. 433. See also Ee Bradley's Estate, 6 0. L. 
 E., at p. 399. 
 
 21. — (2) Where there is no necessity to sell for pay- 
 ment of debts, the administrator has ho power to 
 sell in face of the objection of adult beneficiaries: 
 Ee Mallandine, 10 C. L. T. 226. Administrator sell- 
 ing against wish of adult heir, and Without filing 
 belated caution: see Byerv. Grove, 2 0. L. E. 754; 
 note to sec. 13 ante. Construction of ex post facto 
 operation of this section: Ee Bowerman and Hun- 
 ter, 13 0. W. E. 891, 18 0. L. E. 122. 
 
 21. — (5) An administrator desired to sell certain lands 
 pursuant to his powers under this section. There 
 were certain heirs who were sui juris, but whose 
 concurrence had not been got because of the delay 
 and expense involved. Held proper for the Official 
 Guardian to approve of the sale pursuant to his 
 powers under the section, after making the usual 
 enquiries as in a case of infant heirs : Ee Bradley's 
 Estate, 6 0. L. E. 397. 
 
CHAPTER 119. 397 
 
 24. — (2) Where land " has become " vested in heir and 
 without conveyance, effect of words " shall be- 
 come " and repeal of 3 W. & M., ch. 4, Statute of 
 Fraudulent Devises : Beer v. Williams, 15 0. W. E. 
 868, 1 0. W. N. 702, 21 0. L. E. 49. Comment on 
 Beer v. Williams, 21 0. L. E. at p. 51: see 46 0. L. 
 J. 594. Vesting of estate in legatee on " assent " 
 of executor and consequences flowing therefrom: 
 see Attenborough v. Solomon, 1913* A. C. 76 ; Thorne 
 v. Thorne, 1893, 3 Ch. 196. Devise of real estate 
 in trust: mortgage by equitable tenant for life: Ee 
 Atkinson, 1908, 2 Ch. 307. 
 
 25. The executor of a deceased lessor can make a valid 
 renewal of a lease pursuant to the covenant of the 
 testator to renew: Ee C. P. E. and the National 
 Club, 24 0. E. 205. Where infants are concerned, 
 executors and administrators have power under 
 this section to mortgage lands: Ee Bennington, 18 
 C. L. T. 239. Application for approval of lease un- 
 der clause (6) must be made to the Court and not 
 to a Judge in Chambers : Ee Montgomery, 1 0. W. 
 N. 999. 
 
 26. No right to creditors to follow real assets in hands 
 of purchaser given by Land Transfer Act, 1897, 
 
 , Statutory advertisements : unknown liabilities : see 
 Ee Cary and Lotts Contract, 1901, 2 Ch. 463. Unless 
 20 years (Eng.) have elapsed since the death of the 
 testator who has charged his real estate with pay- 
 ment of his debts, the vendor selling under the 
 power given by the charge is not bound to answer 
 the purchaser's enquiry whether any debts of the tes- 
 tator remain unpaid, and the purchaser ought not 
 to make the enquiry, as he will get a good title even 
 if there are no debts : Tanqueray Williaume v. Lan- 
 dau, 20 Ch. D. 465. This does not apply to a case 
 of an executor selling leaseholds: Be Whistler, 35 
 Ch. D. 561; Ee Venn, 1894, 2 Ch. 101. Where will 
 contains devise to executors for various purposes, 
 including payment of debts, no presumption arises 
 within statutory period that the debts are paid, and 
 the purchaser; has no right to be informed as to 
 them. The Ontario statutory law is the same as 
 the English. law: see Ee Tanqueray, 20 Ch. D. 465; 
 Ee Mackay and Nelson, 4 0. W. N. 1607, 24 0. W. E. 
 963. 
 
ggg CHAPTER 119. 
 
 27. See Ee Wood, Wood v. Wood, 1902, 2 Ch. 542. 
 
 28. What are " advancements:" Boyd v. Boyd, L. E. 
 
 4 Eq. 305; Taylor v. Taylor, 20 Eq. 155. Eelease 
 by son of intestate: claim by grandchildren: ad- 
 vancement : Ee George Lewis, 29 O. E. 609. Intes- 
 tacy in respect of beneficial interest in share of resi- 
 due : bringing advances into hotchpot : see Ee Eoby, 
 Howlett v. Newington, 1907, 2 Ch.' 84. See as to 
 hotchpot: Ee Ford, Ford v. Ford, 1902, 2 Ch. 605. 
 
 29.— (1) A husband is benficially entitled to a share in 
 the personal property of his wife on her decease 
 because of his marital relationship and right, and 
 in the same way, to a share in her land by virtue of 
 this section. If he renounces this marital right be- 
 fore marriage and in order to it, the law cannot re- 
 place him in the benefit out of which he has con- 
 tracted himself: Dorsey v. Dorsey, 29 O. E. 475; 
 30 O. E. 183. Husband's rights : see Lamb v. Cleve- 
 land, 19 S. C. E. 78. 
 
 30. The Statute of Distributions was drawn with the 
 intention of superseding the common and canonical 
 law by the rules of the civil law. The common an- 
 cestor is disregarded, and one reckons up to the 
 deceased's father as one degree and from the 
 father down as one degree, making brothers and 
 sisters two degrees, whereas in canonical law there 
 is but one : see Armour on Devolution, 244, et seq., 
 especially sub-tit.: "Mode of Distribution." In 
 case of a partial intestacy of the beneficial interest 
 in residue of personal estate, the analogy of the 
 Statute of Distributions applies as to the persons 
 to take the shares, but not as to the doctrine of 
 hotchpot: Ee Eoby; Howlett v. Newington, 198, 1 
 Ch. 71. Where a sole executor and universal lega- 
 tee predeceases the testator there is an intestacy 
 and children who have received advances must bring 
 them into hotchpot before receiving their shares: 
 Ee Ford: Ford v. Ford, 1902, 2 Ch. 605. Under 
 various orders, allowances were made to the pre- 
 sumptive next of kin of a lunatic, who were to 
 account for such allowances if they survived the 
 lunatic. The lunatic died a bachelor and intestate. 
 One of the persons to whom allowances had been 
 made died in the lifetime of the lunatic, leaving 
 
CHAPTER 119. 399 
 
 children: Held that the children took per stirpes 
 under the Statute of Distributions as representing 
 their parent, but were under no obligation to ac- 
 count for allowances made to her: In re Gist: 
 Gist v. Timbrill, 1906, 2 Ch. 280, 75 L. J. ch. 657. 
 The words ' ' next of kin " in an English will which 
 contains a legacy to next of kin of a deceased 
 foreign subject must be construed according to 
 English law, and so construed may mean — in the 
 absence of any reference to the Statute of distribu- 
 tions — the nearest blood relations in an ascending 
 and descending line including those of the half 
 blood: Ee Ferguson's Will, 1902, 1 Ch. 483. 
 Children of father's deceased sister held entitled 
 to the exclusion of grandchildren of mother's 
 brothers: Ee McEachern, 10 O. L. E. 499. Eep- 
 resentation among collaterals: see Crowther v. 
 Cawthra, 1 0. E. 128. Distribution of intestate's 
 estate: father's shares see Arkell v. Eoach, 5 
 O. E. 699 ; Ee Quimby, Quimby v. Quimby, 5 O. 
 E. 738. " Entitled under the Statutes of Distribu- 
 tion:"' illegitimate next of kin: see Ee Wood, 
 Wood v. Wood, 1902, 2 Ch. 542. The division of 
 personal estate among descendants of an intestate 
 is per stirpes and not per capita: Ee Natt, Walker 
 v. Gammage, 37 Ch. D. 517. Where brothers and 
 sisters are entitled to share in an intestacy the 
 children of a deceased brother or sister of the 
 intestate are entitled to share per stirpes : Walker 
 v. Allen, 24 A. E. 336. In the distribution under 
 this Act of the real and personal estate of an 
 intestate, brothers and sisters of the half blood 
 share equally with those of the full blood: In re 
 Wagner, 6 O. L. E. 680; see also Ee Adams, 6 O. 
 L. E. 697. As to father's share and ehange made by 
 this Act: Armour, Devolution, p. 275. " Kindred " 
 defined: Ee Goodman's Trusts, 17 Ch. D. 266. 
 " Eight heirs according to the law of descent in 
 Ontario : Ee Bower, 9 O. L. E. 199. For table of dis- 
 tributive shares of beneficiaries in intestacy, see 
 Bicknell and Kappele's Practical Statutes, p. 633. 
 See also as to distribution, Armour, Devolution, pp. 
 273 et seq. 
 
 31. See Armour, Devolution, p. 277 ; Keilway v. Keilway, 
 2 P. Wms. 344. 
 
4Q0 CHAPTER 120. 
 
 32. The rule that executors are not bound to pay pecu- 
 niary legacies before a year, does not prevent them, 
 where no time is fixed and there is sufficient to pay 
 debts, legacies, and charges, from paying a legacy 
 forthwith: Ee Holland, 3 0. L. R. 406. See as to 
 lapse of one year before administration, H. & L. 
 notes p. 366. 
 
 CHAPTER 120. 
 
 The Wills Act. 
 
 Refer to Theobald on Wills (Can. notes), Jarman 
 on Wills, Williams on Executors, White and Tudor 's 
 Leading Cases, Hawkins on Wills, Kingsford 
 (Can.), Walkem (Can.), Underbill and Strahan In- 
 terpretation of Wills ; Bicknell and Kappele, Practi- 
 cal Statutes, pp. 645-658. 
 
 2. — (a) The word " possibility " includes a right of re- 
 entry for condition broken: In re Melville, 11 0. R. 
 626. The possibility of reverter on a fee simple con- 
 ditional is a right of entry devisable under the Wills 
 Act: Quaere whether it is an " estate ": Pember- 
 ton v. Barnes, 1899, 1 Ch. 544. As to estate pur 
 autre vie : see Armour, R. P., p. 274. 
 
 3. By the Ontario Statute, 36 Vict. ch.. 20 (see sec. 27 
 post), the English legislation of 1837, was adopted 
 and wills were thereafter presumed to speak from 
 death, unless a contrary intention appears. Prior 
 to 1874, there was no special legislation in Ontario 
 respecting wills of personalty. Wills of realty date 
 from 32 Henry VII. ch. 1, and 34 and 35 Henry Vn. 
 ch. 5, but it was not until 12 Car. II. ch. 24, con- 
 verting other tenures into fee simple, that the power 
 to will lands became general. By 29 Car. II. ch. 3, 
 sec. 5, signature, and 3 or 4 credible witnesses 
 were required. A witness or his wife was not a credi- 
 ble witness, if a beneficiary. This was changed by 25 
 Geo. II. ch. 6, which made only the gift void, while the 
 will remained valid. The statute of 1834, 4 William 
 TV. ch. 1, dealing with wills of realty of persons 
 dying after 6th March, 1834, enabled after acquired 
 
CHAPTER 120. 401 
 
 real estate to be devised, abolished the necessity 
 for words of limitation, and made two witnesses 
 subscribing in the presence of each other sufficient. 
 22 Vict. ch. 34, sec. 16, dealt with the wills of married 
 women in regard to their separate estate (see sees. 
 6 and 9 (5) notes) : see Armour, E. P., pp. 405-407. 
 A will was made in 1868, republished by cqdi- 
 cil in 1870. The devisee, to whom land was deviseft 
 without words of limitation, died in 1874, and the 
 testator in 1877. Held that E. S. O. 1877, ch. 106, 
 sec. 7 et seq., did not apply and that under the 
 former law the devise lapsed: Zumstein v. Hedrick, 
 8 O. E. 338. Eepublication of will of married wo- 
 man : Noble v. Willock, L. E. 2 P. 276. Eepublica- 
 tion, execution of codicil at later date: Ee Eraser, 
 1904, 1 Ch. 726; Ee Hunter, 25 O. L. E. 400 (see pp. 
 403-4. See Armour, E. P., p. 406. 
 
 4. See Zunstein v. Hedrick, 8 O. E. 338 ; Armour, E. P., 
 
 p. 407, 90. 
 
 5. See Armour, E. P., pp. 403, 405; Armour, Titles, p. 
 
 348. 
 
 6. C. S. U. C. 73, sec. 16 (E. S. O. 1877, sec. 6), only 
 
 removed the disability of coverture in respect of 
 the wills of married women, not the disability of in- 
 fancy: Ee Murray Canal, 6 O. E. 685; Smith v. 
 Smith, 5 O. E. 690. C. S. U. C. 73, did not authorize 
 a married woman to devise her property otherwise 
 than to or among her children. Any disposition 
 in favour of her husband or otherwise was void, and 
 there was an intestacy as to the portion so disposed 
 of : Mitchell v. Weir, 19 Gr. 568 ; see also Jordan v. 
 Frogley, 8 O. W. E. 265. A married woman could 
 not devise her property to one of several children 
 to the exclusion of others : Munro v. Smart, 26 Gr. 
 37, 310, 4 A. E. 449; Ee Ontario L. & S. Co. v. 
 Powers, 12 O. E. 582. She could devise separate 
 estate, even where her husband had been in posses- 
 sion of it before 4th May, 1859 (see E. S. O. 1897, 
 ch. 163, sec. 5): Ee Hilliker, 3 Ch. Ch. 72; see 
 Armour, E. P., p. 407. As to wills of married wo- 
 men made after 1st January, 1874 : see E. S. 0. 1914 
 ch. 149, sec. 4. 
 
 S.A.— 26 
 
402 CHAPTER 120. 
 
 7. Amour, Titles, p. 349. 
 
 9. " Every Person may:" As to law regarding a sound 
 and disposing mind: see Dew v. Clark and Clark, 2 
 Addams 79 ; Smith v. Tebbitt, 16 T. L. Eep. 811. As 
 to " sanity " and " a disposing mind," under this 
 « Act: see note to R. S. 0. 1914, ch. 68, sec. 2 (e). 
 Testamentary capacity: see Robertson v. McOuet, 
 17 0. W. R. 852. iDasane delusions: Mclntee v. 
 Mclntee, 22 O. L. R. 241. Senile dementia: Mal- 
 colm v, Ferguson, 14 0. W. R. 737, 1 0. W. N. 77; 
 McGarrigle v. Simpson, 1 0. W. R. 685. Mental ca- 
 pacity: see Kaulbach v. Archbold, 31 S. C. R. 387; 
 Bell v. Lee, 8 A. R. 185; Skinner v. Farquharson, 
 32 S. C. R. 58; McHugh v. Dooley, 10 B. C. R. 537; 
 Smee v. Smee, 5 P. D. 84. A greater scope of general 
 capacity is needed where the whole of a man's prop- 
 erty is being dealt with (e.g., as by a will) than when 
 he deals with a single piece by way of contract: 
 Jenkins v. Morris, 14 Ch. D. 674 ; Thamer v. Jundt, 
 22 0. W. R. 206, 3 0. W. N. 1307. If a testator is 
 able to understand the nature of the act and its 
 effects, the extent of the property he is disposing 
 of, to comprehend and appreciate the claims to 
 which he should give effect, and no insane delusion 
 brings about a disposition of it, which if the mind 
 were sound would not have been made, then he is 
 competent to make a will: Badenach v. Inglis, 29 
 0. L. R. 165; Banks v. Goodfellow, L. R. 5 Q. B. 
 549. Onus as to capacity: Madill v. McConnell, 12 
 0. W. R. 452, 17 0. L. R. 209; Badenach v. Inglis, 
 4 0. W. N. 716, 1495, 29 0. L. R. 165; Freeman v. 
 Freeman, 19 0. R. 141 ; McLaughlin v. McLaughlin, 
 26 S. C. R. 646; Ernes v. Ernes, 11 Gr. 325; Ingoldsby 
 v. Ingoldsby, 20 Gr. 131; Martin v. Martin, 15 Gr. 
 586; Sproule v. Watson, 23 A. R. 692. From the 
 passing of 36 Vict. ch. 20, sec. 6, the word "testator " 
 included ' ' married women. ' ' This remained the law 
 until R. S. 0. 1887, when the clause interpreting 
 " person " and " testator " as including married 
 women was omitted, and her statutory right to make 
 a will relegated to the Married Women's Property 
 Act: (See now R. S. 0. 1914, ch. 149, sec. 4). The 
 clause, R. S. 0. 1897, ch. 128, sec. 9 (5), does not ap- 
 pear in the present Act. See sec. 27 (2.). See 
 Armour, Titles, pp. 359, 360; R. P., pp. 410, 411. 
 
CHAPTER 120. 403 
 
 " Person " and " testator " do not include an in- 
 fant (see see. 11), even though a married woman: 
 Smith v. Smith, 5 0. E. 690; Ee Murray Canal, 6 
 O. E. 685. An Indian can make a will: Johnson v. 
 Jones, 26 O. E. 109 : see E. S. C. ch. 81, sec. 25. As 
 to convicts: see E. S. C. 146, sec 1033. 
 
 As to what may be devised. 
 
 Prior to the Wills Act, leaseholds did not prima 
 facie pass as lands : : Eose v. Bartlett, Cro. Car. 292. 
 Since Wills Act, might pass as real estate, sec 2 (d) : 
 see Swift v. Swift, 1 De G. F. & J. 160. Appurten- 
 ances: House and lands described by metes and 
 bounds, include a room not within the boundaries : 
 Potts v. Bovine, 16 O. E. 152. House and dwelling 
 include curtilage, garden and outbuildings: Ee 
 Stokes, 21 O. L. E. at p. 467. Interests in expect- 
 ancy and reversionary interests are ' ' lands : " Ee 
 Melville, 11 O. E. 626. " Estate " may include all 
 testator's property: Kirby Smith v. Parnell, 1903, 
 1 Ch., at p. 490. " Money:" see Ee Bramley, 1902, 
 p. 106; O'Connor v. O'Connor, 1911, 1 Ir. 263; Ee 
 Daly, 39 S. C. E. 122, at p. 135. " Money in Bank:" 
 Ee Mann, 1912, 1 Ch. 388. " Effects:" Hall v. Hall, 
 1892, 1 Ch. 361; Hammill v. Hammill, 9 O. E. 530. 
 " Chattels " may include choses in action as well 
 as choses in possession: Ee McMillan, 4 0. L. E. 
 147; Ee McGarry, 18 O. L. E. 525. " Mortgages " 
 may pass legal estate, subject to Devolution of 
 Estates Act: Hawkins, p. 65. " Eents and profits " in 
 absence of other disposition will vest lands: Haw- 
 kins 158 ; Ee Booth and Merriam, 2 O. W. N. 1268. 
 Gift of income may vest corpus: Ee Chambers, 16 
 O. L. E. 62; Ee Hunter, 24 O. L. E. 5. Unrestrained 
 power of disposition may vest corpus : Ee Bethune) 
 7 0. L. E. 417. See also Armour, E. P., p. 410, and 
 pp. 156, 379 (entry for condition broken) 233 (ex- 
 ecutory interests). 
 
 11. A married woman under age cannot make a valid 
 will: Ee Murray Canal, 6 O. E. 685. Armour, E. 
 P., pp. 296, 410-411. 
 
 12,— (1) Where the. witnesses could not be found nor 
 their handwriting proved, a motion to have the will 
 established on the consent of all parties interested 
 
404 CHAPTER 120. 
 
 was refused on the ground that not sufficient evi- 
 dence was adduced that the will was the will of the 
 testator under this section : Williamson v. "William- 
 son, 17 0. B. 734. The attesting witnesses must 
 attest and subscribe as directed in the statute, no 
 such latitude being given them as to the testator, 
 who may acknowledge his signature: O'Neill v. 
 Owen, 17 0. E. 525; Scott v. Scott, 13 0. E. 551. 
 Where there is a devise of land to an attesting wit- 
 ness, there is intestacy as to this devise, and the 
 heir is not bound to elect between this land a legacy 
 bequeathed to him by the will: Munsie v. Lindsay, 
 1 0. E. 164; see Armour Titles, pp. 349, 354-357; 
 Armour, E. P., 407-408. Presence of attesting wit- 
 ness: Brown v. Skirrow (1902), P. 3. Acknowledg- 
 ment of signature: McNeill v. Cullen, 35 S. C. B. 
 510; Williamson v. Williamson, 17 0. E. 734; Kreh 
 v. Moses, 22 0. E. 307; Scott v. Scott, 13 0. E. 551. 
 Foreign will may be valid though unattested {e.g. 
 under French law), and be admitted to probate, but 
 will not operate so as to. import sec. 28 : Ee D 'Este ; 
 Poulter v. D'Este, 1903, 1 Ch. 898. Where witnesses 
 could not be found and will was holograph: see Ee 
 Young, 27 0. E. 698. See Digest English case law, 
 XV. col. 347-366, " Attestation;" also XV. col. 335- 
 347, ' ' Signature of testator. ' ' 
 
 12. — (2) Will on separate sheets of paper, some of which 
 were re-written after execution : 'Neill v. Owen, 17 
 0. E. 525. 
 
 13. As to exercise of general power by general devise: 
 see sec. 30. Where there is a special power, a right 
 of selection out of a limited class: see Ee Sawdon, 
 3 0. W. N. 136. This section will not extend to a 
 power to appoint by deed only (1 Sugden on Powers, 
 369). As to power to appoint by will only: see Phil- 
 lips v. Cayley, 43 Ch. D. 222 ; and as to power to ap- 
 point part of a fund: Ee Wilkinson, 1910, 2 Ch. 216. 
 Execution is invalid if not in accordance with the 
 statute, even though in accordance with instrument 
 creating the power: Baretto v. Young, 1900, 2 Ch. 
 339; Ee Pryce, 1911, 2 Ch. 286. The formalities 
 required apply to all documents purporting to exer- 
 cise a power to appoint which are testamentary in 
 form, whether the power is a power to appoint by 
 
CHAPTER 120. 405 
 
 will or a power to appoint by deed or writing: Re 
 Barnett, Dawes v. Ixer, 1908, 1 Ch. 402. Armour 
 Titles, p. 357. 
 
 14. " Mobilization " is a fair test whether a soldier is or 
 is not in actual military service : Gattward v. Knee, 
 (1902), P. 99; May v. May (1902), P. 103. Will of in- 
 fant soldier: Re Hiscock (1901), P. 78. Testamentary 
 passage in letter: Re Spratt (1897), P. 28. When a 
 letter contains passages unmistakably testamentary, 
 the general testamentary character will not be af- 
 fected by the fact that it also shews an intention to 
 draw up a more formal document at a later date : In 
 the goods of Scott (1903), P. 243. Armour, R. P., p. 
 409, Bicknell & Kappele Prac. Stats., p. 650, Eno 
 Laws of Eng., vol. XII., p. 596. As to wills of sea- 
 men : see the Merchant Shipping Act, 57, 58 Vic, ch. 
 60, esp. sees. 177, 260. 
 
 16. Armour, R. P., p. 409, Titles, p. 354. 
 
 17. One of the residuary legatees was witness. . Held : 
 the residue was to be distributed rateably among 
 the other residuary legatees as if the witness were 
 non-existent : Farewell v. Farewell, 22 O. R. 573. A 
 legacy invalid because the legatee's husband was 
 a witness to the will was held validated by a reviv- 
 ing codicil witnessed by independent witnesses: 
 PurceU v. Bergin, 20 A. R. 535, 23 S. C. R. 101. The 
 will is to be construed before the effect of section 17 
 is considered : Aplin v. Stone, 1904, 1 Ch. 543. In a 
 case of devise " to A. absolutely and in case of her 
 death, without heirs, to B," where A. was a witness, 
 the gift to A. being void, the gift to B. took effect at 
 once : in Re Maybee, 8 O. L. R. 601. Devise of rent 
 directed to be paid to trustee : see Hopkins v. Hop- 
 kins, 3 O. R, 223. A legatee signed as a wit- 
 ness and afterwards, on being advised of the effect 
 of this, the will was also signed by the solicitor for 
 the testator as witness, the name of the legatee not 
 being struck out. Evidence was admitted to shew 
 the actual facts and the legatee not necessarily in- 
 
 - capacitated : Re Sturgis, 17 O. R. 342 ; but see Little 
 v. Aikman, 28 IT. C. R. 337. Where land is devised 
 to an attesting witness there is intestacy as to such 
 devise, and the heir is not bound to elect as between 
 this land and a legacy bequeathed to him by the 
 
406 CHAPTER 120. 
 
 will: Munsie v. Lindsay, 1 0. E. 164; see also as to 
 extent of rule making bequest to witness, invalid: 
 in Ee Munsie, 10 P. E. 98 ; Munsie v. Lindsay, 1 0. E. 
 164, 11 0. E. 520; Morrison v. Morrison, 9 0. E., at 
 p. 225. Husband of devisee as witness: Crawford 
 v. Boyd, 22 Gr. 398. Where a will is attested by 
 two witnesses, and a third who is a devisee, also 
 subscriber as witness, a devise to him is void : Little 
 v. Aikman, 28 U. C. E. 337. Where the devise to the 
 witness was of the whole estate, the will was wholly 
 inoperative. A previous will, which had been re- 
 voked by the inoperative will, was under the doc- 
 trine of " dependant relevant revocation," admitted 
 to probate : Ee Tuckett, 9 0. W. E. 979. Where a 
 testator has signed his name in the presence of two 
 witnesses and at his request they attest his signa- 
 ture, the execution is complete, and if a third person 
 afterwards adds his name, the Court will not come 
 to the conclusion without cogent evidence that the 
 third person signed as an attesting witness: Ee 
 Sharman, A. E, 1869, L. E. 1, P. & D. 661; Ee 
 Smith, 15 P. D. 2. For example where the devisee 
 and executor signed thinking he had to do so in that 
 capacity and knowing that two witnesses not bene- 
 fiting were necessary and had signed as such: Ee 
 Lomas, 9 0. W. E. 975. Where there is an ab- 
 solute gift to the wife of an attesting Witness with 
 an alternative contingent gift to her children in the 
 event of her being dead at the period of distribu- 
 tion, there is an intestacy if the wife is living at the 
 period of distribution: Aplin v. Stone, 1904, 1 Ch. 
 543. Validity of document as will notwithstanding 
 invalidity of bequests : Freel v. Eobinson, 18 0. L. E. 
 651. Armour Titles, p. 353, E. P., p. 409. 
 
 18. Armour Titles, p. 353, E. P., p. 409. 
 
 19. Armour, E. P., p. 409. 
 
 20. Application of Corresponding English Act to others 
 
 than " British subjects ": Ee Groos (1904), P. 269. 
 " Personal estate " includes leaseholds: Ee Grassi; 
 Stubberfield v. Grassi, 1905, 1 Ch. 584. 
 
 21. Eevocation of will by marriage revokes declaration 
 
 of trust therein as to insurance policy : Ee Watters, 
 13 0. W. E. 385. Eevocation by marriage : Ewbank 
 
CHAPTER 1?0. 407 
 
 v. Halliwell, 2 Bro. C. C. 220; Be Bussell, 15 P. D. 
 Ill; Ee Eeid, 35 L. J., P. 43, L, E. 1 P, 74; Mette v. 
 Mette, 28 L. J., P. 117. Will made in contemplation 
 of marriage : Be Gadywold, 27 L. J., P. 36 ; Jackson 
 v. Hurlook, Amb. 489. Power of appointment exer- 
 cised by will: Ee Fenwick, L. E. 1 P. 319; Be Fitz- 
 roy, 1 Sw. and Tr. 133; Be McVicar, L. B. 1 P. 671; 
 Be Worthington, 25 L. T. 853; Hodsden v. Uoyd, 2 
 Bro. C. C. 534. Armour, Beal Property, pp. 411-414. 
 
 22. The birth of a child after the making of a will does 
 not revoke the will: Ee Tobey, 6 P. B. 272. 
 
 23. Bevocation: insufficient where will lost: Sugden v. 
 Lord St. Leonards, 1 P. D. 154; Stewart v. Walker, 
 6 0. L. B. 495. Where the testator as he supposes 
 duly executes a second will and says in effect, "Now 
 I have executed this will, the former will and codicil 
 are of no use, ' ' and destroys them, and the later will 
 turns out ineffective, the earlier one is not revoked 
 and may be admitted to probate. But if the testator 
 says in effect, " Whatever I do, I intend to cancel 
 this as my will from this time forth," the will is 
 revoked: Scott v. Scott, 1 Sw. & Tr. 258; Clarkson 
 v. Clarkson, 2 Sw. & Tr. 497; Be Elizabeth Middle- 
 ton, 3 Sw. & Tr. 583 ; Dancer v. Crabb, L. B. 3 P. & 
 D. 98; Dixon v. Solicitor (1905), P. 42; Be Tuckett, 
 9 0. W. B. 979; see also in Be Parker, 20 Gr, 289. 
 Partial destruction: see O'Neill v. Owen, 17 (J. B. 
 525. Bevocation by subsequent will: see Purcell v. 
 Bergin, 20 A. B- 535, 23 S. C. E. 101 (sub mm. Mac- 
 donell v. Purcell). Destruction should take place in 
 the presence of the testator : Be Tobey, 17 O. B. 525. 
 Any alteration or revocation made in or of the pro- 
 visions of a will after 1 Jan., 1874, must be attested 
 with same manner as a will ; and that notwithstand- 
 ing the will was made prior to that date: Smith v. 
 Miriam, 25 Gr. 383. Tearing off name: animus can- 
 cellandi: Crooks v. Cummings, 6 IT. C. B. 305. 
 See Armour, B. P., pp. 414, 415. Will torn up 
 by testator when intoxicated ; pieces pasted together 
 by him when sober : Be Brassington, 1902, P. 1. De- 
 struction of a will after execution of codicil : Beards- 
 ley v. Lacey, 67 L. J., P. 35. Execution of will in 
 duplicate : evidence of revocation : Atkinson v. Mor- 
 ris, 1897, P. 40. Each sheet of will signed and at- 
 tested, all purporting to be executed on same date; 
 
4_Qg CHAPTER 120. 
 
 first two sheets in reality re-copied, resigned and at- 
 tested eighteen months after the last three sheets: 
 Leonard v. Leonard, 1902, P. 243. Mode of revoking 
 wills and admissibility of evidence of intent: Freel 
 v. Robinson, 18 0. L. R. 651. Second document con- 
 taining no revoking words: Re Molson; Ward v. 
 Stevenson, 21 0. L. R. 289. Revocation of will by 
 will: Dig. Eng. Case Law, XV., col. 376. Of will by 
 codicil: lb., col. 380. Of codicil by codicil: lb., col. 
 384. Of codicil by revocation or re-execution of wills 
 lb, col. 386. By deeds and other writings : Jb. col. 
 388. By destruction or mutilation: lb. col. 424. 
 
 24. Where a testator after execution of his will makes 
 
 alterations without further signature or attestation 
 and then by codicil conforms " his will " it is a ques- 
 tion of construction what the instrument is which 
 the testator intended to confirm: In re Hay, Kerr 
 v. Stinnear, 1904, 1 Ch. 317. Erasures : Re Brasier, 
 1899, P. 36. "Apparent": see Finch v. Combe, 
 1894, P. 191. Armour, R. P., pp. 408, 414; Armour 
 Titles, pp. 355-6. Alterations, additions and omis- 
 sions : see Dig. Eng. Case Law, XV. col. 298. 
 
 25. A will which has been revoked cannot be revived by 
 
 codicil unless the intention to revive it appears on 
 the face of the codicil either by express words or by 
 a disposition of the testator's property inconsistent 
 with any other intention or by expressions convey- 
 ing with reasonable certainty the existence of such 
 intention : Purcell v. Bergin, 20 A. R. 535, 23 S. C. R. 
 101 (sub nom. Macdonell v. Purcell). A reference 
 in a codicil to a revoked will and the removal of an 
 executor named therein and the substitution of an- 
 other in his place are not sufficient to revive the will : 
 Purcell v. Bergin, 20 A. R. 535, 23 S. C. R. 101 {sub 
 nom, Macdonell v. Purcell) ; see also as to confirm* 
 atory codicils : Holmes v. Murray, 13 O. R. 756 ; and 
 intention to revive will: McLeod v. McNab, 1891, 
 A. C. 471. Revival and republication : Dig. Eng. Case 
 Law, XV. col. 446. 
 
 26. A testator bequeathed all his personal estate to his 
 
 wife and devised his lands to his executors in trust 
 for her for life and then over. After the date of the 
 will the testator sold his land and took back a mort- 
 gage for the purchase money. It was held that this 
 
CHAPTER 120. 409 
 
 section had not the effect of making the devise ap- 
 plicable to the interest in the land which the testa- 
 tor had at his death by reason of the mortgage ; the 
 mortgage was personal estate and fell under the 
 absolute bequest to the widow : Re Dods, 1 0. L. E. 
 7. Where fee acquired by foreclosure: Legrus v. 
 Cockerell, 5 Sim. 384; Silberschildt v. Schiott, 3 V. 
 & B. 45. Arrears of interest on mortgage debt : Gib- 
 bon v. Gibbon, 22 L. J. C. P. 131. Mortgagee in pos- 
 session : Bower v. Barlow, L. B. 8 Ch. 171. Property 
 sold and mortgage back taken: Moor v. Raisbeck, 
 1 Sim. 123; Re Clowes, 1893, 1 Ch. 214. Land under 
 execution : Re Anthony, 1892, 1 Ch. 450. See Locke 
 King's Act, sec. 37 notes. 
 
 27. — (1) A testator devised to A. " the property on H. 
 Street " and gave tall jthe residue of his estate, 
 " which I shall be entitled to at my decease," to B. 
 He afterwards acquired other property on H. 
 Street. The after-acquired property on H. Street 
 was held not to go to A., but to fall into the residue : 
 Morrison v. Morrison, 9 0. R. 223, 10 0. R. 303. See 
 also where there was a specific exception of the af- 
 ter-acquired land from the devise : Vansickle v. Van- 
 sickle, 9 A. R. 352. The use of the word " now " in 
 the case of a bequest of ' ' all the furniture and stock 
 in trade now in the house, ' ' did not limit the bequest 
 to the date of the will. Although the bequests were 
 specific bequests they were bequests of that which 
 is generic and might be increased or diminished: 
 In re Holden, 5 O. L. R. 156. Devise of " Walker- 
 field," which " I now reside upon," was held to 
 speak from the death of the testator in spite of deal- 
 ings with the lands devised by selling portions and 
 purchasing other lands adjoining and contracting to 
 build a dwelling which remained unfinished : Halton 
 v. Bertram, 13 0. R. 766. Where a testatrix had a 
 mortgage which she bequeathed to A. and left the 
 residue of her estate to B., and subsequently col- 
 lected the mortgage and bought land with the pro- 
 ceeds, B. was entitled to the lands : Hammill v. Ham- 
 mill, 9 0. R. 530. When a right of entry for breach 
 of condition exists, upon the breach of condition no 
 hew estate is acquired: Re Melville, 11 0. R. 626; 
 see Armour Titles, p. 360, R. P. 411. Where a tes- 
 tator devises a named house which has a plot of 
 
410 CHAPTER 120. 
 
 ground attached and subsequently builds other 
 houses on the plot, the houses so built pass under 
 the gift: Ee Evans, Evans v. Powell, 1909, 1 Ch. 
 784. A declaration of trust as to insurance policy- 
 contained in will speaks from date of death and not 
 from date of making will so as to bring the effect 
 of the declaration within statutory provisions 
 passed after the date of the will: Re C. 0. F. and 
 McHutcheon, 14 0. W. R. 251. Application of prin- 
 ciple of this sec. : Re Hunter, 3 0. W. N. 529, 24 0. 
 L. R. 5, 25 0. L. R. 400. But, as against a subsequent 
 declaration, a declaration made by will altering or 
 diverting the amount of insurance going to preferred 
 beneficiaries is deemed to have been made at the date 
 of the will: R. S. 0. 1914, ch. 183, sec. 171 (4). Lands 
 acquired after date of will : Re Mackenzie Estate, 24 
 0. W. R. 678, 4 0. W. N. 1392. Subsequent contract to. 
 purchase: Re Portal & Lamb, 30 Oh. D. 50. After 
 acquired freeholds : Cave v. Harris, 57 L. J. Ch. 62. 
 After acquired stock : Hotharn v. Sutton, 15 Ves. 319. 
 Will speaking from death, " where I now reside." 
 The use of ' ' now ' ' is not necessarily evidence of con- 
 trary intention: Re Willis, 1911, 2 Ch. 563; and a 
 similar rule is applied in the case of personal estate : 
 Re Holden, 5 O. L. R. 156 (ante) ; Re Ashburaham, 
 1912, W. N. 234. At common law leases acquired 
 after date of will did not pass without clear evidence 
 of intention: James v. Dean, 11 Ves. 383. Person- 
 alty owned at death passed: Dudes v. Graham, 16 
 Gr. 167. To rebut the statutory presumption, evi- 
 dence must be jstrong: Re Stokes, 1 0, L, R. 464. 
 Contrary intention : see Re Evans, Evans v. Powell, 
 1909, 1 Ch. 784; Re Atkins, 3 0. W. N. 665, 21 0. W. 
 R. 238. Evidence of contrary intention may be de- 
 duced where there is a specific bequest of property 
 applicable only to property existing at date of will : 
 Emuss v. Smith, 2 DeG. & Sm. 722; Re Clifford, 
 1912, 1 Ch. 29. A testator left so many shares to A. 
 After the date of the will and before the testator's 
 death the value of the shares was reduced from £50 
 to £10 by dividing them. The legatee was only en- 
 titled to take the number of shares left him by will 
 of the value of £10 each : Re Gillins, Inglis v. Gillins, 
 1909, 1 Ch. 345. A testator bequeathed " money in- 
 vested in " a certain stock, which at the date of his 
 will he owned. At the date of his death this stock 
 
CHAPTER 120. ±\\ 
 
 had been converted into another stock. Held that 
 the second stock did not pass by the gift : Re Slater, 
 Slater v. Slater, 1906, 2 Ch. 480. This provision 
 leaves the question open whether a particular pro- 
 perty passes by the specific or residuary devise : Ee 
 Portal & Lamb, 30 Ch. D. 50. Bequest of stock : see 
 also Bothamley v. Sherson, L. B. 20 Eq. 304. 
 
 The general rule as to donees is that the description 
 applicable at the date of the will governs: Re Den- 
 ton, 25 O. L. R. 505, 26 O. L. R. 302. Gift to the 
 " wife of A." means prima facie the wife known to 
 the testator and living at the date of the will and not 
 to a subsequent wife: Re Coley; Hollinshead v. 
 Coley, 1903, 2 Ch. 102; Re Burrows, 10 L. T. 184. 
 Gift to " wife " refers to person so known at date 
 of will: Marks v. Marks, 40 S. C. R. 210; but see 
 provisions of the Insurance Act: R. S. O. 1914, 
 ch. 183, sec. 178 (3). Gift to children by first 
 marriage: only children by second and third 
 marriage at date of will: children of second mar- 
 riage take : Ling v. Smith, 25 Gr. 246. Does a will 
 operate from death: see article 48 C. L. J. 251. 
 
 27. — (2) Will made during coverture: Re James, Hole v. 
 Bethune, 1910, 1 Ch. 157. 
 
 28. This section applies only to lapsed devise: unneces- 
 sary in case of lapsed bequest: Carter v. Haswell, 
 26 L. J. Ch. 57j6. " When a testator has executed 
 a will in solemn form you must assume he did not 
 intend to make it a solemn farce and that he did not 
 intend to die intestate. You ought, if possible, to 
 read the will so as to lead to a testacy, not an in- 
 testacy," per Esher, M. R. : in Re Harrison, 1885, 30 
 Ch. D. 390. The statute is remedial and should be 
 construed liberally: Walsh v. Fleming, 10 O. L. R. 
 226. What amounts to a residuary devise: lb. 
 Where there is a devise of realty to two devisees and 
 one dies, they would have taken as tenants in com- 
 mon (R. S. O. 109, sec. 13), and the lapsed share 
 goes into the residue, but where there is a bequest 
 of personalty to two and one dies the survivor takes 
 all, as they would have taken as joint tenants: Re 
 Gamble, 8 O. W. R. 797, 13 O. L. R. 299 ; see Armour, 
 R. P., pp. 419-421. A devise of " all other freehold 
 
412 CHAPTER 120. 
 
 tenements at W. and elsewhere " is a good residuary 
 devise: Mason v. Ogden, 1903, A. C. 1. Residuary 
 clause: Smith v. Smith, 22 0. L. R. 127. Lapsed 
 legacies : see Ee Smith, 7 0. L. R. 619. A devise of 
 " the residue of my estate " will pass the residue 
 of the lands though misdescribed : Doyle v. Nagle, 
 24 A. R. 162. Contrary intention: see Hawkins, p. 
 55 ; citing Skrymsher v. Northcote, 1 Sw. 750 ; Hum- 
 ble v. Shore, 7 Hare 247 ; but as to these cases : see 
 Re Allen, 1903, 1 Ch. 276, and Re Quimby, 3 O. W. N. 
 97. And see also as to contrary intention : Hawkins, 
 p. 54; Underhill, p. 159; Re Conger, 19 0. L. R. 499. 
 No devisee can take under the will of a testator 
 whose death has been caused by the felonious act of 
 the devisee: Lundy v. Lundy, 24 S. C. R. 650. 
 
 29. See Armour, R. P., p. 418. 
 
 30. Where there is power to appoint among a class, if no 
 
 selection is made all members take equally: Rule in 
 Brown v. Higgs ; Hawkins, p. 77, et seq. ; McPhail v. 
 Mcintosh, 14 0. L. R. 312. A deed of trust provided 
 that certain lands should go to the settlor's children 
 in default of appointment by deed. Afterwards he 
 made his will under seal and. devised " all the rest 
 of my estate, real and personal, to which I shall be 
 entitled at my death," to one of the three children; 
 this residuary devise was held no execution of the 
 power nor even such a defective execution as 
 equity could aid: Shore v. Shore, 21 0. R. 54. 
 Such words as " all the property which comprises 
 my estate in England as well as in France," in a 
 foreign will not attested in conformity with English 
 law is not such an indication of the will as to im- 
 port this "section of the Wills Act so as to operate as 
 a general power of appointment: In re Scholefield, 
 Scholefield v. St. John, 1905, 2 Ch. 408, 74 L. J., Ch. 
 610. An appeal from this decision was compro- 
 mised : 75 L. J. Ch. 720. A foreign will containing 
 no indication that it is to be construed with refer- 
 ence to English law, does not import sec. 30 of the 
 Wills Act so as to operate as an exercise of a gen- 
 eral power of appointment: in Re Price; Tomlin v: 
 Latter, 1900, 1 Ch. 442, 69 L. J., Ch. 225; In re 
 D'Este, Poulter v. D'Este, 1903, 1 Ch. 898, 72 L. J. 
 Ch. 305. Bequest of personal property described in 
 
CHAPTER 120. 413 
 
 a general manner : gift of all stocks, shares and se- 
 curities: Ee Jacob, Mortimer v. Mortimer, 1907, 1 
 Ch. 445. Power to tenant for life to charge all or 
 part of settled property; gift of remainder of per- 
 sonalty ; charge on realty : see in Ee Slavin, Marshall 
 v. Wolseley, 1906, 2 Ch. 459. Appointment under 
 special power by will dated prior to will creating 
 the power, held not within the legal presumption of 
 this Act, even supposing it were possible to exer- 
 cise such a power by anticipation : Ee Hayes, Turn- 
 bull v. Hays, 1901, 2 Ch. 529. Exercise of power of 
 appointment by general devise by will: Ee Eoss, 1 
 0. "W. N. 867. Executing power of appointment by 
 residuary bequest: Ee "Wilkinson, 1910, 2 Ch. 216. 
 This section has no application to the case of limited 
 powers such as those exercisable with reference to 
 beneficiaries under the Insurance Act, -but only to 
 cases where the testator has power to appoint in 
 any manner he may think proper: Ee Cochrane & 
 A. O. U. W., 11 O. W. E. 956, 16 0. L. E. 328. Appli- 
 cation of this section to insurance policies : Ee Saw- 
 don, 3 0. W. N. 136, 20 0. W. E. 181. Exercise of 
 power: document " purporting to be a will ": Ee 
 Broad, 1901, 2 Ch. 86. " Appoint, devise and be- 
 queath ": Ee Mayhew, 1901, 1 Ch. 677. " Give, de- 
 vise, bequeath and appoint ' ' : Kent v. Kent, 1902, p. 
 108. Appointment to trustees to convert real estate : 
 Ee Eedgate, 1903, 1 Ch. 356. Limited power; exer- 
 cise by will: Ee Bradshaw, 1902, 1 Ch. 436; Ee 
 Oliver's Settlement, 1905, 1 Ch. 191; Ee Beale, 1905, 
 
 1 Ch. 256; Ee Bowles, 1905, 1 Ch. 371. Construction 
 of power: power arising on death or second mar- 
 riage of widow: Ee Shuckburgh's Settlement, 1901, 
 
 2 Ch. 794. General power, income: Ee Marten; 
 Shaw v. Marten, 1901, 1 Ch. 370. Cy-pres, general 
 intent : Ee Eising, 1904, 1 Ch. 533. Limited power : 
 donee appointing to himself: Taylor v. Allhusen, 
 1905, 1 Ch. 529 : see also Ee Davies Trusts, L. E. 
 13 Eg. 163 ; Ee Saunders, 1898, 1 Ch. 457 ; Stevens v. 
 King, 1904, 2 Ch. 30; Bayfus v. Lawley, 1903, A. C. 
 411; Ee Peacock, 1902, 1 Ch. 522; Ee Seabrook Gray 
 v. Baddeley, 1911, 1 Ch. 151. Execution of power 
 by devise or bequest in general terms : see Dig. Eng. 
 Case Law, X col. 1435, et seq. Before the Wills 
 Act: lb. col. 1448. Under the Wills Act: lb. col. 
 1453. 
 
414 CHAPTER 120. 
 
 31. Where there is an immediate devise in fee and then 
 a gift over on the death of the first devisee without 
 leaving children or issue, the prima facie meaning 
 of the testator is that the gift over is to take effect 
 on a death without children, not confined to the tes- 
 tator's lifetime, but at any time: Edwards v. Ed- 
 wards, 15 Beav. 357; O'Mahony v. Burdett, L. E. 
 7 H. L. 388; Cowan v. Allen, 26 S. C. R. 292. A 
 devise " to my son M. 50 acres during his lifetime 
 and then to go to his children if he has any, but if 
 he has no issue to be divided equally among my 
 grandsons " gave a. life estate with remainder in 
 fee to the children and not an estate tail: Chandler 
 v. Gibson, 2 0. L. R. 442. Gift of rents with gift 
 over on failure to fulfil conditions held an equitable 
 estate in tail: Crumpe v. Crumpe, 1900, A. C. 127. 
 Repugnant condition : Hutt v. Hutt, 3 0. W. N. 131, 
 20 0. W. R. 185. A devise to the testator's wife 
 absolutely and in the event of her death to be divid- 
 ed equally among her children, was construed as 
 meaning " in the event of her death during the tes- 
 tator's lifetime," and the widow took an estate in 
 fee simple : Re Walker and Drew, 22 0. R. 332. Re- 
 marks on application of section: lb., p. 335: see 
 Armour, R. P., p. 418. 
 
 32. See Sparks v. Wolf, 25 A. R., p. 326, and esp. re- 
 marks of Moss, J.A., on meaning and construction 
 of this section at pp. 336-7. The Act abolishing 
 primogeniture placed no interpretation on the word 
 heirs. Therefore, where a will made after it was 
 in force devised property in certain contingencies 
 to ' ' the heirs " of a person named, such heirs were 
 all the brothers and sisters of such person and not 
 his eldest brother only : Sparks v. Wolf, 25 A. R. 326, 
 29 S. C. R. 585. As to wills made before 1 Jan., 1852, 
 up to 5 March, 1880: see Tylee v. Deal, 19 Gr. 602; 
 Baldwin v. Kingstone, 18 A. R. 63, and appendix; 
 also R. S. 0. 127, sec. 37, and notes thereto : see Ar- 
 mour, R. P., p. 205 (and footnote), also pp. 418-9. 
 
 33. Where specific property is expressly excepted from 
 
 a residuary bequest for the purpose of bequeathing 
 it to a particular legatee, the property so excepted 
 will, if the particular bequest fails to take effect, fall 
 back into the residue : Blight v. Hartnoll, 23 Ch. D. 
 
CHAPTER 120. 415 
 
 218, This rule does not apply where the particular 
 legatee dies in the lifetime of the testator who then 
 makes a codicil referring to such legatee's death 
 and confirming the will containing the exception : Re 
 Fraser: Lowther v. Fraser, 1904, 1 Ch. 726. This 
 section is to be construed strictly and is confined 
 to cases where the word " issue " is used or some 
 word of precisely the same legal import, and does 
 not extend to cases where the word " heirs " is 
 used : Re Brown and Campbell, 29 0. R. 402. A gift 
 to " heirs " or " heirs of body," coupled with gift 
 to an ancestor, creates one estate in fee simple or 
 fee tail : Rule in Shelley's Case, 1 Co.- Rep. 88b. Re- 
 cent applications of the rule, see McKinnon v. 
 Spence, 20 O. L. R. 57; Re McAllister, 24 O. L. R. 1, 
 25 0. L. R. 17; Van Grutten v. Foxwell (1897), A. 
 C. 658. The failure of issue referred to in the sec- 
 tion is failure at the death and not an indefinite fail- 
 ure: see Jarman on Wills, 5th Ed., pp. 521, 1321; 
 Marten v. Chandlar, 26 0. R. 81 ; see Armour, R. P., 
 p. 421-2. "Death without issue": see Dig. Eng. 
 Case Law, XV. col. 1012, et seq. 
 
 36. Where there was a gift to a brother and sister for 
 
 their lives and after their death to their children 
 their heirs and assigns forever share and share alike 
 and the brother predeceased the testator; it was 
 held that there was an intestacy as to the brother 's 
 share, as the gift was to tenants in common : Rudd v. 
 Harper, 16 O. R. 422. Effect in change in law or 
 will made prior to 1 Jan., 1874 : Zumstein v. Hedrick, 
 8 0. R. 338. Devisee held to take life estate: see 
 McG-arry v. Thompson, 29 G. R. 287. " Heirs," 
 " heirs according to will:" Re Sawdon, 20 0. W. R. 
 181, 3 0. W. N. 136. 
 
 37. This section does not apply to gifts to a class: Re 
 Moir, 14 0. L. R. 541; Re Hannah Hunt, 5 0. L. R. 
 197; Re Bauman, 1 0. W. N. 293. In case of gifts 
 to a class the shares of members of the class dying 
 before the testator do not pass to the issue of those 
 so dying, but go for other members of the class: 
 Olney v. Bates, 3 Drew 319; Stewart v. Jones, 
 3 De G. & J. 532: Higgins v. Dawson, 1902, A. C. 1; 
 Re Harvey's Estate, 1893, 1 Ch. 567; Re Coleman 
 and Jarroh, 1876, 4 Ch. D. 165; Re Williams, 5 0. L. 
 
416 CHAPTER 120. 
 
 E. 345, 2 0. W. R. 47; Re Clark, 8 0. L. R. 599, 4 0. 
 W. R. 414 ; Re Sinclair, 2 0. L. R. 349. " All the resi- 
 due of my estate I give in equal shares to all my 
 children, except J., as she already has had more than 
 the others. Her share or a double share, shall go to 
 M. " M. predeceased the testator, leaving issue. Held 
 that M., being specially named, did not avail to change 
 the rule, and M.'s share went to other members of 
 the class and not to his issue : Re Moir, 9 0. W. R. 
 858, 14 0. L. R. 541; Re Stanhope's Trusts, 27 Beav. 
 201 ; Shaw v. McMahon, 2 Con. & L. 528 ; Re Feather- 
 stone 's Trusts, 22 Ch. D. 111. A testatrix di- 
 rected her estate to be divided into four equal 
 shares, one share to be paid to each of her four 
 children. One child predeceased her intestate, 
 leaving a husband and two children. Held under 
 this section that the husband took one-third of 
 one quarter share and the children the rest : Re 
 Hannah Hunt, 5 0. L. R. 197. Where, however, no 
 member of the class is alive at testator's death, all 
 born subsequently take : Underhill, p. 309 ; Hawkins, 
 p. 93. As to child en ventre sa mere: Hawkins, p. 
 104; Re Salaman (1908), 1 Ch. 4; Re Griffiths (1911), 
 1 Ch. 246. Where " words of futurity " are used, 
 after-born members of the class may take : Hawkins, 
 pp. 92, 97 : Armour, R. P., p. 420. 
 
 " Child or other issue:" McNeil v. Stewart, 1 0. W. 
 N. 19. Applicability to gifts to collateral relatives: 
 Re Gresley, 1911, 1 Ch. 358. Application of section 
 to annuity to sister of testator: Re Denton, 25 0. 
 L. R. 505, 26 0. L. R. 294. " Child or other issue " 
 means " legitimate child or other legitimate issue ": 
 Hargraft v. Keegan, 10 0. R. 272. Issue take only 
 subject to any right of advancement against the par- 
 ent : Re Carter, 20 0. L. R. 127. " Shall die "—where 
 the devisee had in fact died before the execution of 
 the will, the heir of the devisee was entitled : Re Bau- 
 man, 1 0. W. N. 493. Devise to children and issue of 
 children dying before testator and his wife: rights 
 of issue of deceased child: Re Street and Nelson, 
 17 0. L. R. 50, 12 O. L. R. 339. Will following 
 words of act : Re Greenwood : Greenwood v. Sut- 
 cliffe, 1912, 1 Ch. 392. " Living at the death of the 
 testator ": child en ventre sa mere: Re Griffiths, 
 1911, 1 Ch. 246. Principle of the section : Johnson 
 
CHAPTER 120. 417 
 
 v. Johnson, 3 Hare 157 ; • Pearce v. Graham, 32 L. 
 J. iCh. 359; Re More 's Trust, 10 Hare 178. Effect 
 of the section: Mower v. Orr, 7 Hare 473; Bark- 
 worth v. Young, 4 Drew 1 ; Wisden v. Wisden, 2 Sm. 
 & G. 396; Re Hone's Trusts, 22 Ch. D. 663; Re 
 Hensler, 19 Ch. D. 612; Re Parker, 31 L. T. p. 8; 
 Re Mason, 6 N. R. 193; Edger v. Furnivall, 17 Ch. 
 D. 115. Application of section: Re Mathe, 2 0. 
 W. N. 327, 17 O. W. R. 656. Lapse: see Dig. Eng. 
 Case Law^ XV. col. 1596. 
 
 38. Locke King's Act: A testator^ devised to his three 
 daughters three named parcels of land and directed 
 that if the mortgage thereon was not paid each of 
 the daughters should pay $150 to assist in meeting 
 the debt. Held that the devise was merely of an 
 equity of redemption and the daughters were not 
 entitled to hold their lands exonerated from the 
 mortgage (some $4,000) on payment of the $150: 
 Re Goulet, 10 O. L. R. 197. A testator specifically 
 devised to A. land which was incumbered. He left 
 a legacy of $5,000 to B. and did not make any dis- 
 position of the residue except as follows : " I charge 
 my estate with payment of all incumbrances upon 
 said lands at the time of my death. ' ' Held that the 
 residue was charged with payment of the mortgage 
 debt to the exclusion of the land specifically devised. 
 Such residue was treated as if one fund and all 
 personalty, and out of it all debts, including the 
 mortgage debt, was paid and then the legacy, the 
 balance if any, to go to the heirs-at-law and next 
 of kin : Scott v. 'Supple, 23 O. R. 393. The Devolu- 
 tion of Estates Act has not superseded these -sec- 
 tions but is to be read in conjunction with them. 
 Mortgaged land devised by will is primarily liable 
 to pay its own burdens, unless the will otherwise 
 directs by such terms as distinctly and unmistak- 
 ably refer to the mortgage debts : Mason v. Mason, 
 13 O. R. 725. A direction to trustees to whom a 
 mixed residue of real and personal estate was de- 
 vised on trust for sale to pay out of the proceeds 
 of sale the testator's funeral expenses and debts 
 " except charges and mortgage debts, if any, on 
 property specifically devised," was sufficient evi- 
 dence of " contrary or other intention," to throw 
 
 S.A.— 27 
 
4X8 CHAPTER 120. 
 
 the discharge of a mortgage existing at the date of 
 the testator's death, on lands specifically devised: 
 In re Valpy, Valpy v. Valpy, 75 L. J. Ch. 301, 1906, 
 1 Ch. 531. Lien for- unpaid purchase money on 
 land which the testator had contracted to buy: 
 mortgage greater than value of property: right to 
 disclaim: see Re Kensington, 1902, 1 Oh. 203. Ex- 
 pression of intention to exonerate: Ee Bank's 
 Trusts,- 1905, 1 Ch. 547. "Good will" does not 
 pass to a mortgagee not in possession de facto. A 
 legatee of goodwill of a business takes it free from 
 the mortgage debt: Re Bennett, Clarke v. White, 
 1899, 1 Ch. 316. " Persons claiming through or 
 under the deceased:" Re Ritson, 1899, 1 Ch. 128. 
 Where land subject to execution unsatisfied at the 
 testator's death, the execution must be paid by the 
 devisee of the land in exoneration of the testator's 
 general personal estate: Re Anthony, 1892, 1 Ch. 
 450. The donee of an option under a will to pur- 
 chase land at a fixed price is entitled, when he ex- 
 ercises the option, to a conveyance free of incum- 
 brance: Re Wilson, Wilson v. Wilson, 1908, 1 Ch. 
 839. Where mortgaged land is devised and there is 
 a direction to pay the mortgage out of other realty, 
 and this proves insufficient, the mortgaged property 
 is only exonerated to the extent of the substituted 
 property: Re Birch, Hunt v. Thorn, 1909, 1 Ch. 
 787. Liability of freehold property for debt to 
 bank: Re Hawkes, Reeve v. Hawkes, 1912, 2 Ch. 
 251. This section leaves in force the equitable rule 
 as to paying pecuniary legatees in priority to devi- 
 sees, where the personalty or residuary estate fails 
 to answer both: Re Auston, 2 O. W. N. 1357, 19 
 O. W. R. 684. Locke King's Act applies to vendor's 
 lien: Re Cockcroft, 24 Ch. D. 94; Re Kershaw, 37 
 Ch. D. 674; Re Kidd, 1894, 3 Ch. 558. Beneficiary 
 takes subject to taxes accrued prior to testator's 
 death: Mackay v. Mackay, 4 O. W. N. 300; but 
 see Re Watkins, 12 B. C. R. 97. " Contrary or 
 other intention": Re Fry, Fry v. Fry, 1912, 
 1 Ch. 86; Re Campbell, 1893, 2 Ch. 206- Re Fleck, 
 37 Ch. D. 677; Re Smith, 33 Ch. D. 195. Implied 
 exoneration : Re Nevill, 59 L. J. Ch. 511 ; Re Bull, 
 49 L. T. 592. Application: see Bancroft v. Mil- 
 ligan, 4 0. W. N. 1605, 5 O. W. N. 506. See Re 
 Chrysler, 13 O. W. R. 613. 
 
CHAPTER 121. 419 
 
 CHAPTER 121. 
 
 The Trustee Act. 
 
 Refer to: White and Tudor 's Leading Cases; 
 Brett's Leading Cases; Lewin, Underhill on Trusts; 
 Jarman, Theobald on Wills ; Williams on Executors ; 
 Bicknell and Kappele, Practical Statutes, pp. 387- 
 398, 402-404, 407. 
 
 2. — (q) " Trustee " includes an executor de son tort: Re 
 Preston, 13 0. L. R. 110. A " trustee with a bene- 
 ficial interest in the trust estate is not a bare trus- 
 tee: Morgan v. Swansea, 9 Ch. D. 582. Ror is an 
 unpaid vendor who lets the purchaser into posses- 
 sion before execution of conveyance : Cunningham 
 v. Frayling, 1891, 2 Ch. 567; see also Christie v. 
 Ovington, 1 Ch. D. ,279 ; see Armour, Titles p. 130 
 (and foot note), and p. 332. 
 
 4. — (1) "Appoint another person or persons " means 
 some person or persons other than the person ap- 
 pointing. The personal representative of the last 
 surviving trustee cannot appoint himself : In re 
 Sampson, Sampson v. Sampson, 1906, 1 Ch. 435. 
 _ Appointment of new trustee when trustee goes to 
 reside " abroad "—meaning of ." abroad:" Re 
 James Curran, 2 O. W. N. 1268, 19 O. W. B. 501. 
 Appointment of new trustees by donee of power — 
 ousting personal representatives of .surviving, trus- 
 tee: Re Routledge. Saul v. Routledge, 1909, 1 Ch. 
 280. Last surviving trustee: personal representa- 
 tive: executor not proving: Re Boucherett, Barne 
 v. Erskine, 1908, 1 Ch. 180. In some circumstances 
 a married woman may be appointed trustee in place 
 of a deceased trustee : Re Gough, 3 O. L. R. 206 ; 
 Re Kaye, 1866, L. R., 1 Ch. 397. An appointment 
 of new trustee invalid under the trust instrument 
 may be valid under the statute ; retroactivity of the 
 state considered: McLachlin v. Usborne, 7 O. 
 R. 297. "Person nominated for the purpose:" 
 Bankrupt and absconding trustee: appointment of 
 new trustee: Re Wheeler and DeRochow's Set- 
 tlement, 1896, 1 Ch. 315. Appointment of new. 
 
420 CHAPTER 121. 
 
 • trustees : see Article 48 C L. J. 322 : see Dig. Eng. 
 Case Law, XIV. col. 551. Appointment under statu- 
 tory powers : lb. col. 567 . 
 
 4.— (2) Principles by which the Court will be guided 
 in appointing new trustee of settled estate: Ee 
 Jones' Trusts, 1 0. W. N. 418, 532. The Court pos- 
 sesses no jurisdiction to allow a trustee to retire 
 from his post without appointing a new trustee in 
 his place: Ee Chetwynd's Settlement, 1902, 1 Ch. 
 692. 
 
 4. — (4) Appointment of trustee in place of executor: See 
 H. & L. notes, p. 366. 
 
 4. — (6) New trustee is vested with powers, authorities, 
 " and discretions " as if originally appointed ': Ken- 
 nedy v. Kennedy, 28 0. L. E. 1. 
 
 5.— (1) Where an appointment of new trustees is duly 
 made under the statute the legal estate, by virtue 
 of this section, vests in the new trustees so ap- 
 pointed, even though it was not vested in the parties 
 making the appointment: In re Hunter and Pat- 
 terson, 22 0. E. 571. Declaration of trust by equit- 
 able mortgagor: London & County Banking Co. v. 
 Goddard, 1897, 1 Ch. 642. 
 
 6. Where a sale was carried through but no assignment 
 or transfer of the mortgage debt was executed and 
 the vendor company became dissolved, the Court 
 made an order vesting in the purchasers the mort- 
 gage debt and such estate as was vested in the 
 vendor company at the date of dissolution: Ee 
 General Accident Assurance Corporation, 1904, 1 
 Ch. 147. Dissolution of company; petition for new 
 trustee by new company, and vesting order appoint- 
 ing: see Ee Bomore Eoad (No. 9), 75 L. J. Ch. 
 157, 1906, 1 Ch. 359. Vesting orders: see Judi- 
 cature Act, E. S. 0. 1914, ch. 56, sec. 72. 
 
 There is no rule of construction that a gift to a child 
 ' ' born ' ' within a specified period will extend to 
 a child still " en ventre sa mere " at that period. 
 That construction will only be adopted when it is 
 for the benefit of the unborn child: Villar v. Gil- 
 bey, 1907, A. C. 139; Blasson v. Blasson, 2 DeG. 
 
CHAPTER 121. 421 
 
 J. & S. 665; Ee Salaman, DePass v. Sonnenthal, 
 1907, 2 Ch. 46, reversed 1908, 1 Ch. 4. 
 
 15. Where there was a sale of a company's assets but 
 by inadvertence no transfer of- certain patents was 
 executed and the company became dissolved, the 
 legal interest in the letters patent became vested in 
 the Crown (if anywhere), and the Court had no 
 jurisdiction under this section to make a vesting 
 order: Ee Taylor's Agreement, 1904, 2 Ch. 737. 
 Vesting stock in name of infant : Ee De Haynin, 
 1910, 1 Ch. 223. 
 
 19. The Court may proceed though some of the parties 
 
 interested are not before it: see Con. Eule 202, 
 H. & L. notes p. 362, 1913 Eules 79 et seq. 
 
 20. Where a person in the position of executor is found 
 selling or mortgaging his testator's estate, he is to 
 be presumed to be acting in the discharge of his 
 duties as executor unless there is something in the 
 transaction which shews the contrary: Ee Venn 
 and Furze's Contract, 1894, 2 Ch. 101; see also as 
 to enquiries as to payment of debts : Ee Tanqueray- 
 Williaume v. Landau, 20 Ch. D. 465; Ee Whistler, 
 35 Ch. D. 561: see E. S. O. 1914, ch. 119, sec. 26, 
 notes. 
 
 22. The solicitor to receive money under this section 
 must be a solicitor appointed by the trustee him- 
 self: Ee Hetling and Merton, 1893, 3 Ch. 269 
 Powers of attorney for trustee : Be Hetling and 
 Merton 's Contract, 1893, 3 Ch, 269. Misappropria- 
 tion by solicitors of executors: Ee Lord de Clif- 
 ford, 1900, 2 Ch. 707; Clark v. Bellamy, 27 A. E. 
 435; (see Murdy v. Burr, % O. L. E. 310, legisla- 
 „ tively overruled, 3 Edw. VII. ch. 7, sec. 26). When 
 can a trustee appoint an attorney: see Article 48 
 C.L.J. 288. 
 
 26. What amounts to money " paid upon any trust 
 or for a limited purpose " within the mean- 
 ing of the section: see Grey v. Eichmond, 22 
 O. E. 256; McMillan v. McMillan, 21 Gr. 594; 
 Moore v. Mellish; 3 O. E. 174. 
 
422- CHAPTER 121. 
 
 28. This does not apply where no discretion is given the 
 trustees as to investments: Be Bichardson, 3 
 W. N. 1473. Nature of investments: " securities," 
 company shares, debentures, second mortgages, 
 land: Ee J. H. 25 0. L. E. 133. Municipal corpora- 
 tions are to invest their sinking funds in trustee in- 
 vestments under this Act : E. S. 0. 1914, ch. 192, sec. 
 303. 
 
 30. The power to vary investments applies to all invest- 
 ments authorized by the Act, whether made under 
 the Act or not: e. g., where securities were invested 
 under an instrument which contained no power to 
 vary: Hume v. Lopez, 61 L. J. Ch.-423, 1892, A. C. 
 112; but see Manchester Eoyal Infirmary v. A. Qt. 
 59 L. J. Ch. 370, 43 Ch. D. 420. " Trust funds " 
 includes money invested on security as well as un- 
 invested cash: per Lord Watson and Lord Mc- 
 Naughton, Hume v. Lopez, 1892, A. C. 112. The 
 power to invest in certain stocks does not authorize 
 trustees to set apart or appropriate any of such 
 stocks to answer a particular purpose, e. g., to pro- 
 vide for an annuity so as to facilitate the distribu- 
 tion of the estate: In re Owthwaite, 60 L. J. Ch. 
 854, 1891, 3 Ch, 494. 
 
 31. Trustees when considering whether trust funds 
 should be invested on mortgage must, notwithstand- 
 ing the opinions of the valuers, solicitors, or other 
 trusted agents, exercise their own judgment as to 
 security. They must regard the transaction not 
 only from the point of view of securing the capital 
 but also consider whether the income of the pro- 
 perty is sufficient to provide interest on the amount 
 advanced. They should reasonably regard the posi- 
 tion of the borrower, but should not advance a sum 
 in excess of the proper amount relying on the bor- 
 rower's financial position: In re Somerset, Somer- 
 set v. Poulett, 62 L. J. Ch. 720, 63 L. J. Ch. 41, 
 1894, 1 Ch. 231. A trustee is not entitled to the 
 protection of the Act unless the report or valua- 
 tion which ultimately proves insufficient, was made 
 upon his own instructions and directed to the parti- 
 cular investment. A trustee is not entitled to the 
 protection unless the investment which has proved 
 deficient, was a proper investment" at the time in 
 all respects other than value : In re Walker, 59 L. 
 
CHAPTER 121. 423 
 
 J. Ch. 386, 62 L. T. 449. General considerations 
 governing the investment of trust funds on mort- 
 gages and principles of valuations : Shaw v. Co tea, 
 1909, 1 Ch. 389. Under a power to invest " in his 
 name or under his legal control " a trustee cannot 
 invest in a contributory mortgage: Ee Dive, Dive 
 v. Eoebuck, 1909, 1 Ch. 328. Advance of more than 
 half value: insufficient security: Palmer v. Emer- 
 son, 1911, 1 Ch. 758. Trustees are entitled to credit 
 pro tanto for defective securities : see H. & L. notes 
 p. 900. See also Blyth v. Flodgate, 63 L. T. 546; 
 see Dig. Eng. Case Law, XIV. 680 et seq. 
 
 34. Liability of trustees for loss on investment: Ee 
 
 Nicholls, Hall v. Wildman, 4 O. W. N. 930, 1511, 
 29 O. L. E. 206. 
 
 35. It is not within the scope of implied authority of a 
 member of a firm of solicitors to make himself a 
 constructive trustee so as to make his partners 
 liable: funds in jeopardy: improper investments: 
 Mara v. Browne, 1896, 1 Ch. 199. 
 
 36. In order to give the Court power to impound the 
 
 interests of a beneficiary, the beneficiary must have 
 " instigated, etc.," some act or omission which is 
 in itself a breach of trust and not some act which 
 only becomes a breach of trust by reason of want 
 of care on the part of the trustees : Ee Somerset, 
 Somerset v. Poulett, 1894, 1 Ch. 231. The words 
 f in writing " apply only to " consent," not to 
 " instigation " or " request:" Griffith v. Hughes: 
 1892, 3 Ch. 105. See also as to application of sec- 
 tion Ee T. 1903, 88 L. T. 13. Eight to impound 
 interest of instigating beneficiary in the hands of 
 an assignee for value: Bolton v. Curre, 1895, 1 
 Ch. 544. Interest of married woman: Eicketts v. 
 Eicketts, 64 L. T. 263. 
 
 37. A trustee does mot entitle himself to relief by prov- 
 ing that he acted reasonably and honestly. He must 
 shew that under all the circumstances he ought 
 fairly to be excused for his breach of trust : National 
 Trustees Co. v. General Finance, 1905, A. C. 373; 
 see also Ee Smith, Smith v. Thompson, 71 L. J. 
 Ch. 411. "Honestly and reasonably:" Smith v. 
 Mason, 1 O. L. E. 594; Henning v. Maclean, 2 O. 
 
424 CHAPTER 121. 
 
 L. R. 169, 4 0. L. E. 666; Dover v. Denne, 3 0. 
 L. E. 664; Pervins v. Bellamy, 1899, 1 Ch. 797; 
 Chapman v. Browne, 1902, 1 Ch. 785; Stewart v. 
 Snyder, 27 A. E. 423; Markham v. Aurora, 3 0. 
 L. E. 609; King v. Matthews, 5 0. L. E. 228; 
 ' Elgin Loan v. National Trust, 7 0. L. E. 1, 10 O. 
 L. E. 41 ; Whicher v. National Trusts, 14 O. W. E. 
 888, 19 0. L. E. 605, 1 0. W. N. 130, 17 O. W. E. 
 788, 2 0. W. N. 383, 22 0. L. E. 460; Ee Mac- 
 <Kay, 1911, 1 Ch. 300; Ee Nicholls, Hall v. Wild- 
 man, 4 0. W. N. 930, 1511, 29 0. L. E. 206; Ee 
 Dive, Dive v. Eoebuck, 1909, 1 Ch. 328. Technical 
 breaches : see Henning v. McLean, 2 O. L. E. 169, 4 
 O. L. E. 666. A trustee is not negligent merely in 
 not prohibiting the mortgagor from granting occupa- 
 tion leases or in failing to insert a clause requiring 
 the mortgaged property to be kept in rejpair : princi- 
 ples of valuation discussed. Shaw v. Cotes, 1909, 1 Ch. 
 389. Did the defendant act as an ordinary prudent 
 man would have done in regard to his own business? 
 How far will Court go to protect trustees: see 
 McDonald v. Trusts and Guarantee Co., 1 0. W. 
 N. 886; Whicher v. National Trusts, 19 0. L. E. 
 605; and cases cited at p. 612; and see sec S. C. 
 22 O. L. E. 460. Where the Court finds that the 
 •trustee has acted both honestly and reasonably, 
 ' there is then a case for the Court to consider 
 whether the trustee ought reasonably to be excused 
 for the breach of trust, looking at all the circum- 
 stances: Whicher v. National Trust, 22 0. L. E. 460; 
 National Trustees v. General Finance Co., 1905, A. C. 
 373 ; Ee Nicholls, Hall v. Wildman, 29 0. L. E, 206. 
 What constitutes a loss flowing directly from breach ' 
 of trust such that executors must make good; Scul- 
 thorpe v. Tipper, 1871, L. E. 13 Eq. 232 ; Ee Nicholls, 
 Hall v. Wildman, 29 0. L. E. 206. Insufficient 
 security — advance of more than half value : Palmer 
 v. Emerson, 1911, 1 Ch. 758. Hazardous security: 
 Shaw v. Cotes, 1909, 1 Ch. 389. Where trustees 
 paid a portion of a trust fund to their solicitor who 
 claimed it under an assignment which shewed on 
 its face a prior charge, but the trustees made no 
 enquiry and did not get production of the assign- 
 ment, it was held that they could not shelter them- 
 selves behind their agent's fraud: Davis v. Hutch- 
 ings, 1907, 1 Ch. 356. Application of this section : 
 
CHAPTER 121. 425 
 
 King v. Matthews, 5 0. L. E. 228. Breach of trust 
 which is not to be excused under this section: see 
 jElgin Loan v. National Trust, 7 0. L. E. 1. Mis- 
 appropriation by solicitors: Be Lord de Clifford, 
 1900, 2 Ch. 707; Wyman v. Paterson, 1900, A. C. 
 271. Pertinence to Municipal Council: see Eoch- 
 ford v. Brown, 3 O. W. N. 343, 20 O. W. E. 591. 
 Application to trusts under mortgage trust deed: 
 Whicher v. National Trust, 22 O. L. E. 460. Ap- 
 plication of funds in payment of costs of officer 
 [incurred in action against him : Eochf ord v. Brown, 
 25 O. L. E. 206. 
 
 38. A trustee " de son tort " is liable to account and 
 entitled to come to the Court under this section 
 and obtain an order allowing him to pay money 
 in: Ee Preston, 13 O. L. E. 110. Infant's money is 
 to be paid into the Supreme Court, not into the Surro- 
 gate Court: Ee Mercer, 3 O. W. N. 1292, 22 0. W. E. 
 217, 26 0. L. E. 427. 
 
 41. — (1) Upon the death before judgment of the sole 
 beneficiary on whose behalf an administrator has 
 brought an action under the Fatal Accidents Act, 
 the action comes to an end. It cannot be contin- 
 ued for the benefit of the beneficiary's estate, nor 
 can a new action be brought by the beneficiary's 
 personal representative : McHugh v. Gr. T. E., 32 0. 
 E. 234, 2 O. L. E. 600 ; but see Darlington v. Eoscoe 
 & Sons (1907), 1 K. B. 219. An action for injury to 
 the person now survives to the executor of the plain- 
 tiff, who can, in case of his death pendente lite, ob- 
 tain an order of revivor and continue the action: 
 Mason v. Peterborough, 20 A. E. 683. This section 
 applies to actions of crim. con. : C. v. D., 10 0. L. E. 
 641. Action by officer commanding militia against 
 municipality in respect of expenses of riot continued 
 by his personal representative : Crewe-Bond v. Cape 
 Breton, 14 S. C. E. 8. Action for infringement of 
 patent: Leslie v. Calvin, 9 0. E. 207. Executor's costs 
 of unsuccessful action : Ee Champagne, St. Jean v. 
 Simard, 7 0. L. E. 537. For Quebec law as to sur- 
 vival of actions: see C. P. E. v. Eobinson, 19 S. C. E. 
 292, 1892, A. C. 481. " When actions survive:" 
 see H. & L. notes, pp. 608-9. Praecipe order of re- 
 vivor : see Con. Eule 296 ; H. & L. notes, pp. 607-613 ; 
 1913 Eule 136. 
 
426 CHAPTER 121. 
 
 41. — (2) An action for seduction survives, the common 
 law being altered by the section to the extent neces- 
 sary to entitle the plaintiff to maintain an action 
 against the representative of the person who com- 
 mitted the wrong: Lince v. Faircloth, 11 O.'L. T. 
 Occ. N. 49. The section does not authorize action 
 against an administrator ad litem, but only against 
 an executor or general administrator clothed with full 
 power : Hunter v. Boyd, 3 0. L. E. 183. Injury to ser- 
 vant: action under E. S. 0. 1914, ch. 146, survives: 
 Casselman v. Brady, 7 0. W. E. 328, 8 0. W. E. 
 198. In the absence of a fiduciary relationship-, ho ac- 
 tion can be maintained against the representatives of 
 any deceased person, unless his estate has profited : 
 Hamilton Provident v. Carnell, 4 0. E. 623. Claim 
 against estate of deceased: unliquidated damages 
 for deceit: actio personalis moritur cum persona: 
 Ee Duncan, Terry v. Sweeting, 1899, 1 Ch. 387. 
 Action of tort for permissive waste and non-repair 
 against executor of deceased tenant for life : Wood- 
 house v. Walker, 5 Q. B. D. 404. . The right of ac- 
 tion for compensation for injury or death by neg- 
 ligence of Government employees does not abate on 
 the demise of the Crown: The King v. Desrosiers, 
 41 S. C. E. 71. Action against executors of a 
 deceased person for obstruction to lights: Jenks 
 v. Viscount Clifden, 1897, 1 Ch. 694. 
 
 41. — (3) " Within one year." It is probably neces- 
 sary that a pending action must, be revived within 
 a year: Hunter v. Boyd, 3 0. L. E. 183, at p. 188; 
 Kidd v. Kidd, 11 0. W. E. 553. 
 
 43. Where a testator appoints special executors of 
 property in Australia, and also general execu- 
 tors, the latter alone can make good title to the 
 testator's real estate in England, without the con- 
 currence of the special executors: Ee Cohen's Ex- 
 ecutors and L. C. C, 1902, 1 Ch. 187. Grant of 
 probate to one of two executors: right of executor 
 to sell: Ee Hewett and Jermyn, 29 O. E. 383. Ee- 
 nunciation of executorship: forfeiture of bequest: 
 see Paton v. Hickson. 25 Gr. 102. Form of renun- 
 ciation : Doe d. Ellis v. McGill, 8 U. C. E. 224. Lia- 
 bility notwithstanding renunciation: Vannatto v. 
 Mitchell, 13 Gr. 665. Eelease of executor not a 
 
CHAPTER 121. 427 
 
 (relinquishment of trust: Berringer v. Hiscott, 6 
 0. S. 23. Withdrawing renunciation: Allen v. 
 Parke, 17 C. Pi 105. 
 
 44. Where the authority to sell real estate is given to 
 executors, the fee simple is impliedly vested in 
 them for that purpose: Ee Eoberts and Brooks, 10 
 0. L. E. 395; Davis to Jones and Evans, 1883, 24 
 Ch. D.. 190. The Devolution of Estates Act does 
 not interfere with an express power of sale given 
 to executors : Ee Koch and Wideman, 25 O. E. 262 ; 
 Ee Fletcher Estates, 26 0. E. 499 ; Mercer v. Neff, 
 29 0. E. 680. Where the real estate devolves on 
 executors by will independently of the Devolution of 
 Estates Act, and the intention of the testator 
 gathered from the Whole will is that the sale and 
 division of the estate shall be carried out by the 
 executors, if the testator has not expressly author- 
 ized the executors to make the sale, they are auth- 
 orized under this section : Ee Eoberts and Brooks, 
 10 0. L. E. 395. As to the meaning of the word 
 " devolve," in the Devolution of Estates Act, to 
 be used in the sense merely of "passing:" see In 
 re Booth's Trusts, 16 0. E. 429. See notes to E. 
 S. 0. 1914, ch. 119, sees. 3, 13, 19. A power to vary 
 and transpose "securities " enables trustees to 
 sell real estate: Be Gent and Eason's Contract, 
 1905, 1 Ch. 387. Where there was a power to sell 
 with;the consent of executors and one executor died, 
 the Court would not force a purchaser to take title 
 from the survivor : Ee McNabb, 1 0. E. 94. But a 
 power of sale to executors as such can be exer- 
 cised by the survivor: Be Koch and Wideman, 25 
 0. E. 262; Ee Ford, 7 P. E. 456. A power to sell 
 does not authorize exchange : Ee Confederation Life 
 and Clarkson, 6 0. L. E. 606. But authorizes a sale 
 on credit: Ee Graham, 17 0. E. 570. Executor sell- 
 ing or mortgaging without concurrence of his co- 
 executor : see Cumming v. Landed Credit, 22 S. C. 
 E. 246. 
 
 46. Lands contracted to be sold: see Be Mclntyre, 7 0. 
 L. E. 548; Armour on Titles, pp. 130, 333, 335. As 
 to the case of a married woman: see Armour on 
 Titles, p. 219; E. S. 0. 1914, ch. 149, sec. 23. 
 
428 CHAPTER 121. 
 
 47. — (1) A testator directed his executors to pay his 
 debts, and subject thereto devised a portion of his 
 estate and directed that the balance after payment 
 iOf the debts should go to his four children iu equal 
 shares. Then, in a paragraph, devised the property 
 to the devisees direct. It was held that a power of 
 sale was given to the executors under this section, 
 and that by sub-sec. 5 the purchasers were released 
 from the necessity of enquiring as to the due exe- 
 cution of the power: Ee Bradburn and Turner, 3 
 0. L. E. 351. A testatrix whose estate was incum- 
 bered gave, by her will, $4,000 to her daughter 
 charged on property, devised to her son, and gave 
 the residue to her son, subject to the said charge. 
 She provided also that in case of the death of either 
 son or daughter, the whole estate was to go to the 
 survivor, and in case of the death of both without 
 issue, to the brothers of the testatrix. It was held 
 that the trustees, either under the Devolution of 
 Estates Act or under this section, and even with- 
 out the concurrence of the son and daughter, could 
 make a good title: Ee Eoss and Davies, 7 0. L. E. 
 433. By a direction that his debts should be paid 
 by his executors, a testator gives an implied power 
 of sale to them, even where the failure of the tes- 
 tator to enumerate certain lands in a subsequent 
 part of his will creates an intestacy as to the 
 part of them in question. Even where the whole 
 -estate is not expressly vested in the trustee, the 
 terms of the will may be such that he devises it 
 so as to create a charge thereon, which the Act, 
 in effect, transmutes into a trust, and thereupon 
 clothes, the executor with power to fully execute 
 the trust by conveying the testator's whole estate: 
 Yost v. Adams, 8 0. E. 411, 13 A. P. 129. Charge 
 'of real estate with payment of debts and, legacies. 
 Devise of real estate to trustees: right to sell: 
 Ee Adams and Perry's Contract, 1899, 1 Ch. 554. 
 "Where the entirety of the testatrix' estate was 
 given to her husband as trustee and executor, 
 though beneficially only for his life, the right to 
 mortgage for debts was held to be given under this 
 provision, and the mortgage being made less than 
 18 months from the testatrix' death, the mortgagee 
 was exonerated from all enquiry: Mercer v. Neff, 
 29 0. E. 680. Mortgage to pay legacies by trustee 
 
CHAPTER 121. 429 
 
 of realty r Lundy v. Martin, 21 Gr. 452. Charge of 
 debts on real estate implies power to sell. Query 
 as to wills which went into effect before 29 Vic, ch. 
 28, sec. 15: Grummett v. Grummett, 14 Gr. 648, 22 
 Gr. 400; see Armour on Titles, pp. 49, 130, 218 
 (footnote), 357-8. 
 
 47. — (2) As to exercise of such powers by adminis- 
 trator with will annexed: Ee Clay and Tetley, 16 
 Ch. D. 3. 
 
 47. — (5) Enquiries as to payment of debts and regular- 
 ity, of executor's proceedings: see Be Tanqueray- 
 Williaume and Landau, 20 Ch. D. 465 ; Re Whistler, 
 35 Ch. D. 561; Re Venn and Furzes' Contract, 1894, 
 2 Ch, 101; notes to sec. 20 ante, and see also, R. S. 
 
 . 0. 1914, ch. 119, sec. 26, notes. See Mercer v. Neff, 
 29 O. R. 680; Re Bradburn and Turner; note to sub- 
 sec. (1) ante; Armour on Titles, p. 49. 
 
 47. — (6) " A devise to any person or persons in fee 
 or in tail or for the testator's whole estate and 
 interest " does not mean a devise of a life estate to 
 one or more persons, and a remainder or remainders 
 to one or more others, jointly or successively, and 
 'with, it may be, executory devises over to still 
 other persons, so that the whole estate is disposed 
 of ; but it means a devise of his whole interest, what- 
 ever it be, whether fee simple or less interest,, to 
 the same person or persons as joint tenants or 
 tenants in common : Re Ross and Davies, 7 O. L. R. 
 433. These words are of general application, and 
 apply to wills coming into operation as well after 
 as before 18th September, 1865 : Gray v. Richmond, 
 22 O. R. 256; see Armour on Titles, p. 49. Where 
 a will creates a charge of debts and legacies on 
 land and contains an executory devise thereof, the 
 executor has continuing power of sale: Re Bar- 
 row in Furness Corporation, 1903, 1 Ch. 339. 
 
 50. See Surrogate Courts Act, R. S. 0. 1897, ch. 59, sees. 
 21 and 63; R. S. O. 1914, ch. 62, sees. 26, 27. These 
 sections, and the jurisdiction of the Surrogate 
 Court are based on the hypothesis of death. As to 
 distinction between void and voidable grants: see 
 Williams on Executors (9th ed.), p. 501. As to 
 
430 CHAPTER 121. 
 
 presumption of death: Williams on Executors, 9th 
 ed., p. 264; Enc. Laws of England, Article " Death: 
 Proof of:" vol. IV., p. 138. 
 
 52. The power of an executor to compromise a claim 
 against the estate of his testator is a power under 
 the common law, and may, in a proper case, be exer- 
 cised where the person making the claim is a co- 
 executor: Ee Houghton; Hawley v. Blake, 1904, 1 
 Ch. 622. See Irwin v. Toronto General Trusts, 
 24 A. E. 484 (overruled by 63 Vic. ch. 15, sec" 2). 
 'Executors have, under this section, the right to 
 apply the money of the estate in the purchase of a 
 release of the widow's dower: Ee Mclntyre, 7 0. L. 
 E. 548. Executors are not protected either by this 
 section or by 53 Vic. ch. 33, sec. 30 (D.) r in making 
 payments in respect of promissory notes signed by 
 the testator, having notice that such notes were 
 made without consideration and intended by the 
 testator as gifts to the payees: Ee Williams, 27 0. 
 E. 405. Are municipal taxes a debt of the testator 
 or an incumbrance payable by the devisee : Ee Wat- 
 kins, 12 B. C. E. 97 ; Mackay v. Mackay, 4 O. W. N. 
 300. See E. S. O. 1914, ch. 120, sec. 38, notes. 
 
 53. Hinde Palmer's Act does not abolish an executor's 
 
 right of preference of one creditor over another 
 before a judgment for administration, but as a re- 
 sult of that Act a simple contract creditor may be 
 preferred by the executor to a specialty creditor: 
 Ee Samson; Bobbins v. Alexander, 1906, 2 Ch. 584, 
 overruling Be Hankey, Smith v. Hankey, 1899. 1 Ch. 
 541. Where there was a deficiency of assets, it 
 was held that it was no defence to an action for 
 entering the warehouse of the deceased and con- 
 verting goods therein to allege as a set-off a debt 
 owing by the deceased: Monteith v. Walsh, 10 P. 
 E. 162. Where one creditor is over-paid he 
 will be ordered to refund at the instance of other 
 creditors. The statute places creditors and legatees 
 in this respect on the same footing : Chamberlen v. 
 Clark, 1 O.'E. 135, 9 A. E. 273. An administratrix 
 has no locus standi to bring such an action :Leiteh 
 v. Molsons Bank, 27 O. E. 621 ; see note to sec 56. 
 There is a " deficiency of assets in case the estate 
 is unable to pay, not only debts, but interest from 
 
CHAPTER 121. 431 
 
 the date, of the administration order : Re Whitaker, 
 1904, 1 Ch. 299. Voluntary creditors rank pari 
 passu with creditors for value: Ee Whitaker, 1901, 
 1 Ch. '9. In the administration of the Ontario 
 estate of a deceased domiciled abroad, foreign cred- 
 itors are entitled to dividends pari passu with On- 
 tario creditors : Milne v. Moore, 24 0. R. 456. Where 
 certain creditors got judgment against the execu- 
 tor, seized and sold the real estate, they were still 
 liable to account, the other creditors being entitled 
 'to have the whole estate distributed pro rata : Bank 
 of B. N. A. v. Mallory, 17 Gr. 102. Execution cred- 
 itors whose writs are in the Sheriff's hands do not 
 lose their priority, nor does a creditor who has a 
 sequestration in the hands of the sequestrators: 
 Meyers v. Meyers, 19 Gr. 185. A secured creditor 
 need not bring his security into hotchpot as a con- 
 dition precedent to ranking on the estate of the 
 deceased: Chamberlen v. Clark, -1 0. R. 135, 9 A. R. 
 273. All distinction between specialty and simple 
 contract debts being abolished for administration 
 purposes, it is no defence for an executor when sued 
 on a promissory note to allege that there are spec- 
 ialty debts more than equal the goods not admin- 
 istered: Parsons v. Gooding, 33 IT. C. R. 499. An 
 administrator being served with a writ at the suit 
 of a simple contract creditor, allowed judgment to 
 go by default and the goods to be sold under execu- 
 tion. At the suit of a specialty creditor he could 
 not set up the defence of no notice. The amount 
 of the sale must be applied in due course of admin- 
 istration: Hutchinson v. Edmison, 11 Gr. 477; see 
 also Taylor v. Brodie, 21 Gr. 607. The fact that a 
 claim against the deceased's estate arose in con- 
 sequence of a breach of duty as trustee gives such 
 a claim no preference over other creditors of the 
 estate: Brock v. Cameron,, 25 Gr. 369; see Bicknell 
 & Seager D. C. Act, 279-280. As to lien of execution 
 creditor on money in sheriff's hands : see Re Hunter, 
 4 O. W. N. 451, 23 0. W. R. 692, 8 D. L. R. 102. 
 
 54. " Purchaser:" Re Lawley, 1911, 2 Ch. 530. 
 
 56. This section corresponds with the English Act, 22 
 & 23 Vic, ch. 35, sec. 29. " Creditors and others " 
 includes next of kin, and the statute is applicable to 
 claims for distributive shares of the assets as well 
 
432 CHAPTER 121. 
 
 as debts and demands in the nature of debts : New- 
 ton v. Sherry, 1 C. P. D. 246. The advertisement 
 need not appear in the " Gazette:" Ee Cameron, 
 Mason v. Cameron, 15 P. E. 272. A notice by execu- 
 tors that " all parties indebted to the estate of the 
 late (testator )are required to settle their indebted- 
 ness " by a named date, and that " parties having 
 claims against said estate are required to file same 
 by said date," is not a sufficient notice within this 
 section to protect executors: Stewart v. Snyder, 30 
 0. E. 110, 27 A. E. 423. Nature of the notice de- 
 pends on the nature and locality of the matter in 
 question: In re Bracken, Doughty v. Townson, 43 
 Ch. D. 1. "Where one of the next of kin who- 
 would, if alive, be entitled to a distributive share 
 had left Canada in 1876, and had not been heard 
 from since, it was held that an advertisement under 
 this section would bar him if he were thereafter to 
 make any claim,, and the administrators were entitled 
 to divide the assets as though the absentee were dead, 
 without ever having had issue : Ee Ashman, 15 0. L. 
 E. 42. Notice of claim against estate : Ee Land Credit; 
 Co. of Ireland, 21 W. E. 135; Jervis v. Wolferstan, 
 >L. E. 13 Eq. 18. Duty to give unpaid creditor 
 information of parties receiving the money: Ee 
 Lindsey, Filgate v. Lindsey, Ir. B. 8 Eq. 61. Suf- 
 Ificiency of notice : Newton v. Sherry, 1 C. P. D. 246 ; 
 "Wood v. Weightman, L. E. 13 Eq. 434 ; Ee Bracken, 
 Doughty v. Townson, 43 Ch. D. 1 ; Stuart v. Babing- 
 ton, 27 L. E. Ir. 551. A trustee is not exonerated 
 by the section if he had actual notice of a claim 
 before distribution, even though he may have sent 
 the notice prescribed and received no response to 
 it: Carling Brewing Co. v. Black, 6 0. E. 441; 
 • see Bicknell & Seager D. C. Act, p. 280; Holmested 
 & Langton, pp. 366-7. An administrator having paid 
 claims in full, pursuant to the statutory advertise- 
 ment, has no status to maintain an action to recover 
 money from the creditors so paid when subsequently 
 claims come to his knowledge by which the estate is 
 shewn to have really been insolvent: Leitch v. Mol- 
 sons Bank, 27 O. E. 621. Unpaid creditors have 
 themselves a right to make creditors who have 
 shared, make up a payment which will put them on 
 an equality: Doner v. Eoss, 19 Qr. 229; Bank of B. 
 N. A. v. Mallory, 17 Gr. 102; Chamberlin v. Clark, 
 
CHAPTER 121. 433 
 
 1 0. E. 135, 9 A. E. 273. This right is equitable and 
 acquiescence or laches will bar it : Ee Eustace (1912), 
 1 Ch. 561; Blake v. Gale, 31 Ch. D. 196. Liability of 
 executors of a surviving executor as to claims in re- 
 spect of the estate of which their testator had been 
 surviving executor: necessity for advertisement: 
 Stewart v. Snyder, 30 0. E. 110. Application of this 
 section in winding-up proceedings : see E. S. 0. 1914, 
 ch. 178, sec. 185; and in assignments: see E. S. 0. 
 1914, ch. 134, sec. 26. 
 
 57. Freehold estates over which a testator has a gen- 
 eral power of appointment and which he appoints 
 by his will, are assets for payment of his simple 
 contract debts after all the testator's own property 
 has been previously so applied: Fleming v. Buch- 
 anan, 3 De G. M. & G. 976,, 22 L. J. Ch. 886. Where 
 the donee of a general testamentary power of ap- 
 pointment over a fund in consideration of money 
 lent .covenants by deed to exercise the power by 
 will, giving the lender a first charge on the fund, 
 and does so, the fund is assets for the payment of 
 the appointor's debts generally, and the lender 
 has no priority over other creditors: Be Lawley, 
 Beyfus v. Lawley, 1903, A. C. 411. 
 
 58. Consideration of effect of repeal of 3 W. & M., ch. 
 14: see 2 Edw. VII. ch. 1, sec. 4, ch. 17; Beer v. 
 Williams, 21 0. L. E. 49. 
 
 59. When an executor is appointed by the Supreme Court 
 
 or by the Surrogate Court, the executorship is not 
 transmitted: see E. S. 0. 1914, ch. 62, sec. 60,, 
 
 63. A partner who has individually joined as a maker 
 in a promissory note of his firm for their accom- 
 modation is not " indirectly or secondarily liable " 
 for the firm to the holder within the meaning of the 
 section, but is primarily liable, and in claiming 
 jagainst his insolvent estate in administration the 
 holder need not value his security in respect of the 
 firm's liability: Bell v. Ottawa Trust, 28 0. E. 519; 
 see H. & L. notes, p, 922. As to mortgagee's claim: 
 see H. & L. notes, p. 923. 
 
 S.A. — 28 
 
434 CHAPTER 121. 
 
 66. Applications for advice under this section are among 
 the matters excepted from the jurisdiction of the 
 Master in Chambers: Con. Eule 42 (6); 1913 Rule 
 208 (6). The application is made by originating 
 notice under Con. Eule 938 (see sub-sec. g) 1913 
 (Rule 600 (g). As to persons to be served: see Con. 
 Rule 939 (a), 1913 Rule 601; and Re Harley, 17 
 P. R. 483. The Court will not interfere with the 
 exercise of the discretion given to executors and 
 trustees under the will : Re Sergeant, 8 0. L. R. 260. 
 Under the provisions of this section the Court has 
 decided as to the validity of a condition : Re Diller, 
 6 O. L. R. 711. Whether executors had power to 
 sell land: Re Crawford, 4 O. L. R. 313. Whether 
 a sale should be approved and confirmed : Nelson v. 
 Bell, 32 O. R. 118 ; and see H. & L. notes, p. 1181. 
 Guardians are now within the terms of the section: 
 2 Edw. VII. ch. 12, sec. 18: (see Re Mathers, 18 P. 
 R. 13). Application for advice or direction in re- 
 gard to proposed loan to beneficiary doubtfully 
 within the section : Re Hamilton Estate, 25 O. W. R. 
 198, 5 0. W. N. 230. The Court will not advise ex- 
 ecutors as to a scheme or method of realization: Re 
 Fulford, 29 0. L. R. 375. Questions which can be dis- 
 posed of on summary application : Baechler v. Baech^ 
 ler, 4 0. W. N. 226, 23 0. W. R. 235. Questions author- 
 izecLby the Trustee Act and the Rules : Re Gordon, 3 
 O. W. N. 1458, 22 O. W. R. 577. Scope of section: 
 Re Rally, 3 0. W. N. 273, 25 0. L. R. 112. When 
 summary application not warranted : Re Turner, 22 
 0. W. R. 543, 3 0. W. N. 1438. 
 
 67. Jurisdiction of the Court in these matters: see H. 
 & L. notes, p, 16. The English law is different: 
 there a trustee is not entitled to compensation for 
 his services : Robinson v. Pett, II. White and Tudor, 
 p. 606, and notes thereto. See as to applicability of 
 English cases: Re Leckie, 36 C. L. J. 136. The 
 Whole matter of what costs trustees, and particu- 
 larly solicitor trustees are entitled to, is fully dis- 
 cussed by Holmested & Langton, pp. 894-5-6. As to 
 compensation and what are just allowances : see H. & 
 L. notes, pp. 897-900. As to amendment by 63 Vic. ch. 
 17, sec. 18: see Re Church, 8 0. W. R. 983. The 
 proper things to be considered in fixing remunera- 
 tion of trustees are : — 
 
CHAPTER 121. 435 
 
 (1) Magnitude of trust. 
 
 (2) Care and responsibility springing therefrom. 
 
 (3) Time occupied in performing its duties. 
 
 (4) Care and ability displayed. 
 
 (5) Success which has attended its administration. 
 
 Ee Toronto General Trusts and Central Ontario 
 By., 6 0. W. R. 350; Ee Prittie Trusts, 12 0. W. E. 
 264; Ee Mclntyre v. London and "Western Trusts, 
 7 0. L. E. 548, 3 0. W. E. 258; Ee Patrick Hughes, 
 14 0. W. E. 630; Ee Sanford Estate, 18 Man. L. E. 
 413. Eemuneration of trustees whose duties extend 
 over a number of years should be an annual allow- 
 ance based, not on amount, but on the nature of the 
 property and the responsibility involved: Ee Pat- 
 rick Hughes, 14 0. W. E. 630; In re Williams, 4 0. 
 L. E. 501 ; Ee Sanford Estate, 18 Man. L. E. 413 ; Ee 
 Prittie Trusts, 12 O. W. E. 264. Annual allow- 
 ance in lieu of or in addition to percentage: see 
 Ee T. G. Trusts and Central Ont. Ey., 6 0. W. E. 
 350; Saskatchewan v. Leadley, 14 0. W. E. 426. 
 Proper allowance is a matter of opinion : McDonald 
 v. Davidson, 6 A. E. 320. The Master may allow 
 a lump sum, but he should see that the senvices 
 have been rendered : Stinson v. Stinson, 8 P. E. 560. 
 Compensation where executor discharges his duty 
 honestly but keeps his accounts loosely: Hoover v. 
 Wilson, 24 A. E. 424. Executor retaining money in 
 his hands unemployed: Gould v. Burrett, 11 Gr. 
 523. An executor will not be allowed for services of 
 an agent which were performed gratuitously: Chis- 
 holm v. Barnard, 10 Gr. 479. Trustees should not 
 be paid an allowance on taking over an estate, but 
 for taking over and distributing: Mclntyre v. Lon- 
 don and Western, 7 0. L. E. 548, at p. 556 ; Ee Pat- 
 rick Hughes, 14 0. W. E. 630. Allowances to ex- 
 ecutors and trustees: see particularly Ee Berkley's 
 Trusts, 8 P. E. 193; Ee Fleming, 11 P. E. 426; Wil- 
 liams v. Eay, 9 0. E. 534; Ee Farmers Loan, 3 0. 
 W. E. 837; Ee Prittie Trusts, 12 0. W. E. 264; 
 Saskatchewan v. Leadley, 14 0. W. E. 426 ; Ee Pat- 
 rick Hughes, 14 0. W. E. 630; Ee Griffin, 3 0. W. N. 
 1049, 23 0. W. E. 254. Eate of compensation and 
 method of computation: Thompson v. Freeman, 15 
 Gr. 384; Ee Fleming, 11 P. E. 272, 426; Thompson 
 v. Fairbairn, 11 P. E. 333; Archer v. Severn, 13 
 
436 CHAPTER 121. 
 
 0. E. 316; Denison v. Denison, 17 Gr. 306; Tor- 
 rance v. Chewett, 12 Gr. 407 ; McLennan v. Howard, 
 9 Gr. 178; Ee Mclntyre, 7 0. L. E. 548; Ee Morri- 
 son, 13 0. W. E. 767; Ee Church, 8 0. W. E. 983, 
 
 12 0. L. E. 18; Gibson v. Gardner, 8 0. W. E. 526, 
 
 13 0. L. E. 521. Method of ascertainment of com- 
 pensation to executors and administrators: 3 D. L. 
 E. 168. Allowances to trustees, and executors in On- 
 tario: art. 49 C. L. J. 19. This section does not 
 cover the case of a " next friend." A next friend 
 however, stands in the same position as a trustee 
 in respect of costs, charges and expenses properly 
 incurred before action brought :Vano v. Can. Cotton 
 Mills, 1 0. W. N. 763, 21 0. L. E. 144. Eemuner- 
 ation applies only to express trustees. A surviv- 
 ing partner is probably not a trustee at all : Living- 
 ston v. Livingston, 3 0. W. N. 1066, 21 0. W. E. 901, 
 26 0. L. E. 246. It is the settled practice for a Master 
 passing accounts of executors to allow them compen- 
 sation without an order of the Surrogate Judge allow- 
 ing the same. Where -an executor obtained such an 
 order and the Master acted on it and not on his 
 own discretion, an appeal from the report was al- 
 lowed, with costs to be paid by the executor : Biggar 
 v. Dickson, 15 Gr. 233. As to provisions in Surro- 
 gate Act respecting accounts: see E. S. 0. 1914, ch. 
 62, sees. 70, 71, 72. And as to appeals: see sec. 34, 
 and Ee Alexander, 31 0. E. 167. 
 
 67.— (4) See Ee Leckie Estate, 36 C. L. J. 136, and see 
 E. S. 0. 1914, ch. 159, sec. 68. 
 
CHAPTER 122. 437 
 
 CHAPTER 122. 
 
 The Vendors and Purchasers Act. 
 
 Eefer to Armour on Titles; Armour on Eeal Prop- 
 erty; Dart on Vendors and Purchasers; Bicknell and 
 Kappele, Practical Statutes, pp. 695-698. 
 
 -(a) The section is retrospective so as to cast the 
 onus of disproving the payment of the considera- 
 tion on the party impeaching the conveyance as vol- 
 untary, even though the transaction took place prior 
 to its enactment: Sanders v. Malsburg, 1 0. E. 178. 
 The production of an original mortgage which 
 was more than 20 years old proves itself under this 
 section which makes such a document evidence of 
 the truth of the recitals contained therein until 
 shewn to be untrue : Allan v. McTavish, 28 Gr. 539, 
 8 A. E. 440. Where lands were conveyed by deed 
 on certain trusts, of which deed only a memorial 
 was registered, and later a deed of appointment was 
 registered, also by memorial, purporting to contain 
 a full copy of the deed in which were recited what 
 purported to be the trusts of the former deed : Held, 
 the production of the memorial 20 years old of 
 the deed of appointment was sufficient evidence of 
 what those trusts were in a contract of sale in 
 which the vendor was bound to shew a good title: 
 Ee Ponton and Swanston, 16 0. E. 669. A recital 
 jn a deed more than twenty years old that the 
 grantee was administrator of his father's estate, 
 and that the lands were conveyed to him in satis- 
 faction of a debt, was sufficient evidence of the 
 facts so recited, and was not displaced by evidence 
 of a prior grant of administration to another for 
 a limited purpose : Gunn v. Turner, 8 O. W. E. 796, 
 13 O. L. E. 158. Effect of recital of mortgagees as 
 " trustees," or " trustees who are entitled to 
 and advance the mortgage money on a joint ac- 
 count:" see ArmOur on Titles, pp. 34, 35; and see 
 provisions of E. S. 0. 1914, ch. 133, sec. 4. A 
 recital in a deed more than 20 years old that the 
 vendor was seized in fee simple is sufficient evi- 
 dence under this Act, so that no prior abstract can 
 
438 CHAPTER 122. 
 
 be demanded, except in so far as the recital is 
 proved inaccurate : Bolton v. London School Board, 
 7 Ch. D. 766, followed; Macklin v. Dowling, 19 O. 
 E. 441 (Ferguson, J., at p. 444). For criticism of 
 the soundness of this: See Armour on Titles, pp. 
 38-41, 120-121. The decision in Bolton v. London 
 School Board ought not to be followed: Ee Wallis 
 and Grout's Contract, 1906, 2 Ch. 206, 75 L. J. Ch. 
 519. A mortgage which contains an acknowledg- 
 ment of receipt of the mortgage money, but no coven- 
 ant for repayment of money does not of itself 
 afford conclusive evidence of a debt so that 
 the mortgagee can maintain an action for its 
 recovery. Quaere whether this section applies to 
 such an action or only to actions where the title 
 to land is in question: London Loan v. Smyth, 
 32 C. P. 530; see also Saunders v. Malsbury, 1 
 0. E. 542; Gunn v. Turner, 8 O. W. E. 796, 13 
 0. L. E. 158. A purchaser may bring an ac- 
 tion to have the evidence taken on oath instead 
 of by statutory declaration and also to test it by 
 cross examination: Armour, Titles, p. 102, see also 
 p. 115. Statements in affidavits attached to memo- 
 rials as evidence of due execution: see Armour, 
 Titles, p. 133. Purpose of recitals: see Armour, 
 E. P., pp. 321-2. 
 
 2. — (c) All memorials are now over 20 years old. A 
 memorial executed by the grantee is good second- 
 ary evidence when the possession has been in ac- 
 cordance with the title claimed in examining a 
 title under the Quieting Titles Act, and the weight 
 of authority appears to be that such evidence is 
 admissible also in civil suits: Ee Higgins, 19 Gr. 
 303. Memorial as evidence of trusts : see Ee Ponton 
 and Swanston, 16 O. E. 669, note to sec. 2 (a) ante. 
 A registered memorial 20 years old, of a will ex- 
 ecuted by a devisee when possession of the land 
 has been consistent with the registered title, is 
 good evidence of the devise therein contained: Mc- 
 Donald v. McDougall, 16 0. E. 401. A memorial 
 registered over 60 years executed by the grantee 
 was not sufficient secondary evidence of the deed 
 where there was no actual possession of the land, 
 and even though possession of some of the lands 
 had gone with the deed, as long as there was no 
 
CHAPTER 122. 439 
 
 such possession of the lands immediately in ques- 
 tion: Van Velsor v. Hughson, 9 A. E. 390. A 
 memorial over 30 years old executed by the grantor 
 was admissible evidence and sufficient proof of deed 
 in an action of ejectment: Begina v. Guthrie, 41 
 U. C. R. 148; Regina v. McDonell, 41 IT. C. R. 157. 
 A registered memorial of a deed executed under 
 power of attorney is not sufficient evidence of the 
 power : Canada Permanent v. Ross, 7 P. R. 79. 
 The production of a registered memorial executed 
 by the grantee where possession is not shewn to 
 follow the deed, is not sufficient evidence in proof 
 of the deed: Evidence in proof of a paper title 
 discussed: Mulholland v. Harman, 6 0. R. 546. 
 See as to memorials and certified copies as evi- 
 dence: R. S. 0. 1914, ch. 124, sec. 19; R. S. 0. 1914, 
 ch. 76, sees. 46, 47: see also Dig; Ont. Case Law, col. 
 2364, et seq., H. & L. notes, p. 703 ; Armour, Titles, 
 pp. 110-114, 131-134. 
 
 -(d) See R f S. 0. 1897, ch. 119, sec. 39, R. S. 0. 
 1914, ch. 109, sec. 55, and Criminal Code, 1906, sees. 
 396, 419, as to concealment, &c., of documents of 
 title. See Armour, Titles, pp. 43-45, as to effect 
 of this sub-section. 
 
 Cf. Imperial Act, 37-38 Vic. ch. 78, sec. 9. The only 
 parties necessary are those who would be necessary 
 to a suit for specific performance and mortgagees 
 who were joined were dismissed with their costs: 
 Re MacNabb, 1 0. R. 94. The Act is intended to pro- 
 vide for the simple case where there is no dispute 
 as to the validity of the contract and the Court 
 ought not to enter upon the question of the Validity 
 of the title until it is decided that the contract is 
 binding: Re Robertson and Daganeau, 9 P. R. 
 288 ; Re MacNabb, 1 0. R. 94. Only those matters 
 should be entertained which would be entertained 
 upon a reference as to title under a decree for 
 specific performance: Re MacNabb, 1 0. R. 94; 
 see Henderson v. Spencer, 8 P. R. 402; and also 
 In re Trelevan and Horner, 28 Gr. 624, where the 
 Court would not compel the purchaser to accept 
 title on an application where infants were inter- 
 ested under a settlement, though in an action for 
 specific performance the completion of the sale 
 might have been ordered and the purchase money 
 
440 
 
 CHAPTER 122. 
 
 paid into Court for investment. If the Court 
 adjudicates on a question of title and directs the 
 purchaser to complete and he fails to do so, it is 
 unnecessary to bring an action for specific perfor- 
 mance: the requisite relief may be obtained on 
 notice of motion for payment, or in default, a re- 
 sale, etc.: Ee Craig, 10 P. E. 33. The costs are 
 in the discretion of the Judge: Givins v. Darvill, 
 27 Gr. 502. Costs where possessory title is made: 
 Ee Boustead and Warwick, 12 O. E. 488. A pur- 
 chaser is not unreasonable in demanding strict proof 
 of the extinction of a paper title, and may insist 
 on having examination of witnesses. An action 
 need not be brought for the Court has power upon 
 an application under this Act to refer it to the 
 Master before whom the evidence may be taken 
 vivd voce: Scott v. Nixon, 2 Dr. & War, 388. 
 Judges of District Courts who were Local Judges 
 of the High Court had no jurisdiction to deal with 
 applications under this Act: Ee Michell, 31 0. E. 
 542, H. & L. p. 191. Where a Master on a reference 
 under this Act to settle title under a written agree- 
 ment for a lease, ruled that evidence might be given 
 to shew what covenants a lease might contain, appeal 
 does not lie to the Supreme Court of Canada from a 
 judgment affirming such ruling: C. P. E. v. Tor- 
 onto, 18 P. E. 374, 451, 30 S. C. E. 337. Parties 
 to a V. and P. application are in the same position 
 as they would be on a reference as to title in a 
 suit for specific performance : Ee Burroughs, Lynn 
 and Sexton, 5 Ch. D. 601; (quoted with approval, 
 Toronto v. C. P. E. 18 P. E. 374, at p. 386); Ee 
 Eaton, 9 P. E. 396; Ee Thomas McNabb, 1 O. E. 94. 
 (Contra see Be Bingham and Wrigglesworth, 
 5 O. E. 611). Ee Eobertson and Daganeau, 
 9 P. E. 288, gives the true scope of the Act 
 and should be followed: Ee Farmer and Eeid, 
 12 O. W. E. 1076. The Court has jurisdiction on 
 a V. and P. application to make an order for the 
 rescission of the contract and return of the deposit: 
 Ee Walker and Oakshott, 1901, 2 Ch. 383; Ee Har- 
 greaves & Thompson, 32 Ch. D. 454. While the ex- 
 istence or validity of the contract cannot be tried 
 on a V. and P. application, a dispute as to the valid- 
 ity of the contract will not oust jurisdiction to try 
 other questions: Ee Hughes & Ashley (1900), 2 Ch. 
 
CHAPTER 122. 441 
 
 595. The vendor's right to rescind may be tried 
 in this way: Ee Jackson and Woodburn, 37 Ch. D. 
 44. The Court can determine what form the convey- 
 ance shall take if there is one : Ee Hughes and Ash- 
 ley, 1900, 2 Ch. 595. The Act is intended to enable 
 vendors and purchasers to determine distinct isol- 
 ated points arising under a contract and not the 
 question whether the vendor has a good title in 
 a general way: Ee Wallis and Barnard, 1899, 2 
 Ch. 515. If an action is brought instead of an ap- 
 plication the extra costs may be disallowed : King v. 
 Chamberlayn (1887), W. N. 158. Where, as a con- 
 sequence of the vendor's fault, the purchaser is en- 
 titled to damages (Day v. Singleton (1899), 2 Ch. 
 320), they cannot be recovered by a V. and P. ap- 
 plication: Ee Wilson and Stevens (1894), 3 Ch. 
 546. Scope of the Act: see Ee Calcott and 
 Elvin, 67 L. J. 327 ; Ee Lander and Badgley, 1892, 
 3 Ch. 41; Ee Jones and Cummings, 3 0. W. N. 672, 
 
 21 0. W. E. 248; Ee Paterson and Canadian Ex- 
 plosives Limited, 4 O. W. N. 1175. Applies to con- 
 tracts of title guarantee insurance : see E. S. 0. 1914, 
 ch. 183, sec. 160. Where doubtful title arises through 
 testamentary language, proper practice is to con- 
 strue will on originating summons with all parties 
 before the Court pending application under V. 
 and P. Act: Cameron v. Hull, 3 0. W. N. 807, 4 
 0. W. N. 581, 23 0. W. E. 736. . 
 
 A very wide range of questions of title and convey- 
 ance have been answered on applications under this 
 section. For example : Whether certain lands pas- 
 sed by will to a particular devisee : Ee Bain and 
 Leslie, 25 0. E. 136. Whether the will of a de- 
 ceased mortgagee whose executor had given a dis- 
 charge in 1888 must be registered: Ee Taylor and 
 Martin, 14 0. L. E. 132. Whether a conveyance 
 could be made of certain lands in the lifetime 
 of the life tenant : Ee Eathbone and White, 
 
 22 0. E. 550. Whether local improvement rates 
 were an incumbrance which the vendor was 
 bound to commute: Ee Graydon and Hammill, 20 
 0. E. 199. What taxes a vendor should pay: Ee 
 Wilson, 20 0. E. 532. What interest a purchaser 
 should pay: Ee Dingman and Hall, 17 A. E. 398. 
 Whether a power to sell can be exercised by a sur- 
 ving executor: Ee Koch and Wideman, 25 0. E. 
 
442 CHAPTER 122. 
 
 262; Ee Hewett and Jermyn, 29 0. E. 383; Ee 
 MacNabb, 1 0. E. 94. Whether the surviving trus- 
 tee of a congregation which had separated could 
 make title: Ee Wansley and Brown, 21 0. E. 34. 
 Whether purchasers were entitled to compensation, 
 and whether certificates of lis pendens should be 
 removed: Ee Bobier and Ontario Investment, 16 
 0. E. 259. Whether a power of appointment was 
 validly exercised: Ee Ontario L. & S. Co. and 
 Powers, 12 0. E. 582. What evidence a purchaser 
 is entitled to: Ee Morton and York,' 7 0. E. 59. 
 Whether an assignment of mortgage by endorse- 
 ment on the memorial was sufficient evidence: Ee 
 Mara, 16 0. E. 391. Whether under a conveyance 
 the grantee took a fee simple, or a trust was 
 created: Ee Bingham and Wrigglesworth, 5 0. E. 
 611. Whether trustees and cestuis que trustent 
 joining could make a good conveyance: G-ivins v. 
 Darvill, 27 Gr. 502. Whether payment of a sum 
 of money was made "as a deposit " or as "an 
 instalment;" and whether it was forfeited: La- 
 belle v. O'Connor, 15 0. L. E. 519, 11 0. W. E. 
 95. Whether restraint on alienation of lands de- 
 vised by will was valid: Ee Martin and Dagneau, 
 11 0. L. E. 349. Whether vendor in position 
 to make title under power of sale in mortgage: 
 Ee Sovereign Bank and Keilty, 1 0. W. N. 
 456. Whether a building restriction affected title 
 so as to give rise to action for damages for breach : 
 Ee Ham and Cameron, 1 0. W. N. 821. Whether 
 outstanding legacies barred by statute: Mulholl- 
 and v. Norrie, 14 0. W. E. 1112, 1 0. W. N. 214, 
 20 0. L. E. 27. Whether a beneficiary and surviv- 
 ing trustee could convey: Ee Mara and Wolfe, 4 
 0. W. N. 866. Whether a will gave a life estate 
 or if there was power to convey the fee: Wolfe 
 v. Holland, 3 0. W. N. 900, 21 0. W. E. 525. 
 Whether deed is sufficient to convey all the land 
 covered by a building: Ee Maton v. Clavir, 4 0. 
 W. N. 263, 23 0. W. E. 279. Whether an instru- 
 ment registered formed a cloud on title : Eosenberg 
 v. Bochler, 4 0. W. N. 757, 24 0. W. E. 59. Whether 
 creditors were necessary parties to a deed by debtor 
 and his assignee: Ee Snell and Dyment, 4 0. W. 
 N. 759, 24 0. W. E. 64. Whether will created set- 
 tled estate: Ee Lane and Beacham, 4 0. W. N. 
 
CHAPTER 122. 443 
 
 243. Construction of will as affecting title : Re Nichol 
 and Reardon, 16 0. W. R. 48. That the assignee of a 
 mortgage absolutely assigned can give a discharge 
 even if it appear on the face of the assignment that 
 it is given as collateral security for a debt of lesser 
 amount: Re Bland and Mohun, 5 0. W. N. 522. (So 
 long as it is not by way of charge : Mercantile Bank 
 v. Evans: 1899, 2 Q. B. 613). 
 
 The following cases are also noted: (not all under 
 this Act, but dealing with cognate matters) : 
 
 If a purchaser's fear of title have a reasonable 
 foundation in fact or in law it ought not to be 
 forced on him: Re Edgerly and Hotrum, 4 0. W. 
 N. 1434, 24 0. W. R. 800. If acceptance of title in- 
 volves a " reasonably decent probability of litiga- 
 tion " it will not be forced on an unwilling pur- 
 chaser: Be Piggott and Kern, 4 0. W. N. 1580, 
 24 0. W. R. 863. Where the registered title stood 
 in the names of two persons, one of whom was dead, 
 and an affidavit was tendered that the deceased 
 had no interest, the Court refused to declare the 
 title valid on summary application; Re Farmer 
 and Reid, 12 0. "W. R. 1076. "Where encroachment, 
 the purchaser bound to accept evidence of posses- 
 sion for statutory period: Re Butler and Hender- 
 son, 4 0. W. N. 498, 23 O. W. R. 576. Proof of 
 possession by affidavits with right of cross-ex- 
 amination: Re Aiken and Ray, 14 0. W. R. 744, 
 1 0. W. N. 95. A quit claim may be directed to 
 be procured to clear up a possible cloud on title: 
 Tozman v. Lax, 5 0. W. N. 51, 25 0. W. R. 49. 
 
 Executors who have probate in England can dis- 
 charge mortgage in Ontario on registration of will 
 and probate without obtaining probate here or hav- 
 ing the probate resealed here. Aliter as to admin- 
 istration: Re Green and Flatt, 29 0. L. R. 103; 
 4 0. W. N. 1388. 
 
 Freehold land held by statutory title based on 
 10 years possession is not thereby freed from 
 restrictive covenants : Re Nesbitt and Potts con- 
 tract, 1905, 1 Ch. 391, 1906, 1 Ch. 368. A per- 
 son who buys land from a successful squatter is 
 affected by notice of restrictive covenants with 
 
444 CHAPTER 122. 
 
 which he would have become acquainted if he had 
 made reasonable enquiry into the title prior to the 
 squatters: Ee Msbet and Potts, 75 L. J. Ch. 238, 
 1906, 1 Ch. 386; see Ee Cox and Neve, 1891, 2 
 Ch. 109, 117; London S. W. Ey. v. Gomm, 20 Ch. 
 
 D. 562, 582. Interpretation of restrictive coven- 
 ants and building restrictions: Ee Eobertson and 
 Defoe, 20 O. W. E. 712, 3 0. W. N. 431, 25 O. L. 
 
 E. 286. Building restriction; covenant running 
 with land; right of action for breach: Ee Ham 
 and Cameron, 1 0. W. N. 821. Under a contract 
 for sale of land in fee, free of incumbrance, subject 
 to one restrictive covenant, a vendor is not entitled 
 to insert a further restrictive covenant on the 
 ground of a prior contract with another which 
 would render him liable to action unless the further 
 restrictive covenant were inserted ; though the prior 
 contract might be a good defence to an action for 
 specific performance : Ee Wallis • and Barnard, 
 1899, 2 Ch. 515. A common law condition provid- 
 ing for reverter of estate to grantor and his heirs 
 in case land is put to other uses and purposes than 
 those declared in the conveyance, though perhaps 
 void as infringing the rule against perpetuities, 
 renders an estate so doubtful that it will not be 
 forced on an unwilling purchaser: Ee Hollis 
 Trustees and Hague, 1899, 2 Ch. 540. (See as to 
 such a condition disallowed : Ee St. Patrick's Market, 
 1 0. W. N. 92, 14 0. W. E. 794). 
 
 A provision in an agreement for sale that " the 
 deed shall be prepared at the expense of the ven- 
 dor ' ' dispenses with the requirement of the general 
 rule that the purchaser should prepare and tender 
 the deed to the vendor: Foster v. Anderson, 15 
 O. L. E. 362, 42 S. C. E. 251. Eight to sue for instal- 
 ments under agreement for sale without tendering 
 conveyance : Vivian v. Clergue, 15 0. L. E. 280. 
 ' ' Time is of the essence " in a contract of sale : see 
 Foster v. Anderson, 15 0. L. E. 362, 42 S. C. E. 251; 
 Labelle v. O'Connor, 15 0. L. E. 519, 11 0. W. E. 95. 
 When a solicitor simply delivers an abstract, he 
 does not " deduce " title: Ee Webster and Jones, 
 1902, 2 Ch. 551. 
 
 Where a purchaser at a sale under the direction 
 of the Court is entitled to be discharged from his 
 
CHAPTER 122. 445 
 
 contract on the ground of misdescription, he is 
 entitled to be paid out of funds in Court, not only 
 his costs of search but also his costs of bidding and 
 being allowed to be purchaser : Holliwell v. Sea- 
 combe, 1906, 1 Ch. 426. An obvious mistake 
 in a description may be rejected if the rest of 
 the description identifies the land: Ee Blight and 
 Ockenden, 12 0. W. E. 673. Eectification ordered 
 of a mutual mistake in a conveyance discovered 
 6 years after its execution: Beal v. Kyte, 1907, 1 
 Ch. 564. Where vendors knowingly misdescribe 
 property, as for example by omitting to state that 
 they have no title to the minerals, they are not 
 permitted to avail themselves of the elause in the 
 contract enabling them to rescind on objection be- 
 ing taken which they are unwilling to remove. The 
 purchaser is entitled to completion with compen- 
 sation: Ee Jackson and Haden, 1906, 1 Ch. 412. 
 " More or less ": Wilson Lumber Co. v. Simpson, 
 22 0. L. E. 452, 23 0. L. E. 253 ; Bullen v. Wilkinson, 
 3 0. W. N. 229, 859 ; Hunter v. Kerr, 21 W. L. E. 823. 
 A conveyance in which land is described as 
 " bounded on the west by said intended road " is 
 an implied grant of an easement of way: Gogarty 
 v. Hoskins, 1906, 1 Ir. E. 173. Plans as descrip- 
 tions: Ee Sparrow and James, 1910, 2 Ch. 60; Ee 
 Samson and Narbeth, 1910, 1 Ch. 741. 
 
 Where a requisition is made it is not open to a 
 vendor under a contract in the usual form and not 
 being willing to comply with the requisition, to re- 
 scind in a letter marked " without prejudice " 
 offering an indemnity and annulling the sale in 
 case of non acceptance : Ee Weston and Thomas 
 Contract, 1907, 1 Ch. 244. A condition giving a 
 vendor a right to rescind if the purchaser should 
 insist on any requisition which the vendor should 
 be unable, etc., to remove, does not admit of a 
 rescission where the vendor has no title to part 
 of the property: Ee Jackson and Haden, 1905, 1 
 Ch. 603, 1906, 1 Ch. 412. The benefit of a provision in 
 a contract for the sale of land that if any objection 
 or requisition be made by the purchaser which the 
 vendor shall be unable or unwilling to comply with, 
 the vendor shall be at liberty to rescind the agree- 
 
446 CHAPTER 122. 
 
 ment, is lost if the vendor's solicitor attempts to 
 answer the requisitions and enters into negotiations 
 with the purchaser's solicitor regarding them, unless 
 he expressly reserves his right to rescind later on: 
 Crabhe v. Little, 14 0. L. E. 631. In a contract giv- 
 ing the vendor power to rescind where such right 
 is reserved, if the purchaser makes any objection 
 or requisition which the vendor " is unable or un- 
 willing to remove or comply with," it is not suffi- 
 cient that the vendor should have acted without 
 caprice, he must also have acted reasonably: 
 Quinion v. Home, 1906, 1 Ch. 596. An objec- 
 tion to title that the legal estate is outstand- 
 ing in the Crown is not an objection that goes to 
 the root of title, so as to enable a purchaser to 
 make requisitions out of time: Pryce-Jones v. 
 Williams, 1912, 2 Ch. 517. The vendor of real estate 
 is under an obligation to disclose any material de- 
 fect in the title or in the subject of the sale which 
 is exclusively within his own knowledge and which 
 the purchaser could not be expected to discover 
 for himself with the care used ordinarily in such 
 transactions : Carlish v. Salt, 1906, 1 Ch. 335, 75 L. 
 J. Ch. 175. 
 
 Where a vendor contracting as trustee has under 
 his trust no power of sale but has previous autho- 
 rity from the beneficiaries, he can make title: Ee 
 Baker and Selmon's Contract, 1907, 1 Ch. 238. A 
 voluntary settlement does not, in the event of the 
 bankruptcy of the settlor, become void ab initio, but 
 only from the date of the act of bankruptcy, and 
 prior bona fide purchasers for value get a good 
 title: Ee Carter and Kenderdine, 1897, 1 Ch. 776. 
 A power to vary and transpose " securities " en- 
 ables trustees to sell real estate: Ee Gent and 
 Eason's Contract, 1905, 1 Ch. 387. 
 
 Purchaser entitled to make deduction where muni- 
 cipality claims taxes and vendor disputes : Phillips 
 v. Monteith, 4 O. W. N. 1420. Onus to remove 
 requisition as to tax sale: Ee National Trust and 
 Ewing, 2 O. W. N. 801, 18 O. W. E. 770. Vendor 
 ordered to convey his half interest with abatement : 
 Kennedy v. Spence, 3 O. W. N. 76, 20 O. W. E. 61. 
 
CHAPTER 123. 447 
 
 Private lane as objection to title: Ee Bonlton and 
 Garfunkel, 23 0. W. E. 1, 4 0. W. N. 25. 
 
 Cases under Vendor and Purchaser Act: see Dig. 
 Eng. Case Law, XIV., col. 1502-1506. Dig. Ont. 
 Case Law, col. 7261. 
 
 CHAPTEE 123. 
 
 The Quieting Titles Act. 
 
 ' Eefer to Armour on Titles, Holmested and Langton 
 Judicature Act and Eules. 
 
 See Con. Eules 991 to 1014 inclusive, H. & L. notes, 
 ,pp. 125 to 1242 inclusive, 1913 Eules," 692 to 714 
 inclusive. Who may file petition: effect of filing 
 petition : see H. & L. notes, p. 126. This section 
 does not apply to the case of a vendee who has 
 contracted to purchase hut who has not completed 
 his contract. In such a case the Court may in the 
 exercise Of its discretion under sec. 3, refuse to 
 entertain the petition filed without the consent of 
 the vendor first obtained : Ee Brown, 3 Ch. Ch. 158. 
 Whether a married woman must apply by next 
 friend: see Ee Howland, 4 Ch. Ch. 74; Ee McKim, 
 6 P. E. 190. Persons to whom the land is con- 
 veyed pending investigation of title, must be sub- 
 stituted as petitioners : Ee Cummings, 8 P. E. 473. 
 When the petitioner has only an estate in fee in 
 remainder, the consent' of the tenant for life must 
 be obtained before the petition can be filed: Ee 
 Pelton, 8 P. E. 470. Cross petition: see Ee Dun- 
 ham, 8 P. E. 472. Service of petition may be made 
 an official guardian for infants who are required to 
 be notified: Ee Murray, 13 P. E. 367. 
 
 Form of petition: see Schedule H. & L. Forms No. 
 1430; see H. & L. notes, p. 1227. Filing petition: 
 see Eule 993; 1913, Eule 694. Petitions to be re- 
 ferred to local referees must be first entered with 
 Inspector: Con. Eule 997; 1913 Eule 698. How 
 
 . endorsed: see Con. Eules 995, 996; 1913 Eules 
 
448 CHAPTER 123. 
 
 696, 697. When, pending investigation the peti- 
 tioner registered a plan, the petition had to be 
 amended in accordance : Ee Morse, 8 P. E. 475. 
 
 6.— (fc) Proofs required on investigating titles: see H. 
 & L. notes, pp. 1228-30; and see Con. Enle 1000; 
 1913 Eule 701. In seeking to prove the existence 
 and contents of a lost deed the affidavit of the 
 petitioner alone as to searches is not sufficient. 
 Particulars of searches, by whom made, when and 
 why made, should be given: Ee Bell, 3 Ch. Ch. 239. 
 A memorial executed by the grantee is good 
 secondary evidence in proceedings under this Act 
 when the possession has been in accordance with 
 the title: Ee Higgins, 4 Ch. Ch. 128. Lost power 
 of attorney: see Ee Street, 4 Ch. Ch. 99. Affidavit of 
 search for missing deeds should be by indepen- 
 dent evidence: Ex parte Chamberlain, 2 Ch. Ch. 
 352. 
 
 6. — (e) Where the title was acquired within two years, 
 a sheriff's certificate was required against the prior 
 owner: Ex parte Lyons, 2 Ch. Ch. 357. The Court 
 has no jurisdiction to grant a certificate unless all 
 taxes except those for the current year have been 
 paid: Ex parte Chamberlain, 2 Ch. Ch. 352.. A 
 sheriff's certificate must be produced: Ee Bun- 
 del, 4 Ch. Ch. 71. The sheriff must certify that he 
 had no executions within 30 days previous, and 
 and that the lands had not been sold under execution 
 within 6 months : Ee Harding, 3 Ch. Ch. 232. The 
 treasurer's certificate must state whether the re- 
 turn of arrears of taxes by the township treasurer 
 had or had not been made, and that the land had not 
 been sold for taxes within 18 months preceding: 
 Ee Harding, 3 Ch. Ch. 232. Proof is indispensible 
 that possession has always accompanied the title 
 or that some sufficient reason exists for not adduc- 
 ing such proof: Ex parte Wright, 2 Ch. Ch. 355. 
 The possession must be uninterrupted: Ee Bell, 3 
 Ch. Ch. 239. Claiming against a patentee of the 
 Crown: see Ee Linet, 3 Ch. Ch. 230. A petitioner 
 claiming title by possession should adduce clear and 
 positive evidence of more than one independent 
 witness. Notice will be served on the person hav- 
 ing the paper title, if he can be found, and if not, 
 evidence is to be put in of search for him and his 
 
CHAPTER 123. 449 
 
 representative: Be Caverhill, 8 C. L. T. 50. An 
 applicant for title by possession must prove it at 
 his own expense and may be made to pay tbe costs, 
 if an unsuccessful contestant: Low v. Morrison, 
 14 Gr, 192. 
 
 6. — (g) Tbe Schedule should be an exhibit in the 
 usual way to the affidavit under sec. 7 (1) : Ee Dick- 
 son, 3 Ch. Ch. 352. 
 
 7. Although it is not imperative that the affidavit should 
 be made by the petitioner, a valid reason should be 
 given why it is not so done: Ee Eundel, 4 Ch. Ch. 
 71. The schedule of particulars must be made an 
 exhibit in the usual way : Ee Dickson, 3 Ch. Ch. 352. 
 Form: see H. & L. forms, 1433, 1435; see H. & L. 
 notes, p. 1228. Every material fact that is cap- 
 able of being proved by independent evidence ought 
 to be so proved. An affidavit of the petitioner as 
 to search for missing deeds is insufficient : Ex parte 
 Chamberlain, 2 Ch. Ch. 352. 
 
 6. The certificate should follow the wording of the sec- 
 tion. A certificate of counsel that he had corres- 
 ponded with the petitioner's agent on the subject 
 and believed the statements true was insufficient: 
 Ee Dickson, 3 Ch. Ch. 352; H. & L. notes, p. 1228; 
 Form No. 1434. 
 
 9. — (1) On what evidence the referee will proceed: 
 notices when title claimed by possession: Evi- 
 dence required of circumstances creating suspicion: 
 negative evidence: see H. & L. notes, pp. 1236-7. 
 " ^Receivable or sufficient in point of strict law:" 
 The decision of a Court acting under such a statute 
 is not a judicial decision : as to appeals : see Moses 
 v. Parker, 1896, A. C 245. 
 
 10. See Re Harding, 3 Ch. CH. 232; Ee Chamberlain, 
 2 Ch. Ch. 352; notes to sec. 6 (e). 
 
 12. Advertisement: see H. & L. notes, pp. 1235, 1230; 
 Con. Eule 1004; 1913, Eule 705; see also sec. 41, 
 infra. It is necessary to shew that the notices posted 
 were continued for the period directed: Ex parte 
 Hill, 2 Ch. Ch. 348. 
 
 S.A.— 29 
 
450 CHAPTER 123. 
 
 14. Where title had passed into the hands of a trustee 
 to pay creditors an advertisement was directed to 
 be published calling on creditors to shew cause why- 
 certificate should not be issued: Ee Eundel, 4 Ch. 
 Ch. 71. Notice to heirs : Ex parte Hill, 2 Ch. Ch. 
 348. Notice to persons entitled to paper title: Ex 
 parte Chamberlain, 2 Ch. Ch. 352 ; Re Caverhill, 
 8 C. L. J. 50. Where there was an alleged clerical 
 error in a will, persons interested in the opposite 
 view were given notice: Ex parte Lyons, 2 Ch. Ch. 
 357. The Court will exercise great particularity in 
 seeing that all persons have been duly and regularly 
 served with proceedings under this Act : Re Pal- 
 mer, 2 Ch. Ch. 351. Costs against an unsuccessful- 
 adverse claimant: see H. & L. notes, p. 1241; see 
 Con. Rule 1005 ; 1913, Rule 706 ; H. & L. notes, pp. 
 1256-7. H. & L. forms No. 1445: proof of service: 
 H. & L. notes, p. 1237. 
 
 17. If it appear that, had a bill been filed to enforce the 
 opposing claim, the applicant would have had a 
 good defence as a bona fide purchaser for value 
 without notice, he will be entitled to a certificate: 
 Cochrane v. Johnson, 12 Gr. 177. The Court will 
 exercise a liberal discretion where error is alleged 
 to exist, both in time for appealing and for re- 
 investigating a contestant's claim: Re Howland, 4 
 Ch. Ch. 74. 
 
 18. The filing of a petition is not such a proceeding as 
 will save the rights of a contestant otherwise 
 barred by the Statute of Limitations: Laing v. 
 Avery, 14 Gr. 33. Where a contestant sets up a 
 tax sale which proves invalid, he is entitled to a 
 lien for the taxes paid by his purchase money: Re 
 Cameron, 14 Gr. 612. A contestant who is in pos- 
 session may point out the defects in the claimant's 
 prima facie title before being called on to prove 
 his own: Armour v. Smith, 16 Gr. 380. The Court 
 will not grant a certificate to a person claiming 
 the fee who is kept out of possession by a person 
 who disputes his title: Re Mulholland, 18 Gr. 528. 
 The applicant must have substantially an estate in 
 possession : Re West Half Con. 6 Mono, 6 P. R. 150. 
 Proceedings under this Act will not be made a sub- 
 stitute for an action of ejectment: Re. Mulholland, 
 
CHAPTER 123. 451 
 
 18 Gr. 528. If the contestant's claim impeaching 
 the transaction by which the claimant's title arose 
 can be successfully resisted by the claimant on any 
 ground, it will form no obstacle to a certificate: 
 Laing v. Matthews, 14 Gr. 36. When the claimant 
 proves a prima facie title, the onus is on the contes- 
 tant of proving assertions as to the meaning of 
 descriptions of land in question: Ee Burritt, 23 
 Gr. 432. See also as to misdescription : Be ;Call- 
 aghan, 8 P. B. 474. Where documents were im- 
 peached as forgeries, the Court directed an action 
 to be brought so that the matter could be tried by a 
 rjury where the principal witnesses resided: Brouse 
 v. Stayner, 16 Gr. 1. Where the genuineness of 
 documents is doubtful the Court may refuse a cer- 
 tificate without pronouncing absolutely on the ques- 
 tion : Graham -v. Meneilly, 16 Gr. 661. Abdica- 
 tion on contest : Costs : Beport : see H. & L. notes, p. 
 1238. Where title made out before Local Beferee, 
 he is to certify same and forward papers to Inspec- 
 tor: Duty of Inspector: see Con. Bule 1007; 1913, 
 Bule 708. Appeals from report: see H. & L. notes, 
 p. 1239; Con. Bules 1013, 760-772; 1913, Bules 714, 
 502-504. 
 
 19. See Con. Bule 1198; H. & L. notes, p. 1434; 1913, 
 Bules 373, 374. A contestant served with notice will 
 not be prevented from asserting his rights until 
 payment of costs of previous proceedings instituted 
 by the claimant and ordered to be paid by the con- 
 testant: Shepard v. Hayball, 13 Gr. 681. 
 
 20. See Low v. Morrison, 14 Gr. 192, as to costs of assert- 
 ing title by possession (note to.sec. 6 (e) ). The Bef- 
 eree has power over costs, and the Court refused 
 to set aside his order dismissing a petition with 
 costs : Ee Beferee, 2 Ch. Ch. 22. 
 
 23. Position of Crown as claimant by escheat of mort- 
 gage: moneys: Be Baycraft, 15 O. W. B. 438, 20 O. 
 L. E, 437, 1 O. W. N. 509. Invalidity of condition 
 subsequent: Contingent reversionary interest: Be 
 St. Patrick's Market, 1 O. W. N. 92; Be Hollis and 
 Hague (1899), 2 Ch. 540. 
 
 25. A certificate granted on a false affidavit was set 
 aside, the Court refusing to go into the merits of 
 
452 CHAPTER 123. 
 
 the question whether the affidavit was necessary: 
 Re Ashford, 3 Ch. Ch. 77. The Referee should 
 " find and certify," not " adjudge and determine:" 
 Per Mowat, V.C. : Re Referee, 2 Ch. Ch. 22. Where 
 an erroneous certificate was issued but not regis- 
 tered, and no deed or incumbrance since made 
 affecting the land, a proper certificate was directed 
 to issue ex parte: Bradley v. McDonell, 2 Ch. Ch. 
 274. 
 
 27. Position of Crown as possible claimant by escheat 
 from mortgagee who was not heard of for long 
 time : Re Raycraft, 20 0. L. R. 437, 15 0. W. R. 438, 
 1 0. W. N. 509. See Armour on Titles, p. 32. 
 
 30. See Armour on Titles, p. 284. 
 
 31. English law recognises as valid in England a decree 
 of divorce obtained by a wife against her husband 
 before the Courts of a foreign country where the 
 husband was not domiciled, on grounds which the 
 law of his domicile, being that of another foreign 
 country, would not have recognised in its own Court, 
 where it appears that the decree was pronounced 
 under such circumstances that the law of domicile 
 of the husband recognises it as valid: Armitage v. 
 Atty. Gen., 1906, P. 135. Mode of trial for declara- 
 tion of legitimacy: Sackville West v. Atty. Gen., 
 1910, P. 143. For jurisdiction of Divorce Court in 
 England to enable persons to establish their legit- 
 imacy and the validity of their marriages : see 21 & 
 22 Vic, ch. 93. Cases : see Dig. Eng. Case Law, VII., 
 as to legitimacy of children : col. 660, et seq : as to 
 validity of marriage : col. 626, et seq. See Con Rule 
 1012; H. & L. notes, p. 1241; 1913 Rule 713. 
 
 33. See Re Ashford, 3 Ch. Ch. 77 ; note to sec. 25, ante. 
 
 36. See H. & L. notes, p. 207. 
 
 37. Service on Official Guardian is good service on in- 
 fants who are required to be notified of the proceed- 
 ings : Re Murray, 13 P. R. 367. See also as to ser- 
 vice on infants: Re Gilchrist, 8 P. R. 472. As to 
 married women: see Re McKim, 6 P. R. 190; Re 
 Howland, 4 Ch. Ch. 74. 
 
 47. See Con. Rules 991-1041, inclusive; 1913 Rules 692- 
 714, inclusive. 
 
CHAPTER 124. 453 
 
 CHAPTEE 124. 
 
 The Ebgistby Act. 
 
 Eefer to Armour on Titles, Armour on Eeal Prop- 
 erty, Bicknell and Kappele, Practical Statutes, pp. 
 761-767; Decisions and Eulings of D. Guthrie, K.C., 
 Inspector of Eegistry Offices. 
 
 2. — (d) A by-law providing for the opening of a road is 
 an "instrument:" Ee Henderson and Toronto, 29 
 0. E. 669. Sheriffs' Act and Warrant under Imp. 
 Act, 19 and 20 Vic, ch. 79, vesting lands in Canada 
 and Scotland in trustee under bankruptcy proceed- 
 ings in Scotland, although without witness or at- 
 testation clause and specifying no lands, was an in- 
 strument capable of registration: Eobson v. Car- 
 penter, 11 Gr. 293. Every species of conveyance by 
 which lands are affected in law or in equity is in- 
 cluded: McMaster v. Phipps, 5 Gr. 253. Order of 
 Division Court Judge vacating a mechanic's lien 
 is an instrument capable of registration: Guthrie, 
 1905, p. 31. The section formerly included only 
 " municipal road by-laws:" see sec. 70 for further 
 provisions. Money by-laws are not entered in the 
 abstract index, but in a book specially for entering 
 by-laws : see sec. 23 (5) ; Guthrie, 1897, p. 39. A 
 mere statutory declaration is not an " instrument:" 
 see Custody of Documents Act, E. S. 0. 1914, ch. 
 125, sec. 2; Guthrie 1,907, p. 44, 1908, p. 22. Nor is 
 a contract for sale evidenced by letters written by 
 solicitors unless power of attorney is registered: 
 Guthrie, 1901, p. 18. As to schedules without suf- 
 ficient description: see Guthrie, 1902, p. 7. Eegis- 
 tration of receiving order by way of equitable exe- 
 cution: see Armour, Titles, p. 178. Eegistration of 
 judgment in alimony: see Judicature Act, E. S. O. 
 1914, ch. 56, sec. 73 and post, sec. 43. Eegistration 
 of charge on land by a person without interest is a 
 cloud on the title that should be vacated : Fee v. Mac- 
 donald, 3 O. W. N. 1378. Consideration of rights 
 created by expropriation by-law and the propriety 
 of registering it: Grimshaw v. Toronto, 4 O. "W. N. 
 
454 CHAPTER 124. 
 
 1124, 28 0. L. E. 512, and see post, sec. 70. Instru- 
 ment capable of registration : see also Rosenberg v. 
 Bochler, 4 0. W. N. 757, 24 0. W. E. 59. 
 
 2. — (e) An easement created by severance of a tenement 
 is not within tbe Registry Act and not affected by 
 subsequent dealing with the land: Israel v. Leith, 
 20 0. E. 361. 
 
 7. Where the county refuses or neglects to provide pro- 
 per offices, the course for the registrar is not to fur- 
 nish them himself and sue the county for the rent, 
 but to compel the county by the aid of the Court to 
 furnish such offices: "Ward v. Northumberland, 12 
 C. P. 54; see also Beg. v. Northumberland, 10 C. P. 
 526. "What " furniture " includes: see Newsom v. 
 Oxford, 28 0. R. 442. Inspector's powers to direct 
 equitable adjustment of expense to be borne by a 
 city having no separate Registry Office: see Guth- 
 rie, 1911, p. 24. Consideration of what expenses 
 may be deducted by registrars in arriving at net 
 income: Guthrie, 1912, p. 9. 
 
 12. A registrar is within the Public Authorities Protec- 
 tion Act in an action brought against him to recover 
 fees in excess of those allowed by statute : Ross v. 
 McLay, 40 U. C. R. 87. But not where the action 
 against him is for neglecting and refusing to fur- 
 nish a statement in detail of fees charged by him 
 and for a mandamus: Ross v. McLay, 40 U. C. R. 
 83. Or for negligently omitting a mortgage from 
 an abstract: Harrison v. Brega, 20 U. C. R. 324. 
 Action to recover fees: see County of Bruce v. Mc- 
 Lay, 11 A. R. 477. Action for wrongfully register- 
 ing documents : Ontario Industrial Loan v. Lindsey, 
 3 0. E. 66. 
 
 14. "Where a Deputy Eegistrar did business for many 
 years as a conveyancer with the knowledge of the 
 Eegistrar and without objection, the Registrar could 
 not afterwards claim the profits. But where the 
 Deputy searched titles for persons, the Registrar 
 being unaware of the practice, the Deputy was held 
 chargeable with the fees. "Where the Deputy omit- 
 ted to charge full fees he was not liable- to the Re- 
 gistrar for those fees where the omission was not 
 
CHAPTER 124. 455 
 
 with a view to the Deputy's personal gain. The 
 Statute of Limitations was held to be no bar in re- 
 spect of these transactions: Smith v. Bedford, 19 
 Gr. 274. An indictment charging a misdemeanour 
 against the Registrar and his Deputy jointly is good 
 if the facts establish a joint offence. A Deputy is 
 liable to be indicted while the Eegistrar legally holds 
 office, and even after the Deputy himself has been 
 dismissed : R. v. Benjamin, 4 C. P. 179. 
 
 19. It was held that a Registrar was not obliged to place 
 his books and indexes in the hands of any persons 
 desiring to make a search, but might do so at his 
 discretion and on his own responsibility: Re Web- 
 ster and Registrar of Brant, 18 U. C. R. 87. But 
 in a later case it was held that the Registrar was 
 the person by whom all searches were to be made. 
 A person inquiring into a title had no right to make 
 searches and inspect .the registry books, but he 
 might require the Registrar to make the searches 
 and produce the instruments and books for inspec- 
 tion. Semble, that the Registrar is bound to ex- 
 hibit the abstract index when required to do so : Ross 
 v. McLay, 26- C. P. 190; see also McNamara v. Mc- 
 Lay, 8 A. R. 319. And discussion of these decisions : 
 Armour, Titles, pp. 80-85 ; see also sec. 31 infra and 
 notes. 
 
 As to effect of Registrar's abstract: Reed v. 
 Banks, 10 C. P. 202; Lawrie v. Rathbun, 38 U. C. R. 
 255. Omission of instrument from abstract : Green v. 
 Ponton, 8 0. R. 471. Wrongful registration: On- 
 tario Industrial Loan v. Lindsey, 3 O. R. 66; see 
 Armour, Titles, pp. 71, 79. The Registrar has merely 
 to certify to facts, not express opinions or draw in- 
 ferences.: Guthrie, 1895, p. 33. He must furnish an 
 abstract in strict accordance with the requisition 
 therefor: Guthrie, 1899, p. 7. He cannot be asked 
 to certify that a lot is free of incumbrance. He is 
 to give a general abstract and let the parties deter- 
 mine for themselves: Guthrie, 1899, p. 24. Copies 
 of registered instruments affecting the same lot may 
 . be verified by one certificate if the applicant does 
 not require separate certificates :' Guthrie, 1900, p. 
 5. A Registrar should use judgment in preparing 
 an abstract of a comparatively small portion of a 
 
456 CHAPTER 124. 
 
 lot so as not to incumber it unnecessarily with en- 
 tries or unnecessarily increase the expense: Guth- 
 rie, 1900, p. 11. Where an abstract is ordered, the 
 Eegistrar's duty is not simply to copy the contents 
 of the abstract index, but to prepare the abstract 
 by reference to the instruments themselves: Guth- 
 rie, 1898, p. 10. A mandamus will lie to compel 
 a Eegistrar to give a proper abstract^ certified to 
 shew all the registrations on record in the office 
 upon the lot : Ee Eegistrar of Carleton, 12 C. P. 225. 
 A Eegistrar gave an intending purchaser an ab- 
 stract of title which omitted outstanding mortgage. 
 The purchaser, who had notice of the omitted mort- 
 gage, could not claim against the Eegistrar in re- 
 spect of payments made after such notice, and the 
 Eegistrar, who, on finding his mistake, bought the 
 mortgage, was held entitled to foreclose it: Brega 
 V. Dickey, 16 Gr. 494. Damages where Eegistrar 
 omitted a first mortgage in giving a certificate of 
 registrations to a purchaser of a mortgage on a lot. 
 Quaere, whether costs which the purchaser was 
 made to pay in endeavouring to obtain priority 
 over the first mortgage could also be recovered from 
 the Eegistrar: Harrison v. Brega, 20 U. C. E. 324. 
 Searches are intended or presumed to be made per- 
 sonally. Instructions for abstracts and enquiries 
 for information by mail are convenient and the 
 practice should not be discouraged: Guthrie, 1910, 
 p. 14. The heading in sub-sec. 2 is compulsory on 
 Eegistrars. Where a continuation abstract is re- 
 quired of an abstract not so headed, the Eegistrar 
 must insert it: Guthrie, 1911, p. 12. As to fees for 
 abstracts : see post, sec. 92 (/) and notes. 
 
 I 
 21. This provision will probably have the effect of pro- 
 tecting a Eegistrar from the errors or mistakes of 
 his predecessor, where such errors or mistakes oc- 
 cur say, not only in the abstract index, but also in 
 the copies of the instruments in the registers, but 
 not where the error or mistake is in the abstract 
 index alone and could have been discovered by the 
 Eegistrar had he, in preparing the abstract, referred 
 to the instrument itself. The section would also 
 protect a Eegistrar in respect of the omission by 
 his predecessor of an instrument from the abstract 
 index, i.e. where the reference is entirely omitted: 
 
CHAPTER 124. 457 
 
 Guthrie, 1898, p. 10 (where see remarks on pre- 
 paration of abstracts). Omission of instrument 
 from abstract index: damages: Green v. Ponton, 8 
 O. E. 471. Wrongful registration of an instrument : 
 action for removal will lie and Eegistrar is a proper 
 party: Ontario Industrial Loan v. Lindsey, 3 0. E. 
 66. 
 
 22. It is the duty of the Eegistrar to give certified 
 copies of all registered instruments (sec. 19 (1)). 
 As to the use that can be made of them: see E. S. 
 0. 1914, ch. 76, sees. 45-48; Armour, Titles, pp. Ill, 
 115-117. Certified copies of registered wills as evi- 
 dence : Armour, Titles, pp. 124, 348. 
 
 23. — (8) The charge created by a judgment in alimony 
 binds all the land of the defendant in the registra- 
 tion division, E. S. 0. 1914, ch. 56, sec. 73. Such a 
 judgment is registered by a certificate: see post, sec. 
 43. There should now be attached a statutory de- 
 claration of the lands affected: (Guthrie, 1899, pp. 
 16, 23), unless the judgment was prior to 1st July, 
 1899, when it may go into the general register: 
 Guthrie, 1899, p. 18. The general words of a pro- 
 bate do not render it necessary to enter the pro- 
 bate in the general register where the will itself 
 does not contain a devise of lands without local de- 
 scription: Guthrie, 1897, pp. 12, 14, 1895, p. 5. A 
 will cannot be restricted to the general register if 
 its contents shew it should go into the separate re- 
 gisters: Guthrie, 1897, p. 46, and see post, sec. 34. 
 Where a will contains a general residuary devise, 
 but does not contain a devise of lands without local 
 description: see Guthrie, 1899, p. 7; 1898, p. 7; 1897 
 p. 34, 1900, p. 7. Suggestion of proceedings where 
 will incorrectly describes lands intended to be de- 
 vised : Guthrie, 1898, p. 22, and see post, sec. 56 notes. 
 Where a mortgage described certain lots by local 
 description and also contained general words af- 
 fecting " all the real estate " owned by the mort- 
 gagors, it was allowed registration on a statutory 
 declaration being attached: Guthrie, 1899, p. 13. 
 Where a deed to new trustees contained incidentally 
 a power of attorney in general words, but the in- 
 strument itself described lands with local descrip- 
 tion, it was not required to be put in the general 
 register: Guthrie, 1901, p. 14. 
 
458 CHAPTER 124. 
 
 26. Eights as between the Eegistrar for a county and 
 the Eegistrar for a city separated therefrom: Dur- 
 and v. Kingston, 14 C. P. 439. Where a separate 
 Eegistry Office is established for a city or town, the 
 books which have been kept for it must be delivered 
 over, although instruments relating to land outside 
 the city have been improperly entered in such 
 books: Ee Eegistrar of London, 17 U. C. E. 382. 
 
 27. Delivery up to claimant; mandamus; replevin: see 
 
 In re McLay, 24 TJ. C. E. 54. 
 
 31. As to abstract index and right to inspect it: see Ee 
 Webster, 18 U. C. E. 87; Eoss v. McLay, 26 C. P. 
 190 ; McNamara v. McLay, 8 A. E. 319 : see notes to 
 sec. 19, ante. For discussion of these decisions : see 
 Armour, Titles, pp. 80-85. In Lawrie v. Eathbun, 
 38 U. C. E. 255, it was held that the Eegistrar 's 
 omission to enter a deed in the abstract index did 
 not invalidate the registration or deprive the deed 
 of its priority. AVhat constitutes registration: see 
 Armour, Titles, pp. 60-71. See sees. 47, 52, 80: " In 
 order to give full effect to this group of clauses we 
 must resort to the fiction that all the duties of the 
 Eegistrar are supposed to be performed simultan- 
 eously as soon as he has received the instrument:" 
 Armour, Titles, p. 56. Where a mortgage contained 
 a recital that the mortgagor had purchased lands 
 described in the recital under an agreement for sale 
 and had made default in a payment and gave the 
 mortgage and other lands as collateral, the mortgage 
 was properly registered on both lots as the recital 
 might operate as an estoppel: Guthrie, 1898, p. 25. 
 Where land is erroneously described in a will there 
 is no means by affidavits or statutory declarations 
 to avoid entering the will on the abstract index 
 under the lot described in the will: Guthrie, 1899, 
 p. 27. Where descriptions in deeds are uncompli- 
 cated and clear, it is the duty of the Eegistrar to 
 enter such a description on the abstract index as 
 will sufficiently identify its location. This is not al- 
 ways possible with complicated; involved and inde- 
 finite descriptions. Where the Eegistrar could have 
 complied with this . section, he is not entitled to 
 charge for references in making up an abstract : see 
 post, sec. 92 (/) ; Guthrie, 1900, p. 5. Bestrictive 
 
CHAPTER 124. 459 
 
 covenants affecting other lots than the lot conveyed 
 should be noted against such other lots in the ab- 
 stract index: Guthrie, 1911, p. 20. 
 
 33. Instrument capable of registration: Eosenberg v. 
 Bochler, 4 0. W. N. 757, 24 0. W. E. 59. An instru- 
 ment stating that A. claims certain lands and in cer- 
 tain events will commence proceedings for their re- 
 covery, is not a registrable instrument, and, if re- 
 gistered, an action will lie for its removal. The Act 
 of Eegistration being a wrongful one, all parties 
 concerned are responsible and the Eegistrar is a 
 proper party to the action : Ontario Industrial Loan 
 v. Lindsey, 3 O. E. 66. Quaere, whether a deed not 
 specifying any particular lot by description is cap- 
 able of registration: Eussell v. Eussell, 28 Gr. 419, 
 and see post, sec. 34. The consideration money be- 
 ing omitted has no effect on the registration and it 
 is no part of the Eegistrar 's business whether the 
 consideration is expressed or omitted: Guthrie, 
 1897, p. 5Q. Nor is it any part of his business to 
 see whether the party who makes the deed is or is 
 not the owner of the land described: Guthrie, 1899, 
 p. 51. Where charge registered by a person with- 
 out interest : see Fee v. Macdonald, 3 0. W. N. 1378 ; 
 see also ante, sec. 2 (d) and notes. 
 
 34. — (1) A plan attached to a deed which is in effect a 
 complete description by metes and bounds and 
 which is referred to in the deed as forming part of 
 the conveyance, is a satisfactory description under 
 the Eegistry Act. This is the form of description 
 in common use in deeds of railway rights of way: 
 Guthrie, 1913, No. 9. Where a plan is attached to 
 a deed to elucidate the description, the approved 
 practice is to deposit an extra blue print with the 
 Eegistrar. No extra fee is payable for this : Guth- 
 rie, 1912, p. 13. Where wills misdescribe lands: see 
 note to sec. 56, post. An easement should be de- 
 scribed by giving a description of the servient tene- 
 ment and a description of the nature of the ease- 
 ment to which it is subject: Guthrie, 1911, p. 26. 
 An incomplete instrument cannot be registered even 
 though accompanied by statutory declaration Of ex- 
 planations: Guthrie, 1913, No. 17. 
 
460 CHAPTER 124. 
 
 34— (2) A will which affects lands without local de- 
 scription may be registered in the separate register 
 without being first registered in the general register 
 provided it has attached to it a statutory declara- 
 tion describing the lands affected: Guthrie, 1913, 
 No. 12. See ante, sec. 23 (8) notes. 
 
 34.— (6) A description of a township lot, save and ex- 
 cept a portion described in a registered instrument, 
 is a sufficient description if the registered instru- 
 ment referred to itself contains a description cap- 
 able of being traced by a surveyor: Guthrie, 1911, 
 p. 16. What amounts to a sufficient description of 
 lands; reference to lands described in other instru- 
 ments involving searches; statutory declaration 
 should be attached: Guthrie, 1902, p. 7. 
 
 34. — (7) A patent of Indian lands was obtained under 
 assignments duly registered in the Indian Depart- 
 ment. A prior, assignee had executed a mortgage 
 which was not registered in the department, but 
 was registered in the County Eegistry Office. The 
 patentee had no actual notice, and it was held that 
 the registration in the County Eegistry Office was 
 not notice and the patentee had priority over the 
 mortgage to the extent of money paid for obtaining 
 the patent : Ee Eeed and "Wilson, 23 0. E. 552. Mort- 
 gagee of Crown vendee : see Garside v. King, 2 Gr. 
 673. Express notice of an unregistered assignment 
 of unpatented land has the same effect as a like 
 notice of an unregistered conveyance after patent: 
 Goff v. Lister, 13 Gr. 406, 14 Gr. 451. Incumbrances 
 before patent: see Holland v. Moore, 12 Gr. 296. 
 Application of Eegistry Acts; purchase for value 
 without notice : Casey y. Jordan, 5 Gr. 467 ; see * 
 Vance v. Cummings, 13 Gr. 5. The mortgagor and 
 mortgagee have all the rights between themselves 
 that they would have if the lands were actually 
 vested in the mortgagor. The mortgagor is en- 
 titled to set up the Statute of Limitations, and the 
 exercise of power of sale has not the effect of stop- 
 ping the running of the Statute: Watson v. Lind- 
 say, 27 Gr. 353, 6 A. E. 609. The Court will not par- 
 tition lands, the title to which is in the Crown, nor 
 will it order a sale at the instance of the represent- 
 atives of a deceased locatee: Abell v. Weir, 24 Gr. 
 
CHAPTER 124. 461 
 
 464. The remedy of a squatter is by application to 
 the executive government of the province: Jenkins 
 v. Martin, 20 Gr. 613. A will of unpatented lands 
 cannot be registered as against unpatented lots: 
 Guthrie, 1910, p. 35. Armour, E. P., p. 433. 
 
 35. The registration of a mortgage was not invalidated 
 by the mortgagee signing it and a witness subscrib- 
 ing his name after it had been registered: Muir v. 
 Dunnett, 11 Gr. 85. Where a Registrar recorded a 
 certificate of discharge of mortgage the affidavit of 
 which did not state the place of execution, it was 
 held, although it might have been refused registra- 
 tion, yet being registered, it was an effectual re- 
 conveyance of the legal estate : McGrath v. Todd, 26 
 U. C. B. 87. The Court refused a mandamus to re- 
 gister a deed on a declaration of its execution made 
 in England under 5 and 6 William IV., ch. 62 : In re 
 Lyons, 6 0. S. 627. A mortgagor is a competent 
 witness to an assignment of mortgage: Guthrie, 
 1913, No. 17. A mandamus lay to compel a witness 
 to prove the execution of a deed for registry: E. v. 
 O'Meara, 15 U. 0. E. 201 (see now sec. 40). As to 
 attestation: see Armour, E.,P., p. 319. One of the 
 grantors is not a competent witness to a deed: 
 Guthrie, 1895, p. 28. The Canada Evidence Act, 
 providing for statutory declarations, does not apply 
 to this Act : Guthrie, 1895, p. 30. A party may sign 
 his name in any way he sees fit; using initials, ab- 
 breviations or foreign script: Guthrie, 1898, p. 16. 
 This section refers to the mode of proof for docu- 
 ments defined in section 2 as " instruments " and 
 does not extend to declarations of incorporation or 
 other documents directed by other Acts to be re- 
 gistered : Guthrie, 1898, p. 20. An affidavit in which 
 the witness deposed to seeing the document ' ' ex- 
 ecuted by all the granting parties," was accepted 
 where it plainly appeared who the granting parties 
 were: Guthrie, 1898, p. 22. Where the affidavit is 
 plainly defective the Eegistrar should not accept the 
 instrument: Guthrie, 1898, p. 24. A shareholder in 
 an unincorporated company should not be a witness 
 to the company's deed, but a shareholder or even 
 an office-holder may so act in respect of an incor- 
 porated company: Guthrie, 1899, p. 16. Eegistra- 
 tion without the affidavit on the copy left with the 
 
462 CHAPTER 124. 
 
 Kegistrar being sworn, is quite irregular: Guthrie, 
 1899, p. 23. Where the signature of one party has 
 not been proved either his name should be omitted 
 from the abstract index or certificates of the fact 
 that his signature has not been proved should be 
 noted. The instrument in short, will be registered 
 only in respect of the execution by the parties duly 
 proved: Guthrie, 1899, p. 18. Registrars receiving 
 instruments by mail not capable of registration owing 
 to some defect are justified in sending them back by 
 the same mode. But it is suggested that they should 
 register the letter : Guthrie, 1897, p. 47. Where an in- 
 strument is registered by inadvertence, the affidavit 
 being hopelessly bad by reason of omissions, the reg- 
 istration is a nullity : Guthrie, 1899, p. 19. 
 
 36. A discharge of a lien under this section by the as- 
 
 signee may be registered without prior registration 
 of the assigment, as section 65 only refers to dis- 
 charges of mortgages : Guthrie, 1901, p. 5. 
 
 37. The execution of deeds within the county as well as 
 without may be proved before a commissioner: Ee 
 Registrar of York, 3 U. C. R. 188. It was held no 
 objection that one witness swore the affidavit of 
 execution before the other witness. It was held also 
 that a statement by a witness that he had " seen the 
 due execution " of the deed was sufficient: Reid v. 
 Whitehead, 10 Gr. 446. Where an affidavit is sworn 
 in England before a person who subscribes himself 
 " a commissioner, etc.," or " a commissioner of 
 oafhs," the Registrar may assume that he is a com- 
 missioner entitled to take the oath: Guthrie, 1897, 
 pp. 43, 53. Until some judicial interpretation of R. 
 S. 0. 1914, ch. 160, sec. 8, is given, an affidavit of 
 execution taken before a notary in a foreign coun- 
 try is not to be rejected because the notary's seal 
 is not affixed: Guthrie, 1897, p. 47. An affidavit 
 sworn before a foreign justice of the peace is insuffi- 
 cient: Guthrie, 1899, p. 15. An instrument having 
 attached to it an affidavit of execution sworn before 
 a Commissioner for taking affidavits for use in the 
 Supreme Court of Judicature in England may be 
 registered though no official seal was attached and 
 the commissioner did not certify that he had no of- 
 ficial seal: Guthrie, 1913, No. 15; see provisions of 
 R, S. 0., 1914, ch. 1, sec. 23, and ch. 76, sec. 38. 
 
CHAPTER 124. 463 
 
 40. Affidavit of execution: Davis v. Winn, 16 0. W. R. 
 
 945, 17 0. W. E. 105, 2 0. W. N. 47, 123, 22 0. L. E. 
 111. 
 
 41. See Armour, E. P., p. 319, " Attestation." It is not 
 necessary that the proof to satisfy the County 
 Judge should be written on the instrument. Where 
 the affidavits are endorsed on the instrument they 
 are virtually part of the Judge's certificate and like 
 it should be copied in full: Guthrie, 1897, p. 21. 
 Where a document is so informal as not to require 
 attestation and there is doubt whether the person 
 who made the affidavit actually signed as witness, 
 the document should be endorsed with a certificate 
 of the County Judge ; and the document having been 
 registered, the Court would presume that such cer- 
 tificate had been obtained: Per Taschereau, J.: 
 Hoofstetter v. Eooker, 26 S. C. E. 41. A certificate 
 under this section does not require the seal of the 
 County Court : Guthrie, 1912, p. 22. 
 
 42. The inspector of prisons and public charities, is a 
 
 corporation sole (E. S. 0. 1914, ch. 301, sec. 6) and 
 under E. S. 0. 1914, ch. 295, sec. 36, has power to 
 sell and convey a lunatic's estate with the concur- 
 rence of the Attorney-General. The corporate seal 
 of the inspector suffices and his signature does not 
 require an affidavit. The practice is not to require 
 an affidavit to the signature of the Attorney-Genr 
 eral or other public official approving -a convey- 
 ance: Guthrie, 1910, p. 27. Under this section an 
 affidavit is not dispensed with merely because an in- 
 strument has the seal of a corporation affixed. There 
 must be the signature of the secretary, manager or 
 attorney or presiding officer. A liquidator properly 
 does not fall within these words and an affidavit of 
 execution should be filed: Guthrie, 1913, No. 10. 
 
 43. A judgment in alimony is registered by means of a 
 
 certificate and until the certificate is registered the 
 judgment does not bind the lands. Such a certificate 
 affecting lands without local description, it would 
 seem proper to register a statutory declaration of the 
 lands it is intended to affect: see sees. 23, 24, and 
 notes ; see also H. & L. notes, p. 30, and E. S. 0. 1914, 
 ch. 56, sec. 73. An order for payment of interim ali- 
 mony may be registered: Miller v. Miller, 8 C. L. T. 
 
464 
 
 CHAPTER 124. 
 
 120. No rights are given by a certificate of Us 
 pendens — the whole effect is that notice is given that 
 rights are being claimed: Brock v. Crawford, 11 
 0. W. E. 143. Where a plaintiff registers a lis 
 pendens for his own benefit, he may vacate it at any 
 time and register the order: sections 36 and 37 
 of E. S. 0. 1914, ch. 56, construed: McGillivary v. 
 Williams, 4 0. L. E. 45. A Us pendens registered 
 by the plaintiff in an action for declaration of in- 
 choate right of dower vacated as vexatious: King 
 v. King, 13 0. W. E. 760. A claim for commission 
 and damages for failure to give an option could not 
 possibly be the foundation of a claim in respect of 
 lands and lis pendens registered was vacated: 
 Jenkins v. McWhinney, 4 0. W. N. 90, 23 0. W. E. 
 29, 5 D. L. E. 883. Eegistration of lis pendens 
 vacated on terms : land being sold and money paid 
 into Court: Kennedy v. Kennedy, 4 0. W. N. 1370, 
 24 0. W. E. 626, 786. See also Ehum v. Pasternack, 
 9 0. W. E. 130. Certificates of lis pendens: see 
 H. & L. notes, pp. 147, 149, also p. 867; E. S. 0. 
 1914, ch. 56, sees. 36, 37. 
 
 45. A will in French filed with a notary in Quebec is re- 
 
 gistrable under this section and section 46, but an 
 affidavit is also required of the death of the testator 
 under sec. 56 (3) : Guthrie, 1897, p. 42. 
 
 46. A party to a deed may sign in Hebrew or any lan- 
 
 guage he likes. He may make a mark or any form 
 of signature. The witness need not make any but 
 the usual affidavit and in copying the signature the 
 Eegistrar is to make the best imitation he can: 
 Guthrie, 1897, p. 45; see Armour, E. P., pp. 309-310. 
 
 47. Under the land system of Ontario it is one of the 
 terms of a contract of sale when nothing is said to 
 the contrary that the sale should be completed by a 
 proper conveyance susceptible of registration: 
 Owen v. Mercier, 12 0. L. E. 529. A docu- 
 ment was of such an informal character that it was 
 merely a memorandum written by a solicitor com- 
 mencing " Dear Sir," while at the foot the solici- 
 tor's name appeared in his handwriting whether as 
 witness or as the person to whom the letter was ad- 
 dressed. The usual affidavit of execution was sub- 
 sequently made and the document registered. It 
 
CHAPTER 124. 465 
 
 was held that the informality of the proof of ex- 
 ecution did not make the registration a nullity: 
 Hoofstetter v. Booker, 26 S. C. E. 41. Delivery of 
 instruments for registration is intended or presumed 
 to be made personally. The use of the mails is, how- 
 ever, convenient and ought not to be discouraged: 
 Guthrie, 1910, p. 14. " Every certificate and affi- 
 davit " includes affidavits used on application for 
 Judge's order under sec. 41, where these happen to 
 be endorsed on the instrument: Guthrie, 1897, p. 21. 
 See Armour, Titles, pp. 118-119, pp. 60-71, what con- 
 stitutes registration, esp. p. 63. See also sees. 31, 
 52, 80. 
 
 48. The words ' ' not to be recorded in full ' ' do not now 
 require to be signed: Guthrie, 1910, p. 30. An in- 
 strument which is a mortgage and something more, 
 e.g. a restraint on alienation, cannot be endorsed 
 under this section: Guthrie, 1901, p. 9. Nor can an 
 instrument containing changes in favour of others 
 than the mortgagee: Guthrie, 1901, p. 10. Where 
 an instrument which is not proper to endorse under 
 this section is tendered to the Eegistrar so endorsed 
 for registration, the Eegistrar 's duty is not to strike 
 out the endorsement and register at full length, but 
 to return the instrument: Guthrie, 1901, p. 11. An 
 assignment of mortgage by way of mortgage is in- 
 cluded in the section: Guthrie, 1901, p. 8. The Act 
 does not permit the limited .endorsement so as to 
 reduce the registration fees where the assignment 
 is of more than one mortgage : Guthrie, 1897, p. 14, 
 1898, p. 19. An agreement for annuities charged 
 on land is not a " mortgage " within this section: 
 Guthrie, 1897, p. 32. An instrument which contains 
 special trusts and powers, although it is also a 
 charge on lands and an assignment of mortgages, is 
 not capable of endorsement under this section: 
 Guthrie, 1897, p. 31. An assignment of mortgage 
 may contain a special covenant for payment and 
 still be capable of limited endorsement: Guthrie, 
 1898, p. 5. An appointment by way of mortgage ' 
 pursuant to a power is capable of limited endorse- 
 ment: Guthrie, 1898, p. 12. The fact that a statu- 
 tory declaration is attached to a mortgage makes 
 no difference as to its capability of endorsement. 
 
 S.A. — 30 
 
4^6 CHAPTER 124. 
 
 The statutory declaration should be noted as not 
 registered: Guthrie, 1898, p. 26. A mortgage to 
 secure payment under partnership and having the 
 agreement attached may be endorsed under this sec- 
 tion: Guthrie, 1898, p. 27. A mortgage may be en- 
 dorsed notwithstanding a prior mortgagee is a party 
 thereto and agrees to postpone his mortgage : Guth- 
 rie, 1899, p. 9. An instrument granting lands as- 
 signing a mortgage and assigning an agreement for 
 purchase by way of mortgage may be endorsed 
 where the total effect of the instrument is that of 
 a mortgage : Guthrie, 1898, p. 10. Where a number 
 of mortgages are assigned by the same instrument 
 the Eegistrar is entitled to be paid a minimum $1.00 
 for each mortgage assigned: Guthrie, 1911, p. 28; 
 referring to unreported decision of Britton, J. 
 
 49. Execution of power of attorney must be proved by 
 
 registration of the power or other evidence. Ee- 
 gistration of the deed purporting to be executed 
 under the power is not proof of the power and does 
 not become so by any lapse of time : Armour, Titles, 
 pp. 118-119. 
 
 50. The production of the registered duplicate original 
 
 of an instrument with the Eegistrar 's certificate 
 eudorsed thereon is by this section prima facie evi- 
 dence of due execution notwithstanding the fact that 
 material alterations appear on the face of the in- 
 strument, all questions as to the alterations being 
 left open. "Where it would be an offence to alter 
 a deed which has been completed, the legal pre- 
 sumption is that the alterations were made under 
 such circumstances as not to constitute an offence: 
 Graystock v. Barnhart, 26 A. E. 545. "Where a Ee- 
 gistrar endorsed " No. 44,322 purporting to be a 
 duplicate hereof, was registered, etc.," it was held 
 that the Eegistrar had not complied with the Act. 
 He must examine the instruments and certify with- 
 out qualification the facts he is required to state: 
 Ee Bradshaw, 26 U. C. E. 464. This section does 
 not enable a party to use as evidence a certified 
 copy of a registered probate : Barber v. McKay, 17 
 0. E. 562, 19 O. E. 50; see Armour, E. P., p. 319; 
 Titles, p. 115 ; and see sec. 22 and notes. Where an 
 instrument, e.g., a consent to an assignment of a 
 
CHAPTER 124. 467 
 
 lease is attached to the lease, but not to be regis- 
 tered, the assignment should not be rejected by the 
 Registrar, but a special form of endorsement should 
 be made certifying that the assignment but not the 
 consent purporting to be endorsed thereon, is duly 
 registered. This is to avoid the effect of this sec- 
 tion in respect of the unregistered consent: Guthrie, 
 1897, p. 24. An instrument may be registered in as 
 many " parts " as is desired. The Eegistrar makes 
 his endorsement on each part and charges extra 
 for each extra certificate: Guthrie, 1897, p. 35. 
 Where there is a mistake in the duplicate registered 
 the Registrar has no power to rectify the error: 
 Guthrie, 1897, p. 41. 
 
 52. See Armour, Titles, p. 60, "What constitutes regis- 
 tration," esp. pp. 60-61; see also sees. 31, 47, 80. 
 Where a will is presented for registration contain- 
 ing devises for lands in different municipalities, the 
 registration cannot be limited to one municipality 
 on request. Section 92 must be complied with: 
 Guthrie, 1897, p. 13. 
 
 54. Patents repealed or avoided: see ante, sec. 34 (7); 
 H. & L. notes, pp. 24-5, and Con Rule 241, 1913, 
 Rule 5 ; see also R. S. 0. 1914, ch. 28, sec. 16, notes ; 
 R. S. 0. 1914, ch. 56, sec. 16 (a), note (8). 
 
 56. See Armour, Titles, p. 361. When the copy of the 
 will is left for registration there must be attached 
 to it the affidavit mentioned in this sub-section. That 
 is an essential preliminary to bring this sub-section 
 into operation: Guthrie, 1897, p. 49. Where pro- 
 bate of a will has been registered and it is after- 
 wards amended by the Surrogate Court, the Re- 
 gistrar cannot alter his books. The proper course 
 is to register the amended probate: Guthrie, 1898, 
 p. 23. Letters probate issued by the proper Surro- 
 gate Court are, notwithstanding the Devolution of 
 Estates Act. only prima facie evidence as far as real 
 estate is concerned, of the testamentary capacity of 
 the testator: Sproule v. Watson, 23 A. R. 692. The 
 will must be copied exactly the same as the" original 
 misspelled words and all as nearly as can be made 
 out: Guthrie, 1895, p. 6. The witnesses should in 
 their affidavits verify the copies of the will and 
 
468 CHAPTER 124. 
 
 codicils and prove the due execution of the will. The 
 affidavits when complete should he deposited in the 
 Begistry Office with the copy of the will and codicil : 
 Guthrie, 1895, p. 14. Statutory declarations will 
 not suffice: Guthrie, 1895, p. 30. When wills are 
 registered in the general register: see sec. 23 (8), 
 ante, notes. Where the original will was impro- 
 perly deposited it was not to be treated as regis- 
 tered until this section had been complied with: 
 Guthrie, 1895, p. 32. Registration of a will can 
 only be had on registration of probate or on affi- 
 davit of witnesses to the will. Where the witnesses 
 are dead, resort must be had to probate: Guthrie, 
 1898, p. 24. Discharges of mortgages by foreign 
 executors and administrators: see post, sec. 65, 
 notes. Where land is erroneously described in a 
 will there is no means by affidvaits or statutory de- 
 clarations to avoid entering the will on the abstract 
 index under the lot described in the will: Guthrie, 
 1898, p. 22, 1899, p. 27. Affidavits alleging that 
 lands in wills have been erroneously described or 
 stating that a testator did not own a certain lot or 
 •professing to say what the testator's real intention 
 was, (cannot be registered: Guthrie, 1910, p. 36. 
 Where a will was made some years before the tes- 
 tator's death and disposed of real estate which "the 
 testator subsequently sold in his lifetime as ap- 
 peared by the books in the Registry Office, the Re- 
 gistrar may take the affidavit of an executor, under 
 sec. 65 (5), stating that the will does not affect lands 
 in the registry division except so far as the testator 
 was the holder of a mortgage (or as the fact may 
 be). It is not clear that the Registrar has the right 
 to go behind that affidavit and the part of the will 
 and probate accompanying the same : Guthrie, 1913, 
 No. 13. The certificate of the Registrar of the Sur- 
 rogate Court in sub-sec. (4) does not require to be 
 under seal : Guthrie, 1910, p. 31. Where it is desired 
 to obtain the certificate of the Registrar of the Sur- 
 rogate Court to enable will or exemplification of pro- 
 bate to be filed, see as to proceedings : R. S. 0. 1914, 
 ch. 24, sec. 23, notes, Regulation No. 5 and Form 
 10, under that Act. 
 
 58. A notice of sale of lands under the Act respecting 
 Mortgages (R. S. O. 1914, ch. 112), and a notice of 
 
CHAPTER 124. 459 
 
 exercising power of sale in any mortgage, accom- 
 panied by proof of its service by declarations or 
 affidavits, is what is permitted to be registered in 
 the manner provided, without copying into the 
 books. Other sale papers such as the advertisement 
 of sale, the auctioneer's declaration, Sheriff's certi- 
 ficate and the like, cannot be registered but may be 
 deposited under the Custody of Documents Act: 
 Guthrie; J.897, p. 23. Where a notice of sale is ad- 
 dressed to (say) four persons, and service on three 
 is proved by declaration and the fourth makes an 
 admission of service, the admission should be veri- 
 fied by declaration before registration of the notice : 
 Guthrie, 1899, pp. 19, 20. The Act makes no provi- 
 sion for accepting an admission of service : Guthrie, 
 1899, p. 20. The fee for registration is only 50 
 , cents, even if more than four lots are affected : 
 Guthrie, 1899, p. 22; see sec. 92 (t), post. Where 
 a notice is deposited under the Custody of Docu- 
 ments Act, a Eegistrar not parting with possession 
 of it within the meaning of section 12 of that Act 
 by permitting it to be registered under this section 
 at the request of the person depositing it : Guthrie, 
 1899, p. 25. For registration purposes it is not 
 necessary that a notice of exercising power of sale 
 should be signed, nor is the legal sufficiency of the 
 notice a question for the Eegistrar: Guthrie, 1912, 
 p. 15. Sales made before and after January 1, 1900 : 
 see Fenwick v. Whitwan, 1 O. L. R. 24. It appears 
 that it is not compulsory to register the notice of 
 exercising power of sale as a condition precedent to 
 the registration of a conveyance made pursuant 
 to such notice: Guthrie, 1910, p. 30. As to regis- 
 tration of judgments for alimony: see R. S. O. 
 1914, ch. 56, sec. 73; see also notes to sees. 23 (8) 
 and 43 ante. As to registration of notice of seizure 
 by Sheriff of a mortgage: see R. S. O. 1914, ch. 
 80, sec. 25. 
 
 59. The memorial of a deed executed by the grantor 
 may be treated as an original instrument affecting 
 lands under sec. 2 of this Act, and where the deed 
 of bargain and sale of which it is a memorial is 
 not produced, that fact should be noted in the 
 abstract index: Guthrie, 1899, p. 26. 
 
470 CHAPTER 124. 
 
 60. The old law required the production of the original 
 instrument and the memorial. The memorial was 
 left in the Eegistry office and the original instru- 
 ment handed back. The new law (in force generally- 
 speaking since 1st January, 1866) requires dup- 
 licate originals: Guthrie, 1899, p. 19. 
 
 62. The owner of an equity of redemption is not bound 
 to accept a statutory discharge. He may at his 
 own expense insist on a reconveyance with a cov- 
 enant against incumbrances : McLennan v. McLean, 
 27 Gr. 54. A Eegistrar cannot be required to 
 register a certificate applying to more than one 
 instrument. Eact mortgage to be discharged should 
 have a separate certificate. Queere as to validity of 
 a certificate embracing several mortgages: In re 
 Smith and Shenston, 31 U. C. E. 305; see Guthrie, 
 1897, p. 16. Where a mortgage was paid off and 
 a certificate of discharge, given and registered 
 about 4 years after the mortgagor's death, stated 
 that the mortgagor had paid the mortgage money, 
 etc. Held sufficient also even if the payer's name 
 was altogether omitted : Carrick v. Smith, 35 U. C. 
 E. 348. A discharge of mortgage not being under 
 seal is not an estoppel as to the fact of payment: 
 Bigelow v. Stanley, 14 C. P. 276. Where the affi- 
 davit of execution is defective and yet has been 
 accepted by the Eegistrar, though he should pro- 
 perly have refused to register it, being regis- 
 tered it is an effectual reconveyance of the legal 
 estate: Magrath v. Todd, 26 U. C. E. 87; see also 
 Stoddart v. Stoddart, 39 U. C. E. 203. Where a 
 mortgage given to Elizabeth S. was discharged by 
 Eliza S., it was no valid objection where the identity 
 of the person signing was established to the satis- 
 faction of the Eegistrar: Ee Clarke and Chamber- 
 lain, 18 0. E. 270. A discharge of mortgage referred 
 to the mortgage as 5746, whereas it was registered 
 as 5746 C. W. Held a valid discharge properly 
 registered. The Act says nothing 'about letters, 
 which are arbitrary marks added by officials for con- 
 venience of reference. The Act requires numbers 
 only: Ee Clark and Chamberlain, 18 O. E. 270. 
 Where the whole mortgage and whole debt is as- 
 signed the assignee can discharge even if it appear 
 on the face of the instrument that the assignment is 
 
CHAPTER 124. 471 
 
 to secure a debt lesser in amount: Ee Bland and 
 Mohun, 5 0. W. N. 522. The change of wording in 
 this section should be noted. Formerly (10 Edw. 
 VIL, ch. 60, sec. 62) it read, "Executed by the 
 morgtagee, or if the mortgage has been assigned, 
 then by the assignee, or by such other person as 
 may be entitled by law to receive the money and 
 to discharge the mortgage and duly prove," etc 
 Can one of several excutors validly discharge a 
 mortgage under the present wording of the section? 
 See Ee -Johnson, 6 P. E. 225: see 47 C. L. J. 
 322; see also E. S. 0. 1897, ch. 121, sees. 11 and 
 12, E. S. 0. 1914, ch. 112, sec. 10, and sec. 65 post. 
 The Eegistrar should refuse registry to a certifi- 
 cate of discharge of mortgage which contains an 
 erroneous description of the mortgage: Guthrie, 
 1895, p. 26. Where a mortgagee assigns the mort- 
 gage and afterwards gives a certificate of discharge, 
 the Eegistrar should so note on the abstract index 
 and in all certificates which he gives: Guthrie, 
 
 1897, p. 44. On an assignment of mortgage part 
 of the lands mortgaged were omitted. This does 
 not affect the validity of a discharge executed by 
 the assignee where the whole mortgage money was 
 assigned to the assignee: Guthrie's 1913, No. 4. 
 A certificate of discharge may be given of a mort- 
 gage created by an assignment of a mortgage by 
 way of mortgage. Eemarks on the effect of regis- 
 tration of such a certificate: Guthrie, 1913, No. 2. 
 A statutory discharge of a derivative mortgage 
 may- be registered: re-assignment not necessary: 
 Guthrie, 1898, p. 18. The original mortgage and 
 the derivative mortgage can be discharged in one 
 certificate of discharge, being that of the original 
 mortgage, the derivative mortgagee joining : Guthrie, 
 
 1898, p. 26. A registered agreement by a mort- 
 gagee to accept a less sum than the mortgage debt, 
 is not a cloud on the title after the mortgage is 
 discharged : Guthrie, 1900, p. 10. A notarial instru- 
 ment executed in Quebec and called a " final acquit- 
 tance of mortgage " may be entitled to registration, 
 (see sec. 45), though not in the form of a statutory 
 discharge: Guthrie, 1910, p. 25. Discharge of 
 mortgages by married women under former law: 
 Armour, Titles, pp. 256-267; E. S. O. 1897, ch. 136, 
 sec. 81. See Interpretation Act, E. S- 0. 1914, ch. 1, 
 
472 
 
 CHAPTER 124. 
 
 sec. 28 (d), as to application of forms and deviations 
 from them. 
 
 63. Where two loan companies are amalgamated under 
 
 a Dominion Act, there should be a recital of this 
 fact in discharge of mortgages of either company 
 by the amalgamated company: Guthrie, 1900, p. 
 13, see also p. 9. 
 
 64. See Armour, Titles, pp. 252, 261. 
 
 65. A purchaser, being entitled to a registered title^ can 
 
 insist that the probate of the will of a deceased 
 mortgagee whose executor had given a discharge 
 of mortgage, be registered : Ee Taylor and Martyn, 
 14 0. L. E. 132. As to particulars required to be 
 given in certificate of discharge when assignee' of 
 mortgage is giving discharge: see Ee Mara, 16 0. 
 E. 391. Where parties had a right under the former 
 law to register a discharge without registering the 
 will or probate of a deceased mortgagee, this 
 enactment is not retrospective to deprive them of 
 the right so to register a discharge prepared, ex- 
 ecuted and proved before the present law came into 
 effect : Guthrie, 1895, p. 7. Heirs at law who have 
 not taken out administration are not entitled to 
 grant certificates of discharge: Guthrie, 1895, p. 
 30. It is not sufficient to recite in the discharge 
 the fact of registration of the will in another 
 county: Guthrie, 1895, p. 32. Where a mortgage 
 is given to the executor as such, it is not necessary 
 to register the probate of the will under which he 
 acts when he comes to grant a discharge: Guthrie, 
 1897, p. 22. The administrator of the real estate 
 . only of a deceased mortgagee is not entitled to give 
 a discharge: Guthrie, 1898, p. 26. The require- 
 ment for insertion of the registration date and 
 number of the power of attorney under which a dis- 
 charge is given is not retrospective and does not 
 apply to a discharge executed before the amend- 
 ment came into force : Guthrie, 1899, pp. 8, 23. 
 Where the title of an assignee of a mortgage was 
 complete under the registration law existing when 
 he became assignee, no further prior registrations 
 are required when he comes to give a discharge: 
 Guthrie, 1899, p. 13. Where a will had been 
 
CHAPTER 124. 473 
 
 registered and afterwards admitted to probate, 
 probate should be registered before a certificate 
 of discharge given by an executor is registered: 
 Guthrie, 1899, p. 20. Where a mortgage is to be 
 discharged by the assignee of a legatee thereof, 
 probate of the will should first be registered: 
 Guthrie, 1899, p. 26. Under B. S. 0. 1914, ch. 295, 
 sec. 36, the Inspector of Prisons and Public 
 Charities can give a statutory discharge of mort- 
 gage and need not file any documents shewing his 
 right: Guthrie, 1899, p. 28. Where the certificate 
 of discharge is not made by the mortgagee, e.g., 
 by his attorney, that fact should be stated in the 
 abstract index: Guthrie, 1897, p. 52. Where a 
 new trustee has been appointed, the appointment 
 must be registered before a discharge of mortgage 
 by the new trustees can be registered: Guthrie, 
 1898, p. 15. The section does not apply, to the old 
 form of release and reconveyance which may be 
 resorted to, and the deed may contain the necessary 
 facts in recitals: Guthrie, 1898, pp. 15, 25. Where 
 mortgage is made in error to B. instead of to C, it 
 cannot be discharged by C. : Guthrie, 1898, p. 20. 
 A . surviving mortgagee must now register under 
 this section, prior to registration of the discharge, 
 the documents by which he claims interest in the 
 mortgage money. This must be done apparently 
 whenever the person or persons granting the certi- 
 ficate of discharge are not identical with the original 
 mortgagees: Guthrie, 1898, p. 24; see E. S. 0. 
 1914, ch. 112, sec. 10. This section does not apply 
 to the acts of a liquidator of a loan company ex- 
 ecuting discharges of mortgages. The liquidator 
 is substituted for the original officers of the com- 
 pany and he is not bound to register proof of his 
 powers to execute in the name of the mortgagees: 
 Guthrie, 1898, p. 23, 1913, No. 10. A mortgage 
 made to a partnership may be discharged by one 
 of the members of the partnership under the general 
 provisions of the law of partnership without the 
 necessity for the registration of the co-partner- 
 ship. This section does not apply to such a dis- 
 charge: Guthrie, 1913, No. 14. A discharge of 
 mortgage executed by the committee of a lunatic, 
 especially where the discharge is by the Official 
 Eeferee, may be registered without requiring 
 
474 CHAPTER 124. 
 
 registration of the order of the Court appointing 
 the committee. The committee does not execute 
 under power of attorney or anything like it: 
 Guthrie, 1913, No. 11. A discharge of mortgage 
 executed and completed in 1895 may be registered 
 without complying jwith amendments to the Act 
 since that date. The discharge was a complete 
 instrument at the time it was executed. An assign- 
 ment of such a mortgage must be registered before 
 the discharge can be registered : Guthrie, 1913, No. 
 17. This section does not compel registration of 
 instruments, the registration of which was unneces- 
 sary prior to its enactment. A certificate of dis- 
 charge of mortgage by assignees of executors of 
 a mortgagee where assignment by executors was 
 executed in April, 1889, could be registered without 
 registration of the original mortgagee's will: 
 Guthrie, 1910, p. 32. Where a mortgage was made 
 by A. to B., and B. died appointing D. his sole 
 executrix and devisee. D. died intestate and a dis- 
 charge after the lapse of 7 years was tendered 
 by E., the administrator of D. Though E. was not 
 the legal personal representative of B., the lapse 
 of time was held by the inspector as giving rise 
 to presumptions of payment of debts, etc!, entitling 
 the discharge to registration: Guthrie, 1911, p. 8. 
 Where a mortgage was taken by a mortgagee 
 described as "administrator of A. B.," the adminis- 
 trator of such mortgagee may give a certificate of 
 discharge by virtue of the Registry Act, though 
 not having at common law power to reconvey: 
 Guthrie, 1910, p. 12. Executors of a will proved 
 in Great Britain and registered with the foreign 
 probate in Ontario, can discharge a mortgage with- 
 out proving the will in Ontario or having the pro- 
 bate resealed here. Aliter as to administrators: Be 
 Green and Flatt, 29 O. L. B. 103. A foreign 
 administrator cannot discharge a mortgage of land 
 in Ontario: Re Thorpe, 15 Gr. 76; Re Green and 
 Flatt, 4 0. W. N. 1388, 29 0. L. R. 103. Can one 
 of several executors execute a valid discharge of 
 mortgage? See Ex parte Johnson, 6 P. R. 225; 
 but see notes to sec. 62 ante. Sub-sec. 4 does not 
 permit the formal part of a probate to be registered 
 without the will : Guthrie, 1895, p. 33. In register- 
 ing an abbreviated form of the probate, the original 
 
CHAPTER 124. 475 
 
 probate must be produced as required by sec. 56, 
 aud the certificate endorsed should state that it is 
 registered under this section: Guthrie, 1899, p. 
 17. "Where a Eegistrar is tendered a short form 
 of will for registration, he must register it or re- 
 turn it if defective: Guthrie, 1911, p. 9. A dis- 
 charge of a lien under sec. 36 by the assignee there- 
 of may be registered without prior registration 
 of the assignment as the section only refers to dis- 
 charges of mortgages: Guthrie, 1901, p. 5. 
 
 66. The Registrar is bound to register a certificate of 
 discharge of part of the lands contained in a mort- 
 gage: Ee Ridout, 2 C. P. 477. 
 
 67. History of statutory discharge and its effect : Noble 
 v. Noble, 25 0. L. E. 379, 27 0. L. E. 342. What 
 the Registry Act makes tantamount to a reconvey- 
 ance is the registration, not the excecution, of a 
 certificate of discharge of mortgage: Ee Music 
 Hall Block, 8 0. E. 225. The certificate of the 
 Eegistrar.A)f the discharge of the mortgage en- 
 dorsed on the mortgage deed, is sufficient evidence 
 of the reconveyance without shewing the execution 
 of the discharge itself : Doe d. Crookshank v. Hum- 
 berstone, 6 O. S. 103; see also Lee v. Morrow, 25 
 TJ. C. E. 604. An unregistered certificate of dis- 
 charge operates only as a receipt: Trust & Loan 
 v. Gallaher, 8 P. E. 97. Where an unregistered 
 discharge is lost, the disclaimer of the mortgagees 
 and the consent of their solicitor are not sufficient 
 to enable the Court to declare the legal estate re- 
 vested: Ee Moore, 8 P. E. 471. Where a deed 
 from the mortgagor to a purchaser and a certificate 
 of discharge of mortgage to the mortgagor are 
 registered in that order, the discharge operates as 
 a conveyance to the purchaser as the mortgagor's 
 
 • assignee : Imperial Bank v. Metcalfe, 11 0. E. 467. 
 The discharge of a mortgage in fee simple made by 
 a tenant in tail reconveys the land to the mort- 
 gagor barred of the entail: Lawlor v. Lawlor, 10 
 S. C. E. 194; but see Ee Dolsen, 4 Ch. Ch. 36. 
 Where a father owned, subject to a mortgage, a 
 farm on which his son lived for a number of years 
 and then father and son paid off the mortgage and 
 the son continued in possession, the registration 
 
476 CHAPTER 124. 
 
 of the statutory discharge was held to give a; new- 
 starting point to the Statute of Limitations: Hen- 
 derson v. Henderson, 23 A. E. 577. A. paid off a 
 first mortgage. on certain lands, procured its dis- 
 charge and took a new mortgage to himself for 
 the amount of the advance, not knowing of a second 
 mortgage. On ascertaining this he notified B., the 
 second mortgagee, that he would pay it off, and B., 
 relying on this, took no steps to enforce his security. 
 It was held that by his acts and conduct A. had 
 precluded himself from being entitled to stand in 
 the position of first mortgagee: McLeod v. Wad- 
 land, 25 0. R. 118. An intending purchaser, A., 
 searched in the Registry Office and found two in- 
 cumbrances on the property. The next day B. 
 registered a lien. Shortly afterwards A. completed 
 his purchase, paid off the incumbrances and regis- 
 tered discharges thereof without further search 
 and without knowledge of B.'s lien. A. was held 
 entitled to subrogation in the place of the dis- 
 charged incumbrancers and to priority over B.'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 
 that A. had notice and could not plead mistake: 
 Abell v. Morrison, 19 0. R. 669. Where the plain- 
 tiff advanced money to pay off existing mortgages 
 and took and registered new mortgages and dis- 
 charges of the old mortgages, the defendant having 
 all the while an execution in the Sheriff's hands of 
 which the plaintiff knew nothing, not having 
 searched, he was held entitled to be subrogated to 
 the rights of the original mortgagees over the de- 
 fendant's execution on the ground of mistake, and 
 was not disentitled to relief because by using 
 ordinary care he might have discovered the mis- 
 take, the defendant not being prejudiced thereby: 
 Brown v. McLean, 18 0. R. 533. Where a mort- 
 gage was held by an assignee for the benefit of 
 the mortgagee and the mortgagor paid the mort- 
 gagee without notice of the assignment and obtained 
 a statutory discharge, the Court ordered a release 
 to be executed, being in doubt whether, under the 
 circumstances, the discharge would revest the lands : 
 McDonough v. Dougherty, 10 Gr. 42. As to effect 
 
CHAPTER 124. 477 
 
 of statutory discharge : see Armour, Titles, pp. 251- 
 256. Assignment in lieu of reconveyance: see E. 
 S. 0. 1914, ch. 112, sec. 3; Armour, Titles, pp. 256- 
 261. Discharges given by surviving mortgagees 
 and executors: see E. S. 0. 1914, ch. 112, sec. 10; 
 Armour, pp. 261-265; see also ante sec. 62, notes. 
 Eight of married women: see Armour, pp. 265-267. 
 Notwithstanding E. S. 0. 1914, ch. 70, sec. 10, a mar- 
 ried woman is not entitled to dower in an equity of 
 redemption purchased and sold by her husband in his 
 lifetime when the legal estate never vested in him. 
 "Where a purchaser of mortgaged lands procured a 
 discharge in favour of the mortgagor, took his con- 
 veyance from him and gave back a mortgage with 
 bar of dower, registering the instruments in the 
 above order, the wife of the purchaser was held 
 not entitled to dower out of a surplus arising on a 
 sale under a subsequent incumbrance: Ee Luck- 
 hardt, 29 0. E. 111. 42 Vic, ch. 22, became law on 
 11th March, 1879, and was not retroactive. A wife 
 having joined in a mortgage prior to that date 
 could become entitled to dower in the equity of 
 redemption only in case the husband died benefi- 
 cially entitled, and so long as the mortgage existed 
 the husband could, by a subsequent (conveyance, 
 defeat her dower in the equity, which in this case 
 he did by a second mortgage: Anderson v. Elgie, 
 6 0. L. E. 147. "Where a second mortgage was ex- 
 ecuted and delivered before the execution of the dis- 
 charge of the first, the effect of registration was not 
 to revest the premises in the mortgagor but in the 
 second mortgagee: Anderson v. Elgie, 6 0. L. E. 
 147. As to effect of registration of discharge of 
 mortgage where wife joined to bar her dower and 
 the wife's right to surplus money arising from 
 sale under mortgage: see E. S. 0. 1914, ch. 70, 
 sec. 10 and notes. Where at the time of giving the 
 mortgage some person was in possession adversely 
 to the mortgagor: see Thornton v. France, 1897, 
 2 Q. B. 143, note to E. S. 0. 1914, ch. 75, sec. 23. 
 As to effect of registration of discharge of mort- 
 gage by mortgagor where a tenant at will has 
 acquired possessory title against him, and what 
 rights, if any, the mortgagor has: see Noble v. 
 Noble, 25 0. L. E. 379, 27 0. L. E. 342; see E. 
 S. 0. 1914, ch. 75, sees. 16, 23, notes; and see article 
 49 C. L. J. 290. 
 
478 CHAPTER 124. 
 
 68. Where a purchaser under an execution paid off 
 a mortgage and took a certificate in the usual form 
 in lieu of the one provided, it was held that the 
 purchaser's title would not thereby be defeated by- 
 vesting the lands Jin the mortgagor, ibut that it 
 enured to the purchaser as assignee of the mort- 
 gagor: Lee v. Howes, 30 U. C. E. 292; see also 
 Howes v. Lee, 17 Gr. 459. 
 
 70. History of section: see Ee Cameron and Hagarty, 
 10 0. W. E. 357; see also Harding v. Cardiff, 2 
 O. E. 329. By-law providing for the opening of 
 a road and not conforming to and referring to 
 plans filed with the Eegistrar of 'lands through 
 which it passes: see Ee Henderson, 29 0. E. 669. 
 The former requirement of the Municipal Act and 
 the requirement of this section that certain by-laws 
 must be registered, is not merely for the purpose of 
 notice under the registry laws: Ee Henderson, 29 
 0. E. 669. A by-law declaring a bridge to be a 
 county bridge may be registered as a matter of 
 public record and not affecting any particular land: 
 Guthrie, 1910, p. 23. 
 
 See provisions of E. S. 0. 1914, ch. 192, sec. 296, for 
 registration of money by-laws. The method of 
 registration of by-laws creating debts under E. S. 
 0. 1914, ch. 192, sec. 296, is x a matter of special 
 statutory provision under that section and is a 
 special and distinct sort of registration. The 
 object of registration is apparently only to shorten 
 the time for moving against such a by-law. The 
 charge against the land involved is created by the 
 Municipal Act and not by registration. The duty 
 of the Eegistrar is not to enter such a by-law in 
 the abstract index of the lots affected, but to enter 
 it in a special book kept for the purpose : see ante 
 sec. 23 (5) ; Guthrie, 1897, p. 38. A Eegistrar may 
 for the usual fee give a certificate of the filing of 
 a certified copy of a debenture by-law: Guthrie, 
 1897, p. 53. In regard to the method to be 
 adopted in registering money by-laws, the pro- 
 visions of this section appear to be in fact the same 
 as were the provisions of the Consolidated Muni- 
 cipal Act, of 1903, sec. 396, sub-sees. 3 and 4. Sec. 
 296 of the Municipal Act, of 1913, (E. S. 0. 1914, 
 
CHAPTER 124. 479 
 
 ch. 192, sec. 296) in regard to the registration of 
 money by-laws must be taken to contain the set- 
 tled requirements of the legislature as to the regis- 
 tration of money by-laws. Compliance with sec. 
 296 must be sufficient, especially in the absence of 
 the Mayor, or where there is difficulty in obtaining 
 his signature: Guthrie, 1913, No. 6. See pro- 
 visions of Municipal Act in regard to matters con- 
 sequent upon the formation of new corporations 
 and registration of by-laws : E. S. 0. 1914, ch. 192, 
 sec. 31, et seq. A proclamation annexing township 
 lands to a city does not require to be registered 
 against each lot separately. It should be registered 
 in the book for the city, not with the. debenture by- 
 laws: Guthrie, 1912, p. 23. Failure to register 
 expropriation by-law: Grimshaw v. Toronto, 4 0. 
 W. N. 1124, 28 0. L. E. 512. 
 
 71. A patent of Indian lands was obtained under assign- 
 ments registered with the Indian Department. A 
 prior assignee had texecuted a mortgage of the 
 lands to the plaintiff of which the patentee had no 
 actual notice and which was not registered with the 
 Indian Department, though it was registered in the 
 County Eegistry Office. The patentee was entitled 
 to priority over the mortgagee. Eegistration in 
 the County Eegistry Office was not notice to him: 
 Ee Eeid and Wilson, 23 0. E. 552. 
 
 Eegistration of deed of patented lands; voluntary 
 unregistered conveyance: McCarthy v. Arbuckle, 29 
 C. P. 529. Defective registration of patent : Camp- 
 bell v. Fox, 17 C. P. 542, 26 U. C. E. 631. 
 
 The Eegistry Acts do not apply to instruments ex- 
 ecuted prior to the grant from the Crown. The holder 
 of a bond to convey executed prior to the issue of the 
 patent is entitled to specific performance as against 
 a purchaser to whom the patentee had sold after pat- 
 ent issued : Casey v. Jordon, 5 Gr. 467. The only in- 
 struments executed before patent which can be re- 
 gistered are such as create a mortgage lien or in- 
 cumbrance on the land: Holland v. Moore, 12 Gr. 
 296. See sec. 34 (7). Express notice of an unregis- 
 tered assignment of unpatented land has the same 
 
480 
 
 CHAPTER 124. 
 
 effect as the like notice of an unregistered convey- 
 ance after patent: Goff v. Lister, 13 Gr. 406, 14 Gr. 
 451; see Vance v. Cummings, 13 Gr. 25. 
 
 A woman wishing to convey an interest in land in 
 contemplation of her marriage, conveyed the lands 
 to S., who then conveyed to her and her intended 
 husband as tenants in common. The deed to S. -mas 
 registered, but S. fraudulently omitted to register 
 the deed back. The husband and wife went into pos- 
 session at once. S mortgaged the lands and the fraud 
 was not discovered until an action was brought to 
 enforce the mortgage. The avoidance by the Eegistry 
 Act of the prior unregistered deed was held to 
 date back to the time of its execution which was 
 sufficient in this case to bar the action, (see R. S. 
 0. 1914, ch. 75, sec. 23; Thornton v. France, 2 
 Q. B. 143) : McVity v. Trenouth, 9 0. L. E. 105; See 
 (1908) A. C. 60. 
 
 To postpone a deed which has acquired priority over 
 an earlier conveyance by registration, actual notice 
 sufficient to make the conduct of the subsequent pur- 
 chaser in taking and registering his conveyance 
 fraudulent, is indispensable : New Brunswick By. v. 
 Kelly, 26 S. O. E. 341. Where a purchaser bought 
 lands upon which an annuity was charged by an 
 unregistered agreement, he was told of the agree- 
 ment, but was told at the same time that it in no way 
 affected the land, being a mere personal agreement, 
 and made no further inquiry. He was held not to have 
 purchased the lands with actual notice of the con- 
 tents of the agreement: Coolidge v. Nelson, 31 O. 
 E. 646. Where A., the purchaser under an unreg- 
 istered agreement for sale, assigned his interests 
 to his son who went into possession, and A. sub- 
 sequently mortgaged to a person who had made 
 him a previous advance which had been repaid, it 
 was held that the assignment gave the son an 
 equitable title and the registration of it was notice 
 to the mortgagee whose mortgage did not affect the 
 son's title or right to possession: Cope v. (Brigh- 
 ton, 30 O. E. 603. A. agreed to purchase land from B, 
 giving a mortgage back for one-half the purchase 
 money. The deed was executed and delivered to the 
 purchaser and the mortgage to B.'s agent. In the 
 meantime A. had negotiated with C. and procured a 
 
CHAPTER 124. 4gl 
 
 loan of the cash payment which he made to B. on 
 the supposed security of a first mortgage on the 
 lands. C.'s mortgage was registered first, then 
 B.'s mortgage, and lastly the deed to A. was regis- 
 tered hy C.'s agent. B. and C. acted in good faith 
 and without knowledge of each other. Held that the 
 Begistry Act did not apply. C. 's mortgage was good 
 only by estoppel and was fed by estoppel only to the 
 extent of A.'s interest, and that interest was subject 
 to B.'s right to have a mortgage for the unpaid bal- 
 ance of purchase money: McMillan v. Munro, 25 A. 
 B. 288. Where the purchaser registered his deed and 
 the vendor omitted to register his mortgage back 
 until a bona fide mortgagee had registered a later 
 mortgage from the purchaser, the later mortgage 
 had priority in spite of a technical omission of 
 receipt then required in the deed: Baldwin v. 
 Duigan, 6 Gr. 595. A. conveyed lands to B. taking 
 a bond for the payment of $30 a year which was 
 to form a first charge on the farm. Before the 
 bond was registered, B. mortgaged to C. who sub- 
 sequently sold for the amount of his claim to D. 
 who had notice of the bond. Held that D. was 
 liable to Tse redeemed on payment of what should be 
 found due on C.'s mortgage: Waddell v. Corbett, 
 21 Gr. 384. Begistration of a subsequent deed will 
 not give priority over a prior unregistered deed 
 from the same grantor, unless a valuable considera- 
 tion is proved. Production of the registered in- 
 strument is not sufficient for this purpose: Barber 
 v. McKay, 19 0. B. 46; Leech v. Leech, 24 U. C. 
 E. 321; Doe d. Major v. Eeynolds, 2 U. C. E. 311; 
 Wilkinson v. Conklin, 10 C. P. 211; Doe d. Bus- 
 sell v. Hodgkiss, 5 U. C. E. 348; Doe d. Prince v. 
 Girty, 9 V. C. E, 41; Doe d. Cronk v. Smith, 7 
 U.'C. E. 376; Miller v. McGill, 24 U. C. E. 597. 
 
 A mortgage to creditors to secure their debts is 
 a sufficient valuable consideration to give a regis- 
 tered conveyance priority over a conveyance pre- 
 viously executed but registered subsequently: 
 Fraser v. Sutherland, 2 Gr. 442. A. and B., owners 
 of land subject to dower of Ibeir mother, E., and to 
 an annuity in her favour, mortgaged to C. to secure 
 advances. E. knew of this mortgage but refused 
 
 S.A.— 31 
 
482 CHAPTER 124. 
 
 to sign it. Subsequently A. and B. mortgaged to 
 D., R. joining to release her claims for the purpose 
 of this mortgage. D.'s mortgage was registered 
 ahead of C.'s and gained priority to it. The lands 
 were sold under D.'s mortgage and a surplus re- 
 sulted. The Court of Appeal held that D.'s priority 
 having been gained by the Registry Act did not 
 enure to R.'s benefit, but the Supreme Court re- 
 versed this and held that the security for which she 
 released her claims having been satisfied, R. was 
 • entitled to the fund in priority to C. : Maclennan v. 
 Gray, 16 A. R. 224, sub. nom. ; Gray v. Coughlin, 18 
 S. C. R. 533. Mortgage registered without notice of 
 parol trust was held free from it : Bank of Montreal 
 v. Stewart, 14 0. R. 482. But where the party regis- 
 tering has notice of an equitable charge or interest 
 although created only by parol, section 73 will not 
 apply in his favour : Peterkin v. McFarlane, 9 A. R. 
 429: (S. C.) Rose v. Peterkin, 13 S. C. R. 677. Pos- 
 session is not such notice of title as will affect the 
 right of a person claiming under -a registered con- 
 veyance: Grey v. Ball, 23 Gr. 390; Cooley v. Smith, 
 40 TJ. C. R. 543. 
 
 Actual notice of title of an adverse claimant is re- 
 quired to affect the grantee under a registered 
 instrument. Actual possession by the adverse claim- 
 ant is not in itself such notice; nor is it suffi- 
 cient notice if the grantee is aware that some 
 other than his grantor is in possession: Roe v. 
 Braden, 24 Gr. 589; Sherbonneau v. Jeffs, 15 Gr. 
 574; Building and Loan v. Poaps, 27 0. R. 470. But 
 see earlier case : Moore v. Bank B. N. A. v 15 Gr. 308, 
 where possession of the property by a person hav- 
 ing an unregistered interest is held constructive 
 notice. " Actual " notice: see Winters v. McKins- 
 try, 14 Man. L. R. 294; Sydney v. Lyons, 1899, A C. 
 260; Maclennan v. Foucault, 11 O. W. R. 659. To 
 postpone a registered title on the ground of notice 
 of a deed having been previously executed, though 
 not registered, the evidence of notice must be quite 
 satisfactory and distinct: Hollywood v. Waters, 6 
 Gr. 329; New Brunswick Ry. v. Kelly, 26 S. C. R. 
 341. Express notice of an unregistered assignment 
 of unpatented lands has the same effect as after 
 patent issued: Goff v. Lister, 13 Gr. 406. Actual 
 
CHAPTER 124. 483 
 
 notice of an unregistered deed of unascertained 
 land saddles the purchaser with notice of its con- 
 tents, and his erroneous supposition as to the land 
 involved or the persons interested does not vary 
 the ease : Severn v. McLellan, 19 Gr. 220. Effect of 
 Statute ; purchaser for value without notice : Bridges 
 v. Eeal Estate Loan, 8 0. E, 493; Canada Perma- 
 nent v. McKay, 32 C. P. 51. Surety; registered title 
 prevailing over equitable : Care v. Ontario Loan and 
 Deb. Co., 9 0. E. 236. Purchaser for value by re- 
 gistration will defeat a prior unregistered grant of 
 an easement: Boss v. Hunter, 7 S. C. B. 289. To 
 defeat a registered deed there must be actual notice 
 or fraud: Boss v. Hunter, 7 S. C. E. 289. The 
 grantee in a subsequent conveyance registered in 
 priority to a previous conveyance from the same 
 grantor and of which the grantee had no actual 
 notice, can maintain an action to have his grant de- 
 clared entitled to priority and the Court has power 
 to so order : Weir v. Niagara Lake Co., 11 0. E. 700. 
 Where two mortgages on different properties by 
 the same mortgagor came into C.'s hands before the 
 Begistry Act of 1865, and the mortgagor after the 
 passing of that Act conveyed the equity of redemp- 
 tion to M. by an instrument which was registered. 
 M. was held entitled to redeem, his registered con- 
 veyance having priority Over C.'s right to consoli- 
 date : Miller v. Brown, 3 0. B. 210. An execu- 
 tion creditor does not occupy as favourable a posi- 
 tion under the Begistry Act as a purchaser for 
 value without notice; he may be defeated by a deed 
 made before though registered after the lodging of 
 his execution with' the Sheriff : Bussell v. Bussell, 28 
 Gr. 419. The registration of a mortgage covering 
 several parcels is notice to a purchaser of one par- 
 cel of the rights of persons who purchased other 
 parcels before his purchase, and of a mortgage on 
 the other parcels and the right it gave to throw the 
 first mortgage on his parcel : Clark v. Bogart, 27 Gr. 
 450. A married woman, while an infant, repre- 
 sented that she was of full age and conveyed to a 
 purchaser for value who duly registered. On reach- 
 ing her majority the woman conveyed to a trustee 
 who sold the lands, and his vendee made a' mort- 
 gage. The married woman, notwithstanding her 
 non-age, was bound by her representations, and the 
 
484 
 
 CHAPTER 124. 
 
 other parties having notice of the first purchaser 
 took subject to his rights: Benetto v. Holden, 21 
 Gr. 222. Registration was made notice by 13 and 
 14 Vic, ch. 63, sec. 8. Where the registered owner 
 of land had parted with his interest by an unregis- 
 tered deed a person who afterwards took and re- 
 gistered a deed (prior to 1865) believing that the 
 registered owner had parted with his interest, was 
 entitled to no priority over the true owner, though 
 he had no information who the true owner was: 
 McLennan v. McDonald, 18 Gr. 502. Such circum- 
 stances as are sufficient to put a party on enquiry 
 will not prevail over a registered title: Soden v. 
 Stevens, 1 Gr. 346. Constructive notice is insuffi- 
 cient in any case to postpone a registered convey- 
 ance executed bona fide : Ferass v. McDonald, 5 Gr. 
 310 ; Foster v. Beale, 15 Gr. 244. A purchaser for 
 value at a Sheriff's sale was held entitled to prior- 
 ity over a non-registered grant made by the owner 
 prior to the sale: Bruyere v. Knox, 8 C. P. 520. 
 Where unregistered land is sold at a tax sale, the 
 tax deed does not require registration to preserve 
 its priority: Jones v. Cowden, 34 U. C. B. 345. 
 Registration is notice of all instruments registered 
 before as well as since registration was made notice : 
 Vance v. Cummings, 13 Gr. 25 Effect of priority of 
 registration: see Pirie v. Parry Sound Lumber Co., 
 11 0. W. R. 11. Position of plaintiff assignee of mort- 
 gage with assignment unregistered : Pringle v. Hut- 
 son, 12 0. W. R. 1186; 13 O. W. R. 484, 617; 14 0. W. 
 R. 1083. The possession of an estate by the first 
 but unregistered purchaser from a registered owner 
 is not of itself notice to a subsequent purchaser: 
 Waters v. Shade, 2 Gr. 457 ; see also as to possession 
 as notice : Grey v. CoUeher, 15 Gr. 419. 
 
 Land subject to a vendor's lien for unpaid purchase 
 money was sold under execution to a purchaser with- 
 out notice. The execution debtor repurchased in the 
 name of a third person, who conveyed to another 
 in trust for the debtor. The debtor having become 
 insolvent, it was held that the vendor's lien at- 
 tached on the lands in the hands of the assignee, 
 but that the Sheriff's vendee could have held free 
 from it : Van Wagner v. Findlay, 14 Gr. 53. Where 
 vendors allow purchasers to register conveyances 
 
CHAPTER 124. 485 
 
 before being paid, they preclude themselves from 
 asserting their lien for unpaid purchase money 
 against bona fide sub-purchasers without notice: 
 Kettlewell v. Watson, 26 Ch. D. 501. 
 
 Where the owner of two adjoining lots of land con- 
 veys one of them, he impliedly grants all those con- 
 ditions and apparent easements, including rights 
 of drainage and aqueduct over the other lot which 
 are used at the time of the grant by the owner of the 
 entirety for the benefit of the part granted. The 
 grant of such an easement is not within the Eegistry 
 Act, and if implied, prevails against a subsequent 
 purchaser of the other lot without notice. If express 
 its due registration on the lot is notice to the pur- 
 chaser: Israel v. Leith, 20 0. E. 361. See K. S. O. 
 1914, ch. 109, sec. 15, notes; see also ch. 75, sees. 35, 
 37, notes. Privilege of posting bills on walls : Con- 
 nor-Buddy v. Eobinson-Whyte, 14 0. W. E. 284. The 
 defendant's predecessor in title was given permis- 
 sion by the plaintiff's predecessor in title (at first 
 orally and afterwards by deed) to lay pipes through 
 the plaintiff's land to take water from a spring on 
 the defendant's land. The conveyance to the plain- 
 tiff was registered before the registration of the 
 grant of the easement. The plaintiff knew as a fact 
 that the pipes were there and presumed that they 
 were there by permission, but did not know of the 
 deed. He was held entitled to priority under the 
 registered conveyance to him: Harrington v 
 Spring Creek Co., 7 0. L. E. 319. 
 
 An assignee for benefit of creditors occupies no 
 higher position than his assignor and cannot be re- 
 garded as a subsequent purchaser for value within 
 the meaning of the Eegistry Act, so as to avail him- 
 self of its provisions with regard to the registration 
 of the assignment before a mortgage: Crarig v. Mc- 
 Kay, 12 0. L. E. 121. As to pleading the Registry 
 Act and its effect, see Building and Loan v. Poaps, 
 27 O. E. at p. 476. An unregistered conveyance is 
 valid as between the parties : see as to effect of this 
 on running of Statute of Limitations: McVity v. 
 Tranouth, 1908, A. C. 60. Unregistered titles: 
 see Campbell v. Fox, 26 U. C. E. 631 ; Doe d. Mat- 
 lock v. Disher, 4 U. C. E. 14; Dig. Ont. Case Law, 
 
486 
 
 CHAPTER 124. 
 
 col. 6094. See Armour, Titles, " Claimants under 
 competing instruments," " purchasers," pp. 90-97; 
 "volunteers and purchasers," p. 97; "registered 
 owners and equitable interests," p. 98. 
 
 Where land is transferred under the Registry 
 Act by means of a forgery, the forged deed is 
 an incurable defect and the status of a transferee 
 as a bona fide purchaser for value is of no avail 
 because it rests on a void instrument which does not 
 carry the title: Ee Cooper, Cooper v. Vesey, 1881, 
 20 Ch. D. 611. As to similar case under the Land 
 Titles Act: see Gibbs v. Messer, 1891, A. C. 248; 
 Fawkes v. A. G., 6 0. L. R. 490; note to R. S. O. 
 1914, ch. 126, sec. 124. 
 
 71. — (2) A lease for four years with a covenant for 
 renewal for four more, possession having gone with 
 it, does not require registration, and is valid as re- 
 gards the covenanted renewal as between the lessee 
 and a subsequent mortgagee of the lessor : Latch v. 
 Bright, 16 Gr. 653. And where a lease is unneces- 
 sarily registered, the fact of registration does 
 note make it necessary to register an assign- 
 ment of it: Doe d. Kingston v. Rainford, 10 U. 
 C. R. 236; see Davidson v. McKay, 26 U. C. 
 R. 306; Armour, Titles, pp. 71-73; see also 
 Armour, R. P., p. 500. A lease for less than seven 
 years is capable of registration, even where the 
 tenant has actual possession: Guthrie, 1897, p. 41. 
 
 72. The Registry Acts do not affect the underlying juris- 
 diction of Courts of Equity as expressed by. Lord 
 Hardwicke in Le Neve v. Le Neve, 3 Atk. 646, 651. 
 (approved in Chandos V. Brownlow, 2 Ridg. P. C. 
 428). These acts do not affect the fundamental 
 principles of equity, but every purchaser under a 
 registered deed is left open to any equity which a 
 prior purchaser or incumbrancer may have: Mac- 
 lennan v. Foucault, 11 O. W. R. 659. The purchaser 
 from the' mortgagor takes subject to the true state 
 of accounts as between the mortgagor and mort- 
 gagee. The Registry Act affords him no protection : 
 Thomson v. Stikeman, 4 0. W. N. 1546. Purchase 
 of lands without knowledge of streets laid out on 
 registered plan: Peake v. Mitchell, 24 O. W. R. 291, 
 
CHAPTER 124. 487 
 
 4 0. W. N. 988. Claim on unwritten equity, of which. 
 a subsequent registered purchaser has notice: see 
 White v. Neaylon, 11 App. Cas. 171. See corres- 
 ponding section of Mines Act: R. S. 0. 1914, ch. 32, 
 sec. 74. See Armour Titles, p. 60, " What consti- 
 tutes registration," esp. p. 67, also pp. 88 and 90. 
 
 73. The Registry Act does not avoid a prior equity 
 against a subsequent registered deed, where the lat- 
 ter was taken with actual notice: Wigle v. Letter- 
 ington, 19 Gr. 512 ; see also McMaster v. Phipps, 5 
 Gr. 253. Priority may be gained by means of prior 
 registration as between equitable incumbrancers. 
 But this priority will be defeated by notice : Bethune 
 v. Caulcutt, 1 Gr. 81. Section 73 is not restricted 
 to interests derived under written instruments sus- 
 ceptible of registration, but applies to all interests : 
 Jarvis v. Toronto, 21 A. R. 395, 25 S. C. R. 237, 
 Where three persons were induced by R. to pur- 
 chase after a pretended sale under power in a mort- 
 gage and a conveyance for value was taken to the 
 three and R., and registered, they not suspecting 
 that the transaction was other than appeared on the 
 face of it, and as represented to them by R., it was 
 held that they were not affected by the equity of the 
 mortgagor to set aside the sale nor by R. 's knowl- 
 edge nor by the knowledge of their solicitor, the same 
 solicitor having acted for them as had acted for R. 
 in the sale proceedings. R. was guilty of fraud on 
 the mortgagor- and on his associates as well, and 
 notice could not be imputed to them of what it was 
 R.'s interest to conceal: Smith v. Hunt, 2 0. L. R. 
 134. See same case in appeal: 4 0. L. R. 653. 
 The relationship arising under a contract for 
 sale of land on payment of the purchase money, is 
 that of trustee and cestui que trust. A mortgagee 
 from the trustee under ■ sueh circumstances who 
 takes and registers his mortgage in ignorance of 
 and without notice of any equitable right of the 
 cestui que trust is entitled to set up the provision 
 of the Registry Act: Building and Loan v. Poaps, 
 27 0. R. 470. A testator devised the north half of 
 his farm to one son and the south half to another, 
 the latter half being subject to a mortgage. The 
 first son made payments on the mortgage on the 
 south half, without demand. The second son. placed 
 
488 
 
 CHAPTER 124. 
 
 another mortgage on his portion, the mortgagee en- 
 quiring from the first mortgagee the amount due 
 and being informed correctly. Subsequently, the 
 owner of the north half paid the balance due on the 
 first mortgage and took an assignment of it and 
 claimed to hold the assignment for the full amount 
 paid by him. The right to the assignment was an 
 equitable one and could not prevail against the duly 
 registered second mortgage : McMillan v. McMillan, 
 23 0. R. 351, 21 A. R. 343. Where a mortgage was 
 registered without notice of a parol trust, the trust 
 could not prevail against it: Bank of Montreal v. 
 Stewart,' 14 0. R. 482. A. and B., owners of land 
 subject to the dower of R., their mother, and an an- 
 nuity in her favour, mortgaged to C, with her 
 knowledge but without her joining, and subse- 
 quently mortgaged to D., R. joining to bar her 
 rights. D. 's mortgage was taken without knowledge 
 of 'C.'s and was registered ahead of it. D. having 
 sold under his mortgage, a surplus, resulted. It 
 was held that R. was entitled to this surplus in 
 priority to C. as the seeurity for which she barred 
 her dower and annuity was satisfied: Maclennan v. 
 Gray; Gray v. Coughlin, 16 A. R. 224, 18 S. C. R. 
 553. Registered title prevailing over equitable right 
 to charge lands : Care v. Ontario Loan and Deb. Co., 
 9 O. R. 236, A., owning lands, mortgaged to B. and 
 afterwards arranged to release a portion and give 
 B. another mortgage for the balance. By mistake 
 the new mortgage contained the same description 
 as the former one. C, aware of the arrangement 
 but unaware that the new mortgage covered the 
 same lands, bought the lands thought to be re- 
 leased. B. assigned his mortgage and C. sold the 
 lands. It was held that the assignees, having the 
 legal estate, were purchasers for value without 
 notice and could avail themselves of the Registry 
 Act against a purchaser under the original mort- 
 gagor: Bridges v. Real Estate Loan, 8-0. R. 493. 
 This section does not apply to the case of a person 
 registering who has notice of an equitable claim 
 though created merely by parol: Rose v. Peterkin, 
 13 S. C. R. 677. 
 
 The plaintiffs owned lot 19 and the defendant owned 
 lot 20. Lots 19 and 20 were previously owned by the 
 
CHAPTER 124. 4gg 
 
 same person, who built a house partly on both lots. 
 The plaintiff's brought an action to have it declared 
 that the house belonged to them as the original owner 
 had obtained a loan on lot 19 to build it and that 
 the owner of lot 20 had constructive notice. It was 
 held that the defendant being the registered owner 
 of lot 20, was not in any way affected by the rela- 
 tions between the original owner of lots 19 and 20 
 and the plaintiffs. (Case under the B. Cj. Land Be- 
 gistry Act) : Canadian Birkbeck v. Byder, 12 B. C. 
 B. 92, 2 W. L. B. 158. Notice to a solicitor acting 
 for a would-be purchaser of a prior agreement of 
 sale is notice to his client who cannot, upon an agree- 
 ment for sale being entered into with him, claim the 
 benefit of the Begistry Act: Green v. Stevenson, 9 
 Q. L. B. 671. The purchaser of a legal estate having 
 express notice of a prior equitable conveyance by 
 registered deed and purchasing from a vendor out 
 o>f possession is not entitled to the property as 
 against the equitable purchaser: Trinidad Asphalte 
 Co. v. Coryat, 1896, A. C. 587, An unregistered 
 equitable mortgage takes priority over a writ of ex- 
 ecution against lands delivered to the Begistrar sub- 
 sequently to the creation of the equitable mortgage : 
 Sawyer-Massey v. Waddell, 6 Terr. L. B. 45. Deposit 
 of title deeds as security for money; equitable 
 second mortgage : Zimmerman v. Sproat, 26 O. L. B. 
 448. "What constitutes notice of equitable claim to 
 defeat registered title: Ihde v. Starr, 19 O. L. B. 
 471, 14 0. W. B. 710, 1 O. W. N. 64. 
 
 The rule of equity which allows the holder of 
 several mortgages made by the same mortgagor 
 on separate properties to consolidate the debts 
 and insist on being redeemed on all before re- 
 leasing any of his securities is not ' ' tacking ' ' 
 and is not against the provisions of the Begistry 
 Act : Dominion S. and I. Soc. v. Kittridge, 23 Gr. 631. 
 A mortgagor's devisee was held not entitled to re- 
 deem the mortgage without also paying a judgment 
 held by the owner of the mortgage against the mort- 
 gagor. This is not " tacking " such as the Act for- 
 bids : McLaren v. Fraser, 17 Gr. 533. Limits of the 
 exercise of the equitable right to consolidate : not al- 
 lowed in favour of the holder of mortgages against a 
 
490 CHAPTER 124. 
 
 puisne incumbrancer of one of the mortgaged prop- 
 erties without notice, though enforceable against the 
 mortgagor himself: Brewer v. Canada Perman- 
 ent, 24 Gr. 509. Before this section it was held 
 that an equitable mortgage did not require regis- 
 tration to secure its priority: Harrison v. Armour, 
 11 Gr. 303. Whether the section is or is not retro- 
 spective: see McDonald v. McDonald, 14 Gr. 133; 
 Building and Loan v. Poaps, 27 0. B. 470. Effect 
 of Statute when purchasers for value without notice 
 claim against persons who have acquired title by 
 possession: Canada Permanent v. McKay, 32 C. P. 
 51. The policy of the Begistry Act is to give no 
 effect to hidden equities. "Where a mortgagee had 
 two mortgages given by the same mortgagor over 
 two properties and an execution creditor of the 
 mortgagor obtained and registered without notice 
 a second mortgage on one of the properties, the first 
 mortgagee could not as against the execution credi- 
 tor consolidate his mortgages so as to make good 
 the loss on one sale out of the surplus from an- 
 other sale : Johnson v. Beed, 29 Gr. 293. Con- 
 solidation; where there is an express contract 
 for: Hughes v. Britannia Permanent Benefit, 1906, 
 2 Ch. 607. Armour, Titles, p. 42, as to requisitions 
 on title under this section, p. 77; tacking, p. 78; 
 consolidation, pp. 77, 98. 
 
 74. The doctrine of Hopkinson V. Bolt (9 H. L. C. 514) 
 according to which a prior mortgagee whose mort- 
 gage is taken to cover further advances cannot 
 claim priority in respect of advances made after 
 notice of a second mortgage, applies as well to a 
 case where the prior mortgagee has covenanted to 
 make the further advances as to a case where the 
 further advances are voluntary: "West v. Williams, 
 1899, 1 Ch. 132. Before this section it was held that 
 further advances upon a mortgage providing for 
 further advances and to secure which the legal 
 estate had been conveyed, were protected both at law 
 and in equity as against a subsequent mortgage, 
 even though registered where notice had not been 
 as a fact communicated to the first mortgagee: 
 Pierce v. Canada Permanent, 24 O. E. 426, 25 O. B. 
 671, 23 A. B. 516. Armour, Titles, pp. 159-162. See 
 Mechanics' Lien Act, B. S. O. 1914, ch. 140, sec. 8 
 (3) and 14 (1). 
 
CHAPTER 124. 49^ 
 
 75. The principle of the Eegistry Act is that every one 
 who is acquiring land ought to see what is regis- 
 tered against the land he is about to acquire and 
 he is assumed to search the registry for that pur- 
 pose. This does not apply to one who is parting 
 with an interest. Begistration is not notice in such 
 a case : Trust and Loan v. Shaw, 16 Gr. 446. Eegis- 
 tration is notice of all instruments registered before 
 as well as since registration was made notice. Ee- 
 gistration of a mortgage of unpatented lands is 
 notice to subsequent purchasers, whether the patent 
 was issued under or without a decision of the Heir 
 and Devisee Commission: Vance v. Cummings, 13 
 Gr. 25. The registry law is binding on railway 
 companies: Harty v. Appleby, 19 Gr. 205. Where 
 at the time of execution and registration of a mort- 
 gage it was ineffectively executed to pass the wife's 
 estate, but subsequently it was properly executed but 
 not registered, the registration was held sufficient 
 under the Statute, but the re-execution could not 
 date back so as to gain priority over an instrument 
 which in the meantime had been registered properly 
 executed : Beattie v. Mutton, 14 Gr. 686. Where two 
 mortgages were successively taken by distinct credi- 
 tors and by mistake a piece of land which the mort- 
 gagor held under contract to purchase was omitted 
 from each, the first mortgagee has a prior equity 
 over the second mortgagee to rectify his mortgage 
 and avail himself of the legal estate of such omitted 
 lands as against an heir who has completed the pur- 
 chase : Merchants Bank v. Morrison, 19 Gr. 1. Where 
 a person executed a mortgage and had it registered 
 but did not give it to the mortgagee for some time 
 and it was subsequently sold to a third person with- 
 out notice of the facts, it was held entitled to prior- 
 ity over another mortgage previously executed but 
 registered after, though before it had been delivered 
 to the mortgagee: Muir v. Dunnett, 11 Gr. 85. Con- 
 structive notice is insufficient to '• postpone a prior 
 registration: Foster v. Beall, 15 Gr. 244. A subse- 
 quent mortgagee who had not actual notice was 
 held not bound by the registration of a prior mort- 
 gage, the memorial of Which insufficiently described 
 the premises : Eeid v. Whitehead, 10 Gr. 446. Where 
 an agreement to charge lands in the form of a letter 
 was signed and afterwards registered, and a question 
 
492 
 
 CHAPTER 124. 
 
 arose whether the solicitor who signed did so as 
 witness or as the person to whom the letter was ad- 
 dressed, the Court held that whether or not the re- 
 gistration was regular, the document being on the 
 registry was notice to a subsequent purchaser 
 notwithstanding the informality in the proof 
 of execution, which did not make the registration 
 a nullity: Hoofstetter v. Booker,. 22 A. R. 175, 26 
 S. C. R. 41. An attorney under irrevocable power 
 for sale, etc., and entitled to a share in the proceeds, 
 agreed to pay out of the owner's share the amount 
 of a further charge made by the owner and after- 
 wards purchased the lands himself. Execution of 
 the document creating the further charge was duly 
 proved and attached to it was the attorney's agree- 
 ment without any proof of execution. All the_ docu- 
 ments were received by the Registrar and registered. 
 Held that the defect in registration was cured by this 
 section and the attorney who subsequently became the 
 purchaser of the lands was affected with notice of the 
 plaintiff's rights: Armstrong v. Lye, 27 0. R. 511, 
 26 A. R. 543. Registration in the County Registry 
 Office of a mortgage on unpatented Indian lands is 
 not notice to a patentee procuring title under as- 
 signments registered in the Indian Department : Re 
 Reed and Wilson, 23 0. R. 552. The mortgagee under 
 a mortgage providing for further advances was form- 
 erly protected at law and in equity against a sub- 
 sequent mortgagee though registered, in respect of 
 advances made after the registration of the second 
 mortgage, where notice was not as a fact communi- 
 cated to the first mortgagee and the Registry Act did 
 not apply : Pierce v. Canada Permanent, 24 0. R. 426, 
 25 0. R. 671, 23 A. R. 516; but see now section 74. 
 Where a conveyance was made absolute in form and 
 it was afterwards declared to be a mortgage only in a 
 redemption action and a conveyance made pursuant 
 to the decree, a person who claimed certain ease- 
 ments under the original conveyance was held af- 
 fected by notice under the Registry Acts that the 
 grantee was a mortgagee only and that those who 
 redeemed him were the owners of the equity of re- 
 demption: McKay v. Bruce, 20 0. R. 709. An 
 intending purchaser searched in the Registry Office 
 and found two incumbrances which shortly after he 
 paid off, and taking discharges, registered them and 
 
CHAPTER 124. 493 
 
 his purchase deed without making further search. 
 In the meantime a lien had been registered. The 
 purchaser was held entitled to be subrogated to the 
 position of the mortgagees whom he had paid off 
 and to priority over the lien. The Registry Act 
 does not preclude enquiry as to whether there was ' 
 knowledge in fact and the Court is not compelled as 
 a conclusion of law to say that the purchaser had 
 notice of what he was doing: Abell v. Morrison, 19 
 0. B. 669. A person who was in exclusive posses- 
 sion of a part of a farm occupied by him for the 
 statutory period so as to acquire title thereto by 
 possession is not estopped from setting up such title 
 by acting as witness, during the running of the sta- 
 tute, to a mortgage given by the legal owner cover- 
 ing the lands in question as well as other lands. 
 Being in fact ignorant of the contents of the mort- 
 gage, its registration was held not to be notice to 
 him so as to create an estoppel : Western Canada v. 
 Garrison, 16 0. E. 81. Payment of a mortgage by 
 the purchaser of the equity of redemption to the 
 original mortgagee and taking a discharge in no way 
 releases the lands or the mortgage when it has been 
 previously assigned and the assignment registered. 
 In addition to the effect of the Eegistry Act, the 
 party making payment is affected with constructive 
 notice by omission to enquire for the mortgage: 
 Gilleland v. Wadsworth, 23 Gr. 547, 1 A. E. 82. A. 
 owned lots 25 and 26. He sold part of lot 26 to B., 
 but by mistake the description was such as to pass 
 the whole lot. A. subsequently sold to C. lot 25 
 and the part of lot 26 not sold to B. The registra- 
 tion of the deed from A. to C. was notice to a pur- 
 chaser from B. of A.'s claim to part of lot 26 and 
 C. was entitled to a reconveyance thereof: Haynes 
 v. Gillen, 21 Gr. 15. Where a life tenant sells with 
 the knowledge of the remainderman, and the pur- 
 chaser goes on and makes improvements, the ac- 
 quiescence of the remainderman amounts to nothing 
 more than an assent to the life tenant disposing of 
 his interest. The registration of the conveyance 
 granting the life estate and remainder is actual 
 notice to the purchaser of the remainderman's title: 
 Bell v. Walker, 20 Gr. 558. In an action similar in 
 its facts to Gilleland v. Wadsworth, 1 A. E. 82, that 
 
494 CHAPTER 124. 
 
 is, where A. had given a mortgage to B., which, un- 
 known to A., B. had assigned to C, the assignment 
 heing registered, and A. subsequently sold to D., 
 who paid off the mortgage to B., Biddell, J., held 
 that the registration of the assignment was notice 
 to D., but held that the decision in the Gilleland Case 
 must not be pushed forward a hair's breadth, the 
 result otherwise being that no one would be safe in 
 selling an equity of redemption without searching 
 in the Eegistry Office, and, both A. and D. being 
 before the Court as original defendants, C.'s action 
 for foreclosure was dismissed: Watson v. G-rant, 9 
 0. W. E. 53. The omission of a deed from the ab- 
 stract index does not vitiate registration nor deprive 
 the deed of its priority : Lawrie v. Eathbun, 38 TJ. C. 
 E. 255 ; see Armour, Titles, p. 87, et seq. See cor- 
 responding section of Mines Act: E. S. 0. 1914, cli 
 32, sec. 75. 
 
 77. " Inevitable difficulty;" infancy; will refused pro- 
 bate; conveyance, of infant's estate by their father 
 and guardian: O'Neill v. Owen, 17 0. E. 525. In- 
 fancy is not an ' ' inevitable difficulty : ' ' McLeod v. 
 Truax, 5 0. S. 455; Mandeville v. Nicholl, 16 U. C. 
 E. 609. Persons dying abroad: Doe d. Eberts v. "Wil- 
 son, 4 U. C. E. 386. Destruction of will: Ee Davis, 27 
 Gr. 199. Where land was left in fee to widow under 
 a will which remained unregistered, the heir at law 
 after her death gave a mortgage which was held good 
 as against the widow's heirs : Stephen v. Simpson, 12 
 Gr. 493, 15 Gr. 594. Where the plaintiff claimed 
 under a will and the defendant under a deed from 
 the heir at law registered before the will : see Bondy 
 v. Fox, 29 U. C. E. 64. Deed by devisee and prior 
 unregistered deed by testator: McDonald v. McDon- 
 ald, 44 TJ. O.-E. 2?1. Unregistered will charging 
 annuity on real estate; partition amongst heirs and 
 devisees; knowledge of attorney: Eykert v. Miller, 
 14 Gr. 25. Direction to entail in will ; unregistered 
 deed:_Dumble v. Johnson, 17 C. P. 9. Conveyance 
 by heir at law for nominal consideration registered 
 prior to will, held not to cut out will: Wilkinson 
 v. Conklin, 10 C. P. 211. See Armour Titles, pp. 
 320-321, 360-361. 
 
 78. Armour, Titles, pp. 162-165, 172, 246, 397. Where 
 the patent is unregistered when the tax deed is 
 
CHAPTER 124. 495 
 
 given: see Jones v. Cowden, 34 U. C. E. 345. The 
 provision as to registering deed given on a sale for 
 taxes applies as well between several purchasers at 
 successive tax sales as between a purchaser thereat 
 and the vendee of the owner : Aston v. Innis, 26 Gr. 
 42. Delay in registering : see Smith v. McLandress, 
 26 Gr. 17; Carroll v. Burgess, 40 U. C. E. 381. 
 Sheriff's vendee at sale under execution takes free 
 of vendor's lien: Van Wagner v. Findlay, 14 Gr. 
 53. Proceedings for sale of lands for taxes : see E. 
 S. 0. 1914, ch, 195, sec. 141, et seq. Tax deed: ch. 
 195, sec. 171, 173, 177-180. Competing registrations 
 of tax deeds: see McConnell v. Beatty, 1908, A. C. 
 82. (Eeported also 11 0. W. E. 1). 
 
 80. See Armour, Titles, p. 60, " "What constitutes regis- 
 
 tration," also p. 99. Where a Eegistrar is handed 
 for registration and registers instruments which 
 are not duplicates, he should not allow them to be 
 withdrawn, as other instruments might gain prior- 
 ity: Guthrie, 1895, p. 11. See also sees. 31, 47, 52, 
 and notes. " Instrument capable of registration," 
 see also sees. 2 (d) and 33, notes. 
 
 81. The provisions of this section do not apply to 
 the Crown nor to a patent from the Crown of lands 
 heretofore unpatented: Guthrie^ 1912, p. 8. 
 
 81. — (6) Where a space is left vacant on a plan and not 
 marked as a lot or as a road or lane, the owner may 
 close it up or otherwise utilize it. Any restriction 
 on the owner's free use of the land must be clearly 
 manifested : Ee Scottish Ontario Inv. Co. and Bay- 
 ley, 12 O. W. E. 130. Effect of registration of plan 
 showing spaces marked "private entrance " and 
 "park;" easements acquired by Jot owners: Ihde 
 v. Starr, 19 0. L. E. 471, aff. 1 O. W. N. 909, 21 O. 
 L. E. 407 ; see post, sec. 86 notes. 
 
 81. — (9) Where a plan has been amended by Judge's 
 order, and a number of lots have been made into 
 one block, a new page in the abstract index is to be 
 opened for the new block and no instruments sub- 
 sequent to the Judge's order entered in the lots. 
 And this ruling would include a discharge of an old 
 mortgage describing the lots as previously sub- 
 divided: Guthrie, 1899, p. 5. 
 
496 
 
 CHAPTER 124. 
 
 81.— (10) A lis pendens must conform and refer to plan 
 of lots as subdivided and a mandamus will not be 
 granted to compel a Registrar to register a certi- 
 ficate which does not so conform. "Where the certi- 
 ficate partly conformed or referred to lots not sub- 
 divided it was allowed registration in respect of 
 this portion: Ee Thompson and Webster, 25 TJ. C. 
 E. 237. In applications under the Quieting Titles 
 Act, where there is a plan, the description of the 
 land in the petition must conform to the plan: Ee 
 Morse, 8 P. E. 475. The surveyor's certificate given 
 in Form 13 does not indicate that it should be wit- 
 nessed or verified by affidavit: Guthrie, 1897, p. 27. 
 It is not necessary "to refer to any plan except the 
 last: Guthrie, 1912, p. 12. 
 
 81. — (11) A municipal by-law providing for the opening 
 of a road was received at a Eegistry Office and the 
 fee paid, but the by-law was never entered or regis- 
 tered because it did not conform and refer to plans 
 filed of the lands through which the road was 
 opened. The Eegistrar was right in refusing it; 
 it was not an instrument capable of registration 
 within the meaning of section 80 : Ee Henderson, 29 
 0. E. 669. Although portions of township lots have 
 been laid off into village lots, this forms no objec- 
 tion to an undivided interest in the township lots 
 as originally described being sold under execution 
 and the purchaser at Sheriff's sale is entitled to hold 
 the interest acquired under such sale, notwithstand- 
 ing that the Sheriff's deeds do not comply with this 
 section of the Eegistry Act in not conforming to 
 the registered plan: Eathbun v. Culbertson, 22 Gr. 
 465. 
 
 81. — (14) In respect of plans filed with the Eegistrar 
 under the Eailways Acts, the Eegistrar 's duties and 
 emoluments are dependent on those Acts: Guthrie, 
 1897, p. 48. Under the provisions of the Municipal 
 Act, E. S. 0. 1914, ch. 192, sec. 479, the Council is 
 deprived of the power it formerly possessed under 
 the Eegistry Act to give its assent to a plan shew- 
 ing a road less than 66 feet wide. The provisions 
 of section 479 of the Municipal Act supersede this 
 sub-section inferentially. The registration might 
 be void even if the plan had the sanction of the 
 
CHAPTER 124. 497 
 
 1 
 
 Council: Guthrie, 1913, No. 16; see also notes to R. 
 S. 0. 1914, ch. 166, sec. 44. As to dedication and ac- 
 ceptance of roads: see R. S. 0. 1914, ch. 192, sec. 
 432 notes. 
 
 81. — (16) Owners of adjoining lands may make a joint 
 plan comprising lands of both of them, although as 
 to the lands of each owner it would be his own plan : 
 Re Ontario Silver Co. and Bartle, 1 0. L. R. 140. 
 Where parties sign as owners who do not appear 
 by the books to be owners, the Registrar should ob- 
 ject to the plan: Guthrie, 1897, p. 27. A Registrar 
 should deal with the Act reasonably and not refuse 
 registration of a plan because of the lack of the 
 signature of an apparent mortgagee under a mort- 
 gage almost 100 years old: Guthrie, 1899, p. 25. A 
 person not an owner might formerly, semble, re- 
 gister a plan and although this would have been at 
 the time a futile proceeding, yet if he afterwards 
 became the owner and adopted the plan, he would 
 • be entitled under the Act to have it amended : Re 
 Chisholm and Oakville, 12 A. R. 225. Registration 
 of plan and mortgage pursuant to it before title; 
 estoppel of real owner by creating status of owner 
 in mortgagor: Nevitt v. McMurray, 14 A. R. 126. 
 Where a plan is tendered by an owner for registra- 
 tion the books of the Registry Office are to be re- 
 ferred to to ascertain who are owners and all 
 owners should sign even where they own as execu- 
 tors: Guthrie, 1901, p. 12, 1913, No. 8. The regis- 
 tration of a joint plan by several owners should 
 shew what lands affected by the plan each claims 
 to own : Guthrie, 1910, p. ,34. On registering a sub- 
 division plan, the Registrar is not settling the ques- 
 tion of title. The registration of the plan does not 
 prove, admit or establish that the persons Tegister- 
 ing have a good title. By receiving the plan the 
 Registrar merely treats them as the apparent 
 owners, but they may not, in fact, have title, and it 
 may not, in fact, be free of encumbrance: Guthrie, 
 1913, No. 8. This clause is intended to prevent re- 
 gistration of plan by persons without apparent title. 
 The Registrar should see that the person tendering 
 the plan has a sort of prima facie title. Registering 
 the plan confers no title: Guthrie, 1910, p. 16. Duty 
 
 s.a.— 32 
 
498 CHAPTER 124. 
 
 of Registrar on registration of sub-division plan 
 is to consider the deeds appearing on the Abstract 
 Index, but he may and should disregard entry of 
 deed which, while it is entered in the Index, does 
 not in fact affect the actual title to the property: 
 Guthrie,. 1913, No. 3. The person entitled to an 
 easement is an owner within this sub-section: Guth- 
 rie, 1912, p. 17. Eegistration of a plan was per- 
 mitted where owner's title was derived under a 
 deed twenty years old, although his grantor's title 
 was not appatent from the abstract: Guthrie, 1912, 
 p. 11. 
 
 81. — (18) The registration of a plan of sub-division of 
 a town lot and the sales made in accordance with it 
 do not constitute a dedication of the lanes thereon to 
 the public : Ee Morton and St. Thomas, 3 A. R. 323. 
 A municipality is not free to deal as they please 
 with lands dedicated by a private owner for park 
 purposes. Whether the dedication arises only from 
 the act of the owner or by express grant, the muni- 
 cipality must accept it, if at all, for the purpose in- 
 dicated. Where the owner of land dedicated to the 
 public a square by filing a plan upon which were 
 the words " square to remain always free from any 
 erection or obstruction ' ' it was held that the muni- 
 cipality had no power to close up a part and dis- 
 pose of another part to trustees of a church: Ee 
 Peck and Gait, 46 U. C. E. 211; see Public Parks 
 Act, E. S. 0. 1914, ch. 203; and E. S. 0. 1914, ch. 
 192, sec. 398. The right vested in a municipality to 
 convert into public highways, roads laid out by a 
 private person on his property can only be exer- 
 cised in respect of private roads, to the use of 
 which the owners of property abutting thereon were 
 entitled: Gooderham v. Toronto, 25 S. C. E. 246. 
 The City and Suburbs Plans Act has no retroactive 
 effect: Toronto v. Hill, 24 0. W. E. 388, 4 O. W. N. 
 1076. A refusal by the Town Council to approve a 
 plan does not preclude application to the District 
 Court Judge for approval: Ee Eoyston Park and 
 Steelton, 4 0. W. N. 1273, 28 0. L. E. 629. A plan 
 of a number of lots laid out as a summer resort and 
 shewing a private way, boulevard or place of recrea- 
 tion, less than the width of a street, may be regis- 
 tered without the consent of the municipality: 
 Guthrie, 1913, No. 5. 
 
CHAPTER 124. 499 
 
 84. Though a plan not certified as required has, even 
 when deposited in the Eegistry Office, no effect un- 
 der the registry laws, yet in a deed reference may 
 be made to it as it may to any other document in 
 the Eegistry Office or elsewhere for the description 
 or designation of a lot: Ferguson v. Winsor, 10 0. 
 E. 13, 11 0. B. 88. No obligation to register a plan 
 which is only referred to; title complete by regis- 
 tration on the township lot: Muttlebury v. King, 44 
 U. C. E. 355. See also Ferguson v. ■ "Winsor 
 10 0. E. 13, 11 0. E. 88. Plans attached to 
 deeds to elucidate description and which do not 
 subdivide property into lots need not be separately 
 registered, but are parts of the deeds: Guthrie, 
 1897, pp. 10, 19, and see ante, sec. 34 (1), note. 
 Where a deed refers to an unregistered plan and is 
 entitled to registration, it must go on the index of 
 original lots : Guthrie, 1899, p. 14. 
 
 86. A plan of subdivision of land by adjoining owners 
 prepared and registered upon their joint request, 
 may, upon compliance with statutory conditions, be 
 amended on application of either owner, as far as his 
 own land is concerned, without the consent of the 
 other owner; but the other owner is a " party con- 
 cerned " and entitled to notice: Be Ontario Silver 
 Co. and Bartle, 1 0. L. E. 140. All persons who 
 buy lots according to a registered plan are not ipso 
 facto " parties c&ncerned " in every street shewn 
 on it. Whether they are concerned or not is a ques- 
 tion of fact: Ee Mcllmurray and Jenkins, 22 A. 
 E. 398. Where a petition under this section is 
 presented to the County Judge, the Judge of 
 another County Court has jurisdiction on the re- 
 quest of the first Judge to hear and adjudicate 
 thereon: Ee McDonald and Listowel, 2 0. W. E. 
 1000, 6 0. L. E. 556. To hear petitions under this 
 section is one of the judicial duties to be performed 
 by a County Court Judge where application is 
 made to him: Be McDonald and Listowel, lb. 
 Although the application is interlocutory in form, 
 the order to be made finally and conclusively set- 
 tles the rights of the parties concerned : Ee Mc- 
 Donald and Listowel, lb. The effect of the section 
 is that though a registered plan is binding, it is 
 not irrevocably so, but may be amended on a proper 
 
500 CHAPTER 124. 
 
 case being made out. Notice of any proposed 
 amendment or alteration must be given to all pur- 
 chasers, who are entitled to oppose the amendment 
 or alteration. The application may be made not 
 only by the person registering the plan, but also 
 by a purchaser or anyone claiming under him. 
 But where it is sought to close a lane laid out on a 
 plan, the title to the soil of which remains in the per- 
 son registering it, a purchaser seeking to close the 
 lane must shew that he represents the title of the per- 
 son who registered : Re Hamilton Terminal, 14 0. L. 
 E. 117, 9 0. W. R. 463. The evidence should as 
 a general rule be" given viva voce and not in the 
 form of affidavits: Re McDonald and Listowel, 2 
 0. W. R. 1000, 6 O. L. R. 556. By order of a County 
 Judge a certain street on a registered plan was 
 closed. Thereafter (the defendant municipality 
 passed a by-law declaring it open. The by-law was 
 quashed as having been passed in disregard and 
 contempt of the order, and as the order shewed 
 jurisdiction on its face, the evidence on which it 
 was made was not gone into on the application to 
 quash: Waldie v. Burlington, 7 0. R. 192, 13 "A. R. 
 104. The status of A. as a person or the assignee 
 of a person who registers a plan is a question of 
 combined law and fact for the County Judge on an 
 application to him to amend the plan, and his deci- 
 sion is not examinable in prohibition: Re Chis- 
 holm and Oakville, 9 O. R. 274, 12 A. R. 225. The 
 registration of a plan of a subdivision of a town 
 lot and sales made in accordance with it, do not 
 constitute a dedication of the lanes thereon to the 
 public: Re Morton and St. Thomas, 6 A. R. 323. 
 The plaintiff purchased a lot which was part of an 
 estate laid out under a building scheme. Upon the 
 plan the adjoining plots were shewn as a vacant 
 space, such space being used as a road though only a 
 cul de sac. In an action to restrain the defendants 
 from building on the vacant space it was held that the 
 plan did not amount to a binding representation, that 
 the vacant space would always remain so: White- 
 house v. Hugh, 75 L. J. Ch. 677, 1906, 2 Ch. 283. 
 Possessory title to strip of land on plan: Currah 
 v. Ray, 13 0. W. R. 652. Where park reserves and 
 entrance marked on plan, purchaser according to plan 
 gets easement: Ihde v. Starr, 19 0. L. R. 471, 21 
 
CHAPTER 124. 501 
 
 O. L. E. 407. What streets can be closed under 
 the statute and what streets must be closed by- 
 proceedings under Municipal Act: Ee Toronto 
 Plan, M. 188, 4 0. W. N. 662, 28 0. L. E. 41. Where 
 roads of streets laid out on a plan are public high- 
 ways, but the municipality has not assumed them, 
 then, in case they are closed up, the land becomes 
 the land of the adjoining owners : Surveys Act, E. 
 
 5. 0. ch. 166, sec. 44; Armour, Titles, p. 231; and 
 see E. S. 0. 1914, ch. 192, sec. 433, notes. Plan 
 amended by Judge's order may be filed without 
 consent of apparent owners or mortgagees being 
 endorsed. Fees for searches and abstracts in con- 
 nection with amended plan not allowed unless speci- 
 ally ordered by the inspector : Guthrie, 1897, p. 
 
 6, 1899, p. 14. The order made by the Judge may 
 be noted on the plan itself, say in red ink, follow- 
 ing the practice of the Court in amending plead- 
 ings. The amendments may also be made by sub- 
 sequent plan: Guthrie, 1898, p. 8. If the owner 
 of the soil of a street laid out on a plan makes a 
 conveyance of his right in the street, the Eegistrar 
 should record the instrument, being not concerned 
 with its legal effect: Guthrie, 1910, p. 20. As 
 to appeals under this section: see E. S. 0. 1914, ch. 
 56, sec. 26 (2d). 
 
 68. " Townsite " plans: Ee Western, etc., Corpora- 
 tion and Goodwin, 13 0. W. E. 177. There is no 
 authority under which a town can designate a per- 
 son's unnumbered lot by a particular number with- 
 out his consent. The County Judge has the right 
 however under sub-sec. 13 to number the parcels: 
 Guthrie, 1901, p. 23. 
 
 92. — (6) Where a deed is registered in more than two 
 parts the Eegistrar is entitled to the usual charges 
 for the first" two parts and 25 cents for each certi- 
 ficate on extra parts, and not to fees per folio as 
 for certified copies: Guthrie, 1897, p. 35. A deed 
 of exchange though it operates as a double convey- 
 ance is only one instrument: Guthrie, 1898, p. 6. 
 In a deed of family settlement where all the differ- 
 ent parties are really both grantors and grantees, 
 the Eegistrar should treat them and make his 
 entries on each particular lot according to the fact: 
 
502 CHAPTER 124. 
 
 Guthrie, 1898, p. 7. Endorsements on probates 
 should not be counted in reckoning folios : Guthrie, 
 1898, p. 9. Where a Judge's order amending a plan 
 is registered it is entered like any other instru- 
 ment affecting lands. Where a lane is closed in 
 the rear of lots, the lots are not so affected as to 
 require the order to be abstracted on them though 
 they are mentioned in the order so as to identify 
 the position of the lane: Guthrie, 1900, p. 8. The 
 words " not to exceed $5 " at the end of the sub- 
 section mean " in each municipality." So where 
 a deed is registered embracing numerous lots in 
 10 municipalities the Eegistrar is entitled to a 
 maximum fee of $5 " for each municipality:" 
 Guthrie, 1901, p. 5. ~Fees for registration of mort- 
 gages " not in full:" see sec. 48 (3) ante. The fee 
 of 5 cents for each parcel over four is in addition 
 to the fees allowed in the first part of the sub-sec- 
 tion : Guthrie, 1895, p. 7. The Registrar is entitled 
 to no greater fee than that prescribed by the Rail- 
 way Act for registering a special railway deed 
 with special covenants varying ifrom the form 
 given in the Act: Guthrie, 1895, p. 15. Where an 
 assignment of lease is produced for registration 
 having the landlord's consent endorsed or attached, 
 the assignment and consent are separate instru- 
 ments. The assignment however may be registered 
 without registering the endorsed consent, and the 
 certificate should read "I certify that the within 
 assignment of the lease (but not the consent purport- 
 ing to be endorsed thereon) is duly registered, &c.:" 
 Guthrie, 1897, p. 24. The Registrar is entitled to 
 fees for registering an order under the Dower Act, 
 R. S. O. 1914, ch. 70, sec. 14, permitting sale free 
 from dower and endorsed on the conveyance: 
 Guthrie, 1911, p. 11. 
 
 92. — (c) Search to ascertain persons interested subse- 
 quent to mortgage: see Morse v. Lamb, 23 0. R. 
 167, 23 O. R. 608, before this amendment. The 
 Registrar is bound to exhibit the abstract index 
 when required. Where an abstract index contain- 
 ing 31 entries was shewn to an applicant who looked 
 at it and examined 4 registrations, the fee was 
 properly 25 cents and not as for a search on 31 
 entries: Ross v. McLay, 26 C. P. 190; see also 
 
CHAPTER 124. 503 
 
 MacNamara v. McLay, 8 A. E. 319. Searches of 
 plans : see Lindsay v. Toronto, 25 C. P. 225. Omis- 
 sion of instrument from abstract index: see Green 
 v. Ponton, 8 0. E. 471. The language of the section 
 as to searches for the purpose of foreclosing a 
 mortgage on lands subsequently divided, refers to 
 persons attending the Eegistry Office and making 
 searches for the accuracy of which the Eegistrar 
 is not responsible and not to the preparation of 
 certified abstracts by the Eegistrar. No reduction 
 is provided for in the latter case : ' Guthrie, 1895, 
 p. 9. Solicitor's brief memoranda are " extracts " 
 and when they exceed 300 words in respect of one 
 lot extra fees are payable: Guthrie, 1895, p. 24. 
 A " reference " means a reference to the registry 
 books, not to the abstract index: Guthrie, 1897, p. 
 20. A Eegistrar 's duty is not to express opinions 
 on title or as to who is the " owner " of a lot, and 
 he should not give any such information: Guthrie, 
 1897, p. 20. Where a solicitor has procured a 
 certified abstract of title and desires to verify it 
 by searches he must pay for such searches : Guthrie, 
 1897, p. 30, 1901, p. 7. Where a certified abstract 
 of title is ordered, the Eegistrar should prepare it 
 by referring to the registered instruments them- 
 selves. He is entitled to be paid for the searches 
 involved. Sec. 21 probably will not protect him 
 when there are mistakes in the abstract index and 
 not in the registered instrument: Guthrie, 1897, p. 
 10. Searches begun in one of the Toronto divisions 
 and continued in the other should be treated as con- 
 tinued searches .in the [latter division: Guthrie, 
 1897, p. 11. A search made by a solicitor to verify 
 a prior search must be paid for as a new search: 
 Guthrie, 1901, p. 13. A Eegistrar is entitled to a 
 fee/ of 25 cents on each occasion that the abstract 
 index is searched : Guthrie, 1913, No. 7. 
 
 92. — (e) A search in the general register is a separate 
 search and is not included in the 25 cents paid for 
 a search of a lot, or in the 5 cents charged for 
 references: Guthrie, 1901, p. 12. 
 
 92.— (/) Abstract when required for purposes of fore- 
 closure of ; mortgage on lands subdivided subse- 
 quent to the mortgage: see Morse v. Lamb, 23 O. 
 
504 
 
 CHAPTER 124. 
 
 E. 167, 23 0. E. 608. Where an abstract of title 
 is applied for and the Eegistrar furnishes only a 
 copy of the abstract index, making no search or 
 reference to the registrations, he can only charge 
 as for a copy, 25 cents for the first 100 words and 
 15 cents for each subsequent 100 : Eoss v. McLay, 
 26 C. P. 190. A Eegistrar in making an abstract 
 is not bound to rely on the correctness of the 
 abstract index, but may properly test it by making 
 all searches necessary. He may rely on the abstract 
 index and "charge as for searches, but for a certi- 
 fied copy of the abstract index be can only charge 
 at the rate per folio: MacNamara v. McLay, 8 
 A. E. 319. The Eegistrar 's right is to charge for 
 copies of instruments certified by him although pre- 
 pared by the solicitor for the parties: Guthrie, 
 1895, p. 17, 1899, p. 21, 1913, No. 1. Where a copy 
 of the abstract index only is required the Eegistrar 
 merely charges as for copy, and his responsibility 
 is less. Where he is required to pick out the deeds 
 entered on a page of the abstract index and ascer- 
 tain which of them refer to the particular land, 
 he is entitled to charge for his searches: (see Mac- 
 Namara v. McLay, 8 A. E. 319 ante) ; Guthrie, 
 1895, p. 21. Where a copy of a mechanic's lien is 
 required and the applicant does |not know the 
 number, the proper charge is 25 cents for search 
 and the usual folio charge. No charge for " exhibit- 
 ing " the original to the Eegistrar to enable him 
 to make the copy : Guthrie, 1897, p. 15. A certified 
 abstract required for foreclosure proceedings where 
 the land covered by the mortgage has been sub- 
 divided, must be paid for in the ordinary way and 
 is not within the provision of sub-sec. (c) which 
 applies to searches only: Guthrie, 1895, p. 9. 
 Where an abstract is ordered of part of a lot 
 patented as a whole and afterwards subdivided, the 
 Eegistrar is entitled to make searches of all regis- 
 trations and. charge for them in order to find which 
 do and which do not affect the land: Guthrie, 
 1895, p. 22. Unnecessary entries on an abstract 
 will be disallowed: Guthrie, 1898, p. 10. The 
 number of references which may fairly be allowed 
 in case of dispute depends on the condition of the 
 abstract index: Guthrie, 1899, pp. 10, 12. In every 
 
CHAPTER 124. 505 
 
 case of doubt the Registrar should make a refer- 
 ence. Where the description is clear and definite 
 it is the duty of the Registrar so to enter it in the 
 abstract index: Guthrie, 1900, p. 5. Copies of 
 registered instruments affecting the same lot may 
 be verified in one certificate of the applicant does 
 not require separate certificates on each copy: 
 Guthrie, 1900, p. 5. Where abstracts of several lots 
 are partly identical, unnecessary references will 
 not be allowed nor will repetitions of lengthy 
 descriptions of land : Guthrie, 1900, p. 14. Proper 
 fees for abstract of title of closed road allowance: 
 Guthrie, 1912, p. 21. 
 
 92. — (g) Where a special form of certificate is^required 
 the Registrar's right to fees is not lessened by it 
 being prepared by solicitors and tendered for sig- 
 nature. The Registrar is entitled to reasonable 
 fees along the lines of the tariff for work not 
 strictly his duty: Guthrie, 1895, p. 18: MacNa- 
 mara v. McLay, 8 A. R. 319. Where information 
 is sought as to whether any instruments are regis- 
 tered subsequent to a given deed, the Registrar 
 should not give an abstract if a certificate that 
 there are no instruments will cover the point: 
 Guthrie, 1897, p. 18. A Registrar should not ex- 
 press opinions as to title and should refuse to give 
 a certificate that a particular person is the 
 "owner" of a lot: Guthrie, 1897, p. 20. A 
 Registrar may properly certify that there are or 
 are not mortgages appearing registered against a 
 lot: Guthrie, 1897, p. 20. Where the Registrar 
 pursuant to request endorses and delivers a certi- 
 ficate on a' final order of foreclosure or vesting 
 order of the registration of a certificate thereof, 
 such certificate is " furnished " within the meaning 
 of this sub-section and such certificate on the 
 original order is not that referred to and is not 
 included in the 50 cent fee provided in sub-sec (p) : 
 Guthrie, 1897, p. 29. A Registrar for the fee 
 authorized by the sub-section should give a certi- 
 ficate of the registration of a debenture by-law; he 
 may be entitled to charge also a fee for search : 
 Guthrie, 1897, p. 53. There is no provision for the 
 Registrar giving information in writing save by 
 certificate, for which he is entitled to charge under 
 this provision: Guthrie, 1911, p. 29. 
 
506 CHAPTER 124. 
 
 92. — (h) No one is entitled, except for the Begistrar, 
 to make a copy of a registered plan. If one is 
 desired the Registrar should permit it to be made 
 for a reasonable charge: Guthrie, 1899, p. 21. 
 Where a plan is attached to a deed to elucidate a 
 description, the Registrar is not entitled to a fee 
 under this provision: Guthrie, 1912, p. 13. 
 
 92. — (o) Queer e, is a plan an " original instrument " 
 within the meaning of the Act? Lindsey v. 
 Toronto, 25 C. P. 225. Where a question arises 
 whether instruments registered are correct dupli- 
 cates, the Registrar is entitled to charge for ex- 
 hibiting the original filed for purposes of com- 
 parison: Guthrie, 1895, p. 11. 
 
 92. — (p) A "caution " under the Devolution of Estates 
 Act in spite of the use of the word " certify " is 
 not a " certificate " within this sub-section, but an 
 instrument within sub-sec. (a) : Guthrie, 1895, p. 
 23. For registration of sheriff's notice to Registrar 
 of seizure of mortgage and of certificate of with- 
 drawal, etc., of writ : see R. S. 0. 1914, ch. 80, sees. 
 25 and 28. A certificate from the H. C. J. discharg- 
 ing four mechanic's liens and a Us pendens register- 
 ed in respect of one lot, is only to be charged the 
 usual fee for one certificate: Guthrie, 1899, p. 28- 
 
 93. Where a Registrar collects a fee for doing what he 
 is not bound to do, if the fee collected is reason- 
 able in view of the principle of the tariff, it can- 
 not be recovered back: MacNamara v. McLay, 8 
 A. R. 319. A Registrar is within the provision of 
 the Public Authorities Protection Act in respect of 
 an action to recover back fees charged in excess 
 of the tariff; but not in respect of an action for 
 refusing to furnish a statement in detail of the fees 
 charged by him : Ross v. McLay, 40 TJ. C. R. 83, 87. 
 Nor in action by the municipality for their pro- 
 portion of fees, though such action is not maintain- 
 able until the day fixed by statute for making the 
 return, though the Registrar is out of office : County 
 of Bruce v. McLay, 11 A. R. 477. Fees under the 
 Mechanics' Lien Act: see R. S. 0. 1914, ch. 140, 
 sec. 20. 
 
CHAPTER 125. 507 
 
 101. Each Registrar is bound to account to the county 
 only after he has first received $1,500 and not before, 
 and this whether there be successive holders during 
 - the year or not: Ee Ingersoll, 16 0. B. 194. A 
 Eegistrar dismissed during a year after he has 
 received in fees an amount m excess of that speci- 
 fied in this section is bound to pay over a propor- 
 tionate amount of such excess, though not in office 
 at the time prescribed for making the return; but 
 an action on the part of the municipality is not 
 maintainable until after the day fixed by statute for 
 sending in the return : Bruce v. McLay, 11 A. E. 
 477. .. ; 
 
 103. Damages paid by Eegistrar for having furnished 
 a defective abstract cannot be deducted by him in 
 ascertaining his net income : Guthrie, 1910, p. 6. 
 The premium on a guarantee bond is a proper dis- 
 bursement to the office of Eegistrar within the 
 meaning of this section in ascertaining " net in- 
 come:" Guthrie, 1910, p. 6. Proper deductions to 
 be made by Eegistrar in arriving at net income: 
 see Guthrie, 1912, p. 9; and see notes to sec. 7 (1) 
 ante. 
 
 112. — (h) Power of the Inspector to direct the Eegistrar 
 to amend or correct the abstract index in the case 
 of a deed which is in fact entered in the abstract 
 index, but which is incapable of registration by rea- 
 son of uncertainty: Guthrie, 1913, No. 3, 
 
 116. Armour, Titles, p. 99. 
 
 CHAPTEE 125. 
 
 The Custody of Documents Act. 
 
508 CHAPTER 126. 
 
 CHAPTER 126. 
 
 The Land Titles Act. 
 
 Eefer to Thorn, The Canadian Torrens System; 
 Coultlee, Manual (Torrens System) of the Law of 
 Registration of Titles in Manitoba, etc. ; Jones, Tor- 
 rens System of Land Transfer ; Hogg, The Austral- 
 ian Torrens System ; Hunter, Cases upon the Tor- 
 rens Land and Transfer Acts. 
 
 4. Judges of District Courts who are Local Judges of 
 the High Court have no jurisdiction to deal with 
 applications under the Land Titles Act: In re 
 Michell and Pioneer, 31 0. R. 542. 
 
 10. See as to rectification of register, sec. 115, et seq., 
 and notes. See also notes to sec. 42. Where pat- 
 ents affected, see note to R. S. 0. 1914, ch. 28, sec. 16, 
 See also ch. 56, sec. 16 (a), (note 8), Con. Rule 241, 
 (1913) Rule 5 (2) . 
 
 14. Cancellation of certificate obtained by fraud: Cov- 
 entry v. Annable, 1 West W. R. 148, 46 S. C. R. 573. 
 When' a certificate can be attacked for fraud: Assets 
 Co. v. Mere Rohi, 1905, A. C. 176. An order barring 
 holders of paper title from bringing " action " for 
 possession will prevent them registering objections 
 to issuance of certificate of title: Re- Woodhouse 
 and Christie Brown, 4 O. W. N. 1265, 24 O. W. R. 
 619, 5 0. W. N. 148, 25 0. W. R. 117. Effect 
 of issue of Land Titles certificate where, by 
 fraudulent transfer by vendor to another, a pur- 
 chaser has been deprived of his lien : Bucovetsky v. 
 Cook, 1 0. W. N. 998; and see sees. 42 and 115, 
 notes. 
 
 18. Construction of this section and section 159: see 
 McLeod v. Dawson, 7 0. W. R. 519, 8 0. W. R. 213 ; 
 note to sec. 159. 
 
 22. Land was devised to a petitioner for life with re- 
 mainder in fee to her children surviving her. The 
 
CHAPTER 126. 509 
 
 petitioner's children conveyed to her, and she ap- 
 plied to be registered with an absolute title. Evi- 
 dence was adduced that the woman was past child- 
 bearing. Held, that the evidence adduced was suf- 
 ficient proof, and the Master should have acted on 
 
 it and granted registration: Ee Gr , 21 0. E. 
 
 109. See on some points arising under this sec- 
 tion, notes to E. S. 0. 1914, ch. 122. (Vendor and 
 Purchasers Act), and E. S. 0, 1914, ch. 123. (Quiet- 
 ing Titles Act) ; also H. & L. notes, pp. 1225-1242. 
 
 24. — (1) Where a certificate of title issues to an appli- 
 cant against whom there are executions, to make the 
 certificate subject to the executions is unauthorized 
 when the debts represented by the executions were 
 incurred prior to the issue of the applicant's patent: 
 Yemen v. Mackenzie, 7 0. W. E. 701. 
 
 24. — (1)(&) Unity of ownership extinguishes all pre- 
 existing easements, such as a private right of way 
 over one portion of the land for the benefit of 
 another portion. Nothing in this section affects this 
 principle: McClellan v. Powassan Lumber Co., 15 
 0. L. E. 67, 12 0. W. E. 473, 17 O. L. E. 32. 
 
 24. — (l)(c) This sub-clause is not intended to apply to 
 an adverse claim to the title founded on rights 
 alleged to have arisen before the land was regis- 
 tered: Farah v. Glen Lake Mining Co., 17 0. L. 
 E. 1. 
 
 24. — (l)(h) Subject to " public highway:" Larcher v. 
 Sudbury, 4 0. W. N. 1289, 24 0. W. E. 659. 
 
 29. Acquisition of title by possession adversely to regis- 
 tered owner: Smith v. National Trust, 45 S. C. E. 
 618. See Armour on Eeal Property, pp. 431-2; 
 Titles, p. 295. Consideration of this section in view 
 of the Statute of Limitations : 47 C. L. J. 5. 
 
 30. — (3) Power of sale in mortgage and legal consider- 
 ations governing its exercise: Smith v. National 
 Trust, 45 S, C. E. 618; and see notes to E. S. 0. 
 1914, ch. 112, sec. 19, et seq., and ch. 117. Sched. B., 
 el. 14. 
 
510 
 
 CHAPTER 126. 
 
 31. In an action by an assignee of a charge^ to recover 
 money due under the covenant implied in this sec- 
 tion, there being no entry in the register negativing 
 the implication, the defendant in answer to a motion 
 for summary judgment swore that it was clearly 
 understood between him and the original chargees, 
 that the land only should be liable, which evidence 
 was corroborated by one of the original chargees, 
 the plaintiff swearing that he was a bona fide pur- 
 chaser for value without notice. It was held that 
 the defendant should be free to have the matter 
 litigated in the usual way: Wilkes v. Kennedy, 16 
 P. E. 204. A covenant by a mortgagor to observe 
 all the rules and by-laws of a loan company does 
 not have the effect of incorporating them in the 
 mortgage : Wilkins v. Deans, 6 N. Z. L. R. 425 ; Re 
 Kelly and Colonial Loan, 3 W. L. R. 62. But where 
 the mortgage is expressed as given as collateral 
 security for a stock subscription: see Lee v. Can- 
 adian Mutual, 3 0. L. R. 161. Implied covenant in 
 charge: Beatty v. Bailey, 26 0. L. R. 145. 
 
 38. Under the land system of Ontario it is one of the 
 terms of a contract of sale when nothing is said to 
 the contrary that the sale should be completed by a 
 proper conveyance susceptible of registration : Owen 
 v. Mercer, 12 0. L. R. 529. "Where a 'transfer with 
 forfeiture clause in it objectionable to the purchaser 
 was registered without the clause being noticed, on 
 application to the Master of Titles to have it ex- 
 punged, the Master directed an action to be brought. 
 The conveyance was cancelled and registration va- 
 cated: Owen v. Mercer, 12 O. L. R. 529. 
 
 42. The effect of a conveyance is to vest in the grantee 
 the absolute property of him or her conveying, free 
 from all rights of anyone else than the grantee, 
 unless otherwise expressed: Fraser v. Douglas, 40 
 S. C. R. 384, at p. 391. A transferee for valuable 
 consideration has higher rights than are conferred 
 on a first registered owner : Farah v. Glen Lake 
 Mining Co., 17 O. L. R. 1. For the question of the 
 invasion by the Torrens Title system of a husband's 
 rights at common law in his wife's estate: see Re 
 Wildash and Hutchison, 5 Queens. S. C. Rep. 46; 
 Grimish v. Scott, 4 Queens. L. J. Rep. 57 ; Fraser v. 
 
CHAPTER 126. §11 
 
 Douglas, 40 S. C. E. 384. What, if any, effect is 
 given to the common law, notwithstanding the 
 change in the mode of conveyance effected under 
 this Act : see Le Syndicat Lyonnais du Klondyke v. 
 McGrade, 36 S. C. E. 251. Where land is trans- 
 ferred by a forged deed, under the Eegistry Act, 
 this would form an incurable defect in title, and the 
 status of a subsequent grantee as a bona fide pur- 
 chaser for value would not avail him, because it 
 would rest on a void instrument, which would not 
 carry the title out of the owner's reach: In re 
 Cooper, Cooper v. Visey, 1881, 20 Ch. D. 611; but, 
 under the Land Titles Act, this otherwise fatal de- 
 fect would seem to be cured in the hands of an hon- 
 est holder for value: Gibbs v. Messer, 1891, A. C. 
 248. This may give rise to a claim under sec. 124 : 
 Fawkes v. Atty. Gen., 6 0. L. E. 490; and see also 
 sec. 121, and notes. A bona fide purchaser for value 
 of land from patentees is absolutely protected by 
 virtue of his certificate of title from any claim or 
 rights of persons holding an unpatented mining 
 claim filed with the mining recorded in respect of a 
 discovery duly inspected and passed: Farah v. 
 Bailey, 10 O. W. B; 252. Unity of ownership ex- 
 tinguishes all pre-existing easements, such as a 
 private right-of-way over one part of the land 
 for the accommodation of the other. Nothing 
 in this section affects this general principle: Mc- 
 Clellan v. Powassan Lumber Co., 17 O. L. E. 32, 15 
 0. L. E. 67, 12 0. W. E. 473. Filing of a counter- 
 claim in an action in which the title to the lands is 
 brought in question, is not notice to a transferee who 
 at the time of the transfer was not a party to the 
 action, no caution having been registered: Farah v. 
 Glen Lake Mining Co., 17 0. L. E. 1. Jurisdiction of 
 Court to open up foreclosure, notwithstanding the 
 issue of a certificate of title upon the same grounds 
 as in the case of an ordinary mortgage :Williams v. 
 Box, 44 S. C. E. 1. To ascertain what is included 
 in sub-sec. (b), resort is to be had to sec. 24: Farah 
 v. Glen Lake Mining Co., 17 0. L. E. 1. Construc- 
 tion of deed in accordance with the intention of the 
 parties: Ee Casci and Hill, 1 0. W. N. 1083. See 
 sees. 10, 14, 115, and notes. 
 
 47. See E. S. 0. 1914, ch. 70, sec. 10, and notes. 
 
512 
 
 CHAPTER 126. 
 
 62. Renewal of writ: right of execution creditor to be 
 notified of confirmation of tax sale: Ee Town of 
 Prince Albert, 4 Terr. L. R. 510. Renewal of writ: 
 expiry: Re Blancbard Estate, 5 Terr. L. R. 240. 
 
 66. Certificate of title to purchaser at Tax Sale where 
 land was subject to mechanic's lien: Re Clendenan, 
 2 O. W. N. 750, 18 0. W. R. 666. Tax sale : right of 
 execution creditor to be notified : Re Town of Prince 
 Albert, 4 Terr. L. R. 510. Tax sale transfer: non- 
 prosecution of appeal: In re Donnelly, 5 Terr. L. R. 
 270, 6 Terr. L. R. 1. 
 
 72. Having regard to the provisions of this Act respect- 
 ing cautions, especially sees. 73, 78, 82, 88 and 140, 
 and the provisions in the L. T. Rules for taking evi- 
 dence viva voce or by affidavit, the Act contemplates 
 that questions which arise in its administration are 
 to be dealt with as the Act provides. A cautioner 
 is not entitled to register his caution, issue a writ 
 and on proof thereof rest his case, and stay the action 
 of the Master until the disposition of his action. 
 He should proceed with his claim before the Master 
 and obtain, if he may, a direction to have the dis- 
 puted question tried by action or issue : Re Herbert 
 and O'Brien, 9 O. W. R. 172. The provision per- 
 mitting registration of cautions applies to " any 
 person interested in any way " in the lands. As 
 the Act relates mainly to conveyancing, whatever 
 dealing gives a valid claim to call for and receive 
 a conveyance is an " interest " within the scope of 
 the statute, and an appointee or nominee in writing 
 of the purchaser of an interest has a locus standi 
 jas a cautioner, and where such an appointee regis- 
 tered a caution as " owner," and his claim was 
 substantial, his caution was supportable against any 
 objection in point of form under sec. 142. Re Clay- 
 stone and Hammond, 28 O. R. 409. A caution was 
 registered against dealings by the registered owner, 
 the cautioner alleging that the registered owner held 
 as trustee for another against whose lands the 
 cautioner had an execution. An action had been 
 brought for a declaration to that effect. The Master 
 of Titles made an order that an entry of the cessa- 
 tion of the caution should be made upon the regis- 
 tered owner giving security for the amount claimed 
 
CHAPTER 126. 513 
 
 by the cautioner: that payment should be made 
 according to the result of the pending action, and 
 that until such entry the caution should continue 
 to have effect. It was held that the scheme of the 
 Act contemplates such a course of procedure, al- 
 though not specifically provided for, and that the 
 order made was the simplest and most effective 
 that could be made: Ee Macdonald and Sullivan, 
 14 P. R. 60. As to effect on title of a caution : see 
 Atty. Gen. v. Hargrave, 11 O. L. R. 530, 8 0. W. R. 
 127, 10 0. W. R. 319 (C.A.), note to sec. 86. See 
 also as to lis pendens and notice : McGrade v. Syndi- 
 cat Lyonnais du Klondyke, 36 S. C. R. 251 ; Assets 
 Co. v. Mere Rohi, 21 Times L. R. 311; 1905, A. C. 
 176. "Where notice is served on the cautioner, the 
 Master is not to try out the rights between the 
 parties, but merely to satisfy himself that a bona 
 fide claim has been sworn to for registration: see 
 Rule 22 : Re Kay and White Silver Co., 9 O. W. R. 
 712, 10 0. W. R. 10. The cautioner may have a 
 valid claim for compensation and yet have no right 
 to tie up lands : Re Kay and White Silver Co., 9 0. 
 W. R. 712, 10 0. W. R. 10. An agent claiming 
 commission on the sale of lands is not a person 
 interested, and not entitled to register a caution : 
 Re Kay and White Silver Co., 9 0. W. R. 712, 10 0. 
 W. R. 10. Where a caution was registered by the 
 owner and his wife, pending a transfer from hus- 
 band and wife, an unregistered mortgagee has no 
 status to apply to discharge it (see Rule 22), and the 
 Master has not authority to deal with the merits of 
 the case so as to decide that the mortgage in ques- 
 tion is void against the owner's wife, as executed 
 without independent advice and without consider- 
 ation: Yemen v. Mackenzie, 7 0. W. R. 701, 866. 
 Where a caution has been registered and the owner 
 applies for the cesser of the caution, the Master 
 of Titles has jurisdiction to refuse to vacate it: (see 
 sec. 78, infra), and it is proper to allow the caution 
 to stand, pending diligent prosecution of the action, 
 without requiring security: Re Skill and Thompson, 
 12 0. W. R. 361, 17 0. L. R. 186. Even if the Mas- 
 ter were to order a cesser of the caution, in such a 
 case another might be at once lodged under sec. 86 : 
 Re Skill and Thompson, 12 0. W. R. 361, 17 0. L. 
 
 S.A.— 33 
 
g^4 CHAPTER 126. 
 
 E. 186. Whatever dealing gives a valid claim to 
 call for or receive a conveyance of land is an inter- 
 est within the scope of the statute: Ee Claystone 
 and Hammond, 28 O. E. 409. The plaintiff in an 
 action against the owner for specific performance of 
 an agreement to sell is a competent cautioner: Ee 
 Skill and Thompson, 12 0. W. E. 361, 17 0. L. E. 
 186. The direction as to stating the name of the 
 applicant for a caveat is not imperative, and where 
 the name was illegibly written so as to be misread 
 by the Eegistrar, it was held only an irregularity, 
 and the caveat not void on account of it : McKay v. 
 Nanton, 7 Man. L. E. 250. The statute requires 
 that a place be named at which notices may be 
 served, and this direction is imperative : McKay v. 
 Nanton, 7 Man. L. E. 250; McArthur v. Glass, 6 
 Man. L. E. 224. Caveat as notice : see N. W. Con- 
 struction Co. v. Valle, 4 W. L. E. 37. Effect of cau- 
 tion or caveat: Alexander v. McKillop, 45 S. C. E. 
 651. Caveats and caveatable interests: 7 D. L. E. 
 675. 
 
 75. Eefusal to order security pending diligent prose- 
 cution of action under caution : Ee Skill and Thomp- 
 son, 12 0. W. E. 361, 17 0. L. E. 186, note to sec. 
 72, ante. 
 
 81. See notes to sees. 72, 82, 85. 
 
 82. A bona fide purchaser for value from the regis- 
 
 tered owner of land subject to the operation of 
 the statute is not bound or affected by 
 notice of litispendence, which has been im- 
 properly filed and noted on the folio of the 
 register containing the certificate of title as an 
 incumbrance or charge on the land : McGrade v. Le 
 Syndicat Lyonnais du Klondyke, 36 S. C, E. 251 
 ?The bringing of an action is enough to found a 
 caution, and on a motion to vacate the caution the 
 merits will not be gone into : Skill v. Thompson, 17 
 0. L. E. 186 ; Brown v. Clendennan, 2 0. W. N. 1013, 
 19 0. W. E. 19. See notes to sec. 72, ante. 
 
 85. No proceedings have been taken under this section : 
 Atty. Gen. v. Hargrave, 11 0. L. E. 530, at p. 533. 
 The claim for damages or compensation by reason 
 
CHAPTER 126. 515 
 
 of lodging a caution without reasonable cause is a 
 matter of distinct claim, and, as against the Crown, 
 where the Attorney General lodged the caution, 
 matter proper for petition of right, and therefore 
 not proper to be set up by way of counterclaim : see 
 Con. Rule 923; (1913), Eule 739: Atty.-Gen. v. Har- 
 grave, 11 0. L. R. 530, 8 0. W. R. 127, 10 0. W. R. 
 319 (C.A.) As to other plaintiff, other than the 
 Crown: see Con. Rule 251; (1913), Rule 115. 
 
 86. A caution amounts to no more than the notice of an 
 adverse claim equivalent to a lis pendens, and ex- 
 pires by lapse of time or otherwise, as may be 
 directed by the Court. It does not form a blot on 
 the title, and no pleading is necessary in order to 
 have it vacated: Atty. Gen. v. Hargrave, 11 0. L. R. 
 530, 8 0. W. R. 127, 10 0. W. R. 319 (C.A.) See 
 McGrade v. Syndicat Lyonnais du Klondyke, 36 S. 
 C. R. 251 ; Assets Co. v. Mere Rohi, 21 Times L. R. 
 311 (1905) A. C. 176. 
 
 87.— (1) A Local Master of Titles has power under sees. 
 87 and 150, in ordering that a caution be vacated to 
 direct payment by the cautioner of costs as between 
 solicitor and client and by Rule 18, has power to 
 give a special direction that costs as of a Court 
 motion may be taxed. And where a Master in his 
 discretion so ordered, a Judge in chambers refused 
 to interfere: Re Ross and Stobie, 14 P. R. 241. 
 
 87. — (4) A person entitled to payment of costs under 
 an order of the Master of Titles under sec. 87, can 
 have execution issued by the proper officer upon 
 the order and certificate of the Master without any 
 order of the High Court directing or permitting it, 
 but the words of the section do not include that 
 mode of enforcing payment by way of a receiver 
 called " equitable execution," and even if an ap- 
 plication to the Court were necessary in order to 
 have " execution issued," these words would not 
 include the appointment of a receiver: Re Craig 
 and Leslie, 18 P. R. 270. 
 
 88. In a case under the West Australian Act, it was held 
 that the Commissioner is not bound to register 
 title merely by reason of the issue of the prescribed 
 
516 CHAPTER 126. 
 
 notices and the non-appearance of a caveat. Such 
 notices may produce information and the Commis- 
 sioner in consequence thereof or of reconsideration 
 has a discretion to refuse to register subject to the 
 opinion of the Supreme Court: Manning v. Com- 
 missioner of Titles: 15 App. Cas. 195, 59 L. J. 
 P. C. 59. Security for costs on issue directed to 
 he tried: Boyle v. McCabe, 19 0. W. E. 449, 540, 
 2 0. W. N. 1248, 1293, 24 0. L. E. 313. Ex parte 
 application, special case: Ee Hewitt, 3 0. W. N. 
 902. 
 
 94. Where a mining lease was cancelled on account of 
 untrue affidavit of discovery, the protection 
 afforded by the Land Titles Act was held not to 
 apply as against the Crown: A. G. Ontario v. 
 Hargrave, 8 0. W. E. 127; 10 0. W. E. 319; 11 0. 
 L. E. 530; 10 0. W. E. 319. 
 
 95. Where in a marriage settlement in England a wife 
 
 covenanted to settle her after acquired property on 
 the trustees of the settlement and she subsequently 
 acquired lands in Jersey where, under the system 
 of land transfer, no entry of trust can be made on 
 the register, it was held that such lands were not 
 caught by the covenant because they could not be 
 vested in the trustees as trustees: Ee Pearse, 
 Pearse v. Pearse, 1909, 1 Ch. 304. See also Mc- 
 Leod v. Dawson, 7 0. W. E. 519, 8 0. W. E. 213, 
 note to sec. 159. 
 
 99. Notice to interested parties required on motion to 
 discharge building condition: Ee Baillie, 2 0. W. 
 N. 816, 18 0. W. E. 642. 
 
 102. Seal on land titles charge: effect on covenant: sec- 
 tion considered : Beatty v. Bailey, 3 0. W. N. 990, 
 21 0. W. E. 848, 26 O. L. E. 145. 
 
 105. What roads must be shewn: Laicher v. Sudbury, 
 4 0. W. N 1289, 24 0. W. E. 659. 
 
 109. The City and Suburbs Plans Act, E. S. 0. 1914, 
 ch. 194, has no retroactive effect : Toronto v. Hill, 24 
 0. W. E. 388, 4 0. W. N. 1076. Eoad less than 66 feet 
 wide: Laicher v. Sudbury, 4 0. W. N. 1289, 24 
 
CHAPTER 126. 517 
 
 0. W. R. 659; see now R. S. 0. 1914, ch. 192, sec. 
 479. See also R. S. 0. 1914, ch. 194, ch. 166, sec. 44, 
 and ch. 124, sec. 81 (14), (16), (18), 86 notes. 
 
 110. All persons who buy lots according to a registered 
 plan do not become ipso facto " parties concerned " 
 in every street shewn on it. Whether they are 
 " concerned " or not is a question of fact: In re 
 Mcllmurray and Jenkins, 22 A. R. 398. Where a 
 space is left vacant on a plan and not marked as 
 a lot or a road or a lane, the owner may utilize it 
 as he pleases: Re Scottish Ontario Inv. Co., and 
 Bayley, 12 O. W. R. 130. Streets to which the 
 statute refers and streets which must be closed by 
 proceedings under the Municipal Act: Re Toronto 
 Plan, M 188, 4 0. W. N. 662, 28 0. L. R. 41. Allow- 
 ance for roads laid out by private owners are 
 highways : see R. S. 0. 1914, ch. 166, sec. 44 ; owner- 
 ship of same when closed: see sub-sec 6 et seq.; 
 and see R. S. .0. 1914, ch. 192, sec. 433. 
 
 115. Issue of certificate with knowledge by the applic- 
 ants of unregistered rights. Rectification of the 
 register: Loke Tew v. Port Swettenham Rubber 
 Co., 1913, A. C- 491: Fraudulent transfer by ven- 
 dor to another, depriving purchaser of lien, Effect 
 of issue of Land Titles certificate: Bucovetsky v. 
 Cook, 1 0. W. N. 998. In a proper case where a 
 patent from the Crown has misdescribed lands, the 
 register can be rectified: Zock v. Clayton, 28 0. 
 L. R. 447. : When a certificate of title can be 
 attacked; fraud: see Assets Co. v. Mere Roihi, 
 1905, A. C. 176; see also Owen v. Mercier, 12 0. L. 
 R. 529, note to sec. 38 ante. As to cancellation of 
 certificate in certain cases : see notes to sec. 10 and 
 14 ante. 
 
 120. As to cancellation of patents : see R. S. 0. 1914, 
 ch. 28, sees. 16, 19 et seq., H. & L. notes, pp. 24-25 ; 
 Con. Rule 241 (1913) Rule 5 (2). See also. sec. 10 
 ante, note. 
 
 121. The Privy Council on an appeal under the New 
 Zealand Act of 1885, and which is substantially the 
 same as The Land Titles Act, 57 and 58 Vic, ch. 
 28 D, and this Act, expressed themselves thus: " By 
 
518 CHAPTER 126. 
 
 fraud in those Acts was meant actual fraud, i.e., 
 dishonesty of some sort; not what is called con- 
 structive or equitable fraud, an unfortunate expres- 
 sion and one very apt to mislead, but often used 
 for want of a better term to denote transactions 
 having consequences in equity similar to those 
 which flowed from fraud. Further it appeared to 
 their Lordships that the fraud which must be 
 proved to invalidate the title of a registered pur- 
 chaser for value* whether he bought from a prior 
 registered owner or from a person claiming under 
 a title certified under the Native Land Acts, must 
 be brought home to the person whose registered title 
 was impeached or to his agents. Fraud by per- 
 sons from whom he claimed did not affect him unless 
 knowledge of it was brought home to him or his 
 agents. The mere fact that he might have found 
 out the fraud if he had been more vigilant or if he 
 had made further enquiries which he omitted to 
 make, did not of itself prove fraud on his part. 
 But if it be shewn that his suspicions were aroused 
 and he abstained from making enquiries for fear 
 of learning the truth, the case was different and 
 fraud might properly be ascribed to him. A per- 
 son who presented for registration a document 
 which was forged or which had been fraudulently 
 or improperly obtained, was not guilty of fraud if 
 he honestly believed it to be a genuine document 
 which could properly be acted on. In dealing with 
 colonial titles depending on the system of registra- 
 tion which they had adopted, it was most important 
 that the foregoing principles should be borne in mind, 
 for if they were lost sight of, that system would 
 be rendered unworkable:" The Assets Company v. 
 Mere Eoihi, 21 Times L. E. 311, 1905, A. C. 176. 
 The principles laid down in: The Assets Company 
 v. Mere Eoihi, 1905, A. C. 176, were approved : Mc- 
 Grade v. Le Syndicat Lyonnais due Klondyke, 36 
 S. C. E. 251. " The Land Titles Act is not an Aet 
 to abolish the law of real property, it is no part 
 of its purpose to protect a registered owner against 
 his own obligations, much less against his own 
 fraud:" per Meredith, J. A., re Skill and Thompson, 
 17 0. L. E. 186, 12 0. W. E. 361 ; see also Fawkes 
 v. A. G., 6 0. L. E. 490, note to sec. 123 infra. 
 Purchaser for value without notice: see notes to 
 
CHAPTER 126. 5X9 
 
 sees. 42 and 124; and also to R. S. 0. 1914, ch. 124, 
 sec. 71. 
 
 123. A transfer of charge was forged. The transferee 
 acted bona fide, but after the owner of the charge 
 had secured rectification of the register, the trans- 
 feree of the charge under the forged transfer was 
 held not entitled to indemnity, as by bringing in 
 the transfer and requesting registration of it, he 
 affirmed and warranted that it was genuine. Further 
 he could not shew any beneficial interest in the 
 charge and had not suffered loss by the rectifica- 
 tion of the register: A. G. v. Odell, 1906, 2 Ch. 
 47 ; see also Sheffield Corporation v. Barclay, 1905, 
 A. C. 392. A " disposition " (sec. 121), which if 
 properly attacked would be fraudulent and void, is 
 not a " deprivation," (sec. 123) : Fawkes v. A. G., 
 6 0. L. R. 490. 
 
 124. Land was conveyed to trustees in trust for a mar- 
 ried woman, giving them the legal fee simple ancil- 
 lary to the equitable fee simple vested in the 
 woman and securing her the enjoyment of the pro- 
 perty during her life and the power of disposing 
 of it after her death. Subsequent to the deed to 
 the trustees a mortgage was made and a marriage 
 settlement on the woman's second marriage, upon 
 trusts ultimately for the children of the second 
 marriage. The husband and wife, the trustees and 
 mortgagee conveyed to a purchaser in fee simple 
 and afterwards a certificate issued to the pur- 
 chaser. At the suit of a child of the second mar- 
 riage, the certificate was held wrongly issued as 
 the interests of those entitled in remainder under 
 the settlement were unaffected by the conveyance 
 and his title only commenced on his father's death 
 in 1903, when the trust for sale in the settlement 
 came into operation, and he was not disqualified 
 from recovering damages under the "West Austra- 
 lian Statute: Spencer v. Registrar of Titles, 1906, 
 A. C. 503, 75 L. J. P. C 100. Plaintiff A. being 
 the owner of land registered under this Act was 
 induced by the fraud of B. and C. to transfer her 
 land to D. Subsequently a transfer purporting to 
 be from D. to E. was registered, but D. 's signature 
 was forged. E. then transferred to F. and F. to 
 
520 CHAPTER 126. 
 
 G., both being parties to the fraud with B. and C, 
 G. then transferred to EL, an innocent purchaser 
 for value without notice. All transfers were duly 
 registered and none of the parties to the fraud 
 being financially responsible, an action was brought 
 by A. for compensation out of the Assurance Fund. 
 It was held that A. had not been " wrongfully 
 deprived " under this section and that she could 
 not recover: Fawkes v. A. G., 6 O. L. R. 490. 
 Comment on wording of section: see Fawkes v. A. 
 G., 6 O. L. E. 490, at p. 492. The governing words 
 of the section are " wrongful deprivation," import- 
 ing some wrongful action in invitum, some trans- 
 action ex parte or behind the back of the true owner 
 or wherein his existence is concealed, whereby he 
 being in ignorance of what is going on, is deprived 
 'of his property : Fawkes v. A. G., 6 0. L. R. 490. 
 The Land Titles System protects those who derive 
 a registered bona fide title from a registered owner. 
 Accordingly they need not investigate the title of 
 such owner and are not affected by its infirmities: 
 Gibbs v. Messer, 1891, A. C. 248. As to position 
 of bona fide purchaser for value under a forged 
 deed under the Registry Act: see Re Cooper, 
 Cooper v. Vesey, 20 Ch. D. 611, note to R. S. 0. 1914, 
 ch. 124, sec. 71; also notes to sees. 42 and 121, ante. 
 
 140. Appeal regarding right to register objection to 
 issue of certificate of title : Re Woodhouse and 
 Christie Brown, 4 O. W. N. 1265, 5 O. W. N. 148, 
 24 O. W. R. 619, 25 O. W. R. 117. 
 
 142. Where an appointee of a purchaser under contract 
 of sale registered a caution as " owner " this sec- 
 tion covered the defect of form: Re Clagstone and 
 Hammond, 28 0. R. 409. 
 
 150. See Re Ross and Stabie, 14 P. R. 241, note to sec. 
 87 ante. 
 
 159. " This section should be read in connection with 
 sec.18 and has a material bearing in modifying its 
 provisions as applicable to letters patent from the 
 Crown demising land or mining rights in the Dis- 
 trict of Nipissing. This section puts Crown demises 
 of this kind apparently on the same footing as 
 
CHAPTER 126. 521 
 
 letters patent granting the land in fee in certain 
 districts — Nipissing among others. And it seems 
 that sec. 18 is intended to apply to leases and lease- 
 hold interests created after the issue of letters 
 patent from the Crown- The rights that are re- 
 served by that section are in respect of the person 
 who becomes the first registered owner of lease- 
 hold land. As against him, where he is not entitled 
 for his own benefit, the registration as first regis- 
 tered owner does not make him the owner or cut 
 out the unregistered estates, rights, interests and 
 equities of persons who are entitled to the land 
 registered. But this does not, at all events in the 
 . case of land or mining rights in the District of 
 Nipissing, demised by letters patent from the 
 Crown, affect the rights of a registered owner to 
 deal with third persons or the right of third persons 
 to deal with them in the absence of a caution or 
 unless in case of fraud. The provisions of sees. 96 
 et seq., indicate the intention of the Act to permit 
 registered owners to deal with lands, and third 
 persons to deal with them in respect of lands, 
 although it appear that the registered owner is 
 a trustee, and it could scarcely have been intended 
 that a purchaser of leasehold lands under sec. 18 
 was to be obliged to take the lands subject to un- 
 registered estates, rights, interests, or equities, even 
 though he had no notice of the existence of . any. 
 The effect would be that no person could safely 
 deal with a registered owner lest claims, the ex- 
 istence of which there were no means of ascertain- 
 ing, should be set up:" McLeod v. Dawson, 7 0. W. 
 E. 519, 8 0. W. E. 213. Title of first patentee. Stay 
 of Master's proceedings on certificate of Minister 
 of Lands: Zock v. Clayton, 3 0. W. N. 1611, 4. 0. 
 W. N. 1047, 22 0. W. E. 813, 28 0. L. E. 447. 
 
522 CHAPTER 127. 
 
 CHAPTER 127, 
 
 The Fbbeies Act. 
 
 2. As to the respective rights of the Dominion of Can- 
 ada and the Provinces in respect to Ferries:, see 
 B. N. A. Act, sees. 91 (13), 108, 109, 117. The right 
 to create and license a ferry is a franchise or 
 liberty, a species of incorporeal right or heredita- 
 ment and a branch of Royal Prerogative : Ste- 
 phens' Commentaries, Vol. 1, p. 608; see also Enc. 
 Laws of England, Article " Ferry." In the B. 
 N. A. Act, sec. 91 (13), exclusive legislative autho- 
 rity is given to the Dominion over " ferries between 
 a province and any British or foreign country, or 
 between two provinces," but it is now well estab- 
 lished that exclusive right of jurisdiction over a 
 particular class of matters does not necessarily 
 carry with it any right of ownership in them: 
 Atty. Gen. for Canada v. Atty. Gen. for Ontario, 
 1898, A. C. 700; see also B. N. A. Act, sees. 102, 
 108, 109, 117. As to the question of " Royalties ": 
 see Atty. Gen. for Ontario v. Mercer, 1883, 8 App. 
 Cas. 767, at p. 778; Atty. Gen. for British Columbia 
 v. Atty. Gen. for Canada, 1889, 14 App. Cas. 295, 
 at p. 304. The right to create and license a ferry as 
 one of the " jura regalia " which remained with the 
 Province at Confederation notwithstanding B. N. 
 A. Act, 91 (13). The Dominion has undoubted 
 right to make laws or rules with regard to ferries 
 for the purpose of regulating them, but a lease of 
 a ferry granted by the Dominion is invalid : Perry 
 v. Clergue, 5. O. L. R. 357. The grant of a license 
 for a ferry to the Town of Belleville to ferry 
 " between the town of Belleville to Ameliasburg," 
 was held a sufficient grant of a right of ferriage 
 to and from the two places named: Anderson v. 
 Jellatt, 9 S. C. R. 1. Revocation of right of ferry: 
 R. v. Davenport, 16 IT. C. R. 411. Informal autho- 
 rity : Jones v. Fraser, 6 O. S. 426 : see generally, 
 Dig. Ont. Case Law, Title " Ferry," cols. 2787-2790. 
 Constitutional question: see Dig. Ont. Case Law, 
 cols. 1173-1181. 
 
CHAPTERS 128, 129. 523 
 
 4. Termini defined by user: see Anderson v. Jellett, 27 
 
 Gr. 411, 7 A. R. 341, 9 S. C. R. 1. 
 
 5. Municipal liability in managing ferries: City of 
 
 St. John v. Macdonald, 14 S. C. R. 1. 
 
 8. Using boat within ferry limits: Ives v. Calvin, 3 
 
 U. C. R. 464. 
 
 9. Action for disturbance: see Burford v. Oliver, Dr a. 
 
 9; Jones v. Eraser, 6 0. S. 426; see also Binner 
 v. Humberstone, 26 S. C. R. 252. 
 
 CHAPTER 128. 
 The Millers' Act. 
 
 CHAPTER 129. 
 
 The Watee Pbivtleges Act. 
 
 1. Operation of this Act: see Cain v. Pearce Co., 1 
 0. W. N. 1133, 2 O. W. N. 887, 3 0. W. N. 1321; 
 Neely v. Peter, 4 0. L. R. 293. 
 
 17. See Judicature Act, R. S. 0.^1914, ch. 56, sec. 
 27 (2r). 
 
 
524 CHAPTER 130. 
 
 CHAPTER 130. 
 
 The Rivers and Steeams Act. 
 
 3. This section, commonly known as the Rivers and 
 Streams Bill (47 Vic, ch. 17), was passed in con- 
 sequence of the decision of the Supreme Court in 
 McLaren v. Caldwell, 1882, 8 S. C. R. 435, as to 
 the effect of R. S. 0. 1877, ch. 115, sec. 1. By this 
 enactment express power to remove obstructions 
 from the stream was for the first time conferred 
 upon persons using it for floating sawlogs, timber, 
 rafts and crafts, though no doubt before then it 
 had been assumed by the legislature that the rights 
 conferred by sec. 5 of 12 Vic, ch. 87 (afterwards 
 C. S. U. C, ch. 48, sees. 15 and 16, and R. S. 0. 
 1877, ch. 115, sees. 1 and 2), carried with it the 
 right to do so. The right to float timber and logs 
 down stream conferred by this section is not 
 limited to such streams as in their natural state 
 without improvements, during freshets, permit logs 
 to be floated, but extends without compensation to 
 the user of all. improvements upon such streams, 
 even where such streams have been rendered 
 floatable thereby. Such right is only conferred 
 during freshets. Quaere as to rights at other sea- 
 sons of the year : Caldwell v. McLaren, 6 A. R. 
 456, 9 App. Cas. 392. The defendants in driving 
 logs down stream made use of the plaintiff's im- 
 provements. In an action for tolls it was held, 
 following Caldwell v. McLaren, 9 App. Cas. 352, 
 that as to slides and improvements in the bed of 
 the stream the plaintiff could not recover, but as 
 to all such improvements outside the channel and 
 upon the plaintiff's land, a recovery was proper. 
 The absence of statutable aprons on the plaintiff's 
 dams gave the defendants no right to use without 
 compensation the plaintiff's improvements not in 
 the bed of the stream: Mackay v. Sherman, 8 0. 
 R. 28. Placing a dam on a river or stream by 
 which the supply of water therein is diminished 
 so as to interfere with the passage of logs is an 
 obstruction under this Act: Farquharson v. Im- 
 perial Oil Co., 29 0. R. 206, 30 S. C. R. 188. 
 
CHAPTER 130. 525 
 
 History of the section: lb., pp. 214-217 " What- 
 ever my own view may be as to the proper con- 
 struction (of this section), unless the case is on the 
 facts brought within the provisions of sec. 4, I am 
 bound by the decision in Farquharson v. Imperial 
 Oil Co., to hold that the right of the defendants 
 to float their logs and timber down the stream 
 across which the plaintiff's dam was erected was 
 paramount to that of the plaintiff, and that the 
 plaintiff's dam not being provided with the apron 
 or slide required by law, the dam constituted an 
 obstruction of the defendants' legal right and that 
 the statute gave to the defendants a further 
 remedy in addition to the recovery of the damage 
 sustained by them owing to the obstruction, which 
 enabled them to abate the nuisance by the re- 
 moval of the obstruction ": Meredith, C.J., James 
 v. Eathbun Co., 11 0. L. E. 271 ; see also Little v. 
 Ince, 3 C. P. 528, note to 21 infra. This section 
 places the public advantage of allowing lumbermen 
 to use the rivers and streams as highways for 
 carrying logs to a market, above the private dam- 
 age and inconvenience which may necessarily be 
 caused to individual riparian proprietors by their 
 doing so: Neely v. Peter, 4 0. L. E. 293. The 
 rights given to persons desiring to float their own 
 timber down a stream should not be extended to 
 companies incorporated for the purpose of making 
 a profit by improving streams and charging tolls 
 to lumbermen desiring to use them; this view is 
 strengthened by E. S. 0. 1897, ch. 194, sec. 15 
 (E. S. 0, 1914, ch. 181, sec. 15) ; Neely v. Peter, 
 4 0. L. E. 293. Dam resulting in flooding lands: 
 Cain v. Pearce Co. Ltd., 16 0. W. E. 846, 18 O. 
 W. E. 595, 19 0. W. E. 904, 22 0. W. E. 174, 1 
 0. W. N. 1133, 2 W. N. 887, 1496, 1498, 3 0. 
 W. N. 1321. Flooding neighbours' lands: Doolittle 
 v. Orillia, 2 0. W. N. 896. Although the public 
 may have in a river an easement or right to float 
 rafts or logs down and a right of passage up and 
 down wherever the water is sufficiently high to be 
 so used, such right is not inconsistent with an ex- 
 clusive right of fishing or with the rights of the 
 owners of property opposite their respective lands 
 ad medium filum aquae: E. v. Eobertson, 6 S. C. E. 
 52: see further, Dig. Ont. Case Law, cols. 7310- 
 7314. 
 
526 CHAPTER 130. 
 
 6. A fisherman lived on a small farm fronting on a 
 navigable stream flowing into Lake Superior and 
 about three miles from that lake. He used to go 
 in his sailboat to Sault Ste. Marie and was also 
 employed by his neighbours to bring in his sail- 
 boat supplies and provisions. He also used other 
 boats for fishing. The defendants brought large 
 quantities of lumber down the stream and kept it in 
 booms at the mouth, so that all summer access to 
 the stream by boat was cut off. It was held that 
 the plaintiff had sufficient special interest to en- 
 able him to maintain an action for damages : Drake 
 v. Sault Ste. Marie, 25 A. R. 251. Pollution of 
 stream: Hunter v. Richards, 18 0. W. N. 813, 2 
 O. W. N. 855, 22 0. W. R. 408, 3 O. W. N. 1432, 
 26 0. L. R. 458. 
 
 11. It is only when improvements in a stream are made 
 
 for the express purpose of facilitating the floating 
 of sawlogs, lumber and timber that tolls can be 
 charged. A mill dam is not such an improvement: 
 Re Little Bob River Dam, 23 A. R. 177. This sec- 
 tion confers exclusive jurisdiction to fix tolls, etc., 
 on the different tribunals mentioned in it. It is 
 incumbent on any persons seeking to levy such tolls 
 to produce as a condition precedent to recovery, an 
 order or judgment by one of such tribunals fixing 
 them: Beck v. Ontario Lumber Co., 10 O. L. R. 
 193, 12 0. L. R. 163, 8 0. W. R. 35. It seems that 
 after the tolls are fixed, an action will lie for them, 
 the parties not being confined to the remedy for 
 distress under sec. 13: Beck v. Ontario Lumber 
 Co., 10 0. L. R. 193, 12 O. L. R. 163, 8 O. W. R- 
 35. On an application for a writ of mandamus 
 to compel the Judge to make an order fixing tolls 
 under this section, it was held that such an order 
 had effect only in case of logs floated down the 
 river or stream after it was made: Beck Manu- 
 facturing Co. v. Valin, 9 0. W. R. 99, 193, 10 0. 
 W. R. 711, 16 0. L. R. 21, 40 S. C. R. 523, and 
 see note to sec. 12. Tolls under R. S. 0. 1897, ch. 
 194: Pigeon River Lumber Co. v. Mooring, 13 
 0. W. R. 190, 14 0. W. R. 639. 
 
 12. As to whether a mandamus can issue, in view of the 
 
 appeal given by this section, to compel a Judge 
 
chapter 130: 527 
 
 to make an order tinder sec. 11: see Beck Manu- 
 facturing Co. v. Valin, 9 0. W. E. 99, 193, 10 0. 
 W. R. 711, 16 0. L. R. 21, 40 S. C. R. 523. 
 
 15. See Judicature Act, R. S. 0. 1914, ch. 56, sec. 26 (2s). 
 
 13. See Beck v. Ontario Lumber Co., 10 0. L. R. 193, 
 12 0. L. R. 163, 8 0. W. R. 35, 40 S. C. R. 523 ante. 
 
 21. An action will lie against a mill owner for neglect- 
 
 ing to make an apron, etc., in his mill dam, thus 
 obstructing the descent of sawlogs to the special 
 damage of a particular individual. Persons own- 
 ing logs so obstructed may summarily remove the 
 obstruction so far as necessary to enable them to 
 enjoy their right: Little v. Ince, 3 C. P. 528; see 
 also James v. Rathbun, 11 0. L. R. 271. It is 
 only when improvements are made for the ex- 
 press purpose of facilitating the floating of saw- 
 logs, etc., that tolls can be charged under sec. 
 11, A mill dam is not such an improvement, and 
 the right of the lumberman under this Act to float 
 logs, etc., over it is unaffected by that Act: Re 
 Little Bob River Dam, 23 A. R. 177; see notes to 
 sec. 3 ante, and particularly: Farquharson v. Im- 
 perial Oil Co., 29 0. R. 206, 30 S. C R. 188; James 
 v. Rathbun Co., 11 O. L. R. 271; Neely v. Peter, 
 4 O. L. R. 293; see also Dig. Ont. Case Law, cols. 
 7310-7314. 
 
 22. Up to the time of a spring freshet in 1904 a dam 
 was provided with a slide in conformity with this 
 section and was in good repair. The slide was 
 partly carried away by that freshet. The evidence 
 shewed that the owner could not have guarded 
 against the injury which was the result of vis 
 major and that it was not practicable for him to 
 repair it before the defendants' logs came down the 
 stream. The sluice-way did not then constitute a 
 convenient passage for the defendants ' logs. It was 
 held that the defendants were in law justified in 
 blowing up the slide and part of the dam to re- 
 move the obstruction offered to the passage of the 
 drive : James v. Rathbun Co., 11 0. L. R. 271. 
 
 26. In an action by the owner of land on a river for 
 damage by flooding, it was held that there is noth- 
 ing in the Timber Slide Companies' Act, R. S. 0. 
 
528 CHAPTER 131. 
 
 1914, ch. 181, under which the defendants were 
 incorporated, which confers on them the right of 
 flooding property unless they shall have taken the 
 steps authorized by the Act for expropriating or 
 for settling compensation for flooding; nor were 
 they assisted by the provisions of this Act, for 
 even if the dam were erected before the plaintiff's 
 purchase of his property from the Crown, there was 
 nothing to shew that the price he paid was reduced 
 in consequence: Neely v. Peter, 4 0. L. E. 293. 
 See E. S. 0. 1914, ch. 181, sec. 27, and notes. 
 
 CHAPTEE 131. 
 
 The Saw Logs Driving Act. 
 
 3. When logs being floated down stream are unreason- 
 ably detained by others being massed in front of 
 them the owner is entitled to an arbitration under 
 this Act to determine the amount of his damages 
 for such detention, and is not restricted to his 
 remedy under this section: Cockburn v. Imperial 
 Lumber Co., 26 A. E. 19, 30 S. C. E. 80. A fisher- 
 man living on a small farm fronting on a river 
 about 3 miles from its mouth, used a sailboat to 
 go to the lake and to a nearby town, and was also 
 employed by neighbours to bring them supplies in 
 his sailboat. The defendants brought logs down 
 the river in large quantities and kept booms at its 
 mouth all summer so that the fisherman's access to 
 the stream was cut off. It was held that he had 
 sufficient special interest to enable him to maintain 
 an action for damages: Drake v. Sault Ste. Marie, 
 25 A. E. 251 ; see also Crandell v. Mooney, 23 C. 
 P. 212. Eights under this Act: Pigeon Eiver v. 
 Mooring, 14 0. W. E. 639. A local legislature may 
 incorporate a boom company but cannot give it 
 power to obstruct a tidal navigable river: Queddy 
 Eiver v. Davidson, 10 S. C. E. 222, 3 Cart. 243; 
 but see McMillan v. Southwest Boom Co., 1 Pugs, 
 and Burb. 715, 2 Cart 542; In re Provincial Fish- 
 eries, 26 S. C. E. 444; Atty. Gen. for Canada v. Atty. 
 Gen. for Ontario, 1898, A. C. 700. 
 
CHAPTERS 132, 133. 529 
 
 13. In line 6, for " detain " read " detained:" 4 Geo. V. 
 ch. 2 Schedule (25). 
 
 16. See Cockburn v. Imperial Lumber Co., 26 A. E. 19, 
 30 S. C. E. 80, note to sec. 3. As to whether this 
 section ousts jurisdiction of Division Courts to 
 award damages independent of the Statute : see Ee 
 Boyd and Sergeant, 10 0. L. E. 377, 521; and see 
 Ee Long Point and Anderson, 18 A. E. 401, 408. 
 
 18. Objections to arbitrator: Plaunt v. Gillies Bros, 
 3 O. W. N. 921, 21 O. W. E. 509. 
 
 CHAPTEE 132. 
 
 The Definition op Time Act.' 
 
 2. See E. S. O. 1914, ch. 1, sees. 28 (k), 29 (e), (u), 
 and (ii) ; Con. Eules 9, 342, H. & L. notes, pp. 550- 
 551; 1913 Eule 172, et seq.; see also Armour, E. 
 P., pp. 139-140. 
 
 CHAPTEE 133. 
 
 The Mebcantile Law Amendment Act. 
 
 Eefer to Bicknell and Kappele Practical Statutes, 
 pp. 437-438; Anger, Digest of Canadian Mercantile 
 Laws; Smith's Mercantile Law; Blackburn on Sale; 
 Scrutton on Charter Parties and Bills of Lading. 
 
 2. — (a) Bill of lading: At common law the property in 
 the goods could be transferred by indorsement of 
 the bill of lading, but the contract created by the 
 bill of lading could not, and the endorsee could not 
 sue in his own name : Thompson V; Dbwing, 14 M. & 
 W. 403. For decisions on Bills of Lading see Lick- 
 barrow v. Mason, 1 Sm. Lead. Cas. 737. See as to 
 how long the voyage is deemed to continue and the 
 bill of lading kept alive, and also as to rights inter se 
 of two or more bona fide transferees for value: 
 
 S.A.— 34 
 
530 CHAPTER 133. 
 
 Barber v. Meyerstein, L. E. 4 H. L. 317. To whom 
 custodian of goods may safely deliver them: Glynn 
 Mills and Co. v. East & West India Docks (1882), 7 
 App. Cas. 591. A contract to deliver a bill of lad- 
 ing is complied with by delivering one " part ": 
 Saunders v. Maclean, 11 Q. B. D. 327. Except for 
 the purposes of E. S. 0. 1914, ch. 137 and of defeat- 
 ing the- right of stoppage in transitu, the transferee 
 of a bill of lading acquires no better title to the 
 goods than the transferor had: G-urney v. Behrend, 
 3 E. & B. 622. As to fraud: see, The Argentina, 
 L. E. 1 Adm. 370. Stoppage in transitu is wholly 
 defeated when the bill of lading is assigned abso- 
 lutely for a consideration fully paid : Lickbarrow v. 
 Mason, 1 Sm. Lead Cas. 737; Leask v. Scott, 2 Q. 
 B. D. 376. Where consideration partly paid : Ex p. 
 Golding Davis & Co., 13 Ch. D. 628; Ex p. Falk, 14 
 Ch. D. 446; Kemp v. Falk (1882), 7 App. Cas. 573; 
 see also Sale of Goods Act (Imp.) 1893, sees. 47, 48: 
 see note to E. S. 0. 1914, ch. 137, sees. 2 (la), (2), 
 and 9. 
 
 2. — (b) " Goods, wares and merchandise " does not 
 include debts: Eennie v. Quebec Bank, 3 0. L. E. 
 541. The definition probably incorporates the deci- 
 sions on the meaning of " goods, wares and mer- 
 chandise " under the 17th section of the Statute of 
 Frauds. See E. S. 0. 1914, ch. 137, see. 2 (lb). 
 
 2. — (c) Warehouse receipts: see E. S. C. ch. 29, sec. 86; 
 Peuchen v. Imperial Bank, 10 O. E. 325. Bought 
 and sold notes for flour: Brunskill v. Chumasero, 
 5 U. C. E. 474. Stamping logs: King v. Dupuis, 
 28 S. C. E. 388. Description of goods in warehouse 
 receipt: Bank of Hamilton v. Noye Mfg. Co., 9 
 0. E. 638; Llado v. Morgan, 23 C. P. 517. 
 
 3. Cp. Imperial Statute 19 and 20 Vic, ch. 97, sec. 5, 
 (1856). Upon payment of the debt the surety has 
 the same rights as those possessed by the creditor 
 to whom he has paid the obligation and is entitled to 
 have placed in his hands all securities given by the 
 principal debtor to the creditor : Burnham v. Peter- 
 borough, 8 Gr. 366 ; Trerice v. Burkett, 1 0. E. 80. 
 See also Duncan, Fox & Co. v. N. & S. Wales Bank, 
 L. E. 6 A. C. 1. Position of creditor of a firm where 
 
CHAPTER 133. 531 
 
 one partner retires and his duty (if any) to preserve 
 collateral security taken for the debt for the benefit 
 of the remaining partners: Allison v. McDonald, 
 23 0. E. 288, 20 A. E. 695, 23 S. C. E. 635. A 
 partner paying off a judgment against the firm is 
 entitled to stand in. the place of the original judg- 
 ment creditor and enforce the judgment as to one 
 half against his co-partner. The Act applies to 
 the case of partners: Honsberger v. Love, 16 0. E. 
 170. Eight of a partner paying a judgment against 
 a firm to enforce it for his own benefit: London 
 Canadian v. Murphy, 14 A. E. 577; Scripture v. 
 Gordon, 7 P. E. 164; Potts v. Leash, 36 U. C. E. 
 476; Small v. Eiddell, 31 C. P. 373. In Hons- 
 berger v. Love, 16 0. E. 170, the Court followed the 
 remarks of the Court of Appeal in London Can- 
 adian v. Murphy, 14 A. E. 577, and did not follow 
 Scripture v. Gordon, 7 P. E. 164; Potts v. Leash, 
 36 IT. C. E. 476; and Small v. Eiddell, 31 C. P. 373. 
 
 The surety is entitled to all securities held by the 
 creditor, including the judgment, although ob- 
 tained in the same action. The judgment may 
 be enforced without obtaining an assignment of it: 
 Ee McMyn, Lightbourn v. McMyn, 33 Ch. D. 575. 
 A surety is entitled to his interest: Petre v. Dun- 
 combe, 2 L. M. & P. 107. But not to his costs of 
 defence unless his defence was reasonable: Gillett 
 v. Eipon, Moo. & M. 406; Leblanche v. Wilson, 21 
 W. E. 109. Where surety against whom judgment 
 was obtained and who paid creditors their debts and 
 costs, took an assignment of the judgment and en- 
 forced it against his principal, he was held entitled 
 to recover his costs as well as his debt: Victoria 
 Mutual Ins. Co. v. Freel, 10 P. E. 45; but see White- 
 house v. Glass, 7 Gr. 45. Enforcement of counter 
 securities : Moorehouse v. Kidd, 28 O. E. 35, 25 A. E. 
 221. Where one of two sureties has moneys in his 
 hands to be applied towards payment of the creditor, 
 he may be compelled by his co-surety to pay such 
 money to the creditor or to the co-surety himself 
 if the creditor has already been paid by him: 
 Whitfield v. Macdonald, 27 S. C. E. 94. Contribu- 
 tion among co-sureties: see Devy v. Earl of Win- 
 chelsea, II White and Tudor 's Leading Cases, 535. 
 Eights of surety in collateral security held by the 
 
532 CHAPTEE 133. 
 
 creditor: Milne v. Yorkshire Guarantee Co., 37 S. 
 
 C. E. 331. Eight of surety to have account taken 
 and security realized where the surety's agree- 
 ment was to make up deficiency: Teeter v. St. 
 John, 10 Gr. 85. Scope of section and scope of 
 recovery against co-surety.: Bank of Hamilton v. 
 Kramer Irwin Co., 2 0. W. N. 1432, 3 0. W. N. 
 73, 19 0. W. E. 745, 20 0. W. B. 46. Eelease 
 of a surety by giving time to the principal debtor : 
 see Bees v. Barrington, II White and Tudor 's 
 Leading Cases, 568, and cases cited. See also 
 Boss v. Burton, 4 U. C. E. 357; Darling v. Mc- 
 Lean, 20 U. C. E. 372; Hooker v. Gamble, 12 C. 
 P. 512; Bailey v. Griffith, 40 U. C. B. 418. It does 
 not need to be shown that the surety was in fact 
 injured by the delay: Canniff v. Bogert, 6 C. P. 474; 
 Agricultural Ins. Co. v. Sargeant, 26 S. C. B. 29. 
 Covenant not to sue: Hall v. Thompson, 9 C. P. 
 257. A guarantor to a bank which holds a secu- 
 rity under sec. 88 of the Bank Act, E. S. 0. 1906, 
 sec. 29, is not subrogated to the rights of the bank 
 in the security on payment Of the debt by him. 
 The purpose of the security is satisfied when the 
 debt it is given to secure is paid to the bank: Be 
 Victor Varnish Co., 16 0. L. E. 338, 11 0. W. B. 717. 
 For difference between a guarantee and an indem- 
 nity: see e.g., Thomas v. Cook, 8 B. & C. 728; 
 Wildes v. Dudlow, L. E. 19 Eq. 198; Guild and Co. 
 v. Conrad, 71 T. L. B. 140. The Mercantile Amend- 
 ment Act applies only to securities which are 
 legally assignable: Be Bussell, Bussell v. School- 
 bred, 29 Ch. D. 254. A right of distress is not a 
 security or remedy to the benefit of which a surety 
 paying rent is entitled under the Mercantile Amend- 
 ment Act : Be Bussell, Eussell y. Schoolbred, 29 Ch. 
 
 D. 254. Time given to one co-judgment debtor is not 
 within the rule that time given to a principal debtor 
 without the surety's consent discharges the surety: 
 Be A Debtor, 1913, 3 K. B. 11. Time given by a 
 creditor to his principal debtor after judgment re- 
 covered against the surety does not release the 
 surety : Duff v. Barrett, 17 Gr. 187 ; Bell v. Manning, 
 11 Gr. 142. 
 
 4. Where a mortgage is made to several persons as 
 joint tenants and one dies, the estate vests in the 
 
CHAPTER 133. 533 
 
 survivors, but the mortgage debt is presumed to 
 belong to them as tenants in common. In the case 
 of mortgages made before 1886 (1882 in England) 
 the survivors cannot give a discharge of it nor 
 make title under power of sale unless the mort- 
 gage contained a proper joint account clause or 
 power to the survivors to give receipts: Steeds 
 v. Steeds, 22 Q. B. D. 537 ; Hind v. Poole, 1 K. & J. 
 383. This enactment does not authorize payment 
 to one mortgagee although he afterwards becomes 
 the survivor: Powell v. Broadhurst, 1901, 2 Ch. 
 160. Where a mortgage was assigned to two per- 
 sons as trustees, no trust appearing on the face of 
 the assignment the personal representatives of a 
 deceased assignee were held not to be necessary 
 parties to the foreclosure of the mortgage, as under 
 this section the mortgage was vested in the assig- 
 nees jointly so that the survivor was entitled to 
 receive the money and enforce payment: Plender- 
 leith v. Smith, 10 0. L. E. 188 ; see Armour, Titles, 
 pp. 261, 357-8. 
 
 5. The common law rule as to joint contracts has been 
 superseded by this statutory enactment: Cook v. 
 Dodds, 6 0. L. E. 608. The Bills of Exchange Act 
 does not deal with the consequences which are to 
 flow from the character which attaches to the pro- 
 mise which a bill contains whether that of joint or 
 several liabilities. This will be determined accord- 
 ing to the local law when the liability is sought to 
 be enforced: Cook v. Dodds, 6 0. L. E. 608. This 
 section is declaratory of ,what is the Dominion^ law 
 relating to bills of exchange: Macdonald v. Whit- 
 field (1883), 8 A. C. 733. Death of one of several 
 co-guarantors : Fennell v. McGruire, 21 C. P. 134. 
 
 7. — (1) Non-liability of pledgee of bill of lading for 
 freight: Sewell v. Burdick, (1884) 10 App. Gas. 74. 
 Pledge of bill of lading and conversion before plain- 
 tiff's title accrued: Bristol Bank v. Midland Ey., 
 (1891) 2 Q. B. 653. Endorsement of bill of lading a 
 condition precedent to passing property : Gosselin v. 
 Ontario Bank, 36 S. C. E. 406. Necessity for ship- 
 pers to see bill of lading produced by the consignee 
 in order to protect themselves: Stewart v. Peoples 
 National Bank of Charleston, Cass. Dig., p. 81. See 
 
534 CHAPTER 133. 
 
 R. S. C. 1906, ch. 118, sec. 2; 18, 19 Vic. (Imp.) ch. 
 Ill, sec. 1. See also notes to sec. 2 (a), ante. 
 
 7. — (2) When sale in transitu for nonpayment of freight 
 amounts to wrongful conversion: Wilson v. Can- 
 adian Development Co., 33 S. C. E. 432. See R. S. C. 
 1906, ch. 118, sec. 3, 18 & 19 Vict. ch. Ill, sec. 2. See 
 also notes to sec. 2 (a) ante. 
 
 7. — (3) Conclusiveness of bill of lading as against 
 persons signing: Parsons v. New Zealand Ship- 
 ping Co., (1901) 1 K. B. 548. Apart from fraud or 
 mistake, a shipper who accepts a bill of lading can- 
 not escape liability because he has not read it; but 
 where the bill of lading is not given in the usual 
 course of business: see N. W. Transportation Co. 
 v. McKenzie, 25 S. C. R. 38. Where there is a con- 
 flict between the bill of lading and the custom of 
 the port of consignment, the terms of the bill of lad- 
 ing prevail : Parsons v. Hart, 30 S. C. R. 473. Where 
 there is conflict as to standard of capacity and 
 weight between the port of shipment and the port of 
 consignment, the question of freight is governed by 
 the lex loci contractus : Melady v. Jenkins S. S. Co., 
 18 0. L. R. 251. See R. S. C. 1906, ch. 118, sec. 4, 
 18 & 19 Vict. (Imp.), ch. Ill, sec. 3. 
 
 10. Manufactured from the goods: see Molsons Bank 
 v. Beaudry, Q. R. 11, K. B. 212. " Produced ": see 
 Re Goodfellow, 19 O. R. 299. 
 
 12. Preference over claim of unpaid vendor: see Ten- 
 nant v. Union Bank, 1894, A. C. 31. 
 
 13. Sale of goods: Peuchen v. Imperial Bank, 20 O. 
 R. 325. 
 
 15. This section was formerly in the Judicature Act, R. 
 
 S. O. 1897, ch. 51, sec. 58 (7). See H. & L. notes, 
 p. 74. 
 
 16. This section was formerly in the Judicature Act, R. 
 
 S. O. 1897, ch. 51, sec. 58 (8). See H. & L. notes, 
 pp. 74, 75. 
 
CHAPTER 134. 535 
 
 CHAPTEE 134. 
 
 The Assignments and Pbefebences Act. 
 
 Kefer to Cassels, The Ontario Assignments Act; 
 Parker, Frauds on Creditors and Assignments for 
 Benefit of Creditors; Bicknell and Kappele, Practi- 
 cal Statutes, pp. 460-474 ; Kerr on Fraud ; Burrill on 
 Assignments. 
 
 2. The functions exercised by the Judge under this Act 
 are those of a persona designata and not subject to 
 appeal, unless under the special provision of B. S. 0. 
 1914, ch. 79, sec. 4. 
 
 4. A withdrawal of defence under sec. 102 of the Division 
 Court Act, B. S. 0. 1914, ch. 63, is not a confession 
 of debt or cognovit actionem within the meaning 
 of this section: Bailey v. Bank of Hamilton, 21 
 A. B. 157. As to confessions of debt in the Divi- 
 sion Court: see D. C. Act, E. S. 0. 1914, ch. 63, 
 sec. 169; and Bicknell and Seager, notes pp. 371 
 and 189 (E. S. 0. 1897, ch. 60, sec. 211). Where ap- 
 pearance entered and defendant consented to order 
 striking out defence (Turner v. Lucas, 1 0. E. 623) ; 
 where defendant allowed judgment by default to be 
 entered before credit period expired (Macdonald v. 
 Crombie, 2 0. E. 243, 10 A. E. 92, 11 S. C. E. 107; 
 Bowerman v. Phillips, 15 A. E. 679) ; and where a 
 defence was put in to one action and another creditor 
 permitted to obtain judgment in his action by default 
 (Heaman v. Seale, 29 (Jr. 278; Labatt v. Bixell, 28 
 Gr. 593), there was no violation of the section. As to 
 confessions of action or judgment in the High Court : 
 see Con. Eules, 597-602, H. ■ & L. notes, pp. 791- 
 794. Since the Eules of 1913 came into force, 
 no cognovit actionem or warrant of attorney to 
 confess judgment has any validity, 1913 Eule 397. 
 A transaction which might not be considered volun- 
 tary by reason of pressure, is void if collusive: 
 Meriden Silver Co. v. Lee, 2 0. E. 451; Edison G. E. 
 Co. v. Westminster Tr. Co. (1897) A. C. 193. See 
 sec. 5 (1), note " Pressure." 
 
536 
 
 CHAPTER 134. 
 
 5.— (1) An assignment under this Act is a voluntary- 
 assignment in the sense that it is optional with the 
 debtor whether he makes it or not. But the form in 
 which it is made and the effect of such form not 
 being optional with him, in this sense it is not 
 voluntary: Ee Unitt and Prott, 23 0. E. 78. As 
 this Act merely aims to enable insolvents to place 
 their creditors on an equal footing and does not 
 interfere with after acquired property or relieve 
 the debtor from arrest, it was held intra vires: 
 Clarkson v. Ontario Bank, 15 A. E. 166, 4 Cart. 
 499 ; Atty-Gen. Ontario v. Atty.-Gen. Canada, (1894) 
 A. C. 189. In order to render a transfer void there 
 must be knowledge of the insolvency on the part of 
 both parties and concurrence of intention to obtain 
 an unlawful preference over the other creditors. 
 This is the case even within the 60-day limit, as the 
 statutory presumption will be rebutted if any of the 
 factors, necessary under the former law to the suc- 
 cess of an attack upon the transaction, do not exist. 
 Benallack v. Bank of British North America, 36 S. C. 
 E. 120. See also Langley v. Palter, 13 0. W. E. 
 951. Intention to defeat, hinder, and delay, and 
 intent to prefer : Steeher Lith. Co. v. Ontario Seed 
 Co., 22 O. L. E. 577, 24 0. L. E. 503, 46 S. C. E. 
 540, 16 0. W. E. 766, 17 0. W. E. 1021, 20 0. W. E. 
 1, 1 0. W. N. 1113, 2 0. W. N. 503, 3 0. W. N. 34. 
 The effect of the transaction is not evidenee of the 
 intent : Allan v. McTavish, 8 A. E. 440 ; Carr v. Cor- 
 field, 20 0. E. 218; Eandall v. Dopp, 22 0. E. 422. 
 A grantor believing himself solvent conveyed lands 
 voluntarily to his daughter. At the time he owned 
 shares in the plaintiff company upon which he had 
 borrowed from them, but which shares were worth 
 more than par and, at the time, ample security. It 
 was held that although the plaintiffs were hindered 
 in recovering their claim by reason of the im- 
 peached conveyance, this was not the necessary 
 consequence of the grant within the meaning of 
 this Act, and in the absence of fraudulent intent, 
 the conveyance was upheld : Elgin Loan v. Orchard, 
 7 0. L. E. 695. The section does not apply to a 
 chattel mortgage given for a bona fide actual ad- 
 vance. If part of the consideration for a chattel 
 mortgage is a bona fide advance and part such as 
 
CHAPTER 134. 537 
 
 would make the conveyance void as against credi- 
 tors the mortgage may still be upheld to the extent 
 of the bona fide consideration: Campbell v. Patter- 
 son, 21 S. C. E. 645. Where valuable consideration 
 has been given, clear evidence of actual intent to 
 defraud the creditors is necessary to have the deed 
 declared void : McDonald v. Haran, 12 0. W. E. 1151, 
 and see notes to sec. 6 (1) post. 
 
 " Insolvent:" A man may be deemed in insolvent 
 circumstances within the meaning of the act, if he 
 does not pay his way and is unable to meet the cur- 
 rent demands of his creditors and if he has not the 
 means of paying them in full out of his assets real- 
 ized upon a sale for cash or its equivalent: War- 
 noch v. Kloepfer, 14 0. E. 288, 15 A. E. 324; see 
 also Eae v. McDonald, 13 0. E. 352; Clarkson v. 
 Sterling, 14 0. E. 460; Dominion Bank v. Cowan, 
 14 O. E. 465; Bell v. Bobinson, 13 0. W. E. 676; 
 Wade v. Elliott, 10 O. W. E. 206, 11 0. W. E. 38; 
 Casserley v. Hughes, 5 O. W. E. 599, 6 0. W. E. 70. 
 Good will may have a financial value in estimating 
 the fact of insolvency: Ottawa Wine Vaults v. Mc- 
 Guire, 24 0. L. E. 591; 27 0. L. E. 319; 48 S. C. E. 
 44. Where the agent is aware of the debtor's in- 
 solvent circumstances, his principal has constructive 
 knowledge: Housinger v. Kuntz, 14 0. W. B. 233. 
 The creditor is put on reasonable enquiry as to the 
 debtor's circumstances: Spotton v. Gillard, 18 0. 
 W. E. 510; Cole v. Eacine, 4 0. W. N. 1327. See 
 also as to knowledge on the part of the transferee : 
 Allen v. Bank of Ottawa, 11 O. W. E. 148. 
 
 Pressure: Formerly it was necessary to show an 
 intent by the debtor to give a preference and a con- 
 currence in that intent by the creditor. Then as the 
 law was changed, the doctrine of pressure was in- 
 voked, and it was permitted to be shown that if the 
 creditor (in good faith) used threats or brought 
 influence to bear on the debtor it was sufficient to 
 rebut an intent to prefer on the debtor's part. The 
 Courts went far in the direction of allowing a very 
 slight " pressure " as sufficient to prevent the trans- 
 action being regarded as purely voluntary. Then, 
 in 1885, the Act was amended and the words " or 
 which has such effect " were inserted near the end 
 
538 CHAPTER 134. 
 
 of sub-sec. (1). As a result of this it was finally held 
 that knowledge by the creditor of the debtor's insol- 
 vent condition must also be shown, and in the result 
 the amendment became practically nugatory after 
 the decisions in Johnson v. Hope, 17 A. E. 10; Ashley 
 v. Brown, 17 A. E. 500; Merchants Bank v. Halter, 
 18 S. C. E. 88; Gibbons v. McDonald, 20 S. C. E. 
 587. A mortgage given by a debtor who knows that 
 he is unable to pay all his debts in full is not void as a 
 preference to the mortgagee over the other creditors 
 if given as a result of pressure and for a bona fide 
 debt and if the mortgagee is not aware that the 
 debtor is in insolvent circumstances : Gibbons v. Mc- 
 Donald, 18 A. E. 159, 20 S. C. E. 587. And even where 
 the mortgagee knew that the debtor was insolvent, 
 that the necessary result would be to defeat, delay 
 and prejudice creditors of the mortgagor and took 
 their mortgage with full knowledge of these facts and 
 the mortgage covered all the mortgagor's assets it 
 was held that the mortgage having been obtained by 
 pressure was unassailable: Davies v. Gillard, 21 O. 
 E. 431, 19 A. E. 432 ; Hiekerson v. Parrington 
 18 A. E. 635. The preference provided against 
 is a voluntary preference and a conveyance ob- 
 tained by pressure would not be within its terms: 
 Molsons Bank v. Halter, 18 S. C. E. 88. But if the 
 statement of the consideration is untrue the onus is 
 on the grantee to prove good consideration beyond 
 reasonable doubt: Gignac v. Her, 29 O. E. 147; 25 
 A. E. 393. A mere demand by the creditor without 
 threat of legal proceedings is sufficient pressure to 
 rebut the presumption of a preference: Stephens 
 v. McArthur, 19 S. C. E. 446. The pressure must 
 be real: Clemmow v. Converse, 16 G. E. 547, And 
 see cases cited Dig. Ont. Case Law, col. 468-472; 
 H. & L. notes, p. 1249. The present statute has not 
 abolished the doctrine of pressure. The doctrine of 
 pressure may still be invoked to uphold a transac- 
 tion impeached as a preference when it is not at- 
 tacked within 60 days or when an assignment is not 
 made within that time : Beattie v. Wenger, 24 A. E. 
 72; Morphy v. Colwell, 3 O. L. E. 314. And it also 
 seems that where a transaction is attacked within 
 60 days, evidence of pressure is not admissible to 
 rebut the statutory presumption: Webster v. Crick- 
 more, 25 A. E. 97. 
 
CHAPTER 134. 539 
 
 A bona fide previous agreement to convey land in 
 consideration of the grantee maintaining the grant- 
 or for life though not of sufficient clearness to have 
 enabled either party to have enforced specific per- 
 formance in an answer to a charge of fraud : Mont- 
 gomery v. Corbit, 24 A. E. 311. In case of a volun- 
 tary conveyance, fraudulent intent on the part of the 
 grantor is fatal: Oliver v. McLaughlin, 24 0. L. R. 
 41. A voluntary conveyance made by a man about to 
 embark in a speculative undertaking may be set 
 aside by persons who become his creditors in the 
 transaction in question: Ottawa Wine Vaults Co. 
 v. McGuire, 24 0. L. R. 591, 27 0. L.R. 319, 48 S. 
 C. R. 44; Alexandra Oil Co. v. Cook, 13 0, W. R. 
 405, 14 O. W. R. 604. (See R. S. 0. 1914, ch. 105, 
 sec. 3, notes). A voluntary conveyance of part of 
 his estate by a retired and successful hotelkeeper 
 made to his wife when he was solvent, but about to 
 go into business again, was upheld as against sub- 
 sequent creditors: Fleming v. Edwards, 23 A. R. 
 718. An assignee for benefit of creditors is en- 
 titled to take advantage of irregularities or defects 
 in a chattel mortgage made by the assignor to the 
 same extent as an execution creditor would be: 
 Kerry v. James, 21 A. R. 338 ; see R. S. 0., 1914, ch. 
 135, notes to sec. 7. Mortgage given to secure ex- 
 isting debt not yet payable: Munro v. Standard 
 Bank, 5 0. W. N. 508. Where an insolvent debtor 
 transferred to a creditor by way of security an in- 
 terest in the profits he expected to earn under a 
 contract, it was held that as the assignment did not 
 consist of assets which could be reached by credi- 
 tors at the time it was made, it did not come within 
 the act: Blakeley v. Gould, 24 A. R. 153, 27 S. C. R. 
 682. A trader in difficulties transferred his assets 
 to a company in the bona fide hope of benefiting his 
 creditors. The consideration was an undertaking 
 to pay debts and an allotment of shares and de- 
 bentures of the nominal amount of the debts. The 
 debentures could not be enforced until interest was 
 two months overdue, that is, eight months from 
 their issue. Held that this transfer did not neces- 
 sarily tend to defeat or delay creditors and was 
 not a fraudulent conveyance: In re Harris, 54 W. 
 R. 460. Where a limited liability company has 
 been regularly formed for the purpose of taking 
 
540 CHAPTER 134. 
 
 over the business of an insolvent debtor, the con- 
 veyance of the assets to the company, though it 
 may be open to attach as fraudulent and void as 
 against creditors under the Statute of Elizabeth or 
 this act, cannot be set aside at the instance of the 
 creditors on the principle of the company (being 
 composed of his wife . and some others) being merely 
 bis alias or agent.. A creditor cannot take the 
 benefit of the consideration for a conveyance and 
 at the same time attack the conveyance as fraudu- 
 lent and in this case the creditors having seized the 
 stock in the company allotted in consideration of 
 ithe conveyance, they could not attack it 1 : Eielle v. 
 Eeid, 28 0. E. 497, 26 A. E. 54; see also Wood v. 
 Eeesor, 22 A. E. 57, note to sec. 12, post. A 
 trader, who had two stocks, mortgaged them to B. 
 to secure endorsements on composition notes and 
 afterwards procured further advances, unsecured. 
 With the consent of B., the trader sold one stock, 
 B. taking the proceeds and applying them on his debt 
 generally. B. shortly afterwards seized the other 
 stock and sold it, applying the proceeds on the bal- 
 ance of his mortgage. The mortgagor assigned for 
 the benefit of creditors and the assignee attacked 
 the first sale as a preference. Held that B.'s posi- 
 tion was the same as if the whole debt, secured and 
 unsecured, had been overdue and there had been 
 one sale of both stocks realizing an amount equal 
 to the debt, in which case he could have appropri- 
 ated a part to his second debt and would have had 
 the benefit of the law of Set-off as to the unsecured 
 part under sec. 31. The assignee's remedy was to 
 redeem before sale : Stephens v. Boisseau, 26 S. C. 
 E. 437. In order to give a particular creditor a 
 preference, a debtor in insolvent circumstances 
 gave a moneylender a chattel mortgage on his stock. 
 The money was paid by the mortgagee's solicitor 
 to the preferred creditor, the same solicitor acting 
 for him. The preferred creditor gave a bond in 
 escrow left with the solicitor, indemnifying the 
 mortgagor in respect of the mortgage. The mort- 
 gagee was not informed that the transaction was 
 being carried out so as to avoid the appearance 
 of violating this act and to bring the case within 
 the ruling in Gibbons v. Wilson, (17 A. E. 1). The 
 
CHAPTER 134. 54^ 
 
 solicitor's knowledge of the circumstances was im- 
 puted to his client, the mortgagee, and the advance 
 held not a bona fide payment of money within the 
 statutory exceptions: Burns v. "Wilson, 28 S. C. B. 
 207. The effect of this decision seems to be to over- 
 rule Gibbons v. Wilson. See Stoddart v. "Wilson, 16 
 0. B. 17, where it had previously been questioned. 
 See also (similar cases) Stecher Litho. Co. v. Ontario 
 Seed Co., 22 0. L. E. 577, 24 0. L. E. 503, 46 S. C. E. 
 540; Allan v. McLean, 8 0. W. E. 223, 761. 
 
 "Delivery," "delivery over" of goods: see sec. 
 13 (1) ; and Eobinson v. Wilson, 12 0. W. E. 198. 
 Payment of supposed right of dower where debtor 
 bona fide believes that he is bound to make it though 
 in fact he is not legally bound to do so, not a fraudu- 
 lent preference: McDonald v. Curran, 14 0. W. E. 
 838, 1 0. W. N. 121, 389. See H. & L. notes, pp. 
 1242-1254, esp. pp. 1245 and 1249. 
 
 " Null and void ": " Void " means " voidable ": 
 Meriden Britannia Co. v. Braden, 21 A. E. 352. Posi- 
 tion of innocent mortgagee taking mortgage from 
 transferee under a transaction which was after- 
 wards set aside : Crawford v. MeGee, 6 0. W. E. 44. 
 
 5. — {2) Where a creditor had advanced money with the 
 promise of security, which was not again definitely 
 mentioned and was not pressed for and the debtors 
 sold their business for a payment, consisting of 
 cash, a cheque and some notes. The creditor en- 
 dorsed and discounted the notes with a stranger, 
 retiring the notes on which he was liable. It 
 was held that the cash payment could not be 
 attacked. That the transfer of the cheque was 
 not a payment in cash, but the transfer of a secur- 
 ity and the creditor was liable to repay the pro- 
 ceeds of it. As to the note, what the stranger did, 
 was done for the creditor and not for the firm, and 
 must be treated as if done by the defendant him- 
 self : Armstrong v. Johnston, 32 0. E. 15. S. gave 
 notes under a composition agreement with his 
 creditors due the following March. One creditor, 
 insisting on more prompt payment, took a note due 
 in September previous, which S. paid when due. 
 In November S. assigned and the assignee sued to 
 
542 CHAPTER 134. 
 
 recover the amount of the note. S. haying paid 
 the amount without oppression or coercion, could 
 not himself have recovered it, and his assignee was 
 in no better position: Langley v. Van Allen, 32 0. 
 E. 216, 3 0. L. E. 5, 32 S. C. E. 174. 
 
 5.— (3) " Has the effect of giving:" Under the Eevised 
 Statute of 1887, ch. 124, sec. 2, it was held that the 
 words, " or which has such effect," used in that 
 enactment, applied to a case where that has been 
 done indirectly, which if done directly, would be a 
 preference : Stephens v. McArthur, 19 S. C. E. 446. 
 " Unjust preference " is no more than " prefer- 
 ence": Lawson v. McG-eoch, 20 A. E. 464. ^ Prima 
 facie ": These words did not appear in E. S. 0., 
 1887, ch. 124, sec. 2, but were introduced in conse- 
 quence of the conflict of decision arising over the 
 question whether or not the statutory presumption 
 was rebuttable. It was held that where an instru- 
 ment made by a person in insolvent circumstances 
 had the effect of giving one creditor a preference 
 over others and the instrument was attacked within 
 60 days after it was made, there was an incontro- 
 vertible statutory presumption that the instrument 
 has been made with intent to give an unjust pre- 
 ference and it was void: Cole v. Porteous, 19 A. E. 
 Ill; but in Lawson v. McGeoch, 22 0. E. 474, 20 
 A. E. 464, it was held (per Hagarty, C.J.O., and 
 Burton, J.A.), that the presumption spoken of was 
 a rebuttable one, the onus of proof being shifted in 
 the cases within the sub-sections; per Maclennan, 
 J.A., that the presumption was limited to cases of 
 pressure and as to that was irrebuttable. Per Osier, 
 J.A., that the presumption in question was general 
 and irrebuttable, but the security in question was 
 supportable under a previous promise. Also in Kirby 
 v. Bathbun, 32 0. E. 9, under a similar provision, 
 (Dominion Winding-up Act), the presumption was 
 regarded as rebuttable : see Craig v. McKay, 12 0. L. 
 E. 121, where the matter is reviewed. The statutory 
 presumption of the invalidity of a preferential trans- 
 fer of goods is rebutted by shewing that it was 
 entered into by the transferee in good faith and 
 without knowing or having reason to believe that 
 the transferor was insolvent: Dana v. McLean, 2 
 0. L. E. 466; see Bellanoch v. Bank B. K A., 36 S. 
 
CHAPTER 134. 543 
 
 C. E. 120, noted ante sec. 5 (1). A trader, on the eve 
 of insolvency, made a chattel mortgage at the in- 
 stance of his banker, which mortgage was given as 
 the chattel mortgagee knew, for the express purpose 
 of paying off the trader's indebtedness to the bank. 
 The banker knew the trader's circumstances, though 
 the chattel mortgagee did not. The creditor assigned 
 within 5 days. Thestransaction was held void : Allan 
 v. McLean, 8 0. W. E. 223. G. had assisted S. with 
 loans and guaranteed his credit with the bank in 
 $3,000. His own cheque having been refused pay- 
 ment until the indebtedness of S. of $1,900 was sat- 
 isfied, S. arranged it by transferring to G. goods 
 pledged to another bank, G. paying off both banks. 
 Shortly after S. absconded, being insolvent. It was 
 shewn that G.'s cheque had not been refused pay- 
 ment from any doubt of S.'s solvency, but because 
 S. was dealing with another bank. It was held that 
 G. had not reason to suppose S. insolvent and had 
 satisfied the onus placed on him by the Provincial 
 statute : Baldocchi v. Spada, 7 O. W. E. 325, 8 O. W. 
 E. 705, 38 S. O. E. 577. A merchant then insolvent 
 sold his stock at 50 cents on the dollar and received 
 the purchaser's cheque on the defendant's private 
 bank for $1,100, payable to his own order, which 
 he took to that bank where he had an account, and 
 deposited it to his own credit. The defendants 
 knew the circumstances and had lent the purchaser 
 the money to make the purchase, and also, knowing 
 that the insolvent would make the deposit with 
 them, had charged up his account with an overdue 
 note for $1,000. The deposit of the purchaser's 
 cheque was attached within 60 days as a prefer- 
 ence, but it was held that there was no pre-arrange- 
 ment nor any intent to prefer and that the trans- 
 action was not within the scope of the act: Bobin- 
 son v. McGillivray, 7 O. W. E. 438, 12 O. L. E. 91, 
 13 O. L. E. 232, 8 O. W. E. 602, 39 S. C. E. 
 28. Antecedent promise as rebutting statutory 
 presumption: A chattel mortgage given in pursu- 
 ance of a previous agreement therefor to cover an 
 antecedent debt and advance made at the time after 
 agreement, both the mortgagor and mortgagee be- 
 lieving the mortgagor to be solvent when the mort- 
 gage was actually made, was held valid though im- 
 peached within 60 days: Lawson v. McGeoch', 22 O. 
 
544 CHAPTER 134. 
 
 B. 474, 20 A. E. 464; see also Clarkson v. Stirling, 
 15 A. E. 234. Where the transaction in question is a 
 renewal of, or is in substitution of, a transaction dat- 
 ing prior to the 60-day limit, the parties may rely on 
 the earlier transaction: Fisher v. Bradshaw, 2 0. 
 L. E. 128, 4 0. L. E. 162; Townsend v. Northern 
 Crown Bank, 26 0. L. E. 291. Certain creditors believ- 
 ing the debtor to be insolvent, procured an agree- 
 ment in writing to give a chattel mortgage on de- 
 mand. Four months later the chattel mortgage was 
 given and within 60 days the debtor assigned. It was 
 beld that the doctrine of pressure was not applicable 
 and notwithstanding the previous agreement, a 
 fraudulent intent was presumed: Bresse v. Knox, 
 24 A. E. 203 ; and see Armstrong v. Johnston, 32 0. 
 E. 15. An agreement not to file a chattel mortgage 
 renders it void ab initio: National Trust Co. v. 
 Trusts and Guarantee Co., 3 0. W. N. 1093, 26 0. L. 
 E. 279. But a bona fide agreement to give a chat- 
 tel mortgage if demanded may be upheld : Wade v. 
 Elliott, 10 0. W. E. 206, 11 0. W. E. 38. An agree- 
 ment, which should have been filed under the Chattel 
 Mortgage Act and was not, may be valuable evi- 
 dence of bona fides: Webster v. Crickmore, 25 A. E. 
 97. Where the transaction is impeached within 
 60 days, the onus is on the transferee to rebut the 
 presumption of fraud. This may be rebutted by 
 shewing that the transaction did not in fact leave 
 the creditors in any worse position, as where a 
 large debt has been compounded for the transfer of a 
 small piece of property: Thompson v. Morrison, 9 
 0. W. E. 179. What amounts to rebuttal of the 
 statutory presumption: see Wade v. Elliott, 10 0. 
 W. E. 206, 11 0. W. E. 38. "Presumed:" see 
 Eogers v. McFarland, 14 O. W. E. 943, at 951. Dis- 
 placement of onus of intent to gain illegal prefer- 
 ence, where chattel mortgage attacked within 60 
 days: D 'Avignon v. Bomerito, 3 0. W. N. 158, 438, 
 20 O. W. E. 211, 775. The interpretation of this 
 section is now considered fixed in view of the de- 
 cisions of the Court of Appeal. (Dig. Ont. Case 
 Law, col. 465, 466; Bellanack v. Bank of B. N. A., 
 36 S. C. E. 120; Dana v. McLean, 2 0. L. E. 366; 
 Eobinson v. McGrillivray, 12 0. L. E. 91, 13 0. L. E. 
 232, 7 0. W. E. 438, 8 0. W. E. 602, etc.) ; Allen v. 
 Bank of Ottawa, 11 0. W. E. 148, 39 S. C. E. 281. 
 
CHAPTER 134. 545 
 
 See H. & L. notes, pp. 1246-1247, 1249. " Within 
 60 days " : a transfer is not ' ' attacked ' ' by the issue 
 of a Division Court summons against the transferee 
 as garnishee, nor until proceedings against the trans- 
 feree for the purpose are begun : Morphy v. Colwell, 
 3 0. L. R. 314. See The Interpretation Act, E. S. 0. 
 1914, ch. 1, sec. 28 (h), when'time limited expires on 
 a holiday. 
 
 5. — (4) Parties to action to set chattel mortgage aside 
 as fraudulent i Kuntz v. Grant, 3 0. W. N. 237. See 
 the provisions of the Criminal Code bearing on as- 
 signments, transfers, sales and dispositions of pro- 
 perty in fraud of creditors and failure to keep books : 
 Criminal Code, R. S. C. 1906, ch. 146, sec. 417. 
 
 5. — (5) " Creditor:" A conveyance made by a debtor 
 in good faith of his assets to pay his existing debts 
 cannot be impeached by one who at the time has a 
 right of action against him for a tort and subse- 
 quently recovers judgment even though the con- 
 veyance is made because of the threatened action: 
 Cameron v. Cusack, 18 0. R. 530, 17 A. R. 489. One 
 who has a right of action for tort and subsequently 
 recovers Judgment is not a " creditor " within the 
 meaning of the act to be able to attack a transac- 
 tion made before action brought : Ashley v. Brown, 
 17 A. R. 500; Gurofsky v. Harris, 27 0. R. 201, 23 
 A. R. 717 ; H. & L. notes, p. 1247. A plaintiff in an 
 action for breach of promise of marriage is not a 
 "creditor" before judgment: Reg. v. Hopkins, 
 1896, 1 Q. B. 652. A plaintiff is not even within the 
 Act when he has recovered a verdict, but entry of 
 judgment is stayed : Burdett v. Fader, 6 0. L. R. 532, 
 7 0. L. R. 72 ; see also, Webb v. Hamilton, 10 0. W. 
 R. 192. The Act is narrower than the Statute of 
 Elizabeth, (R. S. 0. 1914, ch. 105), Oliver v. Mc- 
 Laughlin, 24 0. R. 41. The plaintiffs, being creditors 
 of a company, accepted an offer made by the com- 
 pany's president to "personally guarantee pay- 
 ment " upon an extension of time being given. To 
 carry out the arrangement, notes were made by the 
 company to the order of the plaintiffs, endorsed by 
 the president, who made an assignment before 
 maturity of the notes. It was held that although 
 
 s.a. — 35 
 
546 CHAPTER 134. 
 
 the correspondence and the notes established an 
 agreement of suretyship notwithstanding the stat- 
 ute of frauds, yet proof could not be made on such 
 a contract when the notes guaranteed had not 
 matured at the date of the assignment: Clapperton 
 v. Mutchinson, 30 0. E. 595. Actual bona fide ad- 
 vance by officer of a company : Stecher Litho. Co. v. 
 Ont. Seed Co., 22 0. L. R. 577, 24 0. L. R. 503, 46 
 S. C. R. 540. A mortgagee of land cannot attack a 
 chattel mortgage as a fraudulent preference until 
 his own security is proved of insufficient value: 
 Clark v. Hamilton Prov. Loan, 9 0. R. 177. See 
 notes to sec. 26; see also Kerry v. James, 21 A. R. 
 338; H. &L. notes, p. 1247. 
 
 6. — (1) Where an assignment is made to a sheriff it is 
 made to him as a public functionary. On his death 
 the care devolves on his deputy and thereafter on 
 his successor. It is not competent for the sheriff 
 to disclaim or decline to act (see sec. 18 (3) post) : 
 Brown v. Grove, 18 O. R. 311. It is sufficient if the 
 consent of creditors to an assignment is given sub- 
 sequently to an assignment being made, provided 
 it is given before any assignment is made to the 
 sheriff : Hall v. Fortye, 17 0. R. 435. An assignment 
 not made to the sheriff and made without creditors' 
 consent is superseded by a subsequent assignment 
 made with creditors' consent: Anderson v. Glass, 
 16 0. R. 592. Where such assignment has been 
 acted on by the creditors, it is not open to the 
 objection, even if made by an execution creditor, 
 that no creditor executed it: Ball v. Tennant, 25 
 O. R. 50 (reversed in appeal on another ground) ; 
 Nolan v. Donelly, 4 0. R. 440. An assignment" not 
 communicated to creditors is revocable: Rennie v. 
 Block, 26 S. C. R. 356; Cooper v. Dixon, 10 A. R. 50; 
 Clarke v. Reid, 27 0. R. 618. See further, Dig. Ont. 
 Case Law, cols. 442-443. 
 
 Endorsing or giving to a creditor the unaccepted 
 cheque of a third person in the debtor's favor 
 is not a payment of money to the creditor by 
 the debtor within the meaning of this section: 
 Davidson v. Fraser, 23 A. R. 439, 28 S. C. R. 272; 
 overruling Armstrong v. Hemstreet, 22 0. R. 336. 
 The giving of value is important as evidencing the 
 
CHAPTER 134. 547 
 
 intent: Stecher Litho. Co. v. Ont. Seed Co., 22 0. L. 
 E. 577, 24 0. L. B. 503, 46 S. C. E. 540. Where valu- 
 able consideration has been given, the evidence of 
 actual intent to defraud must be clear : McDonald v. 
 Horan, 12 0. W. B. 1151. See also as to this, Lang- 
 ley v. Beardsley, 13 0. W. E. 349, 18 0. L. E. 67. 
 A trader in insolvent circumstances sold his stock 
 in trade in good faith and directed the purchaser 
 to pay as part of the purchase money a debt due 
 by the trader to his bankers, who held a chattel 
 mortgage on the stock as collateral. The purchaser 
 had an account with the same bankers and gave 
 them a cheque on this account for the amount of 
 their claim, there being funds at his credit to meet 
 the cheque. This was held payment of money to 
 a creditor and not the realization of a security and 
 the bankers were not liable in a creditor's action to 
 account for the amount received: Davidson v. Fra- 
 ser (supra), was distinguished on the ground that 
 the cheque never was the property of or under the 
 control of the insolvent: Gordon Mackay v. Union 
 Bank, 26 A. E. 155; and see Eobinson v. McGilliv- 
 ray, 13 0. L. E. 232, 39 S. C. E. 281. Goods sup- 
 plied on understanding that chattel mortgage was to 
 be given: Bell v. Eobinson, 13 0. W. E. 676. " Pay- 
 ment of money to a creditor:" Langley v. Beardsley, 
 13 0. W. E. 349, at 355, 18 0. L. B. 67. Giving a chat- 
 tel mortgage in consideration of an antecedent debt 
 is not a transfer or delivery of goods within the 
 meaning of this section : Eeid v. Creighton, 24 S. C. 
 E. 69. An assignee is entitled to take advantage 
 of irregularities and defects in chattel mortgages 
 to the same extent as an execution creditor: Kerry 
 v. James, 21 A. E. 338; Eeid v. Creighton, 24 
 S. C. B. 69. See E. S, 0. 1914, ch. 135, sec. 7, 
 notes. As against an assignee, an oral agreement 
 of which he has notice by the assignor to give to an 
 endorser a chattel mortgage to secure him against 
 liability will be enforced: Kerry v. James, 21 A. E. 
 338. An assignee is not in the position of a pur- 
 chaser for value without notice and takes no higher 
 rights than his assignor, where an assignee notified 
 certain book debtors of the assignment to him be- 
 fore they were notified by certain creditors to whom 
 the book debts had been transferred, it was held 
 that the assignee did not thereby gain priority: 
 
548 CHAPTER 134. 
 
 Thibaudeau v. Paul, 26 0. E. 385. Bona fide ad- 
 vance : see Baldocchi v. Spada, 7 0. W. E. 335, 8 0. 
 W. E. 705, 38 S. C. E. 577 ; Bobinson v. McGillivray, 
 7 0. W. E. 438, 12 0. L. E. 91, 8 O. W. E. 602, 13 0. 
 • L. E. 232, 39 S. C. E. 281 ; Benallach v. Bank of B. 
 N. A., 36 S. C. E. 120; Building and Loan v. Palmer, 
 12 0. E. 1; Harvey v. McNaughton, 10 A. E. 616; 
 notes to sec. 5, ante. 
 
 6.— (2) See Burns v. Wilson, 28 S. 0. E. 207; Breese v. 
 Knox, 24 A. E. 203; notes to seq. 5, ante. 
 
 6. — (3) As to assignment made to sheriff: see Brown 
 v. Grove, 18 O. E. 311, note to sec. 6 (1) ante. The 
 meaning of the section is that an assignment exe- 
 cuted without the consent of the requisite number 
 of creditors shall have the same effect as if it had 
 been executed with such consent unless it be sus- 
 pended by an assignment with such consent: And- 
 erson v. Glass, 16 0. E. 592. A sheriff who has 
 seized goods under an execution is not justified in 
 not giving them up to an assignee who is not a 
 sheriff and whose assignment has not been assented 
 to by the requisite number of creditors: Anderson 
 v. Glass, 16 0. E. 592. 
 
 3 > 
 
 -(4) The liability of the endorser of a promissory 
 note made by the debtor and held by the creditor 
 for part of his debt is not a " valuable security," 
 and if such note is given up by the creditor to the 
 debtor in consideration of a transfer of goods im- 
 peached as a preference, the liability cannot be 
 "restored" or its value "made good" to the 
 creditor or the endorser compelled again to endorse : 
 Beattie v. Wenger, 24 A. E. 72. What is referred 
 to in this sub-section is some property of the debtor 
 which has been given up to him or of which he has 
 had the benefit ; some security on which the creditor 
 if still the holder of it would be bound to place a 
 value under sec. 20 (4) : Beattie v. Wenger, 24 A. 
 E. 72. An equitable lien on the debtor's goods may 
 be within the section : Churcher v. Johnston, 34 IT. 
 C. E. 528. Acceptances of the debtor himself, or 
 what is equivalent to them, are not ' ' valuable securi- 
 ties ": Meller v. Eeid, 4 A. E. 479. 
 
CHAPTER 134. 549 
 
 6.— (5) An assignment under this Act does not make 
 insurance policies void where the insurer's consent 
 has not been obtained: Wade v. Rochester German, 
 16 0. W. E. 1004, 2 0. W. N. 59, 19 0. W. E. 99, 2 
 0. W. E. 1076, 23 0. L. E. 635. Substitution of one 
 security for another (sub-sec. c) : Stecher Lith. Co. 
 v. Ontario Seed Co., 22 0. L. E. 577, 24 0. L. E. 503, 
 46 S. C. R. 540. See also H. & L. notes, p. 1247. As 
 to the provisions of The Wages Act: see E. S. 0. 
 1914, ch. 143, sec. 3, notes. 
 
 7. Where an assignment for benefit of creditors is made 
 
 by a resident of Ontario to an assignee residing in 
 Ontario, but all the work in connection with the as- 
 signment is done by the assignee's partner residing 
 out of the province, the assignee cannot recover as 
 against the assignor or retain out of his estate any 
 commissioner or expenses : Tennant v. MacEwan, 
 24 A. E. 132. 
 
 8. For form of assignment for benefit of creditors: see 
 
 O'Brien's Conveyancer, pp. 141, 144. The assign- 
 ment need not be executed by the assignee: Haight 
 v. Munro, 9 0. P. 462. The assignment has no extra- 
 territorial effect: Macdonald v. Georgian Bay 
 Lumber Co., 2 S. C. E. 364. If the debtor owns 
 land, the assignment should be registered to prevent 
 the operation of E. S. 0. 1914, ch. 124 and ch. 126, 
 whereby bona fide purchasers might gain priority. 
 Execution of assignment by firm and by partners in- 
 dividually and what passes thereunder, see Ball v. 
 Tennant, 25 0. E. 50, 21 A. E. 602; Nelles v. Maltby, 
 5 0. E. 263; Nolan v. Donelly, 4 0. E. 440.' ^ There 
 is no dower in partnership lands: Be Music Hall 
 Block, 8 0. R. 225. A company incorporated under 
 the Companies Act may make an assignment : Whit- 
 ing v. Hovey, 13 A. R. 7; 14 S. C. R. 515. Having 
 made an assignment in due form with the approval 
 of creditors as required, the Court may refuse a 
 winding-up order unless there are special circum- 
 stances: Re Belding Lumber Co. 23 0. L. R. 255; 
 Re Maple Leaf Dairy Co., 2 0. L. R. 590; Re 
 Strathy Wire Fence Co., 8 0. L. R. 186. 
 
 Goods consigned by a manufacturer to a company to 
 sell on the company's terms and account for the 
 
550 
 
 CHAPTER 134. 
 
 proceeds according to the consignor's list price, 
 with a right reserved by the consignor to withdraw 
 and by the company to return any of the goods, do 
 not pass to the assignee for benefit of creditors of 
 the company but the property in the goods con- 
 tinues in the consignor: Langley v. Kahnert, 9 0. 
 L. R. 164. Where land is held under an agreement 
 whereby the owner is to allow another certain 
 privileges and in the event of his " selling to any 
 other person," to pay a sum fixed, an assignment 
 for benefit of creditors is not a " selling " which 
 will call for. payment of the fixed sum: Ryan v. 
 Malone, 11 0. W. R. 575. An assignment for benefit 
 of creditors is revocable until the creditors either 
 execute or otherwise assent to it. Where credi- 
 tors refused to accept an assignment and the 
 assignor was so notified, the assignment not 
 having been registered, an action for damages was 
 properly brought in the name of the assignor 
 against a mortgagee of the stock in trade for 
 making an improvident sale: Rennie v. Block, 
 26 S. C. R. 356 ; see also Synnot v. Simpson, 5 H. L. 
 C. 121; Garrard v. Lord Lauderdale, 3 Sim. 1; 
 Johns v. James, 8 Ch. D. 744. Assignee's position in 
 regard to shares in companies not fully paid up : see 
 Armstrong v. Merchants Mantle Mfg. Co., 32 0. R. 
 387, note to Companies Act, R. S. 0. 1914, ch. 178, 
 sec. 60. An assignment for benefit of creditors though 
 confined in its terms to the assignor's personal estate, 
 professed to be drawn pursuant to this Act : Held it 
 was not drawn under the Act and an action brought 
 by the assignee to set aside a chattel mortgage was 
 dismissed : Blain v. Peaker, 18 0. R. 109. See now 
 the provisions of sec. 9, which overcome this diffi- 
 culty. It is clear that it is intended under this Act to 
 bring all the estate of the assignor into the hands of 
 the assignee for general distribution : Blain v. Peaker, 
 18 0. R. 109. An assignment under this Act does not 
 pass to the assignee, the benefit to which a debtor is 
 entitled in the fund of a society incorporated under 
 the Benevolent Societies Act, R. S. 0. 1887, ch. 172: 
 Re Unitt and Prott, 23 0. R. 78. The benefit of a 
 covenant by a third person to indemnify the as- 
 signor against a mortgage made by him does not 
 pass to his assignee under an assignment for gen- 
 eral benefit of creditors, at all events not where 
 
CHAPTER 134. 551 
 
 there has been no breach of the covenant before the 
 making of the assignment: Ball v. Tennant, 25 0. 
 E. 50, 21 A. R. 602; see also Sutherland v. Webster, 
 21 A. R. 228; McMichael v. Wilkie, 18 A. R. 464; 
 Cohen v. Mitchell, 25 Q. B. D. 262. 
 
 Effect of the exception of goods, etc., " by law ex- 
 empt from seizure:" see Reinhardt v. Hunter, 6 0. 
 W. R. 421; Re Unitt & Prott (supra) ; Universal 
 Skirt Mfg. Co. v. Gormley, 17 0. L. R. 114, at pp. 
 136-7. The debtor may act as he pleases in refer- 
 ence to his exemptions : Field v. Hart, 22 A. R. 449. 
 See also Temperance Ins. Co. v. Coombe, 28 0. L. J. 
 88; C. P. R. v. Rat Portage Lumber Co., 10 0. L. R. 
 273. 
 
 An assignment has not the effect of transferring to 
 the assignee a cause of action to which the assignor 
 was entitled to set aside a transaction as in fraud of 
 creditors: Gage v. Douglas, 14 P. R. 126. Nor will 
 it transfer to the assignee a right of action such as 
 an action for damages for. injury to credit: Tucker 
 v. Bank of Ottawa, 4 0. W. N. 1189; slander and 
 alienation of wife's affections: White v. Elliott, 30 
 U. C. R. 253; trespass: Smith v. Com. Union Ins. 
 Co., 33 U C. R. 529. 
 
 Where plaintiff makes assignment and subsequently 
 sues in his own name, procedure : Tucker v. Bank of 
 Ottawa, 4 0. W. N. 1090. Necessity to revive action 
 when cause of action passes to assignee : Cameron v. 
 Eager, 6 P. R. 117. A mortgagor having parted with 
 his equity of redemption by assignment for benefit of 
 creditors, has no right to redeem : Standard Realty 
 v. Nicholson, 24 0. L. R. 46, 2 O. W. N. 1189. 
 As to right to dower: Where the land assigned is 
 an equity of redemption purchased as such by the as- 
 signor, no dower attaches : Re Luckhardt, 29 0. L. R. 
 111. But where the mortgage was placed by the 
 assignor, and his wife joined to bar her dower, a 
 release of dower must be obtained as the inchoate 
 right still attaches : Standard Realty v. Nicholson, 24 
 0. L. R. 46; see notes to R. S. 0. 1912, ch. 70, sec. 10. 
 
 Landlords' preferential lien, R. S. Q. 1914, ch. 155, 
 sec. 38, see notes to that section. Where goods in 
 hands of assignee destroyed by fire, a landlord is 
 
552 
 
 CHAPTER 134. 
 
 not entitled to a" preferential lien " on the insur- 
 ance moneys : Miller v. Tew, 20 0. L. B. 77. 
 
 9. As to " assignment " of policies of insurance: see 
 
 "Wade v. Rochester German, 23 0. L. R. 635. See 
 Blain v. Peaker, 18 0. R. 109, note ante, sec. 8. 
 
 10. The assets of the partnership are not to be used to 
 pay the individual debts unless and until the part- 
 nership debts are provided for and vice versa : Gor- 
 don v. Matthews, 18 O. L. R. 340, 19 0. L. R. 564. 
 Guarantee signed by firm and its individual mem- 
 bers: debt both individual and partnership: elec- 
 tion: section construed: Gordon v. Matthews, 14 0. 
 W. R. 873, 18 0. L. R. 340, 19 O. L. R. 564. Where 
 a debt is contracted in respect of a partnership, a 
 creditor is entitled to rank on the debtor's indi- 
 vidual estate only after his individual creditors 
 have been paid in full: Gordon v. Matthews, 76., 
 but see Frost and Wood v. Stoddart, 12 O. W. R. 230, 
 688, 1133. Where an assignment is made by an 
 assignor carrying on business by himself creditors 
 having claims against him for goods sold to a firm 
 in which he was formerly a partner are entitled to 
 rank against his estate rateably with creditors hav- 
 ing claims for goods sold to the assignor alone. This 
 section does not apply to such a case but only to the 
 case of an assignor who has both separate estate 
 and joint estate: Macdonald v. Balfour, 20 A. B. 
 404 ; see also Mobrehouse v. Bostwick, 11 A. E. 76 ; 
 Ee Walker, 6 A. E. 169. The criterion is the exist- 
 ence of joint and separate debts, not joint or separ- 
 ate property. If there are separate debts, they 
 have the absolute preferential right to payment out 
 of the separate estate and vice versa as to joint 
 debts and joint property: Re Walker, 6 A. R. 169. 
 Right of solvent partner to prove against estate of 
 insolvent partner for partnership indebtedness: In 
 re Head, (1894), 1 Q. B. 638. Right of retired part- 
 ner to prove against insolvent continuing partner 
 for sum due for his interest in the business: Hall 
 v. Lannin, 30 C. P. 204. See also Re Ruby, 24 A. E. 
 509. See also Lindley on Partnership, 7th ed., p. 802. 
 
 11. Where the Judge of a County Court orders the re- 
 
 moval of an assignee he exercises a statutory juris- 
 diction as persona designata: Ee Young, 14 P. E. 
 
CHAPTER 134. 553 
 
 303; as to costs in such matters: see now E. S. 0. 
 1914, ch. 79, sec. 2. Where a summary motion is 
 made under this section to remove an assignee the 
 notice of motion should state the grounds, or they 
 should at least appear in Jthe material filed in sup- 
 port of the application. The ordinary procedure of 
 an action is not applicable. An appointment cannot 
 be taken out under Con. Rule 491 (1913 Rule 228) to 
 examine the assignee, and if taken out and served, 
 the assignee need not attend on it: Re Wilson, 6 
 O. L. R. 564. Remuneration of removed assignee: 
 Re Tilsonburgh, etc., Ry., 24 A. R. 378. As to ap- 
 peal from orders under this Act : see R. S. 0. 1914, 
 ch. 79, sec. 4; and Re Aaron Erb (No. 2), 16 0. L. R. 
 597, 12 0. W. R. 118. 
 
 12. — (1) " Whoever is party to an unlawful contract if 
 he hath once paid the money stipulated to be paid in 
 pursuance thereof, he shall not have the help of the 
 Court to fetch it back again:" Collins v. Blantern, 
 1 Smith L. C, 10th ed., 355. Where a debtor having 
 made a preferential payment voluntarily and with- 
 out oppression or coercion could not himself have 
 recovered back the amount, his assignee is in no 
 better position: Langley v. Van Allen, 32 S. C. R. 
 174. The debtor is (probably) not a necessary party 
 to an action by his assignee against a creditor to 
 set aside a transfer as preferential: Beattie v. 
 Wenger, 24 A. R. 72 : Crawford v. Magee, 6 0. W. R. 
 44; but see Kuntz Brewery Co. v. Grant, 3 0. W. N. 
 237; TJrquhart v. Aird, 6 0. W. R. 155, 506. Where 
 an assignment is made, but not registered, and 
 is refused by the creditors, and the assignor 
 so notified, the assignor is the proper person 
 to bring an action against a chattel mortgagee 
 for an improvident sale: Rennie v. Black, 26 S. C. R. 
 356. The assignee for benefit of creditors may be 
 ordered to pay the costs of the action personally as 
 any other unsuccessful litigant may be: Macdonald 
 v. Balfour, 20 A. R. 404. The assignee will not be 
 ordered to give security for costs : Vars v. Gould, 8 
 P. R. 31; Major v. Mackenzie, 17 P. R. 18; but see 
 Skill v. Lougheed, 3 0. W. N. 647. An assignee for 
 benefit of creditors having brought an action for 
 breach of contract, made a compromise with the de- 
 fendants before delivery of pleadings, and with- 
 out reference to the inspectors or creditors. 
 
554 CHAPTER 134. 
 
 A new assignee having been appointed it was 
 held the proper course for him to revive the 
 action and continue it, leaving the defendants to 
 move to stay it or plead the settlement in bar 
 rather than to direct the trial of an issue on the 
 point: Davidson v. Merriton Wood Co., 18 P. R. 
 139. A. mortgaged land to B. and then assigned 
 to C. for benefit of creditors. C. conveyed to B. 
 the equity of redemption in the land. B. and C. 
 brought action to have a lease made by A. set 
 aside as made voluntarily when A. was insolvent 
 and with intent to defraud his creditors. It was 
 held that this ground could only be taken by the 
 assignee under this section and his right terminated 
 when he had dealt with the estate so at to render 
 the relief useless to it. The assignee's name was 
 struck out: Bank of Hamilton v. Anderson, 7 0. 
 L. R. 613, 8 0. L. R. 153. This section mentions 
 only the assignee's right of suing, but if the assignee 
 in any other lawful way can get possession of 
 property fraudulently transferred by the assignor 
 he may take it and deal with it as part, of the 
 estate: Sykes v. Soper, 4 0. W. N. 1554, 29 0. 
 L. R. 193. When does sec. 6 (4) of the Creditor's 
 Relief Act, R.S. 0. 1914, ch. 81, override this section: 
 Sykes v. Soper, 4 0. W. N. 1554, 29 0. L. R. 193. 
 Compliance with provisions of this section: Law- 
 less v. Crowley, 13 0. W. R. 358. Powers of 
 assignee under Chattel Mortgage Act: see R. S. 0. 
 1914, ch. 135, sec. 2 (6), and see ch. 135, sec. 7,. notes. 
 
 12. — (2) If a preferential security is successfully at- 
 tacked by a creditor suing on his own behalf under 
 an order of the Court in the name of the assignee, 
 he can recover no more than his own claim and 
 costs. A creditor cannot after obtaining such an 
 order increase the amount that he can recover by 
 acquiring the claims of other creditors who have 
 not been willing to take part in the proposed pro- 
 ceedings. The rights of a creditor suing in the 
 assignee's name are not affected by acts done 
 before action by the assignee in his personal capa- 
 city: McTavish v. Rogers, 23 A. R. 17. A creditor 
 may after an assignment and after the execution 
 by him and the other creditors of a release of their 
 debts in consideration of a compensation, bring an 
 
CHAPTER 134. 555 
 
 action in the assignee's name to recover goods 
 fraudulently concealed by the assignor at the time 
 of the assignment. Such an action may be brought 
 with the assignee's consent in his name without 
 any order, but without such order the recovery 
 will be for the benefit of the estate: Doull v. Kap- 
 man, 22 A. R. 447. Certain creditors attacked a 
 transaction in which an inspector was interested. 
 It was held that he could not, as inspector, obtain 
 any advantage for himself and the plaintiffs were 
 entitled to a reference to ascertain what profit he 
 had received. It was also held that the assignee 
 was a necessary party to the action, as a plaintiff 
 if he consented, as a defendant if he did not : Segs- 
 worth v. Anderson, 23 0. R. 573, 21 A. R. 242, 24 
 S. C. R. 699. A creditor cannot take the benefit 
 of the consideration for a transfer of goods and 
 at the same time attack the transfer as fraudulent. 
 An assignee has no higher right in this respect: 
 "Woods v. Reesor, 22 A. R. 57; see also Rielle v. 
 Reid, 26 A. R. 54 (note to sec. 5 (1) ante). A credi- 
 tor suing in the name of the assignee obtained judg- 
 ment against third persons for the payment to him 
 as part of the debtor's estate the proceeds of promis- 
 sory notes given for purchase money of the debtor's 
 stock in trade. It was held too late for him to attack 
 the sale as fraudulent: Woods v. Reeser, 22 A. R. 57. 
 Where a creditor obtains an order authorizing him to 
 bring an action in the assignee's name, the action as 
 brought must be such as is justified by the scope 
 of the order. A creditor suing in the name of the 
 assignor cannot attack the bona fides of a compro- 
 mise between the assignee and the defendant where 
 the defendant cannot be restored to his original 
 position. Whether sub-sec. (2) is not confined to 
 cases in which an exclusive right of suing is given 
 to the assignee by sub J sec. (1), queer e: Campbell 
 v. Hally, 22 A. R. 217. Where proceedings are 
 taken under this section by a creditor on behalf of 
 himself and all those who within a limited time 
 should come in and contribute to the risk and ex- 
 pense of an action to set aside a security held by 
 another creditor, the latter may while defending 
 his security, join with the attaching creditors in 
 indemnifying the assignee so that if he fails to 
 retain his security he may participate in the fruits 
 
556 
 
 CHAPTER 134. 
 
 of the litigation: Barber v. Crathern, 28 O. E. 615. 
 Where creditors had commenced an action to set 
 aside a transaction as fraudulent and the defend- 
 ant afterwards assigned, the creditors could proceed 
 with the action which did not become transferred 
 to the assignee under sub-sec. (1). Sub-sec. (2) 
 may be read to apply to pending litigation and an 
 order was made adding the assignee as co-plain- 
 tiff and authorizing the creditors to continue the 
 action : Gage v. Douglas, 14 P. E. 126. A creditor 
 served notice on an assignee to compel him to take 
 proceedings to set aside a bill of sale as fraudulent, 
 and also served him with notice of motion for an 
 order giving the creditors leave to bring an action. 
 After this the assignee compromised the matter 
 believing he had the approval of a majority of the 
 inspectors and creditors. The compromise was in 
 fact advantageous and was upheld as valid and 
 binding: Keyes v. Kirkpatrick, 19 0. E. 572. 
 The making of an assignment for the benefit of 
 creditors does not deprive a judgment creditor of 
 ' the assignor of his right to examine him, although 
 it may in some cases be a reason why such exam- 
 ination should not be held : McEachern v. Gordon, 
 18 P. E. 459. For discussion of right of a dis- 
 sentient creditor, against the wishes of the assignor 
 and the majority of creditors, to take for his own 
 benefit objection to a claim to rank and on what 
 ground objection may be taken: see judgment of 
 Burton, C.J.O., Small v. Henderson, 27 A. E. 492, 
 at p. 499. 
 
 13. The plaintiff, a creditor of an insolvent alleged that 
 in regard to certain pledges made by the latter to 
 his bank there had been no contemporaneous ad- 
 vances and that the pledges were invalid under 
 the Bank Act, and claimed to be entitled to obtain 
 moneys received through disposal of the pledges 
 and to apply them in payment of creditor's claims 
 under this section. It was held that the words 
 " invalid against creditors " should be treated as 
 limited to transactions invalid against creditors 
 qua creditors and not extended to transactions de- 
 clared invalid for reasons other than those designed 
 to protect creditors: Conn v. Smith, 28 0. E. 629. 
 See also Merchants Bank v. Hancock, 6 0. E. 285. It 
 
CHAPTER 134. 557 
 
 was held that when an assignment of book debts was 
 set aside as a preference in an action by an assignee, 
 the preferred creditors must pay to the assignee 
 moneys collected by him* under the preferential se- 
 curity before the attack upon it : Meharg v. Lumbers* 
 23 A. R. 51. The section was then amended by in- 
 serting the words " realized or collected," and see 
 now, Munro v. Standard Bank, 5 0. W. N. 508; 
 Honsinger v. Kuntz, 14 0. W. R, 233. " Invalid as 
 against creditors." This section applies as well 
 to the case of a chattel mortgage, invalid by 
 reason of non-compliance with statutory formali- 
 ties, as to that of a chattel mortgage invalid 
 as a fraudulent preference: Universal Skirt Mfg. 
 Co. v. Gormley, 17 0. L. R. 114, 11 0. W. R. 
 1110. The effect of the section is that if a per- 
 son is in such a position as that if the pro- 
 perty had remained in the possession of the debtor 
 or mortgagee he would be entitled to seize or re- 
 cover the property then he may — the property 
 being converted into money or other property — 
 seize or recover in an action this money or other 
 property. The recovery must be " in an action : ' ' 
 Universal Skirt Co. v. Gormley, 17 0. L. R. 114, at 
 135, 11 O. W. R. 1110. " Delivery " " delivery 
 over ": see Robinson v. "Wilson, 12 0. W. R. 198, 
 ante sec. 5 (1). Creditpr's right of set-off: Robinson 
 v. Wilson, 12 0. W. R. 198. Recovery of moneys ac- 
 quired by mortgagees under impeached mortgage: 
 Munro v. Standard Bank, 5 0. W. N. 508. An execu- 
 tion creditor whose execution has ceased to be a lien, 
 has the status only of a simple contract creditor: 
 Scott v. Griffin, 7 0. W. R. 441. " Assignment or 
 transfer which is invalid:" see Stecher Litho Co. 
 v. Ontario Seed Co., 22 O. L. R. 577, 24 0. L. R. 
 305, 46 S. C. R. 540. A single creditor cannot take 
 advantage of the section for his sole benefit : Rennie 
 v. Quebec Bank, 1 0. L. R. 303, 3 0. L. R. 541. 
 The right to follow proceeds is for the benefit 
 of all creditors: Honsinger v. Kuntz, 14 0. W. 
 R. 233; see also Langley v. Van Allen, 32 
 0. R. 216, 3 0. L. R. 5, 32 S. C. R. 174; Burns 
 v. Wilson, 28 S. C. R. 207; Gordon v. Union 
 Bank, 26 A. R. 155, noted ante; and see H. & L. 
 notes pp. 1249, 1250. Representative action: Mc- 
 Donald v. Curran, 14 0. W. R. 838, 1 0. W. N. 
 
558 
 
 CHAPTER 134. 
 
 121, 389. Costs : See McDonald v. McCall, 12 P. E. 
 9; Burns v. Wilson, 28 S. C. R. 207; Webster v. 
 Crickmore, 25 A. E. 97. Right of creditors to follow 
 profits : Fraudulent conveyance : see note to 1 D. L. E. 
 841. 
 
 14. The provisions of this section which relate to assign- 
 ments purely voluntary and postpone thereto judg- 
 ments and executions not completely executed by 
 payment, are merely ancillary to bankruptcy law 
 and as such are within the competence of a pro- 
 vincial legislature so long as they do not conflict 
 with existing Dominion Bankruptcy legislation: 
 Atty. Gen. for Ontario v. Atty. Gen. for Canada, 
 1894, A. C. 189, 5 Cart. 266 (reversing 20 A. E. 
 489 sub nom. In re Assignments and Preferences 
 Act, and overruling Union Bank v. Neville, 21 0. 
 E. 152). Under a writ of fi. fa. the Sheriff seized 
 the interest of a judgment debtor in certain lands 
 and advertised the interest for sale. Just prior 
 to the sale the debtor made an assignment under 
 this Act. The assignee notified the Sheriff but no 
 tender of costs was made or undertaking given to 
 pay them and the Sheriff sold the lands to the 
 plaintiff. The assignee also assumed to sell the 
 lands and conveyed them to the defendant who 
 obtained possession. It .was held that the assign- 
 ment did not stand in the way of the Sheriff's sale 
 and his vendor was entitled to possession and that 
 the sale by the assignee was nugatory: Elliott v. 
 Hamilton, 4 0. L. E. 585. Where an execution was 
 levied by the Sheriff and the execution withdrawn 
 after part payment by arrangement with the 
 parties and with authority to the sheriff to re- 
 enter, a trustee in bankruptcy was held entitled to 
 the amount paid on account to the execution 
 creditor: Ee Ford exp. Official Eeceiver, 1900, 1 
 Q. B. 264. 
 
 The costs for which the execution creditor has 
 a lien are the costs not of the execution only 
 but all the usual costs which could be recovered 
 from the debtor under an execution: Eyan v. 
 Clarkson, 16 A. E. 311, 17 S. O. E. 251. The 
 lien of the plaintiff for costs under an execution in 
 the Sheriff's hands at the time of assignment is 
 
CHAPTER 134. 559 
 
 not superseded by the assignment and the Sheriff 
 is entitled to proceed and sell for the amount of 
 such costs. If he does not do so and the plain- 
 tiff loses his lien, held per Armour, C.J., that he 
 is not entitled to rank on the debtor's estate as 
 a preferential creditor; per Street, J., that even 
 if so entitled it could only be on net funds available 
 after payment of proper charges incurred in the 
 management of the estate: Gillard v. Milligan, 
 28 0. R. 465. See as to right of Sheriff to hold 
 goods for his own poundage, etc., as well as the 
 costs : Smith v. Antipitzky, 10 C. L. T. 368. Division 
 Court costs, see R. S. 0. 1914, ch. 63, sec. 187. Taxes : 
 R. S. 0. 1914, ch. 195, sec. 109 (4). 
 
 After a sale of mortgaged property in an action, 
 the mortgagor made an assignment before certain 
 execution creditors had established their claim in 
 the Master's office to the balance of the pur- 
 chase money. The assignee was held entitled to 
 such balance free from any liability to pay the exe- 
 cutions out of it: Carter v. Stone, 20 0. R. 
 340. The precedence given to an assignment over 
 judgments " not completely executed by payment " 
 does not extend to a judgment for alimony 
 registered against lands prior to the registration 
 of an assignment. The plaintiff in such a judg- 
 ment is not obliged to rank with other creditors : 
 Abraham v. Abraham, 19 0. R. 256, 18 A. R. 436; 
 see Armour, Titles, p. 94, 174. The making of an 
 assignment for the benefit of creditors does not 
 deprive a judgment creditor of the assignor of his 
 right to examine him, although it may in some 
 cases furnish a reason why such examination 
 should not be made: McEachern v. Gordon, 18 P. 
 R. 459. In a foreclosure action, execution creditors 
 were added parties in the Master's office and a day 
 appointed for payment. The respondent became 
 assignee of the judgments and was added a party, 
 a subsequent account taken, and a new day fixed. 
 Before this late day the mortgagor made an 
 assignment for benefit of creditors to the appellant 
 who applied to be added a party and be given a 
 new day to redeem. Held that the assignee was 
 not entitled to redeem by payment of the amount 
 due on the mortgage only, and thus take priority 
 
560 
 
 CHAPTER 134. 
 
 of the respondent's claim on the judgments, but 
 icould redeem only on payment of the total sum: 
 Federal Life v. Stinson, 8 0. W. B. 929, 13 0. L. 
 E. 127, 39 S. C. E. 229. Surplus afer sale in mort- 
 gage action: Carter v. Stone, 20 0. E. 340, supra. 
 Executions completely executed by payment, i.e., 
 payment to the Sheriff: Clarkson v. Severs, 17 0. 
 E. 592. Effect of sec. 6 of the Creditor's Eelief Act, 
 E. S. 0. 1914, ch. 81, on this section: see Sykes v. 
 Soper, 29 0. L. E. 193, where it was held that, where 
 an interpleader issue had been directed between exe- 
 cution creditors and a chattel mortgagee, the issue 
 being directed was not sufficient to overcome the 
 effect of this section, but there must at least be judg- 
 ment in favour of the execution creditors antedating 
 the assignment. In Soper v. Pulos, 4 0. W. N. 1258, 
 an assignment was held not to include goods where 
 such an interpleader issue had been merely directed. 
 This section does not take away the preferential lien 
 given by E. S. 0. 1914, ch. 81, sec. 6, (Creditor's 
 Eelief Act) : Ee Henderson Boiler Bearings, 22 
 0. L. B. 306, 24 0. L. B. 356, S. C. sub nom, Martin 
 v. Fowler, 46 S. C. B. 119. An assignment for the 
 benefit of creditors by a primary debtor after a 
 garnishing summons has been duly served on him 
 and the garnishee and judgment obtained against 
 the debtor, did not intercept or take precedence of 
 the attachment of the debt: Wood v. Joselin, 18 A. 
 E. 59 ; see also Be Thompson, 17 P. B. 109, but the 
 statute was amended and made to apply to attach- 
 ments. See E. S. 0. 1914, ch. 81, sec. 38; ch. 63, sec. 
 160. A judgment was recovered in a Division Court 
 against a primary debtor and garnishee, but before 
 payment of the amount recovered the debtor made 
 an assignment. Application was made to the Divi- 
 sion Court Judge (under B. S. 0. 1914, ch. 63, sec. 
 160), to discharge the debt from the attachment, but 
 the Judge refused the order. Held that the matter 
 was one within the jurisdiction of the Division Court 
 Judge to decide whether rightly or wrongly : Be Dyer 
 and Evans, 30 0. B. 637; see also Bicknell and 
 Seager, pp. 358 and 418. Provision as to mechanics' 
 liens, see B. S. 0. 1914, ch. 140, sec. 14. See Boberts 
 v. Bank of Toronto, 25 0. E. 194, 21 A. E. 629. 
 Where lien not filed : Ee Clinton, 1 0. W. N. 445. By 
 
CHAPTER 134. 561 
 
 refusing to make assignment, a debtor may pre- 
 judice creditors not entitled to share under the 
 Creditors Belief Act: see E. S. 0. 1914 ch. 81, sec. 
 30 and notes. History and scope of this section: 
 Eights of assignee and execution creditors: Ee 
 Henderson Eoller Bearing,^ 18 0. W. E. 197, 515, 
 19 0. W. E. 822, 2 0. W. E. 162, 273, 1439, 22 0. L. 
 E 306, 24 0. L. E. 356, 46 S. C. E. 119. 
 
 15. The Crown is not entitled to rank on an insolvent 
 estate in priority for customs duties. If it elects 
 to come under the assignment it is bound by the 
 terms thereof and can only take rateably and pro- 
 portionately with other creditors: Clarkson v. 
 Atty. Gen., 15 0. E. 632, 16 A. E. 202. Crown as 
 creditor of bank in liquidation: see Exchange 
 Bank of Canada v. E. 11 App. Cas. 157. Preroga- 
 tive of the Crown to payment in priority: see 
 Maritime Bank of Canada v. New Brunswick 
 Beceiver General, 1892, A. C. 437. As to Crown 
 bonds: see E. S. 0. 1897, ch. 113; Armour on 
 Titles, pp. 188, 189; Holmested and Langton, p. 
 955, 51 Vic. ch. 36 (d). 
 
 16. "Where an assignment has been acted on by the 
 
 creditors, it is not open to the objection even if 
 made by an execution creditor, that no creditor 
 executed it: Ball v. Tennant, 25 A. E. 50, 21 A. 
 E. 682. 
 
 17. — (3) The fee for filing is 50c. After filing the as- 
 signee can renew a chattel mortgage: Fleming v. 
 Eyan, 21 A. E. 39 : see E. S. 0. 1914, ch. 135, sec. 
 21 (9). 
 
 18. An instrument in writing whereby the debtor trans- 
 fers all his assets to an assignee for the purpose 
 of paying his creditors a fixed sum in the dollar, 
 and of securing the debtor the residue in an 
 arrangement by way of composition and not an 
 assignment under this Act although purporting to 
 be made under it. An v action against the assignee 
 for not advertising and registering will not lie: 
 Gundry v. Johnson, 28 0. E. 147; see also Blain 
 v. Peaker, 18 0. E. 109, noted ante. A Sheriff's 
 
 s.a. — 36 
 
562 CHAPTER 134. 
 
 revenues are his " fees, perquisites, and profits " 
 and as a Sheriff is bound by this section to act if 
 required, the allowances made to him as assignee 
 are " perquisites and profits " and therefore 
 "revenues" of his office: Smart v. Dana, 5 0. 
 L. R. 451. In selling by auction under an assign- 
 ment, the Sheriff is not in the same position as if 
 selling under an execution: Mclntyre v. Malibert, 
 26 0. E. 427. 
 
 21. An agreement for a payment to an inspector 
 to influence his consent to an arrangement is 
 a bribe and in itself sufficient reason to ad- 
 judge the transaction which it was given to 
 induce fraudulent, corrupt, and void: Brigham v. 
 Banque Jacques Cartier, 30 S. C. R. 429. The 
 inspectors have no power unless specially autho- 
 rized by the creditors to bring the latter to any- 
 thing they do in disposing of the estate. The dis- 
 posal of it is in the hands of the creditor's and in 
 default of directions by them in the hands of the 
 Judge of the County Court: Morrison V. Watts, 
 19 A. R. 622. An inspector of an insolvent estate 
 is a person having duties of a fiduciary nature and 
 he cannot be allowed to become purchaser on his 
 own account of any part of the estate of the in- 
 solvent: Grastonguay v. Savoie, 29 S. C. R. 613; 
 Thompson v. Clafkson, 21 0. R. 421 ; see also Segs- 
 worth v. Anderson, 23 0. R. 573, 21 A. R. 242, 
 24 S. C. R. 699, noted ante. A sale in which an in- 
 spector is interested to some extent may be upheld 
 if the price is fair, and all the facts known : Schantz 
 v. Clarkson, 4 0. W. N. 1303. 
 
 23. The assignee cannot purchase even with the inspec- 
 tor's consent: Morrison v. "Watts, 19 A. R. 622. 
 "Where such a sale is made : see liability at action of 
 creditor : Atkinson v. Oasserley, 22 0. L. R. 527. 
 
 25. — (4) The creditor having valued his security and 
 the assignee having taken it over, the bonus 
 of 10 per cent, is not credited on the creditor's un- 
 secured balance : Deacon v. Driffil, 4 A. R, 335. 
 
 25. — (5) Right to re-value where there is increase in 
 value of security: In re Fanshawe, 1905, 1 K. B. 
 170. 
 
CHAPTER 134. 563 
 
 25.— -(6) A creditor who holds as security for his debt 
 a portion of the debtor's goods and promissory 
 notes endorsed over to him for the purpose of effect- 
 ing a pledge of the securities* is not entitled to be 
 collocated on the estate of the debtof in a voluntary 
 assignment for thei full -amount of his claim but 
 is dbMrged to deduct any sum of money he may have 
 received from other parties liable upon such notes 
 or which he may have realized upon the goods: 
 Benning v. ThibaiideaU, 20 8. C. E. 110. A. gave 
 
 B. a guarantee in respect of goods to be sold to 
 
 C. limited in amount to $2,500. C. became indebted 
 to B. in $5,500 and then assigned. B. filed a claim 
 with O.'s assignee but did not state whether he 
 held any security or not. Afterwards A. paid B. 
 the $2,500 and filed a elaim with the assignee. The 
 dividends were insufficient to pay the balance of 
 B's claim. It was held that the guarantee was not 
 a security Which B. was bound to value and the 
 omission of it from B.'s claim did not render it 
 invalid. The guarantee being of a limited amount, 
 that is, of an ultimate balance, A. was not entitled 
 to rank on C.'s estate in respect of the $2,500, nor 
 recover any part of the dividend which B. had 
 received: Martin v. McMullen, 19 O. R. 230, 20 
 O. R. 257, 18 A. R. 559. See also as to guarantees : 
 Re Stratford Fuel Co,, 28 O, L, R. 481, and as to 
 ■continuing guarantee: Struthers V. Henry, 32 O. R. 
 365. Where guarantor and purchaser have both 
 assigned: position of vendors seeking to rank on 
 guarantor's estate: "Wyld v. Clarkson, 12 O, R. 589. 
 The provision in the first part of this sub-sec- 
 tion means that if as between the debtor and 
 a third party the latter is primarily liable and 
 the debtor only secondarily liable, the creditor 
 must put a specific value on his security. The 
 substance, not the form, of the transaction is to be 
 looked at to ascertain who is primarily liable: 
 Glanville v 4 Strachan, 29 O. R. 373. The liability of 
 the endorser of a promissory note made by the 
 debtor held by the creditor for part of his debt is 
 not a " valuable security " within the meaning of 
 sec. 6 (4), What is referred to is some property 
 of the debtor which has been given Up to him or of 
 which he has had the benefit; some security upon 
 Whidh the debtor if he is still the holder of it would 
 
564 CHAPTER 134. 
 
 be bound to place a value under this section: 
 Beattie v. Wenger, 24 A. R. 72. Under their 
 father's will two sons were to receive shares on the 
 death of their mother who still survived. They 
 also owed the testator a debt which was payable in 
 five yearly instalments. Two years after the testa- 
 tor's death the sons made an assignment. The 
 effect of the assignment was to accelerate payment 
 of the debt due the estate. The executors (being 
 also trustees of the land of which the sons were 
 to receive shares) held security for their claim with- 
 in the meaning of the Act, having ;(under the 
 Devolution of Estates Act) the right to impound 
 the sons' shares under the will as against their 
 debt to the estate. This security the executors and 
 trustees should value pursuant to this Act: Tillie 
 v. Springer, 21 0. R. 585. Right to withdraw claim 
 and rely on security only: Re Beaty, 6 A. R. 40. 
 Where creditor realizes on his security, the estate 
 not having taken it over, he is entitled to any excess : 
 Bell v. Ross, 11 A. R. 458. Where estate accepts 
 the security the creditor cannot thereafter re-value 
 it at a lower figure : Re Street, 15 C. L. T. 86. Pro- 
 ceedings by way of appeal from order of County 
 Judge as to valuing of securities under this section: 
 powers of High Court and Appellate Court: when 
 appeal may be permitted : provisions of R. S. 0. 1914, 
 ch. 79, sec. 4: Re Aaron Erb (1), 16 0. L. R. 
 594 Re Aaron Erb (2), 16 0. L. R. 597. 
 
 26. A person claiming damages against the assignor for 
 breach of contract is not a creditor within the mean- 
 ing of the Act, and cannot after the assignment 
 bring an action to ascertain the damages and rank 
 on the estate in the hands of the assignee: Grant 
 v. West, 23 A. R. 533. A covenant to pay $100 
 per quarter during the term of the covenantee's 
 natural life is a contingent claim and not a debt 
 for which the covenantee could claim the present 
 value of such payments from the covenantor's in- 
 solvent estate: Carswell v. Langley, 3 0. L. R. 
 261. A claim for damages against an overholding 
 tenant for double the yearly value of the land 
 under R. S. 0. 1897, ch. 342 sec. 20, is an unliqui- 
 dated claim and not provable against an estate 
 in the hands of an assignee : Magann v. Ferguson, 
 
CHAPTER 134. 555 
 
 29 0. E. 235. Where ah estate is being administered 
 under this Act, claims depending on a contingency 
 cannot rank, but only debts strictly so called : 
 Mail Printing v. Clarkson, 28 0. E. 326, 25 A. 
 E. 1. Claim under marriage contract: O'Eeilly v. 
 O'Eeilly, 21 0. L. E. 201, 44 S. C. E. 197. Wife's 
 claim to rank, see Attwood v. Pett, 9 0. W. E. 173, 
 748; Warner v. Murray, 16 S. C. E. 720.; Ellis v. 
 Ellis 5 0. W. N. 561. See also as to claims which 
 can and cannot rank : Beattie v. Wenger^ 24 A. E. 72 ; 
 Tillie v. Springer, 21 0. E. 585; Clapperton v. 
 Mutchmorj 30 O. E. 595; Cameron v. Cusack, 17 
 A. E. 489; Ashley v. Brown, 17 A. E. 500 ; Gurof- 
 sky v. Harris, 23 A. E. 717, noted sec. 5 (5), ante. 
 As to rights of landlord in case of assignment: see 
 E. S-. 0. 1914, ch. 155, sec. 38, and note; also sec. 
 20 (9). 
 
 26. — (3) Where claim exists to the knowledge of the 
 assignee, his proper course is to call on the creditor 
 to prove it : Carling B. & M. Co. v. Black, 6 0. E. 441. 
 
 23.— (4) See notes to E. S. 0. 1914, ch. 121, sec. 56. 
 
 26. — (5) Debt payable in annual instalments: Tillie v. 
 Springer, 21 0. E. 585. Interest runs notwithstand- 
 ing 'assignment : Stewart v. Gage, 13 O. E. 458. As 
 to amendment of creditors ' claims in similar matters : 
 see H. & L. notes, pp. 179, 777. 
 
 27. A creditor is confined in an action to establish his 
 contested claim to the quantum and items set out 
 in the affidavit of claim filed with the assignee: 
 Grant v. West, 23 A. E. 533, In; an action brought 
 against an assignee for benefit of creditors to estab- 
 ' i lish the plaintiff's right to ( rank in the estate, the 
 assignee as the party for whose immediate benefit 
 the action is defended is to be regarded as a party 
 for, the purpose of examination : Garland v. Clark- 
 son, 9 0. L. E. 281; Carter v. Lee, 8 0. W. E. 499. 
 An action for a declaration of the right to rank 
 against an insolvent estate was not within the jur- 
 isdiction of a Division Court : Ee Bergman and Arm- 
 strong, 4 0. LvE. 717; but now see E. S. 0. 1914, ch. 
 63, sec. 62 (le) . Jurisdiction of County Court : see 
 E. S. 0. 1914, ch. 59, sec. , 22 (lj). The pro- 
 vision that if an action is not brought against the 
 
566 chapter 434. 
 
 assignee within a limited time the same shall be 
 barred, only applies to the right to rank on the 
 estate and does not affect the right to set off the 
 claim so barred in an action against the claimant 
 by the assignee of the estate or any one claiming 
 tinder him : Johnston v. Burns, 23 0. B. 179, 582. 
 Venue: Halliday v. Armstrong, 3 0. W. E. 285, 410. 
 
 28. Jurisdiction of High Court Judge as to appeals 
 from County Judge's order under this section: see 
 Ee Aaron Brb, 16 0. L. E..594, 597, 12 0. W. E. 
 108; E. S. 0. 1914, ch. 79, sec. 4. See Small v. Hen- 
 derson, 27 A. E, 492, noted ante. 
 
 30. If the assignee is in default, the Court will administer 
 
 the estate : Lucas v. Tegart, 2 0. W. E. 548. 
 
 31. After recovery of judgment by A. against B. for 
 
 debt and costs, B. recovered judgment against A. 
 for malicious prosecution. Before the verdict for 
 damages was actually given A. executed an assign- 
 ment but this assignment was not delivered until 
 judgment had been given in the damage action. 
 Held that at the time of the assignment the damage, 
 claim had become a debt and should be set off 
 under the principle of this section: Moody v. 
 Canadian Bank of Commerce, 14 P. E. 258; See 
 Con. Eule, 1165, H. & L, notes, p. 1383; 1913 Eule 
 666; see also Stephens v. Boisseau, 26 S. C. E. 
 437; Johnston v. Burns, 23 0. E. 179, 582, noted 
 ante. Before an assignment for benefit of creditors 
 a person indebted to the assignor and who was 
 aware of his insolvency, purchased from a creditor 
 of the insolvent a debt due to the former by the 
 latter which the purchaser claimed to set off against 
 his debt to the insolvent. It was held that he was 
 entitled to do so: Thibaudeau v. Garland, 27 0. 
 E. 391. Claim against chattel mortgagee for sur- 
 plus after sale under his chattel mortgage; mort- 
 gagee's right to set off unsecured debt: Eobinson 
 v. Wilson, 12 0. W. E. 198. 
 
 32. If distribution is not made within a year, the onus 
 is on the assignee to justify the delay : Ontario Bank 
 v. Lament, 6 0. E. 147. A Sheriff selling lands as 
 
CHAPTER 134. - Fjg7 
 
 assignee for creditors, cannot, as when selling under 
 an execution, sign a memorandum which will bind a 
 purchaser under the Statute of Frauds, for he is 
 not as in the latter case agent for both vendor 
 and purchaser : Mclntyre v. Fairbert, 26 0. B- 427. 
 Locus standi of shareholder in company to sue as- 
 signee to set aside sale: Schantz v. Clarkson, 4 0. 
 W. N. 1303, 24 0. W. B r 596. A dividend paid by 
 an assignee is not such a part payment as will take 
 a debt, otherwise barred, out of the, statute : Birkett 
 v. Bisonette, 15 0. L, E. 93. By receiving his divi- 
 dend a creditor does not thereby waive the right to 
 call the assignee to account: Morrison v. Watts, 19 
 A. R. 622. Interest on dividends : E. S. 0. 1914, ch. 
 56, sec. 35. 
 
 34. An order of a County Judge dismissing an applica- 
 
 tion by a claimant to vary the scheme of distribu- 
 tion by the assignee of a debtor was made by him 
 as persona designata and there was no appeal there- 
 from either under the Creditors' Eelief Act or un- 
 der the County Courts Act or otherwise: Ee Simp- 
 son and Clafferty, 18 P. E. 402; see E. S. 0- 1914, 
 ch. 81, sees. 33, 39. 
 
 35. An assignee for benefit of creditors cannot charge 
 
 creditors personally with the costs of an action 
 brought by him on behalf of the insolvent estate 
 unless upon a direct or implied promise of indem- 
 nity, but must look to the assets of the estate; and 
 so too with regard to his remuneration and disburse- 
 ments : Johnston v. Pulmage, 30 0. E. 233 ; see also 
 Tennant v. McEwan, 24 A. B. 132, noted ante. The 
 remuneration of the assignee is according to the 
 principles governing the remuneration of trustees 
 generally; see B. S. 0. 1914, ch. 121, sec. 67, notes. 
 The assignee may choose his own solicitor : Ee L<amb, 
 17 C P. 173; and any creditor may tax his bill: 
 Sandford v. Porter, 16 A- R. 565. 
 
 38. A County Judge had no jurisdiction to commit an 
 insolvent debtor for unsatisfactory answers on his 
 examination under this Act : in Ee Eochou, 31 0. E. 
 122, but now see sec, 2. Where a partnership has been 
 dissolved, a former employee or servant of the firm 
 jnay be examined under this section by the assignee 
 
568 
 
 CHAPTER 135. 
 
 of the separate estate of one of the partners as to the 
 affairs of such estate : Ee Gruinane, 18 P. E. 208. It 
 is sufficient to serve a copy of the appointment of 
 the special examiner on the assignor and it is not 
 necessary to show him the original appointment, 
 unless sight of it is demanded: Ee Ferguson, 12 0. 
 W. E. 1143, 17 0. L. E. 576 ; see Con. Eules 333, 900, 
 904, 906, 1913 Eules 203, 580, 583, 586. 
 
 40. Committal for defrauding creditors : see Ee McLar- 
 ty, 12 O. W. E. 1171. The section is not retrospec- 
 tive so as to cover acts done before its passing: (58 
 Vic.) : Ee Lucas Tanner and Co., 32 O. E. 1; see Ee 
 Eochon, 31 O. E. 122, noted ante. 
 
 CHAPTEE 135. 
 
 The Bills of Sale and Chattel MoeTgage Act. 
 
 Eefer to Barron and O'Brien on Chattel Mortgages; 
 Bicknell and Kappele, Practical Statutes, pp. 349- 
 359. 
 
 1. Necessity for legislation: see Dedrich v. Anderson, 
 15 S. C. E. 227, at p. 244. Method; publicity: 
 Heward v. Mitchell, 10 IT. C. E. 542; see 11 U. C. E. 
 625. 
 
 2. — (a) A sale of chattels consisting of household furni- 
 ture in their residence between a married woman 
 and her husband, living and continuing to live to- 
 gether, without a duly registered bill of sale, is void 
 as against creditors, for there cannot be said to be 
 the actual change of possession open and sufficient 
 ' to afford notice referred by the Act: Hogaboom v. 
 G-raydon, 26 O. E. 298. "Where a chattel mortgagee 
 under the power in an unregistered chattel mort- 
 gage entered and sold, and the purchaser went 
 into possession, the goods were held not exigible 
 by the sheriff as against such purchaser though 
 change of possession was not " open." The change 
 of possession mentioned does not refer to posses- 
 sion taken by a mortgagee after default : GHllard v. 
 Bollert, 24 O. E. 147. Sufficient change of possession : 
 
CHAPTER 135. 569 
 
 e.g., delivery to mortgagee's auctioneer : McMaster v. 
 Garland, 8 A. E. 1; goods in vacant building and 
 key handed over : McMartin v. Moore, 27 IJ. C.' C, 
 p. 397; delivery to vendor as purchaser's clerk, 
 where change open: Kinlock v. Scribner, 2 0. E. 
 265, 12 A. E. 267, 14 S. C. E. 77. Insufficient change 
 of possession: e.g., unsuccessful attempt to take 
 possession: McKellar v. McGibbon, 12 A. E. 221; 
 delivery by husband to wife, both living together: 
 Hogaboom v. Graydon, 26 0. E. 298; marking 
 sheep: Doyle v. Lasher, 16 U. C. C. P. 263; partial 
 change: Taylor v. Whittamore, 10 U. C. E. 440; 
 Olmstead v. Smith, 15 IT. C. E. 421. Must be open 
 and notorious : McKellar v. McGibbon, 12 A. E. 221. 
 Depends on the nature, etc., of the goods: McMas- 
 ter v. Garland, 8 A. B.j at p. 5, and sec. 31 IT. C. C. 
 P. 320 ; see also Dominion Bank v. Salmon, 4 0. W. 
 N. 460. As to what constitutes a sufficient change 
 of possession: see further, Dig. Ont. Case Law, col. 
 790-796. 
 
 2. — (b) A liquidator was not a creditor or purchaser for 
 value and could not take advantage of the provisions 
 of this Act prior to amendment of 1913: Ee Can- 
 adian Shipbuilding Co., 26 O. L. E. 564. Can an 
 action be taken to set aside a mortgage by a simple 
 contract creditor whose claim is not due? See Meri- 
 den Britannia v. Braden, 21 A. E. 352, note to sec. 7. 
 "Creditors," "void against creditors:" see 
 Heaton v. Flood, 29 0. E. 87; Clarkson v. McMaster, 
 22 A. E. 138, 25 S. C. E. 96. See post, sec. 7, notes. 
 
 2. — (c) When a transaction is in fact a security for an 
 existing debt, the parties cannot evade compliance 
 with this Act merely by adopting the form of an 
 absolute sale: Hope v. Parrott, 7 0. L. E! 496; see 
 also Hunter v. Corbett, .7 U. C. E. 75. Floating de- 
 benture under Company Act not a mortgage within 
 the. meaning of ihia Act : Johnston v. Wade, 11 0. 
 W. E. 598 ? , 12 0, W, E. 951, 17 0. L. E. 372 ; see sec. 
 24, notes. ' A sale of growing timber is not within 
 the Act: Steinhoff v. McEae, 13 0. E. 546; see also 
 Short v. Euttan, 12 IT. C. E. 79; Euttan v. Short, 12 
 IT. C. E. 485; Cummings v, Morgan, 12 IT. C. E. 565. 
 Goods in bond, or in customs warehouse, subject to 
 duty : see May v. Security Loan, 45 IT. C. E. 106 ; 
 
Q70 CHAPTER 135. 
 
 Harris v. Commercial Bank, 16 XJ- C. R. 437. The 
 Act is intended to apply to personal chattels, sus- 
 ceptible of specific ascertainment and of accurate 
 description and capable of being transferred and 
 possessed in specie: Gunn v. Burgess, 5 0. B. 585. 
 Mortgage of a part interest in chattels: Bank of 
 Hamilton v. Mervyn, 14 0. W. R. 132. Part interest 
 in a mare held by joint owners : Gunn v. Burgess, 
 5 0. B. 585. Book debts are not within the Act and 
 a transfer of them does not require registration: 
 Thibaudeau v. Paul, 26 0. E. 385; Kitehing v. 
 Hicks, 6 0. B. 739; Re Perth, etc., Co., 13 0. W. B. 
 1140; Nat. Trusts v. Trusts and Guarantee, 26 0. 
 L. R. 279. Chattel mortgages of crops ; see Canada 
 Permanent v. Todd, 22 4, B, 515; see also Hamil- 
 ton v. Harrison, 46 U, C. R. 127; Laing v. Ontario 
 L. & S- Co., 46 U. C. R. 114; Grass v. Austin, 7 A. 
 R. 511; Cameron v, Gibson, 17 O. R. 233. As to 
 fruits of the soil a distinction may be made between 
 fructus naturales on the one hand, e.g., growing 
 timber (Steinoff v. McRae, 13 0. R. 546), which 
 are really an interest in land and within the 4th sec- 
 tion of the Statute of Frauds, and on the other hand, 
 fructus industriales. These latter are a chattel in- 
 terest independent of the land, see e.g.,. Evans v. 
 Roberts, 5 B. # C. 836. See also Steinhoff v. McBae, 
 3 0. B. 546; McMillan y. MoSherry, 15 Gr. 133; 
 Cummings v. Morgan, 12 U. C. R. 565; Short v. Rut- 
 tan, 12 XJ. C. R. 79; Clements v. Matthew^ 11 Q. B. 
 D. 808. A mortgagor after default is, as far as grow- 
 ing crops are concerned, a tenant at sufferance and 
 cannot chattel mortgage crops so as to prejudice the 
 land mortgagee, who has entered into possession be- 
 fore the crop is harvested : Bioomfield v. Hellyer, 22 
 A. R. 232, A marriage settlement of personal property 
 is not within the Act : Connell y. Hickock, lb A. E. 
 518; Patton v. Foy, 9 C. P. 512. Npr is a power 
 of attorney to enforce mortgages: Patterson v. 
 Kingsley, 25 Gr. 425. Where on the evidence 
 a hire purchase agreement is shewn to be really a 
 loan on security it may be set aside by a trustee 
 for creditors for want of registration: Maas v, Pep- 
 per, 1903, 1 K. B- 226, 1905, A. C. 102. A deed by 
 which a debtor coyenants that if a debt is pot paid 
 by a certain dayr certain chattels shall be charged 
 wjth it and that he wijl, when required, assign them 
 
CHAPTER 135. 57J 
 
 to the creditor as security, requires registration. 
 An equitable assignment of chattels is within the 
 Act: Edwards v. Edwards, 2 Ch. Div. 291. 
 
 The following transactions are held to be within 
 the statute: 1. Mortgages of goods and chattels, in 
 cases where not accompanied by an actual and con- 
 tinued change of possession: see sec. 5. %, Cove- 
 nants intending to operate as mortgages: see sec. 
 2 (c), 3, Covenants providing for execution of a mort- 
 gage in future : see sec. 16. 4. Covenants providing 
 ' for a sale in future : see sec. 17. 5, Sales not ac- 
 companied by an actual and continued change of 
 possession: see sec. 8. 6. Mortgages of rolling 
 stock: see sec. 2 (d), and as to filing under the Com- 
 panies Act ; see sees. 25 and 26. 7. Future acquired 
 or future created goods : see sees. 5, 8, and as to 
 goods in process of manufacture: see sec. 11. 8. 
 Mortgages by a company to a bondholder or trustee 
 to secure bonds in specific chattels (sec. 24), 
 
 The following transactions are held to be not within 
 the statute: 1. Debentures not covering specific 
 ' goods and not secured by mortgages : Johnston v. 
 Wade, 17 0. L. E, 372. 2, Mortgages of ships : see 
 sec. 4. 3. Pledge of goods even with power of sale : 
 see e.g., Ex p. Hubbard, 17 Q, B. J). 690. 4. Condi- 
 tional sales which are governed by the Conditional 
 Sales Act: see E. S. 0. 1914, eh. 136. 5. Goods in 
 hands of agent for sale, even though the latter has 
 an option to purchase, but now see Conditional 
 Sales Act, sees. 3 (3) and (4). 6. Things actually 
 transferred if there is a concurrent actual and con- 
 tinued change of possession : see sees, 5 and 8. 7. 
 Things incapable of physical delivery, e.g. leases 
 oi land for years : Fraser v. Lazier, 9 it. C. E. 679 ; 
 book debts: Thibaudeau v. Paul, 26 0. E. 385. 
 
 Assignments for general benefit of creditors are not 
 within this Act: see E. S. O. 1914, ch. 134, sec. 17. 
 Before 48 Vic, ch. 26, they were within it t Whiting 
 v. Hovey, 13 A. E. 7, 14 S. C. E. 515; Eobersfcon v. 
 Thomas, 8 0. E. 20. An assignment of personal 
 property in -trust to sell and apply the proceeds in 
 payment of certain named creditors is a bill of sale 
 and not covered by E. S. 0. 1914, ch. 134, see. 17: 
 
572 
 
 CHAPTER 135. 
 
 Archibald v. Hubley, 18 S. S. E. 116; see also Kirk 
 v. Cb.ish.olm, 26 S. C. E. 111. 
 
 4. The Act does not apply to furniture, etc., on a regis- 
 
 tered steamboat: Pallon v. Foy, 9 C. P. 512; St. 
 John v. Bullivant, 45 U. C. E. 614. 
 
 5. Chattel mortgage defined : Conrad v. Atlantic Ins. Co., 
 
 1 Pet. (IT. S. E.) 386. Distinguished from sale: 
 Heward v. Mitchell, 11 IT. C. E. at p. 628. Distin- 
 tinguished from land mortgage: Franklin v. Neate, 
 13 M. & W. 481; Hope v. Parrott, 7 0. L. E. 496. 
 The statute deals with all chattel mortgages and 
 requires that when unaccompanied by immediate 
 delivery, etc., they must be registered as directed. 
 The penalty for not following the Act is in form de- 
 'claring the instrument void against creditors and 
 subsequent purchasers or mortgagees: Marthinson 
 v. Patterson, 19 A. E. 188. Goods in Ontario at the 
 time of the hypothecation of them are subject to 
 the Act, although the parties are at the time domi- 
 ciled abroad : Marthinson v. Patterson, 20 0. E. 720, 
 19 A. E.188; Eiver Stave Co. v. Sill, 12 0. E. 557. 
 The English Act differs from the Ontario Act. The 
 intention of the Imperial Legislature was to put a 
 stop to the fraudulent practices of moneylenders; 
 to protect the borrower rather than the borrower's 
 creditors. The Imperial Act has been rigorously 
 construed, especially on the question of whether the 
 consideration is truly stated: see Ex Parte Carter, 
 12 Ch. D. 908; Hamilton v. Chaine, 7 Q. B. D. 1, 319. 
 Under the Ontario Act a misstatement of the con- 
 sideration is not ipso facto, in the absence of bad 
 faith, a fatal defect. It is not, however, to be lightly 
 regarded and casts a very heavy onus on the person 
 "> supporting the security: Marthinson v. Patterson, 
 19 A. E. 188; Hamilton v. Harrison, 46 IT. C. E. 127; 
 Tidey v. Craib, 4 0. E. 696. A chattel mortgage 
 need not be under seal: Paterson v. Maughan^ 39 
 IT. C. E. 371; Halfpenny v. Pennock, 33 IL C. E. 229. 
 Where a chattel mortgage is taken to secure a pre- 
 sent advance the time for payment may be extended 
 beyond a year : Kerry v. James, 21 A. E. 338. Par- 
 ole evidence may be given of mortgagor's change 
 of address : Mellish v. Van Norman, 13 IT. C. E. 451. 
 Execution of chattel mortgages in blank ; authority 
 
CHAPTER 135. 573 
 
 to fill in blanks : Wade v. Bell Engine Co., 1 0. W. 
 N. 1052, 16 0. W. E. 636. 
 
 5. — (a) An Affidavit of execution sworn before the 
 Mayor of a foreign town is useless : De Forrest v. 
 Bunnill, 15 U. C. B. 370. A person who prepared 
 the mortgage may take the affidavit as commissioner : 
 Noell v. Pell, 7 L. J. 322. And so may the mort- 
 gagee 's solicitor: Canada Permanent v. Todd, 22 A. 
 B. 515. The commissioner's signature is indispens- 
 able, although it is clear that the oath was properly 
 administered: Nisbet v. Cock, 4 A. B. 200. Mis- 
 takes: De Forrest v. Bunnell, 15 U. C. B. 370; Mc- 
 Leod v. Fortune, 19 U. C. B. 100. Omission of date 
 of execution is fatal deject : Cole v. Bacine, 4 O. W. 
 N. 1327, 24 O. W. E. 622. 
 
 5. — (b) Affidavit of bona fides: the language of the de- 
 ponent must be equivalent to that of the Act : Osier, 
 J.A., Boldrich v. Eyan, 17 A. E. 253 at p. 260. A 
 mortgagee under a chattel mortgage to secure ex- 
 isting indebtedness, made the affidavit required un- 
 der sec. 6 (d) for a mortgage to secure future ad- 
 vances. Held that the affidavit was defective in not 
 stating "that the mortgagor was justly and truly 
 indebted to the mortgagee," and that the mortgage 
 could not .be looked to to aid the affidavit in this 
 requirement: Midland Loan v. Cowieson, 20 O. B. 
 583. An affidavit Of bona fides may be sworn be- 
 fore a person who is a commissioner in fact, though 
 he merely signs as " a commr., etc." and such an 
 affidavit may be sworn before a solicitor employed 
 in the office of the mortgagee's solicitors: Canada 
 Permanent v. Todd, 22 A. B. 515. And even where 
 the commissioner 's addition was altogether omitted 
 it was held no objection: Hamilton v. Harrison, 46 
 U. C. E. 127. Where the commissioner omitted to 
 sign, the instrument was held invalid although the 
 . oath was in fact administered : Nisbet v. Cock, 4 A. 
 
 E. 200. " From obtaining payment against " 
 
 not saying against whom; fatal: Be Andrews, 2 A. 
 B. 24. Affidavit that the mortgage was not made 
 " to prevent the ' creditor ' (instead of the ' credi- 
 tors')" of such mortgagor obtaining payment, etc., 
 held insufficient: Harding v. Knowlspn, 17 IT. C. B< 
 564. Affidavit that the instrument was not made to 
 
574 CHAPTER 135. 
 
 enable the " assignor " (instead of " assignee ") to 
 hold the goods against creditors, held bad: Olm- 
 stead v. Smith, 15 U. C. E. 421. " Estate and ef- 
 fects " instead of " goods " held sufficient: Mason 
 v. Thomas. 23 U. C. R. 305. The omission of the 
 Words " against the creditors of the mortgagor," is 
 fatal: Bolton v. Smith, 17 U. C. R. 400, 18 XL C. R. 
 458; Where the affidavit does not comply with the 
 form prescribed and there Would have been no dif- 
 ficulty in complying, though the legal effect might 
 have been the same, the mortgage is Void f of want 
 of such compliande: Reid v. Creightoft, 24 S. C. R. 
 
 69. " Sworn at M ," omitting the name of the 
 
 county in the jurat, although the county appeared 
 in the heading; held invalid: Morse V. Phinney, 22 
 S. C. R. 563. But where the name of the county- 
 appeared in the commissioner's addition it was suf- 
 ficient : De Forrest v. Bunnell, 15 U. C. R. 370. Oc- 
 cupation of mortgagee omitted; held that it could 
 be supplied from the mortgage referred to in the 
 affidavit: Smith v. McLean, 21 S. C. R. 355. 
 " Against the creditors of the mortgagor," 
 " against any creditors of the mortgagor "; vari- 
 ation held immaterial: Emerson V. Bannerman, 19 
 S. C. R. 1. The mortgage was for $5,066.74, and the 
 affidavit gave the sum as $5,000: Held a valid se- 
 curity for the lesser sum : Thomas Limited V. Stand- 
 ard Bank, 15 O. W. R, 188. The omission of the words 
 " before me " in the jurat makes the affidavit void: 
 Archibald v. Hubley, 18 S. C. R. 116. Where the 
 affidavit of bona fides was sworn before the mort- 
 gage was executed, the mortgage Was invalid : Build- 
 ing and Loan v. Betzner, 10 C. L. T. Oca N. 112. 
 A mere clerical error may be corrected: Boldrick 
 v. Ryan, 17 A. R. 253. Affidavit where mortgage given 
 for two distinct claims— indebtedness and as guar- 
 antee for rent : Honsinger v. Kuntz, 14 O. W. R. 233. 
 See further as to consideration and bona fides : Dig. 
 Ont. Case Law, col. 796-800. 
 
 6. — (1) Time of payment for a future advance must be 
 within a year. For a present advance, not neces- 
 sarily : Kerry v. James, 21 A. R. pp. 339, 340, over- 
 ruling O'Neill v. Small, 15 C. L. J. 114. 
 
 6. — (a) A mortgage to secure advances must be made 
 in the bona fide belief that such advances Would 
 
CHAPTER 135. 575 
 
 enable the debtors to continue business and pay 
 their debts in full : River Stave Company v. Sill, 13 
 0. E. 557. The " advances " need not be pecuniary: 
 Groulding v. Deeming, 15 (X E. 201. The Act covers 
 advances either in money or goods: Sutherland v. 
 Nixon, 21 U. C. E. 629. An agreement enabling pay- 
 ment to be deferred beyond a year is probably void : 
 McLean v. Pinkerton, 7 A. E. 490; see further Dig. 
 Out. Case Law, col. 819-823. 
 
 6.^-(fc)As against an assignee for benefit of creditors, 
 an agreement of which he has notice, by the assignor 
 to give an endorser a chattel mortgage to secure 
 him against liability will be enforced: Kerry v. 
 James, 21 A. E. 338. A mortgage to secure the 
 mortgagee as endorser of notes hot payable within 
 a year is invalid : May v. Security Loan, 45 U. C. E. 
 106. Future advances and to secure endorsements: 
 see Barber v. MacPherson, 13 A. E. 356; Suther- 
 land V. Nixon, 21 IT. C. E. 629; Moulding v. Deem- 
 ing, 15 O. E. 201 ; Eobinsoh v. Mann, 2 O. L. E. 63, 
 31 S. C. E. 484. 
 
 8. — (d) An affidavit of bona fides stated that the mort- 
 gagor Was justly and truly indebted to the mort- 
 gagee in a certain sum. The loan Was made in good 
 faith on the chattel security, but the money was not 
 paid over for five days after the affidavit was made. 
 The mortgage Was held valid: Martin v. Sampson, 
 27 O. E. 545, 24 A, E. 1. An affidavit of bona fides 
 in a mortgage to secure future advances contained 
 the Words " and truly states the extent of the lia- 
 bility ihtended to be created by such agreement and 
 covered by such mortgage. ' ' Also the words ' ' and 
 for the express purpose of securing me the said 
 mortgagee therein named against the payment of 
 the amount of such notes indorsing liability for the 
 said mortgagor " instead of the statutory Words. 
 Held that these Variations did not avoid the mort- 
 gage : Sogers v. Carroll 30 0. E. 328. The provi- 
 sion requiring the consideration of a mortgage to 
 be expressed is satisfied when the mortgage recites^ 
 that the indorsement of a note is the consideration 
 and then sets out the note. Only the facts need be 
 stated, not their legal effect: Robinson v. Mann, 2 
 0. L. E. 63, 31 S. C. E. 484; see also Embury v. 
 
576 
 
 CHAPTER 135. 
 
 West, 15 A. R. 357 ; Barber v. McPherson, 13 A. E. 
 356. 
 
 7. " Void as against . . subsequent . . mortgages in good 
 faith." Does this import the additional words," who 
 have themselves complied with the requirements 
 and formalities of the Act "f Marthinson v. Patter- 
 son, 19 A. R. 188. " In good faith " means pur- 
 chasers and mortgagees who are taking their deed 
 or security in order to carry out their purchase or 
 secure their debt in good faith and not as a cloak 
 to protect the property from creditors. The Act 
 differs from the Registry Act and avoids all ques- 
 tions of actual notice: Marthinson v. Patterson, 19 
 A. R. 188 at p. 192 ; Moff att v. Coulson, 19 TJ. C. R. 
 341. A mortgage so void is void as against all 
 creditors, those becoming so after the mortgagee has 
 taken possession as well as before, and not merely 
 execution creditors with executions in the sheriff's 
 hands at the time possession is taken, simple con- 
 tract creditors who have taken proceedings and an 
 assignee appointed before the mortgage was given. 
 The words " suing on behalf of themselves, etc.," 
 only indicate the nature of the proceedings neces- 
 sary. The benefit will enure to the general body of 
 creditors. Such a mortgage, is not made valid by 
 taking possession: Clarkson v. McMaster, 22 A. R. 
 138, 25 S. C. R. 96. Void as against creditors is 
 to be read as " voidable." A sale of the mortgaged 
 goods by the mortgagee before an election is made 
 by the simple contract creditors commencing pro- 
 ceedings to attack the mortgage cannot be impeached : 
 Meriden Britannia v. Braden, 21 A. R. 352. Sale 
 under invalid mortgage; mortgagor giving posses- 
 sion to mortgagee who then sells: Allan v. Place, 
 15 0. L. R. 476. "Void as against creditors"; 
 right of creditor suing on behalf of himself and all 
 other creditors to follow proceeds of goods taken 
 under a conveyance not void for fraud in fact, but 
 simply invalid for non-compliance with this Act : see 
 Universal Skirt Mfg. Co. v. Gormley, 17 0. L. R. 
 114, 10 0. W. R. 918, 11 0. W. R. 1110. A creditor 
 cannot take the benefit of the consideration of a 
 transfer of goods and at the same time attack the 
 transfer as fraudulent: Wood v. Reesor, 22 A. R. 
 57; Rielle v. Reid, 26 A, R. 54. Mortgagees of land 
 
CHAPTER 135. 577 
 
 are not merely by reason of their position as such, 
 creditors of the mortgagor : Crombie v. Young, 26 A. 
 E. 194. An auctioneer who, at the instance and on 
 the premises of the mortgagor, sells at auction the 
 goods in a chattel mortgage, valid and in full force 
 as to the parties to it, and delivers possession of the 
 goods to a purchaser, is liable to the mortgagee for 
 conversion, although the mortgage may be void as 
 regards creditors of the mortgagors or subsequent 
 purchasers for value : Johnston v. Henderson, 28 O. 
 R. 25. A purchaser from the chattel mortgagor in 
 consideration of the discharge of a pre-existing debt 
 is a purchaser for valuable consideration: Williams 
 v. Leonard, 26 S. C. R. 406. A second chattel mort- 
 gage taken in good faith and for valuable consider- 
 ation takes priority over a prior unfiled chattel 
 mortgage, even if the second mortgagee had actual 
 notice of the prior mortgage: Raff v, Krecker, 8 
 Man. L. R. 230. If a mortgage is taken for a fair 
 consideration and not for a collusive purpose, the 
 grantee is a mortgagee in ' ' good faith ' ' within 
 the meaning of the statute, and notice of a prior un- 
 filed mortgage is not material: Raff v. Krecker, 8 
 Man. L. R. 230. Taking possession of mortgaged 
 chattels will not make good a defective chattel mort- 
 gage against a subsequent validly registered bona 
 fide chattel mortgage existing at the time such pos- 
 session is taken and it is immaterial whether the 
 second mortgagee had or had not notice of the prior 
 mortgage: Marthinson v. Patterson, 19 A. R. 188; 
 Edwards v. Edwards, 2 Ch. D. 291. An assignee 
 for general benefit of creditors can take advantage 
 of irregularities and defects in a chattel mortgage : 
 Kerry v. James, 21 A. R. 338. Right of assignee to 
 attack a chattel mortgage: Sykes v. Soper, 4 0. W. 
 N. 1554, 29 0. L. R. 193; Pulos v. Soper, 4 0. W. N. 
 1559. As to liquidator: see Re Can. Shipbuilding 
 Co., 3 0. W. N. 1476, 22 0. W. R. 585, 26 0. L. R. 
 564, but now see sec. 2 (b). " Purchaser for value " 
 defined: Williams v. Leonard, 26 S. C. R. 406, at p. 
 410,; see also Re Pope, 1908, 2KB. 169, at p. 172: 
 11 Creditors ": see notes to sec. 2 (6) ante. Parties 
 , to. action to set chattel mortgage aside as, fraudu- 
 lent: Kuntz v. Grant, 3 0. W. N. 237. 
 
 S.A.— 37 
 
578 
 
 CHAPTER 135. 
 
 8. Bill of sale defined: Simpson v. Wood, 21 L. J., Eq. 
 
 153. " Good" consideration— probably the equiva- 
 lent of "valuable:" see Doe d. Phillpott v. Blanch- 
 field, 1 U. C. R. 350; Twyne's Case, 1 Sm. L. C. 1. 
 A purchaser of goods who neglects to comply with 
 the provisions of this section cannot invoke its aid 
 against a subsequent purchaser in good faith, and 
 the latter, even though he also has not complied 
 with the Act, may obtain priority: Winn v. Snider, 
 26 A. R. 384. When a transaction is in fact a secur- 
 ity for an existing debt, the parties cannot evade 
 compliance with sec. 5 merely by adopting the form 
 of an absolute sale. If the transaction is a sale 
 with a right of repurchase on certain terms, the 
 vendor can only be required to observe the require- 
 ments of this section : Hope v. Parrott, 7 0. L. R. 
 496. On a bona fide sale of goods, it is not neces- 
 sary that the bill of sale shall be completed by execu- 
 tion of the instrument in any particular time after 
 the actual sale: McDonald v. Gaunt, 30 0. R. 398. 
 A bona fide purchaser must show either a registered 
 title or that he has taken possession so as to ren- 
 der registration unnecessary. Otherwise the title of 
 an execution creditor will prevail: Hopkins v. 
 Gudgeon, 1906, 1 K. B. 690. A transfer of book 
 debts is not within the act : Kitching v. Hicks, 6 0. 
 R. 739; Tailbv v. Official Receiver, 1888, 13 App. 
 Cas. 523; Thibaudeau v. Paul, 26 0. R. 385. Affidavit 
 that the " bill of sale was executed in good faith " 
 (see wording of sec. 5 (b) ) instead of that the 
 " sale is bona fide," held insufficient: Boynton v. 
 Boyd, 12 C. P. 334. The omission of the words 
 " bona fide " is fatal: Mason v. Thomas, 23 TJ. C. R. 
 305. See also Hogaboom v. Graydon, 26 0. R. 298; 
 Gillard v. Ballert, 24 0. R. 147, notes to sec. 2 (a). 
 
 9. The nominal date in a bill of sale is immaterial. The 
 
 instrument takes effect from and after the date and 
 time of execution : McDonald v. Gaunt, 30 0. R. 398. 
 
 10. An execution debtor can do as he pleases with his 
 
 statutory exemptions and his execution creditor 
 cannot take advantage of the fact that they are in- 
 sufficiently described in a bill of sale given by the 
 debtor: Field v. Hart, 22 A. R. 449. " All which 
 said goods are now the property of the mortgagor 
 
CHAPTER 135. 579 
 
 and are situate (describing the premises) and all 
 machines in course of construction or whicii shall 
 hereafter be in course of construction or completed 
 in or upon the said premises or. other premises 
 in London." Held not to extend to goods wholly 
 manufactured on premises other than those de- 
 scribed: Williams v. Leonard, 26 S. C, E. 408. "All 
 other ready-made clothing, tweeds, trimmings, fur- 
 niture and fixtures which shall at any time during 
 the currency of this mortgage be brought on the 
 said premises or on any other premises when the 
 mortgagor may be carrying on business " is suffi- 
 cient and binds goods of the kinds mentioned in 
 premises to which the mortgagor moves after mak- 
 ing the mortgage: Horsfall v. Boisseau, 21 A. R. 
 663; see also as to after-acquired goods and cnange 
 of place of business : Milligan v. Sutherland, 27 0. 
 
 B. 235; Mason v. Macdonald,, 25 C. P. 435; Ee Thir- 
 kell, Perrin v. Wood, 21 Gr. 492 ; Kitching v. Hicks, 
 6 0. E. 739; Coyne v. Lee, 14 A. E. 503. Locality: 
 Where goods were described as in the mortgagor's 
 dwelling house at the north-west corner of certain 
 streets when in fact the house was at the north-east 
 corner, the erroneous part of the description was 
 rejected and the mortgage upheld: Accountant v. 
 Marcon, 30 0. E. 135. Goods " in bond " is a suf- 
 ficient description as to locality: May v. Security 
 Loan, 45 U. C. E. 106. Locality: see also Mathers 
 v. Lynch, 28 U. C. E. 354; Nattrass v. Phair, 37 U. 
 
 C. E. 153; Bertram v. Pendry, 27 C. P. 371; Noell 
 v. Pell, 7 L. J. 322; Mills v. King, 14 C. P. 223; 
 Donelly v. Hall, 7 0. E. 581; Fraser v. Bank of 
 Toronto, 19 IT. C. E. 381. A description of property 
 in a bill of sale or chattel mortgage as the " stock in 
 trade ' ' of the grantor in a specified locality such as 
 his store or warehouse in such a street is sufficient: 
 Hovey v. Whiting, 14 S. C. E. 515; McCaul v. Wolff, 
 13 S. C. E. 130. Stock in trade: see also Segsworth 
 v. Meriden, 3 0! E. 4.13; Howorth v. Fletcher, 20 IT. 
 C. E., 278; Hutchison v. Eoberts, 7 C. P. 470; Howell 
 v. McFarlane, 16 U. C. E. 469; Nolan v. Donnelly, 
 4 0. E. 440; Wilson v. Kerr, 17 IT. C. E. 168, 18 IT. 
 C. E. 470; McPherson v. Eeynolds, 6 C. P. 491; Boss 
 v. Cooper, 14 U. C. E. 525 ; Thompson v. Quirk, 18 
 S. C. R. 695; Hovey v. Whiting, 9 0. E. 314, 13 A. 
 E. 7, 14 S. C. E. 515. What amounts to a sufficient 
 
580 CHAPTER 135. 
 
 description of animals: see Corneill v. Abell, 31 C. 
 P. 107; Boldrick v. Eyan, 17 A. E. 253. "Two 
 horses, 4 cows and 1 calf " not a sufficiently specific 
 description: Davies v. Jenkins, 1900, 1 Q. B. 133. 
 What is sufficient description of shares in com- 
 pany: see Hewitt v. Corbett, 15 U. C. B. 39. Life 
 insurance policy : Lee v. Gorrie, 1 C. L. J. 76. Crops : 
 Grass v. Austin, 7 A. B. 511. " Crops which may 
 be sown during the currency of this mortgage " 
 covers crops sown after the mortgage falls due but 
 remains unpaid : Canada Permanent v. Todd, 22 A. 
 E. 515. As to description of chattels: " One piano, 
 Dominion make, No. 2773," is a sufficient descrip- 
 tion: Field v. Hart, 22 A. B. 449. " 14,415 feet of 
 prepared moulding " sufficient: Noell v. Pell, 7 L. 
 J. 322. " One kitchen table, 4 chairs, all contained 
 in the dwelling house of the mortgagor situate at 
 or on lot, etc." sufficient: Nattrass v. Phair, 37 U. 
 C. E. 153 : but see Howarth v. Fletcher, 20 TJ. C. E. 
 278. " One single buggy " insufficient: Holt v. Car- 
 michael, 2 A. E. 639. " Set of blacksmithing tools 
 complete ' ' : insufficient : Mason v. Macdonald, 25 (J. 
 P. 435. As to the inferences that may be drawn as 
 to ownership, possession and location of the goods: 
 see Accountant v. Marcon, 30 O. E. 135 ; Hovey v. 
 Whiting, 14 S. C. E. at p. 559. And see generally 
 as to description of goods : Dig. Ont. Case Law, col. 
 808-819. 
 
 11. Future acquired or future created goods; former 
 law: see Burton v. Bellhouse, 20 TJ. OB. 60; Be 
 Thirkell, 21 Gr. 492; Coyne v. Lee, 14 A. E. 503. The 
 intention to include future acquired goods must be 
 clear : Mason v. Macdonald, 25 TJ. C. C. P. 435. For 
 form: see Horsfall v. Boisseau, 21 A. B. 663. 
 Agreements creating equitable interests in non-ex- 
 isting and future acquired property: see Banks v. 
 Eobinson, 15 O. B. 618. Goods brought into stock 
 to replace others sold: Semmens v. Harvey, 1 O. W. 
 N. 1099. Where possession passes without owner- 
 ship : see E. S. O. 1914, ch. 136, and notes^ 
 
 12. — (1) One of several mortgagees or bargainees can 
 make the affidavit: Balkwell v. Beddoine, 16 TJ. C. 
 E. 203; Heward v. Mitchell, 11 TJ. C. B. 625; 
 Tidey v. Craib, 4 O. E. 696. Even where the 
 
CHAPTER 135. 581 
 
 consideration is made up of two debts dne to 
 the bargainees separately: McLeod v. Fortune, 19 
 U. C. E. 100. One partner can make the affidavit: 
 Eoss v. Dunn, 16 A. E. 552. ' ' Aware of all the cir- 
 cumstances and properly authorized ": see Univer- 
 sal Skirt Mfg. Co. v. Gormley, 17 0. L. E. 114. 
 
 12. — (3) In regard to companies it was formerly held 
 that the president was the proper person to make 
 the affidavit of bona fides and could do so as mort- 
 gagee and not as agent (Bank of Toronto v. Mc- 
 Dougall, 15 C. P. 475), but a manager (Freehold 
 Loan v. Bank of Commerce, 44 U. C. E. 284) or 
 even a secretary-treasurer who was a shareholder 
 and had an important share in management could 
 only make such affidavit as agent: Greene v. Cas- 
 tleman, 25 O. E. 113; but now see terms of section. 
 The affidavit of bona fides under this section (as 
 enacted 1903) and the affidavit upon the renewal 
 of a chattel mortgage where the chattel mortgagees 
 are an incorporated company if made by the presi- 
 dent, vice-president, manager, assistant manager, 
 secretary or treasurer, need not state that the de- 
 ponent is authorized by a resolution nor that he is 
 aware of the circumstances and has personal knowl- 
 edge of the facts deposed to. The words " officer 
 or agent " mean an officer or agent who is not one 
 of the principal officers of the company: Universal 
 Skirt; Mfg. Go. v. Gormley, 17 0. L. E. 114, 10 O. W. 
 E. 918, 11 0. W. E. 1110. And see also memo, of legis- 
 lation appended to judgment of Eiddell, J., in this 
 case, 17 0. L. E. at p. 139. 
 
 16. " Goods and chattels " meaning discussed: Bullock 
 v. Dodds, 2 B. & Aid. 276; Ee McGarry, 18 0. L. E. 
 525. Where an agreement to give a chattel mort- 
 gage is duly made and registered the giving of such 
 mortgage whereby the legal title becomes vested in 
 such mortgagee does not revest in the mortgagor 
 the equitable title which the mortgagee had by vir- 
 tue of the agreement. It continues to exist as be- 
 fore and the mortgagee can rely on it should occa- 
 sion arise : Fisher ; v.' Bradshaw, 2 0. L. E. 128, 4 0. 
 L. E. 162. An unregistered agreement by a debtor 
 to give his creditor upon default in payment upon 
 demand a chattel mortgage on his " present and 
 
582 CHAPTER 135. 
 
 future chattels ' ' confers no title on the creditor as 
 against the debtor's assignee for benefit of creditors 
 who takes possession before a chattel mortgage is 
 given. Nor can the creditor improve his position 
 by subsequent registration : Hope v. May, 24 A. E. 
 16. See also Kerry v. James, 21 A. B. 338; Ex. p. 
 Fisher, L. E. 7 Ch., at p. 642. 
 
 18. If the mortgage is one which the statute does not 
 provide for, it is not avoided for any want of regis- 
 tration or of the recitals required by the Act, but 
 the mortgage stands as at common law: see Bur- 
 ton v. Bellhouse, 20 U. C. E. 60 ; and cases cited 
 Dig. Ont. Case Law, col. 824. The Act differs from 
 the Eegistry Act and avoids all questions of actual 
 notice: see Marthinson v. Patterson, 19 A. E. 188, 
 notes to see. 7, ante. An execution coming in 
 before the filing of an assignment is entitled to 
 
 • prevail, though the time for filing may not have 
 elapsed: Carscallen v. Moodie, 15 U. C. E. 92. 
 The registration of a chattel mortgage does not 
 cause it to relate back to its date: Freehan v. 
 Bank of Toronto, 10 C. P. 32; Shaw v. Gault, 10 
 C. P. 236; Haight v. Mclnnes, 11 C. P. 518; but 
 see: Feehan v. Bank of Toronto, 19 U. C. 
 E. 474. Delay in registration: see Balkwell v. 
 Beddorne, 16 U. C. E. 203. A memorandum of the 
 legislation in regard to the filing of chattel mort- 
 gages is appended to the Judgment of Eiddell, J., 
 in Universal Skirt Mfg. Co. v. Gormley, 17 O. L. E. 
 114, at p. 139. 
 
 19. When goods removed from the County either on 
 
 alleged sale by the mortgagor or against his will 
 or stolen from him, such removal is not within the 
 statute requiring a copy to be filed within two 
 months of the removal: Clarke v. Bates, 21 C. P. 
 348. 
 
 21". — (1) In computing time, exclude the day of original 
 registration and include the day of filing renewal: 
 McCann v. Martin, 15 O. L. E. 193, 10 O. W. E. 
 264, 681; Thompson v. Quirk, 18 S. O. E. 696. 
 A renewal statement was not signed, but endorsed 
 was an affidavit signed and sworn by the mortgagee 
 referring to the statement, held sufficient: Christin 
 
CHAPTER 135. 583 
 
 v. Christin, 1 0. L. E. 634. The statement of pay- 
 ments did not set them out in detail but only the 
 total sum paid. It also stated " that no payments 
 have been made on account of the said mortgage," 
 but shewed that payments had been made by way 
 of interest and no other payments, held sufficient: 
 Christin v. Christin, 1 0. L. R. 634. Affidavit on 
 renewal by ' ' officer or agent ' ' of corporated com- 
 pany: see Universal Skirt Mfg. Co. v. Gormley, 
 17 0. L. R. 114, note to sec. 12 (3) ante. 
 
 21. — (4) Where the statement is made in good faith, 
 with reasonable care and is substantially correct, 
 it is a sufficient compliance with the spirit and 
 intent of the statute: Sloan v. Maughan, 3 A. R. 
 221, at p. 225. 
 
 21. — (5) During the currency of a mortgage, given to 
 secure endorsements and before the expiration of a 
 year, the mortgagee paid the notes and took a new 
 mortgage upon the same goods as for an actual 
 advance, not reciting the prior mortgage. Within 
 60 days the mortgagor assigned. It was held that 
 executions prior to the second mortgage but sub- 
 sequent to the first did not gain priority and that 
 the statutory presumption of intent to prefer was 
 rebutted by the circumstances : Rogers v. Carroll, 30 
 0. R. 328. 
 
 21. — (7) Successive renewal statements of a chattel 
 mortgage need not shew all the credits on account 
 of the mortgage. It is sufficient if each statement 
 contains the payments made since the last renewal: 
 Rogers v. Marshall, 7 0. L. R. 291. 
 
 21. — (8) A chattel mortgage does not cease to be valid 
 because a renewal statement made and verified by 
 the mortgagee before he assigns the mortgage is 
 not filed until after such assignment: Daniel v. 
 Daniel, 29 0. R. 493. An assignee for benefit of 
 creditors under an assignment registered pursuant 
 to R. S. 0. 1914, ch. 134, may renew a chattel mort- 
 gage made in favour of his assignor without the 
 registration of a particular assignment of that 
 mortgage. A renewal statement alleging title 
 through the general assignment is sufficient : Flem- 
 ing v. Ryan, 21 A. R. 39. 
 
584 CHAPTER 135. 
 
 23. See Clarkson v. McMaster, 22 A. E. 138, 25 S. C. 
 E. 96 ; Heaton v. Flood, 29 0. E. 87 ; Marthenson ■ 
 v. Patterson, 20 0. E. 720, 19 A. E. 188; Eeid v. 
 Creighton, 24 S. C. E. 69. Damages for negligent 
 sale of chattels by mortgage; McHugh v. Union 
 Bank, 1913, A. C. 299. Service out of the jurisdic- 
 tion in case of foreclosure of chattel mortgage: 
 Hughes v. Oxenham, 1913, 1 Ch. 181, 254. 
 
 24. Debentures not covering specific goods and not 
 
 secured by mortgage are not within the statute: 
 Johnston v. Wade, 11 0. W. E. 598, 12 0. W. E. 
 951, 17 0. L. E. 372. As to debentures : see Govern- 
 ment Stock v. Manilla Ey., 1897, A. C. 86; Evans 
 v. Eival Granite Quarries, 1910, 2 K. B. 979; De 
 Beers v. Joint, &c, Co., 1912, A. C, at p. 68. A 
 bond mortgage covering chattels requires to be 
 registered, though (Johnson v. Wade, 17 0. L. E. 
 372) a debenture does not: National Trust - v. 
 Trusts and Guarantee, 3 0. W. N. 1093, 21 0. W. 
 E. 933, 26 0. L. E. 279. A mortgage given to secure 
 bonds, debentures, etc., must be filed in the office 
 of the Provincial Secretary, E. S. 0. 1914, ch. 178, 
 sec. 82. As to proceedings by by-law and ratifi- 
 cation to validate mortgages of companies: see E. 
 S. 0. 1914, ch. 178, sees. 78, 79. 
 
CHAPTER 136. 5g5 
 
 CHAPTER 136. 
 
 The Conditional Sales Act. 
 
 Eefer to: Barron (Can.), on Conditional Sales, 
 Tremeear, Conditional Sales and Chattel Liens 
 (Can.), Enssell, Hire-Purchase Agreements, Bick- 
 nell and Kappele, Practical Statutes, p. 363. 
 
 In general, the effect of a conditional sale is that 
 property does not pass. Goods are at vendor's 
 risk and order till condition fulfilled. Possessor 
 cannot meanwhile confer a good title : e.g., Forrestal 
 v. McDonald, 9 S. C. R. 12, (crude petroleum 
 sent to refiner, bailor retaining property) ; Walker 
 v. Hyman, 1 A. R. 345, (safemakers) ; Mason 
 v. Bickle, 2 A. R. 291, (organ builders) ; Nordheimer 
 v. Robinson, 2 A. R. 305, (pianos) ; Hales v. Hazlett, 
 11 A. R. 749, (machinery) ; Sawyer v. Pringle, 20 0. 
 R. Ill, (agricultural machinery). 
 
 Compare and distinguish English legislation: 
 Factors Acts, 1889, 52-3 Vic. ch. 45; Sale of 
 Goods Act, 1893, 56-7 Vic, ch. 71, sees. 47, 62. 
 
 1. In regard to the. late Revised Statute, 1897, ch. 149, 
 
 it was said that the extremely faulty character of 
 the drafting of the Act rendered it well nigh 
 impossible for any one to say with any degree of 
 certainty what the language employed by the legis- 
 lature to express its will really meant: per Mere- 
 dith, C. J., Mason v. Lindsay, 4 0. L. R. 365, but 
 the Act has been considerably amended since then. 
 
 2. See note to R. S. 0. 1914, ch. 133, sec. 2 (b). 
 
 3. — (1) " This kind of contract is said by the Court of 
 Appeal to mean : pay the price and get the machine 
 (both possession and property) ; but till you pay, the 
 machine is ours (the vendor's), it is our property; 
 we can take possession, and we have the right to 
 sell because it is our property. The permission to 
 sell is therefore immaterial:" per Boyd, C., Arnold 
 v. Playter, 22 0. R. 608. If the vendors wish to 
 go further and charge the vendees with a deficiency 
 
586 CHAPTER 136. 
 
 arising on a re-sale, they must so stipulate in their 
 contract. If there is no term to this effect, a sale 
 by the vendors is evidence of an abandonment of 
 the contract by them and that the agreement has 
 been put an end to: Sawyer v. Pringle, 18 A. E. 
 218; Arnold v. Playter, 22 0. R. 608. See provi- 
 sions as to notice, sec. 8 (2), (3). The pur- 
 chaser of property sold on condition that the title 
 is to remain in the vendor until payment of the 
 price, acquires complete use, enjoyment and posses- 
 sion of the thing sold, but he cannot sell, mortgage, 
 or otherwise dispose of the property to a third 
 person so as to pass a title good against the vendor : 
 (Walker v. Hyman, 1 A. R. 345; Nordheimer v. 
 Robinson, 2 A. R. 305; Tufts v. Mottashed, 29 C. 
 P. 529), except in cases where the statute has not 
 been complied with, and even then only to a pur- 
 chaser or mortgagee without notice, in good faith 
 and for valuable consideration. He has sufficient 
 title to maintain an action for conversion, and has 
 an interest which he can convey unless there is a 
 term in the contract to the contrary: Black v. 
 Drouillard, 28 C. P. 107. The conditional vendee 
 has a possession which will ripen into title on per- 
 formance of conditions, and the vendor cannot 
 interfere with this possession until there has been 
 a failure to perform the conditions: Hesselbacher 
 v. Ballantyne, 28 0. R. 182. In an action between 
 vendor and purchaser for the price of an article 
 sold under conditional sale, the defendant may shew 
 that the article was not as warranted: Cull v. 
 Roberts, 28 0. R. 591. An innocent purchaser of 
 a hay press which had been sold under a conditional 
 sale contract duly filed, was held entitled to recovery 
 of the press and the sum he would have received 
 from his vendor, upon a warranty of title, the value 
 beyond expenses upon contracts actually made, the 
 press having been re-taken by the original vendors : 
 Sheard v. Horan, 30 0. R. 618. By suing for and 
 obtaining judgment for the purchase money of a 
 chattel sold under conditional sale agreement, the 
 vendors do not elect to treat the transaction as an 
 absolute sale and waive their security: Utterson 
 Lumber Co. v. Petrie, 17 0. L. R. 570, 13 0. W. R. 
 104. A liquidator is not a creditor nor a pur- 
 chaser for value: Re Canadian Shipbuilding Co., 
 
CHAPTER 136. 587 
 
 3 0. W. N. 1476, 22 0. W. E. 585, 26 0. L. E. 564. 
 See provisions as to assignees and liquidators: E. 
 S. 0. 1914, ch. 135, sec. 2 (b). Where a machine 
 was sold conditionally and it was stipulated that 
 the title should not pass until the moneys payable 
 under the instalments as well as all sums for goods 
 ordered by the condition vendors should be paid, 
 the conditional vendees having paid one instalment 
 and given an order for goods, assigned, and the liqui- 
 dator sold the machine subject to the vendor's lien 
 for unpaid instalments only. The vendor's rights 
 were held unaffected and they were entitled to re- 
 cover the full amount due under the terms of the 
 order out of the estate: Ee Canadian Camera Co., 
 2 0. L. E. 677. Eight of resumption of goods ' ' upon 
 default of one month in any payment or extended 
 payment:" see Bridgman v. Eobinson, 7 0. L. E. 
 591. Eisk of loss falls on person having property 
 in goods: Chew v. Traders Bank, 19 0. L. E. 74; 
 May v. Conn, 23 0. L. E. 102. Where goods had 
 passed into the possession of the vendee and while 
 in such possession had been destroyed or lost 
 ■through no fault of the vendor, notwithstanding 
 that the property in the goods had not, by the 
 terms of the contract passed to the vendee, tbe 
 vendee held liable to pay the price even though no 
 negligence on his part was shewn: Hesselbacher 
 v. Ballantyne, 28 O. E. 182; affirmed on other 
 grounds, 25 A. E. 36. In an action on one of a 
 series of notes given on a conditional sale of ma- 
 chinery, it was shewn that the machinery had been 
 destroyed by fire. Held that as the defendant had 
 had the possession and use of the machinery there 
 was no total failure of consideration and the plain- 
 tiffs were entitled to recover: Goldie v. Harper, 
 31 0. E. 284; but see Corby v. Williams, 7 S. C. E. 
 470. Sale with right of re-purchase : see Hope v. Par- 
 rott, 1 0. L. E. 496. Construction of contract of 
 conditional sale: see Carroll v. Beard, 27 0. E. 
 349; see also Dig. Ont. Case Law, cols. 6176, 6180, 
 6187 and 6192. Statutes: Landlord's right to dis- 
 train on vendor's interest: E. S. 0. 1914, ch. 155, 
 sec. 31. Distress for taxes : E. S. 0. 1914, ch. 
 195, sec. 109. Execution : see E. S. 0. 1914, ch. 80, 
 sec. 19. Mechanic's lien for repairs on property 
 under conditional sale : see Article 48 C. L. J. 252. 
 
588 CHAPTER 136. 
 
 Contract giving jurisdiction where plaintiff's head 
 office is: see The Noxon Co. v. Cox, 6 0. L. E. 
 637; and E. S. 0. 1914, ch. 63, sec. 74. 
 
 3. — (la) The vendor need not sign the writing evidenc- 
 ing the sale: Ee Kurtze and McLean, 12 0. W. 
 E. 564, 13 0. W. E. 308. An instrument in the form 
 of a promissory note given for part of the price 
 of an article with the added condition that " the 
 title and right to the possession of the property 
 for which this note is given shall remain in (the 
 vendors) until this note is paid " is not a promis- 
 sory note or a negotiable instrument: Dominion 
 Bank v. Wiggins, 21 A. E. 275. Jurisdiction of 
 Division Court in regard to instrument in the 
 form of a promissory note but with additional 
 stipulations providing that title of chattel should 
 not pass until payment, etc.: see Dominion Bank 
 v. Wiggins, 21 A. E. 275 ; Ee Thorn v. McQuitty, 
 8 0. L. E. 705, 4 0. W. E. 522; Ee Slater v. 
 Laberee, 9 0. L. E. 545, 5 0. W. E. 420, 539 : Bis- 
 nett v. Schrader, 12 0. W. E. 656. Unlike the 
 Chattel Mortgage Act, this Act does not stipulate 
 for the consideration appearing on the face of the 
 writing: Ee Kurtze and McLean, 12 0. W. E. 564. 
 Instrument evidencing sale: see Wettlaufer v. 
 Scott, 20 A. E. 652. 
 
 3. — (16) Omission to file lien: Ee Kurtze and Mc- 
 Lean, 12 0. W. E. 564, 13 0. W. E. 308. " Court:" 
 see The Noxon Co. v. Cox, 6 0. L. E. 637. 
 
 3. — (2) For former law: see Mason v. Lindsay, 4 0. 
 L. E. 365; Helby v. Matthews, 1895, A. C. 471. 
 
 3. — (3) For former law: see Langley v. Kahnert, 7 
 0. L. E. 356, 9 0. L. E. 164, 36 S. C. E. 397; Eby 
 v. McTavish, 32 0. E. 187. The word " creditors " 
 used in this section is not defined in this Act. The 
 provision is in part what was formerly sec. 41 of the 
 Chattel Mortgage Act, E. S. 0. 1897, ch. 148. In the 
 present revision of that Act " creditors " is defined: 
 E. S. 0. 1914, ch. 135, sec 2 (b). 
 
 3.— (5) Name plates: Dominion Carriage Co. v. Wil- 
 son, 2 0. W. N. 214, 17 0. W. E. 363. The lien of 
 
CHAPTER 136. 589 
 
 the unpaid vendor is not rendered invalid if the 
 purchaser obliterates, without his direction or con- 
 nivance, the vendor's name and address which were 
 properly marked on the article at the time of sale: 
 Wettlaufer v. Scott, 20 A. E. 652. " Name and 
 address:" statute will be construed strictly and the 
 address will not be inferred: Toronto Furnace v. 
 Ewing, 15 0. W. R. 381, 1 0. W. N. 467. Name 
 of manufacturers: Goldie & McCulloch v. Ux- 
 bridge, 13 0. W. R. 696. Abbreviations in name 
 not allowed: Ericsson v. Elk Lake, 3 0. W. N. 
 1309, 22 0. W. R. 161. It is not a compliance with 
 the section if a company whose corporate name is 
 " The M. & R. Piano Company Limited " paint on a 
 piano sold on condition their name as " M>& R., 
 Toronto " : Mason v. Lindsay, 4 0. L. R. 365. See as 
 to use of materials only: Wettlaufer v. Scott, 20 A. 
 R. 652. "Weight of evidence where question is whether 
 Act complied with in regard to bailor's name and 
 address: Greer v. Armstrong, 3 0. W. N. 956, 24 0. 
 W. R. 960. See provisions of sub-sec. (6). 
 
 6. Errors: see Mason v. Lindsay, 4 0. L. R. 365; 
 
 Toronto v. Ewing, 15 0. W. R. 381, and see sees. 
 3, (5) and (6) ante. 
 
 7. It does not appear clear how this section could be 
 
 applied to the case of a vendor resident outside the 
 province. 
 
 8. Presumed that purchaser is entitled to possession 
 
 until default in absence of contract: Dedrick v. 
 Ashdown, 4 Man. L. R. 139, 15 S. C. R. 227, at p. 
 239. Provisions in the agreement for re-sale by 
 vendor on default are binding: Bridgman v. 
 Robinson, 7 0. L. R. 591. See also ante, sec. 3(1), 
 notes. Parole variation as between contracting par- 
 ties: see Long v. Smith, 23 0. L. R. 121, at p. 127; 
 Carter v. C. N. 0., 23 0. L. R. 140. Where goods are 
 wrongfully seized and retaken from the conditional 
 vendee, the measure of damages is the amount which 
 he has paid the vendors on account of the price: 
 Bridgman v. Robinson, 7 0. L. R. 591. As to using 
 force in retaking possession by vendor : see Traders 
 Bank v. Brown, 18 0. R. 430. Question may arise in 
 respect to this section where the vendor retaking 
 
590 CHAPTER 136. 
 
 goods does not resell them at all. Also where the 
 vendor resides outside the province, takes the goods 
 outside and resells them forthwith. 
 
 9. The Act applies to machinery bought and affixed to 
 freehold after mortgage registered and does not 
 refer exclusively to future mortgages : Goldie & 
 McCulloch v. Uxbridge, 13 0. W. E. 696. Machinery 
 leased to company and affixed to freehold: right of 
 lessor against mortgagee of company's land: Seeley 
 v. Caldwell, 18 0. L. B. 472. Hire purchase agree- 
 ment under which machinery became fixed to free- 
 hold retains priority over subsequent equitable 
 mortgage: Ee Allen and Sons Limited, 1907, 1 
 Ch. 575. Landlord has no right to distrain on 
 engine bolted to concrete bed in soil and under hire 
 purchase agreement: Crossley v. Lee, 1908, 1 K. 
 B. 86. Eights of mortgagee as against owners of 
 machinery on the hire purchase system and affixed 
 to freehold. There is no rule implying authority 
 from the mortgagee to the mortgagor in posses- 
 sion to remove trade fixtures affixed to the mort- 
 gaged premises : Ellis v. Glover and Hobson, 1908, 
 1 K. B. 388. Machinery on hire purchase agree- 
 ment and embedded in concrete floor. Position of 
 mortgagee: Eeynolds v. Ashby, 1904, A. C. 466. 
 Apart from statute the fixtures vest in the owner 
 of the freehold: Hobson v. Gorringe, 1897, 1 Ch. 
 182; Hale v. Hazlett, 11 A. E. 749; Poison v. De 
 Geer, 12 O. E. 275. As against a mortgagee in pos- 
 session not a party to a hire purchase agreement, 
 such agreement affords no evidence to alter the 
 prima facie character of the annexed property: 
 Hobson v. Gorringe, 1897, 1 Ch. 182; Eeynolds v. 
 Ashby, 1903, 1 K. B. 87, 1904, A. C. 466; Seeley 
 v. Caldwell, 12 O. W. E. 1245., See E. S. O. 1914, 
 ch. 117, sec. 2 (1) notes. 
 
CHAPTER 137. 591 
 
 . CHAPTEE 137. 
 
 The Factoes Act. 
 
 Refer to Bicknell and Kappele, Practical Statutes, 
 pp. 479-483; Anger, Digest of Canadian Mercantile 
 Laws; Article, Factors and Factors Acts, 5 Can- 
 adian Law Times, 145 ; Chalmers, Sale of Goods Act ; 
 Story on Sale ; Blackburn on Sale. 
 
 1. The English Factors Acts date from 1823, 1825, 1842 
 and 1877. The legislation is now 52-53 Vict ch. 45. 
 The effect of the earliest three of these statutes is 
 dealt with in Cole v. North Western Bank, L. R. 10 
 C. P. 354. The present Act follows very closely the 
 English Act of 1889. " Factor " is not used in the 
 Act : For definition, see Ex p. Dixon, 4 Ch. D., at p. 
 137. 
 
 2. — (la) Documents of title: Discussed: Wiseman v. 
 Vanderputt, 2 Vera. 203 (1690) ; Evans v. Martlett, 
 I Ld. Ray. 271. First applied to ocean bills of 
 lading. Delivery of bill of lading a delivery of 
 goods : Lickbarrow v. Mason, 2 T. R. 63, 2 East. 21, 
 1 Sm. Lead. Cas. 737. In Canada, bill of lading also 
 applies to land carrier's receipt, R. S. C. ch. 118: see 
 Royal Bank v. G. T. R., 23 U. C. C. P., at p. 232. -As 
 to delivery orders, see Ex p. Close, 54 L. J. Q. B. 43 ; 
 Re Cunningham, 54 L. T. Ch. 44 ; " Cash receipts ' ' : 
 Kemp v. Falk, 7 App. Cas. 573; " mate's receipts," 
 Cowasjee v. Thompson, 11 Moo. P. C. 165 ; leather- 
 ing v. Laing, L. R. 17 Eq. 92. As to mode of trans- 
 ferring documents of title, see post, sec. 12. As to 
 bill of lading, see notes to the Mercantile Amend- 
 ment Act, R. S. 0. 1914, ch. 133, esp. sec. 2 (a). 
 
 %— (&) See noje to R. S. 0. 1914, ch. 133, sec. 2 (b). 
 
 2. — (lc) The word " agent " in this Act means one who 
 is entrusted with the possession as agent in a mercan- 
 tile transaction for the sale or for an object con- 
 nected with the sale of the property. An agent 
 who obtained possession of lumber from the master 
 of the vessel without authority from the owner 
 
592 CHAPTER 137. 
 
 was held not " entrusted " and the owner was en- 
 titled to recover the value from a bona fide pur- 
 chaser who had paid the agent : Moshier v. Keenan, 
 31 0. E. 658; see also McDermott v. Ireson, 38 
 U C. E. 1. For enumeration of the chief classes of 
 mercantile agents and definition of their functions, 
 see Story on Sale, ss. 78-118. Picture dealer as 
 mercantile agent : Turner v. Sampson, 7 T. L. E. 200. 
 Pledge made " in the customary course of business " 
 means the business of " a " mercantile agent, not 
 of " the " mercantile agent which the particular 
 agent happens to be : Oppenheimer v. Attenborough 
 (1907), 1 K. B. 510, (1908), 1 K. B. 221; see also 
 Waddington v. Neale, 23 T. L.E. 464. 
 
 2. — (d) The words " any pecuniary liability," are very 
 wide, and are probably intended to meet cases such 
 as the granting of a letter of credit to be operated on 
 by bills of exchange in consideration of the pledge of 
 goods or documents: Chalmers, p. 126. A person 
 who has advanced money to the owner on the security 
 of goods entrusted to him for sale, is not a pledgee 
 but a factor, when the power to sell does not depend 
 on the owner's default in repaying the advance: 
 Mitchell v. Sykes, 4 O. E. 501. 
 
 2 — (2) Effect of custom in rendering documents nego- 
 tiable by mere delivery : Crouch v. Credit Foncier, 
 L. E. 8 Q. B. 381; Jones v. Coventry, 1909, 2 K. 
 B. 1029; Bechuanaland v. London, 1898, 2 Q. B. 
 658; Edelstein v. Schuler, 1902, 2 K. B. 144. 
 
 3. At common law one person could not, in general, 
 dispose of another person's goods so as to give a 
 third party any better title than he himself had. 
 There were exceptions to the rule, e. g. : see Cole 
 v. The North Western Bank Limited, L. E. 10 C. P. 
 354. It is only the owner of the goods who can give 
 security under sec. 88 of the Bank, Act, E. S. O. 
 ch. 29. A bank which has taken such security on 
 goods of the owner cannot under that section sub- 
 stitute other goods afterwards coming into the pos- 
 session of the giver of the security as agent for 
 sale : Barry v. Bank of Ottawa, 17 O. L. E. 83, 11 
 O. W. E. 1103, 12 O. W. E. 515. Special contract 
 with agent : set off of debt of agent : right of 
 
CHAPTER 137. 593 
 
 agent to make special contract sale : McGuire v. 
 Shaw, 15 C. P. 310. Taking goods for debt of prin- 
 cipal: Harp v. O'Connor, 21 U. C. E. 251. A 
 partner entrusted with possession of the goods of 
 the firm for the purpose of sale may, either as 
 partner in the business or factor of the firm, pledge 
 them for advances made to him personally, and the 
 lien of the pledgee will remain as valid as if the 
 security had been given by the absolute owner of 
 the goods, notwithstanding notice that the contract 
 was with an agent only: McBean v. Dingwall, 30 
 S. C. E. 441. A. was in the habit of taking orders 
 for B.'s machines but was not employed by them. 
 A- by falsehood and forgery obtained a machine 
 from B. which he sold to C. for cash. C. knew 
 only A. in the transaction and B. considered they 
 were selling to C, having received a written order 
 and a promissory note for the price, to both of 
 which A. had forged C.'s name. Held that A. never 
 acquired any title and none could pass to C, and 
 that A. was not an agent nor ' ' entrusted with pos- 
 session " within the meaning of this Act: . Ontario 
 "Wind Engine v. Lockie, 7 0. L. E. 385. A person 
 who obtains goods by false pretences is not a mer- 
 cantile agent: Bush v. Fry, 15 0. E. 122. Goods 
 entrusted on sale or return : validity of pledge : mer- 
 cantile agent: Weiner v. Harris (1910), 1 K. B. 285. 
 (This case overrules Hastings v. Pearson, 1893, 1 
 Q. B. 62). Agent " entrusted ": see Dominion Car- 
 raige Co. v. Wilson, 2 O. W. N. 214, 17 0. W. E. 363. 
 It may be noted that the present section does not 
 use the word " intrusted." " How far this altera- 
 tion of language extends the operation of the Act is 
 not clear:" Chalmers, p. 127. As to former rule, 
 that if mercantile agent was intrusted with goods in 
 some other capacity, he could not sell or pledge 
 them contrary to instructions : see Monk v. Whitten- 
 bury, 2 B. & Ad. 484; Cole v. North Western Bank, 
 L. E. 10 C. P. 354;. Biggs v. Evans, 1894, 1 Q. B. 88. 
 Under -the present Act, possession with the owner's 
 consent suffices : Chalmers, p. 127. Qucere whether 
 when goods have been obtained by larceny, by a trick, 
 and afterwards have been pledged by the person so 
 obtaining them, the mode of obtaining them has any 
 effect to take the pledging" out of the Factors Act: 
 
 S.A.— 38 
 
594 CHAPTER 137. 
 
 Oppenheimer v. Attenborough (1907), 1 K. B. 510, 
 1908, 1 K. B. 221. Possession of goods by mercantile 
 agent: larceny by trick: disposition by mercantile 
 agent to several joint purchasers, lack of good f aitb 
 in one of whom caused disposition to be held invalid 
 as regards all the joint purchasers : Oppenheimer v. 
 Frazer, 1907, 2 K. B. 50. A custom in the diamond 
 trade that it is not usual for agents employed to sell 
 diamonds to pledge them cannot be set up to pre- 
 vent the application of the Act : Oppenheimer v. At- 
 tenborough, 1907, 1 K. B. 510, affirmed in C. A. 24, 
 T, L. E. 115, 1908, 1 K. B. 221, 13 Com. Cas. 125. 
 Transfer of title: possession of document of title: 
 resale : Oahn v. Pockett *s Bristol Channel Packet Co., 
 1899, 1 Q. B, 643. " Notice ": see Navulshaw v. 
 Brownrigg, 21 L. T. Ch. 908. Pledge at an unusual 
 rate of interest may be evidence that the pledgee had 
 notice that the pledgor had no authority to make the 
 pledge: Janesich v. Attenborough, 26 T. L. E. 278. 
 
 3. — (2) This provision overrules Fuentes v. Montis, L. 
 E. 3 C. P. 268, L. E. 4 C. P. 93. 
 
 4. Delivery of bills of lading is a delivery of the goods 
 to make property pass: Lickbarrow v. Mason, 2 
 T. E. 63, 6 East. 21, 1 Sm. Lead. Cas. 737; and in 
 Canada, bill of lading applies to land carrier's re- 
 ceipt: see E. 8. C. 118; Eoyal Bank v. G. T. E., 23 U. 
 C. C. P. 232. 
 
 8— (1) See Cole v. North Western Bank, L. E. 10 C. P., 
 pp. 361-7; Johnson v. Credit Lyonnais, 3 C. P. D., 
 at pp. 44-5. 
 
 9. The general rule at common law was that no title 
 passed unless owner authorized sale: City Bank v. 
 Barrow, 5 App. Cas. 677, 678 ; Cole v. North Western 
 Bank, L. E. 10 C. P., at p. 373. The scope of the 
 statutory exception is: (a) The goods must be en- 
 trusted to persons, whose business is to sell such 
 goods : (Factors) : City Bank v. Barrow, 5 App. Cas. 
 664; Bush v. Fry, 15 O. E. 122. (b) Goods must be in 
 bailee's possession, (c) Agent must act in ordinary 
 course of his business: Weiner v. Harris, 1910, 
 1 K. B. 285. (d) Purchaser must buy in good faith: 
 Oppenheimer v. Frazer (1907), 2 K. B. 50; Janesich 
 
CHAPTER 138. 595 
 
 v. Attenborough, 26 T. L. B. 278. See also as to 
 " possession ": Nicholson v. Harper (1895), 2 Ch. 
 415. As to purchaser on a hire-purchase agreement 
 as a person who has " agreed to buy " goods: see 
 Helby v. Matthews (1895), A. C. 471. 
 
 13. — (3) Eight to set-off in such cases: Kaltenbach v. 
 Lewis, 10 App. Cas. 617 ; Cook v. Eshelby, 12 App. 
 Cas. 271, 
 
 CHAPTEE 138. 
 The Limited Paktnebship Act. 
 
 2. Parties may enter into a partnership intended to be 
 
 and which is at first a limited partnership, and by 
 their eonduct either knowingly or unknowingly, 
 change the partnership into a general partner- 
 ship as regards third parties. When this occurs 
 with the consent and concurrence of all parties, 
 they also become general partners as between them- 
 selves. But when it occurs without the knowledge 
 or consent or against the consent of some partners, 
 they the partners whose acts constitute the firm a 
 general partnership as against third parties, will 
 not be entitled to contribution from the others but 
 will have to indemnify them against the conse- 
 quence of their acts: Patterson v. Holland, 6 Gr. 
 414. A company was formed to build and run 
 steamboats consisting of one general partner and 
 some 83 subscribers. Such a business was held to 
 be properly the subject of a limited partnership: 
 Bowes v. Holland, 14 U. C. E. 316. Syndicate with 
 right to share percentage of profits: McKim v. 
 Bixel, 19 0. L. E. 81. 
 
 3. Special partners must contribute actual cash to the 
 
 firm's capital. If any false statement be made in the 
 certificate filed, all the partners will be held liable 
 for the debts of the firm: Whitmore v. Macdonell, 
 6 C. P. 547 ; Patterson v. Holland, 7 Gr. 1. Special 
 partners cannot make their payment by promissory 
 notes: Patterson v. Holland, 7 Gr. 1; Watts v. 
 Taft, 16 U. C. E. 256. Nor by bills of exchange: 
 
596 CHAPTER 138. 
 
 Whittemore v. Macdonnell, 6 C. P. 547. Nor by 
 the special partner endorsing to the general partner 
 notes made by the general partner and held by the 
 special partner : Benedict v. Van Allen, 17 U. C. R. 
 234. 
 
 6. Where a defendant pleads a limited partnership, the 
 plaintiff may object to the description of the busi- 
 ness as well as plead that the limited partner has 
 not paid his share : Benedict v. Van Allen, 17 U. C. 
 R. 234. 
 
 10. See Whittemore v. Macdonell, 6 C. P. 547, noted ante. 
 
 16. Where a special partner has once rendered himself 
 liable as a general partner, he continues liable and 
 is not relieved after he has ceased to intermeddle: 
 Hutchison v. Bowes, 15 U. C. R. 156. A special 
 partner who has become a general partner by in- 
 terference has become so for all purposes not only 
 as regards creditors but as regards the partners 
 inter se : Bowes v. Holland, 14 U. C. R. 316. Special 
 partners elected a board of directors to advise the 
 general partner. The board interfered with busi- 
 ness, especially during the absence of the general 
 partner. The members of the board were held lia- 
 ble as general partners: Whittemore v. Macdonell, 
 6 C. P. 547. Special partner becoming general part- 
 ner by interference or intermeddling: see also 
 Davis v. Bowes, 15 U. C. R. 280. 
 
CHAPTER 139. 597 
 
 CHAPTEE 139. 
 
 The Paetnebship Begisteation Act. 
 
 . The business of printing and publishing a newspaper 
 constitutes the partners employed in it a partner- 
 ship ' ' for trading purposes ' ' and liable to the pen- 
 alty for not registering : Pinkerton q. t. v. Boss, 33 
 XL C. E. 508. The statute does not require the re- 
 gistration of a partnership of real estate agents or 
 insurance agents : Stitt v. Arts and Grafts, 13 0.. W. 
 E. 730. Mining syndicate with right to share percent- 
 age of profits : McKim v. Bixel, 19 0. L. E. 81. Where 
 a firm sues or is sued: see Con. Eule 144, H. & L. 
 notes p. 279, 1913, Eule 14, -Con. Eules 222-231, H. 
 & L. notes pp. 412-428, 1913 Eules 100-108. 
 
 A registered declaration under this Act signed by a 
 husband and his wife, by which they declared them- 
 selves partners, is incontrovertible as against a 
 creditor suing and it is not open to the wife. to con- 
 tend that she is incapable of becoming a partner of 
 her husband. In any event such a contention would 
 be met by the provision of the Married Women's 
 Property Act. A registered declaration signed by 
 the husband only that the partnership had been dis- 
 solved was no evidence in his favour: Gibson v. Le 
 Temps, 8 O. L. B. 707. " Not be controvertible " 
 means not controvertible in a civil action in which 
 a claim is made against the firm. It does not apply 
 to a case of a penal .action brought against a mem- 
 ber of the firm for neglecting to file such declara- 
 tion : Cassidy q. t. v. Henry, 31 U. C. B. 345. 
 
 This provision does not apply to a case where it was 
 unnecessary to have filed the original declaration, 
 as in the case of a firm of real estate brokers : Stitt 
 v. Arts and Crafts, 13 O. W. E. 730. Failure to file 
 a declaration of change of membership and omission 
 of usual common, law methods of giving notice : see 
 Oakville v. Andrew, 10 O. L. E. 709 ; see also as to 
 change in firm : Bank of Toronto v. Nixon, 4 A. E. 
 346. A declaration under this Act may be filed by a 
 limited liability company doing business as an ordin- 
 
598 CHAPTER 140. 
 
 ary company. The question whether a limited liability 
 company may lawfully do business under another 
 name does not arise on a question of registration 
 merely: Guthrie, 1911, p. 10. 
 
 10. Eemission of penalty: Dixon v. Georgas Bros., 4 0. 
 
 W. N. 462, 23 0. W. R. 524. Penalty: see Chaput 
 v. Eobert, 14 A. R. 354; Pinkerton v. Ross, 33 IT. C. 
 R. 508 ; Cassidy v. Henry, 31 U. C. R. 345. Fines, 
 penalties and forfeitures : see R. S. O. 1914, ch. 99. 
 
 11. Where the applicant for a certificate furnishes the 
 
 name of the firm it is unnecessary to seareh the 
 individual index, and the Registrar is entitled to 
 25c for certificate and 10 cents only for the search, 
 no matter how many individuals constitute the 
 firm: Guthrie's Decisions, 1897, p. 5. 
 
 CHAPTER 140. 
 
 The Mechanics' and Wage-earneks' (Lien Act. 
 
 Refer to: Wallace, Mechanics' Lien Laws in Canada, 
 Holmested's Mechanics' Lien Act (Ont.), Bloom's 
 Mechanics' Lien Laws and Building Contracts 
 (IT. S.) ; Hudson on Building Contracts. 
 
 1. Legislation in Ontario dates from 1873, 36 Vic. ch. 27. 
 Amended 38 Vic. ch. 20. Consolidated 1877 as ch. 
 120. Amended 45 Vic. ch. 15, 47 Vic. ch. 18, 50 Vic. 
 ch. 20. Consolidated 1887, ch. 126. Amended 53 
 Vic. ch. 38, 53 Vic. ch. 37, 56 Vie. ch. 24. Consoli- 
 dated 59 Vic. ch. 35. Amended 60 Vic. ch. 24. Con- 
 solidated 1897, ch. 153. Amended 63 Vic. ch. 2, 1 
 Bdw. VII. ch. 12, 2 Edw. VII. ch. 21, 4 Edw. VII. ch. 
 11. Consolidated 10 Edw. VII. ch. 69. The lien is 
 purely statutory and is not analogous to a vendor's 
 lien: King v. Alford, 9 P. R. 643. 
 
 2. — (a) " Contractor:" The distinction between differ- 
 ent classes of lien-holders has now been almost 
 dropped, but : see Bunting v. Bell, 23 Gr. 584 ; and 
 McPherson v. Gedge, 4 O. R. 246, where the expres- 
 sion " lien-holders of the same class "is said to mean 
 
CHAPTER 140. 599 
 
 " those who have contracted with the same person 
 whether their liens are registered or not." 
 
 2. — (c) A person is not an " owner " within the meaning 
 of this sub-section unless there is something in the 
 nature of a direct dealing between the contractor 
 and the person whose interest is sought to be charged. 
 Mere knowledge or consent to the work being 
 done or the materials being supplied is not enough ; 
 there must be a request either express, or by im- 
 plication from circumstances, to give rise to the 
 lien : Gearing v. Eobinson, 27 A. B. 364. In order to 
 create a lien on the property of- the owner in favour 
 of the material man there must in all cases be a re- 
 quest of the owner and a furnishing of the mater- 
 ials either upon the owner's credit or on his behalf 
 or with his privity or consent or for his direct 
 benefit : Slattery v. Lillis, 10 0. L. B. 697 ; see Fortin 
 v. Pound (B.C.), 1 W. L. B. 333. This sub-section 
 must be read with sec. 6, which creates the lien. The 
 effect of these two sections was considered in Gra- 
 ham v. Williams, 8 0. B. 478, 9 0. B. 458. There 
 the claim was made by a material man who had 
 supplied bricks to a person who had leased lands 
 from an owner with an option to purchase. Under 
 the circumstances of that case the interest of the 
 owner was not charged, the Court holding that it 
 requires something more than mere knowledge of 
 the work being done to bind the owner and that the 
 privity and consent mentioned in the Act must be 
 in pursuance of an agreement. In Blight v. Bay, 
 23 0. B. 415, there was a verbal agreement for the 
 purchase of .land sufficient to give ownership in 
 equity to the buyer. The seller was aware that the 
 work was being done and the materials furnished. 
 Ferguson, J., held that the circumstances of this 
 case entitled the material man to a lien upon the 
 interest of the owner and criticized the expression 
 in Graham v. Williams (supra) that the privity and 
 consent must be in pursuance of an agreement. 
 " Owner.-" see also Scratch v. Limoges, 44 S. C. B. 
 86. See also Tennant v. Powell, Sept. 21st, 1893, 
 Court of Appeal, unreported, following Graham v. 
 Williams, noted 10 0. L. B. 703. An agreement to. 
 purchase property under which buildings are to 
 be erected by the seller and which has been acted 
 
gOO CHAPTER 140. 
 
 on by the parties, although not binding under the 
 Statute of Frauds if pleaded, constitutes the buyer 
 an " owner." Semble, if not an " owner " then 
 by the Eegistry Act, no unregistered lien of which 
 he had not notice prior to the registry of the deed 
 to him, could prevail against- him : Eeggin v. Manes, 
 22 0. B. 443. The lessor in a lease which provides 
 for certain repairs to be done by the lessee and the 
 cost deducted from the rent, is not an " owner:" 
 Glaring v. Hunt, 27 0. E. 149. Where married 
 woman is owner difficulties formerly occurred: c.f. 
 Wagner v. Jefferson, 37 U. C. E. 551; but now see 
 sec. 7. Where the contract is made with an owner 
 who is a minor or a lunatic no lien attaches : Holm§- 
 sted p. 9. As to guardian: Collins v. Martin, 
 41 U. C. E. 602. " Work or service;" for distinc- 
 tion: see sees. 22 (3) and 22 (4); see also Arnoldi 
 v. Gouin, 22 Gr. 314; Garing v. Hunt, 27 0. E. 149; 
 Davis v. Crown Point, 3 0. L. E. 69, noted post, sec. 6. 
 
 2. — (/) "Sub-contractor" now includes all sub-con- 
 tractors, however remote : but see sec. 15, where 
 wage-earners are specially considered. 
 
 3. A mechanic's lien, " registered in the Registry Office 
 of the registry division in which the land is situ- 
 ated " (see sec. 17) is unenforceable against a Do- 
 minion railway extending beyond the county limits : 
 Crawford v. Tilden, 8 0. W. E. 548, 9 0. W. E. 781, 
 13 0. L. E. 169, 14 0. L. E. 572; see E. S. C. 1906, 
 ch. 37, sec. 299. Powers of Provincial Legislatures 
 as to railways within the legislative authority of 
 the Dominion: see C. P. E. v. Notre Dame de Bon- 
 secours, 1899, A. C. 367; Madde*n v. Nelson and 
 Fort Sheppard Ey., 1899, A. C. 626. See also as to 
 railways: King v. Alford, 9 0. E. 643; Breeze v. 
 Midland, 26 Gr. 225 ; and see provisions of sec. 17 
 (3) and notes. Lands of a municipality actually 
 required for the public uses of the municipality, 
 e.g., public buildings, firehalls, etc., are exempt 
 from the operation of this Act: General Con- 
 tracting Co. v. Ottawa, 14 0. W. E. 749, 1 0. W. 
 N. 911. Applies to mines : see E. S. 0. 1914, 
 ch. 32, sec. 182. Public schools : see Eobb v. Wood- 
 stock School Board; see Armour, Titles, p. 242. 
 Where a house is being rebuilt by an insurance com- 
 pany under the terms of a policy: see sec. 9, note. 
 
CHAPTER 140. 601 
 
 4. See Workmen's Compensation for Injuries Act, E. 
 S. 0. 1914, ch. 146, sec. 10. 
 
 6. Liens are divided into two classes: (1) Liens for 
 which a claim is not registered; and (2) liens for 
 which a claim is registered. The lien is given hy this 
 section, and exists independently of the registration 
 of a claim. Before registration there are two 
 courses open to a lienor: (a) he may omit to register 
 a claim, in which case his lien will either lapse or be 
 enforced by action at his own instance, or that of 
 others; or (6 J he may register a claim, in which case 
 his lien will lapse on the expiration of 90 days, or he 
 must bring an action within a certain time, or some 
 one else must. (See seci 24, notes) : Eadie Douglas v. 
 Hitch, 27 0. L. E. 257. " Performs any work " re- 
 lates back to commencement of work: Ottawa Steel 
 v. Dom. Supply, 25 Occ. N. 58, 5 O. W. E. 161 ; see note 
 sec. 14. " Performs any work or service upon or in 
 respect of any building . . . mine . . . "Under 
 this, a blacksmith employed for sharpening and keep- 
 ings tools in order for the work of mining is entitled 
 to a lien for his wages, but a cook who does the cook- 
 ing for the men employed, is not: Davis v. Crown 
 Point, etc., 3 O. L. E. 69. An architect is entitled to 
 register a lien for money due him for plans and speci- 
 fications and also superintending the erection of 
 buildings for the owner: Arnoldi v. Gouin, 22 Gr. 
 314. But as to a scene painter : see Garing v. Hunt, 
 27 0. E. 149, note to sec. 7 (1). Query, if scenery 
 is part of freehold. " Places or furnishes mater- 
 ials:" see Larkin v. Larkin, 32 O. E. 80, note to sec. 
 8 (3), post. The phrase " furnishes any materials 
 to be used " means that unless the. materials are 
 furnished for the purpose of being used no lien at- 
 taches even though they are used. Experimental 
 purposes are insufficient : Brooks Sanf ord v. Telier, 
 20 0. L. E. 303, 22 0. L. E. 176. When furnishing ma- 
 terials gives a direct lien on the land as against the 
 owner, and when a sub-lien on the moneys owing by 
 the owner to the contractor or upon the statutory 
 drawback: see Slattery v. Lillis, 10 0. L. E. 697. 
 " The commencement of the lien is coincident with 
 the commencement of the work " and therefore liens 
 registered within the proper time limit for materials 
 supplied prior to the service of petition to wind up 
 
602 CHAPTER 140. 
 
 company are entitled to be paid in priority to or- 
 dinary creditors : Re Clinton Thresher Co., 15 0. W. 
 E. 318, 1 0. W. N. 445. The lien given by this sec- 
 tion exists independently of registration: Eadie 
 Douglas v. Hitch, 27 O. L. E. 257. When lien at- 
 taches (under Nova Scotia Act) : S. Morgan Smith 
 v. Sissibo Pnlp Co., 35 S. C. E. 93. " Lands occu- 
 pied or enjoyed therewith " includes waterlots ad- 
 joining: Davis v. Crown Point, 3 0. L. E. 69. " Sum 
 justly due:" see notes to sec. .22 as to when amount 
 is due. " The amount due to the contractor could 
 not be ascertained without the persons liable on 
 the contract being before the Court: Woods v. 
 Stringer, 20 0. E. 148. The occupying of church 
 pews objected to was not an acceptance of the 
 work. A reduction of the price by the difference 
 in value between the bad material and that which 
 should have been used was not an adequate measure 
 of the set-off to which the proprietors were entitled : 
 Wood v. Stringer, 20 0. E. 148. Work improperly 
 done, not authorized in writing as required by 
 written contract, nor within time specified: see 
 Hutchison v. Eogers, 14 0. W. E. 768, 1 0. W. N. 89. 
 Conditions of written contract cannot be disregarded 
 and the lien paid on quantum meruit: Kelly 
 Bros. v. Tourist Hotel Co., 15 0. W. E. 29, 1 0. W. 
 N. 337, 20 0. L. E. 267. " Amount justly due " : see 
 also Farrell v. Gallagher, 2 0. W. N. 635, 815, 18 0. 
 W. E. 446. A contractor formerly could contract sub- 
 contractors out of their liens without their knowledge 
 or consent ; Forhan v. Lalonde, 27 Gr. 300. The lien of 
 * a subcontractor is limited to what is due by the owner 
 to the contractor: Briggs v. Lee, 27 Gr. 464. " Ex- 
 cept as otherwise provided:" Section considered: 
 Eice Lewis v. Eathbone, 27 0. L. E. 630. What per- 
 sons have a right to file liens: see Annotation, 9 
 D. L. E. 105. Armour, Titles, p. 236, et seq., and see 
 esp. p. 238. 
 
 8. — (1) A building committee of a church have no " in- 
 terest " in the lands upon which a lien may attach 
 and the individual members are not liable except on 
 a distinct cause of action that they misrepresented 
 their authority: Litton v. Gunther, 12 0. W. E. 1122. 
 ' ' Interest of the owner " : see Booth v. Booth, 3 
 0. L. E. 294; B. C. Lumber Co. v. Leberry, 22 Occ. 
 N. 273. 
 
CHAPTEE 140. Q03 
 
 8. — (2) Where a leasehold interest is sought to be 
 charged: Gearing v. Robinson, 27 A. R. 364. 
 
 8,-— (3) The plaintiffs claimed priority as lienholders 
 over a mortgagee whose mortgage was prior to the 
 date of the contract for the amount by which the sell- 
 ing value had been increased. The Court held under 
 the then wording of the Act, that the mortgagee was 
 not an owner, not being a person at whose ' ' request, 
 etc, the work had been done." Proceedings had 
 not been taken against the mortgagee within the 
 time required in sees. 23 and 24: Bank of Mont- 
 real v. Haffner, 29 Gr. 319, 3 0. R. 183, 10 A. R. 592, 
 Oas. Dig. 526. Proceedings taken to enforce 
 claim for priority on the increased selling value 
 must state the dates of creation of the incum- 
 brances: Douglas v. Chamberlain, 25 Gr. 288, The 
 contractor is restricted to his proportionate share 
 of increased selling value in case of deficiency: 
 Broughton v. Smallpiece, 25 Gr. 290. Each lien- 
 holder is entitled to security on the enhanced value : 
 Bank of Montreal v. Haffner, 3 0. B. 183. It must 
 clearly appear that the selling value has been en- 
 hanced : Kennedy v. Haddou, 19 0. R. 240. A prior 
 mortgage is one existing in fact before the lien 
 arises, though not necessarily prior in point of re- 
 gistration : Cook v. Belshaw, 23 0. R. 545 ; see Gaul- 
 thier v. Larose, 38 C. L. J. 156. Materials were 
 placed on the land by the owner and paid for by the 
 mortgagee to be used in the construction, but were 
 not actually incorporated. The materials were 
 taken by the owner to a planing mill to be planed 
 for placing in the buildings, and having been left 
 there some time and storage charges incurred, the 
 mortgagee sold them to the mill owner. Tinder 
 these circumstances, Meredith, C.J., was of opinion 
 that no Jien attached, incorporation in the building 
 being an essential element. Rose and MacMahon, 
 JJ., considered that a lien would attach, notwith- 
 standing the absence of incorporation, but, there 
 having been a conversion, no relief could be granted 
 for there is nothing in the Act enabling a Court to 
 assess damages which could be applicable to lien- 
 holders: Larkin v. Larkin, 32 0. R. 80. The 
 lienholder's remedy is confined to the increased 
 value. He cannot question the priority of the mort- 
 gage : Dufton v. Horning, 26 0. R. 252. As between 
 
g04 CHAPTER 140. 
 
 a lienholder and a prior mortgagee increased value 
 was found. The premises were then destroyed by 
 fire. The claim of the lienholder was at an end so far 
 as the mortgagee was concerned: Patrick v. Wal- 
 bourne, 27 0. E. 221. It seems increased value can 
 only be ascertained by sale: Patrick v. Walbourne, 
 27 O. E. 221. A mechanic was held not entitled to 
 any lien in respect of a registered mortgage under 
 which progressive advances were made, although 
 a part of the money was advanced after the execu- 
 tion of the work, but without notice of it: Eichards 
 v. Chamberlain, 25 Gr. 402. Progressive advances 
 under a mortgage as the building goes on have 
 priority over concurrent unregistered liens, the in- 
 creased value in such a case not being a benefit to the 
 pre-existing mortgage, but calling forth periodical 
 payments : Cook v.Belshaw, 23 0. E. 545. Mortgagees 
 not parties to a pending action to enforce lien took 
 sale proceedings, notified the registered lienholders 
 and sold. On motion of the mortgagees, the registry 
 of the liens and certificates was annulled and the bal- 
 ance of money in the mortgagees' hands ordered 
 paid into Court : Finn v. Miller, Eathbone v. Miller 
 26 C. L. J. 55. Judgment where mortgagees are 
 directed to pay increased selling value into Court 
 and directing proceedings in default: see Ludlam 
 Ainslie Lumber Co. v. Fallis, 12 0. W. E. 1270, and 
 see this case, 14 0. W. E. 273, 19 0. L. E. 419. See 
 Armour, Titles, p. 236, et seq., 248. 
 
 9. Where in fulfilment of a policy a house is rebuilt by 
 
 an insurance company upon the land of the insured, 
 no lien for work or materials attaches: Holmested, 
 p. 9. Premises destroyed by fire: Patrick v. Wal- 
 bourne, 27 0. E. 221. 
 
 10. Extinguishment of balance due contractor as liquid- 
 
 ated damages ; liability of owner to material man: 
 McManus v. Eothschild, 25 0. L. E. 138, 3 0. W. 
 N. 291, 20 0. W. E. 469: " The basis of the price 
 to be paid for the whole contract": see Cole v. 
 Pearson, 17 0. L. E. 46, 12 0. W. E. Ill; note to 
 sec. 12. Where plaintiff has not completed build- 
 ing contract in accordance with its terms he is not 
 entitled to a lien :- Simpson v. Eubeck, 21 0. W. E. 
 260, 3 0. W. N. 577. Plaintiffs claiming lien 
 
CHAPTER 140. 605 
 
 may be allowed to complete work pendente lite: 
 Crown Art Stained Glass v. Cooper, 1 0. W. N. 1047. 
 See Russell v. French, 28 0. E. 215 ; Truax v. Dixon, 
 17 0. R. 366 5 Farrell v. Gallagher, 23 0. L. R. 130; 
 Rice Lewis v. Rathbone, 4 0. W. N. 602, 27 0. L. R. 
 630; note to sec. 12, post. Failure of contractor to 
 complete work on building contract : see Annotation, 
 1 D. L. R. 9. 
 
 11. Amount owing to contractor: In King v. Low, 3 0. 
 L. R. 234, there was an agreement to do work for a 
 specified sum and the building was destroyed. The 
 plaintiffs admitted non-completion by suing on a 
 quantum meruit. Following the rule in English 
 cases (Appleby v. Myers, L. R., 2 C. P. 651, etc.), 
 there being no default on the part of the defendants, 
 the plaintiffs could not recover: see Sherlock v. 
 Powell, 27 A. R. 407 ; see Wood v. Stringer, 20 0. R. 
 148. A sub-contractor, though not a wage-earner, 
 is entitled to a lien on the percentage in priority 
 to any right of set-off the owner may have against 
 the contractor by reason of any default in the per- 
 formance of his contract where progress certifi- 
 cates have issued: Rice Lewis v. Rathbone, 4 O. W. 
 N. 602, 27 O. L. R. 630, and see notes to sec. 12. 
 
 12. — (1) The owner of a building is not prohibited from 
 making payments before the expiry of the 30 days 
 from completion out of the 20 per cent, reserve to 
 persons entitled to liens, but he makes such pay- 
 ments at his own risk as against anyone ultimately 
 prejudiced by such payment : Torrance v. Cratchley, 
 31 0. R. 546. Where an owner took possession of the 
 works, the percentage which he was required to de- 
 duct from any payments and retain was to be com- 
 puted on the value of the work and materials, but not 
 upon the value of the plant as well : Birkett v. Brew- 
 der, 22 Oec. N. 93, 1 0. W. R. 62. In a case under 
 the Nova Scotia Act it was held that the provision 
 requiring a percentage to be retained did not ap- 
 ply where the contract price was associated with 
 other considerations from which it could not be 
 separated: S. Morgan Smith v. Sissibo, etc., 35 S. 
 C. R. 93. Word " payment " includes an arrange- 
 ment by which an order is given by the contractor 
 on the owner for the payment of the material man 
 
gQg CHAPTER 140. 
 
 out of the fund which when accepted fixes the owner 
 with direct liability to pay for the materials: Jen- 
 nings v. Willis, 22 0. E. 439. Where a contract pro- 
 vided that upon non-completion by a fixed day the 
 contractor was to pay or allow $10.00 a day until 
 completion, this authorized a deduction as liquid- 
 ated damages even against lienholders claiming ad- 
 versely to the contractor other than those having 
 liens for wages: McBean v. Kinnear, 23 O. E. 313. 
 A payment in excess of the contract price made to 
 complete a building owing to the failure of the con- 
 tractor should be deducted from the contract price 
 and the 20 per cent, calculated on the balance of such 
 contract price after such deduction : Eeggin v. Manes, 
 22 O. E. 443. See also Sherlock v. Powell, 27 A. 
 E. 407; Goddard v. Ooulson, 10 A. E. 1. (Ee Corn- 
 ish, 6. O. E. 259, and In re Sear v. Woods, 23 O. E. 
 474, are not now applicable: Eussell v. French, 28 
 O. E. 215). Under the earlier Acts the 20 per cent, was 
 to be deducted from the " price to be paid " and a 
 lienholder must prove money owing by the owner to 
 the contractor or no lien attached. The present 
 section provides for 20 per cent, drawback on the 
 " value of the work:" Eussell v. French, 28 O. 
 E. 215. It is the duty of the owner to retain out 
 of the payments to be made to the contractor as 
 the work progresses 20 per cent, of the value of 
 the work and materials to form a fund for the pay- 
 ment of lienholders, not subject to be affected by the 
 failure of the contractor to perform his contract: 
 Eussell v. French, 28 O. E. 215. Under the authority 
 of Eussell v. French, 28 O. E. 215, lienholders are en- 
 titled to 20 per cent drawback, whether owing or not, 
 and the owner is required to pay that portion even if 
 it never becomes due to the contractor. This case has 
 been adopted as a rough-and-ready rule, but its 
 authority has not been passed on by the Court of Ap- 
 peal : see articles on the authority of this case, 41 C. 
 L. J., p. 733, 49 C. L. J. 260. When rightly under- 
 stood the case of Eussell v. French, 28 O. E. 215, was 
 well decided : Eice Lewis v. Eathbone, 27 0. L. E. 630. 
 Computation of the 20 per cent, where the contract 
 a losing one and work not completed : Farrell v. Gal- 
 lagher, 2 0. W. N. 635, 815, 18 0. W. E. 446, 23 0. L. 
 E. 130. In ascertaining the amount upon which is to 
 be computed, the 20 per cent, provided in the Act, the 
 
CHAPTER 140. 607 
 
 value of the work done and materials furnished is to 
 be calculated on " the basis of the price to be paid for 
 the Whole contract:" Cole v. Pearson, 17 0. L. R. 
 46, 12 0. W. R. 111. Note the wording of the present 
 section: " calculated on the basis of the contract - 
 price, or if there is no specific contract-price, then on 
 the basis of the actual value of the work, service or 
 materials." If an owner contemplating building 
 chooses to say " I will not pay until completion," 
 the statute has not advanced the rights of general 
 lienholders not being wage-earners beyond the posi- 
 tion of fhe plaintiff in Goddard v. Coulson, 10 A. R. 
 1, and they are still limited to the amount owing from 
 the owner. On the other hand if the owner chooses to 
 agree to make payments to the contractor before com- 
 pletion, he cannot complain that a portion of what he 
 is willing to part with should be put aside, not for his 
 • security, but for the security of others whose labor 
 or materials have gone to benefit the property: Riee 
 Lewis v. Rathbone, 27 0. L. R. 630. The true 
 meaning of the statute is that if the owner has 
 agreed to pay moneys before completion of the 
 contract, whether fixed amounts or sums arrived 
 at by an architect's progress certificate or other- 
 wise, and they actually become payable, he must 
 retain the same to the extent of twenty per cent, 
 of the value of the work and materials to the 
 date for payment calculated as prescribed in the 
 Act and upon this percentage the liens will become 
 a charge, but except in so far as moneys become 
 actually payable, there is no percentage upon which 
 liens r other than wage-earners' liens, can become a 
 charge: Rice Lewis v. Rathbone, 27 0. L. R. 630. 
 Rice Lewis v. Rathbone follows Russell v. French 
 28 0. R. 215 T and virtually overrules Farrell v. Gral- 
 lagher, 23 O. L. R. 130: see also note to sec. 15, post. 
 Payments to be made : see Simpson v. Rubeck, 21 0. 
 W. R. 260, 3 0. W. N. 577, note to sec. 10. 
 
 12. — (4) What is a sufficient " notice in writing ": Craig 
 v. Cromwell, 32 0. R. 27, 27 A. R. 585 ; see article 
 7 C. L. T. 69. " Technicalities should not obtain in 
 construing this Act and what would be deemed suf- 
 ficient notice as a matter of business should suf- 
 fice ": per Boyd, C: Craig v. Cromwell, 32 0. R. 27. 
 A material man giving notice to the owner of an 
 
608 CHAPTER 140. 
 
 unpaid account against the contractor is not thereby 
 entitled to dispute the validity of payments after- 
 wards made by the owner to persons having claims 
 for wages or to persons furnishing materials on 
 the owner's personal liability: McBean v. Kinnear, 
 23 0. E. 313. 
 
 13. This section appears " merely to give authority to 
 the owner without the consent of the contractor, but 
 upon mere notice to him, to make payments out of 
 the contract price direct to persons who would be 
 entitled to liens, limiting, however, the fight to make 
 such payments to the moneys which the owner is 
 not directed to retain under the 12th section. .It 
 does not apply at all to the moneys which the owner 
 is directed to retain ' ' : per Street, J. : Torrance v. 
 Cratchley, 31 0. E. 550. 
 
 14. — (1) A lien of a sub-contractor relates back to the 
 commencement of his work, and where a contractor 
 assigned a large sum due to him from the employer, 
 the sub-contractor's lien had priority for the full 
 amount of his lien and not merely for the portion 
 earned up to the date of the assignment: Ottawa 
 Steel v. Dom. Supply, 25 Occ. N. 58, 5 0. W. E. 161. 
 A notice of indebtedness for which a lien can be 
 claimed is prima facie notice of the lien itself: 
 Eobock v. Peters, 36 C. L. J. 354. A lienholder who 
 registers his lien in time has priority from the date 
 of commencement of his work or from the placing 
 of materials: Eobock v. Peters (Man.), 36 C. L. J. 
 354. Application of pro rata payments: Hood v. 
 Coleman, 36 C. L. J. 308. Whether a mechanic's lien 
 of a sub-contractor takes priority over a garnishee 
 summons against the fund in the hands of the 
 owner for a debt by the contractor: see Bicknell 
 and Seager, D. C. Act, p. 359. See also provisions 
 of E. S. 0. 1914, ch. 134, sec. 14. 
 
 14.— (2) See Hoffstrom v. Stanley, 14 Man. L. E. 227, 22 
 Occ. N. 337. 
 
 15.— (1-4) See Torrance v. Cratchley, 31 0. E. 546; Black 
 v. Wiebe, 15 Man. L. E. 260. Where a contract pro- 
 vided for $10.00 a day deduction for non-completion, 
 this authorized a deduction as liquidated damages 
 
CHAPTER 140. 609 
 
 against lienholders other than liens for wages. The 
 amount required to satisfy the wages' lien should 
 be deducted from the contract price after allowing 
 for the reduction by reason of non-completion and 
 cannot be marshalled in favour of a material man 
 by being thrown upon the part of the contract price 
 representing such reduction : McBean v. Kinnear, 23 
 0. R. 313 ; see Eeggin v. Manes, 22 0. R. 443, Russell 
 v. French, 28 0. R. 215, ante. The Act in giving wage 
 earners an exceptional and special benefit of liens 
 in the case of uncompleted and abandoned contracts, 
 enlarges the claims of the wage earners beyond the 
 written contract price agreed on by compelling the 
 owner or contractor to pay, in cases of uncom- 
 pleted and abandoned contracts, certain liabilities 
 and the extra cost of the defaults. But such increase 
 of contract price ought not to be extended beyond 
 what the plain reading of the Act will warrant: 
 Brienzi v. Samuel, 12 0. W. R. 1233. Where moneys 
 fall due on a contract under progress certificate, the 
 owner is liable to lienholders to the extent of 20 
 per cent, upon these payments, and if over and 
 above the amount of the progress certificate, any 
 sum ever became payable by the owner to the con- 
 tractors, 20 per cent, of that also is available to 
 lienholders. There is nothing inconsistent in this 
 view with the provision of this section, and there 
 is nothing in this section to affect the other pro- 
 visions of the Act respecting liens for other things 
 than wages. This section covers cases in which 
 there are no progress certificates in which there 
 may be nothing ever payable by the owner to the 
 contractor except the ultimate balance, if any, and 
 so it goes far beyond other provisions of the Act 
 in favour of other lienholders. This is in accord- 
 ance with the decision of Russell v. French, 28 0. 
 R. 215, and if there is anything decided or stated 
 to the contrary in Far r ell v. Gallagher, 23 0. L. 
 R. 130; McManus v. Rothschild, 25 0. L. R. 138, it 
 should be overruled: Rice Lewis v. Rathbone, 27 
 0. L. R. 630. 
 
 15.— (5) A mortgagee paying off the original vendor 
 and taking a conveyance is not, having notice of a 
 lien, entitled to be subrogated to the vendor's 
 
 S.A.— 39 
 
610 CHAPTER 140. 
 
 priority: Eoboek v. Peters, 36 C. L. J. 354; see 
 also McBean v. Kinnear, 23 0. E. 313; Jennings 
 v. Willis, 22 0. R. 439, noted ante. 
 
 16. The lien having attached to the land because of the 
 material furnished, and being on the land, the 
 creditors of the person who furnishes the same 
 have no right to pursue the property there to 
 satisfy their claim: Ludlam-Ainslie v. Fallis, 14 
 0. W. R. 273, 19 0. L. R. 419. Materials removed 
 and converted: see Larkin v. Larkin, 32 0. R. 80, 
 noted, ante, sec. 8 (3). 
 
 17. — (1) Residence of Claimant: " Toronto " is sufficient 
 address — the house number and street are not re- 
 quired : Barrington v. Martin, 16 0. L. R. 635, 12 0. 
 W. R. 324. See also as to sufficiency of claimant's ad- 
 dress : Dufton v. Horning, 26 O. R. 252, Crerar v. C. 
 P. R., 5 0. L. R. 383. " Believes to be the owner." A 
 mistake as to the true owner is not material : Bar- 
 rington v. Martin, 16 O. L. R. 635. Name of 
 owner: Omission of owner's name held not to in- 
 validate lien : Makins v. Robinson, 6 0. R. 1. When 
 a mortgage is a prior incumbrance and when a sub- 
 sequent incumbrance: see Reinhart v. Shutt, 15 0. 
 R. 325. Naming mortgagees in lien: parties: see 
 McVein v. Tiffin, 13 A. R. 1; Re Wallis and yokes, 
 18 0. R. 8. Where priority over incumbrance or 
 increased selling value is claimed: see Douglas v. 
 Chamberlain, 25 Gr. 288. The name and residence 
 of the person for whom or on whose credit the work 
 was done must appear. This objection can be taken 
 by a contractor against a sub-contractor: Wallis 
 v. Skain, 21 0. R. 532. " Time within which ma- 
 terials were furnished." The end of the period is 
 the important date: see sec. 17 (2) and form 
 appended to Act: Barrington v. Martin, 12 0. W. 
 R. 324. See also as to time : Roberts v. Macdonald, 
 15 0. R. 80 ; Truax v. Dixon, 17 0. R. 366. " Lumber 
 supplied " is a sufficient description. " Materials 
 supplied " is not sufficient but such a defect may be 
 cured by sec. 19 (1) : Barrington v. Martin, 16 0. 
 L. R. 635, 12 0. W. R. 324. The application of the 
 Registry Act to liens: see Armour, Titles, p. 244, 
 et seq. As to registration of liens against mining 
 claims: see R. S. 0. 1914, ch. 32, sec. 182. 
 
CHAPTER 140. QH 
 
 17. — (2) Imperative requirement of affidavit: Bruce v. 
 National Trust, 4 0. W. N. 1372, 24 0. "W. E. 688. 
 The land was in Wellington County and the affi- 
 davit was sworn in Bruce County : satisfied the pro- 
 visions of the Act: Truax v. Dixon, 17 0. B. 366. 
 Affidavit referred to claim marked A., and no such 
 mark appeared. This did not invalidate the lien: 
 Currier v. Friedrick, 22 Gr. 243. Assignment of lien : 
 see Currier v. Friedrick, 22 Gr. 243. Affidavit of 
 assignee of lienor: Grant v. Dunn, 3 0. B. 376. 
 Substantial compliance with this section: see Lud- 
 lam Ainslie Lumher Co. v. Fallis, 12 0. "W. E. 1270, 
 14 O. W. B. 273, 19 0. L. E. 419. As to registration 
 of lien signed by the lienholder's agent, see Guthrie's 
 decisions, 1897, p. 43. 
 
 17. — (3) The Court will not direct a sale of railway 
 lands but only order payment of amount due: 
 Breeze v. Midland E. Co., 26 Gr. 225. This applies 
 also to engine house, turntable and land on which 
 they are : King v. Alf ord, 9 O. B. 643 ; see sec. 3 
 notes. 
 
 18. This section and sec. 19 were passed in 1896 after 
 the decisions in Currier v. Friedrick, 22 Gr. 243 ; 
 Oldfield v. Barbour, 12 P. B. 554. y Where a con- 
 tract was made with the respective owners of adjoin- 
 ing lands for the repair of two separate buildings 
 included under one roof at one entire price, separate 
 accounts being kept of the work done and materials 
 furnished on each building, a lien attaches against 
 the lands of each owner for the price of work and 
 materials on the buildings respectively: Booth v. 
 Booth, 3 O. L. E. 294; see Fairclough v. Smith, 
 13 Man. L. E. 509. A material man is not entitled 
 to register, as one individual claim, a lien for the 
 amount of materials supplied by him to a contractor 
 against all the lands jointly of the owners of dif- 
 ferent parcels of land who have separate contracts 
 with the contractor for the erection of houses on 
 their respective parcels: Dunn v. McCallum, 14 
 0. L. E. 249, 9 0. W. E. 756, and see sec. 32 notes. 
 Sees. 17 and 18 must be construed as meaning that 
 each particular piece of land shall be deemed as 
 incumbered only in respect of the lien with which 
 it is properly chargeable. This sec. does not con- 
 template the consolidation of liens or extending the 
 
g!2 CHAPTER 140. 
 
 lien so as to becloud the title of. additional lands: 
 ' Dunn v. McCallum, 14 0. L. E. 249, 9 0. W. R. 756. 
 There can be a valid lien against several buildings 
 having different owners where a material man sup- 
 plies material under an entire contract: Ontario 
 Lime Association v. Grimwood, 22 0. L. R. 17, 2 
 O. W. N. 25, 16 0. W. R. 929. Claiming a lien on 
 too much property will not invalidate it altogether : 
 Ontario Lime Association v. Grimwood, 22 0. L. 
 R. 17. 
 
 19. The provisions of this section are confined to mat- 
 
 ters in sees. 17 and 18: Bruce v. National Trust, 
 4 O. "W. N. 1372. Substantial compliance: Crera v. 
 C. P. R., 5 0. L. R. 383; Grant v. Dunn, 3 O. R. 
 376 ; Makers v. Robinson, 6 0. R. 1 ; Robock v. Peters, 
 36 C. L. J. 354. ' ' Or other person ' ' means (prob- 
 ably) ejusdem generis, and does not include persons 
 other than the claimants who are themselves, and in 
 competition with him, claiming a lien against the 
 property: Barrington v. Martin, 16 0. L. R. 635, 12 
 0. W. R. 324. 
 
 20. Fee for registration. There is no provision for 
 
 increased fee in case of a number of lots being in- 
 cluded in one lien: Guthrie, 1897, p. 8. Proper fees 
 where claimant claims for himself and as assignee 
 of a number of others : 25c. for the first name, and 
 10c. for each alleged assignor: Guthrie, 1911, p. 22. 
 
 21. What is a valid registration: see Re Wallis and 
 Vokes, 18 0. R. 8. Priorities as between lienholder 
 and innocent purchaser for value without notice of 
 unregistered lien: Wanty v. Robins, 15 0. R. 474. 
 Lienholder and mortgagee: Robock v. Peters, 36 
 C. L. J. 354; Gauthier v. Larose, 38 C. L. J. 156;: 
 Cook v. Belshaw, 23 0. R. 545; Patrick v. Wal- 
 borne, 27 0. R. 221; Reinhart v. Shutt, 15 0. R. 
 325; Wanty v. Robins, 15 0. R. 474; Graham v. 
 Williams, 9 0. R. 458; Richards v. Chamberlain, 
 25 Gr. 402; McVein v. Tiffin, 13 A. R. 1; and see 
 notes to sec. 8 (3) ante. Lienholder and purchaser 
 under contract of purchase: Reggin v. Manes, 22" 
 0. R. 443. Lienholder and purchaser from mort- 
 gagee (not a party and selling under power of sale) :-. 
 
CHAPTER 140. 613 
 
 Finn v. Miller, Rathbone v. Miller, 22 C. L. J. 55. 
 The application of the Registry Act to liens: see 
 Armour, Titles, p. 244, et seq. 
 
 22. — (1) A claim for lien against the lands of a company 
 which is being wound up under R. S. C. 1906, ch. 144, 
 cannot be made without the consent' of the Official 
 Referee: See R. S. C. 1906, eh. 144, sec. 22. Where 
 such proceeding is taken without leave the lien will 
 be vacated with costs as irregular and unnecessary : 
 Re Haleybury Rink Co., 12 O. "W. R. 197. Where 
 contract to do work for a fixed sum and completion 
 a condition precedent to final payment: see as to 
 right of contractor to lien: Sherlock v. Powell, 27 
 A. R. 407; King v. Low, 3 0. L. R. 234. The time 
 limited for the registration of liens does not com- 
 mence to run until there has been such performance 
 of the contract as would entitle the contractor to 
 maintain an action for the whole amount due there- 
 under. Day v. Crown Grain Co., 39 S. C. R. 258. 
 Where under the contract the architects are the per- 
 sons to determine when the work is completed, it is 
 not so "completed until they signify their approval: 
 Vokes Hardware Co. v. G. T. R., 12 O. L. R. 344, 7 
 0. W. R. 537, 8 0. W. R. 24. 
 
 22. — (2) Furnishing or placing the last material, time for 
 filing lien for materials: Barrington v. Martin, 12 
 0. W. R. 324, 16 0. L. R. 637. History of this legis- 
 lation: see Barrington v. Martin, 16 0. L. R. 637, 
 12 0. W. R. 324. Such cases as Hall v. Hogg, 20 0. 
 R. 13; Morris v. Thrale, 24 0. R. 159, are said to be 
 no longer applicable since the amendment of 1896. 
 " Furnishing or placing the last material," means 
 the last material furnished by the material man 
 under his contract where there is a distinct contract : 
 Rathbone v. Michael, 14 0. W. R. 389, 19 0. L. R. 
 428, and see 1 0. W. N. 573, 15 0. W. R. 639. 
 Although an account of materials supplied may con- 
 sist of items for different lots supplied at different 
 dates on separate and distinct orders, the lien filed 
 within the time required after delivery of the last 
 lot will cover all orders if given in pursuance of a 
 previous general arrangement: Robock v. Peters, 
 36 C L. J. 354. It is essential, before the lien can 
 arise, that the material should be furnished and 
 
g!4 CHAPTER 140. 
 
 . placed upon the land upon which the lien is claimed : 
 Ludlam Ainslie v. Fallis, 12 O. W. E. 1270, 14 0. W. 
 B. 273, 19 0. L. E. 419. Materials furnished after 
 work is completed will not keep a lien alive : Benney 
 v. Dempster, 2 0. W. N. 1303, 19 0. W. E. 644. 
 Eemedying defects and doing immaterial work as 
 extending. time for registration : see Neill v. Carroll, 
 28 Gr. 30, 339; Summers v. Beard, 24 0. E. 641. 
 (Where the report of, Neill v. Carroll is corrected) ; 
 Booth v. Booth, 3 0. L. E. 294. Furnishing materials 
 of trifling value : Brooks Sanf ord v. Telier, 20 0. L. 
 E. 303, 22 0. L. E. 176. Effect of non-registration 
 of lien : see Wanty v. Eobins, 15 0. E. 474. 
 
 22. — (5) "Where the engineer who is made arbiter of 
 disputes under a contract is, unknown to the con- 
 tractor, really the engineer of the employer, the con- 
 tractor is not bound: Good v. T. H. & B., 26 A. E. 
 133. The relationships, family and financial, of the 
 superintendent (on whose certificate work was paid 
 for), should have been disclosed: per Armour, 
 C.J.O., Ludlam v. "Wilson, 2 0. L. E. 549. Archi- 
 tects' certificate, completion of work and time of 
 registering: Yokes v. G. T. E., 12 0. L. E. 344; notetT 
 ante, sec. 22 (1). 
 
 23. Action to realize claim: McPherson v. Gedge, 4 0. 
 
 E. 246; Hovenden v. Elison, 24 Gr. 448. Parties: 
 Hall v. Hogg, 14 P. E. 45; Wood v. Stringer, 20 0. 
 E. 148. Proceedings by other persons: Bunting v. 
 Bell, 23 Gr. 584; Ee Sear v. Woods, 23 0. E. 474, 
 
 24. The Master in Chambers has jurisdiction to enter- 
 
 tain a motion to annul registration of a lien: Ee 
 Moorehouse v. Leake, 13 0. E. 290. Premature pro- 
 ceedings: Burritt v. Eenihan, 25 Gr. 183. Ninety 
 days : Briggs v. Lee, 2*7 Gr. 464. Applies to a mort- 
 gagee and that whether proceedings have or have 
 not been previously taken against the owner : Bank 
 of Montreal v. Haffner, 10 A. E. 592 : see S. C, 29 
 Gr. 319. The action which is necessary to be begun 
 to save the lien from absolutely ceasing to exist 
 must have as parties to it all persons whose rights 
 or interests are sought to be affected, unless accord- 
 ing to the ordinary practice of the Court such per- 
 sons may be added as defendants after judgment. 
 
CHAPTER 140. 615 
 
 That, I understand, is the effect of the judgments of 
 the Court of Appeal in Bank of Montreal v. Haffner 
 (1884), 10 A. E. 592, affirmed by the Supreme Court 
 (Cas. Dig. 526), and Cole v. Hall; per Meredith, 
 C.J., Larkin v. Larkin, 32 0. R. 80. A prior mort- 
 gagee against whom relief is sought must be made 
 a party "within the time limited by the section : Lar- 
 kin v. Larkin, 32 0. R. 80. An incumbrancer was 
 improperly added a party in the Master's office after 
 the expiration of the 9U days: Cole v. Hall, 13 
 P. R. '100. Filing a defence not a proceeding 
 to realize: a counterclaim if properly framed and 
 a certificate registered might be: Macnamara v. 
 Kirkland, 18 A. R. 271. The 90 days allowed by 
 this section are not to be computed exclusively of 
 long vacation: Canada Sand Lime v. Ottaway, 15 
 O. L. R. 128, 10 O. W. R. 686, 788. A lienor who 
 registers a claim must be taken to have abandoned 
 all relief, but what he can obtain under this section : 
 Eadie Douglas v. Hitch, 4 O. W. N. 147, 27 O. L. R. 
 257. The words " unless in the meantime," in sub- 
 sec. 2, do not mean " between the time of register- 
 ing the claim and the expiry of the time limited ; but 
 any proceeding taken during the existence of the 
 lien (at all events), is taken "in the meantime," 
 within the meaning of the section if taken before the 
 expiration of the periods mentioned in the section? 
 Eadie-Douglas v. Hitch, 27 0. L. R. 257. 
 
 26. Assignment of claim must be for the whole claim, not 
 
 a part of it: Seaman v. Canadian Stewart Co., 18 
 0. W. R. 56, 2 0. W. N. 576. Assignment of claim 
 and re-assignment : Currier v. Friedrick, 22 Gr. 243. 
 
 27. Fees for registering lien or discharge affecting many 
 lots : see Guthrie, 1897, p. 8. Two or more liens can- 
 not be discharged in one discharge: Guthrie, 1897, 
 p. 8. 
 
 28. This section of the Act makes a change in the law: 
 
 for former law see Edmunds v. Tiernan, 1892, 21 S. 
 C. R. 406; National Supply Company v. Horobin, 
 1906, 4 W. L. R. 570. The new statute will pre- 
 vent similar questions arising as to the effect of the 
 negotiation of a note given for part of the debt: 
 Brooks-Sandf ord v. Telier, 22 0. L. R. 176. A plain- 
 tiff cannot move before trial in a proceeding under 
 
616 
 
 CHAPTER 140. 
 
 this Act for a personal judgment : Robertson v. Bul- 
 len, 13 0. W. R. 56; but lie can bring a personal ac- 
 tion as well if he so desires, the Court seeing that the 
 defendants are not unduly burdened with costs: 
 Hamilton Bridge Works v. General Contracting Co., 
 14 0. W. R. 646, 1 0. W. N. 34. 
 
 31.— (1) Style of cause of proceedings under this Act: 
 see Con. Rule 1235; 1913, Rule 190 (3). Procedure 
 is the ordinary procedure of the Supreme Court: 
 see Larkin v. Larkin, 32 0. R. 80; Hall v. Pilz, 11 
 P. R. 449 ; Truax v. Dixon, 13 P. R. 279. Nature of 
 procedure: see Canada Sand Lime v. Ottaway, 10 0. 
 W. R. 686, 788 ; Canada Sand Lime v. Poole, 10 0. W. 
 R. 1041; Bruce v. National Trust, 24 0. W. R. 688,^ 4 
 O. W. N. 1372. Long vacation is not to be excluded in 
 computing the 90 days allowed by sec. 24: Canada 
 Sand Lime v. Ottaway, 10 0. W. R. 686, 788, 15 
 0. L. R. 128. The limitations of sees. 42, 43 and 44 
 shew that interlocutory motions are not contem- 
 plated by the procedure under this Act: Rowlin v. 
 Rowlin, 9 0. W. R. 297. Motion to dismiss in de- 
 fault of discovery: Ramsay v. Graham, 3 0. W. N. 
 972. Production and discovery: "Wade v. Tellier, 
 13 0. W. R. 1132. The " ordinary procedure " in- 
 cludes the right of appeal from a Master's report: 
 Wesner v. Tremblay, 13 0. W. R. 544, 18 0. L. R. 
 439. The Act does not contemplate a trial by jury : 
 see the original Act, 36 Vict. ch. 27, sec. 6. While 
 a jury notice does not violate any rule, the practice 
 is against it, and such a notice was struck out as a 
 matter of discretion in Trussed Steel Concrete Co. 
 v. Wilson, 9 0. W. R. 238. Where a claim was 
 registered and proceedings taken to enforce it in 
 the name of a firm which had been dissolved and one 
 member had died previous to registration, the lien 
 attached and was validly continued; the word claim- 
 ant covering the difficulty arising out of the word 
 " person:" Bickerton v. Dakin, 20 0. R. 192, 695. 
 Statement of claim in M. L. proceedings in long vaca- 
 tion: (1913) Rule 178. 
 
 31. — (2) Affidavits verifying statement of claim may be 
 made by solicitor or agent : Crerar v. C. P. R., 5 0. 
 L. R. 383. Statement of claim fded without affidavit : 
 Bruce v. Nat. Trust, 4 0. W. N. 1372. The provi- 
 sions of Con. Rule 522; 1913 Rule 297, apply: The 
 
CHAPTER 140. 617 
 
 affidavit cannot be sworn before the lienor's solici- 
 tor : Canada and Lime v. Poole, 10 0. W. E. 1041. 
 
 31— (3) Since 1893 the word " writ " in Con. Eule 162; 
 1913 Eule 25, includes any document by which a 
 matter or proceeding is commenced. Service out of 
 the jurisdiction can therefore be made of a state- 
 ment of claim filed under this section. Prior to this : 
 see Pennington v. Morley, 3 0. L. E. 517 : see also 
 Mclyer v. Crown Point, 19 P. E. 335. Substituted 
 service of statement of claim : Eestall v. Allen, 3 0. 
 W. N. 63. When an action is begun by filing a state- 
 ment of claim, the plaintiff cannot include other 
 causes of action and other matters: Bagshaw v. 
 Johnston et al., 3 0. L. E. 58. The Master or Official 
 Eeferee should be judicially satisfied that the facts 
 manifest a valid claim; but if any one claimant is 
 omitted, he has a general power of amendment if 
 the facts and circumstances warrant it : Orr v. Davie, 
 22 0. E. 430. Amendment of statement of claim: 
 Bickerton v. Dakin, 20 0. E. 192. Circumstances 
 under which Con. Eule 353 (1913, Eule 176), may be 
 invoked to enlarge time for serving claim: Pease 
 Heating Co. v. Buhner, 12 0. W. E. 258. 
 
 32. " Groups:" see Crerar v. C. P. P., 5 0. L. E. 383. 
 
 Class of lienholders : see McPherson v. Gedge, 4 0. 
 E. 246. A suit brought by a lienholder operates for 
 the benefit of all of the same class, so that a suit 
 instituted by one within 30 days keeps alive all 
 similar liens then existing: Hovenden v. Ellison, 24 
 G-r. 448. Whatever rights may be given by section 
 18 for joining claims for liens, the right, if any, to 
 bring one action in respect of separate properties 
 and owners, depends on the general practice of the 
 High Court: Dunn v. McCallum, 14 0. L. E. 249, 9 
 0. W. E. 756. In an action begun by statement of 
 claim to enforce a lien, it is improper to join a 
 claim against the architect for fraudulently refus- 
 ing his final certificate: Bagshaw v. Johnston, 3 0. 
 L. E. 58. 
 
 33. Eight of summary disposition of mechanics' lien by 
 
 County Court Judge, assuming jurisdiction exists, 
 should be sparingly exercised: General Contracting 
 Co. v. Ottawa, 1 0. W. N. 911. 
 
 34. When the Official Eeferee is once seized of the case 
 
 and the trial begun, all applications should be made 
 
Gig CHAPTER 140. 
 
 to him directly as controlling the entire procedure : 
 Wade v. Tellier, 13 0. W. R. 1132. The officer try- 
 ing the action has jurisdiction to deal with questions 
 of priority : Gauthier v. Larose, 38 C. L. J. 156. The 
 amount due from the owner to the contractor should 
 be paid into Court by the owner less his costs which 
 should be taxed as a stakeholder watching the case. 
 The costs of lienholders should be paid as a first 
 • charge on the fund. Costs of lienholders subse- 
 quent to judgment should be taxed on a scale appro- 
 priate to the amount found due to each: Hall v. 
 Hogg, 14 P. E. 45. An owner paid into Court a sum 
 due a contractor which was insufficient to pay lien- 
 holders. An appeal was taken by the contractor un- 
 successfully, and he was ordered to pay the owner's 
 costs. The owner wished to claim on the fund in 
 Court, but was held not entitled to do so : Patten v. 
 Laidlaw, 26 0. E. 189. The assignee of an un- 
 registered lienholder relying on an action brought 
 by a number of unregistered lienholders, took no 
 steps to enforce his lien or apply for a certificate. 
 The action was dismissed and the assignee was al- 
 lowed to intervene and prosecute the action: Mc- 
 Pherson v. Gedge, 4 0. E. 246. Belief where defen- 
 dant did not appear: Guest v. Linden, 3 0. W. N. 
 750, 21 0. W. R. 303. 
 
 36. See McPherson v. Gedge, 4 0. E. 246, noted ante, sec. 
 34. 
 
 37. — (1) The Judge or officer fixing a day for the trial 
 of an action under this Act is to do so on application 
 to him, and a notice of trial given by a party who 
 has not obtained an appointment from the Judge or 
 officer is not effective. Notice of trial must be served 
 at least 8 clear days before the day fixed : Mclver v. 
 Crown Point, &c, 19 P. E. 335. An action was 
 brought to enforce a lien, and a counterclaim was 
 made for damages for breach of contract for the 
 supply of the materials in respect of which the lien 
 was registered. The action was discontinued and 
 the defendant obtained ex parte from an Official 
 Eef eree an order appointing a time for special trial 
 of the counterclaim before the Master in Ordinary. 
 It was held that there should have been notice to 
 fix a day for trial, that a judicial officer cannot give 
 an appointment for trial before another officer, and 
 the notice of trial and appointment were set aside. 
 
CHAPTER 140. gig 
 
 The counterclaim was proper : Pilkington v. Browne, 
 19 P. R. 337. Contractor's action for amount greater 
 than value of land ; power to stay : Dick v. Standard 
 Underground Cable Co., 23 0. W. R. 19; 4 0. W. N. 
 57, 111. Proceedings in action to enforce lien where 
 building left unfinished: Saltsman v. Berlin Robe 
 Co., 4 0. "W. N. 88. Action to enforce lien brought 
 before work completed; costs: Crown Art. Stained 
 Glass v. Cooper, 16 0. W. R. 634. 
 
 37. — (2) It is the persons who are incumbrancers at the 
 time fixed for service of notice of trial, and 
 those only, who are required to be served; service 
 of notice of trial on them being the mode by which 
 incumbrancers, not already parties to the proceed- 
 ings, are brought in : Haycock v. Sapphire, &c, 7 0. 
 L. R. 21. 
 
 37. — (3) Interest on principal sum found due where 
 there was unreasonable delay in payment is pro- 
 perly allowed and secured by the lien and should be 
 computed from commencement of the action : Metal- 
 lic Roofing Co. v. Jameson, 2 O.'W. R. 316. Adjudi- 
 cation of the claims of subsequent incumbrancers 
 and other lienholders where notice of trial has been 
 served after the time limited for bringing the action : 
 Robock v. Peters, 36 C. L. J. 354. 
 
 38. Costs of sale proceedings : Wesner v. Tremblay, 13 0. 
 
 W. R. 544, 18 0. L. R. 439. Position of purchaser 
 under sale proceedings under this Act as regards 
 undisclosed tax incumbrance: Wesner v. Tremblay, 
 13 0. W. R. 544, 1017, 18 0. L. R. 439. 
 
 39. Kelly Brothers v. Tourist Hotel Co., 15 0. W. R. 29, 
 
 1 0. W. N. 337, 20 0. L. R. 267. 
 
 40. The provisions of this section do not seem to cover 
 
 appeals from interlocutory orders or reports: see 
 also sees. 41-43, which go to shew that interlocutory 
 motions are not contemplated by the procedure under 
 this Act: Rowlin v. Rpwlin, 9 0. W. R. 297, H. & L. 
 notes, p. 1005. Appeals: see R. S. 0. 1914, ch. 56, 
 sec. 26 (2) (j). 
 
 42. The limitation on the amount of costs in this section 
 does not apply to the costs of an appeal from the 
 
620 CHAPTER 140. 
 
 decision of a Judge or officer trying the action. The 
 costs of such an appeal are, it seems, within the scope 
 of section 45: Gearing v. Eobinson, 19 P. E. 192. 
 Costs of appeal and of sale proceedings : Wesner v. 
 Tremblay, 13 O. W. E. 544, 18 0. L. E. 439. See 
 Eowlin v. Eowlin, 9 0. W. E. 297, noted ante. 
 
 43. " Actual disbursements " which may be allowed in 
 
 addition to an amount equal to 25 per cent, of the 
 claim, do not include counsel fees paid by the de- 
 fendant's solicitor to counsel retained in the course 
 of the proceedings and a fortiori, not counsel fees 
 charged by the solicitor himself when acting as 
 counsel: Cobban v. Lake Simcoe Hotel Co., 5 0. L. 
 E. 447. 
 
 44. Interlocutory motions in chambers are to be dis- 
 couraged : Eobertson v. Bullen, 13 0. W. E. 56. 
 
 46. Costs of an appeal are it seems within the scope of 
 this section: Gearing v. Eobinson, 19 P. E. 192. 
 
 48. Judgment with reference to ascertain rights of in- 
 cumbrancers and mortgagees and directing payment 
 into Court by mortgagees of increased selling value 
 and proceedings in default and distribution of pro- 
 ceeds: see Ludlam Ainslie Lumber Co. v. Fallis, 12 
 0. W. E. 1270. (S. C. 14 O. W. E. 273, 19 0. L. E. 
 419). 
 
 49. Application of section: see Simpson v. Eubecfc, 3 0. 
 
 W. N. 577. When proceedings are taken under the 
 Act, there can be no personal judgment {e.g., under 
 Con. Eule 603; 1913 Eule 57), until the percentage 
 required to be retained by the owner and the other 
 remedies prescribed by the Act are exhausted : Eob- 
 ertson v. Bullen, 13 0. W. E. 56 : see also Hamilton 
 Bridge Works v. General Contracting Co., 14 0. W. 
 E. 646. 
 
 50. For a lien to arise the creditor must have taken pos- 
 
 session of the debtor's property lawfully. A lien 
 cannot be acquired by a wrongful act: Madden v. 
 Kemster, 1807, 1 Camp. 12. Possession must be of 
 a continuous and uninterrupted nature: Kruger v. 
 Wilcox, 1753, Amb. 252; Tudor 's Leading Cases in 
 Mercantile Law, 353. See, however, Millburn v. 
 Millburn, 4 U. C. E. 179, where sending a wagon to 
 
 . :, i- 
 
CHAPTER 141. 621 
 
 a blacksmith's shop for ironwork did not invalidate 
 the wagonmaker's lien for repairs which revived 
 when he regained possession. The lien referred to 
 in the action is a particular lien. No power of sale 
 is given for a general lien. When an artificer's lien 
 arises, his remedy under the general law is to retain 
 possession of the chattel. This section enables him 
 to sell. The lien cannot arise from voluntary work. 
 The work must be completed unless completion is 
 prevented by the owner of the property. For form 
 of notice of sale, see Holmested, p. 309. A steam 
 shovel was borrowed and needing repairs, the lender 
 instructed the 'bailee to repair it, charge to him and 
 deduct from the rent of the shovel. The bailee had 
 no lien for repairs as the chattel had not come into 
 his possession for the purpose of repair, and the 
 agreement for payment excluded the lien: Barbeau 
 v. Piggott, 9 0. W. E. 234. Lien for repairs on 
 launch: Canadian Gas Power v. Schofield, 15 0. W. 
 E. 847. A person who has a dog-cart under a hire 
 purchase agreement has implied authority from the 
 owner to employ a coach builder to do necessary re- 
 pairs, and if he does so will create a lien in favour 
 of the coach builder, not only against himself, but 
 as against the owner of the dog-cart: Keene v. 
 Thomas, 1905, 1 K. B. 136. Mechanics' liens for re- 
 pairing property under conditional sale : see Article 
 48, C. L. J. 252. As to improvements to chattels 
 under mistake of title : see 42 Can. L. J., p. 329. See 
 E. >S. O. 207, sec. 27, for specific statutory lien on im- 
 pounded motor cars. 
 
 CHAPTEE 141. 
 
 The Woodmen's Lien fob Wages Act. 
 
 2. At present the Act applies to Haliburton (provisional 
 county), and to Algoma, Manitoulin, Thunder Bay, 
 Muskoka, Parry Sound, Eainy Eiver, Nipissing, 
 Sudbury, Temiskaming and Kenora. Territorial 
 Districts each forming a Provisional Judicial Dis- 
 trict, E. S. 0. 1914, ch. 3. 
 
 6. See Mechefeske v. Eobert Stewart Limited, 9 0. W. 
 E. 182. 
 
g 2 2 CHAPTERS 142, 143. 
 
 CHAPTEE 142. 
 The Public and Othbk "Wobks Wages Act. 
 
 CHAPTEE 143. 
 
 The Wages Act. 
 
 Eefer to Bieknell and Kappele, Practical Statutes, 
 p. 501. 
 
 # 
 
 2. Where a commercial traveller was employed at £2 
 
 per week and a commission of 4 per cent, on all 
 goods sold, the commission earned was held part 
 of his "salary" in bankruptcy proceedings: In 
 re Klein, 22 T. L. E. 664. See also where priority 
 allowed: Ee Morlock and Cline, 23 O. L. E. 165; Ee 
 S. E. Walker, Ltd., 25 W. L. E. 164 (Secretary and 
 Salesman) ; Ee Western Coal Co., 25 W. L. E. 26. 
 (Teamster employed to deliver coal at a rate per ton, 
 and using his own horses and wagons). Priority 
 not allowed, see Cairney v. Beck (1906), 2 K. B. 
 746 (note to sec. 3) ; In re Beeton (1913), 2 Ch. 279 
 (artist on fixed annual salary to supply drawings 
 as required) ; Ee Eitchie Hearn Co., 6 0. W. E. 474; 
 Ee Newspaper, etc., Syndicate (1900), 2 Ch. 349, 
 (managing director). See sec. 3, notes. 
 
 3. A secretary of a company who was also secretary of 
 
 another company devoting the greater part of his 
 time to the second company, was held not entitled 
 to priority in respect of his salary on bankruptcy 
 of the first company: Oairnely v. Beck, 75 L. J., 
 K. B. 1014, (1906) 2 K. B. 746, 22 T. L. E. 776. 
 Claims for arrears of salary made by persons oc- 
 cupying the position of president and vice-president 
 of a company under resolutions duly passed are 
 valid in liquidation in priority to the claims of the 
 general body of creditors: Fayne v. Langley, 31 
 O. E. 254. If employment has been duly authorized, 
 a director may have a preferential claim as clerk or 
 servant: Ee Beeton, Ltd. (1913) 2 Ch. 279; Ee Mor- 
 lock and Cline, 23 O. L. E. 165. The provisions of 
 this Act are wider than those of the Winding-up Act: 
 
CHAPTER 143. 623 
 
 Welch v. Ellis, 22 A. E. 255; Herman v. Wilson, 32 
 0. B. 60. Preference extends to any balance due 
 so long as the same does not exceed 3 months' 
 wages: McLarty v. Todd, 4 0. W. N. 172, 23 0. 
 W. E. 166. The assignee of a claim for wages has 
 the same right as the assignor: Ee Morlock and 
 Cline, 23 0. L. E. 165; Lee v. Friedman, 20 0. L. E. 
 49. This rule prevails, even if assignments of wages 
 were made before the assignment for benefit of credi- 
 tors, and the assignee of the wages has got in a 
 large number of claims: Porterfield v. Hodgins, 5 
 0. W. N. 162, 29 0. L. E. 409, 6 O. W. N. 2. But if 
 no assignments are taken, the agent of the debtor 
 paying wage claims can assert no priority: East- 
 ern Trust v. Boston Biehardson, etc., Co., 5 E. L. E. 
 558. Where an employer arranged that as part of 
 his employees' wages, he would pay their board, the 
 boarding-house keeper could not assert a priority 
 claim for wages: Olson v. Machin, 4 0. W. N. 287, 
 23 0. W. E. 531. Wages in case of winding-up : see 
 Ontario Companies Act, E. S. 0. 1914, ch. 178, sees. 
 174, 193. 
 
 4. Executions against goods subsequent to the making 
 
 of a chattel mortgage, attach only on the equity of 
 redemption and are not entitled under the Creditors 
 Belief Act to share with executions prior to the 
 giving of the mortgage, and the fact that they are 
 on judgments for wages, gives such subsequent 
 executions no priority. They can take nothing until 
 the chattel mortgage and prior executions are satis- 
 fied in full: Eoach v. McLachlin, 19 A. E. 496. 
 
 5. This section applies where an attachment is made 
 
 by the Sheriff under the Absconding Debtors Act, 
 E. S. 0. 1914, ch. 82. But when the attachment is 
 made under the provisions of the Division Court's 
 Act, E. S. 0. 1914, ch. 63, sec. 199, et seq., the credi- 
 tors share alike: see sec. 207, B. & S. notes, p. 450. 
 
 6. As to proving claims in administration: see Con. 
 
 Eules 703-715, H. & L. notes, pp. 919-924, 1913 Eules 
 435, et seq. 
 
 7. See E. S. 0. 1897, ch. 60, sec. 180, Bicknell and Seager, 
 
 notes, pp. 330, 331, E. S. 0. 1914, ch. 63, sees. 146, 147, 
 and notes. See Con. Eule 911, H. & L. notes, 
 " Moneys not attachable," pp. 1154-5, 1913 Eule 
 590. 
 
g24 CHAPTER 144. 
 
 CHAPTEE 144. 
 
 The Masteb and Servant Ac*. 
 
 Eefer to Addison on Contracts; Bnllen and Leake's 
 Pleadings; Macdonell, Master and Servant; Smith, 
 Master and Servant; Labatt, Master and Servant; 
 Bicknell and Kappele, Practical Statutes, p. 311. 
 
 2. See as to " contracts of continuous service," Cutter v. 
 Powell, 2 Smith's Leading Cases, p. 1 and notes. 
 
 3. — (1) Allegation of partnership. Defence of special 
 agreement by which the defendant was to be re- 
 munerated by a share of the profits in lieu of wages 
 or salary. Held on appeal that it was not neces- 
 sary to plead the statute more specifically: Neil 
 v. Park, 10 P. E. 476. Agreement for share of pro- 
 fits : Bartlett v. Bartlett Mines, 3 O. W. N. 958. See 
 Con. Eule 271, (1913) Eule 143. 
 
 3. — (2) A statement of profits furnished by a master 
 to his servant where there is an agreement within 
 the statute to share profits, is impeachable for fraud. 
 Fraud being alleged, production of the document in 
 the possession of the master shewing the basis of 
 the statement of net profits will be ordered: Cut- 
 ten v. Mitchell, 10 0. L. E. 734; see Formularo v. 
 Forest City Laundry (not reported), referred to 13 
 0. L. E. 187; Eogers v. Ullman, 27 Gr. 137. The 
 drastic provision that the servant is bound to accept 
 the master's statement as to profits is to be con- 
 strued strictly. It is for the benefit of the em- 
 ployer and the employer must bring himself strictly 
 within its provisions. Even under the Statute of 
 1897, the statement was impeachable for fraud: 
 Cutten v. Mitchell, 10 0. L. E. 734. The employer's 
 statement is now by the express words of the 
 statute impeachable. As to what is meant by fraud 
 in the statute: see Washburn v. Wright, 5 O. W. 
 N. 515. _ The consideration of the matter of the 
 production should be postponed till it has been pro- 
 perly determined whether the agreement set up is 
 within the statute, and, if it is, whether the state- 
 ment of profits can be impeached for fraud, error, 
 
CHAPTER 144. 625 
 
 mistake, or other like cause: Engeland v. Mitchell, 
 9 0. W. E. 31, 13 0. L. E. 184. 
 
 4. — (1) The Act does not apply to the case of school 
 trustees and school teachers: Ee Joice, 19 U. C. 
 E. 197. Associate justices: The justice issuing a 
 summons returnable before himself " or such other 
 justices as might then be present," has [no ex- 
 clusive right to deal with the case : E. v. Milne, 25 
 C. P. 94. Certiorari : Ee Sullivan, 8 L. J. 276. The 
 proceedings must disclose the relation of master and 
 servant or an offence punishable under the Act in 
 order to shew jurisdiction in the convicting justice : 
 McDonald v. Strickey, 31 U. C. E. 577. The con- 
 viction must shew that the person against whom 
 the complaint is lodged was a servant, that the com- 
 plaint was " upon oath," and in what manner the 
 wages are due: Helps v. Eno, 9 L. J. 302. What 
 amounts to a sufficient hiring to give a magistrate 
 jurisdiction: E. v. Walker, 21 U. C. E. 34. An 
 order for payment of money under this Act is not 
 a conviction of which it is necessary to make a re- 
 turn : Eanney, q. t. v. Jones, 21 U. C. E. 370. Quash- 
 ing conviction: Delay of more than six months 
 before conviction quashed. Protection of convict- 
 ing justice : Ee Joice, 19 U. C. E. 197. A magistrate 
 has no jurisdiction to order payment of wages for 
 any period after the discharge of the servant : Swan- 
 nick v. Katinsky, 14 0. W. E- 537, 19 0. L. E. 407. 
 Applies to Police Magistrates: Ee O'Neill and 
 Duncan, 13 O. W. E. 511, 648. Justifiable dismis- 
 sal: Eight to wages: (1) Earned and overdue. (2) 
 Earned and not payable : see Annotations, 8 D. L. E. 
 382. See note on rights and liabilities of master and 
 servant: Bicknell & Seager D. C. Act, pp. 117-120. 
 Eight of minor to sue for wages : see E. S. 0. 1897, 
 ch. 60, sec. 78, see B. & S. note, p. 117, E. S. 0. 1914, 
 eh. 63, sec. 66. , 
 
 4. — (3) When a justice was shewn that the hiring had 
 been terminated more than a month and was given 
 warning that he bad no jurisdiction, but neverthe- 
 less made a conviction, the jury rightly found that 
 he did not act bona fide in the execution of his duty: 
 Cummins v. Moore, 37 U. C. E. 130. 
 
 S.A.— 40 
 
g2g CHAPTERS 145, 146. 
 
 9. Applies to decisions of Police Magistrates: Re 
 O'Neill and Duncan, 13 0. W. E. 511, 648. An 
 abortive attempt to enter appeal to a Division 
 Court is no bar to right to move for prohibi- 
 tion to Magistrate: Swanick v. Katinsky, 14 0. 
 W. B. 537, 19 0. L. E. 407. Power to amend notice 
 of appeal: see Ee Coe v. Coe, 21 O. E. 409. 
 
 CHAPTEE 145. 
 The Trades Disputes Act. 
 
 CHAPTEE 146. 
 
 The Workmen's Compensation for Injuries Act. 
 
 Eefer to Holmested (Ont.) ; Buegg, The Employers' 
 Liability and Workmen's Compensation Acts (Can. 
 Ed.) 
 
 2. — (/) A. hired by the day the general servant and 
 horse and wagon of B. for use in A.'s business, and 
 while so hired and while delivering A.'s goods the 
 servant knocked a man down and injured him. It 
 was held that A. was not liable in damages for the 
 injury and that the driver remained the general 
 servant of B. from whom he was hired and not 
 that of A.: Caston v. Consolidated Plate Glass, 
 26 A. E. 63, 29 S. C. E: 624. Where a shipping 
 company employ a contractor to unload their ship 
 and appoint certain of the crew to assist in the un- 
 loading, it is a question of fact whether the mem- 
 bers of the crew were under the orders and control 
 of the contractor's foreman or not: Union S.'S. Co. 
 v. Claridge, 1894, A. C. 185. Owners of a colliery 
 held not liable for injury to workman of independent 
 contractor: Fitzpatrick v. Evans (1902), 2 K. B. 
 505; Marrow v. Flimby & Co. (1898), 2 Q. B. 88; 
 
 2. — (i) This sub-section is given a wide interpretation: 
 Cox v. Great Western By., 9 Q. B. D. 106; Gibbs 
 v. Great Western Ey., 11 Q. B. D. 22 ; McCord v. 
 
CHAPTER 146. 627 
 
 Cammill, 1896, A. C. 57; Warren v. Macdonnell, 
 10 0. W. E. 614. 
 
 2. — (j) No implied right of superintendence arises from 
 length of service or skill, and the. employer is not 
 liable if one workman, presuming on length of 
 service or skill, directs a fellow workman to do 
 certain work in an unsafe manner and injury 
 results: Garland v. Toronto, 27 O. E. 154, 23 A. 
 E. 238. Where three workmen were employed to 
 rivet boilers, the first to heat the rivets, the second 
 to place them in position and the third to operate 
 a hydraulic hammer to fasten them, the man who 
 used the hydraulic hammer was held in effect neces- 
 sarily entrusted with the superintendence of the 
 whole operation: Shea v. Inglis Co., 12 0. L. E. 
 80. A mason and the man who brings him mortar 
 are fellow workmen exercising their own judgment 
 as to the proper means of accomplishing their 
 object, and the mason is not a person to whose 
 orders the other is bound to conform : Ferguson v. 
 Gait School Board, 27 A. E. 480. What amounts 
 ^ to superintendence: Magnussen v. LAbbe, 20 O. 
 W. E. 502, 3 O. W. N. 301, 21 0. W. E. 376, 3 0. 
 W. N. 864. Foreman or partner : see Kitts v. Phil- 
 lips, 10 0. W. E. 986. " Master Mechanic " does 
 not import superintendence: Cameron v. Eoyal 
 Paper Mills, 39 S. C. E. 365. " Superintendence:" 
 see Darke v. C. G. Electric, 20 0. W. E. 587, 3 0. 
 W. N. 368, 21 O. W. E. 583, 3 0. W. N. 817; Negro 
 v. Donati, 4 O. W. N. 453, 23 0. W. E. 438; Brulott 
 v. G. T. P. 19 0. W. E. 514, 24 0. L. E. 154, 21 0. 
 W. E. 206; Eagle v., 'Meade, 4 0. W. N. 948; 
 Demers v. Nova Scotia Silver, 3 0. W. N. 1206, 22 
 O. W. E. 97, and see notes to sec. 3 (6) post. 
 
 2. — (k) A bookkeeper in a factory is not a " workman:" 
 Miller v. Monarch Mfg. Co., 12 0. W. E. 14. A 
 practical chemist whose work involved manual 
 labour and scientific knowledge, held not a " work- 
 man:" Bagnall v. Levinstein, 1907, 1 K. B. 531. 
 "Workman," Bargeman, Seaman: see Corbett v. 
 Pearce, 1904, 2 K. B. 422. The Act applies to sailors 
 on lake steamers: Frawley v. Hamilton Steamboat 
 Co., 10 0. W. E. 308; see Hedley v. Pinkney, 1892, 
 1 Q. B. 58, 1894, A. C. 222. Manager who is paid 
 
g2g CHAPTER 146. 
 
 a yearly salary but does not do any manual labour 
 is not a "workman:" Simpson v. Ebbw Vale 
 Steel Co., 1905, 1 K. B. 453. Working partner not 
 a " workman:" Ellis v. Ellis & Co., 1905, 1 K. B. 
 324. Independent contractor not a "workman:" 
 Vamplew v. Parkgate Iron Co., 1903, 1 K. B. 851. 
 Tbe driver of a motor omnibus is an artificer or 
 handicraftsman and therefore a "workman:" 
 Smith v. Associated Omnibus Co., 1907, 1 K. B. 
 916. " Servant in husbandry." Engagement to dig 
 a drain on a farm. How far a question of fact 
 rather than of law : Beid v. Barnes, 25 0. R. 223. 
 In English cases under the Employers Liability Act 
 (1880), the following persons were held not within 
 the scope of that Act: e.g., a grocer's assistant 
 (Bound v. Lawrence, (1892) 1 Q. B. 226) ; Omnibus 
 conductor (Morgan v. London General Omnibus Co., 
 13 Q. B. 832) ; Tram car driver (Cook v. North Metro- 
 politan Tramways, 18 Q. B. D. 683), Underhill: 
 Art. 94. 
 
 3. — (a) Common law and statutory liability. The con- 
 tract between the employer and employed in- 
 volves on the part of the former the duty of tak- 
 ing reasonable care to provide proper appliances 
 and to maintain them in a proper condition. If the 
 master knowingly does not perform this duty, he 
 is* guilty of negligence. Where a master has pro- 
 vided proper appliances and done his best to main- 
 tain them in a state of efficiency, if the appliances 
 become unsafe and the man was injured, no action 
 lies unless he avers and proves that the master 
 knew of their having become unsafe and the man 
 was ignorant of it: Williams v. Birmingham Bat- 
 tery Co., 1899, 2 Q. B. 338; Matthews v. Hamilton 
 Powder Co., 14 A. R. 261. " What the master is 
 bound to the servant to do in the event of his not 
 personally superintending and directing the work 
 is to select proper, competent persons to do so, and 
 to furnish them with adequate materials and re- 
 sources for the work. When he has done this he 
 has done all he is bound to do:" per Lord Cairns, 
 Wilson v. Merry, L. R. 1 H. L. Sc. 326. These* 
 words are clearly not intended to cover cases aris- 
 ing out of the master's liability for injuries caused 
 by defects in the system or in the condition of his. 
 
CHAPTER 146. 629 
 
 premises or machinery, which he either knew or 
 ought to have known about, and of which the injured 
 servant was ignorant: Johnson v. Lindsay & Co., 
 1891, A. C. 371, pp. 379, 385-7; Traplin v. Canada 
 "Woolen Mills, 35 S. C. E. 424, at p. 432 : see Eajotte 
 v. C. P. E., 5 Man. L. B. 297, 365; Matthews v. Ham- 
 ilton Powder Co., 14 A. E. 261; Wood v. C. P. E., 6 
 
 B. C. E. 561, 30 S. C. E, 110; Sim v. Dominion Fish 
 Co., 2 0. L. E. 69. A broad distinction lies be- 
 tween the liability of the master for his personal 
 negligence or for the condition of his premises and 
 machinery, and that arising out of the negligence 
 in the management or operation of that machinery 
 by the servants to whom he has entrusted it: per 
 Davies, J., Traplin v. Canada Woolen Mills, 35 S. 
 
 C. E. 424, at p. 431. Where a master employs his 
 servant in a work of danger he is bound to exercise 
 due care to have his tackle and machinery in a safe 
 and proper condition so as to protect the servant 
 against any unnecessary risks: Bartonshill Coal 
 Co. v. Eeid, 3 Macq. H. L..266; Smith v. Baker, 
 1891, A. C. 325. A master is no less responsible 
 to his workman for personal injuries occasioned by 
 a defective system of using machinery than by a 
 defect in the machinery itself: Smith v. Baker, 
 1891, A. C. 325. Liability under the statute and 
 not at common law where unusual work is being 
 done when accident occurs: Hicks v. Smith Falls 
 E. P. Co., 5 0. W. N. 301, 25 0. W. E. 294. Em- 
 ployers' common law obligation to provide safe and 
 proper places where employees may work : see Mc- 
 Dougall v. Ainslie Mining Co., 42 S, C. E. 420. 
 
 Defective system: The fact that for many years 
 an operation has been carried on in the same 
 way and with the same appliances, while strong 
 evidence in the master's favour, is not conclusive, 
 and if there is evidence that the system is defective 
 the case must go to the jury : Commeford v. Empire 
 Limestone Co., 11 O. L. E. 119. The fact- that the 
 same work with the same appliances had been car- 
 ried on for 15 years without an accident is strong 
 but not' conclusive evidence. Notwithstanding this 
 long immunity, the danger may have always been 
 obvious and the defect one- whieh should have been 
 guarded against: Bisnaw v. Shields, 7 0. L. E. 
 
g30 CHAPTER 146. 
 
 210. The test as to what safeguards are proper 
 is not what has previously happened, or what the 
 defendant or even the plaintiff expect, but what 
 would a reasonable man -making a reasonably care- 
 ful examination of the plant and considering reason- 
 ably all possible chances, consider might be expected 
 to happen : Fisher v. International Harvester Co., 
 12 0. W. B. 1126. Evidence of no former accident 
 is competent for the purpose of shewing reasonable 
 care but not as conclusively rebutting negligence 
 Fletcher v. Baltimore & Potomac, 168 U. S. 135 
 Lane v. Hancock, 74 N. Y. Sup. Ct., (67 Hun.) 623 
 Jarvis v. Brooklyn Electric, 16 N. Y. Supp. 96 
 Coupland v. Hardingham, 3 Camp., 398. It is 
 strong evidence against a plaintiff who alleges that 
 a machine was defective in a certain particular, that 
 no machine is on the market or known to the trade 
 having any such contrivance as the plaintiff alleges 
 should have been supplied. Absence of evidence of 
 complaints of the machine acting in an unexpected 
 or irregular manner, and of accidents happening 
 to persons using it, are also to be noted : McCarthy 
 v. Kilgour, 7 0. W. E. 44, 8 0. W. E. 515. A 
 negligent system or a negligent mode of using per- 
 fectly sound machines may make the employer liable 
 quite apart from any provisions of the" Employers 
 Liability Act: Smith v. Baker, 1891, A. C. 325, at 
 p. 339. The contract between employer and em- 
 ployee involves on the part of the former the duty 
 of taking reasonable care to provide proper appli- 
 ances and to maintain them in a proper condition 
 and so to carry on his operations as not to subject 
 those employed by him to unnecessary risk: Smith 
 v. Baker, 1891, A. C. 325, at p. 362; Williams v. 
 Birmingham, 1899, 2 Q. B. 338. Where the accident 
 was due to the " general dilapidation of the plant," 
 (an elevator in this case), the company was held 
 liable at common law: Traplin v. Canada Woollen 
 Mills, 35 S. C. E. 424. Admissibility of evidence 
 of working of machine subsequent to accident to 
 shew its defective structural condition or disrepair 
 at the time of the accident : Green v. Kilgour Bros., 
 11 0. W. B. 752. Where the accident is caused by 
 the plaintiff, a skilled workman using the ordinary 
 appliances he was used to, misplacing a jack, he 
 
CHAPTER 146. Q31 
 
 could not recover, although better appliances con- 
 ceivably might have been supplied: Bainard v. M. 
 C. E. R., 13 0. W. R. 112. Defective system; expos- 
 ing workmen to unnecessary danger: Griovinazzo v. 
 C. P. R., 13 0. W. R. 24, 1200, 19 0. L. R. 325. De- 
 fect in machinery or system : Maitland v. Mills, 4 0. 
 W. N. 557, 23 0. W. R. 688. Defect in plant: Wal- 
 berg v. A. C. Stewart & Co., 3 0. W. N. 402. Defec- 
 tive system: Plocks v. Can. Northern, 3 0. W. N 
 381; Portilance v. Milne, 4 0. W. N. 589. 
 
 Defects in the ways, works, machinery, etc.: 
 Where a man was sent to shingle a roof and, rely- 
 ing on some cleats that were there and defectively 
 fastened, was injured, it was held that this was a 
 defect in the ways, works, etc. In this case the cleats 
 were put on as a separate piece of work. If the 
 plaintiff had been the workman entrusted with the 
 duty or even one of a number of workmen, different 
 considerations would apply: Markle v. Donaldson, 
 7 0. L. R. 376, 8 0. L. R. 682. An employee was 
 dragging a heavy box of fish according to the usual 
 practice, when the handle, which was constructed of 
 poor material, broke and the man fell overboard and 
 was drowned. It was held that even at common law 
 the defendants were bound to furnish their men with 
 material and plant in a sound and proper condition 
 and were liable : Sim v. Dominion Fish Co., 2 0. L. 
 R. 69. A brakeman was killed by being thrown from 
 a train owing to the loosening of a defective brake 
 wheel. It was part of the brakeman 's duty to ex- 
 amine the brakes and see that they were in good 
 order before starting the train. The defendants were 
 not liable : Fawcett v. C. P. R., 8B.C.E 393, 32 S. 
 C. R. 721. For a railway company to permit grass 
 and weeds to grow on a side track is not such negli- 
 gence as will make it liable to compensate an em- 
 ployee who is injured in consequence of such growth 
 while on the side track in the course of his employ- 
 ment: Wood v. C. P. R. 6 B. C. R. 561, 30 S. C. R. 
 110. A plank laid down across a temporary opening 
 in the floor is a " way," and if the plank is cross 
 grained and knotty so as to break and injure a work- 
 man carrying a load across it, that is a " defect " 
 for which the employer is liable : Caldwell v. Mills, 
 
032 CHAPTER 146. 
 
 24 0. E. 462. A public street in a defective condi- 
 tion used by an employer in connection with his busi- 
 ness is not a ' ' way used in the business of the em- 
 ployer:" Stride v. Diamond Glass, 26 0. R. 270. 
 A contractor who, pursuant to the terms of a sub- 
 contract, supplies a sub-contractor with a machine 
 to use in his work, is not liable to one of the sub- 
 contractor's workmen for a patent defect in the 
 machine which has been accepted and used by the 
 sub-contractor without objection: Smith v. Onder- 
 donk, 25 0. E. 171. A machine perfect in itself is, if 
 applied to some purpose for which it is unfitted, de- 
 fective within the Act : Wilson v. Qwen Sound Port- 
 land Cement, 27 A. E. 328. Where the accident hap- 
 pened through the plaintiff's attempt to pull a sliver 
 of wood out of a revolving roller not in itself de- 
 fective, the defendants are not liable: Allard v. 
 Cleveland Saw Mills Co., 12 0. W. E. 729. An un- 
 packed frog in the defendant's private railway is a 
 defect in the condition of works within the Act: 
 Cooper v. Hamilton Steel, 8 0. L. E. 353. The omis- 
 sion to have a lock at a railway switch, not otherwise 
 securely guarded, situate near a much travelled high- 
 way is such negligence as to make those having con- 
 trol of the railway liable in damages for the death 
 of their servants, resulting from the switch becom- 
 ing misplaced : Eombough v. Balch, 27 A. B.»32. Fail- 
 ure to repair a defective petcock, which was the real 
 cause of the disaster, was held negligence under the 
 Act, from the consequences of which " common em- 
 ployment " is no defence : Woods v. Toronto Bolt and 
 Forging Co., 11 0. L. E. 216. Negligence of a street 
 railway company may consist in the absence of buf- 
 fers to protect employees from injury in coupling 
 cars : Bond v. Toronto Eailway, 22 A. A. 78, 24 S. 
 C. E. 715. Injury to carpenter through giving way 
 of a stay in a scaffolding, the defect not bein.sr dis- 
 covered through the negligence of a foreman : Kelly 
 v. Davidson, 31 0. E. 521, 32 0. E. 8, 27 A. E. 659. 
 Negligence of sawmill owner in not protecting open- 
 ing in floor:. Talon v. Price, 32 S. C. E. 123. (See 
 Ferguson v. Gralt Public School Board, 23 A. E. 480.) 
 A workman in the employ of the B. railway was 
 killed in consequence of the defective condition of 
 a truck of the C. railway which had been lent in the 
 
CHAPTER 146. 533 
 
 ordinary course of railway exchange to the B. rail- 
 way. Held that C. railway not liable to workman's 
 representative: Caledonian Eailway v. Mulholland, 
 1898, A. C. 216. Absence of side-guard from saw- 
 bench held a defect: Tate v. Latham, 1897, 1 Q. B. 
 502. The open joists of a floor of a house in course 
 of construction across which a labourer has to pass 
 in carrying out an order of his foreman do not con- 
 stitute a " way ": McGowan v. Smith, 1907, S. C. 
 548 (Ct. of Sess.). Duty of master to provide safe 
 gangway: Christie v. Bichardson, 15 0. W. B. 802, 
 1 G. W. N. 689, 16 0. W. B. 961, 2 0. W. N. 42. De- 
 fect in platform : McKeand v. C. P. B., 16 0. W. B. 
 664, 18 0. W. B. 309, 1 0. W. N. 1059, 2 0. W. N. 812. 
 Defective gangway: Christie v. Bichardson, 15 0. 
 W. B. 802, 1 O. W. N. 689. Defect in condition of 
 ways : Leitch v. Pere Marquette, 18 0. W. B. 433, 2 
 0. W. N. 617. Liability for breach of statutory 
 duty of guarding pit mouth of mine: Pressick v. 
 Cordova Mines, 24 0. W. B. 631, 25 0. W. E. 228, 4 
 0. W. N. 1334, 5 0. W. N. 263, and see Groves v. 
 Wimbome, 1898, 2 Q. B. 402. The liability for de- 
 fect in the ways, etc., extends to cases where the 
 plant used is the property of a third person for 
 whom the employer is working and who supplies it 
 for the purpose : Biddle v. Hart, 1907, 1 K. B. 649. 
 A defective machine which a foreman has or- 
 dered not to be used again, may be " used in the 
 business " in the meaning of this section: Thomp- 
 son v. City Glass Bottle Co., 1902, 1 K. B. 233. 
 Defective condition of machinery installed in prem- 
 ises of purchaser and not accepted — liability : Nokes 
 v. Kent Co., 4 0. W. N. 665. Machine becom- 
 ing defective in operation : Lougheed v. Collingwood 
 Shipbuilding Co., 12 0. W. B. 871. Defective boiler : 
 Waddell v. Pere Marquette, 13 0. W. B. 817. Ab- 
 sence of guard: Linden v. Trussed Concrete. 18 0. 
 L. B. 540. Unguarded receptacle : Davidson v. Peters, 
 3 O. W. N. 1160. Use of implements insufficient for 
 purpose of work: Smith v. Hamilton Bridge Co., 3 
 0. W. N. 177, 4 0. W. N. 36. Liability for injuries 
 -caused bv defects in premises : article, see 47 C. L. J. 
 41. 
 
 Dangerous machines. Where a machine is de- 
 fective with reference to danger and such defect is 
 
g34 CHAPTER 146. 
 
 within the knowledge of the employer he is then lia- 
 ble: Morgan v. Hntchins, 59 L. J. Q. B. 197; Tate v. 
 Latham, 1897, 1 Q. B. 502; McCloherty v. Gale Mfg. 
 Co., 19 A. E. 117; O'Connor v. Hamilton Bridge Co., 
 25 0. E. 12, 21 A. E. 596, 24 S. C. E. 598; see Walsh 
 v. Whiteley, 21 Q. B. D. 371; Kervin v. Canadian 
 Coloured Cotton, 28 0. E. 73, 25 A. E. 36, 29 S. C. E. 
 478. "Where an injury is alleged to have been caused 
 by the negligence of the defendants in not furnish- 
 ing proper safeguards at the place of danger, evi- 
 dence that the safeguards were placed there after 
 the injury is not admissible to show prior negli- 
 gence: CoJe v. C. P. E., 19 P. E. 104. Where dan- 
 gerous work was done under a defective system, the 
 plaintiff's voluntary exposure of himself to danger 
 is natural. He has a right to expect that the dan- 
 gerous contingency will not occur : Dagg v. McLaugh- 
 lin, 11 0. W. E. 1080, 12 0. W. E. 407, 13 0. W. E. 150. 
 Safeguards to which a workman is entitled in situa- 
 tions of grave danger : see Jamieson v. Harris, 35 S. 
 C. E. 625 ; Brannigan v. Brannigan, 1892, 1 Q. B. 402 ; 
 Linden v. Trussed Concrete Steel, 11 0. W. E. 1003, 
 18 0. L. E. 540. Failure to obey directions of the 
 Factories Act, as to guarding dangerous machinery 
 which results in injury being caused an employee, 
 gives a right of action : Billing v. Semmens, 7 0. L. 
 E. 340, 8 0. L. E. 540; Groves v. Wimborne, 1898, 2 
 Q. B. 402; Meyers v. Sault Ste. Marie Pulp, 33 S. C. 
 E. 23 ; and see sec. 34, post. Employing a girl under 
 18 to work between the fixed and traversing parts 
 of a self-acting machine contrary to the Factory, 
 etc., Act, is in itself sufficient to render the master 
 prima facie liable in damages for an accident which 
 happens in the course of such employment, and neg- 
 ligence on his part directly conducing to the acci- 
 dent need not be shown : Fahey v. Jephcott, 1 0. L. 
 E. 18, 2 0. L. E. 449 (overruling Boberts v. Taylor, 
 31 0. E. 10). Where an employee sustains injuries 
 in a factory through coming in contact with machin- 
 ery, the employer, although he may be in default, 
 cannot be held responsible in damages unless it is 
 shew that the accident by which the injuries were 
 caused was directly due to his neglect. In this case 
 the employer had not complied with the Quebec 
 Factories Act, but the immediate cause of the acci- 
 dent was the imprudence of a young girl employee, 
 
CHAPTER 146. 635 
 
 who, contrary to rules, and while seated at work, 
 was arranging her hair, which caught in the machine 
 and injured her: Bergeron v. Tooke, 27 S. C. E. 
 567. There is an element of danger arising from the 
 position of machinery in itself perfectly sound and 
 well fitted for its purpose : McCloherty v. Gale Mfg. 
 Co., 19 O. L. E. 117. A steel cutting machine perfect 
 of its kind, was dangerous in its operation owing to 
 the liability of pieces of steel to fly. It was in this 
 way the accident happened. It was not shown that 
 a guard could be used. It was held that there should 
 have been some system of giving warning and so 
 reducing the danger, and the defendants were liable 
 at common law : Choate v. Ontario Eolling Mills, 27 
 A. E. 155. Where a workman was injured by a ma- 
 chine which was in itself dangerous and which could 
 have been furnished with a guard and was not, the 
 foreman's knowledge of this defect and failure to 
 remedy it constituted negligence for which the 
 plaintiffs were liable: Godwin v. Newcombe, 1 0. L. 
 E. 525. Where the defendants employed a danger- 
 ous system and means were not adopted for the pro- 
 tection of the men, who were ignorant of the danger, 
 the defendants were held liable at common law and 
 if there was liability at common law, a fortiori there 
 was liability under the Act: Dodds v. Consumers' 
 Gas, 9 0. W. E. 905. While a workman was engaged 
 in the dangerous work of chipping a cast-iron cylin- 
 der, another workman was struck with a flying chip. 
 Had a pivot been utilized the work could have been 
 turned and the danger avoided. This omission was 
 evidence of negligence: Alleri v. Sawyer Massey, 12 
 0. L. E. 282. The employee was injured by passing 
 over a dangerous set of cogs. The jury found there 
 were other ways of passing, but that none of them 
 were sufficient or as expeditious. The trial Judge 
 held that the plaintiff had voluntarily taken the risk. 
 The Supreme Court ordered a new trial, it not being 
 sufficiently established that the plaintiff had " of 
 reasonable and practical necessity " to pass over 
 the cogs: British Columbia Mills v. Scott, 24 S. C. 
 E. 702. Non-guarding a dangerous machine and not 
 fastening a ladder, the removal of which led to the 
 accident, constituted negligence and the defendants 
 were liable : Myers v. Sault Ste. Marie Pulp, 3 0. L. 
 E. 600, 33 S. C. E. 23. Negligence in not guarding a 
 rapidly revolving shaft or stopping the machinery 
 
g36 CHAPTER 146. 
 
 while the workman was set to work there : Doyle v. 
 Diamond Glass, 8 0. L. E. 499. Negligence, by leav- 
 ing machine unguarded: Smith v. Hayes, 29 0. E. 
 283. Non-guarding dangerous machinery constitutes 
 a defect in the condition of the machinery : Bodgers 
 v. Hamilton Cotton Co., 23 0. E. 425. Negligence of 
 defendants in not having dangerous and deceptive 
 machine guarded and inattention of operator were 
 sufficient to negative contributory negligence of 
 plaintiff: Moore v. J. D. Moore Co., 4 0. L. E. 167. 
 There was a dangerous machine and unguarded, 
 which the plaintiff in spite of warnings went near, 
 Where he had no right to be, and was injured. The 
 plaintiff had no cause of action : Mammelito v. Page 
 Hersey Co., 13 0. W. E. 109; Lowe v. Pearson, 1899, 
 
 1 Q. B. 261. Negligence, absence of warning, dan- 
 gerous machine : Stokes v. Curled Hair Co., 22 0. W. 
 E. 474, 3 O. W. N. 1414. Common law liability: de- 
 fective dangerous machine: Cotie v. Canada Turpen- 
 tine Co., 12 O. W. E. 422. Defective dangerous 
 works : Eegan v. Montreal Light, Heat & Power Co., 
 40 S. C. E. 580. Negligent management of danger- 
 ous work : Dagg v. .McLaughlin, 11 0. W. E. 1080, 
 12 O. W. E. 407. Water power is a dangerous ele- 
 ment and proper safeguards are to be provided. 
 Liability where absence of these results in death of 
 employee:: McKea v. C. P. E., 1 0. W. N. 1059, 
 
 2 0. W. N. 812; Fairweather v. Canadian Gen. 
 Electric, 28 O. L. E. 300. Use of implements in- 
 sufficient for dangerous work: Smith v. Hamil- 
 ton Bridge Co., 3 O. W. N. 1524. To permit 
 an unnecessary quantity of dynamite to accumu- 
 late in dangerous proximity to employees of a 
 mining company in a stituation where opportunity 
 for damage might occur is negligence which will 
 render the company liable although the direct cause 
 of the explosion is unknown: Durand v. Asbestos 
 and Asbestic, 30 0. E. 285. Explosive in unguarded 
 receptacle : Davidson v. Peters Coal Co., 23 0. W. E. 
 25, 4 0. W. N. 36. Omission to guard dangerous 
 machines : see E. S. 0. 1914, ch. 229, and ch. 238, and 
 notes. 
 
 Electricity and electric wires. Whoever uses or 
 employs dangerous agencies is held to a corres- 
 pondingly high degree of care, including circum- 
 spection and foresight: Gloucester v. Toronto 
 
CHAPTER 146. 537 
 
 Electric Light Co., 38 S. C. E.; Citizens' Electric 
 Light Co. v. Lepitre, 29 S. C. R. 1 ; Eoyal Electric 
 Co. v. Heve, 32 S. C. E. 462 ; Sutton v. Dundas, 11 
 0. W. R. 501. An electric light company may through 
 hanging wires in proximity to guy wires, which 
 afterwards hecome charged with current and do in- 
 jury, be liable for actionable negligence in failing to 
 exercise the high degree of skill, care and foresight 
 required of persons engaging in operations of a dan- 
 gerous nature : Heve v. Eoyal Electric Company, 32 
 S. C. E. 462. In the absence of evidence that the 
 precaution would have been efficient there is no neg- 
 ligence in not insulating or guarding wires : Dumphy 
 v. Montreal L., H. & P. Co., 1907, A. C. 454. Imper- 
 fect insulation of electric wires as negligence : Fortin 
 v. Quebec Railway, Light & Power Co., 40 S. C. R. 
 181. Defective insulation: Wright v. Port Hope 
 Electric Co., ll 0. W. E. 318, 688, 13 O. W. E. 210. 
 Negligence : electric wires : Eussell v. Bell Telephone 
 Co., 11 O. W. E. 808. Dumphy v. Martineau, 42 S. 
 C. E. 224; Davidson v. Stuart, 14 Man. L. E. 74, 34 
 S. C. E. 215; Labombarde v. Chatham Gras, 10 0. 
 L. R. 446 ; Young v. Gravenhurst, 24 0. L. R. 467 ; 
 Paquette v. Rideau Skating Club, 14 O. W. E. 845. 
 Electric wires : see E. S. O. 1914, ch. 185, sec. 239, 
 and notes ; also ch. 151, sec. 3, notes. 
 
 Evidence of cause of death. In a case of acci- 
 dental injury resulting in death it is necessary to 
 prove by direct evidence or weighty, precise and con- 
 sistent presumptions arising from the facts proved, 
 that the accident was caused by the positive fault, im- 
 prudence or neglect of the person sought to be 
 charged with the responsibility: Corcoran v. Mon- 
 treal^ Soiling Mills, 26 S. C. R. 595. Evidence which 
 merely suports a theory propounded as to the prob- 
 able cause of the injuries received through an un- 
 explained accident is insufficient to support a ver- 
 dict of damages, where there is no direct fault or 
 negligence proved against the employer and the ac- 
 tual cause of the accident is a matter of conjecture : 
 Trainor v. Canada Paint Co., 27 S. C. R. 352. Where 
 the accident was due to the fault of the defendant 
 either in neglecting to cover a dangerous part of a 
 revolving shaft temporarily or stop the machinery 
 while the plaintiff was required to work over it, the 
 
638 
 
 CHAPTER 146. 
 
 defendant was held liable. And although there was 
 room for the inference that the accident might have 
 been due to the plaintiff's imprudence, the Supreme 
 Court refused to interfere: Bouchard v. Matthews, 
 28 S. C. E. 580 ; see also Eainville v. Gt. T. E., 29 S. C. 
 E. 201. Where there was no direct evidence as to 
 the cause of the accident, but it was shown that the 
 machine which exploded and caused the injury was 
 not fitted with any safety valve, but only with an 
 escape valve adjusted by hand, the Court inferred 
 that the accident was due to the absence of the safety 
 valve or negligent adjustment of the escape valve 
 and that the defendants were liable : Wilson v. Boul- 
 ter. 26 A. E. 184. The deceased was killed by being 
 run over while shunting cars. There was a dan- 
 gerous accumulation of snow and ice between the 
 tracks, but there was no evidence that the tracks 
 were not in good condition and it was a matter of 
 conjecture whether the deceased was on the tracks 
 at the time of the accident or on the space between 
 them. The accident was held not to have been 
 proved to be due to the defendants' negligence: 
 Armstrong v. C. A. E., 2 0. L. E. 219, 4 0. L. E. 560. 
 A workman was killed by being caught in a revolv- 
 ing shaft. No one saw the accident and it could not 
 be ascertained how it occurred. The negligence 
 charged was the want of a guard. It was held that 
 the plaintiffs could not recover in the absence of 
 evidence that the negligence charged was the cause 
 of the action : Kervin v. Canadian Coloured Cotton, 
 28 0. E. 73, 25 A. E. 36, 29 S. C. E. 478. Where the 
 employee was killed under circumstances which war- 
 ranted the inference that he came to his death owing 
 to the knives of the dangerous machine which he 
 was working on being unguarded, the employer was 
 liable : Billing v. Semmens, 7 0. L. E. 340, 8 0. L. E. 
 540. Onus of proof to connect death with negli- 
 gence of the defendants : Wakelin v. L. & S. W. Ey., 
 12 App. Oas. 41. It is not necessary to prove to a 
 demonstration how a death by actionable negligence 
 occurred : Lef ebvre v. Tretheway, 22 0. W. E. '694, 
 3 0. W. N. 1535. Death from unexplained accident : 
 Falconer v. Jones, 4 O. W. N. 709, 1373, 24 0. W. E. 
 18, 672. Defect in way ; absence of direct evidence ; 
 causal connection: McKeand v. C. P. E. 1 0. W. N. 
 1059. Unprotected hatchway, absence of direct 
 
CHAPTER 146. 639 
 
 proof: King v. Northern Nav. Co., 20 0. W. E. 220, 
 3 0. W. N. 172, 24 0. L. E. 643, 3 0. W. N. 1538, 22 
 0. W. E. 697. Evidence of proximate cause of death ; 
 conjecture: Burley v. G. T. E., 10 0. W. E. 857; 
 Moxley v. Canada Atlantic Ey., 14 A. E. 309, 15 S. 
 C. E. 146. See E. S. 0. 1914, ch. 151, sec. 3, notes. 
 
 Negligence generally. Negligence is defined as 
 " the neglect of the use of ordinary care and skill 
 towards a person to whom the defendant owes a 
 duty of observing ordinary care and skill, by which 
 neglect the plaintiff, without' contributory negli- 
 gence on his part, has suffered injury to his person 
 or property : Per Brett, M.E. : Heaven v. Pender, 11 
 Q. B. D. 507. See also Underhill on Torts, Art. 78, 
 where the definition is based on Blyth v. Birming- 
 ham Water Works, 11 Ex. 781, 784 ; Caledonian Ey. 
 Co. v. Mulholland (1898) A. C. 216, at p. 225, per 
 Lord Herschell, and it is shown that three points 
 require to be established to found the action, viz.: 
 (1) A duty to take care, (2) A breach of that duty 
 (negligence), (3) Damage as the natural and prob- 
 able consequence, In an action to recover damages 
 for death caused by alleged negligence the onus is on 
 the plaintiff to prove not only that the defendant 
 was guilty of actionable negligence but that such 
 negligence was the cause of the death: Young v. 
 Owen Sound Dredge Co., 27 A. E. 649. In the ab- 
 sence of a finding that the negligence imputed was 
 the proximate cause of the injury and of evidence 
 to justify such a finding, the action must fail: 
 Thompson v. Ontario Sewer Pipe Co., 40 S. C. E. 
 396. Where a workman was killed by an explosion 
 of a soap boiling tank, evidence of experts that the 
 explosion was probably due to defective screws fas- 
 tening the tank cover was sufficient to go to the jury : 
 Badcock v. Freeman, 31 A. E. 633. The question 
 whether under the special circumstances it was 
 necessary for the defendants to take greater pre- 
 cautions than they did take or to be much more 
 careful than in ordinary circumstances when these 
 conditions did not exist, is properly left to the jury : 
 Barclay v. Lake Erie and Detroit Ey., 30 S. C E. 
 360. When ringing bell or keeping an outlook have 
 been abandoned in the running of a shunting engine, 
 the employee who has abandoned such safeguards 
 
640 
 
 CHAPTER 146. 
 
 without adopting an efficient equivalent has been 
 guiltv of negligence : McMullen v. Nova Scotia Steel, 
 39 S! C. R. 593. The proposition that in an action 
 for damages for negligence resulting in injury to 
 the plaintiff there must be proof of a fault which 
 certainly caused the injury is not one of universal 
 application: McArthur v. Dom. Cartridge Co., 31 
 S. C. E. 392, 1905, A. C. 72. Employing a young 
 girl contrary to the provisions of the Factories 
 Act, is sufficient to render the employer prima 
 facie liable, and negligence on his part directly 
 conducing to the accident need not be shewn: 
 Fahey v. Jephcott, 1 O. L. R. 18, 2 0. L. R. 
 449; Groves v. Lord Wimborne, 1898, 2 Q. B. 402. 
 Employment in violation of the provisions of an 
 Act like the Factory Act, is prima facie actionable 
 negligence: Sharp v. Fathead Spinning Co., 12 
 Rettie 574; Blamires v. Lancashire and Yorkshire 
 Ry., 1873, L. R. 8 Ex. 283 ; Braddeley v. Earl Gran- 
 ville, 1887, 13 Q. B. D. 423; Willy v. Mulledy, 78 N. 
 Y. 310; Finlay v. Miscampbell, 20 O. R. 29. As 
 to findings of negligence and questions to be asked 
 jury : see Harris v. Jamieson, 35 S. C- R- 625. As to 
 common law liability of a corporation for negligence, 
 see judgment of Nesbitt, J.: Traplin v. Canada 
 Woolen Mills, 35 S. C. R., at p. 438 et seq. See also as 
 to proof of negligence against a company : Wilson v. 
 Botsford Jenks Co., 22 Occ. N. 95. 
 
 The rule as to contributory negligence is stated by 
 Underhill as follows, Art. 84: Though negligence, 
 whereby actual damage is caused is actionable, yet if 
 the damage would not have happened had the plain- 
 tiff himself used ordinary care, the plaintiff cannot 
 recover from the defendant. But where the plaintiff's 
 own negligence is only remotely connected with the 
 accident, and the defendant might by the exercise of 
 ordinary care have avoided the accident the plaintiff 
 will be entitled to recover : Radley v. London North 
 Western Ry., 1 App. Cas. 754 ; Tuff v. Warman, 2 C. 
 B. N. S. 740, 5 C. B. N. S. 573. In an action to recover 
 damages for negligence tried by a jury, where the 
 defence of contributory negligence is set up, the 
 onus of proof of the two issues is respectively on 
 the plaintiff and the defendant, and though the 
 Judge may rule negatively that there no evidence 
 
CHAPTER 146. 641 
 
 to go to the jury on either issue, he cannot declare 
 affirmatively that either is proved. The question of 
 proof is for the jury : Morrow v. C. P. R., 21 A. R. 
 149. See also Jones v. T. & Y. Radial Ry., 23 0. L. R. 
 331, 336; Brown v. London Ry., 2 0. L. R. 53, 31 
 S, C. R. 642. What would amount to contributory 
 negligence in an adult may not be so in a child of 
 tender years: Lynch v. Murdin, 1 Q. B. 29; Lay v. 
 Midland Ry., 34 L. T. 30; Underbill, p. 183. 
 The fact that a child of tender years in a shop 
 with its mother by the invitation and for the benefit 
 of the proprietors, is injured by an unfastened mir- 
 ror standing against a wall, is sufficient evidence of 
 negligence to go to a jury : Sangster v. Eaton, 21 A. 
 R. 624, 24 S. C. R. 708.* See also Merritt v. Hepen- 
 stal, 25 S. C. R. 150; Mclntyre v. Buchanan, 14 U. 
 C. R. 581; Vars v. G. T. R., 23 C. P. 143; Garner v. 
 Grace, 1 F. & F. 359 ; Smith v. Hayes, 29 O. R. 283. 
 See R. S. 0. 1914, ch. 151, sec. 3, note. 
 
 Res ipsa loquitur: Meenie v. Tilsonburg, etc., Ry., 
 5 0. W R. 69, 6 O. W. R. 286, 955, and cases cited. 
 Defective appliances; res ipsa loquitur: Doucet v. 
 Shawinigan Carbide, 42 S. C. R. 281. Where the Act 
 resulting in injury is also a crime : see Villeneuve v. 
 C. P. R., 10 0. W. R. 287; R. v. M. C. R. R., 10 O. W. 
 R. 660 ; and see also notes to R. S. 0. 1914, ch. 151. 
 
 Common employment. " Before the Act was passed 
 a workman could only recover, if injured in his 
 employment, when he could prove that the em- 
 ployer had personally been guilty of the negligence 
 which led to the injury, which in the case of large 
 employers was almost, and in the case of corpora- 
 tions quite, impossible. Now a workman is prima 
 facie entitled to recover whenever the employer, be 
 he private employer or corporation, has delegated 
 his duties or powers of superintendence to other 
 persons and such other persons have caused injury 
 to the workman by negligently performing the 
 duties and powers delegated to them, but the doc- 
 trine of common employment, save in so far as it is 
 thus abrogated, remains:" Ruegg, 6th Edn. p. 27; 
 Thomas v. Quartermaine, 18 Q. B. D. 685; Priestly 
 v. Fowler, 3M.&W.1; Bartonshill Coal Co. v. Reid, 
 
 3.A.--il 
 
642 
 
 CHAPTER 146. 
 
 3 Macq. H. L. 266; Smith v. Baker, 1891, A. C. 325. 
 Morgan v. Vale of ■Neath By. Co., L. E. 1 Q. B..149; 
 Tarrant v. Webb, 18 C. B. 797; "Williams v. Birming- 
 ham Battery (1899), 2 Q. B. 338; Groves v. Lord 
 Wimborne (1898), 2 Q. B. 402; Underbill on Torts, 
 Art. 92. The statute does not give a workman remedy 
 against his employer for the negligence of a fellow- 
 servant, except in the cases specified: Wakeley v. 
 Holloway, 62 L. T. N. S. 639; Wild v. Waygood, 
 1892. 1 Q. B. 783; McEvoy v. Waterford Steamboat 
 Co., 18 Ir. L. B. 159. The doctrine of common em- 
 ployment so far as it is not abrogated by the pro- 
 visions for delegating the duty or power of super- 
 intendence, etc., remains : Finch v. Northern Navi- 
 gation Co., 8 0. W. B/412; Hastings v. Le Eoi 
 No. 2, 34 S. C. E. 177. The doctrine of com- 
 mon employment affords no defence where injury 
 has been caused to "a servant by a breach of a 
 statutory duty imposed on the master: David v. 
 Britannic Merthyr Coal Co., 1909, 2 K. B. 146, 
 and see 26 T. L. B. 164. Where a statutory duty 
 imposed on an employer has not been observed it 
 is no defence that its non-observance is due to the 
 negligence of a fellow-servant of the person injured : 
 Curran v. G. T. E., 25 A. E. 407; and see Pres- 
 sick v. Cordova Mines, 4 0. W. N. 1334, 24 0. W. E. 
 631. Liability of railway where employee engages 
 in operation of trains without passing tests re- 
 quired by Eailway Commission. The doctrine of 
 common employment is not available as a defence 
 in such case: Jones v. C. P. E., 3 0. W. N. 1404, 
 13 D. L. E. 900 (P. C). The maxim volenti non fit 
 injuria does not apply where there has been a breach 
 of statutory duty : Eodgers v. Hamilton Cotton Co., 
 23 0. B. 425. Negligence in not taking reasonable 
 precautions for servant's safety: Thompson v. 
 Ontario Sewer Pipe, 9 0. W. E. 132. Negligence 
 in defective construction and not providing ele- 
 vator with safety clutches was sufficient to create 
 liability though the direct cause of the accident 
 was carelessness of a fellow-servant: McKelvey v. 
 Le Eoi, 32 S. C. E. 664; see also Hastings v. 
 Le Eoi, No. 2, 10 B. C. B. 9, 34 S. C. E. 177. 
 Where it was found that the company had failed to 
 maintain their mine in a condition suitable for carry- 
 ing on their works with reasonable safety, they were 
 
CHAPTER 146. 643 
 
 liable for injuries sustained by the employee, al- 
 though the explosion may have been attributable to 
 neglect of duty by a f ellow- workman : Grant v. 
 Acadia Goal, 32 S. C. E. 427. Defendants not re- 
 sponsible for accident due to the negligence of a 
 fellow-servant in the same grade of employment: 
 Matthews v. Hamilton Powder, 14 A. E. 260 ; Simp- 
 son v. Webb, 11 0. W. E. 732, 12 0. W. E. 1189. 
 Negligence of fellow-servant not in superintend- 
 ence: Davies v. Badger Mines, 2 0. W. N. 559, 
 18 0. W. E. 348; Dunlop v. Canada Foundry, 
 4 0. W. N. 791. Fellow-servant in common em- 
 ployment: Woods v. Toronto Bolt & Forge Co., 6 
 O. W. E. 637; The Petrel, (1893) P. 320; Mor- 
 gan v. Vale of Neath Ey., 5 B. & S. 570, 580, 1866, 
 L. E. 1 Q. B. 149 ; Howells v. Lodore Siemens Steel 
 Co., 1874, L. E. 10 Q. B. 62 ; Waller v. South-Eastern 
 Ey., 1863, 2 H. & C. 102, 112; O'Connor v. Hamilton 
 Bridge Co., 25 0. E. 12, 21 A. E. 596, 24 S. C. E. 598; 
 Kelly v. Davidson, 31 0. E. 521, 32 0. E. 8, 27 A. E. 
 659; Ferguson v. Gait School Board,, 27 A. E. 480. 
 Common employment as regards the Crown: see 
 E. v. Armstrong, 40 S. C. E. 229; Filion v. E-, 4 Ex. 
 C. E. 134, 24 S. C. E. 482. The doctrine of common 
 employment does not prevail in the province of 
 Quebec: Duran v. Asbestos and Asbestic. 30 S. C. 
 E. 285; Grenier v. the Queen, 30 S. C. E. 42; Filion 
 v. the Queen, 24 S. C. E. 482; see also Belanger v. 
 Eiopel, M. L. E. 3 S. C. 198, 258; Dupont v. Quebec 
 S. S. Co., Q. E. 11 S. C. 188. See E. S. 0. 1914, ch. 
 , 151, sec. 3, notes. 
 
 3. — (&) The common law rule is that the master is 
 liable only for his own negligence and where he 
 acts by deputy; "if the persons so selected are 
 guiltv of negligence, this is not the negligence of 
 the master:," Wilson v. Merry,' 1868, L. B..1 Sc. 
 App. 326; Allen v. New Gas Co., 1 Ex. D. 251; 
 Lovegrove v. London Brighton Ey., 16 C. B. N. S. 
 669; Brown v. Accrington Cotton Co., 3 H. & C. 
 511; Hall v. Johnson, 3 H. & C. 589; Wilson 
 v. Hume, 30 C. P. 542. Efforts have been made 
 to break through this rule but without success : 
 Howells v. Lodore Siemens Steel Co., L. E. 10, 
 Q. B. 62; Hedley v. Pinkney, 1894, A. C. 222. 
 But in the United States with greater success. 
 
644 CHAPTER 146. 
 
 There the rule is that where the master only acts 
 in the management of his business through vice 
 principals, he will be liable for their negligence 
 just as if it had been his own: Chieago Mil- 
 waukee Ey. v. Boss, 112 U. S. E. 377; Baltimore 
 & Ohio Ey. v. Baugh, 149 U. S. E. 368; Laning 
 v. New York Central, 49 N. Y. 521; Malone v. 
 Hathaway, 64 N. Y. 5. There is a duty on an em- 
 ployer to give instruction to young and inex- 
 perienced employees employed in dangerous work. 
 That duty can be delegated to a foreman and 
 the negligence of that foreman is, at cOmmon law, 
 a risk which the fellow servant, though an infant, 
 takes on himself: Cribbs v. Kynoch Ltd., 1907, 2 
 K. B. 548. When a workman, engaged in an employ- 
 ment not in itself dangerous, is exposed to danger 
 arising from an operation in another department 
 over which he has no control, the mere fact that he 
 undertakes or continues in such employment with 
 full knowledge and -understanding of the danger is 
 not conclusive to show that he has voluntarily as- 
 sumed the risk: Smith v. Baker (1891), A. C. 
 325. If the accident happens through the negli- 
 gence of any person within this sub-section, the 
 principle of Smith v. Baker, 1891, A. C. 354, 
 as to placing of responsibility, should be followed 
 rather than Cribbs v. Kynoch, 1907, 2 K. B. 548: 
 Lawson v. Packard Electric, 10 0. W. E. 525, 11 
 0. W. E. 72, 16 O. L. E. 1. Where there is a breach 
 of statutory duty, the maxim volenti non fit injuria 
 has no application: Buddeley v. Earl Granville, 19 
 Q. B. D. 423; Eodgers v. Hamilton Cotton Co., 23 
 O. E. 425. At common law a duty is imposed 
 to supply proper machinery and to have it properly 
 inspected. This must be done personally or by 
 the employment of competent persons. Where how- 
 ever machinery had been properly inspected, but 
 the accident had been caused by escaping steam 
 from a locomotive water tube which had been in- 
 sufficiently " belled " by J., a workman entrusted 
 with such work, it was held that there was no 
 liability at common law, but under the Act, J. was 
 a person entrusted and liability existed: Schwoob 
 v. Michigan Central, 9 0. L. E. 86, 10 0. L. E. 647, 13 
 0. L. E. 548, 8 0. W. E. 710. Owing to horses 
 attached to a heavy dray becoming frightened and 
 
CHAPTER 146. 645 
 
 oversetting an engine which was standing on a track 
 in the defendant's engine works, the engine fell on a 
 workman and killed him, the defendant was held 
 liable because he did not have the engine properly 
 braced. The finding was justified under the Act. The 
 accident did not occur through any defect in the 
 ways, works, machinery, etc., but through the 
 negligence of the superintendent under whose orders 
 the engine was braced and supported : King v. Mil- 
 ler, 34 S. C. B. 710. Where a mason and his 
 helper fixed a scaffolding in passing over which the 
 helper was subsequently injured, it was held that 
 they were fellow workmen, that the mason had no 
 " superintendence " of, the other and that the 
 gangplank or scaffold was not a " way " within 
 this Act: Ferguson v. G-alt School Board, 27 A. 
 E. 480. Employer liable for negligence of fore- 
 man in npt making suitable foundation for trestle, 
 although supplied with proper materials : Lappage 
 v. C. P. E., 13 0. W. E. 118. Where a machine, 
 perfect of its kind, had a dangerous tendency to 
 let pieces of steel fly and the defendants' foreman 
 had been in the habit of giving warning and had 
 neglected to do so on this occasion, the defendants 
 were held liable: Choate v. Ontario Eolling Mills, 
 27 A. E. 155. Negligence of foreman in not point- 
 ing out which machines were dangerous, and in not 
 warning and instructing inexperienced operatives: 
 •Lawson v. Packard Electric, 10 0. W. E. 525, 11 0. 
 W. E. 72, 16 0. L. E. 1. Setting employee to oil ma- 
 chine in motion : Scott v. Governors of University of 
 Toronto, 4 O. W. N. 994, 24 0. W. E. 325. Use 
 of dangerous machinery: injury to inexperienced 
 workman acting with reasonable care under orders 
 of superior: O'Connor v. Hamilton Bridge Co., 
 25 0. E. 12, 21 A. E. 596, 24 S. C. E. 598. Where 
 the employer provides for the instruction of in- 
 fant workman in use of machine by competent 
 foreman, there is no liability at common law and 
 no difference between an infant and an adult work- 
 man, but the extent and method of instruction may 
 vary with the age and disability of the workman: 
 Young v. Hoffman, 1907, 2 K. B. 646. There is 
 no rule to the effect that the master has a personal 
 duty to perform whieh he cannot delegate to others : 
 Cribbs v. Kynoch, 1907, 2 K. B. 548. It is not 
 
g46 CHAPTER 146. 
 
 necessary that the superintendence should include 
 or involve superintendence over the plaintiff: 
 Kearney v. Nicholls, 76 L. T. 63; Webb v. Cana- 
 dian General Electric, 2 0. W. B. 322; Darke v. 
 Canadian General Electric, 28 0. L. E. 240. An 
 elevator man in a department store is not an em- 
 ployee having superintendence entrusted to him : 
 Carnaban v. Simpson, 32 O. R. 328. What amounts 
 to superintendence: Darke v. Canadian General 
 Electric, 28 0. L. E. 240; Gower v. Glen Woollen 
 Mills, 28 O. L. E. 194. Negligence of fore- 
 man: Nigro v. Donati, 4 0. W. N. 2, 22 0. 
 W. E. 974. Negligence of foreman of works: 
 Liability of contractor and of contractor's prin- 
 cipal: Dallantonio v. McCormick, 29 0. L. E. 319. 
 Person not intrusted with superintendence: De- 
 mers v. Nova Scotia Silver, 3 0. W. N. 1206. Negli- 
 gence of a superior in exercise of superintendence: 
 Brulott v. G. T. P., 2 O. W. N. 1277, 19 0. W. E. 514, 
 24 0. L. E. 154; Quinto v. Bishop, 2 0. W. N. 1152, 19 
 O. W. E. 313; Hicks v. Smiths Falls El. Co., 4 0. W. 
 N. 1215. See also Markle v. Donaldson, 7 0. L. E. 
 376, 8 0. L. E. 682; Commarford v. Empire Lime- 
 stone Co., 11 0. L. E. 119 ; McNaughton v. Caledonian 
 Ey., 28 L. T. N. S. 376; Spaight v. Tedcastle, 
 1881, 6 App. Cas. 217; Northern Pacific v. Ham- 
 bly, 154 TJ. S. E. 349; Shea v. Inglis Co., 12 0. L. E.- 
 80; Fairweather v. Owen Sound Quarry, 20 O. E. 
 604. The Supreme Court has applied the principle 
 of employer's responsibility for v the acts of his 
 overseers to His Majesty in relation with govern- 
 ment employees, as well as the maxim " respon- 
 deat superior:" Queen v. Martin, 20 S. C. E. 240, 
 at p. 250; Filion v. The Queen, 24 S. C. E. 482; 
 Quebec v. The Queen, 24 S. C. E. 420. Superintend- 
 ence : Assumption of risk : see Annotation, 11 D. L. B.> 
 106, and see notes to sec. 2 (j), ante. 
 
 3.— (c) It must be established that the injury was 
 caused by the negligence of the plaintiff's superior 
 to whose orders he conformed and that the injury 
 resulted from his so conforming : McLeod v. Cana- 
 dian Stewart, 1 0. W. N. 951. Negligence consist- 
 ing in mate of lake vessel not instructing deck- 
 band to coil a rope properly, the deckhand being 
 bound to conform to the mate's orders: Frawley 
 
CHAPTER 146. 647 
 
 v. Hamilton Steamboat Co., 10 0. W. R. 309. Con- 
 forming to orders of foreman: Negligence of fore- 
 man in npt attending to warnings: Condon v. 
 Hamilton Steel and Iron, 11 0. W. R. 49. Fore- 
 man's orders: Darke v. C. Gr. Electric, 3 0. W. 
 N. 368, 20 0. W. R. 587, 28 0. L. R. 240. Conforming 
 to orders : Morton Co. v. Ontario Accident, 11 0. W. 
 R. 828, 12 0. W. R. 269, 14 O. W. R. 1010, 1 0. W. N. 
 199, and see ante, notes to sec. 3 (&). 
 
 3. — (d) As to misconduct of servant through disobedi- 
 ence to rules precluding a recovery for his death: 
 see Bist v. London South Western, 1907, A. C. 209. 
 A master is entitled to make and insist on the 
 observation of reasonable rules for the conduct of 
 his business, and if in consequence of the non- 
 observance of these rules by a servant he is in- 
 jured, the master is not liable: Anderson v. 
 Mikado, 3 0. L. R. 581. Disregard of rules in using 
 code of signals. in a mine. No contributory negli- 
 gence by non-use of the signals, the rules having 
 with the consent of the employees and of the per- 
 sons in charge of the men, been disregarded so as to 
 indicate that they were abrogated : Warmington 
 v. Palmer, 7 B. C. R. 414, 8 B. C. R. 344, 32 S. C. 
 R. 126. The employer is not responsible for an 
 accident resulting from an act of a workman op- 
 posed to the usual course and system. Neither 
 the employer nor his foreman could be blamed for 
 not assuming that a workman would resort to 
 unlikely and extraordinary methods of accomplish- 
 ing his work : Alexander v. Miles, 7 0. L. R. 103. 
 The deceased was in charge of a gang of men 
 working on a railway cutting, and in a zealous 
 attempt to save his employer's time, persuaded the 
 engine driver of a construction train to break 
 rules as to flagging, etc., which resulted in the fatal 
 accident in question. The defence of contributory 
 negligence was not set up. The deceased could not 
 have compelled the engine driver to move the train 
 as he did nor have authorized him to disregard 
 rules. The engine driver's negligence was held to 
 make the company liable under this Act: Muma 
 v. C. P. R., 14 0. L. R. 147, 9 0. W. R. 475. Disobedi- 
 ence of rules, dangerous machine : D'Aoust v. Bissett, 
 
g^g CHAPTER 146. 
 
 13 0. W. B. 1117. Although there may be a plain de- 
 fect in the condition of the way, resulting in the acci- 
 dent and injury, yet an engineer who proceeded with 
 his engine in spite of the condition of the signals, 
 thereby negligently disobeying his orders as con- 
 tained in the company's rules, has no action, and 
 where the accident results in his death, his widow 
 has no action either: Holden v. G. T. E. 5 0. L. 
 E. 301. A conductor was engaged in his duties. 
 By omitting to have a light on the rear end of 
 the train which backed and killed him, the rail- 
 way company were guilty of negligence: Bois- 
 seau v. C. P. E., 32 S. C. E. 424. Whem a brake- 
 man Was injured by a low bridge when standing 
 on the top of cars contrary to rules of which he 
 was aware, the company were not liable although 
 there was not a clear headway space as required 
 by the Eailway Act: Deyo v. Kingston & Pem- 
 broke By., 8 0. L. E. 588. Disobedience of Ey. Co. 
 Eules : see also Walker v. Wabash Ey., 13 0. W. E. 
 250; Fawcett v. C. P. E., 8 B. C. E. 398, 32 S. C. E. 
 721; Fralick v. G. T. E. 13 0. W. E. 462, 15 0. 
 W. E. 55, 1 O. W. N. 309 ; Maycock v. Wabash, 9 0. 
 W. E. 546, 10 0. W. E. 127; Birkett v. G. T. E., 35 
 S. C. E. 296. Habitual violation of rules as an 
 excuse : see Senior v. Ward, 1 E. & E. 285. Know- 
 ledge of and acquiescence in breach of rules : North- 
 ern Pacific v. Nickels, 4 TJ. S. App. 369 ; Atchison 
 Ey- v. Eeesman, 19 U. S. App. 596; Eailroad Co., 
 y. Jones, 95 U. S. 439 ; Kansas and Arkansas Ey. v. 
 Dye, 70 Fed. Eep. 24. Where disobedience of a rail- 
 way company's rules is alleged, the construction of 
 the rules is a matter for the trial Judge : Walker v. 
 Wabash Ey., 13 O. W. E. 250. Disobedience of 
 railway company's rules: see E. S. 0. 1914, ch. 185, 
 sec. 163 et seq., and notes. 
 
 3. — (e) The words " person in charge or control " do 
 not necessarily point to a person in charge of the 
 whole train: McCord v. Cammell & Co., 1896, A. 
 C. 57. The charge or control of a switch need not 
 be exclusively in the defendants in order to make 
 them liable: Warren v. Macdonnell, 12 0. W. E. 493. 
 A motorman of an electric car may be a person " who 
 has charge or control " within the meaning of the 
 Act, and if he negligently allows his car to collide 
 
CHAPTER 146. 649 
 
 with a vehicle, whereby the conductor, attending to 
 his duty, is injured, the company is liable : Snell v. 
 Toronto Eailway, 27 A. R. 161, 31 S. C. E. 241. 
 Negligence of engine driver: Person in charge: 
 Smith v. G. T. E., 3 0. W. N. 379. Negligence of 
 engineer: Durant v. C. P. E. 12 0. W. E. 294, 13 
 0. W. E. 316. Negligence of signalman and 
 engineer: Curtis v. M. C. E. E., 12 0. W. E. 445. 
 Eules of railway company: Person in charge: 
 Smith v. G. T. E. 4 O. W. N. 42. Brakeman stand- 
 ing on ground and giving signals to locomotive 
 engineer is a person in charge or control of the 
 engine: Summerson v. G. T. E., 11 D. L. E. 104; 
 4 0, W. N. 1082, 1529, 24 0. W. E. 403, 816 
 (and see Annotation, 49 0. L. J. 458). " Person in 
 charge or control of engine:" Martin v. G. T. E., 
 3 0. W. N. 350, 20 0. W. E. 600, 4 0. W. N. 51; 
 Allan v. G. T. E., 40 0. W. N. 325, 23 0. W. E. 
 453; McLaughlin v. Ontario Iron and Steel Co., 
 15 O. W. E. 284, 1 0. W. N. 408, 20 0. L. E. 
 335; Jones v. C. P. E., 3 0. W. N. 1404. Sup- 
 erintendence over engineer: Martin v. G. T. E., 
 20 0. W. E. 600, 3 0. W. N. 350. Defective 
 system of control of yard engine: Pralick v. G. 
 T. E., 13 0. W. E. 462, 15 0. W. E. 55, 1 0. W. 
 N. 309. Signal on a railway, etc.: Davies v. Bad- 
 ger Mines, 2 0. W. N. 559, 18 0. W. E. 348. Signal- 
 man employed by two companies: Pattison v. C. 
 P. E. and C. N. E., 20 0. W. E. 18, 22 0. W. E. 131, 
 3 0. W. N. 45, 1245, 24 O. L. E. 482, 26 0. L. E. 410. 
 Person in control of machine on tramway: Dun- 
 lop v. Canada Foundry, 3 0. "W. N. 932. Negligent 
 order to servant to get, on moving train: Taylor 
 v. G. T. E. 2 0. W. N. 282, 17 0. W. E. 512. Servant 
 walking on railway track. Ultimate negligence: 
 McEaehen v. G. T. B., 21 0. W. E. 187, 3 0. W. 
 N. 628. Fall of coal from locomotive tender: 
 O'Brien v. Michigan Central, 19 0. L. E. 345, 14 
 0. W. E. 581, 1 0. "W. N. 7. Workman run over by 
 train in railway yard: Giovinazzo v. C. P. P., 13 
 O. W. E. 24, 1200, 19 0. L. E. 325. See further 
 as to this sub-sec: Brunnel v. C. P. E., 15 0. E. 
 375; Jackson v. Canada Southern, 17 S. C. E. 316; 
 Farmer v. G. T. E., 21 0. E. 299; Weegar v. G. 
 T. E., 23 S. C. E. 422; Curran v. G. T. E., 25 A. 
 
650 
 
 CHAPTER 146. 
 
 E. 407; Miller v. G. T. E., 23 S. C. E. 454; Eom- 
 bough v. Balch, 27 A. E. 32; Collier v. Michigan 
 Central, 27 A. E. 630; Wood v. C. P. E., 30 
 S. C. E. 110; Bond v. Toronto Ey., 22 A. E. 
 78, 34 S. C. E. 715; Sehwoob v. Michigan Central, 
 9 O. L. E. 86, 10 O. L. E. 647, 13 O. L. E. 548. 
 
 Steam shovel moving from place to place upon a 
 temporary track is within this section: Dicarllo v. 
 McLean, 4 0. W. N. 1444, 24 0. W. E. 749. Hoist, 
 an engine or machine upon a tramway: Dunlop 
 v. Canada Foundry, 28 0. L. E. 140. What is a 
 machine or engine within this section: Darke v. 
 Can. Gen. El., 4 0. W. N. 851, 28 0. L. E. 240. 
 What is a train? Cox v-. Great Western Ey., 9 
 Q. B. D. 106; McCord v. Cammell, 1895, A. C. 
 57; Hollinger v. C. P. E., 21 0. E. 705, 20 A. E. 
 244; Vaccaro v. Kingston and Pembroke Ey., 11 
 0. W. E. 836; E. S. C. 1906, ch. 37, sec. 2 (32); 
 E. S. 0. 1914, ch. 185, sec. 2 (r) (x), 155, and notes. 
 
 " Eailway " is not confined to railways operated 
 by incorporated railway companies, but is used 
 in its natural sense: 'Cooper v. Hamilton Steel 
 Co., 8 0. L. E. 353; Doughty v. Firbank, 10 
 Q. B. D. 358. This Act is binding on Dominion rail- 
 ways : Canadian Southern v. Jackson, 17 S. C. E. 316, 
 and is to be construed liberally in the interests 
 of the workman: Martin v. G. T. E., 27 0. L. E. 
 165. While there may be a right of action under 
 this section, there may also exist along with it a 
 right of action based on breach of the statutory 
 duty imposed by the Eailway Act to provide 
 modern and efficient apparatus: E. S. C. 1906, ch. 
 37, sec. 264; E. S. 0. 1914, ch. 85, sec. 99; Durant 
 v. C. P. E., 12 0. W. E. 294, 13 0. W. E. 316. 
 Where a car of a foreign railway company forms 
 part of a train and is so high that a brakeman is 
 injured by a bridge usually sufficiently, high, it is 
 being " used " within the meaning of the Eailway 
 Act, and the company is liable: Atcheson v. G. 
 T. E., 1 0. L. E. 168. A workman in the employ 
 of the B. railway was killed in consequence of the 
 defective condition of a truck of the C. railway 
 which had been let in the ordinary course of rail- 
 way exchange to the B. railway. Held that the C. 
 
CHAPTER 146. 651 
 
 railway not liable at suit of workman's widow: 
 Caledonian Ry. v. Mulholland, 1898, A. C. 216. 
 Disregard Of the provisions of the Railway Act, R. 
 S. C. 1906, ch. 37, sees. 277, 278, by defendants' 
 servants in charge of train, resulting in death of 
 engine driver: see McKay v. Wabash Ry., 10 0. 
 W. R. 416. Defective railway system and responsi- 
 bility of company ; Ainslie Mining Co. v. McDongall, 
 42 S. C. R. 420; Fralick v. G. T. R. 495 (see Smith 
 v. Baker, (1891) A. C. 325). Signalman hired by 
 one company and paid by another : liability of com- 
 pany using service at time of injury : Pattison v. C. 
 ' P. R., 24 O. L. R. 482, 26 0. L. R. 410. Where a rail- 
 way company permit an employee to engage in opera- 
 tion of trains without passing test required by Rail- 
 way Commission, they are liable for damages result- 
 ing, and the defence of common employment is not 
 available : Jones v. C. P. R., 3 O. W. N. 1404 ; 13 D. L. 
 R. 900 (P.C.). On application to examine an engine 
 driver for discovery under (1913) Rule 327, as an 
 officer of the defendants, held he had no control of 
 the train and was not examinable : Morrison v. G. T. 
 R., 4 O. L. R. 43, 5 O. L. R. 38. See also notes to sec. 5 
 post. 
 
 The rights under this statute are not more restricted 
 than under the Fatal Accidents Act. " The same 
 right of compensation " means that which the 
 Fatal Accidents Act confers: Brown v. G. T. R., 
 28 0. L. R. 354: Damages for injury to ser- 
 vant in Province of Quebec: Story v. Stratford 
 Mill Building Co., 4 0. W. N. 1212. Workmen's com- 
 pensation law in Quebec: see Annotation, 7 D. L. 
 R. 5. 
 
 4. See Smith v. Onderdonk, 25 0. R. 171 ; Dallontania 
 
 v. McCormick, 4 0. W. N. 547, 29 0. L. R. 319, 
 and other cases noted ante. Plaintiff suing railway 
 for damages for death of husband from defects in 
 track, who claimed over against person construct- 
 ing siding in question: Trial of third party issue: 
 Pettigrew v. G. T. R., 2 0. W. N. 57, 16 0. W. R. 
 989, 22 0. L. R. 57. 
 
 5. Where a statutory direction imposed upon an em- 
 
 ployer is not observed, it is no defence that its 
 
£52 CHAPTER 146. 
 
 non-observance was due to the negligence of a fel- 
 low servant of the person injured: Curran v. Gr. 
 T. E., 25 A. B. 407. What amounts to compliance 
 with statutory duty to supply proper apparatus: 
 Watkins v. Naval Colliery Co., 1911, 2 K. B. 162, 
 1912, A. C. 693. See E. S. 0. 1914, ch. 185, sec. 
 99, and notes. Dispensing power of Eailway Com- 
 mittee to permit precautions to be omitted. Con- 
 struction: Washington v. G. T. E. 1899, A. C. 
 275. " Eailway " includes a private railway and 
 is not confined to railways operated by incor- 
 porated railway companies: Cooper v. Hamilton 
 Steel, 8 0. L. E. 353; Doughty v. Firbank, 10 Q. 
 B. D. 358. Unpacked frog: Macdonald v. Walker- 
 ton and Lucknow By., 1 0. W. N. 395. Employee 
 in disobedience of orders of which he was aware 
 stood on top of car and was injured; the company 
 were not liable although there was not the clear head- 
 way required by the Eailway Act : Deyo v. Kingston 
 and Pembroke By., 8 O. L. E. 588 ; and see ante, sec. ' 
 3 (d) notes. See Ont. By. Act, E. S. 0. 1914, ch. 185, 
 sec. 116, notes, as to headway under bridges, and also 
 ch. 185, sec. 108, and notes, as to frogs, packing, etc. 
 This Act is binding on Dominion railways: Canada 
 Southern v. Jackson, 17 S. C. E. 316; C. P. E. v. The 
 King, 39 S. C. E. 476, at p. 497. See E. S. C. 1906, 
 ch. 37, sees. 288 and 427 ; E. S. 0. 1914, ch. 185, sees. 
 3, 99, 108, 116 and 288, and notes. Employer's lia- 
 bility for breach of statutory duty: 5 D. L. E. 328, 
 and see ante, sec. 3, notes. 
 
 6. The right of action for compensation for injury or 
 death by negligence of Government employees does 
 not abate on the demise of the Crown : The King v. 
 Desrosiers, 41 S. C. B. 71. An action for injury to 
 the person now survives to the executor of the plain- 
 tiff, who can, in case of death pendente lite, obtain 
 an order of revivor and continue the action: Mason 
 v. Peterborough, 20 A. E. 683: see E. S. 0. 1914, ch. 
 121, sec. 41, and notes. When actions survive: see 
 H. & L. notes, p. 609. 
 
 6. — (a) There is a difference between the Ontario Act 
 and the corresponding provision of the English Act : 
 The English Act requires that the person entrusted 
 shall be some one " in the service of the employer," 
 
CHAPTER 146. 653 
 
 and, therefore, when a competent independent con- 
 tractor is employed the common law rule applies, 
 and the employer is not answerable for injuries sus- 
 tained by the workman, owing to the contractor 
 having negligently performed the work entrusted 
 to him: (Kiddle v. Lovett, 1885, 16 Q. B. D. 605); 
 Markle v. Donaldson, 7 0. L. E. 376, 8 0. L. E. 682. 
 At common law a master is bound to provide proper 
 appliances for carrying on his work, and to take 
 reasonable care that appliances which, if out of 
 order, will cause danger to his servant, are in such a 
 condition that the servant may use them Without 
 incurring unnecessary danger. These duties he may 
 discharge personally or by employing a competent 
 man in his stead, and the purpose of sec. 3 (a) as 
 modified by this section is to take from the master 
 his common law immunity for the neglect of such a 
 person: Schwoob v. Michigan Central, 9 0. L. E. 
 86, 10 0. L. E. 647, 13 0. L. E. 548. Under this sec- 
 tion the employer is answerable so far as the condi- 
 tion and arrangement of the ways, etc., is concerned, 
 for the negligence of any person, whether in his ser- 
 vice or not, to whom he entrusts the duty mentioned 
 in the sub-section, and in the performance of that 
 duty in the same way and to the same extent as he 
 would have been liable at common law had he taken 
 on himself personally the performance of that duty ; 
 and where an appliance necessary for the safety of 
 workmen is required in the course of the work, and 
 the employer directs anyone to provide it, that per- 
 son is one entrusted with the duty of seeing that 
 the appliance is proper: Markle v. Donaldson, 7 
 O. L. E. 376, 8 0. L. E. 682. Knowledge by employer 
 of dangerous conditions : Kirby v. Briggs, 2 0. W. N. 
 1511, 19 0. W. E. 917. Negligence of foreman in 
 not discovering defect : Kelly v. Davidson, 31 0. E. 
 521, 32 0. E. 8. Negligence of foreman in failure 
 to remedy defect of which he was aware — namely, 
 absence of guard to a dangerous machine: Godwin 
 v. Newcombe, 1 0. L. E. 525. Negligence of fore- 
 man in failure to give the usual warning before 
 operating a dangerous machine: Choate v. Ontario 
 Eolling Mill, 27 A. E. 155. Negligence is not having 
 proper guard and inattention of operator in charge 
 of dangerous machine: Moore v. J. D. Moore Co., 
 4 0. L. E. 167. See Giles V. Thames Ironworks, 1 
 
054 CHAPTER 146. 
 
 Times L. E. 469; Ferguson v. Gait School Board, 
 27 A E 480 Negligence of foreman: McClement 
 v. Kilgour, 20 0. W. E. 770, 21 0. W. E. 856, 
 3 O. W. N. 399, 446. New machine by reput- 
 able manufacturer: Bennie v. Verrall, 14 0. W. 
 E. 1095, 1 O. W. N. 222. ' Discovered or remedied:' 
 Linden v. Trussed Concrete Steel Co., 18 0. L. E. 540. 
 If an employer takes a plant supplied to him by 
 a third person for whom he is working, and uses 
 it without enquiry or inspection, there is prima 
 facie evidence of negligence to go to a jury where 
 a workman has been injured by a defect in the plant : 
 Biddle v. Hart, 1907, 1 K. B. 649. 
 
 6.— (c) Where the plaintiff before the accident knew of 
 the defect and the defendants were not aware of it 
 and the plaintiff with such knowledge failed to 
 notify the defendants of its existence, the plaintiff 
 cannot take advantage of the Act: Clegg v. Great 
 Western By., 10 0. E. 708: Campbell v. Ontario 
 Lumber Co., 3 0. W. E. 235; Truman v. Eudolph, 22 
 A. E. 250; Dominion Coal v. Day, 24 C. L, T. 167; 
 Davidson v. Stuart, 34 S. C. E. 215. At common law 
 the statement of claim must allege that the master 
 knew, but that the servant was ignorant of the 
 danger : Griffiths v. London and St. Katharines Dock 
 Co., 13 Q. B. D. 259. The fact that the defect is 
 known to the servant does not necessarily involve 
 his consent to undertake the risk : Williams v. Birm- 
 ingham Battery, etc., Co., 1899, 2 Q. B. 338. Find- 
 ing by jury that ' ' the deceased voluntarily accepted 
 the risks of shunting, ' ' was held to mean the ordin- 
 ary risks, not risks arising, from negligence : Hurd- 
 man v. Canada Atlantic Ey., 25 0. E. 209, 22 A. E. 
 292, 25 S. C. E. 205. The plaintiff was injured 
 by the breaking of a bolt in a loom. The evi- 
 dence shewed that there was a special employee 
 whose occupation and duty was that of loom-fixer, 
 and that this employee was notified that there was 
 something wrong with this loom, but did not examine 
 it. Held evidence of negligence, and the defendant 
 liable: Talbot v. Canadian Coloured Cotton, 27 S. 
 C. E. 198. To disentitle a workman to damages 
 under this Act, for injury from a defect in a ma- 
 chine, he must not only have a knowledge, of the 
 danger he incurs, but also a thorough appreciation 
 
CHAPTER 146. 655 
 
 of the risk he runs : Haight v. Wortman and Ward 
 Company, 24 0. E. 618. It is not voluntarily incur- 
 ring the risk to remain without making complaint, 
 when, if you do complain, the company will discharge 
 you: Pulton v. M. 0. R. E., 11 0. W. E. 52. When 
 the workman is aware that the employer knows of 
 the defect that causes the injury, he is not bound 
 under this section to give information to the em- 
 ployer. His failure to give information in other 
 cases will not bar his right of action if a reasonable 
 excuse is shewn for the omission. Where both em- 
 ployer and workman knew of the defect and it was 
 the workman's duty to see that the defect was 
 remedied, he cannot recover: Truman v. Eudolph, 
 22 A. E. 250. Where the danger is visible, and the 
 risk is appreciated, and where the injured person 
 knowing and appreciating both risk and danger, 
 voluntarily encounters them there is, in the absence 
 of evidence of further acts of omission or commis- 
 sion, no evidence of negligence on the part of the 
 employer at all. Knowledge is not conclusive in 
 itself. But where it is a knowledge under circum- 
 stances that leave no inference open, but one, namely, 
 that the risk has been voluntarily encountered, the 
 defence seems complete, per Bowen, L.J. : Thomas 
 v. Quartermaine, 18 Q. B. D. 685 ; see also Smith v. 
 Baker, 1891, A. C. 325; Yarmouth v. France, 19 Q. 
 B. D. 647; see Euegg, 5th ed., p. 170, In an action 
 claiming compensation for personal injuries, the de- 
 fendant who invokes the doctrine of volenti non 
 fit injuria must have a finding by the jury that the 
 person injured voluntarily incurred the risk, unless 
 it so plainly appears by the plaintiff 's evidence that 
 the trial Judge is justified in withdrawing the case 
 from the jury and dismissing the action: Mitchell v. 
 Canada Foundry, 35 S. C..B. 452. To enable an 
 employer to successfully invoke the doctrine of 
 volenti non fit injuria he must obtain a finding of 
 the jury in it in his favour: Williams v. Birming- 
 ham Battery & Metal Co., 1899, 2 Q. B. 338. If the 
 contention that the servant voluntarily undertook 
 the risk, is to be relied on, a question on that point 
 should be put to the jury: Star Kidney Pad Co. v. 
 Greenwood, 5 0. E. 28. An accident occurred by the 
 giving way of a string, which worked a brake auto- 
 matically. The plaintiff knew of the defect and of 
 
656 
 
 CHAPTER 146. 
 
 the likelihood of an accident, having frequently re- 
 placed the string when worn, and having continued 
 to work without assistance and without complaint. 
 Held he was " volens " and could not recover at 
 common law: Poll v. Hewitt, 23 0. R. 619. What is 
 meant by voluntarily incurring risk of injury: see 
 McCloherty v. Gale Mfg. Co., 19 0. R. 117. The 
 maxim " volenti non fit injuria," does not apply 
 where the accident is caused by a breach of a statu- 
 tory duty: Rodgers v. Hamilton Cotton Co., 23 0. 
 R. 425 ; Baddeley v. Earl Granville, 19 Q. B. B. 423. 
 Merely continuing in the employment of the defend- 
 ants and using utensils with knowledge that they 
 were unfit for the purpose and of the risk, would not 
 prove that the servant had voluntarily undertaken 
 the risk: Sim v. Bominion Fish Co., 2 0. L. R. 69; 
 Smith v. Baker, 1891, A. C. 325; Greenhalgh v. 
 Cwmaman Coal Co., 1891, 8 Times L. R. 31. Volenti 
 non fit injuria. Application of the rule and cases 
 reviewed: see Fairweather v. Can. Gen. Electric, 4 
 0. W. N. 592, 24 0. W. R. 164. Servant's knowledge 
 of danger: see also Miller v. Reid, 10 0. R. 419; 
 Rudd v. Bell, 13 0. R. 47 ; Ross v. Cross, 17 A. R. 
 29; Choate v. Ont. Rolling Mill, 27 A. R. 155; Cooper 
 v. Hamilton Steel, 8 0. L. R. 353, and cases collected 
 Ont. Big. Case Law, cols. 4180, 4181. Volenti non fit 
 injuria : see article 41 Can. Law Journal, p. 387. See 
 R. S. 0. 1914, ch. 151, sec. 3, notes. 
 
 " Earnings " includes money and things capable of 
 being turned into money by accurate estimation, 
 such as rent, food and clothes; but it does not in- 
 clude so vague a thing as the tuition an apprentice 
 receives from his master : Noel v. Redruth Foundry, 
 1896, 1 Q. B. 453. The plaintiff's evidence of his 
 own earnings is evidence of the fact to be proved: 
 Bortick v. Head, 53 L. T. 909; Noel v. Redruth 
 (1896), 1 Q. B. 453; Williams v. Piggott, 11 0. W. R. 
 28. Where a workman is given under the Bominion 
 Railway Act a right of action " for the full amount 
 of damages sustained," such a provision is intra 
 vires and the limitation mentioned in this Act does 
 not apply: Curran v. G. T. R., 25 A. R. 407. By 
 amendment of 1903 (3 Edw. VII. ch. 7, sec. 46), a 
 plaintiff who has established a good cause of action 
 under the Ontario Factories Act is entitled to the 
 
CHAPTER 146. 657 
 
 same amount of damages as under this Act: see 
 Jones v. Morton Co., 9 O. W. E. 500. See E. S. 
 0. 1914,~ oh. 229, sec. 83. Power of Judge to 
 enter judgment for sum over $1,500, where jury 
 were not asked to assess damages under this 
 Act, but only at common law: Linden v. Trussed 
 Concrete, 18 O. L. E. 540. Where the plaintiff's 
 claim was consistent either with proceedings under 
 this Act or at common law, but the true conclusion 
 from the evidence and the jury's findings was lia- 
 bility under the Act, the verdict was reduced to 
 $1,500 : Bagnall v. Durham Eubber Co., 13 O. W. E. 
 164. Application of this section to suit under Fatal 
 Accidents Act: Dawson v. Niagara, etc., By., 2 O. 
 W. N. 1080, 19 G. W. E. 242, 22 0. L. E. 69, 23 0. 
 L. E. 670. The limit of damages is not three years' 
 wages according to the rate which the workman him- 
 self was receiving, but the estimated earnings of a 
 person in the same grade in the like employment : 
 Lappage v. C. P. E., 13 O. W. E. 118. Estimation of 
 amount of compensation: Lougheed v. Collingwood 
 Shipbuilding Co., 12 0. W. E. 871. As to elements 
 to be considered in assessing damages for injuries 
 in cases of accident : see Fraser v. London St. By., 
 29 0. E. 411, 26 A. E. 383. Estimation of damages : : 
 Parker v. Michigan Central By., 11 0. W. B. 860. 
 Permanent disability: mentioning sum claimed: 
 Bradenburg v. Ottawa Electric, 19 0. L. E. 34. A 
 new trial will not be granted on the ground of exces- 
 sive damages unless, having regard to all the circum- 
 stances of the case, the Court is of opinion that 12 
 men could not reasonably have given it, or unless the 
 Court without imputing perversity to the jury comes 
 to the conclusion from the amount of damages and 
 the other circumstances that the jury must have 
 taken into consideration matters which they ought 
 not to have considered or applied a wrong measure 
 of damages : Praed v. Graham, 1889, 24 Q. B. D. 53 ; 
 Johnston v. Great Western Ew. Co., 1904, 2 K. B. 
 25Q. See also McDonald v. Cameron, 4 U. C. B. 1 ; 
 Dobbyn v. Dicow, 25 U. C. C. P. 18 ; Ford v. Gourlay, 
 42 U. C. E. 552. A workman is not acting unreason- 
 ably in refusing to undergo operation where such re- 
 fusal is based on the doctor's honest opinion that in 
 the state of the workman's health, the anaesthetic was 
 
 s.A. — 42 
 
ggg CHAPTER 146. 
 
 dangerous: Tutton v. S. S. " Majestic," 1909, 2 K. 
 B. 54; see also as to reasonableness: Marshall v. 
 Orient S. S. Nav. Co., 101 L. T. 584; Bateman v. 
 County of Middlesex, 24 O. L. B. 84. 
 
 8. Apportionment of damages: Hicks v. Smith's Falls 
 El. Co., 4 0. W. N. 1215. " Child," means" child " 
 as denned in Fatal Accidents Act, and includes step- 
 child: Brown v. G. T. B., 4 0. W. N. 942, 24 0. W. E. 
 255, 28 0. L. B. 354. The claim for damages under 
 this Aci must be confined to the plaintiff alone. An 
 action " per quod servitium amisit," does not lie 
 except in the case of the workman's death when it is 
 awarded to his representatives: Wilson v. Boulter, 
 26 0. B. 184. And at common law the mother of an 
 infant plaintiff cannot recover for her services in 
 attending on him when he was injured, nor for money 
 expended, nor for medical attendance and nursing, 
 or supplies, she not being in the legal relation of 
 master to him, or under legal liability to maintain 
 him : Wilson v. Boulter, 26 O. B. 184 ; see Schouler, 
 Domestic Belations, 4th ed., secT 255. The father's 
 right is grounded on the theory of his right as mas- 
 ter to the child's services: Cuming v. Brooklyn City 
 By., 109 N. Y. 95. How far this theory extends to 
 cases where the" child is emancipated and earning 
 his own wages under his own contracts may be 
 doubtful: see Delesdernier v. Burton,! 12 Gr. 569; 
 Perlet v. Perlet, 15 TJ. C. B. 165; Ferris v. Fox, 11 
 U. C. B. 614; Bex v. Chillesford, 4 B. & C. 94; Dier- 
 ker v. Hess, 54 Mo. 246. Claim of mother without 
 sufficient interest in or expectation from her son's 
 earnings: see Doyle v. Diamond Glass, 8 0. L. B. 
 499. Claim of widow whose status as widow and 
 administratrix is attacked : Doyle v. Diamond Glass 
 Co., 8 0. L. B. 499; see E. S. 0. 1914, ch. 151, and 
 notes. 
 
 9 The language of the section is imperative, but it is 
 open to the defendants to waive the limitation in 
 their favour : Thompson v. Ontario Sewer Pipe Co., 
 9 0. W. B, 132, 11 0. W. E, 32. Where a plaintiff 
 commences his action and subsequently, after the 
 expiration of the six months, shifts his ground: 
 right of plaintiff to amend: Paschal v. Nicholson, 
 11 0. W. E. 394. Terms on which limitation allowed 
 
CHAPTER 146. 659 
 
 to be pleaded after defence delivered: Siven v. 
 Temiscaming Mining Co., 2 0. W. N. 129, 17 0. W. 
 R. 81. Limitation: see R. S. C. 1906, ch. 37, sec. 
 306 (4), R. S. 0. 1914, ch. 185, sec. 265. Territorial 
 limitations of Act : see Tomalin v. Pearson, 1909, 2 
 K; B. 61. As to notice of injury and reasonable 
 excuse for not giving it : see notes to sec. 13, post. 
 
 10. A workman may so contract with his employer as 
 to exonerate the latter from liability for negligence, 
 and such renunciation would be an answer to an 
 action under Lord Campbell's Act: Grenier v. the 
 Queen, 30 S. C. R. 42; Griffiths v. Earl Dudley, 9 
 Q. B. D. 357. Payment to a person injured by an 
 accident on a railway of " the sum of $10, such sum 
 being in lieu of all claims which I may have against 
 said company on account of an injury received on 
 16th May, 1893," may constitute accord and satis- 
 faction. An issue, as to the effect of the payment 
 and its receipt and its procurement by fraud may 
 be tried by the presiding Judge at the trial and 
 need not necessarily be left to the jury: Haist v. 
 G. T. R., 26 O. R. 19, 22 A. R. 504. A contract of 
 hiring, waiving right to sue, set out at length with 
 consideration of this section and collection of cases 
 where such contracts were passed upon : see Fisher v. 
 International Harvester Co., 12 O. W. R. 1126; re- 
 versed, 13 O. W. R. 381 ; and see 13 O. W. R. 654. 
 This Act is binding on Dominion railways: Canada 
 Southern v. Jackson, 17 S. C. R. 316; C. P. R. v. the 
 King, 39 8. C. R. 476 at p. 497. See Holden v. G. 
 T. R., 5 0. L. R. 301; Curtis v. M. C. R. R., 12 0. W. 
 R. 445. Employers' liability insurance; condition 
 as to employment: Morton Co. v. Ontario Accident, 
 11 0. W. R. 828, 12 0. "W- R- 269. An infant's con- 
 tract to accept benefits of a railway servants' 
 society in lieu of claims under Employers' Liability 
 Act may be for his benefit and be binding on him : 
 Clements v. L. & N. W. Ry., 1894, 2 Q. B. 482. But 
 if detrimental will not be binding: Flower v. L. & 
 N. W. Ry., 1894, _2 Q. B. 65; and see Alexander v. 
 Toronto and Nipissing Railway, 33 U. C. R. 474, 35 
 U. C. R. 453. Contrast this section with the English 
 Act, 1906, 6 Edw. VII.. ch. 58, sec. 3 (3). See R. S. 
 C. 1906, ch. 37, sec. 306, R. S. 0. 1914, ch. 185, sec. 
 
 ' 3, 99 (12), 266, and notes. 
 
QQQ CHAPTER 146. 
 
 12. Where the plaintiff received accident insurance, it 
 would probably be held in view of the cases, such as 
 . Bradburn v. Great Western By., L. E. 10 Ex. 1, and 
 The Mariposa, 1891, P. 403 at p. 407, notwithstand- 
 ing cases like Parmer v. G. T. E., 21 0. E. 299, at p. 
 306, and Hicks v. Newport, 4 B. & S. 403a, that the 
 fact of such insurance could not be taken into consid- 
 eration by the jury : Loughead v. Collingwood Ship- 
 building Co., 11 O. W. E. 329. In regard to taking into 
 consideration sums received for benefit and accident 
 insurance, the (former) rule in cases under the Fatal 
 Accidents Act has no application to cases where the 
 action is brought by the injured person himself, In 
 the former case the cause of action is the pecuniary 
 loss caused by death, in the latter it is the wrong itself 
 and the liability of the wrongdoer to pay for it: 
 Misner v. Toronto and York Eadial, 11 O. W. E. 
 1064. Deduction of insurance moneys from amount 
 of verdict made, in eases under the Fatal Accidents 
 Act: Dawson v. Niagara, etc., By., 22 0. L. B. 69; 
 23 0. L. E. 670. See now E. S. O. 1914, ch. 151, sec. 
 4 (2). Insurance received by plaintiff : see G. T. E. 
 v. Jennings, 13 App. Cas. 800, at p. 803 ; Miller v. G. 
 • T. E., 1906, A. C. 187; E. v. Armstrong, 40 S. C. E. 
 229; Harris v. G. T. E., 3 O. W. N. 211, 550, 567. In 
 .. Quebec the payment x»f insurance benefit is an ef- 
 fectual bar to the recovery of damages: Queen v. 
 Grenier, 30 S. C. E. 42; Miller v. G. T. E., 34 S. C. 
 E. 45, 1906, A. C. 187; see also Griffiths v. Earl 
 Dudley, 9 Q. B. D. 357. If in an action for damages 
 it comes to the knowledge of the jury that the de- 
 fence is really on behalf of an insurance company 
 paid to protect the defendants against such risks, 
 there must be a new trial : Loughead v. Collingwood 
 Shipbuilding Co., 11 0. W. E. 329; Flynn v. Indus- 
 trial Exhibition, 6 O. L. E. 653, 2 O. W. E. 1047, 
 1075. It is not an ordinary case of improper ad- 
 mission of evidence under Con. Eule 785: see E. S. 
 O. 1914, ch. 56, sec. 28. A question as to whether 
 the defendants carry employers' liability insurance 
 is improper. Such evidence should not be consid- 
 ered by a jury : Bradburn v. Great Western By., L. 
 E. 10 Ex. 1. The Mariposa, 1891, P. 403 at p. 407, 
 but see Farmer v. G. T. E., 21 O. E. 299; Hicks v. 
 Newport, 4 B. & S. 403a. Whether under Con. Eule 
 785, a new trial need be granted in such a case 
 
CHAPTER 146. 661 
 
 where no substantial wrong or miscarriage has re- 
 sulted: see Loughead v. Collingwood, 11 0. W. R. 
 329. A condition in an employers '■ liability policy 
 that the insurers should have conduct and control 
 of defending any claim made, employing their own 
 solicitors, is not complied with by offering to turn 
 the action over to the insurers' solicitors when it 
 is at issue. An employer who takes such a course 
 with respect to the insurers cannot claim against 
 them the amount of a judgment obtained against 
 him, leaving the insurers to set up by counterclaim 
 that they could have done better: Wythe v. Manu- 
 facturers' Accident, 26 0. R. 153. 
 
 13. Notice of action: see Eke v. Hart Dyke, 1910, 2 K. 
 B. 677. While notice of injury required by sec. 9 
 is for the employer's protection against stale or 
 imaginary claims and to entitle him while the facts 
 are recent to make enquiry, the injured workman 
 is the primary object of legislative consideration. 
 Under sees. 9, 13 and 14, notice may be dispensed 
 with where there is reasonable excuse for the want 
 of it, the employer not being prejudiced : Armstrong 
 v. Canada Atlantic, 2 0. L. R. 219, 4 0. L. R. 560. 
 What constitutes reasonable excuse depends on the 
 particular case and regard should be paid to (a) 
 the notoriety of the accident, (b) the knowledge of 
 the employers of the injury and its cause, and (c) 
 claims made upon them: Armstrong v. Canada At- 
 lantic, 2 0. L. R. 219, 4 0. L. R. 560. The notice 
 of accident should be in writing: Hughes v. Coed 
 Talon Colliery, 1909, 1 K. B. 957. Where there is 
 actual knowledge or verbal notice, it may be re- 
 garded as an element of reasonable excuse but 
 something more is required. The fact of the ac- 
 cident by itself is not a reasonable excuse if it is 
 not accompanied by some disabling circumstance. 
 The plaintiff being misled by someone into not giv- 
 ing notice may be such a circumstance: O'Connor 
 v. Hamilton, 6 0. W. R. 227, 8 0. L. R. 391, 10 0. 
 L. R. 529; and see Biggart v. Clinton, 2 0. W. R. 
 1092, 3 0. W. R. 625; McCrae v. Brussels, 7 0. L. 
 R. 146, 8 0. L. R. 156. Where the conduct of the 
 defendants is such as to throw the plaintiff off his 
 guard as to seeking legal advice, it amounts to rea- 
 sonable excuse for not giving notice: Smith v. Mc- 
 intosh, 8 0. W. R. 472, 13 0. L. R. 118. Protracted 
 
g£2 CHAPTER 146. 
 
 negotiations for settlement as excuse for want of 
 notice: Grower v. Glen Woollen Mills, 4 0. W. N. 
 796, 28 L. R. 193. Reasonable excuse for not giv- 
 ing notice ; no one in the country pecuniarily inter- 
 ested or clothed with administration: Giovinazzo 
 v. C. P. R., 13 0. W. R. 24, 1200, 19 0. L. R. 325. 
 Ignorance of Act not an excuse for not giving 
 notice : Roles v. Pascall, 1911, 1 K. B. 982. Circum- 
 stances shewing reasonable excuse for insufficient 
 notice: Leitch v. Pere Marquette, 2 0. W. N. 617, 
 18 0. W. R. 433. Reasonable excuse for want of 
 notice : Quist v. Serpent River L. Co., 4 0. W. N. 159, 
 23 O. W. R. 151; Egerton v. Moore (1912), 2 K. B. 
 308. As to what constitutes reasonable excuse for 
 omission to give the statutory notice: see R. S. 0. 
 1914, ch. 192, sec. 460, and cases there noted. 
 
 14. To state in the defence that notice of the accident 
 has not been given and that the defendants intend 
 to rely on that defence is not sufficient. Formal 
 notice of objection must be given in accordance with 
 the provisions of this section : Wilson v. Owen Sound, 
 etc., Co., 27 A. R. 328 ; Cavanagh v. Park, 23 A. R. 
 715. Setting up defence of want of notice : see Lever 
 v. McArthur, 9 B. C. R. 417. " Seven days before 
 the hearing " means before the day originally, fixed 
 for the trial and not any adjourned day or the day 
 of actual hearing: Potter v. McCann, 16 0. L. R. 
 535, 11 0. W. R. 417. The defence of want of 
 notice under this Act is a statutory defence: Con- 
 roy v. Peacock, 1897, 2 Q. B. 6; see Con. Rule 271, 
 1913 Rule 143. 
 
 15. If the plaintiff cannot give the particulars directed 
 
 to be given until after discovery, he can have an 
 order for that purpose: Vannort v. Canada Foun- 
 dry, 11 0. W. R. 343. Particulars: see Scriver v. 
 Wabash Ry., 11 0. W. R. 832. Particulars as to 
 medical and nursing, expenses should be given: Od- 
 gers, 5th Edn. p. 116. Contributory negligence must 
 be specially pleaded: Odgers' Pleading, 5th Edn. p. 
 162; Con. Rule 268, 1913 Rule 141; Kelly v. Martin, 
 6 0. W. R. 141 ; McGinnis v. Hyslop Bros., 12 0. W. 
 R. 81, 140. 
 
 16. Where no defence entered, but damages assessed by 
 
 the Court: see as to counsel fees: Hamilton v. 
 
CHAPTER 146. 663 
 
 Hamilton, Grimsby & Beamsville Ry., 15 0. L. E. 50 ; 
 see also H. & L. notes, p. 778. 
 
 33. A plaintiff in a High Court action may at any stage 
 
 abandon a part of his claim and thereafter only the 
 remainder may be said to be in controversy: Pres- 
 ton v. Toronto Ry., 13 0. L. R. 79, 8 0. W. R. 753; 
 McKay v. Toronto Ry., 9 0. W. R. 832, 893. Where 
 an action under this Act is at issue, the plaintiff 
 will be permitted in proper terms to amend and 
 add claim at common law : Stuart v. Bank of Mont- 
 real, 14 0. L. R. 487, 9 O. W. R. 822; Guthro v. 
 Foster Cobalt, 11 0. W. R. 882; and vice versa: 
 Casselman v. Barry, 8 0. W. R. 198. A plaintiff 
 whose statement of claim alleged generally a cause 
 of action both at common law and under this Act, 
 but gave no facts to support the latter, was al- 
 lowed to amend, after a trial, by setting out facts 
 which would shew a cause of action under this Act : 
 McKay v. Toronto Ry., 9 0. W. R. 832, 893. Right 
 to amend after six months limited in sec. 9: Pascal 
 v. Nicholson, 11 0. W. R. 394. The function of a 
 Court of Appeal is not to retry the question or to 
 set aside the verdict if it is one which might rea- 
 sonably be found by the jury even though a differ- 
 ent result might be more satisfactory to the Judge 
 at trial or the Court of Appeal: McArthur v. Dom. 
 Cartridge Co., 1905, A. C. 72. 
 
 34. This provision throws on the defendants the onus 
 of shewing that' the accident was not caused by the 
 want of a guard, etc. : Godwin v. Newcombe, 1 0. L. 
 R. 525. See cases noted, sec. 3 (a), and 6, ante. 
 
£04 CHAPTER 14T. 
 
 CHAPTEE 147. 
 
 The Appbentices and Minobs Act. 
 
 Refer to: Smith on Master and Servant, Mac- 
 donell on Master and Servant, Austin on Appren- 
 tices. 
 
 6. It would seem at common law that the age at which 
 apprentices could be bound or could bind them- 
 selves was 7 years: E. v. Saltern, 1 Bott. P. L. 
 Cas. 613. Where a statute prohibits the taking of 
 an apprentice under a certain age and a child 
 under that age is taken notwithstanding, the bind- 
 ing will be void : E. v. Hipswell, 8 Barn. & Cress, 
 466. A master has no common law right to dis- 
 miss his apprentice for ordinary misconduct : Win- 
 stone v. Linn, 1 B. & C. 460; Phillips v. Cliff, 4 H. 
 & N. 168. He can only do so where the contract 
 in express terms gives him the power to dismiss 
 him: Westwick v. Theodor, L. E. 10 Q. B. 224, 
 44 L. J. Q. B. 110. But a master can dismiss an 
 apprentice who is an habitual thief: Learoyd v. 
 Brooks, 1891, 1 Q. B. 431. 
 
 9. Where a minor enters into a contract of hiring, the 
 
 wages he earns belong to him and not to his parent : 
 Delesdernier v. Burton, 12 Gr. 569. Quaere whether 
 if an infant hire himself for wages to his parent, 
 the contract is binding on the latter: Perlet v. 
 Perlet, 15 U. C. E. 165; and see Smith v. Smith, 
 29 0. E. 309, 26 A. E. 397. E. S. O. 1914, ch. 63, sec. 
 66, was intended to enable infants to recover for their 
 own labour (contrary to the common law rule), and is 
 not to be construed as restricting them from suing 
 for anything but wages : Ferris v. Fox, 11 U. C. E. 
 612; see notes to sec. 12 infra. 
 
 10. At common law an apprentice cannot be compelled 
 to serve the executors, etc., of his master unless the 
 indenture binds him to the master, "his executors 
 and administrators:" Cooper v. Simmonds, 7 H. 
 & N. 707. 
 
CHAPTER 147. 665 
 
 12. If the master carries on several trades, the appren- 
 tice is entitled to instruction in all the trades, and 
 if the master gives up any one of them the appren- 
 tice may cease to serve the master, who will be 
 liable on his covenant to teach: Ellen v. Topp, 
 6 Ex. Rep. 424, 20 L. J. Ex. 241. By the general 
 law a master is not bound to provide medical advice 
 for a servant, but the case is different in regard 
 to an apprentice and the master is bound during 
 the illness of his apprentice to provide him with 
 proper medicine: per Patteson, J., Reg. v. W. 
 Smith, 8 C. & P. 153. Where infant apprentice is 
 injured through master's negligence, see as to par- 
 ents' right to engage medical help and make it an 
 item of claim against the master: Shea v. Inglis, 
 12 0. L. R. 80, 8 0. W. R. 208. In an action under 
 the "Workmen's Compensation for Injuries Act, the 
 mother of an infant cannot recover for her services 
 in attending on him during his illness and for 
 moneys expended, and liabilities incurred by her 
 for medical attendance, nursing and supplies, as 
 she has not the legal relationship of master nor 
 legal liability to maintain him: Wilson v. Boulter, 
 26 A. R. 184; Wright v. McCabe, 30 O. R. 390. 
 The action for injury to an apprentice is funda- 
 mentally the master's action per quod servitium 
 amisit: Robert Mary's Case, 9 Rep. 113a. The 
 father's right to bring such an action is really an 
 infringement of the master's right, and is based on 
 the same reasoning: Grinnell v. Wells, 7 M. & G. 
 1033; Cuming v. Brooklyn City Ry., 109 N. Y. 95. 
 The mother would appear to have no such right by 
 common law or statute: Wilson v. Boulter, 26 A. 
 R. 180. And how far the right of the father would 
 extend when the child is, as it were, emancipated and 
 earning wages for himself under his own contracts, 
 may be doubtful : Delesdernier v. Burton, 12 Gr. 569 ; 
 Perlet v. Perlet, 15 U. C. R. 165; Smith v. Smith, 29 
 a R. 309. 26 A. R, 397 ; Ferris v. Fox, 11 U. C. R. 612. 
 See sec. 5 supra and R. S. O. 1897, ch. 60, sec. 78, 
 and notes thereto; also Bicknell & Seager, D. C. 
 Act, p. 117; R. S. O. 1914, ch. 63, sec. 66; see also 
 R. S. 0. 1914, oh. 229, sec. 2 (I), (q), (r) ; R. S. 0. 
 1914, ch. 151, sec. 8. 
 
ggg CHAPTER 148. 
 
 CHAPTER 148. 
 
 The Marbiage Act. 
 
 Refer to Holmested (Can.); Gremmell on Divorce; 
 Eversley, Domestic Relations. 
 
 1. Powers of Dominion and Provinces : see Re Marriage 
 Laws, 46 S. C. R. 132; Re Questions Concerning 
 Marriage, 1912, A. C. 880. The only marriage 
 known to the law of England is Christian marriage, 
 which has been judicially defined as " the voluntary 
 union for life of one man and one woman to the 
 exclusion of all others ": Hyde v. Hyde, L. R. 1 P. 
 & D. 130. A monogamous union between persons 
 marriageable by the law of their domicile and val- 
 idly celebrated according to the lex loci contractus 
 will be recognized as marriage in the English 
 Courts : Brinkley v. A. G., 1890, 15 P. D- 76. A union 
 either actually or potentially polygamous will not 
 be so recognized: in Re Bethell, L. R. 38 Ch. D. 220. 
 Foreign common law marriage, validity: see An- 
 notation, 5 D. L. R. 247. 
 
 2. — (a) The words " Church and religious denomina- 
 tion " should not be construed so as to confine them 
 to Christian bodies : R. v. Dickout, 24 O. R. 250. 
 ' ' The Reorganized Church of Jesus Christ of Lat- 
 ter-Day Saints " is a religious denomination within 
 the meaning of the Statute: R. v. Dickout, 24 O. R. 
 250. What amounts to proof of authority under 
 this section: R. v. Brown, 12 0. W. R. 488. Crim- 
 inal offence of solemnizing a marriage without law- 
 ful authority : see Criminal Code, sec. 311. 
 
 2. — (c) The powers given by this section, the only in- 
 stance where legal recognition has been given to 
 or sought by the Salvation Army, were said to 
 constitute the Salvation Army ' ' a religious com- 
 munity or society ' ' within the meaning of and with 
 the powers conferred by R. S. O. 1897, ch. 307: 
 Kingston v. the Salvation Army, 5 O. L. R. 585, but 
 this was doubted in the subsequent proceedings: 6 
 0. L. R. 406. It was held not applicable so as to 
 
CHAPTER 148. 667 
 
 hold the whole society answerable in tort: Kingston 
 v. the Salvation Army, 6 0. L. E. 406. 
 
 4. — (2) "Where banns have been published and no dis- 
 sent expressed by parents or guardians, the hus- 
 band being under age is no objection: Reg v. See- 
 ker, 14 U. C. E. 604. 
 
 15. Absence of parents' consent: Menzies v. Farnon, 
 18 0. L. E. 175, 13 0. W. E. 586, 711. See sees. 34, 
 35, and notes. 
 
 16. See sees. 34, 35 and notes. 
 
 17. Marriage of lunatics, when void: see E. S. 0. 1897, 
 ch. 341, sec. 3 (not consolidated). 
 
 20. Marriage with deceased husband's brother, if valid 
 by lex domicilii, is valid in England, although the 
 wife was a domiciled Englishwoman at the time of 
 her second marriage and merely acquired a foreign 
 domicile by that marriage: Ee Bozzelli, 1902, 1 Ch. 
 751. The Supreme Court of Ontario has no jurisdic- 
 tion to declare invalid a marriage within the prohib- 
 ited degrees of consanguinity : May v. May, 16 0. W. 
 E. 1006, 18 0. W. E. 515, 2 0. W. N. 68, 413, 22 0. L. 
 E. 559. By English law adopted in this Province in 
 1792, marriage with a deceased wife's sister was not 
 ipso facto void, but was esteemed valid for all civil 
 purposes unless annulled during the lifetime of the 
 parties. This remained the law until 45 Vic. ch. 42 D., 
 which removed all disabilities: Ee Murray Canal, 
 6 0. E. €85; Hodgins v. McNeil, 9 Gr. 305. By 53 
 Vic, ch. 36, sec. 1, " all laws, prohibiting marriage 
 between a man and the daughter of his deceased 
 wife's sister, where no law relating to consanguin- 
 ity is violated, are hereby repealed both as to past 
 and future marriages. See Criminal Code, sec. 204. 
 For article on marriage . with deceased wife 's sis- 
 ter, the history of the law relating to this in Can- 
 ada and in England and the position in England of 
 persons contracting such marriages in Canada: see 
 41 Can. Law Journal, p. 345. 
 
 35. The testimony of a woman of the ceremony having 
 been performed and evidence of respectable wit- 
 nesses of general reputation held sufficient without 
 
ggg CHAPTER 148. 
 
 proof that the clergyman was duly authorized, and 
 that evidence of reputation alone was sufficient: 
 Baker v. Wilson, 8 Gr. 376. Presumption of mar- 
 riage may arise from reputation and cohabitation; 
 but such presumption is rebuttable : George v. 
 Thomas, 10 U. C. E. 604; Preston v. Lyons, 24 Gr. 
 142; "Wright v. Skinner, 17 C. P. 317; Doe d. 
 Breakey v. Breakey, 2 U. 0. E. 349. Where it is 
 sought to establish marriage it is essential that such 
 repute should be general and uniform : Henderson 
 v. Weis, 25 Gr. 69. A recognition by a party that 
 A. is his wife is sufficient to charge him with neces- 
 saries, although they do not cohabit, having in fact 
 separated and though stricti juris she is not his 
 wife: Hawley v. Ham, Tay. 385. Where a man and 
 woman are proved to have lived together as man 
 and wife for a considerable time, the law will pre- 
 sume that they were living together in consequence 
 of a valid marriage, unless the contrary is clearly 
 proved: in Ee Shephard, George v. Thyer, 1904, 1 
 Ch. 456. 
 
 36. Doubt as to constitutionality of this enactment: 
 May v. May, 16 0. W. E. 1006, 18 O. W. E. 515, 2 
 O. W. N. 68, 413, 22 0. [L. E. 559. Malot v. Malot, 
 4 0. W. N. 1405, 1577, 24 O. W. E. 714, 884. This 
 section covers cases of infancy where the marriage 
 has been merely a form and when there has been 
 
 no cohabitation: T v. B 15 0. L. E. 224, 
 
 10 0. W. E. 1030; see Eosney v. Eosney, 35 N. J. Eq. 
 231. There is no legislation in Ontario which en- 
 ables the courts of this province to hold suit in 
 cases where the marriage status is involved and 
 the litigation is really in rem, dissolving the exist- 
 ing marital union. The only forum open to aggrieved 
 spouses is the High Court of the Dominion Parlia- 
 ment : Per Boyd, C. : T v. B , 15 0. L. B. 224, 
 
 10 0. W. E. 1030; Gemmell on Divorce, pp. Ill, 191. 
 In order to render void a ceremony of marriage 
 otherwise valid on the ground that the man was in- 
 toxicated it must be shewn that there was such a 
 state, of intoxication as to deprive him of all sense 
 and volition and to render him incapable of know- 
 ing what he was about: Eoblin v. Eoblin, 28 Gr. 
 439. A marriage entered into while the man was 
 so intoxicated as to render him incapable of voli- 
 tion is voidable only and may be ratified : Eoblin v. 
 
CHAPTER 148. 669 
 
 Eoblin, 28 Gr. 439. A marriage ceremony is not void- 
 able on the ground of dfraud, however gross, unless the 
 defrauded party did not understand the nature of the 
 ceremony : Moss v. Moss, 1897, Prob. 263 ; Ford v. 
 Stier, 1896, Prob. 1. Where banns have been pub- 
 lished and no dissent there expressed by parents 
 or guardians, the husband being under age is no 
 objection* even by the English Marriage Act, 26 Geo. 
 II., ch.' 33: Eeg v. Seeker, 14 U. C. E. 604. But it 
 seems that Act is not in force "here : E. v. Seeker, 
 14 U. C. E. 604; E. v. Bell, 15 U. C. E. 287; E. v. 
 Eoblin, 21 U. C. E. 352. It is illegal as it was in 
 England before 26 Geo. II., ch. 33, to marry by 
 license, where either of the parties is under 21, with- 
 out consent of parents or guardians, but the mar- 
 riage itself is not void, sec. 11 of that Act not being 
 in force here : E. v. Eoblin, 21 U. C. E. 352 ; Lawless 
 v. Chamberlain, 18 0. E. 286; see Wadsworth v. 
 McCord, 12 S. C. E. 466; McMullen v. Wadsworth, 
 14 App. Cas. 631. The Supreme Court of Ontario has 
 no jurisdiction to declare invalid a marriage on the 
 ground that one of the contracting parties was of 
 unsound mind : Caine v. Birinen, 18 0. W. E. 627, 2 
 0. W. N. 796; see E. S. 0. 1897, ch. 341, sec. 3 (not 
 consolidated). The Supreme Court has no jurisdic- 
 tion to declare invalid a marriage within the prohi- 
 bited degrees of consanguinity : May v. May, 16 O. W. 
 E. 1006, 18 0. W. E. 515, 2 0. W. N. 68, 413, 22 0. L. E. 
 559. Husband, a Frenchman, not being 21 and hav- 
 ing married without parents ' consent, the marriage 
 was annulled in France. Later the woman married an 
 Englishman in England^. Held bigamous and there- 
 fore to be annulled at the suit of the man party to 
 it: Ogden v. Ogden, 1907, P. 107. Nullity; no co- 
 habitation; authorities on inference of incapacity: 
 see W. v. W., 1905, P. 231. The Supreme Court 
 has jurisdiction where a marriage, correct in 
 form, is ascertained to be void de jure by reason of 
 the absence of some essential preliminary, to declare 
 the same null and void ab initio, but nothing short 
 of the most clear and convincing testimony will jus- 
 tify the intervention of the Court : Lawless v. Cham- 
 berlain, 18 0. E. 296 (but see later cases). The Su- 
 preme Court has no jurisdiction to entertain an ac- 
 tion to have a marriage declared null and void by rea- 
 son of the alleged incapacity and impotence of one of 
 
670 
 
 CHAPTER 149. 
 
 the parties : T. v. B., 15 0. L. E. 224, 10 0. W. E. 1030. 
 The Supreme Court has no jurisdiction to declare 
 nullity of marriage on grounds of impotency : Leakim 
 v. Leakim, 21 O. W. E. 855, 3 O. W. N. 994, 23 O. W. 
 E. 227, 4 0. W. N. 214; but see P., otherwise C. V. P., 
 11 B. C. E. 369. Action for nullity: Malot v. Malot, 
 4 0. W. N. 1405, 1577 ; Dilts v. Warden, 3 0. W. N. 
 1319, 22 0. W. B. 228. The Supreme Court has no 
 power to make a declaration of nullity of marriage : 
 A. v. B,, 23 0. Li E. 261 ; Prowd v. Spence, 4 0. W. N. 
 998, 24 0. W. E. 329. 
 
 37. A motion for judgment cannot result in an adjudi- 
 cation under this section; the circumstances estab- 
 lishing the invalidity must be proved in open Court 
 by viva voce evidence: Menzies v. Farnon, 18 0. L. 
 E. 174, 13 0. W. E. 586, 711. 
 
 CHAPTEE 149. 
 
 The Mabbibd Women's Peoperty Act. 
 
 Eefer to Holmested, M. W. P. Act; Griffith's M. W. 
 P. Acts; Armour on Titles; Armour on Eeal Pro- 
 perty; Bicknell and Kappele, Practical Statutes, pp. 
 
 778-788. 
 
 1. At common law a married woman's disabilities were 
 that she could not contract, could not convey and 
 could not sue or be sued alone. The husband could 
 reduce his wife's chattels into possession, dispose 
 of them and bind them by his debts. He could man- 
 age his wife's real property, bind it by his debts 
 and dispose of it for the term of their joint lives. 
 He had tenancy by the curtesy, on birth of issue 
 capable of inheriting, of which his wife could not 
 deprive him during her life (tenancy by the cur- 
 tesy initiate), and on his wife's death seized, leav- 
 ing issue capable of inheriting, the husband had his 
 estate for life in his wife's lands (tenancy by the 
 curtesy consummate). 
 
 The history of legislation may be briefly referred 
 to: 
 (1) " Fine:" common law method of conveying the 
 whole of the wife's and husband's estate; separate 
 
CHAPTER 149. (ftl 
 
 examination of wife: see Pollock & Maitland, His- 
 tory of Common Law, vol. II. p. 401. 
 
 (2) The equitable doctrine of separate estate de- 
 veloped circ. 1738, lands being conveyed to trustees 
 to the use of the married woman, which use she 
 might deal with, alien or charge with her debts 
 within the limits of the powers conferred by the 
 
 . trust deed: see Fullett v. Armstrong, 1 Beav. 22, 23 
 (1838). 
 
 (3) Eestraint on anticipation of equitable separate es- 
 tate, circ. 1788, adopted by Lord Thurlow permit- 
 ting restrictions on a married woman's power of 
 disposing of her separate estate or charging it with 
 her debts : Fullett v. Armstrong, supra. 
 
 (4) 1803. 43 Geo. III., ch. 5 (Upper Canada). Abolish- 
 ing fines as a method of conveyance by married 
 women and substituting deed by her and her hus- 
 band with separate judicial examination of the wife 
 to ensure freedom from her husband's undue in- 
 fluence. 
 
 (5) 1831. 1 Will. IV., ch. 2 (Upper Canada). New but 
 similar powers of disposition, retaining the essen- 
 tials of joint execution by husband and wife and sep- 
 arate examination of wife. 
 
 (6) 1859. 22 Vict., ch. 34 (C. S. U. C. ch. 73). Applies 
 the principle of separate estate to all property of 
 women married after May 4th, 1859, or acquired 
 after that date, not received from husband during 
 coverture and not the subject of a marriage settle- 
 ment. Frees it from the control and debts of the 
 husband but confers no new power of alienation 
 upon the wife, and no power to contract, and pre- 
 serves the husband's estate by the curtesy intact 
 (see sees. 1, 2, 3 and 4). Conferred a limited power 
 to devise or bequeath by will to members of her 
 family, if any (sec. 16). 
 
 (7) 1872. 35 Vict., ch. 16 (Ont.). Modelled on English 
 Act, 33 and 34 Vict., ch. 93. Applied: (a) To 
 women married after 2nd March, 1872. (b) To the 
 property of any married woman acquired by her 
 after March 2nd, 1872. The effect of this legisla- 
 tion was that it: (a) Preserved all the remedial fea- 
 tures of the Act of 1859. (b) Enabled a married 
 woman to hold her lands free from her husband's 
 tenancy by the curtesy during her life, but pre- 
 served that estate in land which she had not 
 
g72 CHAPTER 149. 
 
 disposed of by deed inter vivos or by will, (c) Per- 
 mitted the wife to . sue in ber own name for her own 
 " wages, earnings, money and property," (sec. 9); 
 to bold and vote on stocks (sec. 5) ; and keep a bank 
 account (sec 6). (d) Enabled ber to dispose of ber 
 lands free from ber husband's estate by tbe curtesy, 
 but did not abolish the necessity for his joining in 
 the deed, nor for ber separate examination to en- 
 sure the validity of the deed as required by the 
 various re-enactments of the Act of 1831 (see these 
 acts consolidated C. S. U. C. ch. 85). This is prob- 
 ably the law, although there is a doubt whether in 
 the case of a woman married after March 2nd, 1872, 
 it is necessary for a husband to join, and whether 
 or not his joining is a mere formality: see Boustead 
 v. Whitmore, 22 Gr. 222 ; Bryson v. 0. and Q. Ey., 8 
 0. B. 380; Furness v. Mitchell, 3 A. B. 510; Coulter 
 v. Smith, 8 0. B. 536; Moore v. Jackson, 22 S. C. B. 
 210 at p. 223. 
 
 (8) 1873. 36 Vict., ch. 18 (Ont). The " Married 
 Woman's Eeal Estate Act. 1873." Dealt only with 
 married women's conveyances of land, abolished 
 the necessity for any separate judicial examination 
 of the wife but retained the requirement that the 
 husband should join in her deeds. While saying 
 nothing about tenancy by tbe curtesy, it was the 
 attempt to reconcile this Act with tbe Act of 1872 
 that led to the difficulties discussed in Furness v. 
 Mitchell, 3 A. B. 510, and other cases, supra, namely : 
 (a) Whether after 1872 tbe wife could convey 
 away the husband's estate by the curtesy. (&) 
 Whether a deed without her husband's concurrence 
 would validly convey the wife's own interest in tbe 
 lands. Owing to the lapse of time and subsequent 
 legislation these questions are becoming of histori- 
 cal interest only. 
 
 (9) 1877. B. S. 0. 1877, ch. 125. This revision consoli- 
 dated previous Acts and embodied some of the late 
 English provisions passed in 1874 (37-38 Vict., ch. 
 50). It omitted to provide for the case of lands 
 acquired after March 2nd, 1872, by a woman mar- 
 ried before that date, but otherwise re-enacted the 
 provisions of the Acts of 1859 and 1872 and ex- 
 tended them, by providing that the wife might con- 
 tract on proving that she bad real estate at the time 
 of the contract and that she contracted in respect 
 
CHAPTER 149. 673 
 
 of it, but any judgment recovered did not bind her, 
 but only her separate real property owned at the 
 time of the contract, 40 Vict., ch. 7.' Schedule A 
 (156), R. S. 0. 1877, ch. 125, sec. 19. 
 (10) 1884. 47 Vict., ch. 19 (Out.). July 1st, 1884. A re- 
 enactment largely of the English Married Woman's 
 Property Act, 1882 (45-46 Vict., ch. 75). Retained 
 the provisions of previous Acts so far as they af- 
 fected women who married or acquired property 
 during coverture before July 1st, 1884, and enlarged 
 the rights and powers of those who married or 
 acquired property during coverture after July 1st, 
 1884, in the following amongst other respects: (a) 
 Enabled her not only to " acquire and hold " but 
 to dispose of property real and personal as her 
 separate property as if she were feme sole, sec. 2 
 (1) 3, 5, 6 and 7. (■&) This general power of dis- 
 position applied not only to deeds inter vivos but to 
 wills, sees. 2 and 3. (c) She might become liable on 
 any contract to the extent of her separate property 
 then existing or afterwards acquired during cover- 
 ture, and bind it, and she might sue and be sued as a 
 feme sole, sec. 2; but it would not bind property 
 acquired by her after her husband's death nor would 
 it permit judgment to be entered against her per- 
 sonally, but only against her " separate " property: 
 Hammond v. Keachie, 28 O. R. 455. (d) It became 
 no longer necessary to prove that the contract was 
 expressly entered into with respect to and to bind 
 her separate estate, as every such contract was to 
 be deemed to have been so entered into (sec. 2). It 
 was, however, still necessary to prove that she had 
 separate property when she made the contract: 
 Stogdon v. Lee (1891), 1 Q. B. 661; McMichael v. 
 Wilkie, 18 A. R. 464 at p. 469; Re Hamilton v. 
 Perry, 24 0. L. R. 38; and the statutory presump- 
 tion that the contract was entered into with refer- 
 ence to and with intent to bind her separate pro- 
 perty might be rebutted: McMichael v. Wilkie, 18 
 A. R. at p. 476. (e) The provision in 36 Vict., ch. 
 18, re-enacted in R. S. 0. (1877), ch. 127, requiring 
 the concurrence of the husband in deeds made by 
 married women was repealed (47 Vict., ch. 19, sec. 
 22), and thereafter married women have always 
 been permitted to not only convey their own in- 
 terest in the lands but also their husband's estate 
 
 S.A. — 43 
 
674 CHAPTER 149. 
 
 by the curtesy without his concurrence: (see now, 
 sec. 4 infra) : Moore v. Jackson, 22 S. C. E. at p. 16. 
 
 (11) 1887, E S. 0. 1887, ch. 132. Consolidating the 
 " Married Woman's Property Act " of 1884 and 
 previous Acts with some amendments not very 
 
 (12) 1887, E. S. 0. 1887, ch. 134. Consolidating " The 
 Married Woman's Eeal Estate Act " but leaving 
 out the provision requiring the husband's concur- 
 rence in the wife's conveyances which had been re- 
 pealed in 1884. Some sections were also enactedfor 
 validating earlier irregular deeds. 
 
 (13) 1897. 60 Vict., ch. 22. 13th April, 1897, adopting 
 English legislation of 1893 (56-57 Vict., ch. 63) with 
 some changes. It enlarges the powers of a mar- 
 ried woman to bind her separate property by enact- 
 ing: (a) That every contract by a married woman 
 shall be deemed to be a contract entered into by her 
 with respect to and shall bind her separate property 
 whether she is or is not in fact possessed of or en- 
 titled to any separate property at the time when 
 she enters into such contract, without formal proof 
 thereof by the creditor (sec. 1). (b) That any such 
 contract shall bind " separate " property which she 
 may at the time or thereafter possess (sec. 1). This 
 was the law before : Hammond v. Keachie, 28 0. E. 
 455. (c) That it shall bind any property that she 
 may afterwards acquire " while discovert." That 
 is property acquired when she is a widow (sec. 1). 
 This alters the law as laid down in Hammond v. 
 Keachie, 28 0. E. 455, and gives the creditor re- 
 course to property owned during coverture which 
 is ' ' separate estate ' ' and also property owned or 
 acquired after her husband's death, which never 
 was " separate " property. 
 
 (14) 1897. E. S. 0. 1897, ch. 163. With these changes and 
 some minor amendments " The Married Woman's 
 Property Act " was consolidated and has since been 
 left unchanged. 
 
 (15) 1897. E. S. 0. 1897, ch. 165. " The Married Woman's 
 Eeal Estate Act " consolidated with some changes 
 made in 1888, 1894 and 1897; the most important 
 being the right of an infant wife to bar dower, se«. 
 9. 
 
 (16) 1900. 63 Vict., ch. 17, sec. 21. " The Married 
 Woman's Eeal Estate Act," sec. 7, amended by 
 
CHAPTER 149. 675 
 
 validating certain deeds previously executed with- 
 out the necessary formalities. 
 
 (17) 1910. 10 Edward VII., ch. 26, sec. 10. " The Mar- 
 ried "Woman's Eeal Estate Act," sec. 3, amended 
 by enabling a married woman to execute a valid 
 discharge of mortgage. 
 
 (18) 1913. 3-4 Geo. V., ch. 29, E. S. 0. 1914, ch. 149. The 
 Married Women's Property Act. A consolidation 
 with few changes of E. S. 0., 1897, cap. 163. The 
 only important change in the wording is in sec. 4 
 (2) providing that a married woman may sue or be 
 sued alone in respect of a tort. This right appear- 
 ed in the English Act of 1882, but in E. S. 0., 1897, 
 cap. 163, sec. 3 (2), the right to sue or be sued alone 
 in respect of a tort was not expressly given. The 
 husband may apparently yet be sued with the wife 
 for the wife's tort if the plaintiff so elects : see Earle 
 v. Kingscote (1900), 2 Ch. 585. 
 
 (19) 1913. 3-4 Geo. V., ch. 30, E. S. O. 1914, ch. 150. 
 The Married Woman's Conveyances Act embody- 
 ing the provisions of E. S. 0., 1897, eh. 165, 63 
 Vict., ch. 17, sec. 21, and 10 Edw. III., ch. 26, sec. 
 10. 
 
 4. — (1) Lands as separate estate: see general note, sec. 
 1 supra. The statutes providing that the property 
 of a married woman should vest in her as separ- 
 ate property free from the control of her husband 
 and not liable for payment of his debts did not, ex- 
 cept in the cases especially provided for, enlarge her 
 power for disposing of such property or allow her 
 to enter into contracts which at common law would 
 be void: Moore v. Jackson, 22 S. C. E. 210; Lea 
 v. Wallace, 28 S. C. E. 595. A married woman was 
 able to contract so as to bind her " separate pro- 
 perty." What this was depended on the date of 
 her marriage and whether the property was real 
 or personal. In determining what is " separate 
 property within the meaning of the Act, it must be 
 property which the married woman has the right 
 to convey free from the control of her husband but 
 not necessarily property in which he has no in- 
 terest or estate:- Moore v. Jackson, 22 S. C. E. 210. 
 A man married in 1854 conveyed certain lands in 
 1870 to his wife by ordinary short forms deed in 
 consideration of " respect and one dollar." Held 
 
576 CHAPTER 149. 
 
 a valid transfer of the equitable estate in the pro- 
 perty to the separate use of the wife: Kent v. 
 Kent, 20 0. E. 445, 19 A. E. 352. A conveyance 
 made by a married woman made in 1846, whose 
 husband did not join in the conveyance, was totally 
 inoperative and not validated by 59 Vic. ch. 41: 
 Hartley v. Maycock, 28 0. E. 508. A husband 
 agreed to purchase land, and his wife, married to 
 him without a settlement in 1866 and who had 
 acquired lands, joined in the agreement to secure 
 its being carried out and charged her land with a 
 portion of the purchase money. It was held that 
 the wife's land was separate estate and properly 
 charged: Dame v. Slater, 21 0. E. 375. Where 
 land has been conveyed to husband and wife jointly 
 after the (Eng.) Act of 1882, the wife after divorce 
 takes a joint tenancy for her separate use : Thorn- 
 ley v. Thornley, 1893, 2 Ch. 229. (See E. S. 0. 
 1914, ch. 109, sec. 13, and notes). Since March 2nd, 
 1884, wife may convey or devise lands free from 
 her husband's curtesy and without his consent: 
 Moore v. Jackson, 22 S. C. E. pp. 223, 238. Statu- 
 tory separate estate under the various M. W. P. 
 Acts:' see Armour, Titles, p. 374, et seq.; see 
 also Armour, Eeal Property, p. 303. 
 
 Personal property of married woman. Although 
 sec. 6 (5) does not carry an express power to dis- 
 pose of personal property, money and many 
 other descriptions of personal property cannot be 
 enjoyed without being disposed of, and to hold 
 that the married woman should require the consent 
 of her husband to the disposition of any of her 
 personal property would be to make her subject to 
 his control which the statute says shall not be: 
 Chamberlain v. McDonald, 14 Gr. 447. It would 
 seem that married women therefore, no matter 
 when married, can contract in respect of separate 
 personal estate, not actually reduced into posses- 
 sion of their husbands on 4th May, 1859, provided 
 it is not the subject-matter of a settlement: lb. 
 A married woman is under no disability as to re- 
 ceiving and holding personal as well as real pro- 
 perty by direct gift or transfer from her husband. 
 Where a husband bought pictures and on taking 
 them home gave them to his wife, the subsequent, 
 
CHAPTER 149. 677 
 
 possession of the pictures was the wife's, although 
 the house was occupied by husband and wife: 
 Shuttleworth v. McGillivray, 5 0. L. R. 537. A 
 sale of chattels of household furniture in their 
 residence from a husband to his wife living to- 
 gether without a registered bill of sale, is void as 
 against creditors for lack of actual, open and contin- 
 ued charge of possession required by the Bill of Sale 
 Act : Hogaboom v. Graydon, 26 0. R. 298. Where be- 
 fore the Married Woman's Property Act a gift by 
 the husband to a trustee for the wife, would be good 
 as against creditors, it is good if to the wife direct : 
 Shuttleworth v. McGillivray, 5 0. L. R. 537; Sheratt 
 v. Merchants Bank, 21 A. R. 473; O'Doherty v. 
 Ontario Bank, 32 C. P. 285. Purchase of goods by 
 wife and chattel mortgage by her: Halpenny v. 
 Pennock, 33 U. C. R. 229. This section would 
 appear to apply only to the married woman's bene- 
 ficial interest. As to property held in trust there 
 would seem still to be a necessity for the husband 
 to join except as regards personal property eovered 
 by sec. 11: see English Amending Act of 1907, 
 correcting this anomaly: see Re Harkness and 
 Allsopp, 1896, 2 Ch. 358. 
 
 The husband's interest in his wife's land. Where 
 a woman was married on or before 4th May, 1859, 
 her husband is entitled to his full common law 
 rights in all those lands which were taken posses- 
 sion of by him or his tenants (Thompson v. Dick- 
 son, 28 C. P. 225), on or before that date, pro- 
 vided the lands are not affected by a marriage 
 settlement: Dawson v. Moffat, 13 0. R. 170. Where 
 a woman was married on or before 4th May, 1859, 
 then, in respect of lands which her husband had 
 not taken possession of on or before that date and 
 in respect of lands acquired by her afterwards and 
 before the 1st July, 1884, her husband has no in- 
 terest during her life nor are they subject to his 
 debts but the husband is entitled to an estate by 
 the curtesy in case he survives her, and this estate 
 cannot be defeated by the wife's will or sale deed: 
 Moore v. Jackson, 22 S. C. R. 210; Wylie v. 
 Frampton, 17 0. R. 515. Where a woman was mar- 
 ried in 1867, had issue born alive and acquired 
 lands in 1879 and 1882, it was held that she could 
 
67g CHAPTER 149. 
 
 not convey to a purchaser alone so as to give a 
 title free from the husband's claim, without an 
 order of the Court. But she could convey her own 
 estate in the land: Wylie v. Frampton, 17 0. E. 
 515 ; see Gracey v. Toronto Eeal Estate Co., 16 0. 
 R. 226. Where a woman was married after 4th 
 May, 1859, and before 2nd March, 1872, in respect 
 of lands which she may have acquired before 1st 
 July, 1884, the husband has no interest in such 
 lands during her life nor are they subject to his 
 debts, except such lands as he himself may have 
 given her during coverture, but the husband is 
 entitled to an estate by the curtesy in case he 
 survives her, and his estate cannot be defeated by 
 the wife's will or sole deed: Moore v. Jackson, 
 19 A. E. 383, 22 S. C. E. 210. It is concluded in 
 view of Moore v. Jackson, 19 A. E. 383; and Wal- 
 lace v. Lea, 28 S. C. E. 595, that the safer practice 
 is to add the husband of a married woman mort- 
 gagor as a party defendant in an action for fore- 
 closure or sale : Holmested and Langton notes^ p. 
 334. Where a woman was married after the 2nd 
 March, 1872, the husband appears to have no in- 
 terest in her lands, except a possible right to 
 curtesy in whatever lands may remain undisposed 
 of at the time of his wife's death. As to lands 
 acquired after 1st July, 1884, the husband appears 
 to have no interest except a possible right to the 
 curtesy in whatever may remain undisposed of at 
 the time of his wife's death: Hope v. Hope, 1892, 
 2 Ch. 336. The Act (Eng. 1882), has not affected 
 the right of a husband to an estate by the curtesy 
 in the undisposed of real estate of his wife : Hope 
 v. Hope, 1892, 2 Ch. 336. The question of tenancy 
 by the curtesy in view of the various M. W. P. Acts 
 is very fully discussed in Armour on Titles, pp. 207- 
 221. 
 
 4. — (2) To entitle a plaintiff to recover judgment on a 
 contract entered into by a married woman it is 
 necessary to shew, where the action is brought in 
 respect of a contract made before 13th April, 1897 
 (and subject to sub-sec. (4) ) that at the time the con- 
 tract was made the married woman making it had 
 separate property of a substantial character (Braun- 
 stein v. Lewis, 65 L. T. 449), with reference to which 
 
CHAPTER 149. 679 
 
 she could contract (Ee Shakspear, Deakin v. Larkin, 
 30 Ch. D. 169 ; Leake v. Driffield, 24 Q. B. D. 98 ; Ham- 
 mond v. Keachie, 28 0. R. 455 ; Moore v. Jackson, 16 
 A.R. 431 ; Robertson v. Laroque, 18 0. R. 469 ; Bar- 
 nett v. Howard, 1900, 2 Q. B. 784), or the contract was 
 void ab initio (Palliser v. Gurney, 19 Q. 
 B. D. 519; Stogden v. Lee, 1891, 1 Q. B. 
 661) and no personal liability was incurred 
 by a married woman having separate estate enter- 
 ing into a contract (Scott v. Morley, 20 Q. B. 120). 
 A married woman was informed by a relative that 
 he had made his will in her favour. Three days 
 after his death she signed a note before she had 
 seen the will, which in fact gave her a vested in- 
 terest in property, and several weeks before it was 
 proved. Held she was possessed of separate estate 
 and had contracted in respect of it: Mulcahy v. 
 Collins, 24 0. R. 441, 25 0. R. 241. Where at the 
 time of entering into a contract by a married 
 woman the only property possessed by her consisted 
 of her clothing and some trifling jewelry, it was 
 held that this was not separate estate with respect 
 to which she could reasonably be deemed to have 
 contracted: Abraham v. Hacking, 27 0. R. 431; 
 Leake v. Driffield, 24 Q. B. D. 98; Braunstein v. 
 Lewis, 65 L. T. N. S. 449. A married woman on 
 the day of entering into a money bond deposited 
 in her own name in a savings bank, a sum of money 
 given to her by her husband but of which she had 
 the absolute disposal. This was sufficient to found 
 a proprietory judgment against her and the exact 
 time of making the deposit and signing the bond 
 was not enquired into : Sweetland v. Neville, 21 0. 
 R. 412. A married woman possessed of separate 
 estate entered into a covenant to pay money. In 
 an action against her after her husband's death, it 
 was held that the liability which she undertook was 
 expressly limited by the extent of her separate pro- 
 perty then existing and thereafter acquired during 
 coverture : Hammond v. Keachie, 28 0. R. 455. 
 The implied obligation to pay off the incumbrance 
 which is ordinarily implied in the case of a con- 
 veyance of land was held not enforceable against 
 a married woman. It was not a contract or pro- 
 mise in respect of separate property: McMichael 
 v. Wilkie, 18 A. R. 464, 19 0. R. 739. But where 
 
ggO CHAPTER 149. 
 
 the assumption of the incumbrance was recited as 
 part of the consideration and a covenant to the 
 same effect was inserted in the conveyance, although 
 the deed was not executed' by the purchaser, she 
 having taken the benefit under the deed, was held 
 bound by the obligations therein and the covenant 
 was held enforceable against her separate estate: 
 Small v. Thompson, 28 S. C. E. 219 (see now sec. 
 
 5 (1) ). The interest of a wife in a policy of in- 
 surance effected by her husband on his own life 
 and which has been declared by him to be for her 
 benefit under the provisions of the Insurance Act, 
 is her separate estate and may be assigned by her 
 during her husband's lifetime: Graham v. Canada 
 Life, 24 0. E. 607. Since the passing of sec. 5 a 
 married woman can in all respects and for all pur- 
 poses contract with her husband as if she were a 
 feme sole, every contract being now deemed (under 
 sec. 5) to be made with respect to and to bind her 
 separate property: Gibson v. Le Temps, 8 0. L. 
 
 - E. 707. A husband of a married woman is put to 
 his election where her will affects to dispose away 
 from him of clearly indentified property which is 
 in fact his even if he has acquired it in her right 
 and also confers benefits on him: Ee Harris, Lea- 
 croft v. Harris, 1909, 2 Ch. 206. Covenant entered 
 into by married woman during coverture. Action 
 for breach : Ee Fieldwick, Johnson v. Adamson, 1909, 
 
 1 Ch. 1. In spite of the power a married woman 
 now has to bind her separate estate she cannot act 
 as next friend of infant plaintiff : Booth v. Toronto 
 General Trusts, 14 O. W. E. 87, 128; and see H. 
 
 6 L. notes, p. 355. How far a guarantee given by 
 a married woman in respect of her husband's in- 
 debtedness and a subsequent conveyance of her 
 property in satisfaction of it can be attacked for 
 lack of independent advice: Stuart v. Bank of 
 Montreal, 11 O. W. E. 1032, 12 0. W. E. 958, 
 17 0. L. E. 436, 41 S. C. E. 616, 103 L. T. E. 641. 
 The effect of the Privy Council decision in Stuart 
 v. Bank of Montreal, 103 T. L. E. 641 is to over- 
 rule Cox v. Adams, 35 S. C. E. 393; see Euclid Ave. 
 Trusts v. Hohs, 13 0. W. E. 1050, 18 0. W. E. 787, 
 
 2 0. W. N. 825, 23 0. L. E. 377; see also Sawyer 
 Massey v. Hodgson, 13 0. W. E. 980, 18 0. L. E. 
 
CHAPTER 149. 681 
 
 333. " A married woman when contracting other- 
 wise than for the benefit of her husband, has all 
 the capacity of a feme sole to bind her separate 
 estate:" Sawyer Massey v. Hodgson, 18 0. L. E. 
 333. See also articles in wife's right to indepen- 
 dent advice: 45 C. L. J. 653, 47 C. L. J. 41. As 
 to what goods may be seized under execution 
 against husband: see Crowe v. Adams, 21 S. C. R. 
 342. A creditor's rights against a married woman 
 is determined by the statute at the time the debt 
 is contracted and cannot be enlarged by the debtor 
 subsequently becoming a widow: Ee McLeod v. 
 Emigh, 12 P. R. 450. 
 
 " Either in contract or in tort." This is an amend- 
 ment of E. S. 0. 1897, ch. 163, sec. 3 (2). A mar- 
 ried woman may bring an action of tort in her own 
 name without joining her husband as plaintiff: 
 Spahr v. Bean, 18 O. E. 70. Neither at common 
 law nor under the M. W. P. Act will an action lie 
 by a married woman against another woman to 
 recover damages for alienation of her husband's 
 affections and for committing adultery with him: 
 Lellis v. Lambert, 24 A. E. 653 (overruling Quick v. 
 Church, 23 0. E. 262) ; Weston v. Perry, 14 0. L. E. 
 956, 1 0. W. N. 155. A married woman has no right 
 of action against the relatives of her husband for mis- 
 representations made by them before marriage as to 
 her husband's character and financial position : Bren- 
 nan v. Brennan, 19 0. E. 327. Apart from statute, a 
 married woman may be liable for her own torts, 
 where she has not been acting under her husband's 
 coercion: Consolidated Bank v. Henderson, 29 U. 
 C. C. P. 549; Stone v. Knapp, 29 U. C. C. P. 609; 
 Wagner v. Jefferson, 37 U. C. E. 551 ; Shaw v. Mc- 
 Creary, 19 0. E. 39. A married woman may be sued 
 alone to have a conveyance made by her hus- 
 band to her in fraud of creditors set aside, the tak- 
 ing of such conveyance being a tort for which since 
 1872 the wife could be sued alone: McFarlane v. 
 Murphy, 21 Gr. 80. A husband may apparently 
 yet be sued with the wife for the wife's tort: see 
 Earle v. Kingscote, 1900, 2 Ch. 585; Traviss v. 
 Hales, 6 0. L. E. 574, see sec. 18 post. A husband 
 as agent for his wife purchased goods from the 
 
gg2 CHAPTER 149. 
 
 plaintiffs who were ignorant that she was the pur- 
 chaser. On becoming aware of it it was held that 
 they could not have judgment against both hus- 
 band and wife but must elect as to which they 
 desired to hold: Davidson v. McLelland, 32 0. R. 
 382. See as to suit of wife against husband for 
 tort: sec. 16, notes. Husband's liability for wife's 
 tort: sec. 18, notes. 
 
 5.— (1) See Imperial Act, 56 and 57 Vic, ch. 60. The 
 Act does not even yet give a married woman a 
 general power to contract. No " personal liabi- 
 lity " is yet incurred (Scott v. Morley, 20 Q. B. D. 
 120), but the difficulties arising out of the necessity 
 for proving that the married woman has substan- 
 tial separate property (Braunstein v. Lewis, 65 
 L. T. 449), seem to be obviated as also do those 
 arising from the cases holding that failing proof 
 of separate estate the contract is void db initio (Pal- 
 liser v. Gurney, 19 Q. B. D. 519; Stogdon v. Lee, 
 1891, 1 Q. B. 661). When actions are founded on con- 
 tracts made since 13th April, 1897, it is no longer ne- 
 cessary to allege in the indorsement of the writ that 
 when the married woman made the contract sued 
 on she had and still has separate estate, so that 
 interlocutory judgment or judgment in default of 
 appearance may be signed: Gibson v. Le Temps, 
 8 0. L. B. 707; see formerly, Nesbitt v. Armstrong, 
 14 P. R. 366; Cameron v. Heighs, 14 P. E. 56; 
 and as to fi. fas. see Douglas v. Hutchinson, 12 A. 
 E. 110; Beemer v. Oliver, 10 A. R. 656, at p. 661; 
 H. & L. notes, p. 790. A married woman contracted 
 trade debts subsequent to 13th April, 1897, and after- 
 wards on the death of her husband became entitled to 
 the proceeds of a policy of life insurance which he 
 had made payable to her as beneficiary, The effect of 
 R. S. O. 1897, ch. 203, sec 159 (R. S. O. 1914, ch. 183, 
 sec. 178, is to create a trust in respect of such moneys 
 in favour of the wife without restraint on anticipa- 
 tion and such interest is separate property. On 
 her husband's death the fruits of the trust must be 
 regarded as separate property and liable to satisfy 
 the trade debts : Doull v. DoeUe, 10 0. L. R. 411. 
 An acknowledgment given by a married woman of 
 advances previously made to her by a testator in 
 respect of which she could not have been sued, not 
 
CHAPTER 149. 683 
 
 having separate property at the time the advances 
 were made, will not render her liable although 
 the acknowledgment be such as would take the debt 
 out of the statute of limitations: Ee "Wheeler, 
 Hankinson v. Hayter, 1904, 2 Ch. 66. As to liabi- 
 lity of married women on implied contracts: see 
 McMichael v. "Wilkie, 18 A. E. 464; Small v. 
 Thompson, 28 S. C. R. 219. It follows from 
 the wording of this section that a contract made 
 by a wife through her husband as agent is by 
 law a contract with respect to and binding on 
 her separate estate: Davidson v. McClelland, 32 
 O. E. 382. Business of married woman managed 
 by the husband: Ee Simon, 1909, 1 K. B. 201. 
 "Where in fact a married woman contracts by her 
 husband's authority it is immaterial whether or not 
 the other party to the contract is aware that the 
 wife is acting as her husband's agent: Paquin v. 
 Beauclerk, 1906, A. C. 148. The separate estate of 
 a married woman is liable for her funeral expenses : 
 Ee Gibbons, 31 0. E. 252. There is still no per- 
 sonal liability by a married woman under a judg- 
 ment recovered by a creditor: Doull v. Doelle, 10 
 O. L. E. 411, at p. 418; Ee Hamilton v. Perry, 24 
 0. L. E. 38. Effect of judgment against married 
 woman before 1897; Hamilton v. Perry, 2 0. "W. 
 N. 1181, 19 0. "W. E. 370, 24 0. L. E. 38; and see 
 Teasdell v. Brady, 18 P. E. 104. It is only a matter 
 of convenience to say that the judgment against a 
 married woman is " proprietary " and not " per- 
 sonal." It is really personal but can only be en- 
 forced against her property: Pelton v. Harrison, 
 1891, 2 Q. B. 422; Holtby v. Hodgson, 24 Q. B. D. 
 105. Jurisdiction of Division Court to give judg- 
 ment against married woman dates from 1897: Ee 
 Hamilton v. Perry, 24 0. L. E- 38. Liability of 
 married woman to be examined as judgment debtor 
 in High Court and Division Court proceedings and 
 to be committed to gaol in default: see Ee Mc- 
 Leod v. Emigh, 12 P. E. 450; "Watson v. Ontario 
 Supply Co., 14 P. E. 96; Pearson v. Essery, 12 
 P. E. 466. As to arrest as fraudulent debtor: see 
 Doull v. Doelle, 4 0. L. E. 525, 10 0. L. E. 411. 
 The following form of judgment against a married 
 woman in respect of her separate estate is now in 
 use in the Supreme Court: " This Court doth order 
 
g84 CHAPTER 149. 
 
 and adjudge that the plaintiff do recover against the 
 defendant the sum of $ to be levied out of the 
 
 separate property of the said defendant which she is 
 now or may hereafter be possessed of or entitled to, 
 and any property which she may hereafter while dis- 
 covert be possessed of or entitled to, and not other- 
 wise: but this judgment shall not render available 
 to satisfy the same (any separate property which 
 the defendant was or may be restrained from antici- 
 pating, unless by reason of sec. 21 of the Married 
 Women's Property Act, such property shall be 
 available to satisfy the judgment notwithstanding 
 such retriotion." 1913, Form 110, and see 10 0. 
 L. E., p. 418. This form should have certain verbal 
 alterations where the married woman has become 
 a widow: Softlaw v. Welch, 1899, 2 Q: B. 419. 
 Enforcing judgments against married women: H. 
 & L. notes, pp. 352-354. Married woman's liabi- 
 lity for costs : see Perrins v. Bellamy, 68 L. J. Ch. 
 397; Hood Barrs v. Heriot, 1897, A. C. 177; 
 Moran v. Place, 1896, P. 214; Paget v. Paget, 
 1898, 1 Ch. 470; Pawley v. Pawley, 1905, 1 Ch. 
 593; Dresell v. Ellis, 1905, 1 K. B. 574; Nunn 
 v. Tyson, 1901, 2 K. B. 487; Hood Barrs v. Cath- 
 cart, 63 L. J. Ch. 793, 1894, 3 Ch. 376; Crickitt v. 
 Crickitt, 71 L. J. P. 65, 1902, P. 177; Gordon v. 
 Gordon, 73 L. J. P. 41, 1904, P. 163. 
 
 5. — (2) It is doubtful whether this exception applies to 
 damages for a tort. As to effect of this section on 
 property subject to restraint on anticipation: see 
 sec. 21, notes. 
 
 6.— (1) The arrangement of this section has apparently 
 not aided the Courts in their interpretation of the 
 statute as to property of women married at the 
 various periods mentioned: see general note, sec. 
 1 and note to 4 (1), ante. Conveyances by married 
 woman: Necessity of joinder of husband: Statutory 
 separate estate under the various Acts : see Armour, 
 Titles, pp. 362-382. Marriage before 1859: see 
 Lett v. Commercial Bank, 24 U. C. R. 552: Feys 
 v! McPherson, 17 C. P. 266. 
 
 6— (2) See Kent v. Kent, 19 A. R. 352; Re Gracey, 
 16 O. R. 226; Dame v. Slater, 21 O. R. 375, note 
 to sec. 4 (2) ; also Moore v. Jackson, 20 O. R. 652, 
 
CHAPTER 149. 685 
 
 19 A. E. 383, 22 S. C. E. 210. Interest in former 
 husband's estate: Eobertson v. Larocque, 18 O. 
 E. 469. Title of married woman accruing before 
 the Act, property falling into possession after : Ee 
 Tench, L. E. 15 I. E. 406; Ee Tucker, 52 L. T. 
 923; Eeid v. Eeid, 31 Ch. D. 402; Ee Hobson, 55 
 L. J. Ch. 300; Ee Beaupre, 21 L. E. Ir. 397; Ee 
 Thompson, 29 Ch. D. 177; Ee Bacon, Toovey v. 
 Turner, 1907, 1 Ch. 475. 
 
 6. — (4) Where a woman is in possession of lands before 
 and at the time of her marriage, her possession 
 being such as would in time ripen into title by pos- 
 session, such an interest is secured to her as her 
 separate property by the M. W. P. Act, of 1872, 
 free from control of her husband : Myers v. Euport, 
 8 O. L. E. 669. Under the Act of 1872, in the case 
 of husbands married before it came into force, the 
 husband only could maintain an action to recover 
 possession of his wife's real estate: Dingman v. 
 Austin, 33 IT. C E. 190 ; see also Scouler v. Scouler, 
 19 U. C. E. 106. 
 
 6. — (5) The effect of the words "but this sub-section 
 shall not extend to any property received by a mar- 
 ried woman from her husband during coverture," 
 is not to make property received by the wife from 
 her husband during marriage liable to the hus- 
 band's debts: Shuttleworth v. McG-illivray, 5 O. 
 L. E. 536. Where the only property of a married 
 woman without a settlement, consisted of personal 
 property given by the husband to her during cov- 
 erture, this was separate estate and liable for her 
 debts: Trusts Corporation v. Clue, 28 O. E. 116. 
 Goods acquired by a married woman from her hus- 
 band after marriage seized under an execution 
 against husband: Crowe v. Adams, 21 S. C. E. 
 342. Since the M. W. P. Act of 1884, a husband 
 may make a valid gift of a chose in action to his 
 wife without the intervention of trustee: Sheratt 
 v. Merchants Bank, 21 A. E. 473. Formerly 
 neither a married woman nor her husband could 
 be bound by her husband entering into a contract 
 for building on the land without her express autho- 
 rity: Wagner v. Jefferson, 37 U. C. E. 551; Kin- 
 caid v. Eeid, 7 O. E. 12, but now see as to presump- 
 tion of agency: E. S. 0. 1897, ch. 153, sec. 5; E. S. 0. 
 
686 
 
 CHAPTER 149. 
 
 1914, ch. 140, sec. 7. Interest in policy of insurance 
 effected by husband in wife's favour under E. S. 0. 
 1897, en. 208, sec. 159 (E. S. 0. 1914, ch. 183, sec. 178), 
 is separate estate : see Graham v. Canada Life, 24 0. 
 E. 607, note to sec. 3 (2) ; Doull v. Doelle, 10 0. L. E. 
 411. Alimony is not separate property : Vandergucht 
 v. De Blaguiere, 8 Sim. 315; Anderson v. Hay, 
 55 J. P. 295. This Act does not affect a gift of 
 " paraphernalia:" Tasker v. Tasker, 1895, P. 1. Per- 
 sonal ornaments and jewelry not property amount- 
 ing to separate estate : Ee Fieldwick, Johnson v. 
 Adamson, 1909, 1 Ch. 1. Married woman's wear- 
 ing apparel purchased by her : Masson v. De Fries, 
 1909, 2 K. B. 831. In an action for personal in- 
 juries to wife brought by the husband and wife, 
 the sum awarded by the jury to the wife is her 
 separate property: Beasley v. Eoney, 1891, 1 Q. 
 B. 509. Application of Act in case of bankruptcy 
 of husband and who had taken his wife's separate 
 estate and then made settlement on her: Mac- 
 Intyre v. Pogose, 1895, 1 Ch. 505; Ex parte Tids- 
 well, 35 W. E. 669. The separate estate of a mar- 
 ried woman is liable for her funeral expenses: Ee 
 Gibbins, 21 O. E. 252. 
 
 -(1) " Proprietary interest " means " interest as 
 an owner " or legal right or title:" Cooney v. 
 Sheppard, 23 A. E. 4. A married woman can enter 
 into a trading partnership with her husband: Gib- 
 son v. Le Temps Pub. Co., 8 0. L. E. 707. The 
 earnings of a married woman in a trade or occupa- 
 tion in which her husband has no proprietary 
 interest is separate property: Eobertson v. Laro- 
 cque, 18 0. E. 469. "Where a woman is carrying on 
 trade which is under the control and management 
 of her husband for her benefit, it is a trade carried 
 on separately from her husband within the mean- 
 ing of the Act : Ee Simon, 1909, 1 K. B. 201. Where 
 a married woman living in a house furnished by her 
 husband and supporting herself during his tempor- 
 ary absence in search of employment, lets lodgings 
 and supplies necessaries to the lodger, she cannot 
 recover from the lodger the money due as earned 
 by her in an employment or occupation in which 
 her husband has no proprietary interest: Young 
 v. Ward, 27 0. E. 423, 24 A. E. 147. Property 
 
CHAPTER 149. 687 
 
 acquired by the wife in separate business: Kelly 
 v. Macklem, 3 0. W. N. 873. When a married 
 woman rents a farm and employs her husband to 
 work it,, he has no proprietary interest in the pro- 
 duce and it is not liable to be seized by his credi- 
 tors: Cooney v. Sheppard, 23 A. E. 4. 
 
 7.— (2) Since the M. "W. P. Act of 1884, a husband may 
 make a valid gift of a chose in action to his wife 
 without the intervention of a trustee: Sherratt 
 v. Merchants Bank, 21 A. E. 473; see also Shuttle- 
 worth v. McG-illivray, 5 0. L. E. 536, noted ante. 
 The M. W. P. Act of 1884, is not retrospective: 
 Scott v. Wye, 11 P. E. 93. See Armour, Titles, p. 
 378. 
 
 8 Under the English M. W. P. Act, 1882, sec. 5, it 
 
 was held that that Act did not affect a title in 
 remainder or reversion before the Act, although it 
 did not become an estate in possession until after- 
 wards, because in such a case the title was acquired 
 before the Act: Eeid v. Eeid, 31 Ch. D. 402; but 
 under the Ontario Act where a married woman, 
 married before 1859, acquired a reversion under 
 her father's will, it was held that there was such 
 a difference between the Ontario Consolidated 
 Statute, C. S. U. C. 73, sec. 2, and the English 
 Act that Eeid v. Eeid, 31 Ch. D. 402, was not 
 applicable and the married woman could dispose of 
 the property by her will: Jordan v. Frogley, 8 0. 
 W. E. 265. For construction of M. W. P. Acts of 
 1884 and 1887, capacity of married woman to sue 
 and be sued and right .of creditor to obtain fruits 
 of judgment by execution against her separate pro- 
 perty: see Moore v. Jackson, 20 0. E. 652, 19 A. 
 E. 383, 22 S. C. E. 210; see Armour, Titles, p. 
 369, Armour, Eeal Property, p. 300. 
 
 9 Property appointed by a married woman by will 
 
 under a general testamentary power becomes on 
 death liable for her debts, even though she may 
 have had no separate estate when she contracted 
 them : Ee Ann, Wilson v. Ann, 1894, 1 Ch. 549. 
 Appointment by married woman: Intention to pay 
 husband's debts : Ee Hodgson, Darley v. Hodgson, 
 1899, 1 Ch. 666. 
 
ggg CHAPTER 149. 
 
 10. Conditions under which Court will allow removal of 
 restraint: Paget v. Paget, 1898, 1 Ch. 470; see 
 also Ee Pollard, 1896, 2 Ch. 552. 
 
 11. As to necessity for husband's concurrence in con- 
 • veyances of personal property except as provided 
 
 in this section: see sees. 1 and 4 (1) notes, cmte. 
 
 16. The Statute of Limitations applies to a claim of a 
 
 wife against her husband in the same way as if 
 she were not his wife : In re Starr, Starr v. Starr, 
 2 0. L. E. 762. It may be noted that the provision 
 in 21 Jac. I., ch. 16 enabling a married, woman to 
 bring an action within 6 years after becoming dis- 
 covert (Carroll v. Fitzgerald, 5 A. E. 322), was 
 omitted from E. S. 0. 324, sees. 38 and 39, where 
 this Act was consolidated. Aetion of assault and 
 false imprisonment by wife against husband: 
 Jordan v. Jordan, 4 0. W. N. 1219, 24 0. W. E. 
 525. Action by wife against her husband for cer- 
 tain chattels, and damages for detention of them. 
 Husband's reasons for refusal to give up posses- 
 sion: Lintner v. Lintner, 6 O. L. E. 643. A mar- 
 ried woman can maintain an action of detinue 
 against her husband in respect of her separate pro- 
 perty: Larner v. Larner, 1905, 2 K. B. 539. A 
 married woman may sue her husband in alimony 
 without the intervention of a next friend: see Con. 
 Eule 199, H. & L. notes, p. 350, et seq. 
 
 17. Debt contracted during former marriage is a debt 
 
 contracted before marriage within the meaning of 
 this section: Jay v. Eobinson, 25 Q. B. D. 467. 
 Considerable doubt has arisen as to the proper 
 form of judgment against a married woman in 
 respect of ante-nuptial debts. Whether the judg- 
 ment is properly personal or in the restricted form 
 of Scott v. Morley, 20 Q. B. D. 120 (see form given 
 in note ante sec. 5 (1) ), and Whether such a judgment 
 should except property subject to restraint on antici- 
 pation: see Oxford v. Eeid, 22 Q. B. D. 548; Eobin- 
 son v. Lynes, 1894, 2 Q. B. 577. The latter case 
 decided that the judgment was personal. But in 
 an action against a married woman to recover a 
 debt contracted by her before her marriage in 1902, 
 a judgment was entered adjudging the sum due 
 
CHAPTER 149. Q89 
 
 to be payable out of her separate property whether 
 subject to restraint on anticipation or not. After 
 the judgment a deed of separation was made by 
 which her husband covenanted to pay her a monthly 
 sum subject to restraint on anticipation. On the 
 true construction of sec. 19 of the M. W. P. Act, 
 1882, the money payable under the deed was not 
 available to pay the ante-nuptial debt, and the 
 judgment was amended by striking out the words 
 " whether subject to restraint on anticipation or 
 not ' ' : Birmingham Excelsior Money Society v. Hay- 
 wood, 75 L. J. K. B. 28, 1904, 1 K. B. 35. See 
 generally as to wife's ante-nuptial debts and liabi- 
 lities : Dig. Eng. Case Law, VII., cols. 1091-5. 
 
 18. There has been considerable diversity of opinion 
 whether the M. W. P. Act applicable to persons 
 married before 1st July, 1884, has the effect of 
 relieving the husband for liability for torts of his 
 wife committed during coverture: ' see Amer v. 
 Eogers, 31 C. P. 195; Lee v. Hopkins, 20 0. E. 
 666; 16 Law Quarterly Eeview, 191, Lush on Hus- 
 band and Wife, 2nd Ed., pp. 290-1. It was finally 
 decided that the effect of the English Acts was not 
 to relieve the husband of his liability: Earle v. 
 Kingscote, 1900, 2 Ch. 585. And now it has been 
 held by a Divisional Court that there is no such 
 difference between the English Acts and the Ontario 
 Acts as justify any other conclusion in our Courts. 
 The common law right to sue the husband and 
 wife jointly has never been taken away: Traviss 
 v. Hales, 6 O. L. E. 574. A husband is still liable 
 for the torts of his wife if the marriage took place 
 before 1st July, 1884. The liability at common 
 law was direct against the husband and he was not. 
 joined in the action merely as a matter of pro- 
 cedure. There is nothing in this section to relieve 
 him: Traviss v. Hales, 6 O. L. E. 574. A hus- 
 band is subject to the same liability for his wife's 
 torts committed during coverture as previously to 
 the M. W. P. Act (Eng.) 1882. He will be ex- 
 empt from liability only in cases where the tort is 
 directly connected with her contract and parcel of 
 the same transaction: Fairhurst v. Liverpool 
 Adelphi, 9 Ex 422; Wright v. Leonard, 11 C. B. 
 
 s.a.-^44 
 
ggO CHAPTER 149. 
 
 N. S. 258; Seroka v. Kattenburg, 17 Q. B. D. 177; 
 Earle v. Kingscote, 1900, 2 Ch. 585; see 45 and 46 
 Vic. (Eng.) eh. 75 sec. 14. Husband not liable in 
 respect of tort committed by wife during coverture 
 where a decree of judicial separation is obtained 
 while action for tort is pending and before judg- 
 ment: Cuenodv. Leslie, 1909,1 K. B. 880. Liability 
 of husband for wife's post-nuptial torts: Cuenod 
 v. Leslie, 1909, 1 K. B. 880. Action against hus- 
 band and wife for wife's tort: Beaumont v. Kaye, 
 1904, 1 K. B. 292. Liability of husband for wife's 
 tort : see article by Gr. S. Holmested, 40 C. L. J. 174. 
 Actions for torts: see H. & L. notes, p. 354. As 
 to husband's liability for wife's torts after mar- 
 riage : see Dig Eng. Case Law, VII., cols. 1219-1221. 
 
 In an action against husband who had acquired 
 property from his wife, the fact that judgment was 
 recovered against the wife was no defence: Beck 
 v. Pierce, 23 Q. B. D. 316. A husband is not liable 
 after his wife's death for her debts contracted 
 before the marriage: Bell v. Stocker, 10 Q. B. D. 
 129. Application of Statute of Limitations: A 
 husband cannot be made liable for an ante-nuptial 
 debt of his wife which accrued due against the 
 wife more than 6 years before the commencement 
 of the action: Beck v. Pierce, 23 Q. B. D. 316. 
 Husband's liability on wife's ante-nuptial contract: 
 see Kirchoffer v. Ross, 11 C. P. 467. During 
 coverture husband liable for. goods supplied, but 
 where goods were supplied to wife, and husband and 
 wife were sued jointly, and the evidence shewed no 
 joint liability but that the wife acted as her husband's 
 agent, the creditor having elected to pursue a joint 
 remedy and having recovered against the agent, 
 could not proceed against the husband as principal : 
 Morel v. Westmoreland (1903), 1 K. B. 64, (1904) 
 A. C. 11. Generally as to husband's liability for 
 wife's debts contracted before marriage: see Dig. 
 Eng. Case Law, VII., cols. 1195-1198. 
 
 21. A judgment against a married woman possessed of 
 separate property which she is restrained from 
 'anticipating cannot be enforced in respect of in- 
 come accruing due after the date of the judgment: 
 Bolitho v. Gidley, 1905, A. C. 98; Whiteley v. 
 
CHAPTER 149. 691 
 
 Edwards, 1896, 2 Q. B. 48. A judgment creditor 
 who has obtained judgment against a woman mar- 
 ried since the English M. W. P. Act, 1882 (Ont. 1884), 
 in an action commenced after the death of her hus- 
 band upon a contract made by her during coverture, 
 is not entitled since the Act of 1893 (Ont. 1897), to 
 have a receiver appointed by way of equitable execu- 
 tion of the income of property which at the date of 
 the contract was settled on the woman without power 
 of anticipation: Brown v. Dimbleby, 1904, 1 K. B. 
 28. Judgment against a married woman in respect 
 of her ante-nuptial debt is to be restricted by 
 adjudging the sum payable out of her separate 
 property. Money received by her, e. g., under a 
 separation deed subject to restraint on anticipation 
 is not available to pay such a judgment : Birming- 
 ham Excelsior Money Society v. Haywood, 1904, 1 
 K. B. 35, and see also note to sec. 17. Income of 
 property vested in trustees for the separate use 
 of a married woman subject to restraint on anti- 
 cipation though paid into her hands after deter- 
 mination of the coverture, is not since the English 
 M. W. P. Act, 1893, available to satisfy an obliga- 
 tion arising out of a contract entered into by her 
 during coverture: Barnett v. Howard, 69 L. J. Q. 
 B. 995, 1900, 2 Q. B. 784. Where a debt was con- 
 tracted during marriage, a judgment obtained after 
 her husband's death against a woman's separate 
 property not subject to restraint against anticipa- 
 tion cannot, though she is discovert, be enforced 
 against property which during coverture was her 
 separate estate without power of anticipation: Pel- 
 ton v. Harrison, 1891, 2 Q. B. 422. Liability of a 
 married woman's property subject to restraint on 
 alienation for costs in respect of " proceedings 
 instituted " by her: Nunn v. Tyson, 1901, 2 K. B. 
 487; Hood Barrs v. Cathcart, 1894, 3 Ch. 376; 
 Crickitt v. Crickett, 1902, P. 177. Settlement: In- 
 fant married woman: Repudiation: Buckland v. 
 Buckland, 1900, 2 Ch. 534. Married woman trading 
 separately from husband: Bankruptcy of married 
 woman : Death of husband : Construction of restraint 
 or anticipation: Re Wheeler, 1899, 2 Ch. 717: (see 
 English M. W. P. Act, 1882, sec. 19). Enforcing 
 judgments against married woman where restraint 
 on anticipation: see H. & (L\ notes, p. 353, et seq. 
 
692 
 
 CHAPTER 150. 
 
 Eestraint on anticipation: see Dig. Eng, Case Law, 
 VII., cols. 1064-1091. 
 
 23. See Armour, Titles, pp. 216-221, where the effect of 
 this section is specially considered in connection 
 with the Devolution of Estates Act, E. S. 0. 1897, 
 ch. 127; E. S. 0. 1914, ch. 119, and the Trustee 
 Act, E. S. 0., 1897, ch. 129, sec. 24; E. S. 0. 1914, 
 ch. 121, sec. 46; see also Armour, Titles, pp. 335, 
 336, et seq. 
 
 CHAPTEE 150. 
 
 The Makbied Women's Conveyances Act. 
 
 Eefer to Armour on Titles; Armour on Eeal Pro- 
 perty ; Bicknell and Kappele, Practical Statutes, pp. 
 804-804. 
 
 1. For memo, of history of legislation enabling married 
 women to deal with lands : see E. S. 0. 1914, ch. 149, 
 sec. 1, note. 
 
 3. This section is 47 Vic. ch. 19, sec. 22, amended. See 
 as to various statutes leading up to it: Armour, E. 
 P., p. 297, et seq. Since March 2, 1884, wife may 
 convey or devise lands free from her husband's cur- 
 tesy without his consent : Moore v. Jackson, 22 S. C. 
 E., pp. 223, 238. For consideration of jus despon- 
 endi of married women, especially as affecting ten- 
 ancy by curtesy, to which under certain of the M. 
 "W. P. Acts her husband may be entitled to after her 
 death : see Moore v. Jackson, 20 0. E. 652, 19 A. E. 
 383, 22 S. C. E. 210, and notes to E. S. 0. 1914, ch. 
 149, sees. 1 and 4. The Act of 1872 did not authorize a 
 conveyance from a married woman to her husband: 
 Ogden v. McArthur. 36 IT. C. E. 246 ; see, however, 
 Sanders v. Malsberg, 1 0. E. 178; Street v. Hallett, 
 21 Gr. 255. A married woman, while under age, 
 but representing herself to be of full age, conveyed 
 to a bona fide purchaser for value and the convey- 
 ance was duly registered. After attaining majority 
 the married woman and her husband conveyed to 
 another as trustee for her. He sold the land and 
 
CHAPTER 150. 693 
 
 his vendee on the same day placed a mortgage on 
 it. The married woman, notwithstanding her non- 
 age, was bound by her representations and the 
 other parties were bound by notice of the first deed 
 and the subsequent conveyances were declared void. 
 It was doubted if the mortgagee could retain posses- 
 sion of the mortgage with a view of recovering the 
 money advanced by him in good faith: Bennetto v, 
 Holden, 21 Gr. 111. Section seven does not make 
 valid deeds executed by an infant married woman. 
 It merely does away with the necessity for 
 acknowledgment: Confederation Life v. Kinnear, 
 23 A. E. 497; see also Whalls v. Learn, 15 0. E. 481. 
 Bar of dower may now be by deed, to which the 
 husband is not a party. As to this see Armour, 
 Titles, p. 205. 
 
 4. — (1) This section was formerly part of E. S. 0. 1897, 
 ch. 163, sec. 20. See now E. S. 0. 1914, ch. 149, sec. 
 4 (3). Under English law, real estate vested in a 
 married woman . jointly with other persons upon 
 trust for sale cannot be effectually conveyed by her 
 without the concurrence oT the husband: Ee Hark- 
 ness and Allsopp, 1896, 2 Ch. 358. On a sale of pro- 
 perty by a mortgagor with the • concurrence of a 
 married woman mortgagee, it was held not neces- 
 sary that the mortgagee's husband should concur 
 to give the purchaser a good title. She was in no 
 sense a trustee for the mortgagor until her mort- 
 gage had been fully satisfied: Ee Brooke and 
 Fremlin, 1898, 1 Ch. 647. 
 
 4.— (2) This was formerly E. S. 0. 1897, ch. 129, sec. 8. 
 
 6. An infant wife joined in a deed from her husband to 
 a purchaser for value and after her husband's 
 death brought an action for dower. It having been 
 found that she knew what she was doing when she 
 executed the release of dower and that the convey- 
 ance was for " valuable " as distinguished from 
 "good" consideration, she was not entitled to 
 dower. Where no question of bona fides is raised, 
 the question of adequacy of consideration cannot 
 be enquired into: Crossett v. Haycock, 6 0. L. E. 
 259, 7 0. L. E. 655 This section originated 57 Vic. 
 ch. 41 (1894). See E. S. 0. 1897, ch. 164, sec. 22 (3) ; 
 and see E. S. O. 1914, ch. 70, sec. 20. 
 
694 CHAPTER 150. 
 
 7. Before the Act 35 Vic. ch. 18, was passed, a married 
 woman could only convey real estate by deed ex- 
 ecuted jointly with her husband, and if she were 
 examined as to her consent as required by various 
 statutes and a certificate endorsed on the convey- 
 ance. For consideration of the changes effected 
 by this Act and the various statutes pass to validate 
 defective certificates:. see Armour Titles, pp. 86 and' 
 362, et seq. And see also Elliott v. Brown, 2 0. B. 
 252, 11 A. B. 228, infra. As to necessity for hus- 
 band joining see sec. 8. This section does not make 
 valid, deeds executed by infant married women. It 
 merely does away with the necessity of acknowl- 
 edgment: Confederation Life v. Kinnear, 23 A. B. 
 497 ; Whalls v. Learn, 15 0. B. 481 ; see Bennetto v. 
 Holden, 21 Gr. Ill, noted ante, sec. 3. A., a married 
 woman, purported to convey in 1834 the east half of 
 a lot to B., but the conveyance was invalid for want 
 of a certificate. B. did not take possession but con- 
 veyed to C. in 1852, and in 1866 the sons of A. went 
 to reside on the west half of the land under an 
 agreement with their mother that they were to have 
 the whole lot, which was conveyed to them in 1875. 
 Meanwhile they had paid taxes on the east half 
 'and had cut timber on it. This was sufficient " ac- 
 tual possession or enjoyment " to prevent the oper- 
 ation of the statute by which such void deed would 
 be rendered valid: Elliott v. Brown, 2 0. B. 252, 11 
 A. B. 228. And also see this case for consideration of 
 various statutes affecting conveyances by married 
 women. Married woman representing herself as a 
 spinster : see Graham v. Meneilly, 16 Gr. 661. Proof 
 of execution by married woman and certificate: 
 Northwood v. Keating, 17 Gr. 347, 18 Gr. 643. For 
 cases as to certificate and examination: see Dig. 
 Ont. Case Law, col. 3080. 
 
 6. For origin of this section see 47 Vic. ch. 18, sec. 22: 
 see Moore v. Jackson, 22 S. C. B. 210. For discus- 
 sion of necessity of joinder of husband under var- 
 ious statutes: see Armour Titles, p. 369, et seq. 
 A wife's conveyance of her equitable estate was 
 valid before 1884 without the husband joining in 
 the deed. The husband having the legal estate vested 
 in him, the wife's vendee could compel a convey- 
 ance by the husband : Adams v. Laomis, 24 Gr. 242. 
 
CHAPTER 150. QQtj 
 
 It seems that a married woman could execute a 
 deed without her husband joining during the im- 
 prisonment of the husband and as a felon: Crocker 
 v. Sowden, 33 U. C. E. 397. Even where the hus- 
 band is entitled to an estate by the curtesy initiate, 
 the wife alone can convey her interest in the land: 
 Wylie v. Frampton, 17 0. E. 515. Conveyance 
 made by a married woman whose husband did not 
 join, and which was in litigation when Act was 
 passed was wholly inoperative: Hartley v. May- 
 cock, 28 0. E. 508. Concealment of coverture: see 
 Graham v. Meneilly, 16 Gr. 661 ; Hoig v. Gordon, 17 
 Gr. 599. Invalid conveyance; wife's mortgage 
 signed by husband and not by wife : Foster v. Beall, 
 15 Gr. 244;. Doe d. Bradt v. Hodgins, 2 0. S. 213. Con- 
 veyance signed by husband only; subsequent con- 
 veyance to one party interested. The grantee in 
 the second deed was held trustee for all concerned : 
 Grace v. Macdermott, 13 Gr. 247. 
 
 9. 50 Vic. ch. 7, sees. 23, 24, 25. For object of this enact- 
 
 ment: see Armour, Titles, pp. 373-4. 
 
 10. These sections originated in 1888, 51 Vic. ch. 21. 
 See E. S. 1897, 164, sec. 12; E. S. 0. 1914, ch. 70, 
 sec. 14, and notes. The practice as settled there, 
 (Ee King, 18 P. E. 365, etc.), presumably applies. 
 " Where a husband is entitled to tenancy by the 
 curtesy:" see E. S. 0. 1914, ch. 149, sees. 1 and 4, 
 notes. Applications for orders under this section 
 should be made to a Judge in Chambers : Ee Nolan, 
 6 P. E. 115. 
 
g96 CHAPTER 151. 
 
 CHAPTER 151. 
 
 The Fatal Accidents Act. 
 
 Refer to Addison on Torts; Underhill on Torts 
 (Can. notes) ; Clerk and Lindsell on Torts (Can. 
 notes) ; Bicknell and Kappele, Practical Statutes, 
 pp. 156-160. 
 
 1. This statute commonly known as Lord Campbell's Act 
 (9-10 Vic. Imp. ch. 93), changed the common law 
 under which there was no action for damages where 
 an injury resulted in death, even when pecuniary loss 
 was clearly established. See, Monaghan v. Horn, 
 7 S. C. R. 420; C. P. R. v. Robinson, 19 S. C. R. 292. 
 
 2. — (a) " Child " includes posthumous child, where such 
 construction is for the child's benefit: Williams v. 
 Ocean Coal Co., 1907, 2 K. B. 422; Villar v. Gilbey, 
 1907, A. C. 139. Child includes stepchild: Brown v. 
 G. T. R., 28 O. L. R. 354. 
 
 2. — (&) The mother of the deceased is a person for 
 whose benefit an action can be brought under the 
 Act, although the father is living: Renwick v. Gait 
 Hespeler Ry., 11 O. L. R. 158, 12 O. L. R. 35. Action 
 by grandparents, when wife is living: Mummery 
 v. G. T. R., 1 O. L. R. 622. " Parent " did not 
 formerly include persons whose adopted child has 
 been killed, nor the mother of an illegitimate child: 
 Blayborough v. Brantford Gas, 13 0. W. R. 573, 18 
 0. L. R. 243. 
 
 3. " Caused by such wrongful act." That death was ac- 
 celerated by an accident is sufficient to satisfy the 
 language of the Statute: Chowley v. Gas Co., 24 
 Times L. R. 94 (1907) : Pow v. West Oxford, 11 0. W. 
 R. 115, at p. 126. The dependants are entitled to com- 
 pensation if death results in fact from the injury even 
 though at the time of the injury it could not be rea- 
 sonably expected as the probable consequence : Dun- 
 ham v. Clare, 1902, 2 K. B. 292. Death was held to 
 arise from the accident itself where the patient diecf 
 under anaesthetic given in a second operation for skin 
 
CHAPTER 151. 697 
 
 grafting in an endeavour to save a hand crushed in a 
 way that ordinarily would have indicated amputa- 
 tion: Shirt v. Calico Printers Assn., 1909, 2 K. B. 
 51; see also as to death under chloroform: Charles 
 v. Walker, 25 T. L. E. 609. 
 
 " Allurement " as a cause of fatal accident to child: 
 Pedlar v. Toronto Power, 5 O. W. N. 319. Death of 
 child trespassing on railway track held due to de- 
 fendants' negligence in running train through city 
 without the track properly fenced. The child was 
 held incapable of being a trespasser and to have 
 used care expected from one of his tender years: 
 Potvin v. C. P. E., 4 0. W. E. 511; Tabb v. G. T. E., 
 
 3 0. W. E. 203, 8 0. L. E. 203. See also Eaton v. 
 Sangster, 24 S. C. E. 708; Merritt v. Hepinstall, 
 25 S. C. E. 150. See as to contributory negligence 
 of children, note to E. S. 0. 1914, ch. 146, sec. 3 (a). 
 
 It is not necessary to prove by a demonstration how 
 a death by actionable negligence occurred : Lef ebvre 
 v. Trethewey, 22 0. W. E. 694. 3 0. W. N. 1535. 
 Death of employee from unexplained accident: Fal- 
 coner v. Jones, 4 0. W. N. 709, 1373, 24 0. W. E. 18, 
 672 ; Wakelin v. London & S. W. Ey., 12 App. Cas. 
 41; McArthur v. Dominion Cartridge Co., 1905, A. 
 C. 72; G. T. E. v. Hainer, 36 S. C. E. 180. Where 
 railway company put passenger off train at a bridge 
 and passenger following train on bridge, fell off 
 (whether accidentally or not), and was killed, it was 
 held there was no evidence of negligence : Delahanty 
 v. M. C. E. E., 10 0. L. E. 388; and see note to E. B. 
 O. 1914, ch. 146, sec. 3 (a), " evidence of cause of 
 death." 
 
 Liability for neglect of statutory duty : see Pressick 
 v. 'Cordova Mines, 24 0. W. E. 631, 25 0. W. E. 228, 
 
 4 0. W. N. 1334, 5 0. W. N. 263 ; Groves v. Wim- 
 borne, 1897, 2 Q. B. 402 ; Jones v. C. P. E., 13 D. 
 L. E. 900 (P.C.). Contributory negligence may be 
 a defence even where there was a breach of statutory 
 duty: Muma v. C. P. E., 14 0. L. E, 147; Deyo v. 
 Kingston and Pembroke Ey., 8 0. L. E. 588.; and 
 see notes to E. S. 0. 1914, ch. 146, sec. 3 (a), 5, 6 (a). 
 
 Volenti non fit injuria : application and review of 
 cases: see Fairweather v. Can. Gen. Electric, 4 0. 
 
698 CHAPTER 151. 
 
 W. N. 892, 24 0. W. E. 164; and see note to R. S. 0. 
 1914, ch. 146, sec. 6 (c). 
 
 Liability of municipality and Electric Light Co. for 
 death of person killed by electric wire : Johnston v. 
 Clark, 4 0. W. N. 202, 23 0. W. E. 196; and see note 
 to E. S. 0. 1914, ch. 146, sec. 3 (a), "electric wires, 
 etc." 
 
 The right of dependants to compensation where 
 death ultimately results from the injury is a sepa- 
 rate and independent right and cannot under the 
 English Act be released by the workman : Williams 
 v. Vauxhall Colliery Co., 1907, 2 K. B. 433. A work- 
 man may so contract with his employer as to exon- 
 erate the latter from liability for negligence (sub- 
 ject to E. S. 0. 1914, ch. 146, sec. 10), and such re- 
 nunciation would be an answer to an action under 
 Lord Campbell's Act: Grenier v. The Queen, 30 
 
 5. C. E. 42. Effect of membership in a relief and 
 assurance association to which employer contributes 
 an annual sum, the employee renouncing claims for 
 injury or death in the course of employment: 
 Grenier v. The Queen, 30 S. C. E. 42; see cases 
 noted E. S. 0. 1914, 146, sec. 10. Quaere, if an infant 
 employed as a newsboy on a train, can enter into 
 a binding agreement, exempting the railway com- 
 pany from liability : Alexander v. Toronto and Nip- 
 issing Ey., 33 U. C. E. 474, 35 U. C. E. 453; Flower 
 v. L. & N. W. Ey., 1894, 2 Q. B. 65; Clements v. L. 
 
 6. N. W. Ey., 1894, 2 Q. B. 482; and notes to E. 
 S. 0. 1914, ch. 146, sec. 10. 
 
 Where the injury inflicted amounts, to an infringe- 
 ment of the civil rights of an individual and at the 
 same time to a felonious wrong, the civil remedy, that 
 is, the right of redress by action, is suspended until 
 the party inflicting the injury has been prosecuted : 
 Per Cockburn C.S., Wells v. Abraham, L. E. 7 Q. B. 
 554, at p. 557 ; see also Crosby v. Leng, 12 East. 413 ; 
 Taylor v. McCullough, 8 0. E. 309. In actions under 
 this Act, the section of the Code which is apt to be 
 involved is sec. 284 (E. S. C. 1906, ch. 146, sec. 284). 
 Query whether the above rule can be applied to cases 
 under, this Act, also whether the abolition of the 
 distinction between felonies and misdemeanours 
 
CHAPTER 151. 699 
 
 alters the rule, and also whether the fact that a 
 servant of the defendants is guilty of manslaughter, 
 would cause the action to be stayed as against the 
 defendants. It will not apply to prevent a pecuniary 
 settlement of the civil injury : Villeneuve v. 0. P. E., 
 10 0. W. R. 287. Death caused by circumstances 
 amounting to breach of Criminal Code: Pennock v. 
 Mitchell, 17 0. L. R. 286. Consideration of this sec- 
 tion and of R. S. 0. 1914, ch. 146, sees. 3, 7 : Dawson 
 v. Niagara, 2 0. W. N. 1080, 19 0. W. R. 242, 22 0. 
 L. R. 69, 23 0. L. R. 670. 
 
 The administrator within this province of a foreigner 
 who was killed in an accident here, through his em- 
 ployer'^ negligence, can maintain an action on be- 
 half of the deceased's family, foreigners, residing 
 out of Canada, for damages sustained by reason of 
 his death: Gyorgy v. Dawson, 13 0. L. R. 381, 8 
 0. W. R. 784; Davidson v. Hill, 1901, 2 K. B. 606. 
 The plaintiff alleged that she was the widow and 
 obtained pendente lite, letters of administration to 
 the estate of the deceased. If the letters of adminis- 
 tration were rightly granted to the plaintiff as widow 
 they related back so as to validate the action : Doyle 
 v. Diamond Flint Glass, 7 0. L. R. 747, 8 0. L. R. 
 499, 10 0. L. R. 567; Trice v. Robinson, 16 0. R. 
 433 ; see also Chard v. Rae, 18 0. R. 371 ; Bradshaw 
 v. London & Yorkshire Rw., L. R. 10 C. P. 189; 
 Murphy v. G. T. R., 27th May, 1889, referred to 8 
 0. L. R. 499. Although the widow's right of action 
 under Lord Campbell's Act, is in several respects 
 distinct from her husband's right of action in his 
 lifetime arising out of the same circumstances, still 
 the issues are so far connected and identical that the 
 examination de bene esse of the iusband in an ac- 
 tion brought by him in his lifetime, but which abated 
 at his death is admissible evidence in the widow's 
 action against the same defendants, the husband 
 having been cross-examined by them: Erdman v. 
 Walkerton, 22 O. R. 693, 20 A. R. 444, 23 S. C. R. 352. 
 An administrator appointed for the purpose of bring- 
 ing an action for the benefit of another under this 
 Act is not a nominal plaintiff in the sense of the rule 
 which enables a defendant to get security for costs 
 upon shewing that such nominal plaintiff is in- 
 solvent, even where such action is taken under cir- 
 cumstances which give forms for the suspicion that 
 
700 CHAPTER 151. 
 
 the object is to escape liability: Sharp v. G. T. E., 1 
 0. L. R. 200; see H. & L. notes, p. 1430. Upon the 
 death before judgment of the sole beneficiary on 
 whose behalf an administrator has brought an action 
 under this Act, the action comes to an end. It can- 
 not be continued for the benefit of the beneficiary's 
 estate, nor can a new action be brought by the 
 beneficiary's personal representative: McHugh v. 
 G. T. E., 32 O. E. 234, 2 O. L. E. 600; see Seward 
 v. Vera Cruz, 10 App. Cas. 59 ; Pyne v. Great North- 
 ern By., 2 B. & S. 759, 4 B. & S. 396. Death of 
 beneficiary after judgment : see Sibbald v. G. T. E., 
 19 O. E. 164; Kramer v. Waymark, L. E. 1 Ex. 241. 
 ' ' When actions survive : ' ' see H. & L. notes, p. 609. 
 The administrator has a right in his action to claim 
 for damages sustained by the personal estate of the 
 deceased: Mummery v. G.' T. B., 1 O. L. B. 622; 
 Leggatt v. Great Northern By., 1 Q. B. D. 599. Ad- 
 ministrator suing under this Act: notice under 
 Workmen's Compensation Act: Giovinazzo v. C. 
 P. E., 13 O. W. E. 24, 1200. Those entitled to bring 
 an action must bring it themselves, and not by at- 
 torney or assignee: Luciani v. Toronto Construc- 
 tion, 24 O. W. E. 381, 4 O. W. N. 1073. To an 
 action under this Act, the defendants pleaded that it 
 was brought and maintained under a champertous 
 agreement, which disentitled the plaintiff to sue. 
 This defence was struck out, and it was left to the 
 Court to say what effect should follow: Welbourne 
 v. C. P. B., 16 P. E. 343. The Court may in a proper 
 case, stay the trial of an action pending an appeal 
 to the Court of Appeal from an order directing a 
 new trial, but only under special circumstances: 
 Arnold v. Toronto Bailway, 16 P. B.; 394. The 
 Court refused to order a stay where the plaintiff 
 was a young widow, suing under this Act on behalf 
 of herself and her infant child. The possibility of 
 death of the young infant and consequent reduction 
 of compensation, was held entitled to great weight: 
 Hockley v. G. T. B., 7 O. L. E. 186; see Webb v. 
 Canadian General Electric, 2 O. W. E. 865, 1113. An 
 unsuccessful action for negligence is not a bar to a 
 subsequent action for damages to deceased's estate: 
 Monaghan v. Horn, 7 S. C. E. 409. Con. Bule 195, 
 could not be invoked in the case of a plaintiff, who 
 had commenced an action without right, and who 
 
CHAPTER 151. 701 
 
 sought to legalize his acts by an order of the Court : 
 Fairfield v. Boss, 4 0. L. E. 534. Article 1056, of the 
 Quebec Civil Code, while resembling the provisions 
 of this Act, gives a right of action fundamentally 
 different: Eobinson v. C. P. E., 1892, A. C. 481; 
 Miller v. G. T. E., 1906, A. C. 187. 
 
 It was intended by the act to give compensation for 
 injury sustained, and not to enable persons to sue 
 in respect of some imaginary damage, and so punish 
 those who are guilty of negligence by making them 
 pay costs (per Pollock, C.B.), Duckwart v. John- 
 son, 4 H. & N. 653, 656. If no pecuniary damage is 
 proved, defendants are entitled to verdict: Pym v. 
 Great Northern By., 2 B. & S. 759, 4 B. & S. 396. 
 It is not a case where nominal damages may be 
 awarded, where no actual loss is proved : Moir v. C. 
 P. E., 10 O. W. E. 413. Where there is " a 
 reasonable expectation of pecuniary advantage," 
 by the relatives remaining alive, damages may 
 be given in respect of that expectation if it be 
 disappointed, and the probable pecuniary loss 
 occasioned thereby: Dalton v. South Eastern By., 
 4 C. B. N. S. 296; Pym v. Great Northern By., 2 B. 
 & S. 759, 4 B. & S. 396. In considering this " rea- 
 sonable expectation," there are to be considered the 
 legal liability of the deceased to the plaintiff, the 
 conduct of the deceased to the plaintiff, the " ben- 
 evolent intent " and the probability of the deceased 
 being able to exercise the " benevolent intent," but 
 a jury ought not to make a guess on the matter: 
 Franklin v. South Eastern By, 3 H. & N. 211; and 
 see further cases collected in judgment of Biddell, 
 J.: Dewey v. Hamilton & Dundas By., 9 O. W. B. 
 511. The right of action for compensation for in- 
 jury or death by negligence of Government em- 
 ployees, does not abate on the demise of the Crown : 
 The King v. Desrosiers, 41 S. C. E. 71. There 
 is always a presumption that the wife was de- 
 pendent on her husband for support, which is not 
 rebutted by proof that at the time of his death 
 he was not in fact supporting her: Williams v. 
 Ocean Coal Co., 1907, 2 K. B. 422. A wife separated 
 from her husband and not maintained by him, but 
 who expected her husband back to maintain a home, 
 is dependent upon the earnings of her husband at 
 
702 CHAPTER 151. 
 
 the time of his death : Coulthard v. Consett Iron Co., 
 1905, 2 K. B. 869, 75 L. J. K. B. 60. Evidence of ex- 
 pressed " benevolent intention," is admissible, not 
 necessarily as shewing a promise to pay, but as evi- 
 dence of being well disposed to the plaintiff : Steph- 
 ens v. Toronto By., 11 6. L. R. 19. The damages 
 recoverable under this Act are entirely pecuniary. 
 The plaintiff's must shew not merely willingness, 
 but the means to do that which was not done because 
 of the death: Bonson v. C. P. B., 13 0. W. E. 1179, 
 18 0. L. B. 337. It is not necessary to shew that 
 any pecuniary benefit had been actually received 
 from the deceased: Bicketts v. Markdale, 31 O. B. 
 180, 610 ; Lett v. St. Lawrence and Ottawa, 11 A. E. 
 1, 11 S. C. B. 422. Claim of mother of infant plaintiff 
 to recover for her services in attending upon him 
 during his illness and for money expended and lia- 
 bilities incurred for medical attendance, nursing and 
 supplies: see Wilson v. Boulton, 26 A. B. 184, at 
 pp. 194-5. An action cannot be maintained under 
 Lord Campbell's Act, or at common law by a parent 
 for the funeral expenses of a child, whose death has 
 been caused by the negligence of another person: 
 Clark v. London General Omnibus Co., 1906, 2 K. B. 
 648. Funeral expenses not a proper claim under this 
 Act : Makarksy v. C. P. B., 15 Man. L. E. 53. Trial 
 Judge dismissing action on the ground of no evi- 
 dence to go to jury, directed jury to assess damages 
 in case it should be held on appeal that there was 
 evidence: Whiteman v. Hamilton Steel & Iron Co., 
 Co., 16 O. L. E. 257. In an action by a parent to 
 recover damages for the death of his child there need 
 not be evidence of pecuniary advantage derived 
 from the deceased; it is sufficient if there is evi- 
 dence to justify the conclusion that there is a rea- 
 sonable expectation of pecuniary benefit to the par- 
 ent in the future capable of being estimated: Bom- 
 bough v. Balch, 27 A. B. 32; Bicketts v. Markdale, 
 31 O. E. 610; Blackley v. Toronto Ey, 27 A. E. 44n 
 (where the cases are reviewed), Pym v. Greath North- 
 ern By., 2 B. & S. 759. Amount of damages in such 
 cases considered : Benwick v. Gait Hespeler Ey., 11 
 O. L. B. 158, 12 O. L. E. 35. Eeasonable expectation of 
 pecuniary benefit as damages for death of child : Taff 
 Vale Ey. Co. v. Jenkins, 1913, A. C. 1 ; Hurd v. Ham- 
 ilton, 1 O. "W. N. 881 ; Clairmont v. Ottawa Electric, 
 
CHAPTER 151. 703 
 
 17 0. W. E. 52, 2 0. W. N. 108. Failure to shew 
 reasonable expectation of benefit from continuance 
 of life of infant : Pedlar v. Toronto Power, 5 0. W. 
 N. 319. Where an infant of tender years is killed, 
 it is sufficient if there is evidence to justify the con- 
 clusion that there is a reasonable expectation of pe- 
 cuniary advantage in the future capable of being 
 estimated: McKeown v. Toronto Eailway, 12 0. W. 
 E. 1297, 14 0. W. E. 572, 1 0. W. N. 3, 19 0. L. E. 
 361. The principle of McKeown v. Toronto Ey., 19 
 0. L. E. 361, discussed, 46 C. L. J. 1. Pecuniary 
 Joss to parents of young man killed by negligence: 
 London and Western Trusts v. G. T. E., 2 O. W. N. 
 225, 17 0. W. E. 413, 22 0. L. E. 262. Consideration 
 of amount of damage to surviving relatives of man 
 of 26: Eorison v. Butler Bros., 2 0. W. N. 312, 17 
 0. W. E. 595. Mother's interest in and expectation 
 from adult son: Doyle v. Diamond Flint Glass, 7 
 O. L. E. 747, 8 O. L. E. 499, 10 0. L. E. 567. Pecuni- 
 ary expectation, where boy of 11 killed: Beahan v. 
 Neven, 4 0. W. N. 1399, 24 0. W. E. 712. Where boy 
 of 13 killed: Thompson v. Trenton Electric, 11 0. W. 
 E. 1009. Damages for death of an aged man, anti- 
 cipated savings from pension. Goodwin v. M. C. E. 
 E., 5 0. W. N. 198, 25 0. W. E. 182. The actual 
 pecuniary loss is to be ascertained by the jury: 
 Dawson v. Niagara, etc., Ey., 22 0. L. E. 69, 23 
 0. L. E. 670. Consideration of elements and 
 amount of damages and evidence of pecuniary loss : 
 McKay v. Wabash Ey., 10 0. W. E. 416, at p. 424; 
 Fraser v. London St. Ey., 29 0. E. 411, 26 A. E. 383 ; 
 Hansford v. G. T. E., 13 0. W. E. 1184; Stephens 
 v. Toronto Ey., 11 0. L. E. 19 ; Atcheson v. G. T. E., 
 1 L. E. 168; Lamond v. G. T. E., 16 0. L. E. 365; 
 C. P. E. v. LaChance, 41 S. C. E. 205; Delyea v. 
 White Pine Lumber Co., 3 0. W. N. 823, 21 0. W. E. 
 665; Grand Trunk v. Jennings, 13 App. Cas. 800; 
 Eembough v. Balch, 27 A. E. 32 ; Blackley v. Toronto 
 Ey., 27 A. E. 44n; Stephens v. Toronto Ey., 11 0. L. 
 E. 19; Pow v. West Oxford, 11 0. W. E. 115, at 126. 
 
 Eelease of claim given by widow as result of defend- 
 ant's importunity shortly after husband's death, and 
 while she was in weak health, held not binding: 
 Doyle v. Diamond Flint Glass Co., 7 0. L. E. 747, 8 
 0. L. E. 499. The plaintiff, not electing before 
 
704 CHAPTER 151, 
 
 action to affirm or disaffirm the release transaction, 
 it was held that bringing action was a declaration to 
 disaffirm, and the release having been found invalid, 
 she could not be deprived of the benefit of that find- 
 ing by not having restored or offered to restore 
 the money paid her as consideration for the release. 
 She was, however, required to account for the money 
 and permitted to bring it into Court : Doyle v. Dia- 
 mond Flint Glass Co., 7 0. L. E. 747, 8 0. L. K. 499, 
 10 0. L. E. 567. A settlement of a pending action 
 agreed to by an illiterate plaintiff without communi- 
 cation with her solicitor, and without fair disclosure 
 of facts cannot stand, and its validity may be tried 
 in the pending action if pleaded at bar: Johnson v. 
 G. T. E., 25 0. E. 64, 21 A. E. 408; see also as to 
 what may constitute accord and satisfaction: Haist 
 v. G. T. E. 26 0. E. 19, 22 A. E. 504. An issue as to 
 the effect of the payment and its procurement by 
 fraud, may be tried by the Judge presiding at the 
 trial, and need not necessarily be left to the jury: 
 Haist v. G. T. E., 22 A. E. 504; see also Davidson v. 
 Merriton "Wood Co., 18 P. E. 139. Pleading re- 
 lease under seal given for a small sum: validity: 
 Arkles v. G. T. E., 5 0. W. N. 462. 
 
 4. — (2) Formerly in cases under this Act, the jury were 
 instructed to take into consideration the sums re- 
 ceived for benefit and accident insurance, as the cause 
 of action is the pecuniary loss caused by death : Hicks 
 v. Newport Ey., 4 B. & S. 403n; Jennings v. G. T. E., 
 15 A. E. 477, 13 App. Cas. 800; Misner v. Toronto 
 and York Eadial, 11 0. W. E. 1064 ; McKay v. Wa- 
 bash Ey., 10 0. W. E. 416, at p. 424. Former rule 
 as to insurance money : Dawson v. Niagara, etc., Ey., 
 22 0. L. E. 69, 23 0. L. E. 670. Indemnity received 
 from insurance: see Meller v. G. T. E., 1906, A. C. 
 187 ; The King v. Armstrong, 40 S. C. E. 229. Former 
 rule as to deduction of insurance in computation of 
 damages under Lord Campbell's Act: see Article, 48 
 C. L. J. 314. See note to E. S. O. 1914, ch. 146, sec. 
 10, and ch. 185, sees. 99 (12), and 266. 
 
 5. Garnishment of moneys recovered in action under this 
 
 Act : McEwan v: Spekt, 4 "W. L. E. 325. 
 
 6. The provisions of Lord Campbell's Act are not af- 
 
 fected by special railway legislation, providing that 
 actions for " damages sustained by reason of the 
 
CHAPTER 151. 705 
 
 railway," be brought within six months: Zimmer 
 v. G. T. E., 19 A. R. 693. Limitation where death 
 caused by negligence of public authority: Williams 
 v. Mersey Docks, 1905, 1 K. B. 804. 
 
 7. Transmission of interest: United Collieries v. Simp- 
 
 son, 1909, A. C. 383. 
 
 8. The widow and child of a person killed in conse- 
 
 quence of the defendant's negligence may, when let- 
 ters of administration to his estate have not been 
 issued, bring an action without waiting six months : 
 Curran v. G. T. R. 25 A. R. 407. Where action was 
 brought by widow alone, infants were added as 
 parties plaintiffs, or claim should be amended 
 to shew that action brought on their behalf as well 
 as on behalf of widow : Linden v. Trussed Concrete 
 Steel Co., 11 O. W. R. 1003, 18 O. L. R. 540. Action 
 must be brought in name of parents. Their at- 
 torney cannot sue: Luciani v. Toronto Construc- 
 tion Co., 4 O. W. N. 1025, 24 O. W. R. 319. Staying 
 action pending action by administratrix: Mum- 
 mery v. G. T. R. 1 O. L. R. 622. 
 
 9. Where damages are recovered, the jury usually ap- 
 
 portions them among those entitled to share, but 
 where this is not done or where the matter does 
 not go before a jury, the matter may be brought 
 summarily before a Judge to make a just distri- 
 bution: Burkholder v. G. T. R., 5 O. L. R. 429. 
 The Judge may follow the analogy of the Statute 
 of Distributions, but will not be bound by its exact 
 terms : Bulmer v. Bulmer, 25 Ch. D. 409. And will 
 consider the fact that some provision has been 
 made certain applicants under an insurance policy: 
 Burkholder v. G. T. R. 5 O. L. R. 429. Where the 
 persons entitled to the fund are a widow and a 
 number of children, the Court will take into con- 
 sideration the pecuniary benefit received by the 
 widow under the will: O'Donnell v. C. P. R., 11 
 O. W. R. 110. Apportionment of damages: Scar- 
 lett v. C. P. R, 4 0. W. N. 718, 23 O. W. R. 948; 
 Brown v. G. T. R., 4 0. W. N. 942, 24 0. W. R. 
 255, 28 0. L. R. 354. 
 
 10. Two actions were brought by two women each 
 claiming to be the widow of the deceased, and each 
 
 s.a. — 45 
 
706 CHAPTER 152. 
 
 with children as co-plaintiffs. Held that only one 
 action would lie under the Act, and that action 
 should be for the benefit of the persons entitled in 
 fact. The marriage to the plaintiff in the second 
 action having taken place after an alleged di- 
 vorce from the plaintiff in the first action, and the 
 children in the first action being undoubtedly en- 
 titled, that action was ordered to proceed and the 
 rights of all parties worked out in it: Morton v. 
 G. T. E., 8 0. L. E. 373. Two actions on account 
 of death of same person: Scarlett v. C. P. E., 
 3 0. W. N. 1006. An unmarried man having come to 
 his death by injuries inflicted by the defendants, 
 two actions were brought, the first by his pater- 
 nal grandfather and grandmother, and the second 
 by his mother, who had obtained letters of ad- 
 ministration after the bringing of the first 
 action. Although the plaintiffs in the first action 
 could legally proceed so long as there was no 
 administrator, yet an administratrix having been 
 appointed and her action brought within 6 months, 
 she was held entitled to proceed with it, and the 
 first action should be stayed: Mummery v. Grand 
 Trunk, 1 0. L. E. 622. 
 
 CHAPTEE 152. 
 
 The Desebted Wives Maintenance Act. 
 
 2. "Where the plaintiff wife obtained an order under this 
 Act soon after issuing writ, her motion for interim 
 alimony was dismissed: Cowardine v. Cowardine, 
 2 0. W. N. 44, 16 0. W. E. 963. Where a wife ob- 
 tained a Magistrate's order under this Act, her 
 remedies were held limited to those given by the 
 statute and an action in the Division Court for ar- 
 rears of payments under the order could not be 
 maintained: Ee Sims v. Kelly, 20 0. E. 291. As to 
 criminal responsibility for not providing neces- 
 saries: see E. S. C. 1906, ch. 146, sec. 242 (2). Pro. 
 ceedings taken on an information under the above 
 section of the Criminal Code will not support an 
 order under this section: Ee Woodruff, 16 0. L. E. 
 348, 11 0. W. E. 430. 
 
 10. Appeal: see Ee Coe v. Coe, 21 0. E. 409; and see 
 now provisions of E. S. 0. 1914, ch. 90, sec. 10. 
 
CHAPTER 153. 707 
 
 CHAPTER 153. 
 
 The Infants Act. 
 
 Refer to: Simpson on Infants, Eversley Domestic 
 Relations, Stephen's New Commentaries, Bullen & 
 Leake's Pleadings; Bicknell and Kappele, Practical 
 Statutes, pp. 285-289. 
 
 2. The right of a father to the custody and control of 
 his children is one of the most sacred of rights. No 
 doubt the law may take away from him this right 
 or may interfere with his exercise of it, just as it 
 may take away his life or his property or interfere 
 with his liberty, but it must be for some sufficient 
 cause known to the law. He may have forfeited 
 such parental right by moral misconduct or by the 
 profession of immoral or irreligious opinions deemed 
 to unfit him to have charge of any child at all, or 
 he may have abdicated such right by a course of 
 conduct which would make a resumption of his 
 authority capricious and cruel towards the children. 
 But, in the absence of some conduct by the father 
 entailing such forfeiture or amounting to such ab- 
 dication, the Court has never yet interfered with 
 the father's legal right. It is a legal right with no 
 doubt a corresponding legal duty, but the breach 
 or intended breach of that duty must be proved by 
 legal evidence before that right can be rightfully 
 interfered with:" Per James, L.J. : In re Agar El- 
 lis, 1878, 10 Ch. D. 49, at p. 71. Quoted with ap- 
 proval: Re Mathieu, 29 0. R. 546; In re Newton, 
 1896. 1 Ch. 740; Re Faulds, 12 0. L. R. 245; see also 
 In re Fy'nn, 1848, 2 De G. & Sm. 457; In re Golds- 
 worthy, 8 Q. B. D. 75; The Queen v. Gyngall, 1893, 
 2 Q. B. 232. While the welfare of the child is in one 
 sense paramount, the paternal right to custody and 
 control is supreme unless a very extreme case can 
 be made out shewing that it is imperative for the 
 protection of the child that the Court should inter- 
 fere with that right: Re Faulds, 12 O. L. R. 245; In 
 re McGrath, 1893, 1 Ch. 143. How the effect to be 
 given to paternal rights on the one hand and the 
 supposed welfare of the child on the other are to be 
 weighed and balanced: see In re O'Hara, 1900, 2. 
 
708 CHAPTER 153. 
 
 I. E. 232. "Where a husband has done no wrong 
 and is able and willing to support his wife and 
 child, the Court will not take away from him the 
 custody of his infant child merely because his wife 
 chooses to live away from him, and because it thinks 
 that living with the father apart from the mother 
 would be less beneficial to the infant than living 
 with the mother apart from the father: Ee Mathieu, 
 29 0. E. 546. Paternal right to custody of children : 
 Ney v. Ney, 4 0. W. N. 1536. Habitual drunkenness 
 on the part of a father may justify a finding of un- 
 fitness as would justify an interference with his 
 rights : In re Goldsworthy, 2 Q. B. D. 75. See also 
 as to what constitutes unfitness : The Queen v. Bar- 
 nardo, 1891, 1 Q. B. 194. Drunkenness and evil con- 
 versation on the part of the husband and ill-treat- 
 ment of his wife as reason for giving control to 
 mother: Ee Dickson, 12 P. E. 659. The discretion 
 given to the Court over the custody of infants is 
 to be exercised as a shield for the wife where a 
 shield is required against a husband with whom she 
 cannot properly be expected to live. It is not to 
 be exercised so as to put a weapon in the hands of 
 a wife with which she may compel an unoffending 
 husband to live where she sees fit : Ee Matthieu, 29 
 O. E. 546. Eight of father" to custody of daughter: 
 discretion: Ee Ethel Phillips, 4 0. W. N. 1408, 24 0. 
 W. E. 709. Where a mother could not have suc- 
 ceeded in getting custody of her children as against 
 their father, she cannot succeed against the father's 
 agent: In re Eoss, 6 P. E. 285. The order of the- 
 Court commanding the wife to deliver up the child 
 to her husband is complied with by placing the child 
 in his charge. If the child returns of its own free- 
 will to its mother and is not forcibly detained the 
 Court will not interfere further: Eeg v. Sheriff, 7 
 U. C. E. 403. On petition of the mother, the Court 
 may order the father to disclose the whereabouts, 
 of the children in his custody and allow the mother 
 access to them: Ee Keith, 7 P. E. 138. Election on 
 part of infant may be allowed after a . certain age, 
 but if a child were removed from the custody of its 
 father it would be ordered to return without refer- 
 ence to its own choice, at all events- up to the age 
 of sixteen: In re Kinne, 5 P. E. 184. The reluct- 
 ance of the Court to separate brothers and sisters. 
 
CHAPTER 153. 709 
 
 is very great : Re Faulds, 12 0. L. R. 245 ; Smart v. 
 Smart, 1892, A. C. 425, at p. 433 ; Re Young, 29 0. 
 R. 665; In re McGrath, 1893, 1 Ch. 143; Warde v. 
 Warde, 2 Ph. 786, 791. The age of the child may 
 be a determining factor in refusing restoration of 
 custody when sought by a parent: The Queen v. 
 Gyngall, 1893, 2 Q. B. 232, at pp. 243-4, 253 ; In re 
 Newton, 1896, 1 Ch. 740. 
 
 The Ontario Act differs from the English in that it 
 requires equal regard to be paid to the wishes of the 
 mother: Re Young, 29 0. R. 665. The Act requires 
 that weight be given to the wishes of the mother as 
 well as to those of the father, and where these are 
 opposed, the Courts will consider the welfare of 
 the children the principal matter: Re Young, 29 0. 
 R. 665. The statute does not take away the father's 
 common law right, but makes the recognition of this 
 right conditional to some extent on the performance 
 of his marital duty and the interest of the child: 
 In re Leigh, 5 P. R. 402. The question of the right 
 of custody of minor children as between father and 
 mother was fully considered in Smart v. Smart, 
 1892, A. C. 425. " No one has stated or can state 
 in other than elastic terms the grounds on which 
 the Court should think fit to interfere. There must 
 be a sufficient amount of peril to the children:" 
 (Per Lord Hobhouse, p. 432). The discretion of the 
 Court may be properly exercised to leave children in 
 the custody of their mother, and is materially 
 affected by proof of breach of marital duty by the 
 husband, the welfare of the children and the ob- 
 jection to separating them: Smart v. Smart, 
 1892, A. C. 425. What must be shewn to oust cus- 
 tody of father: separation deed: maternal right: 
 children born of subsequent cohabitation: Reg. v. 
 Allen, 31 U. C. R. 458, 5 P. R. 443. In an action for 
 alimony and custody of the infants, the Court was 
 held to have had jurisdiction to grant latter 
 relief without petition : Munro v. Munro, 15 Gr. 431. 
 The Court has an absolute right in its discretion to 
 give ihe custody of a child to its mother : Re Davis, 
 3 Ch. Ch. 277. Where this right will be exercised: 
 see Re Davis, 3 Ch. Ch. 277; Re Scott, 8 R R. 58; 
 Re Murdock, 9 P. R. 132. An allegation of "fan- 
 atical religious views " is not sufficient: In re Cars- 
 well, 6 P. R. 240. She must establish such a case as 
 
710 CHAPTER 153. 
 
 \ 
 i 
 
 ■ would justify her in leaving her husband's home: 
 In re Carswell, 6 P. E. 240- Custody awarded to 
 mother; periodical access of father provided: Ke 
 Keys, 12 0. W. R. 160, 269 ; Re Argles, 10 O. W. R. 
 801. Rights of mother to custody of children after 
 death of father: Re Maher, 4 O. W. N. 1009. 
 
 Custody of illegitimate children: It is in the dis- 
 cretion of the Court to decide who shall have cus- 
 tody of an illegitimate child. The mother being 
 dead, the putative father is entitled to the custody 
 as against the maternal grandfather: Re Brandon, 
 7 P. R. 347. "While it was shewn that the putative 
 father had got possession of the child by agreement 
 with and with the assent of the mother and not by 
 force or fraud, the Court refused to interfere on 
 her behalf: Regina v. Armstrong, 1 P. R. 6. The 
 mother of an illegitimate child is not entitled to all 
 the rights of a guardian for nurture. Her position 
 differs from that of a stranger only in this, that dur- 
 ing the period of nurture (under seven) she cannot 
 be deprived of the custody by force or fraud. But 
 when she has abandoned the child and others have 
 adopted it and she afterwards claims it, the Courts 
 will not interfere on her behalf: In re Holeshed, 5 
 P. R. 251. The father of an illegitimate child has 
 the right to the custody and care thereof, except as 
 against the mother: O'Rourke v. Campbell, 13 0. 
 R. 563. General review of the law: see Re Bran- 
 don, 7 P. R. 347. Religious education of illegitimate 
 child: Re Smith, 8 P. R. 23. Right of mother 
 to custody of illegitimate child; welfare of the chil- 
 dren: Re McGrath, 1893, 1 Ch. 148; Re Faulds, 12 
 O. L. R. 245; R. v. Nash, 1 Q. B. D. 454; Barnardo 
 v. McHugh, 1891, A. C. 388; Re Longaker, 12 O. W. 
 R. 1193. Rights of mother and putative father to 
 custody of illegitimate child: Re C, an infant, 20 
 O. W. R. 669, 3 0. W. N. 391, 25 0. L. R. 218 ; and see 
 R. S. 0. 1914, ch. 154, sec. 2, notes. 
 
 Where there is danger of an infant being removed 
 out of the jurisdiction, the Court will intervene sum- 
 marily on the petition of the Surrogate Court 
 guardian to prevent it, even though no suit is pend- 
 ing respecting the infant's estate: Re Gillrie, 3 Gr. 
 279. Foreign divorce; competency to consider the 
 
 
CHAPTER 158. 7H 
 
 ' ' cause assigned " : in Ee Kinney, 6 P. E. 245. 
 Foreign divorce of British subjects: application 
 for custody of infants on the part of mother granted 
 where she had obtained a foreign divorce from her 
 husband on the ground of adultery, and' he had 
 brought the children to Ontario to escape the effect 
 of the foreign judgment: Ee Davis, 25 0. E. 579. 
 Habeas corpus: see E. v. Allen, 5 P. E. 453; Ee 
 Murdoch, 9 P. E. 132; Ee Smart Infants, 11 P. E. 
 482. A father was proceeding by habeas corpus to 
 obtain the custody of children. It was held that 
 a more comprehensive adjudication could be had 
 on a petition and that there was power to direct 
 that a petition be substituted; subsequently it was 
 directed that the proceedings should be concurrent : 
 Ee Smart Infants, 12 P. E. 312, 435, 635. The 
 points of difference between the law in England 
 and in Ontario as to the custody of infants : see Ee 
 Young, 29 0. E. 665. Jurisdiction as to infants and 
 their custody: see H. & L. notes pp. 18, 19. See 
 Imperial Act. 49-50 Vic. ch. 27, sees. 5, 7. Applica- 
 tions as to the custody of infants under this Act 
 are excepted from the jurisdiction of the Master 
 in Chambers: see Con. Eule 42 (7), 1913 Eule 208 
 (7). Children within the Children's Protection Act : 
 see E. S. 0. 1914, ch. 231. As to support of illegi- 
 timate children: see E. S. 0. 1914, ch. 154. 
 
 3. — (1) Eights of testamentary guardian: see Ee Helyar, 
 Helyar v. Beckett, 1902, 1 Ch. 391. Father's right 
 to appoint testamentary guardian and such guard- 
 ian's, powers: see H. & L. notes p. 109. This 
 section is derived from 12 Car. II, ch. 24, sees. 
 8, 9, through E. S. 0. 1897, ch. 340, sec. 2. Con- 
 sideration of law of adoption : Fidelity Trust Co. v. 
 Buchner, 22 0. W. E. 72, 3 0. W. N. 1208, 26 0. L. 
 E. 367. See also Anon., 6 Or. 632 ; Davis v. McCaf- 
 frey, 21 Or. 554; Ee Davis, 18 0. L. E. 384; Ee 
 Hutchinson, 26 0. L. E. 113, 601, 28 0. L. E. 114 
 (restoring 26 0. L. E. 113). Eepudiation of adop- 
 tion agreement; right of father against maternal 
 grandparents for custody: Ee Hutchinson, 3 0. W. 
 N. 993, 1552, 4 0. W. N. 777, 21 0. W. E. 669, 22 0. 
 W. E. 390, 26 0. L. E. 113, 601, 28 0. L. E. 114. And 
 see also Leach v. E., 1912, A. C. 305 ; Eoberts v. 
 Hall, 1 0. E. 388. 
 
n-t o CHAPTER 153. 
 
 3.— (2) Is the father included in the wording of this sub- 
 section: Re Hutchinson, 26 0. L. R. 113, 601, 28 0. 
 L. R. 114. 
 
 4. In all questions as to the custody of infants the Rules 
 of Equity shall prevail. This section was formerly 
 R. S. 0. 1897, ch. 51, sec. 58 (12) : see H. & L. notes, 
 pp. 105-110, where common law rule, equity rule 
 and procedure under the Judicature Act are consid- 
 ered. 
 
 5._(1) Dealing with infants' lands: Collier v. Union 
 Trust, 4 0. W. N. 1465, 24 0. W. R. 761. Re Sugden, 
 4 0. W. N. 924, 24 0. W. R. 212. As to infants' deeds 
 and conveyances of infant's lands; see note to De- 
 volution of Estates Act, R. S. 0. 1914, ch. 119, sec. 19. 
 Maintenance, H. & L. p. 1211. Enquiry as to debts ; 
 when principal broken into : H. & L. notes p. 212. As 
 to settled estates in which infants are interested: see 
 R. S. 0. 1897, ch. 71, et seq.; H. & L. notes, pp. 1218, 
 et seq., R. S. 0. 1914, ch. 74, especially sec. 35. 
 
 5. — (2) See cases collected: H. & L. notes p. 1209. 
 
 13. Mode of procedure in sale of infants ' lands : Re Sug- 
 den, 4 0. W. N. 924, 24 0. W. R. 212. Jurisdiction 
 of High Court as to infants and their estates: see 
 Judicature Act, R. S. O. 1897, ch. 51, sec. 26 (2) ; 
 H. & L. notes pp. 18, 19; R. S. 0. 1914, ch. 56, sec. 
 13. Rules as to property of infants : see Con. Rules 
 960-970; H. & L. notes pp. 1208-1217, 1913 Rules 
 618-621. Application to sell made to a Judge; of- 
 ficial guardian to be notified : see 1913 Rule 618. For 
 note as to grounds on which sale is authorized and 
 how the interest of the infant is to be considered: 
 see H. & L. notes pp. 1208-9. What the affidavits 
 are to state: circumstances which justify a sale of 
 infants' estate: H. & L. notes pp. 1210-1211; see 
 1913 Rule 619. Provision for examination of infant: 
 see Con. Rules 966, 967; H. & L. notes pp. 1215-1216, 
 1913 Rule 620. Infant out of Ontario and viva voce 
 evidence: see 1913 Rules 620, 621. 
 
 14. See Con. Rule 970; H. & L. notes p. 1217, also p. 
 1209, 1913 Rule 457. 
 
CHAPTER 153. 713 
 
 17. Where the conversion of real estate is rightfully 
 directed by the Court for a particular purpose, it 
 effects conversion for all purposes: Burgess v. 
 Booth, 1908, 2 Ch. 648. Where lands are sold for 
 the purpose of effecting a partition, the share of an 
 infant retains its character of realty: Thompson v. 
 McCaffrey, 6 P. E. 193. The rule of the Court Is 
 that the conversion shall not have any greater ef- 
 fect than is necessary for accomplishing the im- 
 mediate purpose of the conversion so far as the 
 rights of the next-of-kin and heirs at law of the in- 
 fant are concerned : Fitzpatrick v. Fitzpatrick, 6 P. 
 E. 134; see also Campbell v. Campbell, 19 Gr. 254. 
 
 19. Where a widow paying the proceeds of money into 
 Court to the credit of herself and the official guard- 
 ian on behalf of an infant, reserved the right to 
 elect between her dower and her distributive share 
 and subsequently elected to take the former and 
 died shortly after, it was held that her adminis- 
 trator was entitled to receive the value of her 
 dower according to her expectancy at the time of 
 sale: Ee Pettit, 4 O. L. E. 506. As to conveyances 
 by infants where land sold by auction of the Court 
 for payment of debts of ancestor: see the Trustee. 
 Act E. S. O. 1914, ch. 121, sec. 61. 
 
 21. Costs: see Con. Eule 1130, E. S. 0. 1914, ch. 56, sec. 
 74. 
 
 24. Former provisions of B. S. 0. 1897, ch. 340, sees. 
 15-18. Imperial Act, 18-19 vie. ch. 43, sees. 1-4. 
 See also provisions of E. S. O. 1897, ch. 324, sees. 
 16-17; E. S. O. 1914, ch. 56, sees. 135-136; A. G. 
 v. Toronto General Trusts, 5 0. L. E. at p. 608. See 
 H. & L. notes, p. 33. 
 
 26. As to relation of guardian and ward: see Eyre v. 
 Countess of Salisbury; White and Tudor 's Leading 
 Oases, vol. I. p. 473 and notes. Agreement by 
 mother to give up natural guardianship in consid- 
 eration of benefits to child and an allowance to her- 
 self : Chisholm v. Chisholm, 40 S. C. E. 115. Juris- 
 diction of High Court to appoint guardian: when 
 security to be given and when dispensed with: in- 
 terest of infant considered : removal from juris- 
 diction: powers of guardians to make leases: H. & 
 
714 CHAPTER 153. 
 
 i 
 i 
 
 L. notes pp. 1213-1215. Eemoval of testamentary 
 guardian: see sec. 29, infra. Guardian to receive 
 insurance money: see R. S. 0. 1897, 203, sec. 155, 
 and now see R. S. 0. 1914, ch. 183, sees. 175-176. 
 
 i 
 
 27. Application of the 1913 amendment to the Insur- 
 
 ance Act as to insurance moneys payable to infants 
 (see R. S. 0. 1914, ch. 183, sees. 175-6) : Re Rennie 
 Infants, 5 0. W. N. 459. It would seem that such 
 moneys are to be paid to a trustee appointed by the 
 Court: Re Rennie Infants, 5 0. W. N. 459. 
 
 28. See H. & L. notes p. 109. Although a wife had ob- 
 tained from the Court an order giving to her the 
 custody of an infant daughter until she attained the 
 age of 12, this did not prevent the' father appoint- 
 ing testamentary guardians : Davis v. MeCaffray, 21 
 Gr. 554. The remarriage of mother, sole surviving 
 guardian, is not in itself a reason for the Court ap- 
 pointing a co-guardian. The benefit of the infant 
 is the sole ground: Re X, X v. Y 1899, 1 Ch. 526. 
 Testamentary control : F. v. F., 1902, 1 Ch. 688 ; in 
 Re Grey, 1902, 2 Q. R. 684. Right of paternal testa- 
 mentary guardian to control child's religious edu- 
 cation : Re Chillman, 25 0. R. 268. Right of mother 
 to sue for injury to child: Young v. Gravenhurst, 
 24 0. L. R. 447. 
 
 32. Authority of guardian to prevent removal of infant 
 from the jurisdiction: Re Gillrie, 3 Gr. 279, noted 
 ante, sec. 2. 
 
 < 
 
 33. Appeal to Divisional Court : see H. & L. notes p. 131, 
 
 R. S. 0. 1914, ch. 56, sec. 26 (2) (o), R. S. 0. 1914, 
 ch. 62, sec. 34. 
 
 36. Religio sequitur patrem. It is the duty of the Court 
 to enforce the wishes of the father as to the reli- 
 gious education of his children unless there is 
 strong reason for disregarding them. The Court 
 has jurisdiction to interfere even against the 
 father's wishes to prevent the religious convictions 
 of his child being interfered with, but there must 
 be shewn an abandonment or abdication of the pa- 
 ternal right or that the child has deep religious con- 
 victions to disturb which would be dangerous to its 
 
CHAPTER 153. 715 
 
 moral welfare!: Re Faulds, 12 0. L. R. 245; In re 
 McGrath, 1893, 1 Ch. 143; In re Agar Ellis, 10 Ch. 
 D. 49, pp. 73-5; In re Newton, 1896, 1 Ch.*740; 
 Andrews v. Salt, L. R. 8 Ch. 622 ; In re Meades, Ir. 
 R. 5 Eq. 98; Davis v. Davis, 10 W. R. 245; Re Chill- 
 man, 25 0. R. 268. The law does not impose on the 
 Court the duty of doing more with regard to the 
 religious education of a child who is a ward of 
 Court, than to direct him to he brought up in his 
 father's religion unless there are sufficient reasons 
 to the contrary: Re W., W. v. M., 1907, 2 Ch. 557. 
 Religious education of child originally directed to 
 be in father's religion altered at request of boy of 
 eleven: Re "W., W. v. M., 1907, 2 Ch. 557. Testa- 
 mentary control: F. v. F., 1902, 1 Ch. 688; In re 
 G-rey, 1902, 2 I. R. 684. Right of paternal testa 
 mentary guardian to control child's religious edu- 
 cation: Re Chillman, 25 O. R. 368. Religious con- 
 viction of child: see Stourton v. Stourton, 8 D. M. 
 & G. 760; In re Newton, 1896, 1 Ch. 753. Religious 
 training: MacNabb v. Mclnnes, 25 Gr. 144. The 
 Court cannot compel a father out of his own funds 
 to educate a child in a different religion from his 
 own: In re Nevin, 1891, 2 Ch. 299 at p. 312; An- 
 drews v. Salt, L. R. 8 Ch. 622. In the case of very 
 young children the question of what religion they 
 shall be brought up in is not pressing, and the 
 father will be allowed to raise it at a later date : Re 
 Dickson, 12 P. R. 659. Child's religion; a child 
 may be of sufficient age to have religious views of 
 his own: Re Faulds, 12 0. L. R. 245 at pp. 258-9. 
 Or if of tender years, has no religion of his own nor 
 is his religion a pressing question: Re Dickson In- 
 fants, 12 P. R. 659: see Re Kenna, 4 0. W. N. 1395, 
 24 0. W. R. 690, 5 0. W. N. 392. See further on 
 question of religious education H. & L. notes pp. 
 109-110. 
 
716 CHAPTER 154. 
 
 CHAPTER 154. 
 
 The Illegitimate Children's Act. 
 
 2. Where a bastardy order has been made directing the 
 
 putative father to pay a weekly sum for the main- 
 tenance of the child, and the father dies leaving ar- 
 rears unpaid, the mother cannot recover arrears nor 
 . accruing payments from the father's estate: Re 
 Harrington, Wilder v. Turner, 1908, 2 Ch. 687. 
 Agreement with mother of child by its father to 
 pay a weekly sum for child's maintenance; death of 
 mother : James v. Morgan, 1909, 1 K. B. 564. Where 
 the plaintiff was a married woman, the presumption 
 arose that the necessities furnished were her hus- 
 band's: Jackson v. Kassel, 26 TJ. C. R. 341. Pre- 
 sumption of legitimacy where child born in wedlock : 
 see Ryan v. Miller, 21 U. C. R. 202, 22 U. C. R. 87. 
 An action will lie against representatives of a de- 
 ceased father for the maintenance of his illegiti- 
 mate child during his lifetime under this Act : Mono- 
 han v. Oke, 1 A. R. 268. The father of an illegiti- 
 mate child has the right of custody except as against 
 the mother. Her claim is good as against the father. 
 O'Rourke v. Campbell-, 13 O. R. 563. It is no de- 
 fence to an action by the child's grandmother for 
 necessities furnished at the mother's request that 
 the father had demanded the child, had informed the 
 mother that he would support the child, and had 
 always been ready to do so, and that the mother had 
 refused: O'Rourke v. Campbell, 13 0. R. 563. Right 
 of mother to collect damages for death of illegiti- 
 mate child : see G-ibson v. Midland Ry., 2 0. R. 658. 
 See H. & L. notes p. 109. See also as to custody of 
 illegitimate children: R. S. O. 1914, ch. 153, sec. 2, 
 note. 
 
 3. Where father of illegitimate child, by falsely repre- 
 
 senting that he was of full age, procured acceptance 
 of his contract to maintain the child and thereby 
 avoided having affidavit filed, it was held that the 
 contract was not binding and that it was too late to 
 comply with the statute: Jewel v. Broad, 19 0. L. 
 R. 1, 20 0. L. R. 176. An affidavit which stated that 
 the defendant was the father of the child instead of 
 " really the father," was held defective: Jackson 
 
CHAPTER 155. JJJ 
 
 v. Kassel, 26 U. C. R. 341. The affidavit was pro- 
 duced from the office of the City Clerk and pur- 
 ported to be sworn before the City Police Magis- 
 trate. Held sufficient evidence to go to a jury that 
 it was deposited in the proper office: Jackson v. 
 Kassel, 26 U. C. E.. 341. Attempting to procure a 
 woman falsely to make the affidavit provided is an 
 indictable offence: E. v. Clement, 26 U. C. E. 297. 
 Eequirements of pleadings in action under this 
 Act: Morris v. Churchward, 4 0. W. N. 1008, 24 0. 
 W. E. 313. 
 
 CHAPTEE 155. 
 The Landlord and Tenant Act. 
 
 Eefer to : Clarke, Landlord and Tenant (Can.) ; Bell, 
 Landlord and Tenant (Can.); Bullen and Leakes' 
 Pleadings; Woodfall, Foa, Eedman and Lyon on 
 Landlord and Tenant ; Williams and Yates on Eject- 
 ment ; Bewes on "Waste ; Amos and Ferard on Fix- 
 tures; Bythewood & Jarman and Kay & Elphin- 
 stone, Conveyancing; Bullen on Distress; Bicknell 
 and Kappele, Practical Statutes, pp. 820-830. 
 
 2. — (&) Meaning of " landlord:" Ee Pepall v. Broom, 2 
 O. W. N. 1275, 19 0. W. E. 512. 
 
 2. — (d) As to liability of tenant to pay night watchman: 
 see E. S. O. 1914, ch. 192, sec. 400 (50) (a). As to 
 right of tenant to deduct money paid for taxes from 
 rent to collector until taxes are paid: see E. S. O. 
 1914, ch. 195, sees. 96, 97. As to duty of tenant to 
 notify landlord of construction of ditches: see E. 
 S. 0. 1914, ch. 260, sec. 15 (2). As to drainage assess- 
 ment: see E. S. 0. 1914, ch. 198, sec. 92. 
 
 PART I. 
 
 Eelation of Landlord and Tenant. 
 
 3. The idea which the framer of the section probably 
 had was to do away with the necessity of Laving 
 the immediate reversion to entitle to distrain one 
 who had let lands to another: Harpelle v. Carroll, 
 
71g CHAPTER 155. 
 
 27 0. E. 240. It is taken from Landlord and Tenant 
 Law Amendment Act, Ireland, 1860, 23 and 24 Vic. 
 ch. 144, sec. 3. For cases where the section has 
 been criticized, see judgment of Meredith, C.J.: 
 Harpelle v. Carroll, 27 0. E. 240 at p. 246, et seq. 
 The effect of the section is not to take away the 
 common law right of distress: Harpelle v. Carroll, 
 27 0. E. 240 at p. 247: see articles 15 C. L. T. 217-8, 
 245. See Armour Eeal Property, pp. 135, 333 and 
 344. 
 
 4. Suit by statutory assignee of reversion: Sunder- 
 land Orphan Asylum v. Eiver Weir Commissioners, 
 1912, 1 Ch. 191. Eights of assignee of lessor: 
 Eickett v. Green, 1910, 1 K. B. 253. Covenant to 
 repair : demise by under lessee of part of premises : 
 covenant with under lessee for covenantor and 
 assigns to observe as to part not demised: coven- 
 ant running with land: see Dewar v. G-oodman, 
 1907, 1 K. B. 612. Covenant by lessor — reversion 
 conveyed to wife: see Ambrose v. Fraser, 14 O. 
 E. 551. Covenant by tenant of a " tied house " to 
 buy beer from landlord and his successors in busi- 
 ness — assigns not mentioned : see Manchester 
 Brewery v. Coombs, 1901, 2 Ch. 608. A covenant 
 running with the reversion entered into by a lessor 
 with his lessee remains binding on the lessor not- 
 withstanding that he has assigned the reversion: 
 Stuart v. Joy and Nantes, 1904, 1 K. B. 362. 
 
 Mortgagee's right to rent: see Moss v. Gallimore, 
 1 Smith L. C. 514. Eights and liabilities of mort- 
 gagor's tenant by a demise made subsequently to 
 the mortgage: Keech v. Hall, 1 Smith L. C. 511. 
 32 Henry VIII., ch. 34, does not apply to leases not 
 under seal: Eogers v. National Drug and Chemical 
 Co., 2 O. W. N 763, 18 0. W. E. 686, 23 O. L. E. 
 234, 24 0. L. E. 486. 
 
 "What covenants run with the land: see Spencer's 
 Case, 1 Smith L. C, p. 52. A covenant running 
 with the reversion entered into by the lessor with 
 the lessee remains binding on the lessor notwith- 
 standing he has assigned the reversion: Eccles v. 
 Mills, 1898, A. C. 360; Stuart v. Joy, 1904, 1 K. 
 B. 362. Assignment of reversion: subsequent pur- 
 chase of adjoining property by assignee: liability 
 
CHAPTER 155. 719 
 
 of assignee for nuisance on the adjoining premises : 
 Davis v. Town Properties, 1903, 1 Ch. 797. Cove- 
 nant running with land : covenant to repair : Dewar 
 v. Goodman, 1908, 1 K. B. 94. 
 
 8 See Armour, E. P., pp. 155 and 356. 
 
 11. See Morris v. Cairncross, 9 0. W. E. 918, at p. 925, 
 14 0. L. E. 544. A person entitled to the income 
 of land under a trust or direction for payment 
 thereof to him during his own or any other life, 
 is entitled to exercise the power of leasing con- 
 veyed hy E. S. 0. 1897, ch. 71, sec. 42; E. S. 0.; 
 - 1914, ch. 74, sec. 33; see also National Trust v. 
 Shore, 11 0. W. E. 228, 16 0. L. E. 177. Eight to 
 call for valid lease in exercise of power : Atkinson 
 v. Parrell, 27 0. L. E. 204. 
 
 19. Armour, E. P., p. 150; see E. S. 0. 1914, ch. 116, 
 schd. B., cl. 12 and notes. 
 
 20. — (1/) In an action for recovery of demised premises 
 where rent is in arrear, a sub-lessee who has paid 
 rent to the lessors is a " tenant," and is entitled to 
 a stay of proceedings upon payment of arrears and 
 costs : Moore v. Smee, 1907, 2 K. B. 8. 
 
 20. — (2) Belief against forfeiture may arise at common 
 law, in equity or under the Judicature Act, E. S. 
 0. 1914, ch. 56. Belief against forfeiture is refused : 
 (a) where non-payment of rent, right to relief be- 
 ing limited under" sec. 20 (2), (3), (6); (b) where 
 breach of covenant Inot to assign or sub-let, 20 
 (9a); (c) bankruptcy, 20 (9a). (d) Mining leases, 
 20 (9b). As to notice of breach and intention 
 to forfeit — principles and form of notice dis- 
 cussed: see Eose v. Spicer, 1911, 2 K. B. 234; 
 Holman v. Knox, 25 0. L. E. 588. Eemedies on 
 forfeiture: (a) Ee-entry without action (evic- 
 tion); (b) action claiming forfeiture; (c) Sum- 
 mary ejectment under sec. 75, etc. Eequirements 
 of the statute considered: Holman v. Knox, 20 O. 
 W. E. 121, 3 0. W. N. 151, 21 0. W. E. 325, 3 0. 
 W. N. 745, 25 0. L. E. 588; McMullen v. Vannatto, 
 24 O. E. 625. Notice specifying breach: Walters 
 v. Wylie, 20 0. W. E. 994, 3 0. W. N. 567. The 
 
720 CHAPTER 155. 
 
 notice required under this section is applicable to- 
 summary proceedings under the Overholding Ten- 
 ants Act. Proceedings under a forfeiture without 
 such notice are nugatory, (see Part iii) : Re Snure 
 and Davis, 4 O. L. E. 82 ; Armour, B. P., pp. 138, 
 152-156 ; see also oases noted, E. S. 0. 1914, ch. 116. 
 
 20. — (3) What amounts to breach of covenant to repair 
 amounting to waste. Conversion of building from 
 chapel to theatre, held not to amount to this : Hy- 
 man v. Eose, (Eose v. Spicer), 1911, 2 K. B. 234, 
 1912, A. C. 623. Mere alterations to make building 
 more suitable for business carried on there are not 
 breaches of covenant against waste, and in any case 
 relief against forfeiture would be given upon pay- 
 ment into Court of a sum adequate to reinstate the 
 buildings into their former plight: Sullivan v. 
 Dore, 5 O. W. N. 70, 25 0. W. E. 31; (following 
 Hyman v. Eose, 1912, A. C. 623). Measure of dam- 
 ages for breach of covenant to keep in repair: 
 Joyner v. Weeks, 1891, 2 Q. B. 31. Belief against 
 forfeiture of right of renewal : Grenville v. Parker, 
 1910, A. C. 335. Effect of order relieving against 
 forfeiture: Dendy v. Evans, 1909, 2 K. B. 894, 
 1910, 1 K. B. 263. Parties necessary to applica- 
 tion for relief against forfeiture, when original 
 lessee not necessary party: Humphreys v. Morten, 
 1905, 1 Ch. 739. Who are necessarv parties to a 
 claim for relief against forfeiture: Hare v. Elms, 
 1893, 1 Q. B. 604. Belief against forfeiture for 
 breach of covenant to insure: see H. & L. notes, 
 pp. 26, 27. Belief against penalties and forfeitures 
 generally: E. S. O. 1897, ch. 51, sec. 57 (3); H. 
 & L. notes, pp. 48-49; E. S. O. 1914, ch. 56, sec. 
 19. 
 
 20. — (6) Eent under a lease under the Short Forms 
 Act becoming in arrear, the landlord served the 
 statutory notice of forfeiture and brought an action 
 for the recovery of the premises and rent. Before 
 trial the two tenants paid the arrears and costs. 
 Held that bringing the action was election to for- 
 feit which oould not be retracted, and could only be 
 got rid of by a request from the tenants, in which 
 they both should concur. A mere payment after the 
 forfeiture, of rent accrued due before, would not 
 
CHAPTER 155. 721 
 
 amount to such a request: Denison v. Maitland, 
 22 0. E. 166. The Court will not make a declara- 
 tion relieving against forfeiture of a lease for non- 
 payment of rent when the trial of the action takes 
 place after the term has expired: Coventry v. 
 McLean, 22 0. E. 1, 21 A. E. 176. Forfeiture of 
 lease for non-payment of rent: Fenny v. Casson, 
 12 0. W. E. 404; see Armour, E. P., pp. 148, 
 et seq. 
 
 20.— (7) After an action of ejectment was commenced 
 for the forfeiture of the lease the landlord dis- 
 trained for and received rent subsequently accru- 
 ing due. This course did not per se set up the 
 former tenancy, but was evidence for the jury of 
 a new tenancy on the same terms from year to 
 year : MoMullen v. Vannatto, 24 0. E. 625. 
 
 20.— (9) Covenant not to assign without license: see 
 Dumpor 's Case, 1 Smith L. C. 31. Court will not grant 
 relief against forfeiture of lease on account of breach 
 of covenant not to assign or underlet: see Eastern 
 Tel. Co. v. Dent, 1899, 1 Q. B. 835. Action for pos- 
 session on ground of breach of covenant not to sub- 
 let: Curry v. Pennich, 4 0. W. N. 712, 23 0. W. 
 E. 922. Condition against assigning: Fitzgerald v. 
 Barbour, 17 0. L. E. 254, 11 0. W. E. 390, 12 0. W. 
 E. 807. As to whether Court can grant relief from 
 forfeiture for breach of covenant not to assign or 
 sublet without leave : see H. & L. notes, p. 48. As- 
 signment for benefit of creditors as breach of cove- 
 nant not to assign or sublet: G-entle v. Faulkner 
 (1900), 2 Q. B. 267. As to breach of covenant not to 
 assign or sublet : see also sec. 23, post ; and E. S. 0. 
 1914, eh. 116, sch. B, cl. 8, notes. 
 
 Mortgagees of the demised premises having noti- 
 fied the subtenants to pay rent to them, the as- 
 signee for benefit of creditors in possession paid 
 to them a sum in satisfaction of their claim with 
 the assent of the lessors against whose demand 
 it was charged. Held that this was no waiver 
 of the lessors' right to claim a forfeiture under 
 proviso in lease against assignments and bank- 
 ruptcy: Littlejohn v. Soper, 1 0. L. E. 172, 31 
 
 S.A.— 46 
 
722 CHAPTER 155. 
 
 S. C. E. 572. A lease to a joint stock company 
 provided that in case the lessee should assign for 
 benefit of creditors, 6 months' rent should become 
 due and the lease should be forfeited. The fact 
 that the lessors were principal shareholders and 
 had moved the by-law for winding-up, made no dif- 
 ference in their position as individuals. The 
 assignee held possession three months and the 
 lessors accepted rent from him for that time, and 
 from sub-lessees for the month following. The 
 lessors had claimed the 6 months' rent and elected 
 to forfeit. The assignee had a statutory right to 
 remain in possession 3 months. The lessors were 
 held not to have waived their right to forfeit: 
 Littlejohn v. Soper, 1 0. L. E. 172, 31 S. C. E. 
 572. Forfeiture of lease by solvent company going 
 into voluntary liquidation: Freyer v. Ewart, 1902, 
 A. C. 187. Apart from the provisions of sec. 38, an 
 assignment for benefit of creditors by a tenant who 
 holds under a lease with a covenant " not to assign 
 or sublet " or with the common provision " if the 
 term hereby granted shall, etc. ... or if the 
 lessee or his assigns shall make any assignment, 
 etc. . . . , " gives the landlord an immediate right 
 to eject, and without giving notice of breach : Kerr v. 
 Hastings, 25 C. P. 429 ; Magee v. Eankin, 29 U. C. E. 
 257; Argles v. McMath, 26 0. E. 224, 23 A. E. 44. 
 There must be an election to forfeit on the part of 
 the landlord : Linton v. Imperial Hotel Co., 16 A. E. 
 337; Palmer v. Mail Printing Co., 28 0. E. 656. 
 Acceptance of arrears of rent is not an election not 
 to forfeit: Soper v. Littlejohn, 1 0. L. E. 172, 31 S. 
 C. E. 572. Making a new lease is an undoubted 
 election to forfeit: Tew v. Eoutley, 31 0. E. 358. 
 Covenant or condition for forfeiture on bankruptcy 
 of lessee : see sec. 38 note. 
 
 23. See notes to sec. 20 (9) ante, and notes to E. S. 0. 
 1914, ch. 116, sch. B, cl. 8. In line 1 for " commence- 
 ment of this Act " read " 24th day of March, 1911 :" 
 4 Geo. V. ch. 2, Schedule (26). 
 
 24. Sees. 24 and 25 are to be read together, the former 
 referring to all cases and making licenses to alien 
 applicable pro hac vice only, the latter referring 
 to specific cases of licensing the alienation of a 
 
CHAPTER 155. 723 
 
 part and reserving the right of re-entry as to 
 the remainder: Baldwin v. Wanzer, 22 0. R. 612. 
 Under a lease made pursuant to the Short Forms 
 of Leases Act, containing a condition for re- 
 entry on assigning or subletting without leave, 
 when the lessor gives a license to assign part of 
 the demised premises, he may re-enter upon the 
 remainder for breach of the covenant not to as- 
 sign or sublet, notwithstanding that the proviso 
 for re-entry requires the right of re-entry on the 
 whole or a part in the name of the whole : Baldwin 
 v. Wanzer, 22 0. E. 612 ; see E. S. 0. 1914, ch. 116, 
 sch. B, cl. 12, notes. See Armour, E. P., p. 156. 
 
 30. Seizure of implements of trade (note difference in 
 wording of English Act) : Boyd v. Bilham, 1909, 
 1 K. B. 14. Goods exempt from execution: see 
 E. S. 0. 1914, ch. 80, sees. 3 to 9. 
 
 31. — (1) Goods of tenant's wife under hire purchase 
 agreement: Shenstone v. Freeman, 1910, 2 K. B. 
 84; Bogers v. Martin, 1911, 1 K. B. 19. Distress 
 for rent — goods on hire purchase: Hackney Fur- 
 nishing Co. v. "Watts, 1912, 3 K. B. 225. 
 
 31. — (3) Persons let into possession by a house agent 
 appointed by assignees of a tenant for the sole pur- 
 pose of exhibiting the premises to prospective 
 lessees and without authority to let or grant pos- 
 session of them, are not in occupation " under " 
 the assignees, and their goods are not liable for 
 distress : Farwell v. - Jamieson, 27 0. E. 141, 23 
 A. E. 517, 26 S. C. E. 588. 
 
 32. — (1) An inventory is sufficiently " subscribed " if 
 it is referred to in the declaration to which it is 
 •annexed, and the declaration signed: Godlonton v. 
 Fulham, etc., Co., 1905, 1 K. B. 431. 
 
 32. — (2) An action for illegal distress lies against the 
 bailiff who proceeds with a distress on lodger's 
 goods after being served with the declaration and 
 inventory, and after the lodger has paid or tendered 
 to the superior landlord the rent, if any, due from 
 him to his immediate landlord: Lowe v. Darling, 
 1905, 2 K. B. 501, 1906, 2 K. B. 772. - 
 
724 
 
 CHAPTER 155. 
 
 35. Damages for breach of covenant to repair are not 
 a " debt" so as to constitute a set-off against the 
 rent, although under the Judicature Act, they 
 might be the subject of counterclaim: "Walton v. 
 Henry, 18 O. E. 620. The service by the tenant 
 after distress, but before sale, of a notice of set- 
 off pursuant to this section of an amount in excess 
 of the rent does not make the distress illegal, and 
 the landlord is not liable for double value under 
 E. S. 0. 1897, ch. 342, sec. 18 (2), which required 
 both seizure and sale to be illegal: Brillinger v. 
 Ambler, 28 0. E. 368. See sec. 54 (2) post. 
 
 38. — (1) A landlord has no preferential claim for rent 
 against an insolvent estate if there were no dis-' 
 trainable goods on the premises at the time of the 
 assignment: Magann v. Ferguson, 29 0. E. 235. 
 The landlord's right to preferential payment de- 
 pends on the existence of distrainable effects, 
 though an actual distress need not be made: 
 Ee McCracken, 4 A. E. 486; Eacrett v. Kent, 
 15 0. E. 9; Lazier v. Henderson, 29 0. E. 673; 
 Linton v. Imperial Hotel Co., 16 A. E. 337. The 
 landlord's right to a preference does not depend 
 on the existence of a formal lease : Be Erly, 2 A. E. 
 617. Under a lease reserving rent payable quar- 
 terly in advance and containing the usual forfeiture 
 and three months' acceleration clause, in case the 
 lessee makes assignment for benefit of creditors,, 
 the landlord, in case of such assignment, be- 
 comes entitled to recover by distress and has a 
 preferential lien for — in addition to the rent due 
 and in arrear for the quarter preceding the 
 assignment — the rent for the current quarter in 
 which the assignment is made ' which was also 
 due and in arrear, as well as a further quarter's 
 rent: Tew v. The Toronto Savings and Loan, 30 
 0. E. 76. " Arrears .of rent due, for three months, 
 following the execution of such assignment " means 
 " arrears of rent becoming due during the three 
 months following .the execution \of the assign- 
 ment." Under the usual provision therefore the 
 landlord is entitled to the current quarter's rent 
 and, in addition, to the quarter's rent payable in 
 advance on the quarter day next after the assign- 
 ment. The expression ' ' the preferential lien of 
 
CHAPTER 155. 725 
 
 the landlord for rent," means that the landlord 
 is entitled to 'be paid the amonnt fonnd due to him 
 as a preferred creditor out of the proceeds of the 
 goods upon the premises at the date of the assign- 
 ment which were subject to distress, although there 
 was no actual distress: Lazier v. Henderson, 29 
 O. E. 673. The restriction on the landlord's rights 
 as provided in this section applies only for the bene- 
 fit of the creditors : Bailton v. Wood, 15 App, Cas. 
 363. Acceleration clauses in leases which work ad- 
 versely to creditors have been attacked (Re Hoskins, 
 1 A. B. 379), but it is now clear the landlord may 
 recover : Linton v. Imperial Hotel Co., 16 A. E. 337 ; 
 JEacrett v. Kent, 15 0. E. 9. Aa to agreements be- 
 tween the parties regarding accelerated rent: see 
 Linton v. Imperial Hotel Co., 16 A. E. 337 ; London 
 and Westminster Loan, etc.; Co. v. London & N. W. 
 Ey. (1893), 2 Q. B. 49. The provision of the sec- 
 tion is intended to prevent a landlord, where there 
 is an acceleration clause, getting an unreasonable 
 amount of rent in advance : Langley v. Meir, 25 A. E. 
 372. In the case of Langley v. Meir, 25 A. E. 
 372, the learned Judges do not seem to have 
 been entirely in accord in their views in regard to 
 the meaning and effect of this statute. It was held 
 however, per Burton, C.J.O., and MacLennan, J. 
 A., that sub-sec. 1 is a restrictive provision and 
 limits the landlord's lien, even though in the lease 
 which he claims there is an acceleration clause 
 wider in its terms than the statutory provisions, 
 and it does not give to the landlord an absolute 
 right to three months' rent upon an assignment 
 for benefit of creditors being made. See also Clarke 
 v. Beid, 27 0. E. 618, where a different conclusion was 
 reached, criticised in Langley v. Meir, ante. See also 
 as to forfeiture and right of assignee to retain 
 possession: Littlejohn v. Soper, 1 0. L. E. 172, 
 31 S. C. E. 572, noted ante sec. 20 (9). The landlord 
 may distrain for rent accruing due after assign- 
 ment: Linton v. Imperial Hotel Co., 16 A. E. 337; 
 Eacrett v. Kent, 15 0. E. 9. The statute does 
 not apply to a tenancy from month to month, 
 but to a case where there is a term of at least a 
 year's 'duration: Semi-Beady v. Tew, 13 0. W. 
 E. 476, 14 0. W. R. 393, 576, 19 O. L. E. 227. 
 Where tenant's goods, in the hands of assignee 
 
726 CHAPTER 155. 
 
 are destroyed by fire, landlord not entitled to rank 
 for preferential lien on the insurance moneys 
 representing them, but must rank rateably with 
 other creditors: Miller v. Tew, 1 0. W. N. 269, 
 14 0. W. E. 207, 1173, 20 0. L. R. 77. 
 
 38._ (2) The effect of this section is to place the assignee 
 who has elected by notice in writing to retain the 
 premises occupied by the assignor for the unexpired 
 term of the lease, in the same position as respects 
 the lease as if the assignment had not been made, 
 the landlord being entitled to the full amount of 
 the rent under the lease but nothing more. Where 
 accelerated rent due for the unexpired term of a 
 lease containing the usual forfeiture clause on an 
 assignment being made by the lessor, had been 
 paid by the assignee who had elected to retain the 
 premises to the end of the term, he was entitled 
 to recover back a further sum for rent . of the 
 premises for a portion of the same period which 
 he had paid under protest to avoid distress : Ken- 
 nedy v.. MacDonell, 1 0. L. E. 250. See also 
 Lazier v. Armstrong, 5 0. W. E. 596. A lease con- 
 tained the usual forfeiture and acceleration con- 
 dition in case of assignment by the lessee. The 
 lessee made an assignment for benefit of creditors. 
 Subsequently the lessor distrained for rent and 
 taxes due by virtue of the provisions of the lease 
 at the date of the assignment, and afterwards 
 granted a new lease of the premises. The assignee 
 had not given the notice required by this section. 
 It. was held that the distress was not a waiver of 
 the forfeiture. The granting of the new lease was 
 election to forfeit and dated back to the time of 
 the forfeiture, viz., the date of the assignment. 
 The assignor might have avoided the forfeiture 
 and the acceleration of the payment of the rent 
 and taxes by giving the notice provided in sub-sec. 
 2 : Tew v. Eoutley, 31 0. E. 358. 
 
 As to position of mortgagee claiming rent: see 
 Munro v. Commercial Building, etc., Society, 36 U. C. 
 E. 464; Hobbs v. Ontario Loan and Debenture Co., 
 18 S. C. E. 483 ; and see E. S. 0. 1914, ch. 112, sec. 
 14, notes. 
 
CHAPTER 155. 727 
 
 39. A sublease for a period co-extensive with or longer 
 than the sublessor's term, operates as an assign- 
 ment and the sublessor cannot distrain for rent in 
 arrear: Lewis v. Baker, 1905, 1 Ch. 46. As to 
 power of landlord's assignee to distrain: Hope v. 
 White, 18 C. P. 430, 19 C. P. 479. 
 
 40. Permission to a tenant to remain in possession 
 
 after expiry of lease does not create a new tenancy 
 so as to bar landlord's right of distress for pre- 
 viously accrued rent: Lewis v. Davies, 1913, 2 K. 
 B. 37. Attornment, demise to mortgagor, rent 
 reserved, intention: see Hobbs v. Ontario Loan, 
 etc., Co., 18 S. C. E. 483. See also as to distress 
 by mortgagee after termination of implied tenancy: 
 Lambert v. Marsh, 2 IT. C. E. 39. Distress by land- 
 lord whose interest has expired: see Hartley v. 
 Jarvis, 7 U. C. E. 545. 
 
 43. What things are privileged from distress : Simpson 
 v. Hartopp, 1 Smith's L. C. 437. Where a landlord 
 has distrained goods belonging in part to the ten- 
 ant and in part to a third person, such third person 
 has no right to compel or to ask the Court to 
 compel the landlord to sell the part belonging to 
 the tenant before selling the ^part belonging to the 
 third persons: Pegg v. Starr, 23 0. E. 83. 
 
 47. A tenant is not liable to prosecution under this stat- 
 ute for the fraudulent and clandestine removal of 
 goods not his own property, nor can goods which 
 are not the tenant's property be distrained off the 
 premises: Martin v. Hutchinson, 21 0. E. 388. 
 Fraudulent removal of goods: see also Eeg. v. 
 Lackie, 7 O. E. 431. 
 
 49. See E. v. Lackie, 7 0. E. 431. 
 
 50. Where cattle shall be taken: Coaker v. Willcocks, 
 
 1911, 1 K. B. 649, 2 K. B. 124. Eemoval of goods 
 to a distance to sell: see Macgregor v. Defoe, 14 
 0. E. 87. Where interpleader questions arise: see 
 Con. Eules, 1102, 1122; 1913 Eules, 625, et seq. 
 Where goods have been impounded under this sec- 
 tion: see particularly, H. & L. notes, p. 1314. 
 
^28 CHAPTER 155. 
 
 52. A landlord cannot himself become the purchaser of 
 
 goods sold by him under distress: Moore Nettle- 
 field Co. v. Singer, 1904, 1 K. B. 820. Seizure by 
 mortgagee of goods in custody of landlord's bailiff: 
 agreement between tenant and bailiff: see Lang- 
 try v. Clark, 27 0. R. 280; but see Anderson v. 
 Henry, 29 0. E. 719. 
 
 53. This section is taken from 11 Geo. II., ch. 19, sec. 19. 
 For 11 Geo. II., ch. 19, sec. 20, see now E. S. 0., 
 1914, ch. 56, sec. 71, tender of amends. Sec. 54 (1) 
 is taken from 52 Hen. III. (Statutes of Marl- 
 bridge) ch. 4 in part, and 3 Ed. I., (Statutes of 
 Westminster Prim.) ch. 16. The right to damages 
 for excessive distress given by the Statute of Marl- 
 bridge was not interfered with or modified by 1] 
 Geo. II., ch. 19, sec. 19. Consideration of these 
 statutes and amount of damages recoverable: Hes- 
 sey v. Quinn, 1 0. W. N. 1039, 20 0. L. E. 442, 21 
 0. L. E. 519. A landlord's right of distress is 
 suspended as to that portion of the rent which has 
 accrued up to the garnishment and distress for 
 such portion is wrongful: Paterson v. King, 27 
 O. E. 56. Liability for conversion: Peasycoed Col- 
 lieries v. Partridge, 1912, 2 K. B. 345. Eights of dis- 
 trainor to climb over wall of next house: Long v: 
 Clarke, 1894, 1 Q. B. 119. When rightfully on the 
 premises, distrainor has no right to break open door 
 of warehouse: American Concentrated Meat v. 
 Hendry, 68 L. T. Eep. 742. 
 
 54. — (1) Origin of section: see note to sec. 53 ante. 
 Section considered: Jarvis v. Hall, 4 0. W. N. 
 232, 23 0. W. E. 282. Damages for excessive dis- 
 tress : Hessey v. Quinn, 15 0. W. E. 505, 20 0. L. 
 E. 442, 16 0. W. E. 628, 21 0. L. E. 519, noted sec. 
 53 ante. Measure of damages: Lee v. Ianson, 1 
 0. W. N. 586. 
 
 54. — (2) This section originated in 2 W. & M., sess. 1, ch. 
 5, sec. 4. Under the reading of E. S. 0. 342, sec. 
 18 (2), it was held that the substitution in this en- 
 actment of the word " may " instead of " shall and 
 may " in 2 W. & M. sess. 1, ch. 5, sec. 4, effects no 
 difference. The Court had no discretion as to 
 amount or as to the costs : Webb v. Box, 19 0. L. E. 
 
CHAPTER 155. 729 
 
 540, 20 0. L. E. 220, 14 0. W. E. 802, 15 0. W. E. 
 205, 1 0. W. N. 112, 317. Both seizure and sale 
 must be unlawful; service of a notice of set-off un- 
 der section 35 ante, does not make the distress 
 illegal and the landlord is not liable for double 
 value for selling: Brillinger v. Ambler, 28 O. E. 
 368; see sec. 35, ante. " Eecover " means recover 
 by the verdict of a jury: not by arbitration: Clark 
 v. Irwin, 8 U. '0. L. J. 21. In an action for 
 wrongful distress for rent before it Was . due, it 
 must be alleged that the goods were sold and 
 " double value " (under the former wording) 
 claimed pursuant to the statute, otherwise the ac- 
 tion is simply for conversion: Williams v. Thomas, 
 25 0. E. 536. No tenancy need be pleaded ; it is suf- 
 ficient if it appear that the seizure was made under 
 colour of distress : Stoddart v. Arderly, 6 0. S. 305. 
 " Full satisfaction,*' formerly " double value:" see 
 cases collected Ont. Dig. Case Law, col. 1991. 
 
 55. The Assessment Act does not warrant a municipal 
 tax collector seizing for arrears of taxes goods 
 which being under distraint by a landlord are in 
 custodia legis : Knyston v. Eogers, 31 0. E. 119. De- 
 mise to mortgagor: seizure of mortgagor's goods: 
 mortgagee's claim under this statute,: see Hobbs v. 
 Ontario Loan and Debenture Co., 18 S. C. E. 483; 
 also Ont. L. & D. Co. v. Hobbs, 15 0. E. 440, 16 A. 
 E. 525. Landlord's claim for rent: chattel mort- 
 gagee's claim and execution creditor: see Clarke v. 
 Farrell, 31 C. P. 584. Where landlord makes a 
 mistake as to particulars of rent due : Tomlinson v. 
 Jams, 11 IT. C. E. 60. The sheriff is not liable for 
 removing goods When rent is due unless he has 
 notice: Kingston v. Shaw, 6 L. J. 280; see also S. 
 C. 20 U. C. E. 223. Formal notice is not necessary ; 
 it may be implied from the landlord's acts : Sharpe 
 v. Fortune, 9 C. P. 523 ; or it may be oral : Brown 
 v. Euttan, 7 IT. C. E. 97. Where goods are seized 
 under execution on leasehold premises and claimed 
 by a third party, and where the goods are sold un- 
 der an interpleader order: see as to landlord's 
 rights: Eobinson v. Mcintosh, 4 Terr. L. E. 102. 
 Landlord's right to rent as against execution credi- 
 tor: Cox v. Harper, 1910, 1 Ch. 480. Payment by 
 execution creditors of rent claimed ; recovery back : 
 
730 CHAPTER 155. 
 
 Baker v. Atkinson, 11 0. E. 735, 14 A. E. 409. 
 Seizure for taxes; priorities: Kingston v. Eogers, 
 31 0. E. 19. Mortgagee's rights as against execu- 
 tion creditor: see Trust & Loan v. Lawrason. 6 A. 
 E. 286, 10 S. C. E. 679; Ontario Loan and Deben- 
 ture Co. v. Hobbs, 16 A. E. 255. After sale by 
 sheriff, the goods must be removed within a reason- 
 able time or they will be liable to distress for rent : 
 Hughes v. Towers, 16* C. P. 287 ; Langton v. Bacon, 
 17 U. C. E. 559. Mutual rights of landlord's bailiff 
 and sheriff's officer: Beatty v. Eumble, 21 0. E. 
 184; Gordon v. Eumble, 19 A. E. 440. Sheriff dis- 
 obeying interpleader order liable to attachment: 
 McLean v. Anthony, 6 0. E. 330; Henderson v. 
 Wilde, 5 U. C. E. 585. Landlord cannot distrain 
 goods held under execution and in custodia legis: 
 Grant v. Grant, 10 P. E. 40. But the sheriff's pos- 
 session may be such as will not preclude the land- 
 lord from distraining: Mclntyre v. Stata, 4 C. P. 
 248; Eoe v. Eoper, 23 C. P. 76; Whimsell v. Gil- 
 ford, 3 0. E. 1; Langtry v. Clark, 27 0. E. 280; 
 Anderson v. Henry, 29 0. E. 719. Where the sheriff 
 realized under his execution and paid over money, 
 taking a bond of indemnity, he was held not entitled 
 to an interpleader against the landlord: Adams v. 
 Blackwall, 10 P. E. 168; and see as to sheriff's in- 
 terpleader: Dig. Ont. Case Law, col. 3499, et seq. 
 See as to interpleader: see Con. Eules 1102-1132, 
 1913 Eules, 625, et seq. As to this section : H. & L. 
 notes p. 1313. See also provisions of E. S. 0. 1914, 
 ch. 63, sec. 216. 
 
 57. A claim for damages under this section is an un- 
 liquidated claim and not provable against an estate 
 in the hands of an assignee under E. S. 0. 1897, ch. 
 147 (E. S. 0. 1914, ch. 134) ; Magann v. Ferguson, 
 29 0. E. 235. A claim for double damages under 
 this section is not within Con. Eule 138: see H. & 
 L. notes p. 269, 1913, Eule 33. 
 
 59. As to waste see Law and Transfer of Property Act, 
 
 E. S. 0. 1914, ch. 109, sec. 29, et seq. 
 
 60. This was formerly E. S. 0. 1897, ch. 342, sec. 23 ; 11 
 Geo. II., ch. 19, sec. 11. 
 
CHAPTER 155. 73 X 
 
 61. This was formerly E. S. 0. 1897, ch. 342, sec. 24; 4 
 and 5 Anne, ch. 3 (or 16 Buffhead's Edn.), sees. 9 
 and 10. Necessity for attornment: Horn v. Beard, 
 1912, 3 K. B. 181. Landlord's agent : Hope v. White, 
 17 C. P. 52. 
 
 63.— (6) As to costs: see B. S. 0. 1914, ch. 56, sec. 74. 
 
 PART II. 
 
 Disputes as to Bight to Distbain. 
 
 • pabt hi. 
 
 ovebholding tenants. 
 
 75. — (1) Occupant: see Be Grant v. Bobertson, 8 0. L. 
 E. 297. 
 
 75. — (2) It is now competent for a County Judge to try 
 and determine a question of fact where the testi- 
 mony is conflicting: Be Graham and Tardley, 14 0. 
 W. E. 30. 
 
 75. — (3) A tenant overholding after 1st March did so 
 by the landlord's consent pending negotiations. 
 When these ended on March 19 the landlord served 
 a notice demanding possession on March 23. On 
 the tenant's failure to give up possession on that 
 day, the landlord instituted proceedings under this 
 Act without further demand of possession. Held 
 that the tenant was a tenant at will. The notice of 
 19th March had the effect of extending his tenancy 
 to March 23 and a demand of possession after that 
 date was necessary to give the County Court Judge 
 jurisdiction : Ee Grant and Bobertson, 3 0. W. B. 
 846, 8 0. L. E. 297. Where entry is sought for 
 breach of provision in a lease the notice under B. 
 S. 0. 1914, ch. 155, sec. 20 (2), specifying the breach, 
 must be given, as that is applicable to summary pro- 
 ceedings under this Act: Be Snure and Davis, 4 0. 
 L. E. 82 ; see ante, sec. 20. On an application for 
 an order under this Act a copy of the affidavit filed 
 on the application was not served. Counsel ap- 
 peared and took the objection and the application 
 was adjourned to have the affidavit served and the 
 matter was subsequently heard, argued, and the 
 order made. It was held that the right to have 
 
732 CHAPTER 155. 
 
 a copy of the affidavit served could be and had been 
 waived: Be Dewar and Dumas, 8 O.'L. B. 141. 
 
 77. — (2) Under this Act two things must concur to 
 justify the summary interference of the County 
 Court Judge: (1) the tenant must wrongfully re- 
 fuse to go out of possession, and (2) it must appear 
 to the Judge that the case is clearly within the pur- 
 view of the Act: Ee Snure and Davis, 4 0. L. E. 82. 
 Since the words " without colour of right " have 
 been struck out of the statute by 58 Vic. ch. 13, sec. 
 23, the County Court Judge has jurisdiction to de- 
 cide applications where there is some contest, but 
 only simple, clear cases may be tried in this sum- 
 mary way: In re Lumbers and Howard, 9 0. L. E. 
 680; Ee Grant and Eobertson, 8 0. L. E. 297; Moore 
 v. Gillies, 28 0. E. 358 ; Eyan v. Turner, 14 Man. L. 
 E. 624; Magann v. Bonner, 28 0. E. 37. Where the 
 dispute was whether the tenancy was monthly or 
 yearly the County Judge had jurisdiction: Moore 
 v. Gillies, 28 0. E. 358. Dispute as to tenancy in 
 overholding proceedings: see St. David's Spring v. 
 Lahey, 23 0. W. E. 12, 4 0. W. N. 32. Eight of 
 Judge to decide on conflicting evidence : Ee Dickson 
 and Graham, 4 0. W. N. 100, 27 0. L. E. 239. See 
 under E. S. 0. 1887, ch. 144; Price v. Guinane, 
 16 0. E. 264; Bartlett v. Thompson, 16 0. E. 
 716; Longhi v. Sanson, 46 U. C. E. 446; Dobson 
 v. Sootheran, 15 0. E. 15. For cases under 
 31 Vic. ch. 26, 27 and 28, Vic. ch. 30, 4 Wm. 
 IV. ch. 1, C. S. IT. C. 27: see Dig. Ont. Case 
 Law ; cols. 3845, 3848. For general law affecting over- 
 holding tenants: see Armour, E. P. p. 148, et seq. 
 
 78 — (1) Injunction not granted to stop proceedings 
 under this Act; proceedings cannot be removed un- 
 til writ of possession issued: Ee Brown and God- 
 win, 17 0. W. E. 102, 2 0. W. N. 125. It is only the 
 proceedings and evidence before the Judge sent up 
 pursuant to certiorari, at which the Supreme Court 
 may look for the purpose of determining what is 
 to be decided under this section. Where there was 
 nothing in the evidence to shew that the tenants 
 had violated the provision of the lease for breach 
 of which the landlord claimed the right to re-enter 
 the Court set aside the order for possession: Ee 
 
CHAPTER 156. 733 
 
 Snure and Davis, 4 0. L. R. 82. It seems that pro- 
 ceedings under this Act can be removed into the 
 Supreme Court only when this section applies, i.e., 
 after a writ of possession has been issued : Ee War- 
 wick and Rutherford, 6 0. L. R. 431. Appeal from 
 refusal to grant writ: Re Dickson and Graham, 27 
 0. L. R. 239, An application under this section 
 should be made to a Divisional Court: Re Scottish 
 Ontario and Manitoba Land Co., 21 0. R. 676; see 
 Con. Rule 117, H. & L. notes p. 255, R. S. 0. 1914, 
 ch. 56, sec. 26 (2), (t). 
 
 78.--(2) It is spen to the Court reviewing the decision 
 of the County Judge to say that upon the facts or 
 upon the law the case is not a clear one and there- 
 upon discharge the order : Re Lumbers and Howard, 
 9 0. L. R. 680. Matters for the Appellate Court: 
 Re Dickson and Graham, 27 0. L. R. 239. 
 
 CHAPTER 156. 
 The Appobtionment Act. 
 
 Where demised property is sold by a prior mortgagee 
 under power of sale and the lease is thereby deter- 
 mined between two gale days, the rent is appor- 
 tionable and the tenant liable to pay rent up to the 
 day of such determination: Kinnear v. Aspden, 19 
 A. R. 468. Where rent was paid to a tenant for life 
 and to his executor, it was held to be paid for the 
 use of those entitled to it, and that it was apportion- 
 able between the executor of the tenant for life and 
 the remainderman: Dennis v. Hoover, 27 0. R. 376. 
 Whether apportionment of dividends can be nega- 
 tived by anything in the articles of the company 
 declaring the dividends, quaere: Re Oppenheimer, 
 Oppenheimer v. Boatman, 1907, 1 Ch. 399. Adverse 
 holding of parts of demised premises : Neale v. 
 McKenzie, 1 M. & W. 763 ; Kelly v. Irwin, 17 C. P. 
 351; Holland v. Vanstone, 27 U. C. R. 15. Eject- 
 ment, eviction : Boulton v. Blake, 12 0. R. 532. In an 
 
734 CHAPTER 156. 
 
 action on the covenant between the original parties 
 to the deed, an eviction from part of the premises is 
 a good defence to the action. There can be no ap- 
 portionment of the rent as in debt: Shuttleworth 
 v. Shaw, 6 U. C. E. 539. Where a landlord devises 
 the demised premises among several persons, these 
 persons may bring separate actions for the rent 
 according to their respective shares, which the jury 
 in each suit can apportion: Hare v. Proudfoot, 6 
 O. S. 617. A landlord's right to distrain is sus- 
 pended as to that portion of the rent which 
 has accrued up to garnishment by the service on the 
 tenant before such distress of an order attaching the 
 rent and distress for such portion is wrongful: 
 Patterson v. King, 27 0. B. 56. As to attachment 
 of rent : see also Massie v. Toronto Printing Co., 12 
 P. B. 12; Barnes v. Bellamy, 44 U, C. E. 303; Bar- 
 nett v. Eastman, 67 L. J. Q. B. 517. Attachment of 
 rent : see Con. Eule 911, H. & L. notes p. 1150, 1913 
 Eule 590. Attachment of rent in Division Court. 
 see E. S. 0. 1897, ch. 60, sec. 179: see Bicknell and 
 Seager, p. 323, E. S. O. 1914, ch. 63, sec. 146. Rem 
 accruing due but not yet payable cannot be attached 
 in the Division Court: Christie v Casey, 15 C. fj. T. 
 Occ. N. 13, 31 C. L. J. 35; Birmingham v. Malone, 
 32 C. L. J. 717; and see also general application of 
 this : Bennett v. Eastman,' 67 L. J. Q. B. 517. 
 
 5. Where a judgment creditor garnished rents accruing 
 due from several tenants to the judgment debtor 
 before any of the gales had arrived, he was held 
 entitled to payment over on the gale days of the 
 proportion of the rents which had accrued due on 
 the day of the serving of the attaching order: Mas- 
 sie v. Toronto Printing Co., 12 P. R. 12. See sec. 4, 
 notes. 
 
 7. An " annuity bond " is not within the exception of 
 this section: Cuthbert v. North American Life, 24 
 0. E. 511. 
 
CHAPTER 157. 735 
 
 CHAPTER 157. 
 
 The Law Society Act. 
 
 7. A Judge of the Superior Court of this province, who, 
 before he was entitled to a retiring allowance, ten- 
 dered his voluntary resignation, which was accepted, 
 and who then resumed the practice of his profes- 
 sion, was held to be a " retired Judge," within the 
 then wording of this section : Macdonell v. Blake, 17 
 A. E. 312. 
 
 7. — (26) Omit the words " judicature for:" 4 Geo. V. 
 ch. 2, Schedule (27). 
 
 39. Discussion and difference of opinion on the question 
 whether the Discipline Committee were bound to 
 take evidence on oath, and, if so, what amounts to 
 a waiver of the right to have it so taken: see Hands 
 v. the Law Society, 16 0. E. 625, 17 0. E. 300, u A. 
 E. 41. 
 
 46. What amounts to " due enquiry?" How committee 
 should be called and what notice should be given: 
 see Hands v. the Law Society, 16 0. E. 625, 17 0. 
 E. 300, 17 A. E. 41. Powers extend to deal with 
 cases where' there is a charge of violation of the 
 conventional or other regulations which are either 
 prescribed or commonly observed in the profession : 
 Ee Eythe, 6 B. & S. 704. Comparison of powers 
 given to the Benchers and to the Medical Council: 
 see Ee Crighton, 13 O. L. E. 271 at p. 287. 
 
 53. As to powers of the Law Society to make by-laws 
 imposing term fees: see Law Society v. Dougall, 9 
 TJ. C. E. 541. 
 
736 CHAPTERS 158, 159. 
 
 CHAPTEB 158. 
 The Barristers Act. 
 
 3. See Con. Eule 87, 1913 Eule 763. 
 
 i 
 6. Precedence : see Be Boulton, 1 U. C. B. 317. Accord- 
 ing to the true construction of B. N. A. Act, sec. 92, 
 sub-sees. 1, 4 and 14, the enactment empowering the 
 Lieutenant-Governor to appoint King's Counsel is 
 intra vires : A.-G. for Canada v. A.-G. for Ontario, 
 1898, A. C. 247; see also Queen's Counsel, 23 A. B. 
 792; Lenoir v. Eitchie, 3 S. C. E. 575, 1 Cart. 488. 
 
 CHAPTEB 159. 
 
 The Solicitors Act. 
 
 Befer to: White on Solicitors; Cordery on Solici- 
 tors; Widdifield on Costs (Can.) ; Cameron on Costs 
 (Can.); Holmested and Langton, Judicature Act 
 and Bules ; Annual Practice, etc. 
 
 4. The mischief against which the Act is directed is the 
 
 doing of the prohibited acts for profit; it does not 
 cover gratuitous assistance to poor suitors : Allen v. 
 Jarvis, 32 U. C. E. 56. Unqualified person giving 
 notice of appearance as agent of defendant is guiHy 
 of contempt: Ee Ainsworth, 1905, 2 K. B. 103. As 
 to practising in Division Courts : see E. S. 0. 1914, 
 ch. 63, sec. 110. As to proceedings to enforce 
 mechanics' liens of $100 and under: see B. S. O. 
 1914, ch. 140, sec. 37 (7). 
 
 5. See Con. Bules 88, 89, H. & L. notes p. 239, 1913 Eule 
 
 763. 
 
 11. Expiry of articles : In re McGachen, 20 U. C. B. 321. 
 Loss of articles : In re Loring, M. T., 2 Vic. Affidavit : 
 Ex parte Badenhurst, Tay. 138; Ex parte Lyons, 
 Tay. 171. Service with absconding attorney: In re 
 
CHAPTER 159. 737 
 
 McGregor, 15 C. P. 54. Eefusal of attorney to re- 
 lease clerk or assign articles: In re Patterson, 18 
 U. C. R. 250. Absence abroad: In re Hagerty, 6 
 0. S. 188. Business elsewhere: Mcintosh v. Mc- 
 Kenzie, M. T. 1 Vic. Engaging in other pursuits: 
 In re Hume, 19 U. C. E. 373. Absence through ill- 
 health: In re Holland, 6 0. S. 441. Employment 
 in public office: Ee Ridout, T. T., 2 and 3 Vic. Ab- 
 sence of attorney abroad: Ex parte Mclntyre, 10 
 U. C. E. 294. ' 
 
 20. A Crown Attorney practising only as such need not 
 take out a certificate: Ee Coleman, 33 U. C. E. 51. 
 A solicitor who has not taken out his annual certi- 
 ficate cannot practice even in an isolated instance, 
 nor even when he is interested in the subject matter 
 of the litigation: Ee Clarke, 32 O. E. 237. 
 
 24. A solicitor is not estopped by permitting his name to 
 appear as a member of a firm of practising solicitors 
 from shewing that he was not a member in fact: 
 Macdougall v. the Law Society, 18 S. C. E. 203. 
 
 27. Costs of uncertificated solicitor: Browne v. Barber, 
 1913, 2 K. B. 553. 
 
 28. An attorney agreed with a clerk to take him into 
 
 partnership at the expiration of his articles and 
 that his share of the profits should commence from 
 the date of his articles. A separation took place. 
 It was held that an action for compensation for ser- 
 vices could not be maintained: Dunne v. O'Eeilly, 
 11 C. P. 404. 
 
 29. This Act does not deprive the Court of its inherent 
 jurisdiction over solicitors as officers of the Court: 
 Ee McBrady and O'Connor, 19 P. E. 37. As fo pro- 
 cedure to strike a solicitor off the rolls and full an- 
 notation on matters of law and practice regarding 
 answering affidavits, non-payment of money, strik- 
 ing off the roll, suspension, restoration to roll, ap- 
 peal, restitution and enforcing undertakings : see H. 
 & L. notes pp. 239-243. Jurisdiction of Supreme 
 Court: see Ee O'Donohoe, 14 P. E. 317; O'Donohoe 
 v. Beatty, 19 S. C. E. 356. 
 
 S.A.— 47 
 
738 
 
 CHAPTER 159. 
 
 34. This section, formerly E. S. 0. 1897, ch. 174, sec. 34, 
 and following sections will be found fully annotated 
 in H. & L. 3rd edition pp. 1398-1410. It may be con- 
 venient to observe that present sec. 34 (1) was 
 formerly E. S. 0. 1897, ch. 174, sec. 34; sec. 34 (2) 
 Was sec. 43; sec. 36 (1) was 37; sec. 36 (2) Was 41; 
 sec. 37 was 38; sec. 38 was Con. Eules 1185-6-7; sec. 
 
 39 was 44; sec. 40 (1) was 45; sec. 40 (2) was 46; sec. 
 
 40 (3) was 47; sec. 40 (5) (6) was Con. Eule 1188; 
 sec. 41 was 48; sec. 42 was 49; sec. 43 was 50; and 
 sec. 45 was 51. 
 
 " No bill rendered " as defence to action: Section 34 
 of the Solicitors Act, E. S. 0. 1897, ch. 174, requires 
 the delivery of a bill of ' ' fees, charges or disburse- 
 ments for business done by a solicitor as such," as 
 a condition precedent to an action therefor. In 
 Belcourt v. Crain, 22 O. L. E. 591, after the 
 solicitors had rendered the services in question 
 to the client, and, while they had in their possession 
 a cheque from a government department for a por- 
 tion of the amount recovered, an agreement was 
 made by which the solicitors' charges were fixed at 
 ' $1,200. A portion of this was then paid, and, on the 
 faith of the defendant's promise to pay the balance, 
 the cheque was handed over to him. Suit was brought 
 for the balance remaining due. The agreement was 
 found as a fact, and also that it was fair. The Court 
 then proceeded: " In Jeffreys v. Evans (1845), 14 
 M. & W. 210, an action was brought upon a note 
 given by a client to his solicitor in payment for 
 professional services. The defendant by his plea 
 set up this fact, and that no bill had been de- 
 livered. The plaintiff demurred upon the ground 
 that his action was upon the note, which was 
 a new and independent cause of action, and 
 his counsel contended that the Solicitors Act 
 afforded no answer to his claim to enforce payment 
 of the note. Had his client paid without a bill, he 
 could not maintain an action to recover the money 
 back. Lush, for the client, contended that in truth 
 the action, though based on the new promise, was 
 to recover fees, etc. To this Pollock, C.B., answered: 
 ' ' No ; he is only suing on the security given to him, 
 and which must be considered as having been given 
 in discharge of so much of his bills;" and Parke, 
 
CHAPTER 159. 739 
 
 B., said : "It is perfectly clear what the statute 
 meant — to protect clients if they chose to be pro- 
 tected, not if they chose to give a bond or bill for 
 the debt." In Thomas v. Cross (1864"), 13 W. E. 
 166, Lord Chancellor Westbury had before him an 
 action to enforce a mortgage taken by a solicitor 
 from his client in payment of costs, no bill having 
 been rendered. At p. 167 it is said: "His Lordship 
 then proceeded to consider the statute with respect 
 to whidl the question arose, whether there was any 
 prohibition by reason of no bill of costs being de- 
 livered. He had a strong impression that those 
 words had been construed judicially to prohibit suits 
 and actions upon that particular contract or as- 
 sumption that arose between attorney and client. 
 But when a suit had been commenced on another 
 contract into which the client had entered, there was 
 nothing to which the statute applied. It contained 
 no prohibition against enforcing collateral engage- 
 ments. His Lordship, therefore, wholly recognized 
 the decision of the Court of Exchequer in Jeffreys 
 v. Evans, as applicable to the present case." His 
 Lordship follows this by drawing attention to the 
 fact that the action, a mortgage action, could not 
 be regarded as an action to recover fees, etc., but 
 this in no way detracts from the earlier statement. 
 In Brooks v. Bockett (1847), 9 Q. B. 847, and Scad- 
 ding v. Eyles (1846), ib. 858, it was held that a*mere 
 statement of account did not take the case out of 
 the statute, as the action still was one for the re- 
 covery of fees, etc. That services rendered afford 
 a basis for such a new promise is clear from the fol- 
 lowing extract from Halsbury's Laws of England, 
 vol. 7, p, 388, based inter alia upon a statement of 
 Bowen, L. J., in Stewart v. Casey (1892), 1 Ch. 104, 
 at p. 115: " When services have been rendered by 
 one person to another at his request, a subsequent 
 promise to pay for the services can be enforced. 
 This is, perhaps, not a real exception to the rule 
 stated above " (i.e., that a past consideration 
 though a motive for a promise, is not a real con- 
 sideration). " for in such a case there may be an 
 implied promise to pay for the service, and the sub- 
 sequent express promise may be treated either as an 
 admission which evidences, or as a positive bargain 
 
740 
 
 CHAPTER 159. 
 
 which fixes, the amount of that reasonable remun- 
 eration on the faith of which the service was origin- 
 ally rendered." Belcourt v. Crain, 22 0. L. B. 591. 
 In this case there was not considered the question of 
 what constitutes payment to preclude taxation (see 
 sec. 42), but merely the question arising under sec. 
 34: Belcourt v. Crain, lb. Making of agreement and 
 taking bill of exchange held not a bar to client's 
 right to bill of costs : Ray v. Newton, 1913, 1 K. B. 
 249. An agreement by a solicitor to take a gross 
 sum from a client is regarded by the Court with 
 jealousy as the knowledge is all on one side: Be 
 Whitcombe, 8 Beav. 140. Agreement followed by 
 taking of notes in settlement: Be Ker, 1849, 12 
 Beav. 390. Clients applied to tax bill for which 
 promissory notes had been given, which notes were 
 overdue and unpaid. The usual order for taxation 
 was made, the clients swearing that there never was 
 an agreement, that the notes were taken as payment, 
 and that there was to be no taxation : Be Solicitors, 13 
 0. W. B. 680. Without a bill duly rendered or an 
 agreement in writing, it is impossible for the solici- 
 tor to maintain an action to recover remuneration 
 for his services: Be Curry v. MacLaren, 12 O. W. 
 B. 1108. Where a solicitor has rendered bills and 
 statements of a cash account which are agreed to by 
 the client who executes a mortgage to the solicitor 
 and covenants to pay the amount due on the account 
 stated, the client's trustee in bankruptcy is not 
 estopped and may enquire into the real indebted- 
 ness : Be Van Laun, ex p. Chatterton, 1907, 2 K. B. 
 23. Effect of Private Act, 2 Geo. V. ch. 125, sec. 6, 
 on this provision: Gundy v. Johnston, 23 O. W. B. 
 101, 4 O. W. N. 121, 28 O. L. E. 121. Where a soli- 
 citor having sent in a bill of costs, subsequently 
 sends in an amended bill for a larger amount and 
 brings an action to recover the second bill, the first 
 bill is cogent, but not conclusive evidence of the 
 amount due him: Lumsden v. Shipcote Land Co., 
 1906, 2 K. B. 433. Delivery of solicitor's bill by 
 post: Brown v. Black, 1911, 1 K. B. 975, 1912, 1 K. 
 B. 316. Delivery of bill of " fees, charges and dis- 
 bursements:" Gundy v. Johnston, 28 0. L. B. 121. 
 4 0. W. N. 788; Gould v. Ferguson, 4 0. W. N. 1493^ 
 " Eetainer " considered: a promise to pay a retainer 
 is void : Ee Solicitor, 2 0. W. N. 67, 21 0. L. E. 255, 
 
CHAPTER 159. 741 
 
 17 0. W. R. 2, 22 0. L. R. 30. Cesser of retainer on 
 death of client: Royee & Henderson v. Nat. Trust 
 Co.', 13 0. W. R. 1159. The employment of a solicitor 
 to bring or defend an action (subject possibly to his 
 right to claim payment of his costs on judgment be- 
 ing given) does not terminate with the giving of 
 judgment so long as anything remains to be done 
 which is the solicitor's duty to do for the client's 
 protection: Millar v. Kennedy, 5 0. L. R. 412. Bear- 
 ing of this on the Statute of Limitations : Millar v. 
 Kennedy, 5 0. L. R. 412. Delivery of bill with lump 
 charges for conveyancing: Consideration of the items 
 necessary to constitute a proper bill to enable the 
 solicitor to succeed in action brought one month after 
 delivery : G-ould v. Ferguson, 29 0. L. R. 191. Query 
 as to bearing of 1913 Tariff on solicitor and client 
 bills and inferentially on conveyancing bills. Sign- 
 ing and delivery of bill : see cases Dig. Ont. Case Law, 
 vol. 3, col. 6568, et seq. 
 
 35. The well established practice is to take a written re T 
 tainer: Allen v. Bone, 4 Beav. 431. When the re- 
 tainer is disputed the question should be tried in 
 the ordinary way rather than by a taxing officer : Re 
 Solicitor, 14 0. W. R. 2, 80, 707 ; 1 0. W. N. 51. Where 
 the order for taxation of a solicitor's bill obtained at 
 the instance of the client does not reserve the right 
 to dispute the retainer, the retainer must be taken 
 as admitted: Re McCarthy; McCarthy v. Walker, 
 (No. 3), 4 Terr. L. R. 8. Question of retainer on refer- 
 ence at instance of solicitor: Re Solicitor, 10 0. W. 
 R. 951. Where it is admitted that there was an 
 agreement between the solicitors and the client for 
 a fixed remuneration for the services rendered, that 
 fact would render an ex parte order irregular: Re 
 Solicitors, 10 0. W. R. 951. See also Re Inderwick, 
 25 Ch. D. 279; In re Fanshawe (1905), W. N. 64; 
 O'Connor v. Gemmill, 26 A. R. at p. 38. See notes 
 to sees. 34 and 38. The jurisdiction granted by this 
 Act to order delivery of a bill for business done by a 
 solicitor as such, is distinct from and independent of 
 the jurisdiction thereby granted to order the same to 
 be taxed. There is power to order delivery of a bill 
 whether or not it is one which the Court would 
 have power to refer to taxation: Re McBrady, 19 
 P. R. 37. The Court has no jurisdiction to order a 
 
742 CHAPTER 159. 
 
 solicitor to furnish a bill of costs to a client against 
 whom he refuses to make any charges for profes- 
 sional assistance: Ee Griffith, 1891, 7 Law Times, 
 Eep. 268. Taxation of agent's bill of costs: In re 
 Wilde, 19.10, 1 Ch. 100. Proceedings under common 
 order to tax; defences and effect: Re Brockman, 
 1909, 2 Ch. 170. Authority of County Court Judge 
 to make order: Ee Drinkwater and Kerr, 10 O. W. 
 E. 511, 15 O. L. E. 76. Ex parte order for taxation 
 should not be granted where the bill has been rend- 
 ered for more than 12 months. On an application to 
 set aside an ex parte order, if special circumstances 
 are shown which would have warranted the order on 
 special application, the ex parte order will be allowed 
 to stand : Ee McCarthy, McCarthy v. "Walker, 2 Terr. 
 L. E. 346. Where a client obtained the usual order 
 for taxation of a solicitor 's bill, in respect of which 
 the solicitor had sued him, and had had the action 
 stayed pending taxation, although he made no sub- 
 mission to pay the amount found due, the solicitor 
 when the taxation is complete and the certificate 
 signed, is entitled to an order for leave to sign judg- 
 ment for the amount due. The certificate is final 
 unless application is made to review the taxa- 
 tion: Ee McCarthy, McCarthy v. Walker (No. 2), 4 
 Terr. L. E. 1. The established practice is for 
 the Taxing Officer to require the whole bill to 
 be brought in for taxation, including party and 
 party costs, and extra costs as between solicitor and 
 client. It is not proper to deliver the bill in two 
 parts : Cobbett v. Wood, 1908, 2 K. B. 420. Solici- 
 tors having delivered an unsigned bill, the client 
 applied for and obtained an order that they do de- 
 liver a bill and for taxation of same when delivered. 
 Under this order the solicitors delivered a bill in 
 which certain items were made larger and new items 
 inserted. Held that in applying for the order the 
 clients necessarily consented to the old bill being 
 withdrawn and the solicitors were entitled to do as 
 they had done: Ee Walsh and Fish, 7 O. L. E. 41. 
 A client charged for drawing deeds, receiving and 
 paying over money, investigation of title, etc., may 
 require the bill to be taxed. If suit is brought 
 without taxation the amount may be ascertained 
 at trial on a quantum meruit. We have no tariff 
 
CHAPTER 159. 743 
 
 binding on us, though as understood among solici- 
 tors, there is a general tariff or set of ascertained 
 m charges : Be Attorneys, 26 XL C. C. P. 495. Solicitor 
 •having retained lump sum for costs, client applying 
 within month for a bill for taxation is entitled to have 
 one, but solicitor may deliver one for larger amount 
 than was paid: Ee Solicitor, 13 0. W. R. 357. A 
 solicitor, with the consent of the executor, applied 
 for and obtained ex parte an order for the taxation 
 in Toronto of a bill against the executor rendered 
 in respect of an estate being wound up in the Sur- 
 rogate Court. The order was set aside, one suf- 
 ficient ground being that suoh taxation would not 
 b© binding on the Surrogate Judge: Re Solicitor, 
 3 0. W. N. 30, 19 0. W. R. 965. Taxation of mort- 
 gagee 's costs by mortgagor: see R. S. 0. 1897, ch. 
 120, sec. 30. 
 
 36. Special circumstances justifying an order for tax- 
 ation more than 12 months from delivery must be 
 proved by affidavits on the application. The onus 
 lies on the applicant : Re Chisbolm and Logie, 16 P. 
 R. 162. 
 
 38. Solicitor's costs where approval of Court of settle- 
 ment on behalf of infant defendant not obtained: 
 Vano v< Canadian Coloured Cotton Co., 21 0. L. R. 
 144. What is a " reference " under this section: 
 see Lumsden v. Shipcote Land Co., 1906, 2 K. B. 
 433. Where a solicitor's bill was referred by agree- 
 ment to an accountant " and in case of dispute 
 in a summary way to — — under R. S. 0. 1897, ch. 
 -174, for decision," it was held that this meant 
 " without ceremony or delay," the words " under 
 R. S. 0. 174 " merely introducing the procedure 
 under this Act and not providing for an appeal : 
 Sale v. Lake Erie and Detroit Ry., 32 0. R. 159. 
 If there is jurisdiction to order taxation, there is 
 also jurisdiction to order delivery of a bill which 
 would be taxed, having regard to the nature and 
 value of the services rendered and business done 
 and the scale of allowances between party and party 
 so far as applicable: Bosse v. Paradis, 1892, 21 S. 
 C. R. 419; Re Sudlow, 1849, 11 Beav. 400. " Upon 
 the ordinary reference to taxation at the instance 
 of a solicitor, the question of retainer is for the de- 
 termination of the taxing officer. I see no reason 
 
744 CHAPTER 159. 
 
 why he should not with equal propriety 'determine 
 this question of agreement or no agreement. To 
 set aside the present order for taxation would J?e 
 in effect to give to the client the benefit of an al- 
 leged agreement which is not yet established. This 
 I must decline to do:" Per Anglin, J.: Ee Solicitor, 
 10 0. W. E. 951. 
 
 Where solicitors are employed to do the work of 
 (e.g.,) brokers, whether their fees are taxable de- 
 pends on Lord Langdale's test. If the business 
 is " business in which the . . . solicitor was 
 employed because he was a solicitor, in which 
 he would not have been employed if the rela- 
 tion of solicitor and client had not subsisted be- 
 tween him and his employer: Allen v. Aldbridge; 
 Ee Ward, 1844, 5 Beav. 401, frequently cited and re- 
 cently applied in Ee Baker, Lees & Co., 1903, 1 K. 
 B. 189. For services within the rule of Allen v. 
 Aldbridge the remuneration may be: (1) A per- 
 centage, as in Ee Eichardson, 1870, 3 Ch. Ch. E. 144, 
 when the practice is defined as to the manner in 
 which the master will tax solicitor's costs for pro- 
 fessional services rendered in the sale of lands and 
 collection and transmission of the purchase money, 
 or (2) a lump sum, as in Ee Solicitor, 1908, 12 0. W. 
 E. 1074; Ee Solicitor, 27 O. L. E. 147. In the 
 case In re Aitken (1820), 4 B. & Aid. 47, Abbott, 
 C.J., said: "Where the employment is so con- 
 nected with his professional character as to 
 afford a presumption that his character formed 
 the ground of his employment by the client, 
 there the Court will exercise this jurisdiction.'- See 
 also in Ee Eichardson (1870), 3 Ch. Ch. 144. in Ee 
 Barker (1834), 6 Sim. 476. The real question is, 
 what sum are the solicitors entitled to for the busi- 
 ness done and services rendered by them as solici- 
 tors. It is to be observed, however, that the pro- 
 ceeding to ascertain the sum due a solicitor under 
 the Solicitors' Act is therein invariably termed a 
 taxation wholly irrespective of the nature of the 
 business done by the solicitor: in Ee O'Connor v. 
 Gemmill, 26 A. E. 27; see also Ee McBrady & Co., 
 19 P. E. 37. As to duty of solicitor not to under- 
 take work of a broker himself, but with the client's 
 assent, to employ a broker, see remarks of Mere- 
 dith, J.A., Ee Solicitor, 4 O. W. N. 47, 27 O. L. E. 147. 
 
CHAPTER 159. 745 
 
 " The bill is for business in which the solicitor 
 was employed because he was a solicitor. It 
 comes within the legitimate and peculiar province 
 of solicitors at the present day to draw and 
 prepare agreements, wills, deeds, settlements, securi- 
 ties and documents and also to conduct negotiations 
 and solicit loans, superintend the management and 
 letting, purchasing and selling of property, estates 
 and annuities and to collect and receive rents, debts, 
 etc., invest and dispose of moneys and find suffi- 
 cient securities for the purpose, thus acting as pro- 
 curators, negotiators, conveyancers, confidential ad- 
 visers, agents, stewards, collectors and scriveners. 
 The solicitor is not to act gratuitously, he is 
 to be paid for his services. But paid upon what 
 footing! In the absence of a specific contract, 
 the general custom of solicitors is to be the guide 
 as to the compensation allowed if any custom and 
 practice exists; if not, the value of the service is 
 to be on a quantum meruit. The usage of this 
 country as well as in England has been that an 
 agent, whether solicitor or not, instructed to deal 
 with another man's estate, to rent it or sell it or 
 collect the proceeds of sale shall be paid by means 
 of a commission upon the prices obtained and the 
 moneys realized and remitted. The amount of 
 trouble in each case is not to be a criterion. If it 
 were, a percentage basis would not be main- 
 tainable." Commission disallowed on money col- 
 lected and not remitted: Ee Richardson, 3 Ch. Ch. 
 E. 144. The Court never interferes with Master's 
 taxation unless to correct error of principle or ob- 
 vious error of calculation: Burton v. Burton, L. J. 
 N. S., Ex. 291: Ee Attorneys, 26 U. C. C. P. 495; Ee 
 Attorneys, 29 C. P. 495. 
 
 " The evidence shews that a sale having been 
 effected, the solicitor was retained to see that 
 it was carried out. It was found necessary to 
 bring an action against the intending purchaser 
 and another. After action brought, a settle- 
 ment was arrived at whereby the money was 
 secured. The solicitor, after inquiry from various 
 sources, made a charge of 20 per cent, on the 
 amount realized, i.e., $110. The taxing officer has 
 allowed $60, and the solicitor now appeals. To my 
 
746 CHAPTER 159. 
 
 mind the evidence is such that the taxing officer 
 might well have allowed the whole fee charged, and 
 if I had the power I should allow the appeal. There 
 is no doubt that solicitors, being for reasons of 
 public policy, vested with the sole right to take 
 certain proceedings, they cannot complain if they 
 can be allowed a certain fixed sum, however small 
 that may be, as remuneration for their services 
 in such proceedings. There is no compulsion that 
 any person shall become, or becoming, shall con- 
 tinue to be, a solicitor. No solicitor, knowing, as 
 he must, the rate at which such services as he may 
 perform purely as a solicitor are to be remunerated, 
 can feel aggrieved if he, upon a dispute, is not 
 permitted to compel payment of any sum in excess 
 of the fixed tariff rate, inadequate as such rate 
 may be, and in many instances, in my humble judg- 
 ment, actually is. If solicitors are not satisfied 
 with the law, they have the right, like every other 
 citizen, to endeavor to have it changed. But in pro- 
 ceedings in which there is no monopoly—- proceed- 
 ings taken by persons who indeed are solicitors, 
 but who do not act differently or with any different 
 right from those not solicitors — I cannot see why 
 they should not be paid the same as any other 
 person. But I am bound by authority impossible to 
 get over. The Court will not determine ques- 
 tions relating to quantum only, which will be left 
 to the discretion of the taxing officers;" Falcon- 
 bridge, J., giving the judgment f a Divisional 
 Court in Conmee v. North American Eailway Con- 
 tracting Co., 13 P. R. 433. " The Court never 
 interferes with the Master's taxation except to cor- 
 rect an error of principle into which he may have 
 fallen:" Burton v. Burton, 29 L. J. N. S. Ex. 
 291, at p. 293, per Pollock, C.B., cited with ap- 
 proval by the Court of Common Pleas in Re 
 Attorneys, 29 C. P. 495, at p. 497. This Court 
 (Common Pleas) said: " We find no principle or 
 rule of decision violated. We find no plain error or 
 mistake;" and refused to interfere. The 'Court 
 added: " The Court must necessarily possess a 
 general jurisdiction over the taxing officer in all 
 matters to prevent any positive wrong to parties 
 or suitors ; but gave no countenance to the propo- 
 sition that, where the taxing officer has not 
 
CHAPTER 159. 747 . 
 
 made any mistake in principle, and the sum 
 awarded is not so grossly large or small (as the 
 case may be) as to be beyond all question improper, 
 the Court can interfere with the discretion of the 
 taxing officer. Here the taxing officer has made no 
 mistake in principle. He, as his written memoran- 
 dum shews, has followed .the proper principle, and 
 the fact that he, in his discretion, has awarded a 
 smaller sum to the solicitor than I would have done, 
 is no reason for interfering:" Per Riddell, J., in Re 
 Solicitor, 12 0. W. R. 1074; see also Re Solicitors, 
 2 0. W. N. 1421, 3 0. W. N. 194, 4 0. W, N. 47, 19 
 0. W. R. 753, 20 0. W. R. 282, 27 0. L. R. 147. 
 
 Appeal by solicitors: (1) against the disallowance by 
 the taxing officers of a commission by way of remun- 
 eration for services in negotiating and completing a 
 sale of stock and bonds; (2) in not allowing to the 
 solicitors remuneration for the services of the 
 solicitors as directors and officers of a company. 
 It was held that the taxing officer acted upon a 
 proper principle in dealing with the solicitors, and 
 the costs as upon quantum meruit. " If the soli- 
 citors intended to make a charge of 5 per cent., or 
 any other large sum by way of commission, the 
 clients were entitled to know of it, so that they 
 could at least have endeavoured to separate what 
 may be called the financial part of the business 
 from that which is generally understood to be the 
 work of solicitors, and counsel — the difficult work 
 of organization and steering corporations away 
 from the troubles into which so many fall. It may 
 be accepted, as the solicitors allege, that solicitors 
 are entitled to receive the same remuneration as 
 could be recovered by any person not a solicitor, 
 for the same service. It is not the case, however, 
 that a solicitor employed as such, and doing special 
 work in connection with a company or undertaking 
 and charging for that work, can, at the end, when 
 the undertaking is to be sold— or when bonds are 
 issued and sold, as the result of all the work of 
 solicitor and client, and for which the client has 
 paid the solicitor— charge a commission adding it 
 as " rounding out " the bill of costs. The evi- 
 dence taken as a whole does not establish that in 
 this case 5 per cent, was only reasonable. As to 
 
748 
 
 CHAPTER 159. 
 
 the claim for remuneration for the services as 
 directors and officers of the company by members 
 of the firm of solicitors, it was held that the 
 taxing officer was wrong in principle under the 
 circumstances, as the services rendered, while in 
 form and normally for the company, were really 
 and in fact for the clients : Ee Solicitors, 2 0. W. 
 N. 1491, 3 0. W. N. 194, 19 0. W. R. 753, 20 0. W. 
 E. 282. This case having been further appealed, it 
 was held that where items are not tariff items, the 
 remuneration of the solicitor is to be based on the 
 value of his services, a question of fact to be deter- 
 mined by the taxing officer on proper evidence, and 
 his conclusion thereon is open to review by the Court, 
 the rule that the Court will not interfere with the tax- 
 ing officer's discretion having no application to such a 
 case : Re Solicitor, 4 0. W. N. 47, 27 0. L. E. 147 (see 
 last case). 
 
 In England there are special statutory provi- 
 sions, for the taxation of the bills of parliament- 
 ary agents, and where all the services rendered by 
 a solicitor are such as a parliamentary agent not 
 a solicitor might have rendered, the English Court 
 of Appeal has held that a bill for such services is 
 not taxable under the Solicitors' Act, but if the 
 work done, and for which a bill is rendered, in- 
 cludes services rendered not merely as a parlia- 
 mentary agent, but such as only a solicitor would 
 be retained to give, the fact that work which might 
 have been done by a parliamentary agent is in- 
 cluded in the bill, does not preclude the right of 
 either the solicitor or the client to have the whole 
 submitted to taxation under the Solicitors' Act: 
 Re Baker, Lees, & Co., 1903, 1 K. B. 189. The fact 
 that we have no special provisions for the taxation 
 of the costs of parliamentary agents affords an 
 additional reason for holding such a bill subject to 
 taxation under the Solicitors' Act : Ee Solicitor, 10 0. 
 W. E. 951. Taxation of bill as parliamentary agents : 
 Ee Strother, 1857, 3 K. & J. 518. Where a bill for 
 $3,500 for services in recovering a considerable sum 
 from the government was under consideration it was 
 said: " The bill rendered covers about 110 folios, and 
 if the charges were extended at from $2 to $5 per 
 
CHAPTER 159. 749 
 
 hour, as contended fox by clients, the total would 
 probably not amount to more than about $2,000. It 
 does not seem to me, however, that this is neces- 
 sarily the proper method of assessment, and I am 
 further of opinion that an amount so arrived at 
 would not, in the present case, be adequate remun- 
 eration. We are outside the region of tariffs. Any 
 fixed charge per hour or per day would be purely 
 arbitrary. Jf any analogy is to be drawn to tariff 
 charges, the bulk of these services is in the nature 
 of counsel work. Moreover, it is sworn that very 
 many attendances on members and officials of the 
 government, as well as on clients, do not appear in 
 the bill at all, and it is also sworn, and must indeed 
 be obvious, that an immense amount of study of 
 documents and figures was necessary to familiarise 
 the solicitors with the details of the case. It was 
 even necessary for them to be thoroughly conver- 
 sant with the details of the negotiations prior to 
 the arbitration in order to meet the objections and 
 smooth out the difficulties which were constantly 
 arising. Then the personal equation counts for a 
 great deal. Much persistence as well as tact and 
 perseverance are necessary in order to carry a 
 matter of this kind to a successful issue." The 
 amount claimed was allowed: Murphy v. Corry, 
 7 0. W. E. 363, 392, 574. Where a solicitor practices 
 also as a barrister, the client usually obtains the 
 services of counsel without special retainer. A sub- 
 stantial general ' ' fee on settlement " is in the nature 
 of a counsel fee and may be allowed, not on a com- 
 mission basis, but as a quantum meruit : Ee Phillips 
 and Whitla, 20 Man. L. E. 154, 20 W. L. E. 533 ; Ee 
 Johnston, 3 O. L. E. 1; Ee Phillips and Whitla, 23 
 W. L. E. 161. 
 
 Solicitors practising in Ontario are subject to the 
 provisions of this Act, and work and services per- 
 formed by them, though done and performed in 
 the Exchequer Court, are none the less done by 
 them in their capacity of Ontario solicitors. It is 
 " business done by a solicitor as such " within the 
 meaning of the Act. By the Exchequer Court Act, 
 E. S. C. ch. 135, the defendants are authorized by 
 reason of their being solicitors in this Province to 
 
750 CHAPTER 159. 
 
 practice as solicitors in the Exchequer Court, and 
 are officers of that Court. But that does not alter 
 their status as solicitors in Ontario, nor deprive 
 the Courts of the Province of jurisdiction over 
 them, even in respect of business done by them in 
 the Exchequer Court. The Exchequer Court has 
 not deemed it advisable to provide a tariff of costs 
 between solicitor and client. But even if there 
 was such a tariff, I think that would not oust the 
 jurisdiction of the Courts of Ontario under the 
 Solicitors Act: Ee 'Conner and Gemmill, 26 A. 
 B. 27. Proper fees for procuring an option: quan- 
 tum meruit: Aylen v. Lindsay, 23 Que. S. C- 345. 
 Proper charges for collecting large sums without 
 suit. Means of ascertainment of propriety of lump 
 sum charged: Be B. L. Johnston, 3 0. L. B. 1. 
 Entries in solicitors' dockets as evidence of correct 
 charges, and how far binding on solicitors : Be Solici- 
 tors, 4 0. W. N. 47, 27 0. L. E. 147. Taxation, 
 statute-barred terms, submission to pay: Ee Brock- 
 man (1909), 2 Ch. 170. 
 
 40. On a taxation at the instance of a third party, the 
 taxing officer is right in disallowing any unusual 
 or unnecessary costs though incurred by special 
 instructions of the person chargeable, which apart 
 from the special instructions would not have been 
 allowed against the person chargeable on an ordin- 
 ary taxation. This is the case, whether the liability 
 of the third party arises out of an implied contract 
 or under express agreement not amounting to a 
 complete indemnity : In re Longbotham and Sons, 
 1904, 2 Ch. 152; Ee Cohen and Cohen No. 2, 1905, 
 2 Ch. 137. Note the difference between the Ontario 
 Statute and the corresponding English Act, 6 and 
 7 Vic, ch. 73, sec. 39. Under the latter a person 
 interested in an estate out of which costs are pay- 
 able is entitled to have them taxed: see In re 
 Jones, 1904, 2 Ch. 363. While under the Ontario 
 Statute the right is confined to persons " liable to 
 pay or who have paid ' ' any bill : see Be Hague, 
 12 P. B. 119. Applicants for taxation : parties liable : 
 Dig. Ont. Case Law, vol. 3, col. 6544-5. 
 
 42. Where no bill of costs has been delivered by 
 solicitor to his client, there cannot be payment 
 
CHAPTER 159. 751 
 
 within the meaning of the Solicitors Act. This 
 is true even where the client paid a lump sum 
 in full settlement. Ee Pinkerton and Cooke, 
 18 P. E. 331. When hills will be treated as not 
 open to taxation : delay and no specific overcharge : 
 Ee Beatty Solicitor, 19 P. E. 271. Where in a mom- 
 ent of generosity a client, saying he did not want a 
 bill, pays his solicitor's account, but subsequently 
 repents, an order for delivery will be made, but the 
 solicitor will not be debarred from showing that he 
 is entitled to more than he had received : Ee Solici- 
 tor, 13 0. W. E. 357. Lapse of year : see cases, Dig. 
 Ont. Case Law, vol. 3, col. 6556, et seq. 
 
 44. As to general principle observed in taxing solicitor's 
 bill where no tariff is directly applicable: See 
 notes to sec. 38 ante. For tentative conveyancing 
 tariffs : see notes to sec. 47 post . Costs of services 
 outside of solicitor's services: Ee Solicitors, 2 0. 
 W. N. 1421, 19 0. W. E. 753. 
 
 47. As there is no official tariff in Ontario for convey- 
 ancing and other general legal business, three of 
 the Law Library Associations have adopted mini- 
 mum tariffs for the guidance of their members, 
 namely, in Toronto, Ottawa and Hamilton. These 
 are as follows: 
 
 COUNTY OF YOEK LAW ASSOCIATION. 
 
 Conveyancing Tariff (Tobonto). 
 
 Costs of Solicitor fob Purchaser or Mortgagee: — 
 (The following fees include the cost of preparing 
 or revising the agreement for sale or mortgage; 
 and all other usual services in investigating and 
 certifying to the title and completing the transac- 
 tion, but do not include disbursements. These fees, 
 however, are not applicable in special cases, where 
 there are different chains of title, or where more 
 than the usual services are rendered, or responsi- 
 bility incurred.) 
 
 (a) Where the value of the property in ques- 
 tion (inclusive of incumbrances), or the 
 
752 CHAPTER 159. 
 
 amount of the loan, is $1,000.00 or under, 
 minimum, fee $10.00 
 
 (b) Where such value is between $1,000.00 
 and $3,000.00, 1 per cent, on value. 
 
 (c) "Where such value is between $3,000.00 
 and $20,000.00, $30.00 plus 1-2 of 1 per 
 cent, on value above $3,000.00. 
 
 (d) Where such value exceeds $20,000.00, 
 $115.00 plus 1-4 of 1 per cent, on value 
 above $20,000. 
 
 Costs op Solicitor fob the Vendor oe Mortgagor: 
 Half fees computed as above, minimum 
 fee 10.00 
 
 In Land Title Matters: — 
 
 Half fees computed as above, minimum 
 
 fee 10.00 
 
 (e) For the preparation of a conveyance, and 
 one counterpart, including' attendances, 
 where no other services are rendered, 
 one-quarter fees, computed as above, 
 
 minimum fee 5.00 
 
 And for each folio exceeding seven .... 1.00 
 
 (/) For the preparation of a mortgage, and 
 one counterpart, including attendances, 
 where no other services are rendered, 
 one-third fees, computed as above, min- 
 imum fee 5.00 
 
 And for each folio exceeding seven .... 1.00 
 
 {g) For the preparation and completion of a 
 discharge of mortgage, under three 
 folios, including one attendance on exe- 
 cution 2.50 
 
 For each additional folio above three, or 
 each additional attendance 0.50 
 
 (h) For searches at Kegistry Office, in mat- 
 ters other than above, where no certifi- 
 cate of title is given, for each hour 4.00 
 
 {]) Minimum fee for any search at Eegistry 
 
 Office 2.00 
 
 (k) Fee for preparation of necessary docu- 
 ments, other than deeds, in connection 
 with completing transaction, 50 cents per 
 folio ; minimum fee 1.00 
 
CHAPTER 159. 753 
 
 Costs of Solicitor foe Lessoe: — 
 (I) For the preparation of a lease (and one 
 counterpart) in statutory form, where 
 the term does not exceed seven years, 
 
 minimum fee $5.00 
 
 And where the annual rent exceeds 
 $500.00, an additional $1.00 for each 
 $100.00 (or fraction thereof) of such 
 rent, between $500.00 and $1,000.00 and 
 an additional 50 cents for each $100.00 
 (or fraction thereof) of such rent above 
 $1,000.00. 
 
 And where such lease contains special 
 provisions, an additional $1.00 for each 
 folio exceeding seven folios. 
 (m) All other leases, (one-third fees, com- 
 puted as in paragraphs (a), (b), (c) and 
 (d), on the value of the demised pre- 
 mises, minimum fee 10.00 
 
 And an additional $1.00 for each folio 
 exceeding seven. 
 
 Costs of Solicjtoe foe Lessee: — 
 For revising and attending to completion of 
 lease, half fees, computed as above, min- 
 imum fee 6.00 
 
 (n) Where the title to the demised premises 
 is investigated, the fees of the solicitor 
 for the lessee, including revision and 
 completion of the lease, to be computed 
 as in paragraphs (a), (&), (c) and (rf), 
 on the value of the demised premises; 
 
 minimum fee 10.00 
 
 Where the value of the demised premises ... 
 is. in question, it may be fixed by, capital- 
 izing the rent, if a rack rent, at 10 per 
 cent., or, if a ground rent, at 5 .per cent. 
 
 COUNTY OF CARLETON LAW ASSOCIATION. 
 
 SoLICIT6ES , Taeiff 'of Fees foe Conveyancing, etc. 
 
 Minimum Charges in Addition to Disbursements. 
 
 1. Preparing conveyance, investigating title and 
 completing purchase — „ 
 
 (a) On amounts "from $1,000.00 to $1,500.00, 1 
 per cent. 
 
 s.a. — 48 
 
754 
 
 CHAPTER 159. 
 
 (b) On amounts above $1,500.00 and up to 
 $5,000.00 in addition to fees provided for 
 by paragraph (a), 1-2 of 1 per cent, on ex- 
 cess above $1,500.00. 
 
 (c) On amounts above $5,000.00 and up to 
 $10,000.00, in addition to fees provided for 
 by paragraphs (a) and (b), 1-4 of 1 per 
 cent, on excess above $5,000.00. 
 
 Note.— Where the amount is over $10,000.00, a 
 fee in addition to the fees provided for by 
 paragraphs (a), (5) and (c) may be ar- 
 ranged for. 
 
 2. Preparing mortgage, examining title and com- 
 
 pleting loan! 
 
 (a) On loans from $1,000.00 to $1,500.00, $15.00. 
 
 (b) On loans above $1,500.00 and up to 
 $5,000,00, in addition to fee provided for 
 by paragraph (a), 1-2 of 1 per cent, on ex- 
 cess above $1,500.00. 
 
 (c) On loans above $5,000.00 and up to 
 $10,000.00, in addition to fees provided for 
 by paragraphs (a) and (6), 1-4 of 1 per 
 cent, on excess above $5,000.00. 
 
 NoiE.^Where the loan is over $10,000.00, a fee 
 in addition to the fees provided for by 
 paragraphs (a), (6) and (c) may be ar- 
 ranged for. 
 
 JTqte.^— The above charge is in addition to any 
 fee for negotiating loan. 
 
 3. Bevising conveyance or mortgage, answering re- 
 
 quisitions and completing sale or mortgage, if 
 acting for vendor or mortgagor only, $5.00 and 
 upwards. 
 
 4. Short form of conveyance or quit Claim Deed, 
 
 $5.00. 
 
 5. Mortgage, ordinary, or Assignment of Mortgage, 
 
 $6.00. 
 
 6. Discharge of Mortgage, $2.50. 
 
 7. Partial Discharge of Mortgage, $3.00. 
 
 8. Chattel Mortgage and Bill of Sale— 
 
 For $50.00 and under, $3.00. 
 
 Over $50.00 and up to $100.00, $4.00. 
 
CHAPTER 159. 755 
 
 Over $100.00 and up to $500.00, $5.00. 
 Over $500.00, $6.00 and upwards. 
 Where schedule is over 3 folios, 40 cents per 
 folio additional. 
 
 9. Discharge of Chattel Mortgage, $2.50. 
 
 10. Renewal Statement of Chattel Mortgage, $3.50. 
 
 11. Assignment for Benefit of Creditors, $10.00. 
 
 12. Mechanics' Liens, $5.00 up to $200.00; $7.00 and 
 
 upwards over that amount. 
 
 13. Discharge of Mechanics' Lien, $2.50. 
 
 14. Collection of Interest on Mortgage, 2 per cent. 
 
 15. Agreement for Eenewal of Mortgage, $500 and 
 upwards. 
 
 16. Lease, $4.00 and upwards. 
 
 17. Wills, $5.00 and upwards. 
 
 18. Release of Equity of Redemption, $5.00. 
 
 19. Agreement for Sale of Land, $4.00 and upwards. 
 
 HAMILTON LAW ASSOCIATION. 
 
 Solicitors' Tariff of Fees fob Conveyancing, etc. 
 
 Minimum Charges in Addition to Disbursements. 
 
 1. Negotiating loans, 1-2 per cent, on the amount. 
 
 2. Preparing mortgage, examining title and com- 
 pleting loan — 
 
 1 per cent, up to $3,000.00 and 1-2 per cent, on 
 the excess ahove that amount, hut in no 
 case to be less than $10. 
 
 Note. — Fees on amounts in excess of $10,000.00 
 may be arranged for. 
 
 3. Vendors' Solicitor for preparing Deed, answer- 
 ing Requisitions and completing sale^ 
 
 1 per cent, up to $3,000.00 and 1-2 per cent, on 
 the excess above that amount, but in no 
 case to be less than $10. 
 
 Note.— 'Fees on amounts in excess of $10,000.00 
 may be arranged for. 
 
 4. Purchasers' Solicitor for investigating title, re- 
 vising Deed and completing purchase — 
 
 1 per cent, up to $3,000.00 and 1-2 per cent, on 
 the excess above that amount, but in no 
 case to be less than $10. 
 
756 
 
 CHAPTER 159. 
 
 Note. — Fees on amounts in excess of $10,000.00 
 may be arranged for. 
 
 5. Short Form Deed or Quit Claim Deed, $5.00. 
 
 6. Mortgage, ordinary, $6.00. 
 
 7. Discharge of Mortgage, ordinary $3.00. 
 
 8. Partial Discharge, $4.00. 
 
 9. Chattel Mortgage in sums of $100.00 and up- 
 wards, $8.00. 
 
 10. Discharge of Chattel Mortgage, $2.00. 
 
 11. Eenewal Statement of Chattel Mortgage, $3.50. 
 
 12. Bill of Sale in sums of $100.00 and upwards, 
 $5.00. 
 
 13. Assignment for Benefit of Creditors, $10.00. 
 
 14. Mechanics' Lien, $5.00 up to $200.00; $10.00 and 
 
 upwards over that amount. 
 
 15. Discharge of Mechanics' Lien, $2.00. 
 
 16. Notarial Certificate, $1.00. 
 
 17. Notice to Creditors, $2.00. 
 
 18. Collection of Interest on Mortgage, 5 per cent. 
 
 19. Negotiating and Drawing Eenewal of Mort- 
 gages, 1-2 per cent, on the amount, but in no 
 case to be less than $5.00. 
 
 JOINT STOCK COMPANIES. 
 
 The County of York Law Association has also 
 the following tariff regarding company matters: — 
 
 Costs of Solicitor in connection with incorpob- 
 
 ATION AND ORGANIZATION OF JOINT STOCK CoM- 
 ^ PANIES. 
 
 (a) Incorporation. 
 
 Advising, preparing petition, consider- 
 ing and drafting powers to be ap- 
 plied for, application to Department, 
 and procuring Letters Patent, with 
 necessary attendances ; minimum fee $50.00 
 
 Where a company has a capital exceed- 
 ing $50,000.00, this fee to be fixed at 
 1-10 of 1 per cent, on capitalization. 
 
 (b) Organisation. 
 
 ■ Preparing by-laws, attendances at and 
 . preparing minutes of provisional 
 directors, shareholders, and direc- 
 tors' meetings, and preparation of 
 contracts, special by-laws, etc., and 
 
CHAPTER 159. 757 
 
 other services incident to full or- 
 ganization, same fees as in (a), min- 
 imum fee $50.00 
 
 (c) Extra Provincial Companies. 
 Obtaining license for extra provincial 
 
 companies, same fees as in (a), 
 based on amount of capital to be 
 used in Ontario ; minimum fee 50.00 
 
 (d) Supplementary Letters Patent. 
 Obtaining same, fees as in (a); minimum 
 
 fee 50.00 
 
 Power to fix tariff for company conveyancing : Be 
 Solicitor, 27 O. L. R. 147. Lump charges in bill 
 of conveyancing costs: Gould v. Ferguson, 29 0. L. 
 R. 191, and see note to sec. 34. 
 
 49. Application of the provisions of the statute, 9 
 Edw. VII., ch. 28, sec. 22, et seq. " Before 
 this statute, known as the Law Reform Act, 
 1909, it was incompetent for a solicitor to make a 
 bargain with his client for remuneration upon any 
 other or higher scale than that allowed by law. 
 Charges made by solicitors for services rendered 
 by them were subject to review by the Court, and 
 any attempt to obtain more than the law permitted 
 was most sternly dealt with: see, for example, Re 
 Solicitor, 14 O. L. R. 464. This statute has intro- 
 duced a new era. It permits an agreement in writ- 
 ing between the solicitor and the client respecting 
 the amount and the manner of payment for either 
 past or future services ; and this agreement may be 
 either for the payment of a salary, a lump sum, or a 
 percentage ; but the agreement as to percentage is 
 permitted only in non-contentious and conveyancing 
 business*, so that champertous bargains d,re not yet 
 sanctioned. Upon the material I must find that the 
 client understood the document which he signed. 
 But this does not conclude the matter. I must 
 find that this document is an agreement in Writ- 
 • ing with the client respecting the ' amount and 
 manner of payment for the services of the solici- 
 tor in respect of the business done or to be 
 done by him.' On the solicitor's own statement 
 it is not:" Per Middleton, J.: Re Solicitor, 22 
 . O. W. R. 156. There can be no binding settlement 
 between solicitor and client without a bill. Apart 
 
7gg CHAPTER 159. 
 
 from special statutory authority, any agreement be- 
 tween a solicitor and his client by which the solici- 
 tor stipulates for remuneration upon any other 
 basis than that provided by law, i.e., a solicitor and 
 client bill in accordance with any tariff applicable 
 and subject to taxation, is void: Re Solicitor, 1910, 
 21 0. L. E. 255, 22 Q. L. R. 30; Re Solicitor, 1907, 14 
 O. L. R. 464. Special Act held not to take the place 
 of written agreement as to fixed remuneration: 
 Gundy v. Johnston, 28 O. L. R. 121. Requirement of 
 writing: Elmsley v. Harrison, 17 P. R. 425. Where 
 absence of Writing not pleaded as a defence to action 
 to enforce agreement for remuneration: Curry v. 
 Maclaren, 12 0. W. R. 1108 at p. 1114. An agreement 
 by a solicitor to charge a client less than ordinary 
 costs is not required to be in writing when set up by 
 the client: Clare v. Joseph, 1907, 2 K. B. 369. An 
 agreement in writing is a sufficient agreement if it is 
 signed by the client only : Bake v. French, 1907, 2 Ch. 
 215. Under the Ontario Act, the application of the 
 section relates only to matters of conveyancing, etc., 
 and not to the conduct of an action in the ordinary 
 way: Ford v. Mason, 16 P. R. 25. See also McKee v. 
 Hamlin, 16 P. R. 207 ; Re Geddes and Wilson, 2 Ch. 
 Ch. 447 ; Ladd v. London, etc., Ry., 110, L. T. J., p. 
 80; Rich v. Cook, 110 L. T. J., p. 94. The promise 
 to pay a retainer is void: Re Solicitor, 21 O. L. 
 R. 255, 22 O. L. R. 30. Agreement; solicitor's re- 
 tainer: Re Solicitor, 3 O. W. N. 1132, 21 O. W. R. 
 948. Agreement for payment of solicitors: Bel- 
 court v. Crain, 22 O L. R. 591; see notes to sec. 34; 
 see also notes to sec. 61. 
 
 52. Impeaching agreement: Preston v. Nugent, 13 Man. 
 R. 511. 
 
 61. The confidential relationship existing between a 
 solicitor and his client forbids any bargain between 
 them whereby he is to draw any larger return out 
 of the litigation than is sanctioned by the tariff and 
 the practice of the Courts and especially any agree- 
 ment whereby the solicitor is to share in the pro- 
 ceeds of a litigated claim as a compensation for his 
 services as being in contravention of the statute re- 
 lating to champerty, and in violation of the oath 
 of a barrister. Nor is it open to a solicitor during 
 
CHAPTER 159. 759 
 
 the progress of a case to .call on his client to pay a 
 round sum or any sum other than costs before h© 
 will go on with the action : Ee Solicitor, 14 0. L. R. 
 464. Oral agreement by client to pay no costs of 
 action as disentitling plaintiff from recovering 
 costs from defendant: Gundry v. Sainsbury, 1910, 
 1 K. B. 645. A solicitor's agreement to conduct a 
 case to judgment at his own expense in consideration 
 of 25 per cent, of the sum recovered, which is as- 
 signed as security, is champertous and void: O'Con- 
 nor v. Gemmill, 29 Q. E. 47, 26 A. E. 27. Champerty 
 is not obsolete and is illegal: Colville v. Small, 22 
 O. L. E. 33, 426. See article on maintenance and 
 champerty and referring to Colville v. Small: 46 
 C. L. J. 712. Champerty: see E. S. 0. 1897, ch, 327, 
 sees. 1 and 2 ; E. S. 0. 1914, App. A, p. v. A 
 solicitor may conduct a case out of charity from 
 friendship towards his client: In re Solicitors, 9 O. 
 L. E. 708; see Allen v. Jarvis, 32 U. C. E. 56. Soli- 
 citor's lien for costs on property recovered or pre- 
 served is discretionary with the Court: Turiff v. 
 McDonald, 13 Man. E. 577. See Con. Eule 1129, 1913 
 Eule 689, 23-24 Vic. (Imp.) ch. 127. Legislation al- 
 lowing a solicitor to make agreement with his client to 
 be paid by receiving a share of what might be recov- 
 ered in an action is not ultra vires of the Provincial 
 Legislature of Manitoba as trenching on the crim- 
 inal law: Thomson v. "Wishart, 19 Man. E. 340, 13 
 W. L. B. 445, 16 Can. Crim. Cas. 446; see Meloche 
 v. Deguire. 34 S. C. E. 24. Agreement with client 
 as to costs of litigation : Bowcher v. Clark, 4 W. L. 
 L. E. 292, 6 W. L. E. 433. The views of the Court 
 regarding bargains with clients looking to the solici- 
 tor receiving a share of the fruits of litigation are 
 expressed in the judgment of Boyd, C. (Ee Solicitor, 
 10 0. W. E. 226), where the injury done to profes- 
 sional life through such practices in certain juris- 
 dictions is referred to, as Well as the functions Of the 
 Law Society in dealing with such matters. For the 
 true method of dealing with impoverished clients, 
 see Ladd v. London, etc. r Ey. Co., 110 L. T. Jo. 80 ; 
 Eich v. Cork, 110 L. T. Jo. 94. See also Chitty, 
 Practice of the LaW, vol. 2, p. 28. 
 
 i 
 70. This section dates from 1912. Apart from its pro- 
 visions if an executor pays an attorney for his trou- 
 ble and attendance in the transacting and conduct 
 
760 
 
 CHAPTER 159. 
 
 of the testator's affairs, he ought to be allowed and 
 repaid what he so pays. But an executor is not en- 
 titled to be allowed, without question, the amount 
 of the bill of costs which he has paid, bona fide, to 
 the solicitors to the trust, and the officer of the 
 Court, without regularly taxing the bill, will mod- 
 erate their amount: Johnson v. Telford, 3 Euss. 
 Chanc. Cas. 477. And it may here be observed that 
 an executor will not be allowed the charges of his 
 solicitor for doing things which the executor ought 
 strictly to do himself. And, therefore, where a 
 solicitor is appointed executor, and is to be at liberty 
 to charge for his professional services, he is only 
 entitled to charge for services strictly professional, 
 and not for matters which an executor ought to do 
 without the intervention of a solicitor, sueh as for 
 attendances to pay premiums on policies, attending 
 at the bank to make transfers, attendances on proc- 
 tors, auctioneers, legatees and creditors: Harbin v. 
 Darby, 28 Beav. 325; Ee Chappie, 27 C. D. 584; 
 " Williams on Executors," vol. 2, p. 1506. For the 
 general rule as to an executor's costs and as to his 
 "charges and expenses " and what are "just al- 
 lowances:" see Williams on Executors, vol. 2, p. 
 1552, et seq. The general rule was that a solicitor 
 trustee was not allowed to charge the estate with 
 any professional services, for to allow him to do so 
 would be to violate the rule that a trustee is not to 
 be placed in a position where his duty and his in- 
 terest conflict. An exception is made by the de- 
 cision of Lord Cottenham in Cradock v. Piper, 1 
 M. & G. 664. A solicitor trustee who brings or de- 
 fends proceedings in Court for himself and his co- 
 trustee is entitled to recover profit costs therefor 
 and to charge such costs to the estate, but such 
 costs are not to be increased by the fact that he is 
 himself a party beyond what they would have been 
 if he had acted for his co-trustee only. This, how- 
 ever, is not to be extended to proceedings or pro- 
 fessional services rendered to the estate out of 
 Court: In re Williams, 4 0. L. E. 501; Cradock v. 
 Piper (1850), 1 M. & C. 664. Professional charges 
 of solicitor trustee: see Ee Leckie Estate, 36 C. L. 
 J. 136. Position of solicitor director in 'regard to 
 costs : Ee Solicitors, 27 O. L. E. 147. See provisions 
 of E. S. O. 1914, ch. 120, sec. 67 (4) ; see also Turiff 
 
CHAPTER 160. 761 
 
 v. McDonald, 13 Man. R. 577. A solicitor, director of, 
 a company, acted for the company. He was held 
 entitled to profit costs of winding-up proceedings in 
 Court, but not in respect of business done out of 
 Court: Re Mimico Sewer Pipe Co.; Pearson's Case, 
 26 O. R. 289. This was before the enactment of this 
 section. 
 
 71. Solicitor on salary; taxation of fees to counsel and 
 solicitor: Ponton v. Winnipeg, 41 S. C. R. 366. 
 
 72. No misconduct where a solicitor makes an exorbi- 
 
 tant demand, and failing to receive it, refuses to 
 make any charge: Re Griffiths. 1891, 7 Law Times 
 Rep. 268. Professional misconduct in soliciting 
 business for debt collecting company: Re Solicitor, 
 1912, 1 K. B. 302. As to authority of Court: see 
 McBrady v. O'Connor; 19 P. R. 37,1 
 
 CHAPTER 160 
 
 The Notakies Act. 
 
 2. Considerations in regard to appointment of notary: 
 Ecclesiastical jurisdiction: Poy v. Society of Notar- 
 ies of Victoria, 1909, P. 15. 
 
 8. Prior to this : see Boyd y. Spriggins, 17 P. R. 331, and 
 note to that report. Affidavits sworn out of On- 
 tario : see R. S. 0. 1914, ch. 76, sec. 38. Affirmations : 
 R. S. O. 1914, ch. 76, sec. 14-15. Commissioners: 
 R. S. 0. 1914, ch. 77; see Con. Rule 516, H. & L. 
 notes, pp. 726-8, 1913 Rule 291. See also Guthrie's 
 decisions (Reg. Act), 1897, p. 47. 
 
7g2 CHAPTER 161. 
 
 CHAPTEE 161. 
 
 The Ontario Medical Act. 
 
 Eefer to: Glenn on Medical Men; Stephens' New 
 Commentaries, Vol. III. bk. 4; "Weightman on 
 
 Medical Men. 
 
 i 
 
 4. — (la) In line 12 for " grand " read " grant:" 4 Geo. 
 V. oh. 21, Schedule (28). 
 
 31. Where a medical man in the pursuit of his profes- 
 sion has done something regarded as disgraceful 
 and dishonourable by his professional brethren, it 
 is open to the Council to find him guilty of infamous 
 conduct in a professional respect. Where there was 
 evidence on which the Council could reasonably act 
 the Court could not review their decision: Allinson 
 v. General Council, L. R. 1894, 1 Q. B. 750; see also 
 1907, W. N. 39; Allbutt v. General Council, 23 Q. B. 
 D. 400; and an accurate report of the proceedings 
 published bona fide and without malice is pri- 
 . vileged : Allbutt v. General Council, 23 Q. B. D. 400. 
 " Infamous and disgraceful conduct in a prof eg* 
 sional respect:" see Be Crichton, 13 O. L. E. 271, 
 8 O. W. R. 841. Conduct et infamous or disgraceful 
 in a professional respect " as affecting a partner- 
 ship: Hill v. Clifford, 1907, 2 Ch. 236, affirmed, 24 
 T. ffj. E. 112 (H.L.) Mere advertising was not in 
 itself disgraceful but advertisements which were 
 studied efforts to impose on the credulity of the 
 public for gain were disgraceful in a professional 
 respect. To represent to persons who were in the 
 last stages of consumption that they had catarrhal 
 bronchitis and to take money from them on the 
 strength of such representations was also disgrace- 
 ful : Ee Washington, 23 O. E. 299. A charge of in- 
 famous and disgraceful conduct under this section 
 is not supported by a finding of deceitful and fraud- 
 ulent advertising: Re Crichton. 13 O. L. E. 271, 8 
 0. W. E. 841. Professional misconduct: see Little 
 v. Eoyal College of Dental Surgeons, 11 0. W. E. 
 973, 12 0. W. E. 170. Practitioner cannot be re- 
 moved from register without being heard; true 
 
CHAPTER 161. 763 
 
 meaning of section: Eeg v. Ool. Physicians and 
 Surgeons; Re McConnell, 44 U. C. R. 146. Regis- 
 tration in England: the Queen v. Col. Physicians; 
 Re Mallory, 44 U. C. R. 564; see Skirving v. Ross, 
 31 C. P. 423. Improper removal of name from re- 
 gister: Reg. v. Sparham, 8 0. R. 570. Right of 
 Medical Council to enquire into conduct of physi- 
 cian after his acquittal on criminal charge ; analysis 
 of sees. 31, 33 and 34, as amended 1910 and pro- 
 cedurejrtfge Re Stimson and College of Physicians 
 and Surflons, 17 0. W. R. 565, 18 0. W. R. 38, 2 0. 
 W. N. 298, 512, 4 0. W. N. 627, 22 0. L. R. 627, 27 
 O. L. R. 565. An enquiry under this section is not 
 a prosecution within the meaning of sec. 59 (now 
 sec. 56) : Re Stinson and College of Physicians, 22 
 O. L. R. 627, 27 0. L. R. 565. 
 
 33. Procedure to " ascertain the facts:" notice: Re 
 Stinson and College Physicians and Surgeons, 22 
 0. L. R. 627, 27 0. L. R. 565. 
 
 '. 
 
 34. Proper procedure under the Act pointed out: Re 
 Washington, 23 0. R. 299. See also Re Crichton, 
 13 0. L. R. 271, 8 0. W. R. 841. No appeal under 
 English Act where general council acted bona fide 
 and after due enquiry: Albutt v. General Council of 
 Medical Education, 23 Q. B. D. 400. Procedure on 
 appeal, restoration of name: Re Stinson and Col- 
 lege Physicians and Surgeons, 27 0. L. R. 565. 
 
 38. Recovery of fees of physician and of surgeon : Little 
 v. Oldaker, Car. & M. 370. " Reasonable charges:" 
 scale of remuneration considered: see Gibson v. 
 Mackay, 10 0. W. R. 1081, 11 0. W. R. 449. 
 
 39. Malpractice is bad or unskillful practice by a phy» 
 
 sician or surgeon whereby the health of a patient 
 is injured. Negligent malpractice means gross 
 negligence and lack of the attention which the situ- 
 ation of the patient requires. The burden of proof 
 is upon the plaintiff to shew that there was a want 
 of due care, skill and diligence on the part of the 
 defendant and also that the injury was the result 
 of such want of care, skill and diligence: Town v. 
 Archer, 4 O. L. R. 383. It was not enough to make 
 
754 CHAPTER 161. 
 
 the defendant liable that some medical men of far 
 greater experience or ability might have used a 
 greater degree of skill, nor that even he might have 
 used some greater degree of care. The question 
 was whether there had been a want of competent 
 care and skill to such an extent as to lead to a bad 
 result: Erie, C.J.: Eich v. Pierpont (1862), 3 F. & 
 F. 35 at p. 40. As to trying cases of malpractice 
 with a jury: see Town v. Archer, 4 0. L. E. 383; 
 McNulty v. Morris, 2 0. L. E. 656 adKempffer v. 
 Conerty, 2 0. L. E. 658 (note): Mcl^ay v. East- 
 wood, 12 0. E. 402; Fields v. Eathefford, 29 C. P. 
 113 ; Jackson v. Hyde, 28 U. C. E. 294. Jury notice 
 and jury: see E. S. 0. 1914, ch. 56, sees. 56, 58, et 
 seq. Actions against physicians or surgeons for 
 malpractice where the facts are not so much in dis- 
 pute as the deductions of skilled witnesses upon the 
 method of treatment should be tried without a jury : 
 Hodgins v. Banting, 12 0. L. E. 117. Negligence: 
 res ipsa loquitur in actions of negligence against 
 physicians : see Hodgins v. Banting, 12 0. L. E. 117. 
 Action for malpractice barred under this section, 
 not having been commenced within one year from 
 the date when in the matter complained of the de- 
 fendant's professional services terminated, al- 
 though the plaintiff had. twice visited the defend- 
 ant's offices during the year, but as a person with 
 a grievance : Town v. Archer, 4 0. L. E. 383. Also, 
 action barred when brought within one year from 
 the time when the alleged ill-effects developed, but 
 more than a year from the date when the profes- 
 sional services terminated. Infancy does not pre- 
 vent the running of the statute: Miller v. Eyerson- 
 22 O. E. 369. 
 
 47. " To practice medicine:" for construction of.these 
 words so far as they can be construed apart from 
 concrete cases and application of same to druggists, 
 osteopaths, Christian Scientists, medical electri- 
 cians, masseurs, etc.: see Ee Ontario Medical Act, 
 13 0. (L. E. 501, 8 0. W. E. 766. A conviction was 
 held bad for uncertainty in not specifying the par- 
 ticular acts which constituted the practising. The 
 Court refused to amend and quashed the convic- 
 tion where the practising consisted in telling a man 
 which of several patent medicines was suitable to 
 
CHAPTER 161. 765 
 
 the complaint which the man indicated, and selling 
 him some of it: Reg. v. Conlson, 24 0. R. 246. 
 Where the complainant went to the defendant and 
 told him his symptoms, that he did not know what 
 was the matter, and left it to the defendant to 
 choose the medicine and on the defendant's advice 
 underwent and paid for a course of treatment, a 
 conviction was sustained: Regina v. Coulson, 27 0. 
 R. 59. The conviction must state particulars and 
 shew more than a single act within the prescriptive 
 period. The conviction of "R. and others " could 
 not be amended by inserting the names of persons 
 for " and others:" Reg. v. Whelan, 4 Can. C. C. 
 277. A salaried clerk in the employ of a licensed 
 druggist whom the convicting magistrate had pre- 
 viously refused to hold liable by reason of his not 
 having prepared or supplied in person the rem- 
 edies applied for, could not be convicted of practis- 
 ing medicine for " hire, gain or hope of reward," 
 no profit inuring to him from the sale: Prust v. 
 Rose, 37 C. L. J. 824. Oculist examining eyes and 
 furnishing glasses, but not treating the eyes, is not 
 practising medicine : R. v. Harvey, 1 0. W. N. 1002. 
 A chemist or druggist is not entitled to ascertain 
 from intending purchasers the symptoms and de- 
 termine from them the disease and prescribe a 
 remedy; but he may, if the purchaser tells him his 
 complaint and asks for a remedy, inform him what 
 remedies he has for such complaint; and also in- 
 form him which in his opinion is the better or best 
 remedy, leaving the purchaser to exercise his own 
 judgment : Rose, J. : Reg. v. Howarth, 24 0. R. 561. 
 A person went into a druggist's shop stating that 
 he was sick and describing his complaint. The drug- 
 gist advised him as to diet and gave him a bottle of 
 medicine for which he charged him fifty cents. 
 Druggist stated he enquired to decide which mix- 
 ture to give. This was practising medicine for 
 gain : Reg. v. Howarth, 24 0. R. 561. See also : Re- 
 gina v. Hall, 8 0. R. 207. where the defendant un- 
 dertook the cure of cancer by friction, etc., for $3.00 
 a visit. But where the defendant merely sat still 
 and fixed his eyes on the patient and received no 
 payment, and neither prescribed nor administered 
 medicine nor gave advice, a conviction under this 
 section was quashed: Regina v. Stewart, 17 0. R. 
 
766 CHAPTER 162. 
 
 4. Imprisonment: Beg. v. "Wright, 14 0. B. 668. 
 Practising osteopathy is not a violation of this sec- 
 tion: E. v. Henderson, 16 0. W. E. 1021, 1 0. W. N. 
 543. An unenfranchised treaty Indian is subject 
 to the terms of this Act and may properly be con- 
 victed under this section : E. v. Hill, 15 0. L. E. 406, 
 11 0. W. E. 20. 
 
 48. Where the defendant was practising with two prac- 
 titioners and used the letters " M. D." it was held 
 not calculated to lead people to infer registration: 
 Eegina v. Tefft, 45 U. C. E. Nor was the use of the 
 word " doctor " without supplemental words: Fos- 
 ter v. Eose, 37 Can. L. J. 824. Power to award dis- 
 tress: Eeg. v. Sparham, 8 0. E. 570. Pretending 
 to be a physician: Pomeroy v. Wilson, 26 U.-C. E. 
 45. Electro-therapeutics within the Act, but mas- 
 sage not: Eeg. v. Vallean, 3 Can. Crim. Cas. 435; 
 Bergman v. Bond, 24 Occ. N. 152, 14 Man. L. E. 
 503. 
 
 50. Fees for electro-therapeutic treatment: see Berg- 
 man v. Bond, supra. Necessity for registration at 
 time services were rendered : Leman v. Houseley, L. 
 E. 10, Q. B. 66. No recovery by registered practi- 
 tioner for services rendered by unqualified assistant : 
 Howarth v. Brearley, 19 Q. B. D. 303. 
 
 56. What is a " prosecution " within this section: Ee 
 Stinson and College of Physicians, 22 0. L. E. 627, 
 27 O. L. E. 565. 
 
 CHAPTEE 162. 
 
 The Anatomy Act. 
 
CHAPTER 163. 767 
 
 CHAPTER 163. 
 
 The Dentistry Act. 
 
 17. By-laws of College of Dental Surgeons considered: 
 Gordon v. R. C. D. S., 2 0. W. N. 733, 23 0. L. R. 
 223. By-laws: conduct unbecoming a licentiate of 
 dental surgery: discipline committee: see Little v. 
 Royal College of Dental Surgeons, 11 0. W. R. 
 973, 12 0. W. R. 170. 
 
 25. What amounts to holding out as being a registered 
 dentist: Robertson v. Hawkins, 1913, 1 K. B. 57. 
 " Specially qualified to practice dentistry." Notice 
 containing statement of work done: Bellerby v. 
 Heyworth, 1909, 2 Ch. 23, 1910, A. C. 377. Un- 
 registered dentist offering " advice free:" Barnes 
 v. Brown, 1909, 1 K. B. 38; Bellerby v. Heyworth, 
 1910, A. C. 377. Company carrying on dentist 
 business: Atty. Gen. v. Smith, 1909, 2 Ch. 524. 
 Unlicensed persons practising by means of hiring: 
 Gordon v. Royal College Dental Surgeons, 2 0. W. 
 N. 733, 18 0. W. R. 149. 
 
 25. — (4) Procedure on stated case where summary con- 
 viction under this Act: Rex v. Henry, 1 0. W. N. 
 567, 15 0. W. R. 621. 
 
 27. Professional conduct: Gordon v. Royal College 
 Dental Surgeons, 18 0. W. R. 149, 2 0. W. N. 733, 
 23 0. L. R. 223. Professional misconduct as a ground 
 for dissolution of partnership: Clifford v. Timms, 
 1908, A. C. 12. 
 
7gg CHAPTER 164. 
 
 CHAPTER 164. 
 
 The Pharmacy Act. 
 
 28. The prohibition against the sale of poison extends 
 to the sale of a compound containing a schedule 
 poison as ingredient : Pharm. Soc. v. Armson, 1894, 
 2 Q. B. 720; Pharm. Soc. v. Piper, 1893, 1 Q. B. 
 686. But it is not sufficient to prove that the com- 
 pound contains only an infinitesimally small quan- 
 tity of a poison as defined by the Act: Pharm. 
 Soc. v. Delve, 1894, 1 Q. B. 71. The defendant be- 
 ing owner of a departmental store, opened a drug 
 department therein and placed it under the sole 
 control of a duly qualified and registered chemist, 
 who sold the drugs in the defendant's name, receiv- 
 ing a weekly salary and a percentage of profits, the 
 defendant himself not being a duly qualified and 
 registered chemist. The defendant was liable to be 
 convicted for keeping an open shop for retailing, 
 dispensing and compounding poisons: Reg ex rel. 
 Warner v. Simpson, 27 0. B. 603; see State v. 
 Norton, 67 Io. 641. Sale of wood alcohol to Indian : 
 Antoine v. Duncombe, 8 0. W. B. 719. 
 
 29. Poison in Schedule A., in horse medicine sold by 
 
 assistant in shop of incorporated company of 
 pharmacists when director, who was a chemist, was 
 not personally managing the shop: McGibbon v. 
 Lawrason, 13 0. W. R. 468. 
 
 30. Sale of poison for agricultural use: bottle not 
 
 labelled with name, etc., of vendor: Pharmaceutical 
 Society v. Jacks, 1911, 2 K. B. 115. 
 
 33. Sale of poison under trade name: Edwards v. 
 Pharmaceutical Society, 1910, 2 K. B. 766. 
 
CHAPTERS 165, 166. 769 
 
 CHAPTER 165. 
 
 The Ontario Land Surveyors Act. 
 
 3. A surveyor in making a survey is under no statutory 
 obligation to perform the duty, but undertakes it 
 as a matter of contract and is liable only for dam- 
 ages caused by want of reasonable skill or by gross 
 negligence: Stafford v. Bell, 6 A. E. 273. The 
 proper method of making a survey under the statute 
 discussed: Stafford v. Bell, 6 0. R. 273. 
 
 25. Plan by draughtsman not an 0. L. S. : Cardwell v. 
 Breckenbridge, 4 0. W. N. 1295, 24 0. W. R. 569. 
 
 CHAPTER 166. 
 
 The Surveys Act. 
 
 7. See as to boundary line disputes, the provisions of 
 R. S. 0. 1914, ch. 67. 
 
 10. The monuments placed in compliance with these 
 provisions must be placed at the true corners, 
 governing points, etc. There is nothing in these 
 sections making a survey thereunder or the plac- 
 ing of the monuments conclusive, whether right or 
 wrong, and evidence may be received in contradic- 
 tion: R. v. Crosby, 21 O. R. 591. 
 
 13. A Court is not concerned with the question whether 
 
 the surveyor took the prescribed means for 
 determining his data — he should follow the direc- 
 tions of the statute: Charbonneau v. McCusker, 
 17 0. W. R. 18, 2 0. W. N. 83, 22 0. L. R. 46. 
 Governing line, method adopted: lb. 
 
 14. The requirements of the statute must be complied 
 
 with to give the Lieutenant-Governor in Council 
 jurisdiction to authorize the survey. "Where the 
 survey lacks this, it is illegal and the municipal 
 
 s.A. — 49 
 
77Q CHAPTER 166. 
 
 council has no power to pass a by-law to ley the 
 cost of it. Where a re-survey is authorized the 
 cost of it must be borne by the proprietors of the 
 lands in each range or block or part of each range 
 interested, and not of all the proprietors whether 
 interested or not: Sutton v. Port darling, 3 0. L. 
 E 445 ; Ee Scott and Peterborough,. 26 U. C. E. 36 ; 
 E. v. McGregor, 19 C. P. 69; Cooper v. Wellbanks, 
 14 C. P. 364. 
 
 17. Act does not apply to the manner of dividing a lot 
 
 laid out on a private plan: Hooey v. Tripp, 3 0. 
 W. N. 738, 21 0. W. E. 493, 25 0. L. E. 578. 
 
 18. History and construction of section: Scryver v. 
 Young, 14 0. W. E. 530. The Act does not apply 
 to the manner of dividing a lot laid out on a private 
 plan. Application of this section : Hooey v. Tripp, 3 
 O. W. N. 738, 21 0. W. E. 493, 25 O. L. E. 578. 
 
 39. Meaning of " half " a lot: see Annotation, 2 D. L. 
 E. 143. 
 
 23. Crown grant of land bordering on river: see 
 Williams v. Pickard, 15 0. L. E. 655, 11 0. W. E. 
 475, 17 0. L. E. 547. Where a grant of land is 
 made bordering on a non-tidal river whether navi- 
 ' gable or not, the title in the bed ad medium filum 
 aquae is presumed prima facie to be in the riparian 
 owner: Keewatin v. Kenora, 13 0. L. E. 237, 16 
 0. L. E. 184, 11 0. W. E. 266; but see new provi- 
 sions of E. S. 0. 1914, ch. 31, sec. 2, and notes to 
 that chapter. 
 
 34. Ownership of soil of island in bed of stream: see 
 
 Great Torrington Commons Conservators v. Moore 
 Stevens, 1904, 1 Ch 347. Land bordering on river: 
 see Keewatin v. Kenora, 13 0. L. E. 237, 16 0. L. 
 E. 184, 11 0. W. E. 266; Williams v. Pickard, 15 
 0. L. E. 655, 17 0. L. E. 547, note to sec. 23 ante; 
 E. S. 0. 1914, ch. 31, notes. 
 
 35. See Mclntyre v. Thompson, 1 0. L. E. 163. 
 
 36. See Marrs v. Davidson, 26 U. C. E. 641 ; Holmes v. 
 McKechnin, 23 U. C. E. 52; Warnock v. Cowan, 
 
CHAPTER 166. 77I 
 
 13 U. C. B. 257; McLachlin v. Dixon, 4 C. P. 71, 
 307. Subsequent survey, authority" to change: 
 double front: Murphy v. Healey, 30 U. C. E. 192. 
 What constitutes a double front: Dark v. Hep- 
 burn, 27 C. P. 357; McGregor v. McMichael, 41 
 U. C. E. 128. 
 
 39. Proper method of making a survey under the 
 statute : see Stafford v. Bell, 6 A. E. 273. 
 
 44. The section is retroactive only in the sense that it 
 is intended only to affect roads or streets which 
 at the time of the passing of the Act were already 
 in existence as private roads, to the use of which 
 purchasers of property abutting thereon were then 
 entitled, which roads and streets so in existence 
 subject to the provision for non-liability of the cor- 
 poration to keep them in repair were converted into 
 public hignways: Gooderham v. Toronto, 21 O. E. 
 120, 19 A. E. 641, 25 S. C. E. 246; see also as to 
 retroactive force of the section: Wright v. Olm- 
 stead, 20 O. W. E. 701. By the filing of a plan 
 and the sale of lots according to it, abutting on a 
 street the property in the street becomes vested in 
 the municipality, although they may have done no 
 corporate act by which they have become liable to 
 repair: Eoche v. Eyan, 22 O. E. 107. The Act 
 formerly did not apply to townships: see as to 
 hamlets: Sklitzsky v. Cranston, 22 0. E. 590; and 
 see this case also as to the rights of a purchaser 
 over a private road. A municipal corporation has 
 the right to have it declared as against a private 
 person whether or not certain land is a public high- 
 way: Toronto v. Lorsch, 24 0. E. 227; Gooder- 
 ham v. Toronto, 19 A. E. 641; Fenelon Falls v. 
 Victoria Ey. Co., 29 Gr. 4. A lane is not within the 
 purview of the section: Brett v. Toronto Eailway, 
 13 0. W. E. 552, 14 0. W. E. 74. What amounts to a 
 dedication as a public highway of a bridge and 
 lands on each side of it, and what land such high- 
 way includes: Gloster v. Toronto Electric Light, 
 38 S. C. E. 27. Streets on plan, highways: Peake 
 v. Mitchell: 4 0. W. N. 988, 24 0. W. E. 291. 
 Dedication of road: Plummer v. Davies, 20 0. W. 
 E. 806, 3 0. W. N. 466; Hay v. Bisonette, 17 0. 
 
772 CHAPTER 166. 
 
 W. R. 321, 2 0. W. N. 189. Acceptance of dedica- 
 tion of highway by municipality by memorandum 
 of consent endorsed on registered plan : Re Toronto 
 Plan M 188, 28 0. L. R. 41. Where water lots on 
 a lake front are subject to the usual Crown reserva- 
 tion of free passage, the water on such lots is a 
 highway whether when fluid or frozen: Cullerton 
 v. Miller, 26 0. R. 36 ; see also Pennock v. Mitchell, 
 12 0. W. R. 767. Encroachments on reservations: 
 Lakefield v. Brown, 15 0. W. R. 656, 1 0. W. N. 
 589. Ownership of closed allowances by abutting 
 owners : Re Purse and Forbes, 1 0. W. N. 1085. 
 " Townsites:" (see Mines Act, 1906, sec. 109); Re 
 Western and Northern Land Corporation and G-ood- 
 win, 13 0. W. R. 177. See R. S. 0. 1914, ch. 
 28, sec. 57. No dower in lands dedicated for 
 streets: see R. S. 0. 1914, ch. 70, sec. 8. As 
 to plans under the Registry Act : see R. S. 0. 1914, 
 ch. 124, sec. 81, et seq.; roads less than 66 feet in 
 width: see sec. 81 (14); consents required: sec. 81 
 (18); plan not binding until sale made: sec. 86; 
 alteration and closing of roads: sec. 86 (4) and 
 notes. As to plans under the Land Titles Act: see 
 R. S. 0. 1914, ch. 126, sec. 105, et seq. ; filing plans 
 with roads less than 66 feet in width : see sec. 109 ; 
 plan not binding unless sale made according to it: 
 see sec. 100; amendment of plan: sec. 110; alter- 
 ation and closing of streets: sec. 110 (4). As to 
 sub-division plans within 5 miles of city of 50,000: 
 see The City and Suburbs Plans Act, R. S. 0. 1914, 
 ch. 194. As to what constitute public highways, 
 ownership of, and jurisdiction over same: see R. 
 S. 0. 192, sees. 432-3-4; powers of municipality as 
 to naming and surveying streets : see sec. 400 (38) ; 
 width of highway: see sec. 479. For comment of 
 effect of this section : Armour, Titles, p. 231. 
 
 45. Field notes, duty in respect of : Lakefield v. Brown, 
 15 0. W. R. 656, 1 0. W. N. 589. 
 
CHAPTERS 167, 168, 169, 170, 171, 172. 773 
 
 CHAPTER 167. 
 
 The Ontario Architects Act. 
 
 Refer to: Hudson on the Law of Building, etc., 
 Macassey and Strahan on Engineers. 
 
 CHAPTER 168. 
 The Stenographic Reporters Act. 
 
 CHAPTER 169. 
 The Chartered Accountants Act. 
 
 CHAPTER 170. 
 
 The Stationary Engineers Act. 
 
 CHAPTER 171. 
 The Veterinary Surgeons Act. 
 
 Refer to: Oliphant on Horses. 
 
 2. One man company as qualified veterinary: Atty. Gen. 
 
 v. Churchill's Veterinary Sanitorium, 1910, 2 Ch. 
 401. 
 
 3. Unqualified person holding himself out as a" canine 
 
 specialist:" Royal Col. Vet. Surgeons v. Collinson, 
 1908, 2 K. B. 248. 
 
 CHAPTER 172. 
 The Ontario Cullers Act. 
 
774 CHAPTER 173. 
 
 CHAPTER 173. 
 
 The Innkeepers Act. 
 
 Refer to: Jelf and Hurst on Inrikeepers, Beven on 
 Negligence. 
 
 3. — (1) Innkeeper's lien was a common law lien: Cum- 
 mings v. Harris, 23 Am. Dec. 206. Boarding 
 house keeper: see Newman v. "Whitehead, 2 Sask. 
 R. 11. Cabman's lien on baggage: McQuarrie v. 
 Duggan, 44 N. S. R. 185. For review of cases 
 on the question of the relation of innkeeper and 
 guest and of the innkeeper's liability for the effects 
 of his guest, and negligence in respect thereof : see 
 judgment of Gorham, Co.J., Fraser v. McGibbon, 10 
 O. W. R. 54. 
 
 3. — (2) A landlord has a right to sell, under this Act, 
 a horse belonging to a boarder to enforce his lien 
 for keep and accommodation. After the lien 
 accrued the boarder took the horse away and sub- 
 sequently brought it back. Held that the lien re- 
 vived : Huffman * v. Walterhouse, 19 0. R. 186. 
 See Dixon v. Dalby, 11 U. C. R. 79 ; Neale v. Crooker, 
 8 C. P. 224; Crabtree v. Griffith, 22 IT. C. R. 573. 
 A landlord has no lien on a rented piano which a 
 guest has brought to his room: Newcombe v. 
 Anderson, 11 0. R. 665; see Rees v. McKeown, 7 
 A. R. 521. 
 
 3 — (5) The statute does not purport to give a livery 
 stable keeper as wide a lien as the common law 
 gave an innkeeper. It would require express words 
 to give a lien on the property of a third person: 
 statute considered: Automobile and Supply Co., v. 
 Hands Limited, 4 0. W. N. 1210, 28 0. L. R. 585. 
 
 3. — (6) The innkeeper cannot become the purchaser at 
 a sale under this Act: Martin v. Howard, 4 0. W. 
 N. 1266, 24 0. W. R. 617. 
 
 4. The responsibility of an innkeeper begins with the 
 relation of guest and innkeeper. That relation 
 
CHAPTERS 174, 175. 775 
 
 arises the moment the guest enters the inn with that 
 intention, and is received on that basis: Wright 
 v. Anderton, 1909, 1 K. B. 209. The relation of inn- 
 keeper and guest arises notwithstanding a third 
 person contract to pay for the guest's accommoda- 
 tion: Wright v. Anderton, 1909, 1 K. B. 209. Duties 
 of an innkeeper: Be Karry and Chatham, 15 0. 
 W. B. 1. " Expressly for safe custody:" White- 
 house v. Pickett, 1908, A. C. 357. Liability of inn- 
 keeper for effects of guest: Fraser v. McGibbon, 10 
 O. W. B. 54. 
 
 6. No material word must be omitted from the copy of 
 sec. 4 as posted up : Spice v. Bacon, 2 Ex. Div. 465. 
 
 CBA.PTEE 174. 
 
 THE EmBALMERS AND UNDERTAKERS ACT. 
 
 CHAPTEB 175. 
 
 The Ontario Money Lenders Act. 
 
 Befer to: Mathews on Money Lending; Bellot on 
 Money Lenders. 
 
 5. Oppressive rate of interest: Goodline v. Widdifield, 
 8 Gr. 531; Teeter v. St. John, 10 Gr. 85; Bellamy 
 v. Porter, 4 O. W. N. 1171. Voluntary payment of 
 unauthorized rate of interest: McHugh v. Union 
 Bank, 1913, A. C. 299. 
 
 8. Interest chargeable by a pawnbroker: B. v. Adams, 
 8 P. E. 462. 
 
 11. Misstatement of lender's name in note taken for a 
 loan : Peizer v. Lefkourtz, 1912, 2 K. B. 235. 
 
 12. Security taken by unregistered money lender: Be 
 Bobinson, Grant v. Hobbs, 1912, 1 Ch. 717. 
 
77g CHAPTERS 176, 177 
 
 CHAPTER 176. 
 
 The Ontario Pawnbrokers Act. 
 
 Refer to : Attenborough, Law of Pawnbroking. 
 
 2. " Exercising the trade of a pawnbroker:" see R. v. 
 Andrews, 25 U. C. R. 196. 
 
 19. Interest chargeable by pawnbroker: see R. v. 
 Adams, 8 P. R. 462. 
 
 21. A pawnbroker, who acting honestly, has lost the 
 article pledged with him, is not liable to be con- 
 victed for neglecting or refusing to deliver a pledge 
 without reasonable excuse: Allworthy v. Clayton, 
 1907, 2 K. B. 685. 
 
 CHAPTER 177. 
 The Private Detectives Act. 
 
CHAPTER 178 777 
 
 CHAPTER 178. 
 
 The Ontario Companies Act. 
 
 Refer to: Parker and Clarke (Can.), Mulvey 
 (Can), "White (Can.), Masten Company Law in 
 Canada, Buckley on Companies, Lindley on Com- 
 panies. Palmer's various works on Company Law, 
 the Companies Acts, on Debentures, Company 
 Precedents and on Winding-up, Hurrell and Hyde 
 on Directors, Lynch on Liquidators, Pixley on 
 Audits. 
 
 1. For resume Of origin of this Act and review of 
 several of the provisions: see article by Thomas 
 Mulvey, K.C., 45 C. L. J. 220. 
 
 2. — (b) Corporation: when a "person" within the 
 Criminal Code: see Rex v. Master Plumbers, 14 
 O. L. R. 295; and see R. S. 0. 1914, ch. 1, sec. 29 (x). 
 
 PART I. 
 
 Incorporation, Re-incorpoeation, Amalgamation. 
 
 3. Meaning of the power reserved by the B. N. A. Act, 
 sec. 92 (11), to the provinces for "the incorpora- 
 tion of companies with provincial objects and to 
 what extent (if any) such limitation is territorial, 
 and whether it has only reference to the powers 
 of the company: see In re Companies, 48 S. C. R. 
 331. Membership in company and status of share- 
 holder: see article 45 C. L. J. 145, 220, 338; Nicols' 
 Case, 29 Ch. D. 421; Re Haggart Bros. Mfg. Co., 
 19 A. R. 582. Contrast of the main differences be- 
 tween Imperial and Ontario Statutes: see article 
 45 C. L. J. 220; Mahoney v. East Holyford Min- 
 ing Co., 1875, L. R. 7 H. L. 869 ; County Gloucester 
 Bank v. Rurdy Merthyr, 1895, 1 Ch. 629. Effect 
 of words constituting a corporation: see R. S. 0. 
 1914, ch. 1, sec. 27. After the issue of a winding- 
 up order, a shareholder cannot avoid liability by 
 
778 
 
 CHAPTER 1718. 
 
 setting up defects or irregularities in the organi- 
 zation of the company. Such grounds can only be 
 taken upon direct proceedings at the instance of the 
 Attorney-General: Common v. McArthur, 29 S. 
 C. E. 239. Where a trader who is solvent converts 
 his business into a limited liability company, the 
 Court is not entitled to enter into a speculative 
 analysis of the motives and the exorbitance of the 
 price paid, to decide that it is not validly consti- 
 tuted on account of the non-fulfillment of conditions 
 not found in the Companies Act : Salomon v. Salo- 
 mon & Co., 1897, A. C. 22, 60 L. J. Ch. 35. " One 
 man companies : ' ' see Salomon v. Salomon and Co., 
 1897 A. C. 22; Erlanger v. New Sombrero Phos- 
 phate Co., 3 App. Cas. 1218; Ee British Seamless 
 Paper Box Co., 17 Ch. D. 467. Where a limited 
 liability company has been regularly formed for 
 the purpose of taking over the business of a trader 
 who is insolvent, the conveyance of the assets of 
 the latter to a company, though it may be open to 
 attack under the Statute of Elizabeth or under E. 
 S. 0. 1914, ch. 134, cannot be set aside on the prin- 
 ciple that the company is a mere alias or agent: 
 Eielle v. Eeid, 28 0. E. 497, 26 A. E. 54; see Salo- 
 mon v. Salomon, 1897, A. C. 22. History of the 
 law as to who became shareholders in a com- 
 pany incorporated by letters patent. Departure 
 from prospectus and unreasonable delay may, in 
 certain circumstances, release subscriber: Patter- 
 son v. Turner, 3 0. (L. E. 373. The fact that in an 
 undefended action brought by a subscriber against 
 a company, judgment is recovered containing a 
 declaration that the subscriber is not a shareholder, 
 does not in itself afford any defence in an action 
 brought against him to compel him to pay for the 
 shares he has subscribed for: Patterson v. Turner, 
 3 0. L. E. 373. Upon an indictment of two incor- 
 porated trade associations in restraint of trade (see 
 Criminal Code, sec. 496), the defendants are to be 
 condemned, if condemned at all, upon the acts 
 proved to have been committed by them after in- 
 corporation, but in weighing such act the Court 
 may look at proximately antecedent acts of indi- 
 viduals now comprising and directing the corpora- 
 tions : Eex v. Master Plumbers, 14 0. L. E. 295. 
 
CHAPTER 178. 779 
 
 Neither the acquisition of gain nor the -division of 
 a dividend among its members is of the essence of 
 a joint stock company: In re Russell Literary and 
 Scientific Association, 1898, 2 Ch. 72, 67 L. J. Gh. 
 411; In re Jones, Clegg v. Ellison, 1898, 2 Ch. 83, 
 67 L. J. Ch. 504. Validity of shares issued outside 
 of province: Re York County Loan, 11 0. W. R. 
 507. A company incorporated under authority of a 
 provincial legislature to carry on the business of 
 fire i insurance is not inherently incapable of entering 
 outside the boundaries of its province of origin, into 
 a valid contract of insurance relating to property 
 also outside those limits : C. P. R. v. Ottawa Fire, 39 
 S. C. R. 405. And see also, Kerlin Bros. Co. v. Ontario 
 Pipe Line, 11 0. W. R. 797. 
 
 4. Formerly an order in council was required to issue 
 letters patent incorporating a company. 
 
 5. — (1) If a company never becomes entitled to com- 
 mence business, no contract entered into by it is 
 binding on it and no one can sue in respect of any 
 such contract: Re Otto Electrical Mfg. Co., 1906, 2 
 Ch. 390. A company is under no obligation in equity 
 to pay for work done before its formation merely 
 because it derived benefit from such work. Soli- 
 citors, to recover costs of formation of the com- 
 pany, must establish a legal claim against the com- 
 pany, either on their own behalf or on behalf of 
 some person in whose shoes they are entitled to 
 stand. As regards the government fee, they can 
 recover as the company is bound by statute to pay 
 that: Re English and Colonial Produce Co., 1906, 
 2 Ch. 435. Oral agreement between incorporators 
 before formation: Berkinshaw v. Henderson, 1 O. 
 W. N. 97. See also notes to sec. 112. 
 
 5. — (2) Position of nominal applicant for letters patent 
 in winding-up: Re Ontario Sugar Co., McKinnon's 
 Case, 17 O. W. R. 1038, 2 O. W. N. 496, 22 0. L. R. 
 621. The applicants for incorporation are strictly 
 those who sign the petition, but potentially those 
 others are included who sign the memorandum of 
 agreement to become incorporated : Modern Bedstead 
 Co. v. Tobin> 12 0. W. R. 22. 
 
780 
 
 CHAPTER 178. 
 
 -(3) Signature of agreement under seal to become in- 
 corporated is an irrevocable act: Nelson Coke and 
 Gas v. Pellatt, 4 0. L. E. 488, 1 0. W. E. 595. By 
 no act or repudiation of his own can such a sig- 
 natory cease to be a shareholder unless he can shew 
 a state of facts that would justify a rescission of 
 the contract by the Court: Modern Bedstead Co. 
 v. Tobin, 12 0. W. E. 22. In winding-up proceed- 
 ings it appeared that an alleged contributory joined 
 in the petition for incorporation, wherein it was 
 untruly stated that he had taken 250 shares, while 
 the fact was that the shares he held had been voted 
 to him by a resolution of the directors as paid up 
 stock for services rendered in the formation of the 
 company. Held he was a contributory, certainly in 
 respect of the shares voted* to him and pro- 
 bably for all mentioned in the petition : Ee Colling- 
 wood Dry Dock Co., Weddell's Case, 20 0. E. 107. 
 On the issue of the patent ; subscribers become liable 
 without more to pay for the stock subscribed for by 
 them: Ee Haggert Bros. Mfg. Co., 19 A. E. 582. 
 They do not at once become debtors to the full 
 amount of their shares. They are only liable as 
 other members for calls when made: Alexander v. 
 Automatic Telephone Co., 1899, 2 Ch. 302; see 
 Dalton v. Time Lock, 66 L. T. 704; Ee Whitehead 
 Brothers, 1900, 1 Ch. 804, 69 L. J. Ch. 607. The 
 issue of the certificate of incorporation operates as 
 the issue of all shares signed for in the memoran- 
 dum of association: Ee Whitehead, 1900, 1 Ch. 
 804, 69 L. J. Ch. 607; see Ee Jarvis, 68 L. J. Ch. 
 145, 1899, 1 Ch. 193. Irrevocable application for 
 shares by signature of memorandum of agreement: 
 Ee Nipissing Planing Mills, Eankin's Case, 13 O. 
 W. E. 360; Ee Provincial Grocers, Calderwood's 
 Case, 10 O. L. E. 705, 6 O. W. E. 744. The memo- 
 randum of agreement or stock book is essentially 
 an application for shares: Nasmith v. Manning, 5 
 A. E. 126, 5 S. C. E. 417; Ee London Speaker 
 Printing Co., 16 A. E. 508. The memorandum 
 which accompanies the petition is the one, signature 
 of which gives rise to liability: Ee Nipissing Plan- 
 ing Mills, 18 O. L. E. 81; see Ee Provincial 
 Grocers, 10 O. L. E. 705. Cancellation of subscrip- 
 tion by incorporator: Canadian Druggists Syndi- 
 cate v. Thompson, 24 0. L. E. 108. As to fees to 
 
CHAPTER 178. 781 
 
 accompany application, see sec. 138> note. Depart- 
 mental regulations in regard to application, etc., see 
 sec. 33, note. 
 
 6. This section provides for the incorporation of com- 
 panies and associations formerly incorporated 
 under " The Act respecting Benevolent, Provident 
 and other Societies," B. S. 0. 1897, ch. 211, and it 
 may also take the place of E. S. 0. 1897, chs. 201 
 and 202, and facilitate the incorporation of charit- 
 able and other corporations. Many sections of the 
 Act apply equally to corporations without share 
 capital as well as to those with shares, e. g., Part 
 II., names, Part V., debentures, Part IX., books, 
 inspection and audit. It }s proposed by the depart- 
 ment that the memorandum of agreement in each 
 particular case should supplement the parts of the 
 Act mentioned in respect of meetings, directors, 
 their duties, etc. Such corporations may be turned 
 into companies with share capital: see sec. 9. 
 Under E. S. 0. 1897, ch. 202, the " Co-operative 
 Associations Act," business was to be for cash only: 
 see sec. 16. Effect of this statutory limitation: see 
 Struthers v. Mackenzie, 28 0. E. 381. For review 
 of the status of companies incorporated under E. 
 S. O. 1897, chs. 202 and 211, before the Criminal 
 Law, and especially with reference to sec. 520 of 
 the Criminal Code: see E. v. Master Plumbers 
 Association, 14 0. L. E. 295, esp. at pp. 313 and 
 318-321. Construction of rules of such a society 
 with regard to the apportionment of the benefit 
 fund: Johnston v. Catholic Mutual, 24 A. E. 88; 
 Fawcett v. Fawcett, 26 t A. E. 335. Initiation and 
 right of a subordinate council of a friendly society 
 to waive its requirements where it is a condition 
 precedent to membership: Hoeffner v. C. 0. F., 
 29 0. E. 125. Under E. S. 0. 1897, ch. 211, it was 
 held that a member of a benefit society when 
 accused, was entitled to a fair hearing before being 
 expelled, and where this had not been done the 
 expulsion was not legally accomplished: Gravel v. 
 L 'Union St. Thomas, 24 0. E. 1; Beland v. L 'Union 
 St. Thomas, 19 0. E. 747. A benevolent society 
 incorporated under E. S. 0. 1897, ch. 211, attached 
 to the declaration which they filed a printed book 
 
7g2 CHAPTER 178. 
 
 said to contain a copy of the constitution and by- 
 laws by which the society was to be governed. The 
 constitution and by-laws became a part of the or- 
 ganic law of the society and changes made in the 
 by-laws in accordance with the provisions of such 
 constitution were valid and binding: Ee Ontario 
 Insurance Act and Select Knights, 31 O. E. 154. See 
 also as to alteration of constitution and by-laws: 
 Doidge v. Eoyal Templars, 4 0. L. E. 423. An as- 
 signment under E. S. 0. 1914, ch. 134, does not pass 
 to the assignee the benefit which a debtor is entitled 
 to under a benefit certificate in a society incorpor- 
 ated under E. S. 0. 1897, ch. 211. As to claim on 
 pension: see Slemin v. Slemin, 7 0. L. E. 67. Co- 
 operative associations under E. S. 0. 1897, 202 and 
 211 : see E. v. Master Plumbers, 14 0. L. E. 295, esp. 
 pp. 313, 318-321. Liability of members of unincor- 
 porated association: Pears v. Stormont, 24 0. L. E. 
 508. See the provisions as to Friendly Societies, ' 
 E. S. 0. 1914, ch. 183, sec. 72, et seq. 
 
 6. — (2)- The departmental regulation requires the inser- 
 tion in the charter a condition that the charter shall 
 be forfeited and may be cancelled if there is any 
 trafficking in intoxicating liquor, and that any person 
 guilty of any act of that sort is amenable to the 
 Liquor License Act, E. S. 0. 1914, ch. 215. Also the 
 charter shall be forfeited, and may be cancelled if 
 betting or gambling is carried on on the premise? 
 of the company. See also, sec. 29, note. 
 
 10. Amalgamation of companies; fiduciary position of 
 directors and their duties: Stratford Fuel, etc., Co. 
 v. Mooney, 14 0. W. E. 489, 16 0. W. E. 246. 
 
 14. As to fees, see sec. 138, note. 
 
 16. E. J3. 0. 1897, ch. 191, sees. 17-21, 102, 106. See as to 
 effect of subscription before by-law is passed direct- 
 ing the issue of supplementary letters patent: Port 
 Hope B. & M. Co. v. Cavanagh, 8 0. W. E. 985 ; and 
 see 10 0. W. E. 531. Allotment of new shares of 
 increased capital stock; rights of minority share- 
 holders : Martin v. Gibson, 10 0. W. E. 66, 15 0. L. E. 
 623. Position of dissentient shareholder in case of 
 
CHAPTER 178. 783 
 
 reduction of share capital under English law: Ee 
 Thomas De la Rue Co., 1911, 2 Ch. 361. 
 
 17. Mandamus to Provincial Secretary : Ee Massey Mfg. 
 Co., 11 0. E. 444, 13 A. E. 446. 
 
 22. Entity of company with unused powers: Campbell 
 v. Taxicabs Verrals Ltd., 23 0. W. E. 6, 4 0. W. N. 
 28, 27 0. L. E. 141. 
 
 23. — (1) Powers of company " not for profit:" Cyclists 
 Touring Club and Hopkinson, 1910, 1 Ch. 179. Where 
 the primary objects enumerated are followed by 
 general words, the general words are to be read as 
 incidental to the primary objects : Ee Amalgamation 
 Syndicates, Ltd., 1897, 2 Ch. 600, 66 L. J. Ch. 783; 
 Ee Coolgardie Consolidated Gold Mines, 76 L. T. 
 269. Where a company ceases to carry on its pro- 
 per business and carries on a business ultra vires, 
 a shareholder is not confined to a remedy by in- 
 junction, but may have the company wound up : Ee 
 Crown Bank, 44 Ch. D. 634, 59 L. J. Ch. 739. A sim- 
 ple contract creditor has no locus standi suing on 
 behalf of himself and other creditors to attack a 
 transaction by his debtor company as ultra vires: 
 Northern Electric v. Cordova Mines, 5 0. W. N. 156, 
 25 0. W. E. 105. Although a limited company may 
 be formed with any number of separate objects of 
 the most diverse kind, provided these objects are 
 precisely discriminated as separate, yet when it is 
 clear from the general construction of the memor- 
 andum of association that the company is formed 
 for a single primary object and that the other ob- 
 jects mentioned are intended to be only subordin- 
 ate or auxiliary, it is not possible to construe each 
 of these other objects as separate even if a clause 
 is inserted that they shall be so construed : Stephens 
 v. Mysore Eeef s Mining Co., 1902, 1 Ch. 745, 71 L. J. 
 Ch. 298. Construction of general powers : Pedlar v. 
 Eoad Block Gold Mines, 1905, 2 Ch. 427, 74 L. J. Ch. 
 753. General words are to be taken and explained 
 with reference to the words which precede them and 
 with which they are connected in sense: Ashbury 
 Eailway Co. v. Eiche, L. E. 7 H. L. 653, 44 L. J. Ex. 
 
784 CHAPTER 178. 
 
 185. General words are auxiliary only to the prim- 
 ary objects of the company: Ee German Date Cof- 
 fee Co., 20 Ch. D. 169, 51 L. J. Ch. 564. If a cor- 
 poration having been constituted for a particular 
 object, appropriates its funds to something else than 
 that object, it is doing something that impliedly it 
 is forbidden to do by Act of Parliament. That is 
 ultra vires: Per Lord Cranworth: Orr v. Glasgow, 
 etc., Junction Ey., 6 Jur. (N. S.) 877, 2 L. T. 550; 
 see Guinness v. Land Corporation of Ireland, 22 Ch. 
 D. 349, 52 L. J. Ch. 177. Companies' charters in 
 general, see Eutter v. Chapman, 8 M. & W. 1 ; E. v. 
 Haythorne, 5 B. & C. 410. As to the principles limit- 
 ing the capacities, powers and liabilities of com- 
 panies : see Brice on Corporations and Utlra Vires. 
 
 23. — (16) A company cannot by adoption or ratifica- 
 tion obtain the benefit of a contract purporting to 
 have been made on its behalf before the company 
 came into existence. To obtain such benefit a new 
 contract must be entered into by the company on 
 the terms of the old contract: Natal Land and Col- 
 onization Co. v. Pauline Colliery, 1904, A. C. 120. 
 Allotment of shares in pursuance of agreement to 
 buy property : Bennett v. Havelock, 1 O. W. N. 352, 
 751. Transfer of assets of partnership to incor- 
 porated company, assumption of liability; direct 
 right of action: Stecker v. Ontario Seed Co., 20 O. 
 L. E. 359, 1 O. W. N. 463. 
 
 23. — (le) Company cannot traffic in its own shares: 
 Lindsay v. Imperial Steel, 1 O. W. N. 347, 930. Cor- 
 porations purchasing their own stock: Stavert v. 
 McMillan, 21 0. L. E. 245. Incorporated company 
 becoming shareholder : Foley v. Barber, 1 0. W. N. 
 1029, 14 0. W. E. 669. Sale of shares, business as- 
 sets, stock, goodwill ; status of liabilities : Strong v. 
 Van Allen, 1 0. W. N. 539. 
 
 23. — (1/) Building hotel: see Stewart v. Stratford Hotel 
 Co., 12 0. W. E. 157. 
 
 23. — (Ik) It is ultra vires of a tug company to guaran- 
 tee payment by the owner of a tug employed by the 
 company of a boiler purchased by him to operate 
 the tug: The A. E. Williams Machinery Co. v. the 
 
CHAPTER 178. 7g5 
 
 Crawford Tug Co., 16 O. L. E. 245, 11 0. W. E. 
 321. Guarantee by company signed by president: 
 Thomas v. Standard Bank, 15 0. W. E. 188. 
 Consideration of power of trading company to give 
 guaranty; powers under Company Act of 1897 and 
 under Act of 1907: Union Bank v. McKillop, 4 0. 
 W. N. 1253, 5 0. W. N. 493. As to loan to servant 
 of company: see Rainford v. James Keith Co., 
 1905, 2 Ch. 147, 74 L. J. Ch. 531. 
 
 23. — (11) Signature of promissory note by managing 
 director ; personal liability of signatory : Chapman 
 v. Smelthurst, 1909, 1 K. B. 927. Unauthorized ac- 
 ceptance by director of bills in name of company: 
 Premier Industrial Bank v. Carlton Mfg. Co., 1909, 
 1 K. B. 106. A company president having made a 
 promissory note without authority and discounted 
 it with the company's bankers, the proceeds being 
 credited to the company's account and cheques 
 paid out of the proceeds to company's creditors, 
 whose claims should have been paid out of money 
 which the president had misappropriated, the bank- 
 ers who took in good faith were entitled when the 
 note fell due to charge it to the company 's account : 
 Bridgewater Cheese Co. v. Murphy, 26 0. E. 327, 
 23 A. E. 66, 26 S. C. E. 443. Effect of acceptance by 
 director of draft in name of company for the price 
 of goods which the company were by statute unable 
 to buy on credit: see Struthers v. Mackenzie, 28 0. 
 E. 381. As to general mercantile powers of manage- 
 ment, managing director and manager, see post, sees. 
 78 (3), 91 (e), and notes. 
 
 23. — (lm) Power to sell for shares includes a power to 
 sell for partly paid shares: In re City and County 
 Investment Co., 13 Ch. D. 475, 49 L. J. Ch. 195; 
 Mason v. Motor Traction Co., 1905, 1 Ch. 419,. 74 L. 
 J. Ch. 273. Where such a sale was part of a scheme 
 of reconstruction under which it was proposed to 
 distribute the partly paid shares among the (fully 
 paid) shareholders of the selling company: Queer e, 
 whether the distribution would be ultra vires: 
 Mason v. Motor Traction Co., 1905, 1 Ch. 419, 74 L. 
 J. Ch. 273. Sale for partly paid shares : Manners v. 
 St. David's Mines, 1904, 2 Ch. 593. A provisional 
 
 S.A.— 50 
 
7g6 CHAPTER 178. 
 
 agreement between two companies for the sale of 
 one to the other provided a substantial sum for the 
 directors of the selling company. This provision 
 did not render the agreement ultra vires, but (sem- 
 ble) if the money was a bonus for them for facili- 
 tating the agreement, it would not be binding on a 
 dissentient shareholder : Kay v. Croydon Tramways, 
 1898, 1 Ch. 358. Where the memorandum of asso- 
 ciation contains power to sell its undertaking for 
 shares in another company and to distribute 
 amongst its members in specie any of its property, 
 a sale can be properly made under this power and 
 it is not vitiated by the fact that it involves the com- 
 pany immediately going into liquidation, and such a 
 sale is not in disguise a sale by the liquidator in 
 terms not justified by sec. 161 of the (Eng.) Compan- 
 ies Act of 1862 : Doughty v. Lonagunda Eeef s, 1902, 
 2 Ch. 837, 1903, 1 Ch. 673. A power in a company to 
 sell its undertaking authorizes it to call up its unpaid 
 capital and transfer the same to the purchaser : New 
 Zealand v. Peacock, 1894, 1 Q. B. 622. Sale of com- 
 pany's undertaking for shares in another company: 
 Bisgood v. Nile Valley Co., 1906, 1 Ch. 747: Fuller 
 v. White, 1906, 1 Ch. 823. As to purchase of shares 
 in another company: see sec. 94, and see sec. 184 
 as to power to accept shares as a consideration for 
 sale of property to another company. See also sec. 
 91 (e) notes. 
 
 23. — (lo) A company may mortgage not only its real or 
 personal property then owned, but property there- 
 after acquired: Ee Perth Flax and Cordage Co., 13 
 0. W. E. 1140. See post, sec. 78, notes. 
 
 23. — (lq) "Incidental" powers: Amalgamated Society 
 of Ey. Servants v. Osborne, 1910, A. C. at p. 97. 
 Meaning of ' ' incidental ' ' powers : Union Bank v. 
 McKillop, 4 O. W. N. 1253, 5 O. W. N. 493. Who 
 can bring action in name of company : director con- 
 trolling majority of votes: majority of board of 
 directors: Marshall's Valve Gear Co. v. Manning. 
 1909, 1 Ch. 267. 
 
 23. — (1) In regard to the foregoing clauses (a) to (q) : 
 see Palmer's Precedents, forms 97-105, 107, 109, 112, 
 115, 118-320. 
 
CHAPTER 178. 787 
 
 24.. — (lb) A sale in good faith of all the land owned by 
 a mining company at the time by the company is not 
 necessarily invalid, there being nothing to prevent 
 the business of the company being continued by the 
 purchase of other land : Eitchie v. Vermilion Mining 
 Co., 1 0. L. E. 654, 4 0. L. E. 588. On what ground 
 sale of lands may be restrained; irregularity: 
 interest of rival company; auction: Eitchie v. Ver- 
 milion Mining Co., 1 0. L. E. 654, 4 0. L. E. 588. 
 The invalidity of a resolution authorizing the pur- 
 chase of land cannot affect the rights of the vendor 
 in the absence of notice to him: Montreal and St. 
 Lawrence Light and Power Co. v. Eobert, 1906, A. 
 C. 196. See further as to lands, sec. 26, notes. 
 
 26. Any bona fide agreement by the company to sell 
 lands is sufficient to prevent forfeiture even when 
 the sale is not carried out owing to" default of the 
 purchaser: conveyancing in such case: see London 
 and Canadian Agency Co. v. Graham, 16 0. E. 329. 
 A conveyance of lands to a corporation not empow- 
 ered to hold lands is voidable only and not void un- 
 der the Statutes of Mortmain and the lands can be 
 forfeited by the Crown only : McDiarmid v. Hughes, 
 16 0. E. 570. "Where a corporation purchased lands 
 and continued to hold them when its charter expired, 
 held that the corporators ceased to have any in- 
 terest and that the lands reverted to the grantors: 
 Lindsay Petroleum Co. v. Pardee, 22 Gr. 18. Where 
 a corporation is empowered to hold lands for a de- 
 finite period without provision for reverter and 
 holds beyond the period, only the Crown can take 
 advantage of the breach: McDiarmid v. Hughes, 16 
 0. E. 570. 
 
 28. Company with powers unused: see Campbell v. 
 Taxicabs Verrals, 27 0. L. E. 141. 
 
 29. An action having been begun against a company for 
 
 a declaration that they were carrying on an illegal 
 business and for forfeiture of their charter, while 
 the action was pending the defendants were sum- 
 moned to shew cause why their charter should not 
 be revoked by order in Council. Held that bringing 
 an action does not clothe the Court to restrain the 
 exercise, of the power to revoke charters whether 
 
ygg CHAPTER 178. 
 
 it is a mere statutory right or duty or a prerogative 
 right. The Court cannot restrain the Crown or its 
 officers in discharging discretionary functions com- 
 mitted to them hy the Sovereign: A.-G. for Ontario 
 v. Toronto Junction Eecreation Club, 8 0. L. R. 440. 
 See note to sec. 6 (2), as to forfeiture and cancella- 
 tion clauses now inserted in certain charters. 
 
 33. The present departmental circular regarding appli- 
 cations for incorporation of companies with share 
 capital is as follows : 
 
 HINTS AS TO THE FOEMATION OF COMPANIES 
 UNDER THE ONTARIO COMPANIES ACT. 
 
 Letters Patent for Incorporation of Companies with 
 Share Capital. 
 
 The Application and What It Should Contain. 
 
 (1) The application for Letters Patent must be by 
 a formal petition, duly executed, with at least two 
 signatures on the page containing the prayer. 
 
 (2) There must be at least five petitioners; 
 
 (3) There must be a memorandum of agreement, 
 in duplicate, only executed under seal by at least 
 the five petitioners with, at least, two signatures 
 on the page or sheet containing the undertaking. 
 An agreement made up of two sheets of paper, the 
 one setting forth the undertaking by itself, and the 
 other carrying all the signatures by themselves* will 
 not be accepted. Such agreement should conform, 
 in its essential features, to the form contained in 
 the pamphlet. If the application asks for special 
 provisions in the Letters Patent, such for instance 
 as an issue of preference shares, the memorandum 
 of agreement should contain the special provisions 
 asked for in the petition. The petition, which may 
 be submitted at any time, without Gazette notice, 
 must state: 
 
 (a) The proposed corporate name of the company. 
 Such proposed name must not contain the words 
 
CHAPTER 178. 7g9 
 
 "iLoan," " Mortgage," " Trust," " Investment," 
 or " Guarantee," in combination or connection with 
 any of the words " Corporation," " Company," 
 " Association," or " Society," or in combination 
 or connection with any similar collective term (see 
 B. S. 0. 1914, ch. 184, sec. 129)'. Evidence must also 
 be filed that the corporate name of the company is 
 not on any public ground objectionable and that it 
 is not that of any known corporation or association 
 incorporated or unincorporated, or of any partner- 
 ship or individual or any name under which any 
 known business is being carried on, or so nearly re- 
 sembling the same as to be calculated to deceive. 
 If the proposed corporate name is that of an exist- 
 ing firm or partnership to be taken over by the com- 
 pany there should be a written consent to use the 
 name, signed by all the members of the firm or part- 
 ner-ship', with the execution thereof verified by the 
 affidavit or statutory declaration of a subscribing 
 witness and an affidavit or declaration that the sig- 
 natories comprise all the members of the firm or 
 partnership. If the existing business is carried on 
 by an incorporated company there should be a re- 
 solution of the directors authorizing the applica- 
 tion, and undertaking that no further business oper- 
 ations will be carried on by such company and that 
 the Letters Patent of the existing company will be 
 surrendered as soon as its undertaking is transfer- 
 red to the new company. If the name of the pro- 
 posed company includes that of an individual, a veri- 
 fied consent of that individual should accompany 
 the application. (See sec. 37.) 
 
 (&) The name, residence and occupation of such ap- 
 plicant in full, else it will be returned for comple- 
 tion. The word ' ' clerk ' ' must not be used except 
 to describe a clerk in Holy Orders, the Department 
 of the Honourable the Attorney-General having 
 ruled that the word may be used for this purpose 
 only. The objects of a mining company, to which 
 by its Letters Patent, Part XL of the Act, is made 
 applicable (that is to say, companies " Without 
 Personal Liability "), will be expressed in set 
 terms, a copy of which will be supplied on request. 
 If Part XL of the Companies Act is to be made ap- 
 plicable to a mining company, the applicants must 
 
790 
 
 CHAPTER 178. 
 
 add the necessary words to that effect to the prayer 
 of their petition. Sections 23 and 24 of the On- 
 tario Companies Act provide wide incidental and 
 ancillary powers. These have been drawn without 
 change from Palmer's Precedents, and have been 
 made as wide as possible for the purpose of avoid- 
 ing repeating them in the Letters Patent. Such 
 clauses, therefore, should not be repeated in an ap- 
 plication for Letters Patent, nor should variations 
 of them be inserted. There is, however, no objec- 
 tion to other clauses which are not provided and the 
 insertion of which may be required. 
 
 (c) The names of the applicants, not less than three, 
 who are to be the provisional directors of the com- 
 pany. 
 
 (d) The names of the provisional directors of the 
 company, who must be at least three in number and 
 who must be shareholders, and 
 
 (e) The number of shares for which each applicant 
 has subscribed in the memorandum of agreement 
 and stock boot. 
 
 (/) That no public or private interest will be pre- 
 judicially affected by the grant of incorporation, if 
 such be the fact. 
 
 (g) If the applicants desire the insertion in the Let- 
 ters Patent^ as provided by sec. 5, sub-sec. 5, of the 
 Companies Act, of special clauses, they must be set 
 out in the petition, and in the memorandum of 
 agreement and stock book. 
 
 (h) Signatures should be the ordinary business sig- 
 natures of the applicants, and must be witnessed 
 and proved by persons who are not petitioners, or 
 directly interested in the formation of the company. 
 
 (i) Signatures must be verified by statutory declar- 
 ation or by affidavit, and the witness shall not be 
 one of the petitioners. 
 
 (j) Signatures by attorney must be made under a 
 specific, not general, power, duly executed and veri- 
 fied. 
 
CHAPTER 176. 791 
 
 Special conditions regarding preference stock or 
 otherwise, if any, intended to have a bearing upon 
 the shares of the company, or the manner in which 
 it, or any portion of it, shall or may be subscribed 
 for, must be inserted in the petition and in the mem- 
 orandum of agreement and stock book" as material 
 parts thereof. Letters Patent incorporating clubs 
 or other similar associations will contain the stereo- 
 typed form of prohibitive liquor and anti-gaming 
 clause, a copy of which will be supplied on request by 
 the Department. 
 
 PAET II. 
 
 Name of Cobpobation. 
 
 34. In regard to the use of the word " Limited:" see 
 Howell v. Brethour, 30 0. E. 204. Use of the ab- 
 breviation " Co." and " Ltd." does not affect val- 
 idity of note: Thompson v. Big Cities Realty, 21 0. 
 L. R. 394. "Ltd:" Thomas v. Standard Bank, 1 
 O. W. N. 379, 15 0. W. R. 188. 
 
 37. Similarity of proposed name of company to that of 
 existing company: R. v. Registrar of Companies, 
 1912. 3 K. B. 23. Section considered: Re McGill 
 Chair Co., 26 0. L. R, 254. 
 
 38. — (3) Action by shareholder for account: prepaid 
 shares and gross earnings : Leslie v. Canadian Birk- 
 beck, 4 0. W. N. 1102, 24 0. W. R. 407. 
 
 PART ni. 
 
 Meetings of Company. 
 
 43. Statutory meeting of public companies except those 
 not offering shares, debentures or debenture stock 
 to the public for subscription: see sec. 117. 
 
 44. Posting notice of meeting to registered address of 
 
 deceased member in accordance with company's 
 articles is good although the directors know of the 
 member's death: Allen v. Gold Reefs, 1900, 1 Ch. 
 656, 69 L. J. Ch. 266. A notice which states that in 
 the event of certain specified resolutions not being 
 
792 CHAPTER 1718. 
 
 passed at the meeting called, another meeting will 
 be held immediately afterwards to confirm certain 
 other resolutions which have already been provi- 
 sionally passed is not bad on account of being con- 
 ditional: Tressen v. Henderson. 1899, 1 Ch. 861, 68 
 L. J. ch. 353; see Alexander v. Simpson, 43 Ch. D. 
 139,. 59 L. J. Ch. 137. Two meetings convened by the 
 same notice : in Ee North of England Steamship Co., 
 74 L. J. ch. 404, 1905, 2 Ch. 15. Notice of meetings 
 to shareholders: Normandy v. Ind Coope & Co., 
 1908, 1 Ch. 84. Notice stating that proposed new 
 articles may be inspected at the office of the com- 
 pany's solicitors is sufficient: Young v. South Af- 
 rican, etc., Exploration Syndicate, 1896, 2 Ch. 268, 
 65 L. J. Ch. 638. Sufficiency of notice : see Kaye v. 
 Croyden Tramways, 1898, 1 Ch. 358, 67 L. J. Ch. 222. 
 
 45. — (3) There must be an annual audit resulting in the 
 balance sheet (see sec. 127) as to the accuracy of 
 which the auditors shall speak. The purpose of the 
 balance sheet is to shew that the financial condition of 
 the company is at least as good as stated, not to 
 shew that it is not or may not be better. A balance 
 sheet so worded as to shew that there is an undis- 
 closed asset, the existence of which makes the finan- 
 cial position better than shewn, is not necessarily 
 inconsistent with the Act: Newton v. Birmingham 
 Small Arms Co., 1906, 2 Ch. 378; see also notes to 
 sec. 134. -<\ 
 
 46. Where the directors are personally interested in the 
 adoption of a scheme the notice calling the extra- 
 ordinary general meeting to pass the requisite re- 
 solutions must disclose such interest: Tiessen v. 
 Henderson, 1899, 1 Ch. 861, 68 L. J. Ch. 353. Where 
 a general meeting is called by the only acting direc- 
 tors and one of the objects of the meeting is to con- 
 firm past proceedings, the fact that one or more of 
 the directors have been irregularly appointed will 
 not invalidate a resolution passed at the meeting: 
 Boshock Proprietary Co. v. Fuke, 75 L. J. Ch. 261, 
 1906, 1 Ch. 148; Browne v. La Trinidad, 57 L. J. Ch. 
 292 ; 37 Ch. D. 1 ; British Asbestos Co. v. Boyd, 73 
 L. J. Ch. 31, 1903, 2 Ch. 439; see also Ee State of 
 Wyoming Syndicate, 1901, 2 Ch. 431, 70 L. J. Ch. 
 727. Where a notice convening a general meeting 
 
s 
 
 CHAPTER 17i8. 793 
 
 states that the shareholders will be asked to ratify 
 the election of a director, this is a sufficient notice 
 to bring the question of ratification within the com- 
 petency of the meeting : Irvine v. Bank of Australia, 
 46 L. J.. P. C, 87, 2 App. Gas. 366. The fact that 
 directors have power to fix the time and place of a 
 general meeting gives them no power to postpone 
 a general meeting of shareholders properly called: 
 Smith v. Paringa Mines, 75 L. J. Ch. 702, 1906, 2 Ch. 
 193. Conformity of resolution with notice: see Tor- 
 bock v. Lord Westbury, 71 L. J. Ch. 845, 1902, 2 Ch. 
 871. Sufficiency of notice; setting out business to 
 be transacted : Normandy v. Ind Coope & -Co., 1908, 
 1 Ch. 84. Where it is intended to pass a special 
 resolution, two meetings may be convened by the 
 same notice: Ee North of England Steamship Co., 
 1905, 1 Ch. 609, 2 Ch. 15. It will be noticed that the 
 provisions of the former Act (R. S. O. 191, sees. 56 
 and 57), providing for a quorum, are omitted. If 
 all the shareholders have notice, the business of the 
 company apparently should proceed. 
 
 47. The chairman, by a vote of the majority, can stop 
 the debate after the resolutions have been reason- 
 ably discussed: Wall v. London and Northern, etc., 
 Corporation, 67 L. J. Ch. 596, 1898, 2 Ch. 469. An 
 amendment altering the terms of a resolution can- 
 not be- moved at a meeting called simply for the 
 purpose of confirming or rejecting the resolution: 
 Wali v. London and Northern etc., Corporation, 67 
 L. J. Ch. 596, 1898, 2 Ch. 469. 
 
 48. The adjournment is; the act of the chairman and not 
 that of the meeting. He is not bound to adjourn the 
 meeting even though a majority of those present 
 desire an adjournment: Salisbury Gold Mining Co. 
 v. Hathorn, 66 L. J. P. C. 62, 1897, A. C. 268. 
 
 49. — (1) Under section 51 of the English Companies Act 
 of 1862 the declaration of the chairman is deemed 
 "conclusive evidence," which precludes the Court 
 from enquiring into the question the requisite pro- 
 portion of votes was in fact given : Arnot v. United 
 African Land Co., 70 L. J. Ch, 306, 1901, 1 Ch. 518; 
 see also in Ee Gold Co., 11 Ch. D. 701 ; Re Hadleigh 
 Castle Gold Mining Co., 1900, 2 Ch. 419; Re Harbury 
 
794 CHAPTER 1718. 
 
 Bridge Coal, etc., Co., 11 Ch. D. 109. But the de- 
 claration of the chairman is not conclusive where 
 it is manifest that the statutory majority has not 
 been obtained: in Ee Caratal Mines, 71 L. J. Ch. 883, 
 1902, 2 Ch. 498. In respect of acts within the powers 
 of the company and capable of confirmation by a 
 majority of shareholders the Court will not inter- 
 fere at the instance of individual shareholders: 
 Foss v. Harbottle, 2 Hare 261 ; Mozley v. Alston, 1 
 Ph. 790; Kelly y. Electrical Construction, 10 0. W. 
 E. 704. As to power of general meeting to override 
 directors: see Automatic Self-cleaning Filter v. 
 Cunninghame, 1906, 2 Ch. 34. Eights of minority 
 stockholders: see article 44 C. L. J. 339. 
 
 49. — (2) Under a similar provision a poll was demanded 
 and the chairman directed the poll to be taken by 
 means of voting papers. Held that taking the poll 
 by voting papers was unauthorized and invalid: 
 McMillan v. Le Eoi Mining Co., 75 L. J. Ch. 174, 
 1906, 1 Ch. 331. Poll; allowance of votes by chair- 
 man : see Wall v. London and Northern Assets Cor- 
 poration, No. 2, 68 L. J. 248, 1899, 1 Ch. 550. 
 
 50. On a show of hands each person has one vote: Er- 
 nest v. Loma Gold Mines, 66 L. J. Ch. 17, 1897, 1 Ch. 
 1. Eight of the purchaser of forfeited shares to 
 vote while the calls have not been recovered from 
 the former shareholder: see Eandt Gold Mining 
 Co. v. Wainwright, 1901, 1 Ch. 184. Shareholder 
 partially paid up and not in arrear for calls has the 
 same voice as one fully paid up: Purdom v. Ontario 
 Loan, 22 O. E. 597. Manipulating shares with a 
 view to or in a way which results in an unfair con- 
 trol of voting power is ultra vires of the directorate 
 and not susceptible of being ratified by a majority 
 of the shareholders: Punt v. Lynn, 1903, 2 Ch. 517; 
 Martin v. Gibson, 10 O. W. E. 66, 15 O. L. E. 623, 
 notes to see. 91 (e). Anything that looks to a con- 
 fiscation of corporate rights or privileges by a ma- 
 jority at the expense of a minority is frowned upon 
 by the Court : Griffith v. Paget, 5 Ch. D. 898 ; Meunier 
 v. Hooper, L. E. 9 Ch. 350 * Percival v. Bright, 1902, 
 2 Ch. 425. 
 
CHAPTER 178. 795 
 
 51. A company may legitimately do and pay out of its 
 
 assets for all such acts as are reasonably necessary 
 for procuring its members to express their views 
 on the management of its affairs, e.g., may send out 
 stamped proxy papers: Peel v. London and North 
 Western Ry., 1907, 1 Ch. 5. By-laws regulating the 
 requirements as to proxies are to be made by direc- 
 tors. Shareholders have no power to initiate and 
 pass such a by-law at a general meeting. In the 
 absence of a by-law nothing more is required of a 
 proxy than valid execution by a shareholder: Kelly 
 v. Electrical Construction, 16 0. L. E. 232. Quali- 
 fication of proxy: see Bombay Burmah Trading 
 Corporation v. Shroff, 74 L. J. P. C. 41, 1905, A. C. 
 213. A proxy paper may be filled in after signa- 
 ture by any person authorized to do so : Ernest v. 
 Loma Gold Mines, 66 L. J. Ch. 17, 1897, 1 Ch. 1. The 
 provision here as to proxies must be read with sec. 
 91 (Id), the effect being that each shareholder is 
 entitled to the right to vote by proxy subject to one 
 qualification, namely, compliance with the require- 
 ments of a directors' by-law, which, if not confirmed, 
 ceases to exist: Kelly v. Electrical Construction, 10 
 O. W. B. 704, 16 O. L. E. 232. 
 
 52. Head office of company abroad; meetings of direc- 
 
 tors in England and abroad : De Beers Consolidated 
 v. Howe, 1906, A. C. 455. 
 
 PART IV. 
 
 Shares, Calls. 
 
 54.— (1) " ' Share ' is a term indicating simply a right 
 to participate in the profits of a particular joint 
 stock undertaking:" Per James, L.J. : Morice v. 
 Aylmer, L. R. 10 Ch. 155. Nature of shares in lim- 
 ited company: see Borland's Trustee v. Steel, 70 L. 
 J. Ch. 51, 1901, 1 Ch. 279. A company is not liable 
 in damages for loss sustained by a purchaser for 
 value of a share certificate on which the necessary 
 signatures are forged, although the forgery was 
 committed by the secretary and the certificate handed 
 out to him in the usual form. No estoppel arises from 
 the secretary's action: Ruben v. Great Pingal Con- 
 solidated, 1904, 1 K. B. 650, 2 K. B. 712, 75 L. J. K. B. 
 
ygg CHAPTER 1718. 
 
 843, 1906, A. C. 439. Power of officer to sign shares 
 where power exercised fraudulently for officer's 
 own purposes : Mackenzie v. Monarch Life, 18 O. W. 
 R. 325, 23 0. L. E. 342, 21 0. W. R. 98 (S. C. R.), 45 
 S. C, R. 232. Trustee holding shares in trust for 
 several beneficiaries : right of one beneficiary to ap- 
 portionment : Bechtel v. Zinkann, 16 0. L. R. 72. 
 
 54. — (2) Stock certificate as a document of title to own- 
 ership of shares : Mackenzie v. Monarch life, 23 0. 
 L. R. 342, 45 S. C. R. 232. liability of company to 
 real owner of shares transferred by person without 
 authority : Stuart v. Hamilton Jockey Club, 2 0. W. 
 R. 673, 1402, 18 0. W. R. 493, 19 0. W. R. 780. 
 
 I 
 
 56. Consideration of powers of directors in regard to 
 transfer of paid up shares. Power to regulate does 
 not include power to prohibit: Toronto V. Virgo, 
 1896, A. C. 88; Re Belleville Driving, etc., Associ- 
 ation, 5 0. W. N. 520. The Act nowhere authorizes 
 a company to refuse to transfer on its books fully 
 paid up shares : Re Imperial Starch Co., 10 0. L. 
 R. 22; Re Panton and Cramp Steel Co., 9 0. L. R. 
 3; (unless that power is conferred in the Com- 
 pany's Letters Patent (sec. 58) ) ; see also Re Good 
 and Shantz, 1 0. W. N. 508, 770, 2 0. W. N. 955, 15 
 O. W. R. 534, 16 0. W. R. 30, 18 W. R. 944, 31 0. 
 L. R. 153, 23 0. L. R. 544. Power to make by-laws 
 to regulate transfers : see sec. 91. As to transfer of 
 stock in private companies: see sec. 2 (c). Where 
 under resolution of the directors, there being no by- 
 law, the books were closed for a brief period for the 
 alleged purpose of avoiding confusion in ascertain- 
 ing the shareholders entitled to vote at the annual 
 meeting, a mandamus was granted compelling the 
 company to record a transfer of shares: in Re Pan- 
 ton and the Cramp Steel Co., 9 0. L. R. 3. Paid up 
 shares to be dealt with on open market must be 
 transferred without objection by the company: Re 
 Goldfields and Harris Maxwell Co., 2 0. W. N. 1373, 
 19 0. W. R. 706. A transfer of shares made not in 
 the books of the company as required, but by en- 
 dorsement of assignment on the certificate, although 
 for value, confers on the transferee a mere equitable 
 title and may be cut out by a subsequent transfer 
 to an innocent transferee who is duly registered as 
 
CHAPTER 178. 797 
 
 holder. The company may insist on the production 
 of the certificate, but are not bound to do so and 
 are not thereby estopped: Smith v. Walkerville M. 
 I. Co., 23 A. B. 95. A provision in a certificate of 
 ownership of paid up shares that " the articles of 
 this company are part and parcel of this contract 
 is not sufficient to make applicable to a bona fide 
 purchaser of the shares a by-law of the company 
 giving the company a lien on shares for any ac- 
 counts owing to the company by the shareholder: 
 Re McKain and Canadian Birkbeck Inv. Co., 7 0. 
 L. E. 241. Registration of transferee where under 
 its articles the company has a lien : see Chida Mines 
 v. Anderson, 22 T. !L. B. 27. A person who executes 
 a transfer of shares comes under an implied obli- 
 gation not to hinder the transferee in obtaining the 
 transfer and this applies to a case where the trans- 
 fer is made in blank and filled in later by a bona 
 fide holder for value : Hooper v. Herts, 75 L. J. Ch. 
 253, 1906, 1 Ch. 549. Vendors interfering to pre- 
 vent registration of transfer; resale by purchaser 
 and damages for loss of profit; obligation to see 
 that purchaser registered as owner: see Boultbee 
 v. "Wills, 10 0. W. E. 993. Conflicting equities it 
 shares : Peat v. Clayton, 1906, 1 Ch. 659. The cer- 
 tification by the secretary of the transfer of shares 
 by a person who had no power of dealing with the 
 shares cannot operate as an estoppel against the 
 company from denying the title of the alleged trans- 
 feree or make it liable in damages for refusing to 
 register such transferee as a shareholder: George 
 Whitechurch Lim. v. Cavanagh, 71 L. J. K. B. 400, 
 1902, A. C. 117. Fraudulent transfer: Longman v. 
 Bath Electric Tramways, 74 L. J. Ch. 424, 1905, 1 
 Ch. 646. Forged transfer : Where a corporation re- 
 gisters a forged transfer and is compelled to make 
 good the loss to the true owner, it is entitled to re- 
 cover from the person at whose request the forged 
 transfer was registered: Sheffield Corporation v. 
 Barclay, 74 L. J. K. B. 747, 1905 : A. C. 392. Trans- 
 fer of shares by unauthorized persons; liability of 
 company: Stuart v. Hamilton Jockey Club, 2 0. W. 
 N. 1402, 19 O. "W. E. 780. Negligence of company as 
 proximate cause of loss to transferee under fraudu- 
 lent transfer : Longman v. Bath Electric Trains, 1905, 
 1 Ch. 646. Transfer in blank: Ireland v. Hart, 1902, 1 
 
y98 CHAPTER 1718. 
 
 Ch. 522. Unreasonable delay in registration: In re 
 Sussex Brick Co., 1904, 1 Ch. 598. A company cannot 
 refuse to register a transfer of shares to a bankrupt 
 on the ground that if registered the shares will pass 
 to the trustee in bankruptcy: Sutton v. English, etc., 
 Produce Co., 1902, 2 Ch. 502. Duty of company as 
 regards transfer; notice of prior charge: Bainford 
 v. Keith, 1905, 2 Ch. 147. Materiality of details as 
 number of the share and address of transferor: Ee 
 Letheby, 1904, 1 Ch. 815. Identification of trans- 
 feror of stock; innocent misrepresentation: Bank of 
 England v. Cutler, 1907, 1 K. B. 889. Enforcing 
 transfer of shares: Nelles v. Windsor Essex and 
 Lake Shore By., 16 O. L. B. 359. Charging orders 
 on stocks: see E. S. O. 1897, ch. 324, sees. 21-23; see 
 
 now B. S. O. 1914, ch. 56, sees. 140-142. 
 
 i 
 
 57. "Where directors' shares were transferred to irre- 
 sponsible persons, the directors were held liable for 
 breach of trust in not exercising their powers in the 
 best interests of the company, and were placed on 
 the list of contributories : Be Peterborough Cold 
 Storage Co., 9 O. "W. B. 850, 14 0. L. E. 475; see 
 Bennet's Case, 5 De G, M. & a. 284. Transfer of 
 shares to escape liability: Ee Discoverers' Finance 
 Co., 1910, 1 Ch. 207, 312. See also Boyle v. Eoths- 
 child, 10 0. W. E. 696. Begistration of transfer of 
 shares to person indebted to company: Be Poison, 
 3 0. W. N. 1269. 
 
 57. — (1) A statement in a share certificate that the 
 shares are fully paid up will not estop the liquida- 
 tor in winding up : in Ee African Gold Concessions, 
 68 L. J. Ch. 215, 1899, 1 Ch. 414. See Ee Peterborough 
 Cold-Storage Co., 9 0. W. E. 850, 14 0. L. B. 475. 
 
 57. — (2) Device of a company to relieve shareholder 
 from his liability to pay the full amount due on his 
 shares: Ee McGill Co., Munro's Case, 3 0. W. N. 
 1074, 21 0. W. E. 921. 
 
 57.— (4) The provision of 7 Edw. VII., ch. 34, sec. 54, 
 that stock on which there were unpaid calls could 
 not be transferred was imperative and could not 
 be waived by the company: Gowganda Mines v. 
 Smith, 44 S. C. B. 621. 
 
CHAPTER ITS. 799 
 
 60. An assignee under an assignment for benefit of credi- 
 tors which excepts shares in companies not fully paid 
 up, and which declares the assignor his trustee of the 
 shares to transfer them as he should direct, is not 
 entitled to call on the company to account to him for 
 the shares or any dealings therewith : Armstrong v. 
 Merchants Mantle Mfg. Co., 32 0. R. 387. A bona fide 
 assignment or pledge for value of shares is valid as 
 between assignor and assignee, notwithstanding that 
 no entry of the assignment is made on the books of 
 the company. The rights of a bona fide assignee 
 cannot be cut out by the seizure and sale of the 
 shares under execution against the assignor after 
 assignment : Morton v. Cowan, 25 0. R. 529 ; see R. 
 S. 0. 1914, ch. 80, sees. 12, 19. 
 
 62. — (1) The signatories to the memorandum of associa- 
 tion do not become debtors to the full amount of 
 their shares. They are only liable as other mem- 
 bers for calls when made : Alexander v. Automatic 
 Telephone Co., 1899, 2 Ch. 302; see notes to sec. 
 5 (3) ante. This calling of instalments must be 
 done bv a properly constituted board of directors: 
 Twin City Oil Co. v. Christie, 18 0. L. R. 324. 13 
 O. W. R. 756. When a call is made it is the direc- 
 tors duty to take all reasonable means of enforcing 
 payment: Re Lake Ontario Navigation Co., Hutch- 
 enson's Case, 13 0. W. R. 1037. A promissory 
 note given for a subscription to stock may be 
 negotiated. If the contract is not completed and 
 the stock not allotted,, this will not affect the note 
 in the hands of holders in due course for value.: 
 Standard Bank v. Stephens, 11 0. W. R. 582. 
 Assignment from company of amount due for 
 shares — action: Stephens v. Riddell, 1 0- W. N. 
 993, 16 O. W. R. 277, 21 0. L. R. 484. Action for 
 calls on subscription for shares: Misrepresenta- 
 tion : Boeckh v. Gowganda Queen, 24 0. L. R. 298, 
 46 S. C. R. 645. 
 
 62. — (3) Stock once allotted can not be surrendered. 
 The only way the directors can regain control is 
 by forfeiture: Gowganda Mines v. Smith, 44 S. C. 
 R. 621. "Where no time is limited in the special 
 act, letters patent or by-law making a call, the call 
 
800 
 
 CHAPTER 1718. 
 
 is invalid and an attempted forfeiture of the stock 
 ineffectual: Armstrong v. Merchants Mantle Mfg. 
 Co., 32 0. E. 387. The power given directors as 
 to forfeiture of shares for non-payment of calls, is 
 intended to be exercised, only when the circum- 
 stances of the shareholders render it expedient in 
 the interests of the company and cannot he em- 
 ployed for the benefit of the shareholders: Com- 
 mon v. McArthur, 29 S. C. E. 239. A company can, 
 in re-allotting forfeited shares, give credit for 
 money already paid in respect of the shares. Such 
 a transaction is not an issue of shares and is not 
 contrary to the principle that a company cannot 
 issue shares at a discount: Morrison v. Trustees, 
 etc., Corporation, 68 L. J. Ch. 11. A surrender of 
 shares which has the effect of reducing capital can 
 only be supported in circumstances which would 
 justify, forfeiture, and make it in fact, a form of 
 forfeiture : Trevor v. Whitworth, 12 App. Cas. 499 ; 
 Ooregum Gold Mining Co. v. Boper, 1892, A. C. 
 125; British and American Trustee and Finance 
 Corporation v. Couper, 1894, A. C. 399. A sur- 
 render of partly paid up shares to the company 
 although voluntary and for the benefit of the com- 
 pany, if it involves the release of the shareholder's 
 liability, constitutes a purchase by the company of 
 those shares and is ultra vires: Trevor v. Whit- 
 worth, 12 App. Cas. 409; Bellerby v. Eowland, 
 1902, 2 Ch. 14. Disposal of forfeited shares. Liabi- 
 lity of purchaser for prior and subsequent calls: 
 New Balkis Eersteling v. Eandt, 73 L. J., K. B. 
 384, 1904, A. C. 165. The directors have no power 
 to rescind the forfeiture adversely to a shareholder 
 whose shares have been forfeited, so as to reinstate 
 him with a liability of which he had been relieved 
 by the forfeiture: In re Exchange Trust, Lark- 
 worth's Case, 1903, 1 Ch. 71i, 73 L. J. Ch. 387. 
 Sale of forfeited shares. Liability of purchaser: 
 In re Eandt Gold Mining Co., 73 L. J. Ch. 598, 
 1904, 2 Ch. 486. Sale by company of forfeited 
 shares: the purchasers must be allowed the bene- 
 fit of payment made by the forfeiting holders in 
 respect of shares: Ee Eandt Gold Mining Co., 
 1904, 2 Ch. 468. Forfeiture of partiy paid shares : 
 New Balkis v. Eandt Gold Mining Co., 1904, A. C. 
 
CHAPTER 178. 801 
 
 165; Re Exchange Trust, 1903, 1 Ch. 711. For- 
 feiture for non-payment of calls: Jones v. N. 
 Vancouver Land Co., 1910, A. C. 317. Promissory 
 note: Freeman v. Canadian Guardian Life Ins. 
 Co., 12 0. W. R. 781. 
 
 63. Sees. 63-71 were new in the Act of 1907, and were 
 taken substantially from the English Act of 1867, 
 sees. 27-40. 
 
 72. Where transferee of shares held " in trust " is put 
 on enquiry : Bank of Montreal v.* Sweeny, 12 S. C. 
 R. 661, 12 App. Cas. 617; see also Simpson v. 
 Molsons Bank, 1895, A. C. 270. 
 
 74. — (1) Shares in a joint stock company may be paid 
 in money or moneys" worth, and if paid for by a trans- 
 fer of property, must be treated as fully paid. Fidu- 
 ciary relation of promoters to company is considered 
 and secret profits taken in the shape of fully paid up 
 shares will cause them to be treated as unpaid: Re 
 Hess Mfg. Co., 23 S. C. R. 644. Where a muni- 
 cipal bonus was applied to issue honus shares as 
 paid up, the shareholders accepting such stock 
 bona fide were yet placed on list of contributories : 
 Re Cornwall Furniture, 20 O. L. R. 521, 14 O. W. 
 R. 352. Treasury stock issued to existing share- 
 holders as paid up: Re Clinton Thresher Co., 20 
 O. L. R. 555. Application and appropriation of 
 payment by company: Neelon v. Thorold, 22 S. C. 
 R. 390. Where a company is formed for the pur- 
 pose of trading in a foreign country, a question 
 may arise out of the implied power under foreign 
 law to pledge the personal credit of shareholders. 
 As to liability, in such case, of holders of fully 
 paid up shares : see Resdon Iron and Locomotive 
 Works v. Furness, 1906, 1 K. B. 49. This section 
 (like R. S. C. 144, sec. 51), provides that where a 
 person is once in a position as a member of a com- 
 pany there is a statutory liability to contribute the 
 amount unpaid on his shares: Re Lake Ontario 
 Navigation Co., 13 O. W. R. 1032. Shares issued 
 for value under agreement treated as paid up 
 shares: Jones v. Miller, 24 O. R. 268. Shares 
 issued as paid up in consideration for services to 
 
 S.A. — 51 
 
802 
 
 CHAPTER 178. 
 
 be rendered must be treated as unpaid: Union 
 Bank v. Morris, 27 A. E. 396; see cases Dig. Ont. 
 Case Law, col. 1065-1075, Shares attempted to 
 be issued at a discount: see sec. 100 (2). 
 
 The statutory provision for making a judgment 
 against a company available against, a holder off 
 unpaid shares, is in lieu of the common law practice 
 by way of sci. fa: Cross v. Law, 6 H. & W. 217, 
 223; Brice v. Munro, 12 A. R. 453; Gwatkin v. 
 Harrison, 36 U. C. R. 478; Page v. Austin, 26 U. 
 C. C. P. 110'; Moore v. Kirkland, 5 U. C. C. P. 
 452; Jenkins v. Wilcock, 11 U. C. C. P. 505; Shaver 
 v. Cotton, 23 A. E. 426; Grills v. Parah, 1 O. W. 
 N. 978, 21 O. L. R. 457. Section considered: Re 
 McGill Chair Co., 26 O. L. R. 254. After a winding- 
 up order has been made, a judgment creditor of a 
 company cannot bring an action against a con- 
 tributory for payment of the amount unpaid on his 
 shares: Shaver v. Cotton, 27 O. R. 131, 23 A. R. 
 426. Action against shareholder: insufficiency of 
 return of nulla bona: Grills v. Farah, 21 O. L. R. 
 457, 1 0. W. N. 978, 16 0. W. R. 285. 
 
 74. — (2) The provision as to set off has reference only 
 to an action against a shareholder in the nature of 
 a sci. fa., by a creditor of the company, and its 
 provisions do not extend the right of set off to pro- 
 ceedings against shareholders under this Act: Re 
 "Wiarton Beet Sugar Co., 10 O. L. R. 219; see The 
 Maritime Bank v. Troop, 16 S> C. E. 456. Who 
 are within the provision as to set off: history, of 
 section and its provisions considered: Grills v. 
 Farah, 1 0. W. N. 978, 21 O. L. R, 457. Counter- 
 claim against company, in sci. fa. action : lb. Claim 
 sounding in damages : lb. Set off in respect of un- 
 paid shares : Re Law Car and General Ins. Co., 1912, 
 1 Ch. 405. Payment by set off: Ee C. B. C. 
 Corset Co., 12 0. W. E. 185. 
 
 77. A mortgagee of stock, in cases outside of the real 
 property statutes, may sell the same at any time 
 after the day originally fixed for payment of the 
 loan, or if no day is fixed, after reasonable notice 
 and default after such notice: De Verges v. 
 Sanderman, 71 L. J. Ch. 328, 1902, 1 Ch..579,; see 
 
CHAPTER 178. 803 
 
 Toronto General Trusts Co. v. Central Ontario 
 Eailway, 7 0. (L. E. 660, 10 0. L. E. 347. The 
 section has reference to the stock of a shareholder 
 only. A company can not allot their own stock as 
 collateral security for their own debt : Ee Perrin 
 Plow Co., Allan's Case, 11 O. W. E. 186, 12 0. W. 
 E. 387. Liability for unpaid stock of person hold- 
 ing it as collateral security: Ee Empire Accident 
 Co., 4 0. W. N. 926. 
 
 PAET V. 
 
 Preference and Debenture Stock, Debentures and 
 
 Mortgages. 
 
 78. — (la) Where money is borrowed by a company 
 within the limits of its borrowing powers there is 
 no obligation on the lender to enquire whether the 
 purpose of the loan is or is not within the powers 
 of the company: In re Payne, Young v. Payne, 
 1904, 2 Ch. 608. Knowledge of a director of a lend- 
 ing company that a borrowing company proposes 
 to use money borrowed on debenture for purposes 
 improper and ultra vires, will not be imputed to 
 the lending company so as to avoid the deben- 
 ture: In re Payne, Young v. Payne, 1904, 2 
 Ch. 608. Where a company is sued on a contract 
 and admit the claim, but set up that the directors 
 have exceeded their borrowing powers and that 
 when the goods were purchased the company's 
 indebtedness was such that the directors were 
 personally liable, <a motion for summary judgment 
 was dismissed: Canadian General Electric v. 
 Tagona Water and Light, 6 0. L. E. 641. Notice 
 of irregularity: ultra vires borrowing: when im- 
 puted to the leading company when the two com- 
 panies have an officer in common: Ee Hampshire 
 Land Co., 1896, 2 Ch. 743. Borrowing powers : Ee 
 Johnston Foreign Patents, 1904, 2 Ch. 234. A 
 company may mortgage its real and personal pro- 
 perty including any thereafter acquired: assign- 
 ment of future choses in action, how far voidable: 
 Ee Perth Flax and Cordage Co., 13 0. W. E. 1140. 
 Mortgage to secure liability of company: Ham- 
 mond v. Bank of Ottawa, 15 0. W. E. 536, 17 0. 
 
gQ4 CHAPTER 1718. 
 
 W. E. 121, 1 0. W. N. 519, 2 0. W. N. 99, 22 0. L. 
 E. 73. Sufficiency of by-law authorizing hypotheca- 
 tion of company's securities to secure present and 
 future indebtedness: Standard Bank v. Stephens, 
 16 0. L. E. 115, 11 0. W. E. 582. By-law under 
 this section and under sec. 82: see Hammond v. 
 Bank of Ottawa, 22 O. L. E. 73. 
 
 78. — (lb) Debentures and company's power to deal 
 with subsequently acquired property: General and 
 specific debentures: Priorities: Be Stephenson 
 Co. v. The Company, 1913, 2 Ch. 201. Debentures, 
 floating charges and notice to creditors: see 45 C. 
 L. J. 25, 145, 220. "What modification of trust deed 
 securing debentures a majority of a company can 
 make: see Ee New York Taxicab Co., 1913, 1 Ch. 
 1. Charge on the general property of the company: 
 " Floating security:" Government Stock v. Manila 
 By., 1897, A. C, at p. 86. No action will lie for 
 specific performance of contract to lend money on 
 debentures : South African Territories v. "Walling- 
 ton 1898, A. C. 309. The expression "sinking 
 fund," does not necessarily connote accumulation 
 at compound interest, or any mode of application 
 equivalent thereto. The word "redeemable" as 
 applied to debentures prima facie imports an option 
 and not an obligation to redeem: Ee Chicago and 
 N. W. Granaries Co., 1898, 1 Ch. 263. A charge 
 on " all property to which the company now is, 
 or may hereafter become, entitled and all estate, 
 right, title, etc., to the said premises," does not 
 constitute a charge on the uncalled capital of the 
 Company: Be Eussian Spratts Patent, 1898, 2 
 Ch. 149. Debenture amounting to fraudulent pre- 
 ference : Ee Jackson and Bassf ord, 1906, 2 Ch. 467. 
 The effect of a company purchasing its own deben- 
 tures is to extinguish the debt: In re Eoutledge, 2 
 Ch. 474. Where a company was served with a 
 garnishee order absolute, and afterwards for good 
 consideration issued a debenture to a person having 
 notice of the garnishee order, it was held that the 
 garnishee order created no charge on the property, 
 and the debenture holder was entitled to priority 
 over an execution issued under the garnishee order : 
 Glisse v. Taylor, 1905, 2 K. B: 658. Mutual rights of 
 debenture holder and attaching creditor in respect of 
 
CHAPTER 178. 805 
 
 money due to company : Cairhey v. Back, 1906, 2 K. 
 B. 746. A bona fide holder of a debenture regular on 
 the face of it and issued to him for value and without 
 notice of informality, has priority to an execution 
 creditor, though the debenture is in fact informal : 
 Duck v. Tower Galvanising Go., 1901, 2 K. B. 314. 
 See as to execution creditors who take subject to 
 all equities of debenture holders : Re Standard Mfg. 
 Co., 1891, 1 Ch. 627, 641; Re London Pressed Hinge 
 Co., 1905, 1 Ch. 576. Issue of debentures jointly and 
 severally by several companies may be ultra vires, 
 but the debentures will form a valid charge against 
 each company to the extent to which the proceeds 
 came to its coffers: In re Johnston, 1904, 2 Ch. 234. 
 Where there is power for debenture holder to appoint 
 a receiver and manager, such receiver cannot annul 
 the contracts of the company, and the servants of the 
 company do not ipso facto become his servants on his 
 appointment: Re Marriage Neave & Co., 1896, 2 
 Ch. 663. Debenture holder's action: carrying on 
 the business: Re British Power Traction, 1907, 1 
 Ch. 528 ; and see Robinson Printing Co. v. ' ' Chic, ' ' 
 1905, 2 Ch. 123, notes to sec. 82 infra. Deposit of 
 debentures with bankers as collateral security: pay- 
 ment off of amount secured and further advance on 
 same security: see Re Russian Petroleum, 1907, 2 
 Ch. 540. A foreclosure order will not be made in 
 an ordinary debenture holder's action without the 
 concurrence of the holders of all the debentures: 
 Re Continental Oxygen Co. r 1897, 1 Ch. 511. A 
 plaintiff suing " on behalf of himself and all the 
 other debenture holders," who has had his claims 
 satisfied may discontinue the action, though this 
 cannot be done in a similar manner in a creditor's 
 administration action: In re Alpha Co., 1903, 1 
 Ch. 203. Costs in debenture actions : see Re New 
 Zealand Midland Ry., 1901, 2 Ch. 357; Mort- 
 gage Insurance Co. v. Canadian Agricultural, 
 etc., Co., 1901, 2 Ch. 377. Receivers were ap- 
 pointed in action by debenture holders of a com- 
 pany, and a contract made by the company to sell 
 goods to P. was assigned to a bank. The contract 
 was not fully completed. Held that as against the 
 bank, P. could set off damages for breach of con- 
 tract by the company: Parsons v. Sovereign 
 Bank, 1913, A. C. 160. A debenture by way of bill 
 
g06 CHAPTER 1718. 
 
 of sale giving a floating charge over the assets of 
 a company, is not within the provisions of the Bills 
 of Sale and Chattel Mortgage Act: Johnston v. 
 Wade, 11 0. W. E. 598, 12 O. W. E. 951, 17 0. L. 
 E. 372. Debenture : note on Johnston v. Wade, 17 
 0. L. E. 372 ; see 45 0. L. J. 25. Debentures and 
 chattel mortgages and what transactions are within 
 the Chattel Mortgage Act: see E. S. 0. 1914, ch. 
 135, sec. 24 note, and see infra sec. 82 notes. 
 
 78. — (lc) Irregularity in issue of bonds. Eights of 
 pledgee without notice: Johnson v. Wade, 11 0. 
 W. E. 598, 12 O. W. E. 951, 17 0. L. E. 372. Pay- 
 ment of commission to secretary of company on 
 sale of bonds. Eecovery of money paid through 
 ultra vires act of directors: Sydney Land Co. v. 
 Eoundtree, 39 S. C. E. 614. 
 
 78. — (2a) Directors with the approbation of general 
 meeting, reissued certain shares purporting to have 
 preferential interest. The shares were issued t to 
 A. and sold by him to B. as preference shares. The 
 directors, however, had no power to issue such pre- 
 ference shares. B. was, nevertheless, liable as a 
 contributory: Ex parte Worth, 4 Drew 529, 28 L. 
 J. Ch. 589. Preference stock cannot be created by 
 a resolution. The statute requires a by-law: Manes 
 Tailoring Co. v. Willson, 9 O. W. E. 209, 14 0. L. 
 E. 89. 
 
 78. — (26) Alteration of articles by imposing lien on 
 fully paid shares must be bona fide and hot to 
 defeat the rights of a particular shareholder: Allen 
 v. Gold Eeef s, 1900, 1 Ch. 656. 
 
 78. — (3) Where a loan was made to a company, 
 ostensibly by the general manager, but really by a 
 third person, payments of interest made secretly by 
 the manager to the third person sufficed to estop the 
 company and prevent the statute from running: 
 Nickle v. Kingston and Pembroke Ey., 12 0. L. E. 
 349, 8 0. W. E. 158, 6 0. W. E. 51. See as to signature 
 of promissory notes, etc, sec. 91 (e) notes, post. 
 
 79. "Two thirds," where there has been no default 
 after a call, is to be computed on the face value of 
 
CHAPTER 178. 807 
 
 the number of shares held, not upon the amount 
 paid upon such shares : Purdom v. Ontario Loan 
 and Debenture, 22 0. R. 597. Until the section is 
 complied with there is no valid creation of prefer- 
 ence stock, and a subscriber for preference shares 
 cannot be held as a contributory because the com- 
 pany is not in a position to give him that for which 
 he has applied: Re Packenham Pork Packing Co., 
 12 0.L.R. 100. 
 
 80. Preference shares: Dividend "preferential" and 
 "cumulative preferential:" see Foster v. Coles, 
 22 T. L. R. 555 ; Staples v. Eastman Photographic 
 Co., 1896, 2 Ch. 303. The necessity for a dividend 
 as a condition precedent to an action for the 
 recovery of such dividend applies to preference as 
 well as ordinary shares. A preference dividend 
 does not partake of the nature of interest: Bond 
 v. Barrow Haemitite Steel Co., 1902, 1 Ch. 353. 
 The claims of shareholders in respect of unclaimed 
 dividends are liable to become barred by the 
 Statute of Limitations : In re Severn and Wye & 
 C. Ry., 1896, 1 Ch. 559. Under the provisions of 
 this section special provisions may be made for 
 preferred or deferred shares to exclude the holders 
 from ahy control while their dividends are paid. 
 As to different classes of shareholders : see Hemans 
 v. Hotchkiss Ordinance Co., 68 L. J. Ch. 99, 1899, 
 1 Ch. 115. Where preference shares are given a 
 fixed preferential dividend at a fixed rate, this im- 
 pliedly negatives a right to any further dividend: 
 Will v. United Lankat Plantations, 1912, 2 Ch. 571. 
 There is no implied condition of equality as to 
 shareholders. A company can alter its articles so 
 as to provide for preference shares: Andrews v. 
 Gas Meter Co., 1897, 1 Ch. 361; see British, etc., 
 Corporation v. Couper, 6 R. 146 ; Re South Durham 
 Brewery Co., 31 Ch/D. 261; Mcllquham v. Taylor, 
 1895, 1 Ch. 53, 71 L. T. 679. 
 
 82. The power to mortgage is not restricted to the 
 existing property of ^e company. The company is 
 invested with as large powers to mortgage its ordin- 
 ary after acquired property 1 as belong to a natural 
 person: Kirkpatrick v. Cornwall Electric Ry., 2 O. 
 L. R. 113. Power of trustees for bondholders to 
 
808 
 
 CHAPTER 176. 
 
 object to transfer of debts and pledge of materials 
 to a bank : see Trusts and Guarantee v. Abbott Mit- 
 chell, etc. Co. 11 0. L. E. 403. Powers of directors 
 to transfer debts to a bank and pledge material 
 manufactured and unmanufactured when this is 
 necessary to carry on the company's business with- 
 out the two-thirds vote, and notwithstanding a bond 
 mortgage : see Trusts and Guarantee v. The Abbott 
 Mitchell Iron, etc. Co., 11 0. L. E. 403. Holders of 
 debenture stock secured by trust deed are not credi- 
 tors entitled to present a winding-up petition: see 
 Ee Dunderland Iron Ore Co., 1909, 1 Ch. 446. Powers 
 under debenture trust deeds: Be Bentley's York- 
 shire Breweries, 1909, 2 Ch. 609. Bepresentative ac- 
 tion to enforce debenture trust deed : Calgary and 
 Medicine Hat Land Co., 78 L. J. Ch. 97. " Default 
 in payment:" Be Escalera Silver Lead Mining Co., 
 25 T. L. B. 87. An execution creditor takes subject 
 to all equities of debenture holders: Be Standard 
 Manufacturing Co., 1891, 1 Ch. 627, 641; Ee London 
 Pressed Hinge Co., 1905, 1 Ch. 576. A receiver ap- 
 pointed by debenture holders to carry on the busi- 
 ness, may for such purposes create a valid charge on 
 the property prior to the debenture holders and also 
 pledge the personal credit of the debenture holders : 
 Bobinson Printing Co. v. " Chic," 1905, 2 Ch. 123. 
 Issue of debentures by companies "jointly and sev- 
 erally:" Ee Johnston Foreign Patents, 1904, 2 Ch. 
 234. It was held sufficient if directors acted 
 under the powers of this section, notwithstand- 
 ing a recital referring to sec. 78, and failure to 
 refer to this section: Hammond v. Bank of 
 Ottawa, 2 O. W. N. 99, 17 O. W. E. 121, 22 O. L. B. 
 73. Begistration of mortgage over chattels to se- 
 cure bonds and registration of a floating debenture : 
 Johnston v. Wade, 17 O. L. B. 372 ; National Trusts 
 v. Trusts & Guarantee Co., 3 O. W. N. 1093, 21 0. W. 
 E. 933, 26 0. L. E. 279. Publicity by registration of 
 mortgages securing debentures : see article 45, C. L. 
 T. 145, at p. 155, 220; Johnston v. Wade, 11 0. W. E. 
 598, 12 0. W. E. 951, 17 0. L. B. 372; Ee Eenshaw & 
 Co., (1908), W. N. 210. As to registration of mort- 
 gage or conveyance given to ' ' secure ' ' any bonds or 
 debentures : see B. S. 0. 1914, ch. 135, sec. 24 and 
 notes. See also notes to sec. 78 ante. 
 
CHAPTER 1T8. g09 
 
 PART VI. 
 
 DlBECTOES AND THEIE PoWEES. 
 
 fcS. A provisional director is a director : Perrins Ltd. v. 
 Algoma Tube Works, 8 0. L. R. 634. Query whether 
 provisional directors are directors for all the puf- 
 poses of the company: Johnson v. Wade, 11 0. 
 W. R. 598, 12 0. W. R. 951, at p. 952, 17 0. L. R. 
 372. Powers of provisional directors: see article 
 45 C. L. J. 145, 220, 338; Johnston v. Wade, 17 0. L. 
 R. 372 ; Manes Tailoring Co. v. Wilson, 14 0. L. R. 
 89 ; Monarch Life v. Brophy, 14 O. L. R. 1; Selkirk v. 
 Windsor, Essex, etc., Ry., 1 0. W. N. 355, 22 0. L. R. 
 250. Company with unused powers: Campbell v. 
 Taxicabs Verrals, 23 0. W. R. 6, 4 0. W. N. 28, 27 0. 
 L. R. 141. 
 
 84. A director is bound to give attention and exercise 
 his judgment. In the absence of grounds for sus- 
 picion, he is entitled to rely on the officials of the 
 company and is not bound to examine entries in 
 the company's books: Dovey v. Cory, 1901, A. C. 
 477. Directors are trustees not only for those who 
 are members at the time, but for all who may come 
 in afterwards: Bennett v. Havelock Electric, 21 
 0. L. R. 120, 1 0. W. N. 751. Fiduciary relation of 
 directors: Stratford Fuel v. Mooney, 16 0. W. R. 
 246. Directors are in the position of managing 
 partners and their mandate is the mandate of the 
 whole body of shareholders, not of the majority 
 only. It is not competent for a simple majority of 
 shareholders, by resolution at an ordinary general 
 meeting, to alter the mandate and override the dis- 
 cretion of the directors: Automatic Self Cleaning 
 Filter v. Cunninghame, 1906, 2 Ch. 34. A director's 
 liability is not governed by the strict rules applied 
 in the ease of trustees, but he must shew reason- 
 able diligence: Marzetti's Case, 42 iL. T. 206. 
 When directors have acted ultra vires, it is no 
 defence that the acts in question were done for the 
 benefit of the company, if they knew or ought to 
 have, known that such acts were ultra vires: 
 London Trust Co. v. MacKenzie, 62 L. J. Ch. 870. 
 But see Kingston Cotton Mill Co, (No. 2), 1896, 1 
 
810 
 
 CHAPTER 1718. 
 
 Ch, 331. A director is not liable for error of judg- 
 ment : Overend Gurney Co., L. E. 4 Ch. 701. And to 
 make him liable for misrepresentation it must be wil- 
 ful and fraudulent : Eaglesfield v. Londonderry, 4 Ch. 
 
 D. 693. Duties and responsibilities of directors : Twy- 
 cross v. Grant, 2 C. P. D. 469 ; Trechmann v. Cal- 
 thorpe, 1904, 2 Ch. 631, 1906, A. C. 24. Considera- 
 tion of director's duties: see Parker and Clark, p. 
 197; see also Ee Lake Ontario Navigation Co., 
 Hutchinson's Case, 13 0. W. E. 1037. Director's 
 liability where power of company exceeded: see 
 Canadian General Electric v. Tagona Water and 
 Light Co., 6 O. L. E. 641. 
 
 Where there were only sufficient shareholders to 
 form a company and all were entitled to be direc- 
 tors, one of the shareholders dying, bequeathed his 
 shares. Held that there did not need to be an elec- 
 tion to constitute the legatee a director: Kiely v. 
 Kiely, 3 A. E. 438. Where the board is reduced to 
 two by reason of vacancies, and the two contract 
 a loan, their act will be binding on the company not- 
 withstanding the reduction : Ee Scottish Petroleum 
 Co., 23 Ch. D. 413 ; Ee Bank of Syria, 1901, 1 Ch. 
 115. Power of reduced directorate: In re Scottish 
 Petroleum Co., 23 Ch. D. 413 ; In re Bank of Syria, 
 1900, 2 Ch. 272; Ee Manes Tailoring Co., 9 O. W. 
 
 E. 209, 14 O. L. E. 89. Irregularity in constitution 
 of board of directors as to members: Twin City 
 Oil Co. v. Christie, 18 O. L. E. 324, 13 O. W. E. 
 756. 
 
 Authority to use the name of a company in an 
 action can only be given by resolution of the board 
 of directors or by a properly convened shareholders' 
 meeting: La Compagnie de Mayville v. Whitley, 
 1896, 1 Ch. 788. A minority of the shareholders 
 cannot have or give such authority: Eitchie v. 
 Vermillion Mining Co., 1 0. L. E. 654, 4 0. L. E. 
 588. Who can bring action in name of company: 
 Majority of directors or majority of votes: Mar- 
 shall's Valve Gear Co. v. Manning, 1909, 1 Ch. 267. 
 Eival boards of directors : Boyle v. Eothschild, 11 
 0. W. E. 963, 12 0. W. E. 168, 13 0. W. E. 800. 
 Directors are not bound to give notice beforehand 
 of extraordinary business to be transacted at a 
 
CHAPTER 178. 811 
 
 board meeting: La Compagnie de Mayville v. 
 Whitley, 1896, 1 Ch. 788. May a company be a 
 director of another company? ' Ee Buluwayo Mar- 
 ket, 1907, 2 Ch. 458. Powers of directors of reli- 
 gious corporation under this Act: Gold v. Maid- 
 aver, 4 0. W. N. 106. Where the contract is one 
 that the directors can lawfully enter into, the fact 
 that it is extensive and important will not alter their 
 power to bind the company: National Malleable 
 Castings Co. v. Smith's Falls M. Castings Co., 9 0. 
 W. E. 165. An allotment of shares to a director 
 though a questionable act may be ratified. It is no 
 part of a director's duty or obligation to pledge 
 their own credit for the benefit of the company: 
 Christopher v. Noxon, 4 0. E. 672. Consideration 
 of director's powers: Webster v. Jury Copper 
 Mines, 12 0. W. E. 632. Foley v. Barber, 1 0. W. N. 
 41, 14 0. W. E. 669. Duties and liabilities of direc- 
 tors : see also sec. 95 notes. As to internal manage- 
 ment: see sec. 91 notes. Director's secret profits: 
 sec. 93 notes. 
 
 85. A director may be appointed in an informal manner, 
 provided the requirements of the articles are com- 
 plied with. He need not be appointed at the com- 
 pany's offices: Smith v. Paringa Mines 1906, 2 Ch. 
 193. The by-laws of a company provided for seven 
 directors, four to form a quorum. Four directors 
 ceased to be qualified. The remaining directors had 
 not the power to fill the vacancies in spite of the 
 ^provisions of the Act. The vacancies could only be 
 filled by a meeting of shareholders duly called for 
 the purpose : Sovereen Mitt, etc., Co. v. Whitside, 
 12 0. L. E. 638, 8 0. W. E. 279. 
 
 87. Although, since Pulbrook v. Eichmond Consolidated 
 Mining Co., 9 Ch. D. 610, beneficial ownership is 
 not essential to holding shares " in his own right " 
 for the purposes of qualification, yet the shareholder 
 must hold it in such a way that the company may 
 safely deal with the shares as his: Bainbridge v. 
 Smith, 41 Ch. D. 462. Accordingly a director does 
 not hold shares in his 6wn right where the. trustee 
 in his bankruptcy has given notice claiming the 
 shares: Sutton v. English & Colonial Produce Co., 
 1902, 2 Ch. 502. " In his own right:" a liquidator 
 
gl2 CHAPTER 178. 
 
 of another company holding shares as such cannot 
 qualify as a director in respect of them: Boschoek 
 Proprietary Co; v. Fuke, 1906, 1 Ch. 148. "Ab- 
 solutely in his own right:" see Richie v. Vermilion 
 Mining Co., 4 0. L. R. 588. "He shall thereupon 
 cease." This provision operates automatically and 
 ipso facto as soon as the event occurs : in Re Bodega 
 Co., 1904, 1 Ch. 276. Director's qualification shares: 
 where directors of a company become directors of 
 another company for the benefit of their own com- 
 pany: see Re Dover Coalfield Extension, 1907, 2 
 Ch. 76. Allotment of shares by unqualified direc- 
 tors: see sec. 112. 
 
 88. — (a) The Court has jurisdiction to set aside an illegal 
 election: Davidson v. Grange, 4 Gr. 377; but will 
 not interfere after a lapse of time where the direc- 
 tors have been acting meanwhile: Re Moore and 
 Port Bruce, 14 TJ. C. R. 365. Such an action may 
 be brought by some shareholders on behalf of all 
 and need not be in the name of the company : David- 
 son v. Grange, 4 Gr. 377. Form of action considered: 
 Re Moore and Port Bruce, 14 U. C. R. 365. An elec- 
 tion of officers obtained by trick or artifice cannot- 
 be considered a fair election. "When shares have 
 been purchased and paid for, the fact that this was 
 done with a view to influencing the election is no 
 objection: Toronto Brewing and Malting Co. v. 
 Blake, 2 0. R. 175. A by-law passed by directors 
 and confirmed by the shareholders providing that 
 directors shall hold office for one year can only be 
 repealed at the next general meeting. A by-law 
 passed during the director's year of office providing 
 that the appointment should be terminable by re- 
 solution is invalid: Stephenson v. Vokes, 27 0. R- 
 691. 
 
 88. — (c) " From time to time:" Steindler v. McLaren, 
 14 0. W. R. 648. " Managing director " not an em- 
 ployee : Normandy v. Ind Coope & Co., 1908, 1. Ch. 
 84. Resignation of managing director and with- 
 drawal of resignation: Glossop v. Glossop, 1907, 2 
 Ch. 370. See Sovereen Mitt, etc., Co. v. Whitside, 
 12 0. L. R. 638, 8 0. W. R. 279, note to sec. 85 ante. 
 See also as to managing director and manager, sec. 
 91 (e) post, notes. 
 
CHAPTER 178. 813 
 
 90. A resolution purporting to vary the number of direc- 
 
 tors is invalid : Johnston v. Wade, 11 0. W. R. 598, 
 17 0. L. E. 372. Validity of reduction of number 
 of directors and of election of reduced number: 
 Clary v. Golden Rose Mining Co., 4 0. W. N. 1491, 
 24 0. W. R. 813. See ante, sees. 84, 85, notes. 
 
 91. "A by-law is a rule or law adopted by a corporation 
 
 or association for the regulation of its own actions 
 and concerns and of the rights and duties of its 
 members among themselves:" 5 Am. & Eng. Enc 
 of Law, 2nd Ed. p. 87. A resolution is adopted or- 
 dinarily to' reach special and individual cases. A 
 by-law must operate generally. lb. See Interpre- 
 tation Act: R. S. 0. 1914, ch. 1, sec. 28 (g). A seal 
 is not necessary to the validity of a by-law unless 
 required by the constitution or by-laws of the com- 
 pany: Mackenzie v. Maple Mountain, 20 0. L. R. 
 170, 615. By-laws provided not to be passed with- 
 out unanimous consent of all shareholders: see 
 Berkinshaw v. Henderson, 14 0. W. R. 833. 
 
 91. — (a) For notes on allotment of shares generally: see 
 sec. 112; allotment on incorporation, sec. 5; making 
 of calls, sees. 62 and 112; forfeiture of shares, etc., 
 sec. 62 ; transfer of shares, sees. 56, 57. It is the di- 
 rectors ' duty to regulate the allotment of shares and 
 they cannot delegate this duty: Re Pakenham Pork 
 Packing Co., 12 6. L. R. 100. Where a by-law is passed 
 at a general meeting providing for the allotment of 
 new stock by the shareholders the directors have no 
 power to pass a by-law directing its repeal and pro- 
 viding for allotment by themselves: Stephenson v. 
 Yokes, 27 0. R. 691. As to allotment of increased 
 stock : see also Martin v. Gibson, 10 0. W. R. 66, 15 0. 
 L. R. 623. The power given by this section enables di- 
 rectors to declare with what formalities, how and 
 when stock is to be transferred. The company can- 
 not refuse to transfer fully paid up shares : Re Im- 
 perial Starch Co., 10 0. L. R. 22; Re Panton and 
 Cramp Steel Co., 9 0. L. R. 3 ; see notes to sees. 56, 
 57, ante. 
 
 91.— (6) Statute limited dividend company: A. G. v. 
 Ashton Gas Co., 1904, 2 Ch. 621. As to cumulative 
 dividends on preferred stock: see note to sec. 80, 
 
814 
 
 CHAPTER 178. 
 
 ante. And as. to dividends generally notes to see. 
 95 post. 
 
 91.— (c) See Stephenson v. Vokes, 27 0. R. 691. As to 
 directors generally, their powers, duties and liabili- 
 ties: see note to sec. 84 ante, and sections there re- 
 ferred to. 
 
 91, — (d) By giving directors powers to pass by-laws re- 
 gulating proxies the Act impliedly withholds it from 
 the general body of shareholders : Rex v. Westwood, 
 7 Bing. 1; Kelly v. Electrical Construction Co., 10 
 0. W. R. 704; and see sees. 50, 51, ante, and notes. 
 
 91. — (e) The expression " may " make by-laws does not 
 prohibit corporations from exercising their juris- 
 diction otherwise than by by-law: Webster v. Jury 
 Copper Mines, 12 0. W. R. 632. It is in excess of 
 the powers of management for directors to allot in- 
 creased capital stock to themselves with the result 
 whether intended or not of prejudicially affecting 
 the voting power of the minority shareholders: 
 Martin v. Gibson, 10 O. W. R. 69 ; and see sec. 112. 
 
 General mercantile powers : see sees. 23 (11), (Id), 78 
 (3), etc. Manager of a company has no power to bind 
 it other than in its ordinary mercantile dealings : Bird 
 v. Hussey, etc., Co. Ltd., 25 O. W. R. 13, 5 0. W. N. 
 60. Authority of general manager to make contract : 
 Skinner v. Crown Life, 1 0. W. N. 921, 2 0. "W. N. 
 647; National Malleable Castings v. Smith's Falls 
 Malleable Castings Co., 13 0. L. R. 22; Russo- 
 Chinese Bank v. Li Yan Sam, 1910, A. C. 174; Dick- 
 son Co. of Peterboro' v. Graham, 4 0. W. N. 670. 
 Absence of authority to bind company by contract: 
 Brown v. Security Life, 3 O. "W. N. 85. Manage- 
 ment of affairs of trading company: authority and 
 duty of president: Thomas v. Standard Bank, 1 0. 
 W JST. 379, 15 0. W. R. 188. Improper action of 
 managing director: Casler v. Grace Mining Co., 1 
 0. W. N. 499. Misappropriation by management: 
 Strong v. Van Allen, 13 0. W. R. 490, 15 6. W. R. 
 493, 10. W. N. 539, 2 0. W. N. 929, 19 0. W. R. 1. 
 Managing director's fraud: Farah v. Capital Mfg. 
 Co., 23 0. W. R. 918, 24 0., W. R. 808, 4 0. W. 
 
CHAPTER 178. 815' 
 
 N. 1281. Signature of promissory note by man- 
 aging director; pergonal liability of signatory:. 
 Chapman v. Smelburst, 1909, 1 K. B, 927. Money 
 expended bona fide on behalf of the company by a 
 manager under the mistaken belief that he was 
 doing so under the authority of the company law- 
 fully given, can be recovered: Benor v. Canadian 
 Mail Order, 10 0. W. R. 899. Contracts and en- 
 gagements on behalf of the company: Stewart v. 
 ' Stratford Hotel Co., 12 0. W. E. 157; Allen v. 
 Rainy River By., 29 0. R. 510. Pension to manag- 
 ing director : Normandy v. Ind Coope & Co., 1908, 
 1 Ch. 84. Grant of retrospective remuneration to 
 the treasurer of a charitable organization: Bartram 
 v. Birtwhistle, 15 0. L. R. 634. 
 
 Directors of a company were held to have power to 
 sell all its land as a part of their duty and authority 
 to manage its affairs, after honestly coming to the 
 conclusion that a sale was in the interests of the 
 company: Bitchie v. The Vermilion Mining Co., 1 0. 
 L. R. 654, 4 0. L. R. 588. Illegal disposition of as- 
 sets: Chandler Massey v. Irish, 24 0. L. B. 513, 3 
 0. "W. N. 61, 383. Sale of company's assets to in- 
 dividual: McAlpine v. Fleming* 15 0. W. R. 479; 
 Strong v. Van Allen, 15 0. W. R. 493 ; and see ante 
 sec. 23 (m). 
 
 92. A by-law for the remuneration of directors shall first 
 be passed by the Board of Directors, the directors 
 thus taking the responsibility of asserting their 
 claim for payment and fixing the amount so claimed, 
 and then this by-law shall be laid before a general 
 meeting and: passed upon by the' body of share- 
 holders : Beaudry v. Read, 10 0. W. R. 622. Mac- 
 kenzie v. Maple Mountain, 20 0. L. R. 170, 615, 1 0. 
 W. N. 284, 14 0. W. R. 1266, 15 0. W. R. 728. Prima 
 facie, directors are not entitled to any remuneration : 
 Dunstan v. Imperial Gas Co., 3 B. & Ad. 125 ; Hulton 
 v. West Cork By., 23 Ch. D. 672. The statute pro- 
 hibits payment unless its terms have been complied 
 with: Be Q. C. Plate Glass, 1 0. W. N. 863, 16 0. W. 
 B. 336. The remuneration of directors for their 
 trouble as such, even when authorized'by the share- 
 holders, can only be made out of assets properly 
 divisible among the shareholders themselves and 
 
QIQ CHAPTER 178. 
 
 not out of capital: Ee George Newman & Co., 1895, 
 
 1 Ch. 674, at p. 686 ; Ee Publisher 's Syndicate, 5 0. L. 
 E. 392. The remuneration of directors and officers 
 is a matter of internal management of the company : 
 Burland v. Earle, 1902, A. C. 83. Directors ap- 
 pointed receivers in a debenture holder's action may 
 be entitled to remuneration in both capacities: Ee 
 South Western of Venezuela Ey., 1902, 1 Ch. 701. 
 A director has no right to be paid his tra- 
 velling expenses to and from board meetings, 
 unless there under a by-law passed at a pro- 
 perly convened meeting. A resolution of the 
 directors is insufficient: Young v. Naval and 
 Military, etc., Society (1905), 1 K. B. 687. 
 Where directors are to receive a sum by way of re- 
 muneration each year, no remuneration can be 
 claimed except for a complete year of service: 
 Ee Central de Kaap Gold Mines, 69 L. J. Ch. 18. 
 A board of provisional directors appointed A. to 
 be a director and manager at a salary. The ser- 
 vices rendered had not resulted in any benefit to the 
 company which had never gone into operation. As 
 the appointment had not been by by-law confirmed 
 by the shareholders nor was under the corporate 
 seal, he could not recover salary or compensation: 
 Birney v. Toronto Milk Co., 5 O. L. E. 1; see Ee 
 Ontario Express, etc., Co., 25 O. E. 587. As to pay- 
 ment of a '"managing director:" see Livingston's 
 Case, 14 O. E. 211, 16 A. E. 397; Ee Ontario Ex- 
 press, etc., Co., the Directors' Case, 25 0. E. 587; 
 Benor v. Canadian Mail Order, 10 0. W. E. 899. 
 Compliance with this section; what amounts to con- 
 firmation : Bartlett v. Bartlett Mines, 24 0. L. E. 419. 
 Directors' fees: Ee Dover Coalfield Extension, 1907, 
 
 2 Ch. 76. Payment for services: Kuntz v. Silver 
 Spring, 1 0. W. N. 695. Payment for services as 
 workmen and clerks : Ee Matthew Guy, etc., Co., 26 
 O. L. E. 377. Liquidator demanding repayment of 
 wages paid by directors: Ee Matthew Guy Co., 3 
 0. W. N. 1233, 22 0. W. E. 34, 26 0. L. E. 377. A 
 director employed as a commercial traveller can 
 only enforce payment if there is a by-law: Ee Mar- 
 lock and Cline, 23 0. L. E. 165. Confidential in- 
 formation acquired by employed director during 
 service: Measures Bros. v. Measures, 1910, 1 Ch. 
 336. Position of solicitor director in regard to 
 
CHAPTER 178. 817 
 
 costs: Be Solicitors, 27 0. L. E. 147; and see pro- 
 visions of E. S. 0. 1914, ch. 159, sec. 70. 
 
 93. When a director, not acting on 'behalf of the com- 
 pany, buys a property which he sells again to the 
 company at an enhanced price, he is under no ob- 
 ligation to account to the company for the profit so 
 made : New Sombrero Phosphate Co. v. Erlanger, 3 
 App. Cas. 1218; Burland v. Earle, 1902, A. C. 83. 
 "Where shareholders ask the secretary of a company 
 to find purchasers for their stock, directors are not 
 precluded from buying the shares without disclosing 
 that they are the purchasers: Percival v. Wright, 
 1902, 2 Ch. 421. Director of company entrusted 
 with negotiations for company taking option in his 
 own name is a trustee for the company: N. A. Ex- 
 ploration Co. v. Green, 4 0. W. N. 1485, 24 0. W. 
 E. 843. Fiduciary relation of directors: see Turn- 
 bull v. the West Eiding Athletic Club, 70 T. L. Eep. 
 92. Directors cannot retain secret profits. They 
 are in the strictest sense trustees for the company 
 and as such they assume a position in which their 
 interest conflicts with their duty at the peril of be- 
 ing made accountable to the company at its election 
 for any profit secretly made out of transactions 
 with the company: Madrid Bank v. Polly, L. E. 7 
 Eq. 442 ; In re Brighton BreWery, 37 L. J. Ch. 278 ; 
 In re Olympia, 1898, 2 Ch. 153, affirmed sub nom.; 
 Gluckstein v. Barnes, 1900, A. C. 240; Turner's 
 Case, 19 0. E. 113 ; Euethel Mining Co. v. Thorpe, 9 
 O. W. E. 942, 10 0. W. E. 222; Palmer's Company 
 Law, 5th Ed. p. 166. The existence of difficulty in 
 ascertaining the amount of secret profit will not 
 deter the Court from doing as well as may be : Costa 
 Eioa Ey. v. ForWood, 1900, 1 Ch. 756. Purchase of 
 director's property by company, secret profits: 
 Bennet v. Havelock Electric, 21 0. L. E. 120, 25 0. 
 E. E, 200, 23 0. W. E. 309, 46 S. C. E. 640. Can- 
 cellation of shares representing director's secret 
 profits: lb. Director's secret profits: Hyatt v. Al-= 
 len, 18 0. W. E. 850, 20 O. W. E. 594, 22 0. W. E. 
 469, 2 0. W. N. 927, 3 0. W. N. 370, 1401. Sale of 
 company property to president: Kuntz v. Silver 
 Spring, 1 0. W. N. 695. Sale of company's assets 
 to individual: McAlpine v. Fleming, 15 0. W. E. 
 
 s.a. — 52 
 
818 
 
 CHAPTER 17B. 
 
 479 ; Strong v. Van Allan, 15 0. W. R. 493. A direc- 
 tor cannot join in forming a quorum in respect of 
 matters in which he is not entitled to vote : Re Grey- 
 mouth Point, etc., Co., 1904, 1 Ch. 32. Director 
 voting in pursuance of a mutual arrangement with 
 other directors for payment of each other's ac- 
 counts: Thorpe v. Tisdale, 13 0. W. B. 1044. "In- 
 terested or concerned in a contract:" see City of 
 London Electric Co. v. London Corporation, 1903, 
 A. C. 434. Directors contracting with company: see 
 Annotation, 7 D. L. R. 111. 
 
 94. As to sale of company's undertaking for shares: see 
 
 sec. 23 (m), and see sec. 184, notes. As to traffick- 
 ing in company's shares: see sec. 23 (e). 
 
 95. Paying dividends out of capital : see article by Frank 
 
 E. Hodgins, K.C. (Mr. Justice Hodgins), 44 C. L. J. 
 94. Under the English Act it was held that there 
 was no law prohibiting a limited company from pay- 
 ing dividends unless its paid up capital was kept 
 intact. Directors might declare dividends out of 
 the excess of receipts over expenditures in each 
 year without making provisions for losses in previous 
 years. This might be highly improper in a business 
 sense and may ultimately exhaust the paid up 
 capital, but it was' not paying dividends out of capi- 
 tal and the directors could not be held liable on that 
 ground: Re National Bank of Wales, 1899, 2 Ch. 
 629; Lee v. Neuchatel Asphalte Co., 41 Ch. D. 1; 
 Verner v. General and Commercial Trust Co., 1894, 
 2 Ch. 239, but now see words " or diminishes the 
 capita] thereof." It was also held under the Eng- 
 lish Act that there was no liability of director for 
 misstatements in report that due provision had 
 been made for bad and doubtful debts before de- 
 claration of dividend if he made such statements 
 honestly believing them true and if he took such 
 care to ascertain their truth as seemed reasonable at 
 the time. He would not be liable for relying on the 
 officers of the company if he had no suspicion of 
 wrong, although he might have discovered he was 
 being deceived: Lagunas Nitrate Co. v. Lagunas 
 Syndicate, 1899, 2 Ch. 392; In re Denham & Co., 25 
 Ch. D. 752; Re National Bank Company's Case, 
 1899, 2 Ch. 629. There is no rule of law compelling 
 
CHAPTER 178. 819 
 
 a company to charge interest on money borrowed 
 for purposes of construction against revenue and 
 prohibiting it from charging it, during construction, 
 to capital account: Hinds v. Buenos Ayres Grand 
 National Tramways, 1906, 2 Ch. 654. A company, 
 if so authorized by its articles, may pay interest 
 out of capital to shareholders who have paid up 
 their shares in advance of calls: Lock v. Queens- 
 land Investment Co., 1896, A. C. 461. There is noth- 
 ing to prevent a liquidator recovering dividends 
 improperly paid out of capital, although it is not 
 shewn that the company is insolvent as regards 
 creditors : Ee National Bank, 1899, 2 Ch. 629. Divi- 
 dends out of capital: Bury v. Famatina Develop- 
 ment, 1909, 1 Ch. 754;. Towers v. African Tug 
 Co., 1904, 1 Ch. 558. Eeduction of capital by re- 
 payment to shareholders: Be Artizans' Land and 
 Mortgage Co., 1904, 1 Ch. 796. Bona fide distribu- 
 tion of capital sum among shareholders; right of 
 liquidator to recover from directors and from share- 
 holders : Moxham v. Grant, 1900, 1 Q. B. 88. Beturn 
 of capital in excess of the wants of the company: 
 see Ee Calgary and Edmonton Land Co., 1906, 1 
 Ch. 141; Lee Brook Spinning Co., 1906, 2 Ch. 394. 
 Where there is wasting property, company need not 
 provide a sinking fund (see sub-sec. (2)): Lee v. 
 Neuchatel Asphalte Co., 41 Ch. Div. 1. Contribu- 
 tion from co-directors: Shepherd v. Bray, 1906, 2 
 Ch. 235. An action against directors and promo- 
 ters is not a penalty action within E. S. O. 1914, ch. 
 75, sec. 49 (lh) : Thomson v. Lord Clanmorris, 1900, 
 1 Ch. 718. As to duties and liabilities of directors : 
 see notes to sec. 84 ante. 
 
 97. Loan to servant of company: see Eainford v. James 
 Keith, etc., Co., 1905, 2 Ch. 147. As to trafficking 
 in company's own shares: see sec. 23 (e). 
 
 98. — (1). Wages of servants; liability of directors: 
 Pukulski v. Jardine, 3 O. W. N. 1172, 21 O. W. E. 
 983. Action against directors: "wages:" Olson 
 v. Machin, 4 O. W. N. 287, 23 O. W. E. 531. A 
 person employed as foreman of works and who 
 hires and dismisses men, makes out pay rolls 
 and does no manual labour, is. not within this sec- 
 tion: Welch v. Ellis, 22 A. E. 255. The manager of 
 
820 
 
 CHAPTER 178. 
 
 a mining company is not within this section: Her- 
 man v. Wilson, 32 0. E. 60. As to wages of miner- 
 alogist appointed by directors : see Bartlett v. Bart- 
 lett Mines, 2 0. W. N. 919, 1509, 18 0. W. E. 865, 19 
 0. W. E. 893. " One year's wages:" George v. 
 Strong, 1 0. W. N. 350, 15 0. W. E. 99. Liability for 
 wages. Hiring by acting manager and not under 
 seal ; knowledge of directors : Milne v. Ontario Mar- 
 ble Quarries, 13 0. W. E. 1137. Eight of a number of 
 wage-earners to consolidate their claims and join in 
 one Supreme Court action against directors : Hebert 
 v. Evans, 13 0. W. E. 632, 682. Default judgment 
 against directors not binding to preclude inquiry 
 into bona fides of claim: Eogers v. Wood, 3 0. W. 
 N. 1241, 22 0. W. E. 48. Assignee of wages is within 
 the section and can sue without joining the several 
 wage-earners : Lee v. Friedman, 20 0. L. E. 49, 1 0. 
 W. N. 235, 14 0. W. E. 457, 1139. 
 
 98. — (2) Compliance with section as to writ and return: 
 Pukulski v. Jardine, 26 0. L. E. 323. 
 
 PAET VII. 
 
 Pbospecttjs and Directoks' Liability. 
 
 99. Any advertisement designed to accomplish the pur- 
 pose mentioned in this section is a "prospectus," 
 the meaning of sec. 104, and gives rise to liability 
 under see. 105 if the requirements of the Act are 
 not strictly met : Eex v. Garvin, 18 0. L. E. 49, 13 0. 
 W. E. 575. 
 
 100. — (1) " To the public"; an offer of additional shares 
 to existing shareholders is not an offer " to the pub- 
 lic:" Burrows v. Matabele Gold Eeefs, 1901, 2 Ch. 
 23. It is not illegal for a company to agree in con- 
 sideration of a person's taking or underwriting 
 shares, to issue at par further shares to such person 
 at a future date or within a prescribed period : Hil- 
 der v. Dexter, 1902, A. C. 474. 
 
 100 — (2) Issuing shares at less than nominal value is 
 ultra vires: Mclntyre v. McCracken, 1A. E. 1, 1 S. 
 C. E. 479; North West Electric Co. v. Walsh, 29 S. 
 
CHAPTER 178. 821 
 
 C. E. 33 ; Chapman v. Great Central Freehold Mines, 
 22 T. L. E. 90; Moseley v. Kaffyfontein, 1904, 2 Ch. 
 108; Lake Ontario Navigation Co., 13 0. W. E. 1032 
 (and cases collected p. 1034) ), 18 O. L. E. 354. Issuing 
 shares at half price : Ee Niagara Falls Heating Co., 
 1 O. W. N. 439, 15 0. W. E. 326. Even before there 
 were definite provisions in the Ontario Act pro- 
 hibiting the issue of shares at a discount, the English 
 decisions were applied: Ee McGill Chair Co., 26 
 0. L. E. 254. "What amounts to the issue of 
 shares at a discount: Chapman v. Great Central 
 Freehold Mines, 22 T. L. E. 90. Issue of shares for 
 consideration other than cash: In re Brutton and 
 Birney, 1901, 1 Ch. 637. The issue of shares 
 at a discount is as much an unauthorized re- 
 duction of capital as the purchase by a company of 
 its own shares : Wilton v. Saffery, 1897, A. C. 299. 
 Colourable transaction to enable shares to issue at 
 a discount: Lindsay v. Imperial Steel, 21 0. L. E. 
 375, 1 0. W. N. 347, 930, 16 0. W. E. 406. Cancel- 
 lation of shares illegally issued at a discount: Ee 
 Matthew Guy Co., 3 0. W. N. 270, 902, 21 0. W. E. 
 842. An agreement by a company to remunerate 
 underwriters by an option to call for an allotment 
 of shares is prohibited by section 2, notwithstand- 
 ing that the issue price fixed by the option exceeds 
 the nominal amount of the shares: Burrows v. 
 Matabele Gold Eeefs, 1901, 2 Ch. 23. A transaction 
 under which a purchasing company pays part of its 
 capital in substance as underwriting commission to 
 an intermediary company is illegal, notwithstanding 
 that the payment takes the form of a profit on a re 
 sale by the intermediary company to the purchasing 
 company : Booth v. New Afrikander G. M. Co., 1903, 
 1 Ch. 295. Issue of shares at a discount: see also 
 sec. 144, et seq. (mining companies) 177 (winding- 
 up), 91, 112 (allotment), 74, and notes. 
 
 100.' — (3) A limited company may lawfully pay out of 
 its capital reasonable commission to brokers for 
 procuring applications for Shares: Metropolitan 
 Coal Consumers v. Scrimgeour, 1895, 2 Q. B. 604. 
 Employment of agent to sell shares: "Webster v. 
 Jury Copper Mines, 14 0. "W. E. 632. Commis- 
 sion to secretary of company on sale of bonds: 
 recovery of money paid through ultra vires act of 
 
822 
 
 CHAPTER 176. 
 
 directors: Sydney Land Co. v. Eountree, 39 S. C. 
 E. 614. 
 
 101. — (1) The office of the prospectus considered: see 
 Peek v. Gurney, L. R. 6 H. L. 377; Pulsford v. Rich- 
 ards, 17 Beav. 87; Derry v. Peek, 1889, 14 App. Cas. 
 337. Consideration of position of shareholders before 
 and after prospectus : see 45 C. L. J. 145, 220, 338. 
 
 103. — (3) A company is bound by the material repre- 
 sentations of its agent duly authorized to solicit sub- 
 scriptions for shares whether those representations 
 are made in good faith and with a belief in their 
 fulfilment or not: Ontario Ladies' College v. Ken- 
 dry, 10 O. L. R. 324. Action for deceit in making re- 
 presentations inducing plaintiffs to become share- 
 holders in company formed to acquire timber 
 limits : Piper v. Thompson, 11 0. W. R. 690. Solici- 
 tation of subscription: Gowganda Mines v. Smith, 
 
 1 O. W. N. 1071, 16 O. W. R. 709. See post, sees. 112, 
 113, notes. 
 
 104. — (1) " Those who issue a prospectus holding out 
 to the public the great advantages which will ac- 
 crue to the persons who will take shares in a pro- 
 posed undertaking and inviting them to take shares 
 on the faith of the representations therein con- 
 tained, are bound to state everything with strict and 
 scrupulous accuracy and not only to abstain from 
 stating as a fact that which is not so but to 
 omit no one fact within their knowledge, the ex- 
 istence of which might in any degree affect the 
 nature or extent or quality of the privileges and 
 advantages which the prospectus holds out as in- 
 ducements to take shares: Per Kindersley, V.C.: 
 New Brunswick Central v. Muggeridge, 1 Drew & 
 Sm. 381 ; Central Ry. of Venezuela v. Kisch, L. R. 
 
 2 H. L. 113. An advertisement merely stating that 
 a company are offering shares for sale and that a 
 prospectus can be obtained on application is a 
 " prospectus " within the meaning of this Act: R. 
 v. Garvin, 18 O. L. R. 49, 13 O. W. R. 575. State- 
 ment in prospectus that company manufacturing 
 soap when manufacture never begun: Dixon v. 
 Pritchard, 2 0. W. N. 414, 17 0. W. R. 874. Omis- 
 sion of essential particulars in abridged advertise- 
 
CHAPTER 178. 823 
 
 ment: Eoussell v. Burnham, 1909, 1 Ch. 127. Omis- 
 sions from prospectus: Re South of England Na- 
 tural Gas Co., 1911, 1 Ch. 573; Ee Wimbledon Olym- 
 pia, 1910, 1 Ch. 630, 632. 
 
 104. — (Id) Minimum subscription: Eoussell <v. Burn- 
 ham, 1909, 1 Ch. 127. 
 
 104. — (lg) "Where promoters proposed to acquire pro- 
 perty and turn it over to a company to be formed, 
 it was held that there was no fiduciary relationship 
 existing between the parties such as partners or 
 agents and no agreement between the promoters 
 would bind the company to be formed: Garvin v. 
 Edmondson, 14 O. W. B. 435. Where a company 
 is purchaser of a property which is the absolute 
 property of the vendor, this section does not re- 
 quire that the prospectus shall disclose the amount 
 of the purchase money paid by the vendor when 
 he acquired the property: Brooks v. Hansen, 1906, 
 2 Ch. 129. The whole of the consideration, cash, 
 shares or debentures payable to anyone by the com- 
 pany in respect of the purchase or acquisition must 
 be stated : Brooks v. Hansen, 1906, 2 Ch. 129. Amal- 
 gamation of companies; position of promoter-ven- 
 dor ; disclosure : Stratford Fuel, etc., Co. v. Mooney, 
 14 0. W. E. 489. 
 
 104. — (li) A written undertaking that a promoter's 
 claim to a proper remuneration shall be honourably 
 met by the directors is a material contract within 
 sub-sec. (e) and must be disclosed: Shepheard v. 
 Broome, 1904, A. C. 342. 
 
 104. — (lj) A company is. under no liability in equity to 
 pay for work done before its formation merely be- 
 cause it has adopted and derived benefit from such 
 work: Ee English and Colonial Produce Co., 1906, 
 2 Ch. 435. As to contracts generally with unformed 
 companies: see notes to sec. 114 (3). 
 
 104.— (Ik) Promoter's services: Nelles v. Hesseltine, 11 
 O. W. E. 1062. Fiduciary relationship of promoters : 
 Garvin v. Edmonson, 15 O. W. E. 210. Promoters 
 cannot retain secret profits, and if such consist of 
 paid-up shares as part of purchase price, such shares 
 
g24 CHAPTER 178. 
 
 may be treated as unpaid if held by promoter : Ee 
 Cornwall Furniture Co., 14 O. W. E. 352, 18 0. L. E. 
 101. Promoter's secret profits; president and man- 
 ager interested as vendors ; intention to sell shares to 
 public: Stratford Fuel v. Mooney, 21 0. L. E. 426, 1 
 0. W. N. 914. Promoter's secret profits: Alexandra 
 Oil Co. v. Cook, 11 0. W. E. 1054. Claim against firm 
 of promoters for secret profit. Liability of part- 
 ners of firm jointly and severally considered: Ee 
 Kent County Gas Co., 1913, 1 Ch. 92. As to secret 
 profits of directors : see sec. 93 notes. 
 
 104. — (11) This section covers every contract which 
 would assist a person in determining whether he 
 would become a shareholder : Gover 's Case, Ee Coal 
 Economizing Co., 1 Ch. D. 200. And applies to parole 
 as well as written contracts : Capel v. Simes, 36 W. 
 E. 689. This section applies to executed as well as 
 executory contracts: Broome v. Speck, 71 L. J. Ch. 
 716. Not only the existence of the contract must be 
 disclosed, but also its contents as bearing on the 
 statements in the prospectus: Watts v. Bucknall, 
 1903, 1 Ch. 766, A contract entered into by the pro- 
 moters of a company ought to be disclosed if knowl- 
 edge of it would affect the mind of a reasonable 
 person intending to take shares: Sullivan v. Met- 
 calfe, 5 C. P. D. 455, 460, 465 ; Cackett v. Keswick, 
 1902, 2 Ch. 456. Agreement between incorporators 
 before formation of company: Berkinshaw v. Hen- 
 derson, 1 O. W. N. 97. Omission of material con- 
 tracts; onus of proof: Tait v. McLeay, 1914, 2 Ch. 
 631; Shepheard v. Broom, 1904, A. C. 343; Broome 
 v. Speck, 1903, 1 Ch. 586. Calthorpe v. Trechman, 
 1906, A. C. 24; Cackett v. Keswick, 1902, 2 Ch. 456. 
 Greenwood v. Leather Shad Wheel Co., 1900, 1 Ch. 
 421; Hoole v. Speck, 1904, 2 Ch. 732. 
 
 104. — (2) A vendor who sells property to a company 
 towards which he stands in a fiduciary relation at 
 the time of sale is not liable to account in the wind- 
 ing up for any undisclosed profit unless either (1) 
 his conduct is tainted with fraud or (2) he stood in 
 a fiduciary relation to the company not only at the 
 time of sale but also at the time of his acquisition 
 of the property in question: Ee Lady Forest Gold 
 Mine, 1901, 1 Ch. 582; Ee Cape Breton Co., 29 
 
CHAPTER 178. 825 
 
 Ch. D. 795; Ladywell Mining Co. v. Brooks, 35 Ch. 
 D. 400; New Sombrero Phosphate Co. v. Erlanger, 
 3 App. Cas., 1218, 1234, 1235. Mere suppression by 
 a vendor of the amount of his profit is not fraud 
 within the meaning of the above proposition: Ee 
 Lady Forest Gold Mines, 1901, 1 Ch. 582. 
 
 104.— (8) See Greenwood v. Leather Shod Wheel Co., 
 1900, 1 Ch. 421. 
 
 106. An action against directors and promoters under 
 the English Directors Liabilities Aet, 1890, was held 
 not to be an action for a penalty within such a pro- 
 vision as E. S. O. 1897, ch. 72, sec. Ig, E. S. O. 1914, 
 ch. 75, sec. 49 (lh) : Thomson v. Lord ^Clanmorris, 
 1900, 1 Ch. 718. Prosecution of a director at the 
 expense of assets: see Ee London and Globe Fin- 
 ance Corporation, 1903, 1 Ch. 728. 
 
 107. Where a prospectus is issued not merely for the 
 purpose of inviting persons to subscribe for shares, 
 but to induce persons to buy shares in the open mar- 
 ket, the office of the prospectus is not exhausted on 
 allotment and a person who received a prospectus 
 and afterwards, relying on false representations 
 in it, purchases shares in open market, has a cause 
 of action against the promoters: Andrews v. Mock- 
 ford. 1896, 1 Q. B. 372. The plaintiff seeking to re- 
 cover from a director on account of the omission 
 of a material contract must shew that if the con- 
 tract had been disclosed he might not have applied 
 for shares. It is not necessary for him to shew that 
 he certainly would not: Nash v. Calthorpe, 1905, 2 
 Ch. 237. Where a director knows of the existence 
 of a contract other than those referred to in the 
 prospectus, he cannot escape responsibility by a plea 
 of ignorance of the contents or materiality, or that 
 he left it to legal advisers : Watts v. Bucknall, 1903, 
 1 Ch. 766. Where a director pleads in respect of 
 alleged false statements in a prospectus that he had 
 reasonable ground for believing the statements true, 
 he may be ordered to give particulars of the ground 
 of such belief: Alman v. Oppert, 1901, 2 K. B. 576. 
 Untrue statement in prospectus ; compensation ; con- 
 tribution; death of director; actio personalis: see 
 Shepherd v. Bray, 1906, 2 Ch. 235, 1907, 2 Ch. 571. 
 
g2Q CHAPTER 178. 
 
 Fraudulent misrepresentation: Ee Leeds and Han- 
 ley Theatre, 1902, 2 Ch. 809. Non-disclosure of con- 
 tracts: see also cases noted ante, sec. 104 (11). Mis- 
 leading statements in prospectus: Brooks v. Han- 
 sen, 1906, 2 Ch. 129. A person who has taken shares 
 in a company on the faith of a prospectus contain- 
 ing alleged misrepresentations and suppressions, 
 can join in one action claims against the company 
 to have the allotment cancelled and his money paid 
 and claims against the directors and the executor 
 of a deceased director for damages, the cause of 
 action being all the same thing, namely, the issue 
 of the prospectus : Frankenburg v. Great Horseless 
 Carriage Co., 1900, 1QB. 504. Where the objects 
 and purposes of the company as set out in the agree- 
 ment for its formation became impracticable and all 
 expectation of carrying out the enterprise were 
 abandoned, there was a total failure of consideration 
 for a stock subscription, the subscriber was not 
 liable on his note given therefor and he was entitled 
 to recover what he had paid: Bullion Mining Co. v. 
 Cartwright, 10 O. L. R. 438. Unauthorized issue of 
 prospectus; liability of directors: Hoole v. Speak, 
 1904, 2 Ch. 732. Liability of directors for misre- 
 presentations in prospectus prepared by broker: 
 Farrell v. Manchester, 40 S. C. E. 339. 
 
 110. The right of contribution given by this section ap- 
 plies to an untrue statement fraudulently made 
 which might have been the subject of an action at 
 common law: Gerson v. Simpson, 1903, 2 K. B. 197. 
 See also as to contribution and to what it extends: 
 Shepheard v. Bray, 1906, 2 Ch. 235, 1907, 2 Ch. 571. 
 
 PART vin. 
 
 Public Companies. 
 
 111. The benefit of these provisions does not attach to 
 the original incorporators. It is to inform and 
 guide those who are asked to become members: 
 Modern Bedstead Co. v. Tobin, 12 O. W. E. 22. " Of- 
 fer to the public:" Burrows v. Matabele Gold Reefs, 
 1901, 2 Ch. 23. 
 
CHAPTER 17(8. 827 
 
 112. Comment on this and following sections : see article 
 45 C. L. J. 145, 220, 338. The intention of sub-sec. 
 1 is that no allotment should be made until the com- 
 pany has actually received payment of the applica- 
 tion money, and if cheques are sent with the appli- 
 cations they should be cleared before the allotment 
 is made. Where this is not done and cheques are 
 dishonoured, the allotment is voidable: Mears v. 
 Western Canada Pulp and Paper Co., 1905, 2 Ch. 
 353. Allotment made without compliance with 
 these provisions is voidable only: Boeckh v. Gow- 
 ganda Queen, 24 0. L. E. 293, 46 S. C. E. 645, 23 0. 
 W. E. 313, and see sec. 113. An allotment of shares 
 made by directors before the minimum subscription 
 is obtained is voidable, not void : Finance and Issue 
 v. Canadian Produce, 1905, 1 Ch. 37. An allotment 
 by directors in contravention of the section is not 
 ultra vires. It is simply a breach of statutory 
 duty for which the shareholder has his statutory 
 remedy. The Court will not interfere by injunc- 
 tion to restrain directors from proceeding with the 
 allotment : Finance and Issue v. Canadian Produce, 
 1905> 1 Ch. 37. As to the impossibility of allotting 
 preference stock until it has been validly created, 
 even where the supposed preference shareholder 
 makes payments and attends meetings, etc.: Paken- 
 ham Pork Packing Co., 12 0. L. E. 100. Allotment of 
 a half share is ultra vires: Ee McGill Co., Munro's 
 Case, 3 0. W. N. 1074, 21 0. W. E. 921, 26 0. L. E. 
 254. Allotment without by-law: Ee Canadian Mc- 
 Vicker Engine Co., 13 0. W. E. 916. Allotment by 
 unqualified directors : Ee Nutter Brewery, 1 0. W. 
 N. 400, 15 0. W. E. 265. Going to allotment : see 
 McDougall v. Jersey Imperial Hotel, 10 Jur. N. S. 
 1043; Baird v. Eoss, 2 Macq. H. L. Cas. 61; Orna- 
 mental Pyrographic Woodwork v. Brown, 2 H. & 
 C. 71; Pierce v. Jersey Waterworks, L. E. 5 Ex. 
 209; North Safford Steel v. Ward, L. E. 3 Ex. 172. 
 Going to allotment on insufficient subscription: Ee 
 Madrid Bank, L. E. 2 Eq. 216; Grimwade v. 
 Mutual Society, 1885, 52 L. T. 409; Ee Liverpool 
 Household Stores, 29 L. J. Ch. 621. See also 
 Andrews v. Mockf ord, 1896, 1 Q. B. 372 ; Franken- 
 burg v. Great Horseless Carriage Co., 1900, 1 Q. 
 B. 504, notes to sec. 107 ante. 
 
g2g CHAPTER 178. 
 
 Directors allotting shares to themselves in pay- 
 ment of services: Thorpe v. Tisdale, 13 0. W. E. 
 1044. Directors allotting shares to themselves as 
 fully paid: Ee Manes Tailoring Co., 18 0. L. E. 
 572, 11 0. W. E. 498, 13 0. W. E. 829. Eights of 
 minority shareholders when directors propose to 
 allot to themselves at par, shares representing in- 
 creased capital stock: Martin v. Gibson, 15 0. L. 
 E. 623. 
 
 If directors have exercised a bona fide discretion in 
 proceeding to allot shares however unwisely, the 
 Court will not treat the allotment as invalid: In 
 re Madrid Bank, L. E. 2 Eq. 216. An allotment 
 made at a Board meeting is bad if due notice has 
 not been sent of the board meeting, but an allot- 
 ment made at an insufficient board may be ratified 
 by a full board, and the ratification dates back and 
 makes the allotment good though the subscriber 
 has withdrawn his application meanwhile: Ee 
 Homer District Gold Mines, 39 Ch. D. 549; Ee 
 Portuguese Copper Mines, 42 Ch. D. 161. A sub- 
 scriber for a share in a company was debited in 
 the stock ledger with one share, was placed on the 
 " shareholders list " and was drawn upon for a 
 first payment of 10 per cent. He paid the draft. 
 Held that what was done must be taken to have 
 been done by authority of the directors and to be 
 a mode of allotment: Hill's Case, 10 0. L. E. 501. 
 Power of trustees to take allotment of shares in 
 new company: see In re Smith, 1902, 2 Ch. 667; 
 In re Morrison, 1901, 1 Ch. 701; In re News Settle- 
 ment, 1901, 2 Ch. 534. 
 
 To constitute a binding contract to take shares in 
 a company, there must be an application by the 
 intending shareholder, an allotment by the directors 
 and a communication by the directors to the appli- 
 cant of the fact of allotment having been made: 
 Hodgins v. O'Hara, 22 Occ. N. 29, 133. "Where 
 an individual applies for shares in a company, 
 there being no obligation to let him have any, there 
 must be a response from the company or there is 
 no contract:" Pellatt's Case, L. E. 2 Ch. 527, at 
 p. 535; see also Hebbs Case, L. E. 4, Eq. 9; Gunn's 
 Case, L. E. 3 Ch. 40; Nasmith v. Manning, 5 A. 
 
CHAPTER 178. 829 
 
 E. 126, 5 S. C. E. 411. An application for shares 
 may be withdrawn any time before the shares are 
 allotted: Bainsgate Victoria Hotel v. Montefiore, 
 L. E. 1 Ex. 109; Eitson's Case, 4 Ch. D. 774; 
 Pentelow's Case, 4 Ch. 178; Nelson Coke Co. v. 
 Pellatt, 2 0. L. E. 390. Effect of subscription under 
 seal: Gowganda Mines v. Smith, 16 0. W. E. 709, 
 
 I O. W. N. 1071, 2 0. W. N. 731, 18 0. W. E. 663; 
 see also Ee Manes Tailoring Co., 18 0. L. E. 572, 
 
 II 0. W. E. 498, 13 0. W. E. 829. Application for 
 shares: posting of a letter properly stamped is 
 evidence of the fact of its being received: Cana- 
 dian Druggists v. Thompson, 2 0. W. N. 1213, 19 
 O. W. E. 401. Allotment of shares: estoppel of 
 shareholder: Ee Matthew Guy Co., 3 0. W. N. 
 270, 902, 21 0. W. E. 842. Application for shares 
 on unusual terms, acceptance on different terms: 
 Ee Canadian Mail Orders Limited, 2 0. W. N. 882. 
 Application for shares " on condition that no 
 further call be made:" Ee Lake Ontario Naviga- 
 tion Co., 18 0. L. E. 354, 20 0. L. E. 191, 15 0. W. 
 E. 23. Conditional subscription: Ee Canadian Mc- 
 Vicker Engine Co., 13 0. W. E. 916. Agreement to 
 take shares in company to be formed: Purse v. 
 Gowganda Mines, 16 0. W. E. 596. Allotment of 
 stock as fully paid up: there is liability for unpaid 
 stock if there has been an acceptance of the stock: 
 Cases reviewed : Ee Cornwall Furniture Co., 14 0. W. 
 E. 352, 18 0. L. E. 101, 20 0. L. E. 570. See also in re- 
 gard to allotment: Adam's Case, L. E. 13 Eq. 474; 
 Tucker's Case, 41 L. J. Ch. 157; Bolton Partners v. 
 Lambert, 41 Ch. D. 295 ; Ee Portuguese Consolidated, 
 45 Ch. I>. 16; Ee Zoological, etc., Society, 17 0. 
 E. 331; Ee Queen City Eefining Co., 10 0. E. 264; 
 Ee Haggert Brothers, 19 A. E. 582; Ee Nipissing 
 Planing Mills, Eankin's Case, 13 0. W. E. 360. 
 
 "Where shareholders iare allotted shares under a 
 contract whereby they are to pay for the shares 
 by transfer of land, which was not done, the share- 
 holders cannot be compelled to pay in cash and 
 their liability in damages for breach of their contract 
 to transfer land, could not be enforced in winding- 
 up: Ee Modern House Mfg. Co., 28 0. L. E. 
 237. Agreement to hold shares to be given to 
 those who subscribe paid-up shares: Lindsay v. 
 
830 
 
 CHAPTER 178. 
 
 Imperial Steel, 1 0. W. N. 347, 16 0. W. E. 
 406. Allotment of shares in pursuance of agree- 
 ment for purchase of property: Bennett v. Have- 
 lock, 1 0. W. N. 352, 751, 16 0. W. B. 19, Position 
 in winding up of shares improperly allotted: see 
 sec. 167 notes, and sec. 113. 
 
 112. — (4) Eeturn of application money: Finance and 
 Issue v. Canadian Produce, 1905, 1 Ch. 37. 
 
 113. Allotment without compliance with provisions of 
 sec. 112, is voidable, not void: Gcwganda Queen v. 
 Boeckh, 24 O. L. E. 293, 46 S. C. E. 645, 23 0. W. E. 
 313. The objection of " no prospectus " is one for 
 the purchaser to raise. The company cannot raise 
 it: Webster v. Jury Copper Mines, 12 0. W. E. 
 632. Where abridged advertisement omitted essen- 
 tial particulars, the allotment was voidable: Eous- 
 sell v. Burnham, 1909, 1 Ch. 127. Action to cancel 
 allotment of shares: secret profits: Bennett v. 
 Havelock Electric, 16 0. W. E. 19. Delay in pay- 
 ment of cheques for allotment money; repudiation 
 of allotment; sufficiency, rectification of register: 
 Ee National Motor Mail Coach Co., 1908, 2 Ch. 228. 
 Action for relief from subscription got by fraud:' 
 absence of prospectus; Purse v. Gowganda Queen, 
 
 1 0. W. N. 420, 1033, 15 0. W. E. 287. Eescission 
 of subscription on account of misrepresentation by 
 managing director: Farah v. Capital Mfg. Co., 4 
 0. W. N. 680, 23 0. W. E. 918. Subscription im- 
 properly induced: Ee Nutter Brewery, 15 0. W. E. 
 265, 1 0. W. N. 400. 
 
 114. — (3) The word " provisional " in sub-sec. 3 
 means that the contracts made by a company 
 before the date at which it is entitled to com- 
 mence business, are to be read as if they con- 
 tained a provision that they shall not be binding 
 on the company, unless and until it becomes 
 entitled to commence business: Ee Otto Electrical 
 Mfg. Co., 75 L. J. Ch. 682, 1906, 2 Ch. 390. A 
 company is under no liability in equity to pay 
 for work done before its formation, merely because 
 it has adopted and derived benefit from such 
 work: Ee English and Colonial Produce Co., 1906, 
 
 2 Ch. 435. Eight of solicitor to recover costs of 
 
CHAPTER 178. 831 
 
 work done before formation of company: See Ee 
 English and Colonial Produce Co., 1906, 2 Ch. 435. 
 Contract on behalf of intended company cannot be 
 adopted or ratified by the company. To obtain 
 such benefit a new contract must be made: Natal 
 Land Co. v. Pauline Colliery, etc., Syndicate, 1904, 
 A. C. 120. Contract with third person for intended 
 company: Bagot Pneumatic Tyre Co. v. Clipper 
 Pneumatic Tyre Co., 1902, 1 Ch. 146. 
 
 117. ' ' Adjourned ' ' meeting : see Shaw v. Taiti, 1913, 
 1 Ch. 292. As to notice of meeting, see sec. 44. See 
 ,also notes to Part III., ante. 
 
 PART IX. 
 
 Books, Inspection, Auditoes. 
 
 119. Books kept out of Canada : Malouf v. Labad, 3 0. W. 
 N. 796. 
 
 120. "Where two companies have an officer in common, the 
 test to be applied in determining whether notice of 
 irregularities in one is to be imputed to the other is : 
 1st. Was it within the scope of the officer's duty to 
 give notice to the other company; 2nd. Was it within 
 the scope of the duty of the officer of the other com- 
 pany to receive such notice. In Re Hampshire Land 
 Co., 1896, 2 Ch. 743 ; see In Re Fenwick Stobart & Co., 
 1902, 1 Ch. 507. 
 
 121. Where rectification of register by omitting the plain- 
 tiff's name would have reduced the number of share- 
 holders below five, the Court reduced his holdings to 
 one share : Re J. A. French Co., Ltd., 1 O. W. N. 864, 
 2 O. W. N. 498, 17 O. W. R. 1063. Action for declara- 
 tion that defendant not a shareholder: Mackay v. 
 Mason, 23 O. W. R. 872. Action to have name re- 
 moved from register of shareholders : Purse v. Gow- 
 ganda Mines, 15 0. W. R. 287, 16 0. W. R. 596. The 
 power of the Court to rectify the register can be exer- 
 cised after liquidation, and is not then reduced to set- 
 tling a list of contributories : In Re Sussex Brick Co., 
 1904, 1 Ch. 598. 
 
832 CHAPTER 178. 
 
 122. A request to inspect a register carries with it a re- 
 quest to take copies or make extracts : Nelson v. An- 
 glo-American, 1897, 1 Oh. 130; Muller v. Eastern and 
 Midlands Ey., 38 Ch. D. 92; Boord v. African Con- 
 solidated Land Co., 1898, 1 Ch. 596. Unless there is 
 a provision made for the company supplying extracts 
 at a rate per folio : In Ee Balaghat, 1901, 2 K. B. 665. 
 Action 'to enforce right of shareholder to inspect and 
 copy shareholders' address book: Davies v. Gas, 
 Light & C»ke Co., 1909, 1 Ch. 248, 708. 
 
 123. The companies' books are made evidence of facts 
 therein. They are not negative evidence of the non- 
 existence of facts not therein : Mackenzie v. Monarch 
 Life, 18 0. W. E. 325, 23 O. L. E. 342, 21 O. W. E. 
 98. How far books other than those named in sec. 
 118 are in evidence : Lindsay v. Imperial Steel, 1 0. 
 W. N. 930, 16 0. W. E. 406. • 
 
 127. Powers and duties of auditor : see Annotation, 6 D. L. 
 E. 522. 
 
 134. An auditor is an officer of the corporation: In Re 
 Kingston Cotton Mills, 1896, 1 Ch. 6. A person em- 
 ployed to audit on a particular occasion at the re- 
 quest of a director, who audited the accounts and 
 signed the balance sheet provided for in sec. 45, but 
 who was never formally appointed auditor, was held 
 not an ' ' officer : " Re "Weston Counties Steam Bak- 
 eries, 1897, 1 Oh. 617. The statutory majority of 
 shareholders may resolve that as to particular items 
 of the company's business there shall be secrecy. 
 The auditors should report that they have examined 
 the accounts as to those items, and are satisfied with 
 them, and that the funds are employed in manner 
 authorized by the company's regulations, This com- 
 plies with the Act if the auditors are bona fide satis- 
 fied, but it is inconsistent with the Act that the audi- 
 tors should withhold all information about such a 
 fund when they consider that the true state of the 
 company's affairs is affected, or if the regulations of 
 the company prevent the auditors from availing 
 themselves of all the material which they are entitled 
 to under the Act on which to base their report: New- 
 ton v. Birmingham Small Arms Co., 1906, 2 Ch. 378; 
 see notes to sec. 45. Auditors are only bound to exer- 
 cise reasonable skill and care. They are not bound 
 
CHAPTER 178. 833 
 
 to be suspicious, as distinguished from reasonably 
 careful. .The principles as to the duties of auditors 
 and on what they rely are laid down in Ee London 
 and General Bank, 1895, 2 Ch. 673, 64 L. J. Ch. 866; 
 Re Kingston Cotton Mills, 1896, 2 Oh. 279. 
 
 PAET X. 
 
 MlSOELIxANEOTJS. 
 
 135. The intention of the section apparently is that all 
 companies, whether for gain or not, should make re- 
 turns. This section is directory : Pigeon Eiver Lum- 
 ber Co. v. Mooring, 13 0. "W. E. 190. A list of share- 
 holders transmitted to the Provincial Secretary con- 
 tained the name of a person as holding certain stock, 
 while the name was inadvertently omitted from the 
 list posted under sub-sec. (3). It was held that the 
 lists were not duplicates within the meaning of the 
 section: Turner v. Hiawatha Gold Mining, etc., Co., 
 30 0. E. 547. Action f o*r penalties : Company not a 
 private person (sub-sec. 6) : Guy Major v. Canadian 
 Flax Mills, 3 0. W. N. 1058. 
 
 138. The existing regulations in regard to fees are as fol- 
 lows: 
 
 1. Fees must accompany all applications and all docu- 
 ments to be filed. Where the fee does not accompany 
 a document to be filed, such document will be re- 
 turned to the sender forthwith. 
 
 2. No cheque will be accepted unless it is marked. 
 
 3. Cash not registered is at the risk of the sender. 
 
 4. Post Office Orders, Postal Notes, cheques and 
 drafts should be payable to the order of the Pro- 
 vincial Treasurer. 
 
 The following schedule of fees, as amended by an 
 Order-in-Council dated December 2nd, 1909, shall be 
 payable for the various services rendered by the De- 
 partment under the provisions of The Ontario Com- 
 panies Act : 
 
 Incobpobation With Shabe Capital. 
 
 When the proposed capital of an applicant company 
 is $40,000 or less, the fee shall be $100. 
 
 B.A.— 53 
 
834 CHAPTER 178. 
 
 When the proposed capital is more than $40,000, but 
 does not exceed $100,000, the fee shall he $100, and $1 
 for every $1,000 or fractional part thereof in excess 
 of $40,000. 
 
 When the proposed eapital is more than $100,000, but 
 does not exceed $1,000,000, the fee shall be $160, and 
 $2.50 for every $10,000 or fractional part thereof in 
 excess of $100,000. 
 
 When the proposed capital is more than $1,000,000, 
 the fee shall be $385 for the first $1,000,000, and $2.50 
 for every $10,000 or fractional part thereof in excess 
 of $1,000,000. 
 
 Rural telephone companies, and other rural com- 
 panies coming within the provisions of Part XIII. of 
 ■the Companies Act, where the proposed capital does 
 not exceed $25,000, $25. 
 
 Where the proposed capital is more than $25,000, the 
 fee shall be on the same scale as that applying to or- 
 dinary share capital companies. 
 Eural cemetery companies, rural cheese and butter 
 companies, and other rural companies of a similar 
 nature, where the proposed capital does not exceed 
 $10,000, $10. 
 
 Co-operative companies where the proposed capital 
 does not exceed $10,000, $10. 
 
 Where the capital of a company of the classes in the 
 two next preceding paragraphs referred to exceeds 
 $10,000, the 'fee to be levied on the excess shall be at 
 the rate of $1 per thousand, but in no case shall such 
 fee exceed the sum of $25. To take advantage of this 
 special tariff it must be demonstrated to the satis- 
 faction of the Department that the purposes for 
 which the company is being incorporated bring it 
 within the classes referred to. 
 
 Supplementary Letters Patent. 
 
 Where the capital of a company is increased, the fee 
 
 shall be according to the foregoing list, but on the 
 
 increase only. No fee previously paid is taken into 
 
 account. 
 
 Where the capital is not increased, the fee shall be 
 
 $100. 
 
 Where 'the fee paid for incorporation is $25 or less, 
 
 the fee for Supplementary Letters Patent shall be 
 
 $5. 
 
CHAPTER 178. rf3D 
 
 PAET XI. 
 
 - Mining Companies. 
 
 146. General principle of shares at a discount; cases col- 
 lected: Ee Lake Ontario Nav. Co., 13 0. W. E. 1032, 
 15 0. W. E. 23, 18 0. L. E. 354; see also Article 45 
 C. L. T. 145> 220, 338, and notes to sec. 100 ante. A 
 company subject to the provisions of this part may 
 carry on business ancillary to its powers as a mining 
 company, but when it ceases to be a mining company, 
 it cannot carry on any ancillary business : see Haven 
 Gold Mining Co., 1882, 20 Ch. D. 151; German Date 
 Co., 20 Ch. D. 169; Amalgamated Syndicate, 1897, 
 2 Ch. 600; Stephens v. Mysore Eeef, 1902, 1 Ch. '745; 
 Pedlar v. Eoad Block Co., 1905, 2 Ch. 427. 
 
 PAET XII. 
 
 Companies Operating Municipal Peanchises and Public 
 
 Utilities. 
 
 153. See Public Utilities Act, E. S. O. 1914, ch. 204, and 
 Notes; also the Municipal Franchises Act, E. S. O. 
 1914, ch. 197. Duty cast on public utility corporation 
 in breaking up a street not to cause escape of gas 
 which may be dangerous : Ballentine v. Ontario Pipe 
 Line Co., 12 O. W. E. 273, 16 O. L. E. 654. Nuisance 
 to adjoining property caused in exercise of powers of 
 public utility corporation : Hopkin v. Hamilton Elec- 
 tric, 2 0. L. E. 240, 4 0. L. E. 258. Liability of cor- 
 poration and gas company Where accident happened 
 through non-repair of street, due to trench dug by 
 gas company: Mclntyre v. Lindsay, 4 0. L. E. 448. 
 See E. S. 0. 1914, ch. 204, sec. 51, notes. 
 
 154. Powers of company to place poles and wires on high- 
 way : Bucke v. New Liskeard, 1 0. W. N. 123. Power 
 to erect poles for electric wires in streets under Act 
 of Incorporation; position of municipality: Toronto 
 and N. Power Co. v. North Toronto, 1912, A. C. 834. 
 Consent of electors required for franchises or con- 
 tracts for supply of electrical power : E. S. 0. 1914> 
 c. 205. Franchises to companies operating public 
 utilities : see E. S. 0. 1914, c. 197. By-laws regulat- 
 ing electric light, etc., poles and wires: see E. S. 0. 
 
g3g CHAPTER 178. 
 
 1914, c. 192, sec. 399 (50). By-laws for laying pipes 
 or conduits for electric wires : see E. S. 0. 1914, c. 
 192: see 399 (51). 
 
 162. There is an absolute duty cast on municipal corpora- 
 tions by 3 Edw. VII., ch. 19, sec. 606, E. S. 0. 1914, 
 ch. 192, sec. 460, to keep highways in repair, and they 
 cannot divest themselves of it by requiring public 
 utility corporations to assume it. Such a company 
 may have a right to dig up the highway, but in giving 
 that authority the municipality does not free itself 
 from its statutory liability: Mclntyre v. Lindsay, 4 
 O. L. E. 448; Stilliway v. Toronto, 20 O. E. 98. Lia- 
 bility of company operating a public utility. It must 
 exercise its powers in respect of its works so as not 
 to commit a nuisance : Hopkin v. Hamilton Electric, 
 2 0. L. E. 240, 4 0. L. E. 258 ; Gareau v. Montreal St. 
 Ey., 31 S. C. E. 463. As to railways see : London and 
 Brighton Ey. v. Truman, 11 App. Cas. 45 ; Eapier v. 
 London Tramways, 1893, 2 Ch. 588. See notes to 
 E. S. 0. 1914, ch. 192, sec. 460 (7), and ch. 204, sec. 51. 
 
 166. Measure of damages where property taken in emi- 
 nent domain proceeding : 1 D. L B. 508. Acquisition 
 of land without consent of owner under Eailway Act : 
 see E. S. 0. 1914, ch. 185, sec. 81 et seq., and Notes 
 to those sections. See also Expropriation Act, E. S. 
 C 143, and the expropriation sections of Dominion 
 Eailway Act, E. S. C. 37, sec. 172 et seq. Eight of 
 expropriation by timber slide companies, see E. S. 0. 
 1914, ch. 181, and especially sees. 23 and 26. Expro- 
 priation under Public Utilities Act, see E. S. 0. 1914, 
 ch. 204, and especially sees. 5 (4) (municipal water- 
 works) ; sec. 19 (municipal utility works other than 
 waterworks) ; sec. 54 (conditions precedent to public 
 utility company expropriating). As to expropriation 
 and compensation under the Municipal Act, see E. S. 
 0. 1914, oh. 192, sec. 321 et seq. 
 
 PAET. XIII. 
 
 Winding-up of Companies. 
 
 167. See E. S. C. 144, sec. 48 et seq. ; 25-26 Vic, ch. 89, sec. 
 74 Imp., "Contributory ;" cf. E. S. C. 144, sec. 2 (g). 
 A debtor is not a contributory, and where a share- 
 holder is also a debtor, he is not a contributory quoad 
 
CHAPTER 178. 837 
 
 'the debt: Ee Central Bank, Yorke's Case, 15 0. E. 
 625. A collection of English and Canadian cases on 
 the meaning of the term ' ' contributory" will be found 
 in the Annotations to E. S. C. 144, sec. 2(g). 
 
 Liability of transferor of bonus shares to be placed 
 in list of contributories : Ee Wiarton Beet Sugar Co., 
 Freeman's Case, 12 0. L. E. 149. Liability of person 
 to whom invalid preference shares are allotted : Ee 
 Packenham Pork Packing Co., 12 O. L. E. 100. With- 
 drawal of written subscription which was not 
 accepted because not accompanied by necessary 
 deposit: Ee Provincial Grocers, 10 O. L. E. 705. 
 Eevoking sealed application for 3 shares, and what 
 amounts to sufficient allotment : Nelson Coke and Gas 
 Co. v. Pellatt, 4 0. L. E. 481, where the cases are re- 
 viewed and a large number are cited. A subscriber 
 for a share in a company was debited in the stock 
 ledger with a share, was placed in the "shareholders' 
 list," was drawn on for a call of 10%, and paid the 
 draft. This was held to be a form of allotment, and 
 the subscriber was made a contributory: Hill's Case, 
 10 O. L. E. 501. Liability of subscriber where sub- 
 scription under seal : Ee Manes Tailoring Co., 11 0. 
 W. E. 498, 13 0. W. E. 829, 18 0. L. E. 572. Liability 
 as contributory; action to set aside subscription for 
 shares : Foley v. Barber, 14 0. W. E. 669, aff . 16 0. 
 W. E. 607. Subscription obtained on representation 
 that no further calls would be made : Traders Fire v. 
 Apps, 1 0. W. N. 534, 15 0. W. E. 562. Stock not 
 allotted and subscription induced improperly: Ee 
 Nutter Brewery, 15 0. W. E. 265. Allotment o'f 
 shares previously allotted to another : Ee Henderson 
 Eoller Bearing, Prout's Case, 11 0. W. E. 526. Ee- 
 pudiation of shareholders in winding-up : Ee York 
 County Loan, 11 0. W. E. 507. See also sees. 91 and 
 112 and cases noted there. 
 
 Where the subscription for shares is on condition, 
 and the condition is not performed by the company, 
 an answer may be afforded 'to an application to place 
 the subscriber on list of contributories : Ee Canadian 
 McVicker's Engine Co., Geis's Case, 13 0. W. E. 916, 
 and cases there cited ; see also Ee Lake Ontario Nav. 
 Co., 13 0. W. E. 1032, at p. 1034, 15 0. W. E. 23, 18 
 0. L. E. 354. Where shareholder may have been in- 
 duced to become shareholder by misrepresentation, 
 
838 CHAPTER 17B. 
 
 and after knowledge of true facts elects to remain, it 
 is fatal to his claim in winding-up to have his sub- 
 scription set aside : Ee National Husker Co., 5 0. W. 
 N. 375. 
 
 In winding-up proceedings, holders of shares are 
 liable for the full amount unpaid on shares issued to 
 them, notwithstanding that they may have been 
 issued as paid up, if they were not in fact paid up : 
 Re Lake Ontario Navigation Co., 13 O. W. R. 1032, 
 and cases collected, p. 1034, 15 0. W. R. 23, 18 0. L. R. 
 354. Shares, if paid for in money or money's worth, 
 must be treated as paid-up shares. There is no au- 
 thority to enquire into the adequacy of the consider- 
 ation: Re Cornwall Furniture Co., 14 0. W. R. 352, 
 15 0. W. R. 614, 20 0. L. R. 570. Liability for shares 
 issued as "paid up;" cases collected and discussed: 
 lb. ; see also Re Clinton Thresher Co., 20 0. L. E. 
 555, 15 0. W. R. 645, 1 0. W. N. 595; Re Niagara 
 Falls Heating Co., 1 0. W. N. 439, 15 0. W. R. 326. 
 Contract to take payment for land in company's 
 shares; effect of new arrangement for payment and 
 liability in winding up : Re Modern House Mfg. Co.. 
 28 0. L. R. 237, 29 0. L. R. 266. 
 
 Shares allotted by directors to themselves as fully 
 paid up : Re Manes Tailoring Co., 18 0. L. R. 572, 11 
 O. W. R. 498, 13 0. W. R. 829. Colourable transaction 
 to issue shares at discount: Lindsay v. Imperial 
 Steel, 21 0. L. R. 375, 1 0. W. N. 347, 930, 14 O. W. R. 
 105, 16 0. W. R. 406. The doctrine that a bona fide 
 holder for value of shares which purport to be fully 
 paid up, without notice that they are not so, is not 
 liable for calls, is not confined to cases where the 
 holder is a transferee of the shares, but extends also 
 to the case of an allottee : Re Building Estates, Par- 
 bury 's Case, 1896, 1 Ch. 100; Re Veuve Monnier, 
 1896, 2 Ch. 525. The consideration which must be 
 given for shares that they may be deemed paid up 
 and the holders not liable as contributories, must be 
 a real valid bona fide consideration in cash or its 
 equivalent, actually paid or transferred : North West 
 Electric v. Walsh, 29 S. C. R. 33 ; Ooregum Gold Min- 
 ing Co. v. Roper, 1892, A. C. 125; Hood v. Eden, 36 
 S. C. R. 476; Re Wiarton, McNeill's Case, 10 0. L. R. 
 219. Where directors have issued to themselves 
 shares as a secret profit, such shares may be treated 
 
CHAPTER 178. §39 
 
 as unpaid shares in winding-up proceedings: see 
 judgment of Strong, C.J. ; Be Hess Mfg. Co., 23 S. C. 
 R.„ at p. 659; Gluckstein v. Barnes, 1900,, A. C. 240. 
 Power of Master to enquire into adequacy of consid- 
 eration: see Be Hess Mfg. Co., 23 S. 0. B. 644; Hood 
 v. Eden, 36 S. C. B. 476; Be Cornwall Furniture Co., 
 18 0. L. B. 101, 13 O. W. E. 137, 14 O. W. B. 352, 20 
 O. L. B. 570. Circumstances under which adequacy of 
 reality of consideration for paid-up shares may be 
 considered. Promoters' secret profit: see Be Hess, 
 23 S C. B. 644; see also notes to sees. 93 and 100 
 ante. 
 
 A shareholder cannot set off his debt as against a 
 liquidator's claim: Be Hiram Maxim Lamp Co., 1903, 
 1 Ch. 70; see also as to set off: Be General Works 
 Co., 12 Ch. B. 755; Be Overend Gurney & Co., L. B. 
 1 Ch. 528 ; Be Auriferous Properties, 1898, 2 Ch. 428 ; 
 Benor v. Canadian Mail Order, 10 O. W. B. 899; Re 
 C. B. C. Corset Co., 12 O. W. E. 185. The position 
 that a contributory is not entitled to set off the com- 
 pany's indebtedness to him against the amount due 
 on his shares is as well settled under the Ontario as 
 under the English cases: Be Wiarton Beet Sugar 
 Co., 10 O. L. B. 219, 5 O. W. B. 637; Be Ottawa Ce- 
 ment Block Co., 9 O. W. E. 305. But where the in- 
 debtedness arose out of payments properly made on 
 the company's behalf, and entered in the books be- 
 fore winding-up, the general law of set-off applies. 
 Be Ottawa Cement Block Co., 9 O. W. B. 409. A set- 
 off properly made before winding-up commenced 
 should not be disturbed: Habershon's Case, L. L. 5 
 Eq. 286; Spargo's Case, L. E. 8 Ch. 407; see Notes 
 to sec. 74. 
 
 Position of holder of shares as collateral security for 
 accommodation paper: Be Perrin Plow Co., Allan's 
 Case, 11 O. W. E. 186, 12 O. W. E. 387. Position as 
 contributory where stock is held as security: Be 
 Davies, McNichol's Case, 18 O, L. E. 240, 13 0. W. B. 
 579 ; and see sec. 77 ante. Liability of holder of un- 
 paid shares upon an acknowledged trust: Be Stand- 
 ard Mutual Fire, 1. O. W. N. 974; and see sec. 76 ante. 
 
 Eight of liquidator to have infants placed on list of 
 contribute ries ; contractual relation: Be National 
 Bank of Wales, 1907, 1 Oh. 582. A contributory mus't 
 
840 CHAPTER 178. 
 
 satisfy his liability as owner of shares not fully paid 
 up before he can share in distribution of surplus 
 assets; position of bankrupt shareholder: Re West 
 Coast Gold Fields, 1905, 1 Ch. 597. Transfer of 
 shares after commencement of voluntary winding- 
 up : Re National Bank of Wales, 1897, 1 Ch. 298; and 
 see sec. 171, note. The costs of successful appellants 
 from an order making them contributories are pay- 
 able out of the assets of the estate in priority to those 
 incurred by the liquidator : Re Baden Machinery Com- 
 pany, 12 0. L. R. 634. 
 
 169. Compare R. S. C. 144, sec. 3. The Dominion Act, so 
 far as it applies to Ontario companies, does so as in- 
 solvency legislation, and therefore within the juris- 
 diction of the Federal Parliament: Re Union Fire 
 Assurance Co., 14 0. R. 618, 16 A. R. 161, 17 S. C. R. 
 265. And insolvency must be shewn before it can be 
 applied to a company under the Ontario Act. In so 
 far as the Dominion Act purports to deal with volun- 
 tary liquidation or winding-up of solvent companies, 
 it must be taken as referring to companies which are 
 subject to federal control or incorporated under the 
 Dominion Companies Act: Re Cramp Steel Co., 11 
 0. W. R. 133, 16 0. L. R. 230. And under the. Dom- 
 inion Act this insolvency must be alleged in the peti- 
 tion (Re Briton Medical, etc., Association, 11 0. R. 
 478) ; and the facts must be shewn — consent (Re 
 Grundy Stove Co., 7 0. L. R. 252) ; non-appearance 
 (Re Lake Winnipeg Trading Co., 7 M. L. R. 255) ; 
 or even a return of nulla bona (Re Qu'Appelle Val- 
 ley, 5 M. L. R. 160) are insufficient. 
 
 A resolution for voluntary winding-up passed at an 
 extraordinary general meeting convened by the sec- 
 retary without authority of the directors, on requisi- 
 tion of the shareholders, within twenty-one days of 
 'the requisition being deposited, was held invalid. This 
 is not a mere irregularity : Re Wyoming State Syndi- 
 cate, 70 L. J. Ch. 727, 1901, 2 Ch. 431; Re Haycroft 
 Gold Reduction Co., 69 L. J. Ch. 497, 1900, 2 Ch. 230. 
 The notice of a general meeting must disclose all 
 facts necessary to enable the shareholder receiving it 
 to determine in his own interest whether or not he 
 ought to attend the meeting. Where directors have a 
 personal interest, the notice must disclose it : Tressen 
 v. Henderson, 1899, 1 Ch. 861; Kaye v. Croyden 
 
CHAPTER lt8. g4| 
 
 Tramways, 1898, 1 Ch. 358. The resolution for vol- 
 untary winding-up must be in accordance with the 
 resolution of which notice is given when the general 
 meeting is called, otherwise it is invalid: Re Teede 
 and Bishop, 70 L. J. Ch. 409. The consent separately 
 obtained by the secretary of directors sufficient in 
 number to a quorum to the sending out of a notice 
 of general meeting, is not equivalent to a resolution 
 for holding such a meeting passed at a board meet- 
 ing: D'Arcy v. Tamar, L. R. 2 Ex. 158; Re Haycraft 
 Gold Reduction Co., 1900, 2 Ch. 230. As soon as a 
 resolution for voluntary winding-up has been passed, 
 a resolution for the appointment of a liquidator can 
 be proposed and carried without previous notice : Re 
 Trench Tubeless Tire, 1900, 1 Ch. 408. Where a com- 
 pany passed several resolutions for voluntary wind- 
 ing-up and reorganization, and some of the resolu- 
 tions were ultra vires and invalid, the resolution for 
 voluntary liquidation was not thereby rendered in- 
 valid: Thomson v. Henderson's Transvaal Estates, 
 1908, 1 Ch. 765. It is contempt of Court while a peti- 
 tion for winding-up is pending to obtain by improper 
 means and with a view to mislead the Court, the pass- 
 ing of a resolution for voluntary liquidation : Re Par- 
 sonage and Co., 1901, 2 Ch. 424. A corporation can- 
 not validly undertake not 'to wind up voluntarily : Re 
 St. Neots Water Co., 93 L. T. 788. 
 
 As an alternative to winding up whether voluntarily 
 under this Act or under the Dominion Act, a com- 
 pany may make an assignment for the benefit of its 
 creditors under the provisions of R. S. O. 1914, ch. 
 134. This may be done by the directors without con- 
 sultation with the shareholders: Whiting v. Hovey, 
 13 A. R. 7; 14 S. C. R. 511. Where an assignment 
 has been made, and a majority of the creditors ap- 
 prove, and no special circumstances intervene, (e.g., 
 Re Haycroft Gold Reduction Co. (1900), 2 Ch. 230; 
 Re Gold Co., 11 Ch. D. 701), making an order under 
 R. S. C. 1906, ch. 144, desirable, the assignee for bene- 
 fit of creditors may be permitted to proceed: Re 
 Belding Lumber Co., 23 O. L. R. 255; Re Strathy 
 Wire Fence Co., 2 O. W. R. 834; Re Maple Leaf 
 Dairy Co., 2 O. L. R. 590; Re Lamb Mfg. Co., 32 
 O. R. 243 ; Wakefield Rattan Co. v. Hamilton Whip 
 Co., 24 O. R. 107 ; and see post sec. 187, 188, notes. 
 If a winding up order is applied for, service on the 
 
842 CHAPTER 17B. 
 
 assignee under E. S. 0. 1914, ch. 134, is not good 
 service : Re Rodney Casket Co., 12 0. L. R. 409. See 
 R. S. 0. 1914, eh. 134, notes, also ch. 155, sec. 20 (9)' 
 and 38, notes. 
 
 170. Compare R. S. C. 144, sec. 5. Commencement of 
 winding-up : Bank of Hamilton v. Kramer Irwin, 20 
 O. W. R. 999, 3 O. W. N. 603. 
 
 171. Compare R. S. C. 144, sees. 20, 21. A voluntary 
 winding-up does not act as a dismissal of the servants 
 of the company, as there is no change in the person- 
 ality of the employer: Midland Counties District 
 Bank v. Attwood, 1905, 1 Ch. 357. Where directors 
 made invalid transfers of stock, they may be placed 
 on the list of contributories : Re Publishers' Syndi- 
 cate, Paton's Case, 5 O. L. R. 392. Transfer of shares 
 after commencement of voluntary liquidation pro- 
 ceedings: Re National Bank of Wales, 1897, 1 Ch. 
 298. A transferee of shares under transfers executed 
 before 'the date of resolution for voluntary liquida- 
 tion, is not entitled to insist on registration of the 
 transfers after such resolution, merely because an ac- 
 tion has been brought to declare the resolution in- 
 valid and an injunction granted to restrain it being 
 acted on: Re Violet Consolidated, 68 L. J. Ch. 535. 
 Validity of transfer of shares after assignment for 
 benefit of creditors : Schantz v. Clarkson, # O. W. N. 
 1303, 24 O. W. R. 596. 
 
 173. Compare R. S. C, sees. 22, 23. Where a damage ac- 
 tion is pending or is brought against a company in 
 voluntary liquidation, the liquidator should apply to 
 stay the action ; when the Court, if allowing it to go 
 on, may make terms that 'the plaintiff, if successful, 
 should add his costs to the damages recovered. When 
 this is not done, the liquidator must pay the costs in 
 full out of the assets: Re Wenborn and Co., 1905, 1 
 Ch. 413. Action for breach of contract against com- 
 pany in liquidation : Hamilton Mfg. Co. v. Hamilton 
 Steel Co., 16 0. W. R. 694. Stay of proceedings: 
 Duke v. Ulrey, 14 0. W. R. 932. In view of this sec- 
 tion plaintiff was not permitted to bring action 
 against company in process of voluntary liquidation 
 for damages for misrepresentations : Allen v. Hamil- 
 ton, 1 0. W. N. 659. Position of mortgagee-creditor's 
 action to recover possesion : Re Kurtz and McLean, 
 
CHAPTER 178. §43 
 
 11 0. W. R. 437. Staying execution pending arrange- 
 ment with creditors : Booth v. Walkden Spinning Co., 
 1909, 2 K. B. 368. Procedure ; appeals : Re Pittsburg 
 and Ro'bbins, 2 0. W. N. 1295, 19 0. W. R. 535. Where 
 a liquidator enters and carried on the company's 
 business, the Court can give leave to distrain for rent 
 accrued due since the liquidator entered, or to a mort- 
 gagee with power of distress in respect of interest 
 since that time; the applicant must shew reasons : Re 
 Higginshaw Mills, 1896, 2 Oh. 544. The Court, it 
 seems, has power to restrain a distress commenced, or 
 execution levied at the time of the winding-up. But 
 the power, if it exists, will not be exercised unless 
 special reasons exist making it inequitable to allow 
 the sale: Re Roundhead Colliery Co., 1897, 1 Ch. 373. 
 Forfeiture of lease on compulsory or voluntary 
 liquidation. Such a condition will give a right of re- 
 entry upon the liquidation of the company for any 
 cause whatever, including liquidation for re-con- 
 struction: Horsey Estate v. Steiger, 1899, 2 Q. B. 79. 
 See R. S. 0. 1914, ch. 155, sees. 20 (9), 38, notes. 
 
 174 —(a) A judgment creditor of a company is not, by ob- 
 taining an order for a receiver in respect of his debt, 
 constituted a secured creditor: Re Great Ship Co., 4 
 De G. J. & S. 63 ; Croshaw v. Lyndhurst Ship Co., 
 1897, 2 Ch. 154; In Re Lough Neagh Ship Co., 1896, 
 1 Ir. R. 29. Where a company assigned notes to a 
 bank, the bank is entitled, on a winding-up of the com- 
 pany, to an assignment of any collateral given with 
 the notes by the debtor: Re Canadian Gas, Power, 
 etc., Ltd., Ridge's Claim, 5 0. W. N. 43, 25 0. W. R. 
 51. Preferential claims of holders of mechanics' 
 liens : Re Clinton Thresher Co., 1 0. W. N. 445. Dis- 
 tribution of profits of sale; arrears of dividends ; pre- 
 ferred shareholders ; sharing surplus : Espuela Land 
 and Cattle Co., 1909, 2 Ch. 187. Assets insufficient to 
 return capital surplus revenue ; arrears of dividends, 
 preference shareholders and priority over capital: 
 Accrington Corporation Steam Tramways, 1909, 2 
 Oh. 40. Capital and profits; disposition; rights of 
 preferential shareholders : Re Hall, 1909, 1 Ch. 521. 
 
 174. — (b) See R. S. O., 1914, ch. 143, sec. 3, and notes; see 
 also Midland Counties District Bank v. Attwood, 
 1905, 1 Ch. 357, note to sec. 171 ante. Preferential 
 claims for salary; terms of employment considered: 
 
g44 CHAPTER 176. 
 
 Re Beeton Co., 1913, 2 Oh. 279. A commercial trav- 
 eller is within this enactment : Re Morloch and Oline, 
 Ltd., 23 0. L. R. 165. An auditor is not : Re Ontario 
 Forge and Bolt Co., 27 0. R. 230. 
 
 174. — (c) Liquidator's remuneration: see sec. 175, notes. 
 
 174. — (e) Where the Court has appointed a receiver who 
 has incurred liabilities in the management of the 
 estate, the Court will see that those creditors are 
 satisfied either by the receiver, or, if he is bankrupt, 
 by payment out of the fund in Court direct to the cre- 
 ditors : Re London United Breweries, 1907, 2 Ch. 511. 
 The liquidator seems to be somewhat in the position 
 of receiver or agent appointed by the Court to repre- 
 sent the company for the purposes of the Act, not as 
 assignee, but as statutory representative for the pur- 
 poses of winding-up : McCarter v. York County Loan, 
 10 0. W. R. 16*5, 14 0. L. R. 420. Function of liquid- 
 ator: Schantz v. Clarkson, 4 0. W. N. 1303, 24 0. W. 
 R. 596. 
 
 174. — (g) The onus is on the liquidator who seeks to place 
 a person on the list of contributories : Re Port Hope 
 B. & M. Co., 3 D. L. R. 426. 
 
 174. — (h) Contributories: see notes to sec. 167 ante. Con- 
 tract with company to take payment for land in com- 
 pany shares ; effect of new arrangement for payment 
 and liability in winding-up : Re Modern House Mfg. 
 Co., 28 0. L. R. 237. In appeal 29 0. L. R. 266, the 
 Court was evenly divided. Liquidator making calls : 
 see Re Cudova Union Gold Co., 1891, 2 Ch. 580. 
 
 174. — (i) Where there is a guaranty and payment by 
 guarantors to secured creditor; method of consider- 
 ing claim in winding-up : Re Stratford Fuel Co., 28 
 0. L. R. 481. Moneys paid to creditor after com- 
 mencement of winding-up : Trusts and Guarantee v. 
 Munro, 1 0. W. N. 52. 
 
 175. See R. S. C. 144, sec. 92. Liquidator's remuneration 
 is usually on a percentage basis, having in view the 
 responsibility imposed, the time occupied and work 
 done : Re Central Bank, 15 0. R. 309. The remunera- 
 tion of a voluntary liquidator must be considered in 
 
CHAPTER 178. 845 
 
 regard to its own particular circumstances. No uni- 
 form scale can be adopted : Ee Amalgamated Syndi- 
 cates, 1901, 2 Ch. 181. Distribution of remuneration 
 among liquidators : Ee Central Bank, 15 0. E. 309 ; 
 Ee Langham Hotel Co., 17 W. E. 463. Where resolu- 
 tions for voluntary winding-up have been set aside 
 and compulsory proceedings gone on with, the volun- 
 tary liquidator cannot prove a claim nor recover on 
 an implied contract for services. He is entitled to 
 claim payment for services beneficial to the company 
 and accepted by them for business purposes outside 
 the liquidation on the basis of a quantum meruit : Ee 
 Allison, etc., Ex parte Carhill, 1904, 2 K. B. 327. 
 Costs o'f unsuccessful litigation are paid in priority 
 to the costs of the liquidator's own solicitors, whether 
 in compulsory or voluntary litigation: Ee Pacific 
 Coast Syndicate, 1913, 2 Ch. 26. The taxed costs of 
 the solicitor for the liquidator must be paid out of the 
 assets before any remuneration due to the liquidator : 
 Ee Sanitary Burial Association, 1900, 2 Ch. 289. 
 Costs of liquidator's solicitor in voluntary liquidation 
 proceedings : see Be National Bank of Wales, 1902, 2 
 Ch. 412. Liquidator's compensation and costs and 
 'their priority: Ee Baden Machinery Co., 15 O. L. E. 
 634 ; see also Ee Central Bank, Lye 's Claim, 22 O. E. 
 247. 
 
 176. Compare E. S. C. 144, sec. 34. 
 
 176. — (1) (a) Action on executory contract: Hamilton 
 Mfg. Co. v. Hamilton Steel and Iron Co., 23 O. L, 
 E. 270. Proceedings to set aside consent judgment 
 obtained prior to winding-up ; leave of Court neces- 
 sary: Bank of Hamilton v. Kraemer Irwin Co., 1 
 D. L. E. 475. In a suit by assignees of receivers of a 
 company not in liquidation, see as to debtor's right 
 to set-off in respect of damages for breach of con- 
 tracts between the debtors and the company: Par- 
 sons v. Sovereign Bank, (1913) A. C. 160. 
 
 176. — (1) (&) The only effect of the winding-up order is 
 to prevent the company from carrying on its business 
 except in so far as is in the opinion of the liquidators 
 required for the beneficial winding-up. The corpor- 
 ate state and all the corporate powers continue until 
 the company is wound up: McCarter v. York County 
 Loan, 10 O. W. E. 165, 14 O. L. E. 420. To preserve 
 
g46 CHAPTER 17S. 
 
 the good- will as well as the company's assets the 
 liquidator should not disregard contracts of the 
 company antedating his appointment : Re Newdigate 
 Colliery, 1912, 1 Ch. 468. 
 
 176. — (1) (c) As upon appointment of liquidator the 
 powers of directors cease (sec. 174 (e)), their fidu- 
 ciary relations are at an end, and a sale to them by 
 the liquidator may be valid : Chatham National Bank 
 v. McKeen, 24 S. C. E. 348. A liquidator is in a fidu- 
 ciary position and cannot under any disguise make a 
 sale- to himself. If he does he must account for the 
 rents and profits that accrue: Silkstone and Haigh 
 Moor Co. v. Edey, 1900, 1 Ch. 167. Sale of assets of 
 liquidator as going concern " free from incum- 
 brances:" Dominion Linen Mfg. Co. v. Langley, 14 0. 
 W. E. 1163, 1 0. W. N. 262, 19 0. W. E. 648, 2 0. W. 
 N. 1255, 46 S. C. E. 633, 23 O. W. E. 318. A winding- 
 up order does not cut down the rights of a lessee with 
 option to purchase : McCarter v. York County Loan, 
 10 O. W. E. 165, 14 O. L. E. 420. The power to sell 
 the assets is in the liquidator, not with the Court, even 
 where the liquidator must obtain the approval of the 
 Court as a condition to exercising the power of sale : 
 Ee Canada Woollen Mills, Long's Case, 8 O. L. E. 
 581, 9 0. L. E. 367. See under former provisions of 
 voluntary winding-up sale of assets by liquidator: 
 Ee D. A. Jones Co., 19 A. E. 63. See notes to E. S. 
 0. 1914, ch. 134. 
 
 177. Aninspector is in a fiduciary position as regards the 
 disposal of the assets, and cannot, without the consent 
 of all parties interested, become the purchaser: Re 
 Canada Woollen Mills, Long's Case, 8 0. L. E. 581, 9 
 O. L. E. 367. Constitution of committee of inspec- 
 tion ; power of court to alter and order a fresh meet- 
 ing: Ee Eadford and Bright, 1901, 1 Ch. 735. See 
 notes to E. S. 0. 1914, ch. 134, sec. 21. 
 
 178. See E. S. C. 144, sees. 42, 43, 67. Money standing at 
 companies' liquidation account is not garnishable: 
 Spence v. Coleman, 1901, 2 K. B. 199. 
 
 181. Compare E. S. C. 144, sec. 72; see E. S. 0. 1914, ch. 
 121, sec. 56 and notes. It is the duty of the liquidator 
 before distributing the assets of the company not only 
 
CHAPTER ITS. 847 
 
 to advertise for creditors, but also to write to those 
 creditors whose names he knows, and ask them if they 
 have any claims against the company: Pulsford v. 
 Devenish, 73 L. J. Ch. 35, 1903, 2 Ch. 625. 
 
 182. See R. S. C. 144, sec. 69 ; and see notes to sec. 174. 
 
 183. See 'Companies' Act (Imp.), 1862, sec. 160; see also 
 E. S. C. 144, sees. 37, 56, 58, 64. A compromise by the 
 voluntary liquidator of a claim by the company 
 against a third party is binding on the company, not- 
 withstanding that it has not been sanctioned by reso- 
 lution: Cycle Makers' Co-operative Supply v. Sims, 
 1903, 1 K. B. 477. 
 
 184.— (1) Cf. Imperial Companies Act, 1862, sec. 161. 
 "Where directors have a personal interest in a recon- 
 struction scheme, 'the notice calling the special gen- 
 eral meeting must disclose it : Tressen v Henderson, 
 1899, 1 Oh. 861 ; Kaye v. Croyden Tramways, 1898, 1 
 - Ch. 358. It was seen that there were many cases in 
 which a company may wind itself up voluntarily or 
 the like merely for purposes of reconstruction, and it 
 would be very advantageous that there should be a 
 power for the company to reconstruct itself. That is 
 one of the objects sought to be accomplished by this 
 section; but the gist of the section is that the liquid- 
 ators, instead of selling for money, may sell for 
 shares ; but as a safeguard against imposing a pos- 
 sible liability on a member, the Legislature has said 
 in substance that if he dissents he may receive his 
 share in money. Per Chitty, L.J. : Colton v. Imperial 
 and Foreign Agency Co., 1892, 3 Ch. 454, 460. A 
 power to sell for shares includes a power to sell for 
 partly paid shares: Mason v. Motor Traction Co., 
 1905, 1 Ch. 419. A company cannot effect a sale of its 
 assets under this section to a foreign company: 
 Thomas v. United Butter Companies, 1909, 2 Ch. 484. 
 An agreement under this section by a company about 
 to be wound up voluntarily for the sale and trans- 
 fer of its 1 business to another company, is binding on 
 • the creditors of the transferring company: Be City 
 and County Investment, 13 Ch. D. 475. Jurisdiction 
 of Court in case of breach of duty by liquidator in a 
 reconstruction, in causing loss to a contributory in 
 not procuring him an allotment of shares in new com- 
 pany : Re Hill's Waterfall Estate, 1896, 1 Ch. 947. A 
 
g4£ CHAPTER 178. 
 
 reconstruction scheme is not ultra vires because it 
 provides that the shares which dissentient members 
 could have claimed but for their dissent, and other 
 members could have claimed had they applied in time, 
 should be at the disposal of the new company : Bur- 
 dett Coutts v. True Blue Mine, 1899, 2 Oh. 616. "Re- 
 construction" is a commercial, not a legal 'term. It 
 means carrying on the same business by practically 
 the same persons, but in an altered form. A mere 
 sale is not a reconstruction. ' ' Amalgamation ' ' means 
 a blending of two undertakings, for instance by a 
 transfer of the undertakings of two companies to a 
 third company: Ee South African Supply, etc., Co., 
 1904, 2 Ch. 268. The Court can sanction a scheme for 
 reconstruction and rearrangement involving a trans- 
 fer of assets of the old company to a new company be- 
 fore the new company is actually incorporated: Be 
 Canning Jarrah Timber Co., 1900/1 Ch. 708. But 
 the Court will be slow to sanction reconstruction 
 which involves payment of an underwriting commis- 
 sion out of the assets of the old company: lb.. Ex- 
 ample of a scheme for reorganization; underwriting 
 shares in new company; paying unsecured creditors 
 and dealing with dissentients : see Re Canning Jarah 
 Timber Co., 1900, 1 Ch. 708. In reconstruction, the 
 right of a bare majority of creditors to destroy the 
 securities of the minority can only be obtained 
 by the clearest of agreements, and the Court will not 
 refuse leave to try a right which is claimed, unless it 
 is perfectly clear there is no foundation for the claim: 
 Re Diehl and Carrett, 10 O. W. R. 403. Reconstruc- 
 tion; sale to new company: Bisgood v. Nile Valley 
 Co., 1906, 1 Ch. 747; Fuller v. White Feather, 1906, 
 1 Oh. 823. The articles of association provided that 
 subject to the difference in dividing the profits, pre-- 
 ferred and deferred shares should rank equally in 
 the company. Held in a voluntary winding-up that 
 the two classes were entitled to capital pro rata: 
 Griffith v. Paget, 6 Ch. D. 511. Amalgamation 
 schemes : Re Consolidated South Rand Mines, 1909, 
 1 Ch. 491; Re British Building Stone Co., 1908, 2 Ch. 
 450. 
 
 184. — (2) A scheme involving the practical forfeiture of 
 the shares of dissentient members is ultra vires : Bis- 
 good v. Nile Valley Co., 1906, 1 Ch. 747. Scheme to 
 sell assets for partly paid shares with option to 
 
CHAPTER 1718. 849 
 
 shareholders to accept, and shares not accepted to be 
 sold and proceeds distributed, held not ultra vires : 
 Fuller v. White Feather, 1906, 1 Oh. 823. A company 
 cannot by its articles of association deprive members 
 of the protection afforded them by sec. 161 of the 
 Companies' Act of 1862 in the event of their dissent- 
 ing from a sale of the company's assets in a winding- 
 up, in consideration of shares in a new company: 
 Payne v. The Cork Company, Ltd., 1900, 1 Ch. 308; 
 but it is otherwise where the sale is not made in a 
 winding-up : Cotton v. Imperial, 1892, 3 Ch. 454. 
 Eight of minority shareholder to object to unfair 
 scheme for voluntary liquidation: Be Consolidated 
 South Band Mines, 1909, 1 Ch. 491. Bights of non- 
 assenting shareholders: Bisgood v. Henderson's 
 Transvaal Estates, 1908, 1 Ch. 743. Eight of dis- 
 sent : Ex parte Los, 34 L. J. Ch. 609. Duty of dissen- 
 tient member to express his dissent : Ex parte Higgs, 
 2 Hern & M. 657, 13 W. B. 937. Form of notice of dis- 
 sent : Be Union Bank of Kingston Upon Hull, 13 Oh. 
 D. 808. Late notice not objected to : Be London and 
 Westminster Bread Co., 59 L. J. Ch. 155. Bights of 
 dissentient members : Be Imperial Mercantile Credit 
 Co., L. E. 12 Eq. 504. Continuing liability : Be Im- 
 perial Land Co., Vining's Case, L. B. 6 Ch. 96. Ex 
 parte Poole: Be Marine Investment, L. B. 8 Oh. 702. 
 
 184. — (4) A clause in the articles of association settling 
 the method of valuing a dissentient member's share 
 is not an "agreement" within this sub-section which 
 will deprive him of his right to have the value settled 
 by arbitration : Baring Gould v. Sharpington, 1899, 2 
 Ch. 80. An action will lie against the company for 
 the amount of the award : De Eosaz v. Anglo-Italian 
 Bank, L. B. 4 Q. B. 462. Eight of dissentient mem- 
 ber to inspection before arbitration: Morgan's Case, 
 28 Ch. D. 620. Commission to examine witnesses 
 abroad: Be Mysore West Gold Mining Co., 42 Ch. 
 D. 535. No interest payable except from date 
 when award demanded': Be United States Direct 
 Cable Co., 48 L. J. Ch. 665. Action by dissentient 
 member: De Eosaz v. Anglo-Italian Bank, L. E. 4 
 Q. B. 462. The remedy of a dissentient shareholder 
 whose rights are disregarded on a reconstruction is 
 hy action and not by petition for compulsory wind- 
 ing-up : Be Hester and Co., 44 L. J. Oh. 757. 
 
 s.a. — 54 
 
g50 CHAPTER 178. 
 
 186. The Companies Act (Imp.) 1862, sec. 161 (sec. 184 
 supra), does not relate to a purely voluntary wind- 
 ing-up only, but includes a voluntary winding-up 
 under supervision of the Court: Re Imperial Mer- 
 cantile Credit, L. E. 12 Eq. 504. 
 
 187. Compare E. S. C. 144, sec. 11. The Court has dis- 
 cretion to withhold a winding-up order under E. S. C. 
 144, sec. 11. Where the assets were small and the 
 creditors had almost unanimously entered on a volun- 
 tary liquidation a petition for a compulsory order 
 was refused: Ee Maple Leaf Dairy Co., 2 0. L. E. 
 590: see also Wakefield Eattan Co. v. Hamilton 
 Whip Co., 24 0. E. 106 ; but see Ee William Lamb 
 Mfg. Co., 32 O. E. 243. See ante sec. 169 notes. It is 
 not the effect of a compulsory winding-up order to 
 nullify proceedings which have been taken under a 
 previous voluntary winding-up: Cleve v. Financial 
 Corporation, L. E. 16 Eq. 363; Thomas v. Patent 
 Lionite, 17 Ch. D. 250. When a company is in volun- 
 tary liquidation, an unpaid creditor is not entitled to 
 an order for compulsory winding-up of ex debito jus- 
 titiae, if it appears that he will be paid in full and a 
 majority of other creditors oppose the application: 
 Ee Universal Drug Supply Co., 22 W. E. 675 ; Ee Lon- 
 don "Flour Co., 18 L. T. 136 ; see Ee Electric and Mag- 
 
 » netic Co., 50 L. J. Ch. 491. Though the applying 
 creditor may be entitled, ex debito justitiae, to a com- 
 pulsory winding-up order, he is not so entitled as 
 against the wishes and opposition of all other credi- 
 tors: Ee West Hartlepool Iron Works, 1875, L. E. 
 10 Ch. 618. The petitioner must at least shew that 
 he will be prejudiced by the voluntary winding-up: 
 Ee Bishop and Sons, Ltd., 1900, 2 Ch. 254. The 
 existence of a voluntary winding-up is a strong 
 reason why the Court should decline to interfere by 
 granting a compulsory order, but circumstances may 
 justify interference: Ee Haycroft Gold Eeduction 
 Co., 1900, 2 Ch. 230; Ee Gold Co., 11 Ch. D. 701. The 
 fact that the substratum of a company is gone is not 
 ground for a compulsory winding-up order on a 
 shareholders' petition, that being a matter for the 
 domestic forum : Ex parte Fox, L. E. 6 Oh. 176 ; Ee 
 Amalgamated Syndicates, 1897, 2 Ch. 600. Consid- 
 eration of the circumstances which will induce the 
 Court to prefer a compulsory winding-up of a com- 
 pany to a voluntary winding-up : Ee Northumberland, 
 
CHAPTER 178. g51 
 
 etc., Banking Co., 2 De G. & J. 357. The Court ought 
 to consider not only the number of opposing credi- 
 tors, but the reasons they adduce : Re Great Western 
 Forest of Dean, 51 L. J. Ch. 743, 21 Ch. Div. 769. 
 " Just and equitable," sec. (c) : Suspicion of mis- 
 management is insufficient : Ee Harris Maxwell Lar- 
 der Lake, 1 0. W. N. 984. The Ontario Winding-up 
 Act does not apply to a company incorporated in 
 Ontario where application is made to wind-up on 
 ground of insolvency, because local legislatures have 
 no jurisdiction in matters of bankruptcy and insol- 
 vency : Ee Iron Clay Brick Co., 19 0. E. 113, and see 
 notes to sees. 167-9. Where a winding-up order under 
 the Ontario Act is made in violation of the provisions 
 of the Statute, or is obtained by fraud or misrepre- 
 sentation, any shareholder prejudicially affected may 
 obtain redress : Deacon v. Kemp Manure Spreader, 
 15 0. L. E. 149. Objections to winding-up order 
 made where voluntary proceedings have been taken. 
 Action to set aside proceedings for informality of 
 procedure, concealment of facts and lack of jurisdic- 
 tion to make the order : see Deacon v. Kemp Manure 
 Spreader Co., 9 0. W. E. 965, 10 O. W. E. 577, 15 
 0. L. E. 149. Procedure when an order under section 
 187 is alleged to have been made without jurisdiction 
 or obtained by fraud, collusion or concealment: see 
 also Equitable Savings Loan, 6 0. L. E. 26, 2 0. W. E. 
 366; see note to sec. 199. Article on Cases under 
 Winding-up orders: see 40 C. L. J. 726. 
 
 188. Where there are several petitions the Court may 
 exercise its choice: Ee Estates, Limited, 8 0. L. E. 
 564, or may refuse the petition. Where the assets 
 are small and the creditors desire voluntary liquida- 
 tion: see Ee Maple Leaf Dairy Co., 2 0. L. E. 590. 
 Where the company has made an assignment under 
 E. S. 0. 1914, Oh. 134, and its assets sold: Ee Strathy, 
 8 0. L. E. 186. Service of a petition for a winding- 
 up order on an assignee for creditors is not service 
 on the company; such assignee not being agent of 
 the company within Con. Eule, 159 (1913, Eule 23), 
 at any rate where the president and directors are 
 available and have given the assignee no express 
 authority: Ee Eodney Casket Co., 12 0. L. E. 409. 
 Status of a paid-up shareholder: Macdonald v. 
 Noxon, 16 0. E. 368. Power of Court under this sec- 
 
852 
 
 CHAPTER 178. 
 
 tion : Allen v. Hamilton, 1 0. W. N. 659 ; see also Re 
 Cosmopolitan Life Association, 15 P. E. 185. 
 
 190. The Court cannot delegate the power of appoint- 
 ment of a liquidator : Ee Union Fire Ins. Co., 13 A. E. 
 268, 14 S. O. E. 624. Where parties are numerous in 
 the same interest, one or more may be authorized by 
 the Court to sue or be sued or defend for the benefit 
 of all so interested: see Con. Eules 200, 201, H. & L. 
 notes, 6, 356 et seq.; 1913 Eules 75, 76; see also In- 
 ternational Wrecking Co. v. Murphy, 12 P. B. 423. 
 
 191. In appointing a liquidator the Court will consider 
 the condition of affairs and endeavour to ascertain 
 the parties most interested, and other things being 
 equal, will act on their recommendation: Ee Alpha 
 Oil Co., 12 P. E. 298. The choice of creditors, they 
 being most intimately concerned, should be adopted, 
 but neither a creditor nor a shareholder should, as 
 a general rule, be chosen : Ee Central Bank, 15 0. E. 
 309. Conduct of proceedings may be given to a later 
 petitioner when he is shewn to be a creditor for 
 money paid and in close touch with the company: 
 Ee Estates, Limited, 8 0. L. E. 564. 
 
 194. An order appointing a liquidator without the pre- 
 scribed notice will be set aside and the petition re- 
 ferred back: Ee Union Fire Ins. Co., 13 A. E. 268, 14 
 S. C. E. 634. Liquidators, officers of the Court: see 
 Ee Central Bank, Henderson's Case, 17 0. E. 110. 
 
 192. "Due cause" does not confine the Court to grounds 
 of personal unfitness. Whenever the Court is satis- 
 fied that it is for the general advantage of those in- 
 terested in the assets the liquidator may be removed : 
 Ex parte Charlsworth, 36 Ch. D. 299. The desire of 
 the majority (Ee Association of Land Financiers, 10 
 Oh. D. 269), or the fact that disputes have arisen 
 (Ee Montrotier Asphalte, 22 W. E. 295), or the fact 
 that he insists on prosecuting an action contrary to 
 the wishes of a majority of creditors (Ee Tavistock 
 Iron Works, 25 L. T. 605), may be sufficient to in- 
 duce the Court to remove the liquidator. An appeal 
 lies by the liquidator against the order removing him:: 
 Ee North Molton Mining Co., 54 L. T. 602. The dis- 
 cretion to remove "for due cause" "is not to bfr 
 exercised in the same way as if the power had been 
 
CHAPTER 178. 853 
 
 "of 'the Court shall think fit." Some unfitness must 
 be shewn. It is not a matter of pure judicial dis- 
 cretion: Ee Sir John More Gold Mining Co., 12 Ch. 
 D. 325. The Court can remove the liquidator where 
 no personal unfitness has been shewn if it is of opin- 
 ion that it is for the general benefit of the company, 
 but will be cautious in exercising such jurisdiction 
 where the shareholders only are interested, and they 
 support the liquidator whom they have -appointed: 
 Ee British Nation Life, L. E. 14 Eq. 492. " For due 
 cause" the Court may appoint an additional liquida- 
 tor in voluntary winding-up on the application of 
 the existing liquidator : Ee Sunlight Incandescent Gas 
 Lamp, 1900, 2 Ch. 728. The Court will not refuse 
 liberty to try a right which is claimed against its 
 receiver unless it is clear that there is no foundation 
 for the claim: Eanfield v. Eanfield, 3 De G. F. & J. 
 766. Where shareholders are applying to remove a 
 voluntary liquidator, the Court will not restrain them 
 from sending out a circular to shareholders asking 
 their support, although it contains ex parte charges 
 against the liquidator. Ee New Gold Coast Explora- 
 tion Co., 1901, 1 'Ch. 860. 
 
 194. See E. S. C. 144, sees, 61, 55 and 122. The Court 
 will not direct meetings of creditors or contributories 
 to be called except where the company is a going con- 
 cern: Ee Tumacacori, L. E. 17, Eq. 534. " Contri- 
 butories:" see notes to sees. 167 et seq. ante. When 
 inspection ordered: see Ee North Brazilian Sugar 
 Factories, 37 Ch. D. 83. Eight of dissentient share- 
 holder to inspection: Ee Glamorganshire Banking 
 Co., 28 Ch. D. 620; Ex parte Davis, 16 W. E. 668. 
 Solicitors' lien: Ee Potter's Case, 1 De G. & Sm. 
 728. A liquidator is entitled to the custody of all 
 books and documents, subject to the debenture 
 holder's right to custody of title deeds: Engel v. 
 South Metropolitan Brewery, 1892, 1 Ch. 442. 
 
 195. — (1) As a general rule the examination should be 
 before the liquidator, but this is discretionary with 
 the Judge : Ee Whitworth's Case, 19 Ch. D. 118. Pro- 
 duction notwithstanding solicitor's lien: Ex parte 
 Payne, 38 L. J. Ch. 305. In voluntary winding-up a 
 contributory is entitled oU making out a prima facie 
 case and without instituting any proceedings to sum- 
 
g54 CHAPTER 178. 
 
 mon tlie liquidator before the Court to give infor- 
 mation touching the company's affairs: Ee Sir John 
 Moore Mining Co., 37 L. T. 242. The contributory 
 should give notice to the liquidator as he is dominus 
 litis : Ee Gold Co., 48 L. J. Ch. 650, L. E. 12 Ch. D. 77; 
 Ex parte Nicholson, 14 Ch. D. 243. A contributory is 
 entitled to attend and to cross-examine : Ee Bramp- 
 ton and Longtown Ey., L. E. 11 Eq. 428. The Judge 
 has discretion as to the occasion and extent of the 
 examination and who shall conduct it: Ee "Whit- 
 worth's Case, 19 Ch. D. 118. A confidential clerk is 
 not entitled to be present at the examination: Be 
 Western of Canada Oil Co., 6 Oh. D. 109. The pend- 
 ency of an action against an officer will not justify 
 him in refusing to be examined : Ex parte Leaver, 51 
 L. T. 817. It is contempt of Court to publish 
 prematurely the proceedings on examinations: 
 American Exchange v. Gillig, 58 L. J. Ch. 706. Ex- 
 aminee entitled to counsel: Ex parte Bunn, 3 Jur. 
 N :S. 1013. A stockbroker, (ex parte Clement, 18 L. 
 T. 596; Ee Aston, 27 Beav. 474; Ex parte Carter, 
 40 L. J. Ch. 15) ; a relation of a contributory, (Frick- 
 er's Case, L. E. 13 Eq. 178; Swan's Case, L. E. 10 
 Eq. 675) ; a bank manager, (Forbe's Case, 41 L. J. 
 Ch. 467) ; a solicitor, (Ex parte Paine, L. E. 4 Ch. 
 215), and a liquidator, (Ee Sir John More Mining 
 Co., 37 L. T. 242), have all been held examinable as 
 " capable of giving information." 
 
 195. — (2) When a liquidator brings action against direc- 
 tors for alleged illegal acts, e.g., payment of dividends 
 out of capital, and the directors claim indemnity over 
 against the shareholders it is not a proper case for 
 a third party order under Con. Eule 209 (1913, Eule 
 165) : London and Western v. Loscombe, 13 O. L. E. 
 34. This provision will not authorize the setting 
 aside as a breach of trust, on the summary proceeding 
 of the liquidator, of a sale of lands by the company to 
 a director : scope of section considered : see Ee Essex 
 Centre, 19 A. E. 125. The bankers of a company are 
 not "officers" of the company: Ee General Provident 
 Assurance Co., L. E. 14 Eq. 507. Liability of direc- 
 tors : see sees. 57, 84, 93, 95, 98, 105, 107, 109, 112-116, 
 120, 122, 126, 134, etc., and see notes to these sections. 
 
 199. If a liquidator in voluntary winding-up desires to 
 appeal from the decision of a Judge, he ought first to 
 
CHAPTER 178. 855 
 
 obtain leave from the Judge, otherwise, if his appeal 
 fails he may be refused costs out of the estate: Re 
 City and County Inv. Co., 13 Ch. D. 475. Order ap- 
 proving of a sale by liquidator of assets en bloc and 
 making provision for distributing purchase money 
 appealable : see D. A. Jones Co., 19 A. E. 63 ; see also 
 as to appeal Ee Can. Mail Order Co., 2 0. W. N. 1055, 
 19 0. W. E. 111. 
 
 200. Compare E. S. C. 144, sec. 101 et seq. Policy of sec- 
 tion considered and defined. "What is sought is a 
 speedy distribution of the estate: see judgment of 
 Middleton, J., Ee McGffl Chair Co., 22 O. "W. E. 222, 
 26 O..L. E. 254. Where contest was simply as to 
 which solicitors should have carriage of order made 
 on conflicting petitions, leave to appeal was refused : 
 Ee Belding Lumber Co., 23 O, L. E. 255. An appeal 
 will lie from the original winding-up order : Ee Union 
 Fire Ins. Co., 13 A. E. 268. Appeal from order re- 
 scinding winding-up order : Ee Equitable Savings 
 Loan, 6 0. L. E. 26. Course to be followed where it is 
 contended that the Judge has been misled or has made 
 a void order : see Ee Equitable Savings Loan, 6 0. L. 
 E. 26, 2 0. W. E. 366. "Who may appeal : see Deacon 
 v. Kemp Manure Spreader Co., 10 0. W. E. 577, 15 
 0. L. E. 149. If an order to wind-up is made in vio- 
 lation of the statute or is obtained by fraud or mis- 
 representation or is otherwise open to attack, any 
 shareholder can obtain redress on direct application 
 to the Judge when the order was made ex parte as 
 far as he was concerned, or if made on notice to him, 
 then by way of appeal under the Statute : Deacon v. 
 Kemp Manure Spreader Co., 9 0. W. R. 965, 10 0. W. 
 E. 577, 15 0. L. E. 149. Appeal: see E. S. 0. 1914, ch. 
 56, sec. 26 (2e). 
 
 201. Procedure under E. S. C. 144 : see sees. 107-135. 
 
 202. On the expiration of the three months the company 
 is dissolved from that date, and the Court has no 
 jurisdiction to admit the claim of a creditor who had 
 notice of the winding-up proceedings : Ee "Westbourne 
 Grove, 39 L. T. 30.. 
 
 203. "Where a company's assets were sold but no assign- 
 ment of certain letters patent executed and the com- 
 pany was dissolved, the legal estate under patents 
 
ggg CHAPTER 179. 
 
 became vested in the Crown and the Court had no 
 jurisdiction to make a vesting order under the 
 statutory equivalent of E. S. 0. 1897, ch. 336, 
 sec. 15: Ee Taylor, 1904, 2 Ch. 737. Dissolu- 
 tion of company ; vesting of legal estate: Ee Gen- 
 eral Accident Assurance Corporation, 1904, 1 Ch. 
 147. A Judge made an order declaring the company 
 dissolved. Subsequently on motion of a dissatisfied 
 shareholder this order was revoked. This latter 
 order was appealable: Ee Equitable Savings Loan, 
 4 0. L. E. 479, 6 0. L. E. 26. There is no jurisdiction 
 to wind-up a dissolved company unless the dissolution 
 is impeachable for fraud : Ee Pinto Silver Mining Co., 
 8 Ch. D. 273. See Ee Crookhaven Mining Co., 36 
 L. J. Ch. 226, L. E. 3 Bq. 69 ; Whitley Exerciser v. 
 Gamage, 1898, 2 Ch. 405. 
 
 204. Cesser of objects of friendly society; claimants to 
 surplus funds; bona vacantia: Braithwaite v. A. G. 
 1909, 1 Ch. 510. As to lands of dissolved corpora- 
 tion : see note to sec. 26 ante. Goods of dissolved cor- 
 poration as bona vacantia: Ee No. 9 Bomore Eoad, 
 1906, 1 Oh. 359; Ee Taylor's Agreement, 1904, 2 Ch. 
 737. 
 
 CHAPTEE 179. 
 
 The Extra-Provincial Corporations Act. 
 
 In addition to text books referred to at Chapter 178, 
 see "Wegenast, Extra Provincial Companies. 
 
 This Act is based on B. N. A. Act, sec. 92, els. 2, 9 and 
 13, under which the Provinces have cognisance over 
 direct taxation for provincial purposes, licenses for 
 revenue and property and civil rights. As to the 
 right of Ontario to apply the provisions of this Act 
 to Dominion incorporations see E. v. Massey-Harris 
 Co., 6 Terr. L. E. 126; and see also stated case in 
 Supreme Court in which questions covering jurisdic- 
 tion are specifically referred: In re Companies, 48 
 S. C. E. 331 ; see also John Deere Plow Co. v. Agnew, 
 48 S. C. E. 208, from which it would appear that in 
 any event such legislation could not be considered as 
 
CHAPTER 179. 857 
 
 having any application to rights arising under pro- 
 missory notes (B. N. A. Act, sec. 91, cl. 18). 
 See also International Text Book Co. v. Brown, 8 
 0. W. B. 835, 13 0. L. E. 644, where the constitu- 
 tionality of the Act was upheld as against a- Pennsyl- 
 vania company. The legislatures, apparently, have 
 no power r to prohibit Dominion incorporations from 
 carrying on business within the Province, but such 
 companies must conform to the enacted laws of the 
 Province where they seek to do business, including 
 payment of license fees imposed in exercise of pro- 
 vincial taxing powers : see In re Companies, 48 S. C. 
 B. 33L Article on licensing extra-provincial com- 
 panies : see 46 C. L. J. 513. 
 
 -(1) What amounts to "carrying on business." Tak- 
 ing promissory notes : John Deere Plow Co. v. Ag- 
 new, 8 D. L. E. 65, 48 S. C. E. 208. "Carrying on 
 business:" National Malleable Castings v. Smith's 
 Falls Malleable Castings, 14 0. L. E. 22; Securities 
 Co. v. Brethour, 3 0. W. N. 250, 20 0. W. E. 562; 
 Humphries v. Ottawa Fireproof Supply, 12 0. W. E. 
 501; International Text Book Co. v. Brown, 8 0. W. 
 E. 835, 13 0. L. E. 644. A foreign corporation taking 
 a mortgage in Ontario for a debt contracted outside 
 of the Province is not doing business in Ontario : 
 Euclid Ave. Trusts v. Hohs, 13 0. W. E. 1050, 18 
 O. W. E. 787, 19 O. W. E. 991, 2 0. W. N. 825, 3 
 0. W. N. 3, 23 0. L. E. 377, 24 0. L. E. 447. Contract 
 not entered into in Ontario : Kerlin Brothers v. On- 
 tario Pipe Line Co., 11 0. W. E. 797. Effect of ab- 
 sence of license on capacity to indorse notes : C. B. of 
 Commerce v. Eogers, 2 0. W. N. 45, 627, 769, 16 0. 
 W. E. 968, 18 0. W. E. 401, 23 0. L. E. 159. "Eepre- 
 sentative or agent : ' ' Humphries v. Ottawa Fireproof 
 Supply, 12 0. W. E. 501. "Eesident Agent or rep- 
 resentative:" Bessemer Gas Engine Co. v Mills, 8 
 O. L. E. 647. When does constructive "residence" 
 of a foreign corporation by agents acting in its busi- 
 ness interests amount to "residence*' as contem- 
 plated by the practice of security for costs : Ashland 
 Company v. Armstrong, 11 0. L. E. 414. What 
 amounts to "carrying on business" within the mean- 
 ing of income tax legislation: see e.g., England v. 
 Webb, 1898, A. C. 758; Halifax v. McLaughlin Car- 
 riage Co., 39 S. 0. E. 174; London v. Watt and Son, 
 22 S. C. E. 300. 
 
858 CHAPTER 179. 
 
 7. — (2) This exception seems declaratory of the law: 
 Standard Ideal v. Standard Sanitary Mfg. Co., 1911, 
 A. C. 78. 
 
 10. — (b) An order will not be made for the examination 
 of a director or officer residing in a foreign country 
 of a foreign corporation, although such corporation 
 has attorned to the jurisdiction of the Courts of this 
 Province : Perrins ' Limited v. Algoma Tube Works, 
 8 0. L. E. 634. Representative of company in On- 
 tario is an officer of the company and may be exam- 
 ined for discovery under Con. Rule 439a (1913, Rule 
 327) : McNeill v. Lewis Brothers, Ltd., 12 0. W. R. 
 * 284, 16 0. L. R. 652. 
 
 10. — (c) No departmental forms are issued in connec- 
 tion with applications for licenses to carry on busi- 
 ness in Ontario. The departmental memorandum 
 outlining procedure is as follows : 
 
 Under the provisions of the Act respecting the Li- 
 censing of Extra-Provincial Corporations nearly 
 every corporation other than an insurance or a loan 
 company created otherwise than by or under the 
 authority of an Aci of the Legislature of Ontario 
 and having gain for one of its objects, must take out a 
 license, before it can legally do business in the Pro- 
 vince. 
 
 The application must be by petition of the corpora- 
 tion addressed to the Lieutenant-Governor-in-Coun- 
 cil, and executed by the proper officers of the corpora- 
 tion under 'the corporate seal. 
 This petition must state material facts, such as : 
 
 1. The name of the Kingdom, Dominion, State, Pro- 
 vince or other jurisdiction under the laws of which 
 the applicant corporation was incorporated and is 
 working. 
 
 2. Its corporate name, which must not contain the 
 words "Loan," "Mortgage," "Trust," "Trusts," 
 ' ' Investment " or " Guarantee. ' ' 
 
 3. That the corporate name of the corporation is not 
 on any public ground objectionable, and that it is not 
 that of any known company, incorporated or unin- 
 corporated, or of any partnership or individual do- 
 ing business in Ontario, or a name under which any 
 
CHAPTER 179. 859 
 
 known business is being carried on in Ontario, or so 
 nearly resembling the same as to deceive. 
 
 4. The date and manner of its incorporation. 
 
 5. The place where its head office is situated. 
 
 6. 'Whether its existence is limited by Statute or 
 otherwise, and if so, the period of its existence yet to 
 elapse, and whether its existence may be lawfully 
 extended. 
 
 7. "Whether it is a valid and subsisting corporation. 
 
 8. "Whether it has capacity to carry on its business in 
 Ontario. 
 
 9. "Whether it has capacity to hold land, and, if so, 
 the conditions, if any, under which such land is to be 
 held. 
 
 10. Its authorized powers set out in full. 
 
 11. The powers which it desires to exercise in On- 
 tario. 
 
 12. The amount of its authorized capital, and 
 whether such capital is divided into shares, and, if 
 so, how. 
 
 13. The amount of its subscribed capital. 
 
 14. The amount of its paid-up capital. 
 
 15. The amount of capital which the corporation de- 
 sires authority to use in Ontario. 
 
 16. Its head office, or other chief place of business, in 
 Ontario. 
 
 17. The name, description and place of residence of 
 its chief agent or representative in Ontario. 
 
 18. That the corporation has authorized the making 
 of the application and has duly appointed an attor- 
 ney for service of process. 
 
 19. The name in full, description and place of resi- 
 dence of such attorney, and 
 
 20. Such further and other information as the Pro- 
 vincial Secretary may require. 
 
 The contents of, the signatures to, and the impres- 
 sion of the corporate seal upon the petition, must be 
 verified-by affidavit or statutory declaration. 
 If the application be on behalf of a corporation in- 
 corporated under the laws of the Dominion of Can- 
 ada, a copy of its Letters Patent, or of the Act incor- 
 porating it, certified by the Deputy Registrar-Gen- 
 eral, or by the Clerk of the Parliaments, respectively, 
 must be produced with the application. A similar 
 observation will, apply to a corporation incorporated 
 
360 CHAPTER 179. 
 
 under the laws of any of the Provinces of the Domin- 
 ion of Canada, regard being had to the proper offi- 
 cers in that behalf for the purposes of certification. 
 If the application be on behalf of a corporation in- 
 corporated under the laws of Great Britain and Ire- 
 land, the copy of the Memorandum and Articles of 
 Association produced must be certified to be a true 
 copy by the Registrar of Joint Stock Companies at 
 London, Edinburgh or Dublin, as the case may be. 
 If the application be on behalf of a corporation incor- 
 porated under the laws of the United States of 
 America, the evidence of incorporation must consist 
 of a duly certified copy of the papers originally, and, 
 if any, subsequently, filed in the Department of the 
 Secretary of State, or other proper officer having the 
 custody of the papers, and duly verified by such 
 officer. 
 
 A person resident in Ontario, or a company having 
 its head office in the Province, must be appointed by 
 the applicant corporation to be its Attorney and rep- 
 resentative in Ontario, and a Power of Attorney duly 
 executed, for the purpose, under the seal of the cor- 
 poration, must be transmitted with the papers. This 
 is required even when the corporation is incorpor- 
 ated under the laws of the Dominion and has its head 
 office in Ontario. The power itself may contain any 
 provision not inconsistent with the duties of the 
 Attorney to be exercised under the laws of the Pro- 
 vince, but it must include words expressly authoriz- 
 ing the Attorney : 
 
 "To act as such, and to sue and be sued, plead or be 
 impleaded in any Court in Ontario, and generally on 
 behalf of the corporation and within Ontario to accept 
 service of process, and to receive all lawful notices, 
 and, for the purposes of the corporation, to do all 
 acts and to execute all deeds and other instruments 
 relating to the matters within the scope of the Power 
 of Attorney. ' ' 
 
 The power must also provide that until due lawful 
 notice of the appointment of another and subsequent 
 Attorney has been given to and accepted by the Pro- 
 vincial Secretary, service of process, or of papers 
 and notices upon the person or company mentioned 
 in the original or other power last fyled with the 
 Provincial Secretary shall be accepted by the appli- 
 cant corporation as sufficient service in the premises. 
 
CHAPTER 180. ggl 
 
 The consent of the Attorney to act as such, with an 
 affidavit or declaration verifying the execution of the 
 same, must he fyled. 
 
 The fee is based on the amount of capital to be used 
 in Ontario in accordance with the scale of fees under 
 The Ontario Companies Act. See B. S. 0. 1914, ch. 
 178, sec. 138 notes. 
 
 16. "Where foreign company's engines were sold in On- 
 tario, on commission, by a resident of Ontario, the 
 company was carrying on business and the foreign 
 company, if unlicensed, could not maintain action for 
 price : Bessemer Gas Engine Works v. Mills, 8 0. L. 
 E. 647. Status to maintain action: Semi-Beady v. 
 Tew, 19 0. L. E. 227. The locus of the forum deter- 
 mines whether or not in a particular action the com- 
 pany is foreign: Clarke v. Union Fire Ins. Co., 10 
 P. B. 313. A license issued after making of notes 
 sued on and before action will operate retroactively 
 to remove illegality : Can. Bk. of Commerce v. Eogers, 
 
 23 0. L. E. 159. License taken out after action 
 brought: Euclid Ave. Trusts v. Hohs, 23 0. L. E. 377, 
 
 24 O. L. E. 447. 
 
 18. It is improper in an action to recover penalties un- 
 der this Act to issue the usual praecipe order for pro- 
 duction of documents by the defendants : Johnston v. 
 London and Paris Exchange, 6 0. L. E. 49. 
 
 CHAPTEE 180. 
 The Ontaeio Telegbaph Act. 
 
862 CHAPTERS 181, 182. 
 
 CHAPTER 181. 
 
 The Timber Slide Companies Act. 
 
 27. Injury to land by flooding : see Neely v. Peter, 4 0. L. 
 E. 293, 5 0. L. R. 381; see R. S. 0., 1914, ch. 130, sec. 
 26. 
 
 30. Compliance with. sees. 30, 31, 32 (formerly R. S. 0. 
 1897, ch. 194, sees. 40-43), as a condition precedent to 
 the collection of tolls : see Beck v. Ont. Lumber Co., 
 10 O. L. R. 192, 12 O. L. R. 163, 16 0. L. R. 21, 9 
 0. W. R. 99, 193, 10 0. W. R. 711; Pigeon River Lum- 
 ber Co. v. Mooring, 13 O. W. R. 190, 14 0. W. R. 639; 
 and see provisions of R. S. 0. 1914, ch. 130, sec. 11. 
 
 34. Use of works and river improvements: liability for 
 tolls : Pigeon River v. Mooring, 13 O. W. R. 190, 14 0. 
 W. R. 639. 
 
 44. The non-completion of the works within 2 years does 
 not ipso facto forfeit the charter, but only affords 
 grounds for proceedings by the A.-G-. to have a for- 
 feiture declared: Hardy Lumber Co. v. Pickerd 
 River, 29 S. C. R. 211. 
 
 CHAPTER 182. 
 The Wharfs and Harbours Act. 
 
CHAPTER 183. gg3 
 
 CHAPTER 183. 
 
 The Ontario Insurance Act. 
 
 Hunter, Insurance Law in Ontario ; Holt, Insurance 
 Law of Canada; Hodgins, Life Insurance Contract 
 in Canada; Cameron, Fire Insurance in Canada; 
 Cameron, Life, Accident and Guarantee Insurance 
 in Canada; May, Law of Insurance; Porter, The 
 Laws of Insurance; Joyce on Insurance; Bacon, 
 Benefit Societies; Fuller, Friendly Societies; Bige- 
 low, Life, Accident Insurance Cases. 
 
 2. — (2) Valuation of unmatured policies and construc- 
 tion of legislation affecting them : Be Merchants Life, 
 2 0. L. B. 682 ; and see notes to sec. 219. 
 
 2. — (6) Beneficiary: see Thompson v. Macdonnell, 13 0. 
 L. B. 653. 
 
 2. — (14) "What is a "contract of insurance?" see B. v. 
 Stapleton, 21 0. B. 679. Valid parol contract of in- 
 surance : Interim receipt does not modify or impair 
 same : See Coulter v. Equity Fire, 9 0. L. B. 35. Un- 
 der a parol contract an implication is raised that a 
 proper policy would he issued subject to the statu- 
 tory conditions and such variations thereof as are 
 just and reasonable: Coulter v. Equity Fire, 9 0. L. 
 B. 35. "Policy" includes "interim receipt:" Coul- 
 ter v. Equity Fire, 7 0. L. E. 180, 9 0. L. E. 35. Effect 
 of renewal of accident policy: Youlden v. London 
 Guarantee, 3 0. W. N. 832, 21 0. W. E. 674, 28 0. L. 
 E. 161; and see notes to sec. 156. An order 'incor- 
 porated in Illinois had branches in Ontario, became 
 registered as a friendly society under the Act of 1892, 
 but never registered as an insurance company. A 
 certificate for $1,000 on proof of death was issued on 
 application made in Ontario and was delivered in 
 Ontario. It was held that the order were legally en- 
 titled to do business in Ontario and the certificate in 
 question was a "contract of insurance:" Gillie v. 
 Young, 1 0. L. E. 368. 
 
 2. — (25) As to powers and status of foreign insurance 
 company doing business in Canada : see In re Insur- 
 ance Act, 1910, 48 S. C. E. 260. 
 
§64 CHAPTER 183. 
 
 2. — (36) Insurance moneys: see Ee Lloyd and A. 0. U. 
 W., 29 0. L. E. 312. 
 
 2. — (45) "Policy" includes "interim receipt:" Coulter v. 
 Equity Fire, 7 0. L. E. 180, 9 0. L. E. 35. 
 
 2. — (51). A benevolent society undertook to pay a sum out 
 of the total disability fund on the insured attaining 
 the age of 70. The society subsequently diminished 
 the amount coming to the insured by a change in their 
 rules. Insured was held bound by the change and 
 only able to recover in accordance with it : Doidge v. 
 Eoyal Templars, 4 O. L. E. 423 ; see also Hargrove v. 
 Eoyal Templars, 2 0. L. E. 79. Policy made payable 
 to a class under the societies' rules. Subsequent 
 change in rules omitting this class : Telland v. Yell- 
 • and, 25 A. E. 91. Effect of new rules on policies 
 existing at time of change: Fawcett v. Fawcett, 26 
 A. E. 335. Effect of rules of benefit society where 
 insured made policy payable to his executors con- 
 trary thereto: Johnston v. C. M. B. A,. 2 24 A- E. 
 88. Eules considered, effect of re-instatement : Long 
 v. A. 0. U. W., 25 A. E. 147. See post notes to sec. 
 184, and sections there referred to. 
 
 9. As to powers of provincially incorporated insurance 
 companies to do business throughout Canada : see In 
 re Companies, 48 S. C. E. 331. Formation of corpor- 
 ation under E. S. 0. 1897, ch. 211: Delaronde v. 
 Ottawa Police, 3 0. W. N. 1188, 21 0. W. E. 997. 
 
 47. — (1) Canadian policyholders petitioned for distribu- 
 tion of the deposit of a company, a foreign corpora- 
 tion, the company being insolvent. Held they were 
 entitled to the relief asked notwithstanding that pro- 
 ceedings to wind up the company were pending before 
 the English Courts. For any balance of their claims, 
 Canadian policyholders would be entitled to rank 
 upon the general assets of t!he company: Ee Briton 
 Medical and General Life Association, 12 0. E. 441. 
 Pending administration of deposit, right of company- 
 taking over the business and risks of another com- 
 pany to be subrogated to the position qf the policy- 
 holders of the second company : Clark v. Union Fire 
 —Claim of the Agricultural Fire Ins. Co., 6 0. E. 640. 
 What is insurance contract discussed: E. v. Staple- 
 ton, 21 0. E. 679. 
 
CHAPTER 183. g65 
 
 47. — :(5h) Registration of a foreign corporation as a 
 friendly society: Gillie v. Young, 1 0. L. R. 368. See 
 sec. 66, note. 
 
 66. Registration of company: a friendly society not 
 incorporated in Ontario, but of foreign incorpora- 
 tion, engaging in the business of insurance in On- 
 tario may be registered as a corporation though not 
 actually incorporated, by the joint effect of sec. 66 
 and sec 49 : that is to say a friendly society doing such 
 a business is comprehended in the statutable phrase 
 "an Insurance Company:" Gillie v. Young, 1 0. L. R. 
 368, at p. 374. 
 
 69. Powers of provincial insurance companies to make 
 contracts and insure property throughout Canada: 
 see In re Companies, 48 S. C. R. 331. Foreign insur- 
 ance companies doing business in Canada : see In re 
 Insurance Act, 1910, 48 S. C. R. 260. 
 
 72. See notes regarding the constitution of charitable and 
 benevolent societies, R. S. 0. 1914, ch. 178, sec. 6, 
 notes. See also Gillie v. Young, 1 0. L. R. 368. 
 
 81. An English insurance company which had carried on 
 business in Canada with head office at Toronto, had 
 appointed its general agent at Toronto by two powers 
 of attorney to receive process under the Dominion 
 and Provincial Insurance Acts. Afterwards it trans- 
 ferred its Canadian business to another company and 
 closed its office, but its deposit under the Dominion 
 Act had not been released nor the powers of attorney 
 cancelled. A writ of summons upon a policy issued 
 in Quebec in respect of a loss on property there was 
 properly served on the agent named as attorney in 
 Toronto under Con. Rule 159 (1913, Rule 23), and 
 the Court in Ontario had jurisdiction to entertain the 
 action: Armstrong v. The Lancashire Fire, 3 0. L. R. 
 395. 
 
 85. Where local agent went beyond his authority and con- 
 sented to alterations in a policy which the company 
 were held not bound by, it was held that this section 
 did not apply to notice of that nature : Pigott v. Em- 
 ployer's Liability, 31 0. R. 666. 
 
 s.a. — 55 
 
ggg CHAPTER 183. 
 
 89. A condition in a policy that every difference shall be 
 referred to arbitration and that a compliance with the 
 stipulations is a condition precedent to the right to 
 recover is not in contravention of this section, and an 
 action on the policy does not lie nor the amount pay- 
 able under it become due until the determination of 
 the arbitrator: Nolan v. Ocean Accident and Guaran- 
 tee Corporation, 39 C. L. J. 367, 5 O. L. R. 544. A 
 plaintiff is not bound to exhaust before action the 
 appeals which a society provides within itself by its 
 rules: Doidge v. Eoyal Templars, 4 0. L. R. 423. 
 Where a right of action vested under this section be- 
 fore any subsequent call was made, it was not essen- 
 tial for the claimant to continue his membership after 
 default arose on the part of the' company to pay his 
 claim: Re Massachusetts Benefit Life — Babcock's 
 Claim, 30 0. R. 309 at p. 315. Effect of condition 
 allowing company 60 days for payment after receipt 
 of proof of death: Gill v. Great West Life, 2 0. W. N. 
 777, 18 O. W. R. 733. After " reasonably suffi- 
 cient proof:" Somerville v. Aetna Life, 21 0. L. 
 R. 276; Argles v. S. Eastern Ry. Co., L. R. 3 Ex. 149; 
 Johnston v. Dominion of Canada G. and A. I. Co., 11 
 0. W. R. 363, at 367, 371, 17 0. L. R. 462. Right to 
 sue where one of two designated preferred benefi- 
 ciaries dies in lifetime of assured : Re Lloyd and A. 
 0. U. W., 29 0. L. R. 312. Renewal receipt "accord- 
 ing to tenor of the policy" imports into the renewal 
 receipt the policy and all the conditions contained in 
 it ; status of beneficiary to bring action : Youlden v. 
 London Guarantee, 28 0. L. R. 161. Where there was 
 a change of beneficiary and an agreement not to 
 change : Clark v. Loftus, 24 0. L. R. 174, 26 0. L. R. 
 204. 
 
 98. Section 4 of the Canadian Insurance Act, 9-10 Edw. 
 VII., ch. 32 (D.), was submitted to the Supreme Court 
 of Canada for opinion on its constitutional validity. 
 The section operates to prohibit an insurance com- 
 pany incorporated by a foreign state from carrying 
 on business in Canada if it does not hold a license 
 from the Minister, and if such carrying on of business 
 is confined to a single Province. Fitzpatrick, C.J., 
 and Davies, J., considered the section not ultra vires 
 of the Parliament of Canada. Idington, Duff, Anglin 
 and Brodeur, J J., contra : In re Insurance Act, 1910, 
 
CHAPTER 183. 867 
 
 48 S. C. R. 260. Carrying on insurance business with- 
 out a license : R. v. Stapleton, 21 0. R. 679. Company 
 not having complied with the provisions of the Act in 
 regard to registration precluded from entering into 
 a contract with anyone in Ontario: Burson v. Ger- 
 man Union, 10 O. L. R. 238. 
 
 119. Trustees being indebted to the plaintiffs and holding 
 stock in the defendant company, assigned the stock to 
 the latter in consideration of a sum expressed to be 
 paid by them for the trustees to the plaintiffs. The 
 sum was paid by the issue of the defendants' deben- 
 ture to the plaintiffs. This transaction did not con- 
 stitute a loan of money within the meaning of the 
 statute, and the debenture was ultra vires : Bank of 
 Toronto v. Beaver and Toronto Mutual, 28 Gr. 87. 
 The directors of a mutual insurance company may 
 borrow money on promissory notes or debentures 
 without passing a by-law under seal : Victoria Mutual 
 Fire v. Thompson, 32 C. P. 476, 9 A. R. 620. 
 
 125. Outstanding claims: Re Standard Mutual Fire, 2 
 O. W. N. 235, 17 O. W. R. 407. 
 
 139. This section (passed 53 Vic. ch. 44, sec. 4) applies to 
 premium notes given before its passing as well as to 
 those given afterwards : Re Saugeen Mutual, Knech- 
 tel's Case, 19 O. R. 417. A mutual insurance com- 
 pany was held not entitled, as against a mortgagee, to 
 retain the amount of a premium note given by a mort- 
 gagor until the time had expired for which the insur- 
 ance was made to cover any assessments that might 
 be made thereon: Anderson v. Saugeen Mutual, 18 
 O. R. 355. An assessment for the purpose of paying 
 promissory notes given by a mutual insurance" com- 
 pany, must be confined to the premium notes or un- 
 dertakings current at the time the loss occurred in 
 respect of which the company's notes were given. 
 New members cannot be assessed to pay notes given 
 previously to their joining the company: Victoria 
 Mutual v. Thompson, 32 C. P. 476, 9 A. R. 620. Quaere 
 as to effect of misnomer of company on negotiability 
 of note : Sears v. Agricultural, 32 C. P. 585. 
 
 141. Default in payment of one of the deferred payments 
 of the first instalment of a premium note given by an 
 
ggg CHAPTER 183. 
 
 insurer in a mutual fire insurance company given un- 
 der this section does not ipso facto work a forfeiture: 
 Woolley v. Victoria Mutual, 26 A. E. 321 (see now 
 sub-sec. 4). 
 
 142. Liability of policyholders of solvent branches to be 
 assessed on their premium notes to pay off liability 
 to guarantee stockholders to discharge losses paid 
 from the guarantee fund. Power of directors to make 
 assessment. No jurisdiction in Court to do so : Duff 
 v. Canadian Mutual, 6 A. E. 238. A notice by a com- 
 pany to the insurer, treating a payment on a premium 
 note as an assessment, and notifying him that in the 
 event of non-payment the policy would be suspended, 
 is not an assessment under this section, and non-pay- 
 ment pursuant to the notice does not suspend the op- 
 eration of the policy : Woolley v. Victoria Mutual, 26 
 A. E. 321. On an application to the Court to add the 
 persons who had signed premium notes parties in 
 the Master's office, and to direct the master to assess 
 the amounts due upon the notes and to order the same 
 to be paid to the receiver from time to time, it was 
 shewn that the directors had not made any assess- 
 ment upon the notes ; Held, as liability attached only 
 on such assessment by the directors, the Court could 
 not add to or alter the liability of the parties by re- 
 ferring it to a receiver to do what by statute the di- 
 rectors alone could do : Hill v. Merchants and Manu- 
 facturers, 28 Gr. 560. 
 
 143. See Long v. A. O. U. W., 25 A. E. 147, etc. 
 
 149. See Ee Saugeen, 19 0. E. 417. 
 
 150. These provisions are not affected by 6 Edw. VH., eh. 
 19, sec. 22 : Waterloo Mutual v. Bindner, 16 0. W. E. 
 299 ; and see E. S. 0. 1914, ch. 63, sec. 74 ; Bicknell and 
 Seager, D. C. Act, p. 137. 
 
 153. Formerly did not apply where the judgment was re- 
 covered on a policy issued by the company on the 
 cash principle: Lowson v. Canada Farmers' Mutual, 
 8 A. E. 613. But now applies to mutual or cash mu- 
 tual : see Lowson v. Canada Farmers' Mutual, 9 P. E. 
 185; Lount v. Canada Farmers' Mutual, 8 P. E. 443; 
 see also Con. Eule 843 (1913, Eule 538), which yields, 
 to the provisions of this section. 
 
CHAPTER 183. 869 
 
 155. A society, incorporated in Illinois, registered in On- 
 tario as a friendly society, and kept its registry in 
 force as such, but did not at any time become regis- 
 tered as an insurance company; the society. was le- 
 gally entitled to do business in Ontario: Gillie v. 
 Young, 1 O. L. E. 368. A Canadian benefit associa- 
 tion transferred its assets to an American society, 
 which issued new certificates signed in the United 
 States and sent to Canada, but not operative there 
 until countersigned by the Canadian agent and pre- 
 mium paid : Held, that there was a novation and the 
 society was validly doing business in Canada, and 
 that the contract being completed in Canada was sub- 
 ject to statutory conditions imposed for the benefit 
 of the public : Mason v. Massachusetts Benefit, 30 0. 
 E. 716. In the provision as to committing a policy to 
 the post office, the words ' ' to be delivered or handed 
 over to the assured, his assign or agent in Ontario, ' ' 
 contemplates a committing of the policy to the post 
 ""office by the insurer, addressed to the insured, his 
 assign or agent in Ontario, and the provision therein 
 that in such event the money should be payable at the 
 office in Ontario, shows that the section was intended 
 to apply to companies having an office or agent in On- 
 tario, and not to a company which has in no way 
 brought itself or its business within the limits of the 
 province : Burson v. German Union, 10 0. L. E. 238. 
 Place of contract in New York by agreement ; change 
 of beneficiary: see Bunnell v Shilling, 28 0. E. 336. 
 
 156. — (1) Beneficiary certificates issued to members of 
 an unincorporated union having their head office in a 
 foreign country and unincorporated branches here, 
 entitling them to pecuniary benefits on payment of 
 assessments, are not subject to the provisions of this 
 section: Wintemute v. Brotherhood of Eailway 
 Trainmen, 27 A. E. 524. See also in regard to certifi- 
 cate of Brotherhood of Eailway Trainmen, Morgan 
 v. Hunt, 26 0. E. 568. Such a policy is capable of be- 
 ing controlled by conditions not set out on its face ; 
 , effect of rules of the society considered. Eight of 
 member who is reinstated pursuant to rules of a so- 
 ciety : Long v. A. 0. U. W., 25 A. E. 147. 
 
 156. — (2) Effect of the words "all the terms and condi- 
 tions of the contract must be set out in full on . . . 
 
g7Q CHAPTER 183. 
 
 tile instrument, etc. ' ' Where policy has been renewed 
 by renewal receipt "according to the tenor of the 
 policy": Youlden v. London Guarantee, 26 0. L. E. 
 75, 28 0. L. E. 161 ; and see also as to renewal re- 
 ceipts: Venner v. Sun Life, 17 S. C. E. 394; Jordan 
 v. Provincial Provident, 28 S. C. E. 554; Hay v. 
 Employers' Liability, 6 0. W. E. 459; Elgin Loan v. 
 London Guarantee, 8 0. L. E. 117, 9 0. L. E. 569, 11 
 0. L. E. 330. 
 
 156.— (3) A contract of fidelity guarantee recited the de- 
 livery to the insurer of certain statements as to the 
 duties of the employee and the checks kept on his ac- 
 counts, and that the statements should be the basis of 
 the contract "limited to such of the statements as are 
 material to the contract." This was held to have the 
 effect of embodying the preliminary application and 
 declaration into the face of the contract: Elgin Loan 
 v. London Guarantee, 8 0. L. E. 117, 9 0. L. E. 569. 
 Unintentional misstatements in answer to questions 
 on application for insurance : Pearce v. National Life, 
 12 0. W. E. 359. Effect of misstatement : Arnprior 
 v. TJ. S. Fidelity Co., 4 0. W. N. 1426. 
 
 156. — (4) Where a policy of life insurance' is expressed 
 to be issued subject to by-laws, and by the constitu- 
 tion of the company power is given to alter the by- 
 laws from time to time, and no reference is made in 
 the policy to prospectuses issued by the company, the 
 policy constitutes the whole contract and the Court 
 cannot refer to the prospectuses for the purpose of 
 construing the contract: British Equitable v. Baily, 
 75 L. J. Ch. 73, 1906, A. C. 35. 
 
 156. — (5) Change of occupation of insured; employment 
 on railway; notice; Smith v. Excelsior Life. 3 O.W.N. 
 1521, 22 0. W. E. 863. Where A was induced to con- 
 tinue paying premiums on a policy which she had 
 taken out on the life of her brother by unauthorized 
 misrepresentations of the company's agent, the com- 
 pany were ordered to return the premiums because 
 the misrepresentations avoided the policy, and be- 
 cause- they could not be allowed to retain the benefit 
 of a contract induced by their agent's misrepresenta- 
 tions, even when unauthorized : Kettlewell v. Eefuge 
 Assurance Co., 1907, 2 K. B. 242. Eepayment by 
 
CHAPTER 183. g71 
 
 company of premiums obtained by misrepresenta- 
 tions of agents : Refuge Assurance Co. v. Kettlewell, 
 1908, 1 K. B. 545; 1909, A. C. 243. Note given for 
 first premium ; policy not what applied for ; failure of 
 consideration : Pearlman v. Sutcliffe, 1 0. W. N. 376, 
 15 0. W. E. 140. 
 
 156. — (6) The provisions of the section do not require 
 the materiality of the statements to appear by the in- 
 dorsements; but the contract will be avoided only 
 when such statements may subsequently be judicially 
 found to be material. Misrepresentations upon an 
 application for life insurance so found to be material, 
 will avoid the policy, notwithstanding that they have 
 been made in good faith and in the conscientious be- 
 lief that they were true : Jordan v. Provincial Provi- 
 dent, 28 S. C. R. 554. In spite of a condition that a 
 mortgage or lien should be deemed material to the 
 risk, it still remains for the Judge or jury to deter- 
 mine its materiality: Fritzley v. Grermania Mutual, 
 19 0. L. R. 49, 14 0. W. R. 18. In an application for 
 fidelity insurance, statements as to the manner of 
 drawing cheques and as to audits are material : Elgin 
 Loan v. London Guarantee, 8 0. L. R. 117, 9 0. L. R. 
 569. Where a man was older than the age limit under 
 the rules of a benevolent society, but owing to his 
 innocent misrepresentations was admitted, the bene- 
 ficiary named in his endowment certificate could not 
 recover: Cerri v. A. 0. F., 28 O. R. Ill, 25 A. R. 22. 
 Misrepresentations as to age in foreign policy 
 "completed in Canada; policy held to be subject, 
 to statutory conditions imposed for public bene- 
 fit: Mason v. Massachusetts Benefit, 30 O. R. 716. 
 In an application on which a benevolent society's 
 certificate was issued, the insured gave his age as 54, 
 When it was in fact 55, the latter age being within the 
 age limit of the society, and the premium being the 
 same for both ages. The insured sued for permanent 
 disability on reaching the age of 70. The jury found 
 his misstatement as to age not material, and that the 
 statement as to age was made in good faith. The cer- 
 tificate was held binding and the insured entitled to 
 his money on, in fact, attaining the age of 70: Har- 
 grove v. Royal Templars, 2 0. L. R. 79. (See post 
 sec. 166) . Where stipulation on face of contract was 
 not limited to such misstatements as were material 
 
g72 CHAPTER 183. 
 
 to the contract : London West v. London Guarantee, 
 26 0. R. 520. Where in the application the insured 
 was asked whether any incendiary danger to the 
 property was threatened or apprehended and un- 
 truly answered "no," the policy was avoided: Find- 
 ley v. Fire Ins. Co. of North America, 25 0. R. 515. 
 Question : ' ' Have you ever had any property de- 
 stroyed or damaged by fire?" Held, immaterial: 
 Stott v. London & Lancashire, 21 0. R. 312. Ques- 
 tion: " Has the risk been refused by any other 
 company?" The answer to this was held a warranty 
 having reference to the property to be insured. The 
 only question for the jury was as to the truth of the 
 answer : Stott v. London & Lancashire, 21 0. R. 312. 
 Production will be ordered of all applications and 
 medical examinations which contain answers to any 
 question the materiality of which is at stake: Fergu- 
 son v. Provincial Provident, 15 P. R. 366. Where an 
 application untruly stated that no incendiary danger 
 was threatened or apprehended, the applicant, al- 
 though he did not read over the application, and was 
 not told that the question had been answered in the 
 negative, was bound by the answer, and that it was 
 material. The meaning of the question in the appli- 
 cation considered: Kniseley v. British America, 31 
 O. R. 376. As to misrepresentations in applications 
 for fire insurance policies, see sec. 194 (1). As to 
 misstatements of age in life insurance policies, see 
 sec. 166, Notes. 
 
 163. A testator had three policies of insurance, the first 
 payable to his wife, the second "for the benefit of his 
 wife . . . the beneficiary," and the third to "his 
 legal heirs." The widow was the legal heir. The 
 will bequeathed to the wife one-half the estate, "in- 
 cluding policies of 'insurance' made payable to her 
 at my death." Held, that the third policy was part 
 of the testator's estate, but not the first two, for by 
 these a trust was created in favour of the wife as pre- 
 ferred beneficiary. The word "including" imported 
 addition, that is, something in addition to and not in- 
 cluded in the half of the estate : Re Duncombe, 3. O. 
 L. R. 510 ; see also Re Harkness, 8 0. L. R. 720, 4 0. 
 W. R. 533. A designation of " legal heirs " as bene- 
 ficiaries, although these legal heirs may in fact 
 be members of the preferred class of beneficiaries, 
 does not come within sec. 178 (2), and is revocv 
 
CHAPTER 183. g73 
 
 able : Re Farley, 9 0. L. R. 517, 10 0. L. R. 540. Cer- 
 tificate for benefit of "legal heirs"; effect of as be- 
 tween children of first marriage and second wife: 
 Mearns v. A. 0. IT. W., 22 0. R. 34. "Legal heirs" : 
 see Re Duncombe, 3 O. L. R. 510; Re Hamilton and C. 
 0. F., 13 O. W. R. 410, 18 0. L. R. 121, where Re Dun- 
 combe (ante) not followed and section interpreted. 
 See also as to " legal heirs ": Re Beam, 3 0. W. N. 
 138, 20 0. W. R. 183; "Legal heirs designated by 
 will"; construction of such designation: Griffith v. 
 Howes, 5 0. L. R. 439, and see Re Edwards, 22 0. 
 L: R. 367. ' ' Heirs, " " heirs according to will : ' ' 
 Re Sawdon, 3 0. W. N. 136. 
 
 164. The company may by their conduct become estopped 
 from setting up non-payment of premium after the 
 30 days: Tattersall v. People's Life, 9 0. L. R. 611, 
 11 0. L. R. 326. Construction of policy providing that 
 after lapse through non-payment for 30 days, com- 
 pany will within 3 months issue paid-up non-partici- 
 pating policy: Pense v. Northern Life, 10 0. W. R. 
 826. 
 
 165. — (1) The words of the section have reference to a 
 stipulation or agreement giving less time than one 
 year for bringing the action. It is an enabling, not 
 a disabling enactment : Styles v. Royal Arcanum, 29 
 0. R. 38. Validity of clause invalidating claim under 
 policy one year from date of insured's death: Gill v. 
 Great West Life, 2 0. W. N. 777, 18 0. W. R. 733. 
 " Happening of the event insured against," under 
 former wording, referred in case of an accident 
 policy to the death of the insured, not to the accident 
 which caused his death : Atkinson v. Dom. Can. G. & 
 A. Ins. Co., 16 0. L. R. 619, 11 0. W. R. 449, The in- 
 surers are not bound to plead failure of plaintiff to 
 comply with condition in policy requiring action to be 
 brought within three months from the time when the 
 right accrued, when this is by the policy itself a con- 
 dition precedent to the right of the insured to re- 
 cover: Atkinson v. Dom. Can. G: & A. Ins. Co., 16 
 0. L. R. 619. Effect of this limitation as against for- 
 eign administrator : Johnson v. Dominion of Canada 
 G. and A. Ins. Co., 11 0. W. R. 363, at p. 371. Section 
 considered and practice as to giving leave to bring 
 action ; order extending time ; renewal of writ ; juris- 
 
g74 CHAPTER 183. 
 
 diction: see Atkinson v. Dominion of Canada Guar- 
 antee and Accident, 11 0. W. R. 449, 16 0. L. R. 619. 
 
 165. — (2) Action not commenced within 18 months where 
 no direct evidence of death: Somerville v. Aetna 
 Life, 1 0. W. N. 852, 16 0. W. R. 301, 21 0. L. R. 
 276. 
 
 165. — (5) What evidence should be forthcoming to estab- 
 lish presumption of death ; issue may be directed to 
 try whether the insured is dead : Re DaUcey and A. 0. 
 U. W., 11 0. W. R. 833, 12 0. W. R. 417; Re Marshall 
 and A. 0. U. W., 11 0. W. R. 1078, 12 0. W. R. 153, 
 13 0. W. R. 306, 18 0. L. R. 129 ; Re Pilgrim, 12 0. W. 
 R. 1086. Evidence on application for declaration of 
 death: Re Goble, 1 0. W. N. 624; Re Coots, 1 0. W. N. 
 807; Somerville v Aetna Life, 1 0. W. N. 852, 16 0. 
 W. R. 301, 21 0. L. R. 276; Re Oag and C. 0. H. C, 
 4 O. W. N. 643. Application of section: Wright v. 
 A. 0. U. W., 5 O. W. N. 445. See R. S. 0. 1914, ch. 
 62, sec 38, notes. 
 
 166. As to materiality of misrepresentations as to age: 
 see Hargrove v. Royal Templars, 2 0. L. R. 79 ; notes 
 to sec. 156 (6) ante. Misrepresentations as to age in 
 foreign policy completed in Canada; policy held to 
 be subject to statutory conditions imposed for pub- 
 lic benefit : Mason v. Massachusetts Benefit, 30 0. R. 
 716. This section does not apply to benevolent so- 
 cieties having an age limit, when the effect of the 
 applicant's misstatement as to age, though bona fide, 
 is to bring the applicant within the limit: Cerri v. 
 A. 0. F., 28 0. R. Ill, 25 A. R. 22. The insured 
 stated in his application in 1891 that he was 41, 
 when in fact he was 44. Evidence of statements 
 made many years before by the insured that he 
 was born in 1850, for the purpose of showing bona 
 fides, were improperly rejected : Dillon v. Mutual Re- 
 serve, 5 0. L. R. 434. The onus is on the persons 
 seeking to uphold the contract to prove that the state- 
 ments as to age are made bona fide : Dillon v. Mutual 
 Reserve, 5 0. L. R. 434. 
 
 After an application for membership in a benevolent 
 association was accepted, a dispute arose as to the 
 age of the insured, and an action was brought to 
 
CHAPTER 183. 375 
 
 cancel his certificate. This was settled, an affidavit 
 being accepted as proof of age. Subsequently, an- 
 other action was brought to cancel the certificate on 
 the, ground that the affidavit was wrong: Held, that 
 only clear proof as to age and fraud in procuring and 
 making the affidavit would undo the settlement : Sons 
 of Scotland v. Faulkner, 26 A. E. 253. A company 
 receiving premiums after knowledge of misstatement 
 of age of insured must be treated as affirming the pol- 
 icy as it stands: Hemmings v. Sceptre Life, 1905, 1 
 Oh. 365. 
 
 169. — (1) A condition in a policy of insurance that pro- 
 vided the premiums have been regularly paid, it shall 
 after a year be "incontestible" does not override an 
 enactment of the Legislature that the insurer must 
 have an insurable interest in the life upon which the 
 insurance is effected: Anctil v. Manufacturers Life, 
 1899, A. C. 604. Policy effected by a wife under hus- 
 band's name without his knowledge or consent con- 
 trary to the rule of the insurance company; subse- 
 quent ratification by husband: Wakeman v. Metro- 
 politan Life, 30 0, E. 705. Where the name of the 
 person interested in the policy is not inserted therein, 
 but is set out in the application which is made part 
 of the policy, it is sufficient under sub-section (1): 
 Wakeman v. Metropolitan Life, 30 O. E. 705. If the 
 beneficiary of a life insurance policy having no inter- 
 est in the life of the insured, has effected the insur- 
 ance for his own benefit and pays all premiums him- 
 self, the policy is a wagering policy and void under 
 this provision: North American Life v. Brophy, 2 
 O. L. E. 559, 32 S. C.'B. 261. The rule of law that 
 where one of two parties pays money to the other 
 in pursuance of ah illegal contract he eannot recover 
 it back, is not displaced by the fact that the contract 
 was entered into as a result of an innocent misrepre- 
 sentation of law made by the other party in the 
 absence of fraud, duress or fiduciary relationship: 
 Harse v. Pearl Life (1904), 1 K. B. 558. See as to 
 policy held illegal as contrary to this provision, and 
 as io repayment of premiums :' Dowker v. Canada 
 Life, 24 IT. C. E. 591. Insurable interest of husband 
 and wife in each other's lives: Griffiths v. Fleming 
 (1909) , 1 K. B. 805. A.policy of insurance effected by 
 a husband on the life of his wife may be enforced by 
 
876 
 
 CHAPTER 183. 
 
 him without affirmative evidence of insurable inter- 
 est: Griffiths v. Fleming (1909), 1 K. B. 805. 
 
 169. — (2) An unpaid vendor, who by agreement with his 
 vendee has insured the property sold, may recover 
 its full value in case of loss though his interest may- 
 be limited, if when he effected the insurance he in- 
 tended to protect the interest of the vendee as well 
 as his own: Keefer v. The Phoenix Insurance Co., 
 29 0. E. 394, 26 A. E. 277, 31 S. 0. E. 144. 
 
 169. — (3) Insurable interest of mother in life of child: 
 "Wakeman v. Metropolitan Life, 30 O. E. 705. 
 
 169. — (5) An insurance in a New York company effected 
 by a mother on the life of her child under age is valid 
 in Ontario under sub-sec. 5, and in New York accord- 
 ing to decisions referred to in the report of this case : 
 Wakeman v. Metropolitan Life, 30 O. E. 705. 
 
 169.— (9) This section will not assist an insurance com- 
 pany suing on a promissory note made by an infant 
 given for a first premium on a policy on his own life: 
 Federal Life Asuranoe Co. v. Hewitt, 9 0. W. E. 857; 
 Ee Soltykoff, Ex parte Margrett, 1891, 1 Q. B. 413. 
 
 170. Sections 170-171 came into force Aug. 1st, 1912. 
 They had no retroactive effect and did not apply 
 where testator died in May, 1912 : Ee Stewart, 4 0. 
 W. N. 293, 23 0. W. E. 343. This section, referred 
 to in 2 George V. ch. 33, sec. 170, as " new," is appar- 
 ently an enlargement of the provisions of E. S. 0. 
 1897, ch. 203, sec. 160 (5), which was derived from 
 59 Vic. ch. 45, sec. 2, superseding the effect of Minge- 
 aud v. Packer, 21 0. E. 267; Neilson v. Trusts Cor- 
 poration of Ontario, 24 0. E. 517 ; Ee Harrison, 31 0. 
 E. 317. These cases establish the practice under the 
 preceding statute 47 Vic. ch. 20. Before the amencl- 
 ment of 59 Vic. ch. 45, there was not, without the con- 
 sent of the wife, any power " wholly to divert " the 
 right acquired by her. The proper construction now 
 is that the powers given by sec. 179, sub-sees. 1 and 
 2, may be exercised with reference to any contract 
 heretofore issued or declaration made, and that any 
 such contract or declaration shall be valid notwith- 
 standing that at the time it was issued or made it was 
 
CHAPTER 183. 877 
 
 not in accordance with existing law: Cartwright v. 
 Cartwright, 8 0. W- E. 109, 12 O. L. E. 272. 
 
 171. — (1) The statute was never intended to prevent a 
 person effecting a bona fide insurance on his own life 
 making the sum insured payable to whom he pleases : 
 North American Life v. Craiger, 13 S. C. E. 278. If 
 the policy is valid at its inception, the fact that a 
 second person, without collusion, paid the premium 
 and obtained an assignment does not make it a wager- 
 ing contract : Vezina v. New York Life, 6 S. C. E. 30. 
 
 171.— (3) The designation of a beneficiary in an Ontario 
 contract of insurance can be revoked and the benefit 
 diverted to another only within the limits laid down 
 by the Act, even though the original designation of 
 the beneficiary be expressly made subject to power of 
 revocation and substitution reserved and to the by- 
 laws of the insurers, which permit the desired change : 
 Lints v. Lints, 6 0. L. E. 100. The by-laws and rules 
 of a benefit society, in so far as they are inconsistent 
 with the provisions of the Act, are to be regarded as 
 controlled and modified by them : Ee Harrison, 31 O. 
 E. 314; Mingeaud v. Packer, 21 0. E. 267; even 
 where the rules of the Society provide that no will 
 shall be permitted to control: Gillie v. Young, 1 0. L. 
 E. 368. Paramount authority of section over benefit 
 society's rule : Fidelity Trust v. Buchner, 22 0. W. E. 
 72, 3 0. W. N. 1208, O. L. E. See further as to rules 
 of benefit societies, notes to sees. 2 (51) and 184. 
 
 A policy in favor of a daughter was set up in satis- 
 faction of a claim made by the daughter against 
 the estate and certain oral declarations of the de- 
 - ceased made before effecting the insurance were 
 proved to shew such to have been the intention of 
 the insured. It was held doubtful if such evidence 
 were admissible at all, but even if it were, ' there 
 should at least be something in writing evidenc- 
 ing the obligation to accept the amount in satisfac- 
 tion of the claim, as formal as the Act requires 
 in the case of changes in the description or appor- 
 tionment among the beneficiaries: Ee Mills, New- 
 combe v. Mills, 28 0. E. 563. "Where the assured 
 changes the designation of his policy payable to 
 members of the preferred class and makes ijt payable 
 to one member of that class who is also a creditor, 
 
g78 CHAPTER 183. 
 
 with the intention of exonerating his estate from 
 the debt : see Re Kemp, Johnson v. A. 0. U. W., 14 
 O. L. R. 424, 15 0. L. E. 339, and see post sec. 179, 
 note. By a contract between the insured and her 
 husband she agreed that a policy to be issued on 
 her life should be made payable to him as benefi- 
 ciary. The agreement was carried out and for fivo 
 years the husband paid the premiums. It was held 
 that a vested interest passed to him and the bene- 
 ficiary could not be changed without his consent, 
 even when the policy had lapsed and a new one had 
 issued in lieu of it: Bunnell v. Schilling, 28 O. R. 336. 
 In Videan v. Westover, 29 0. R. 1, a re-apportion- 
 ment made by will of the assured, whereby the de- 
 fendant, who was an "ordinary" beneficiary only, 
 was deprived of her benefits, was held to be valid, 
 the certificate having been issued, and the will made, 
 and the death of the insured having occurred before 
 the passing of 60 Vic. ch. 36 : see also Mclntyre v. Sil- 
 cox, 29 0. E. 593, 30 0. E. 488, where Videan v. West- 
 over is distinguished. Where a wife was beneficiary 
 and she died, and a direction was made to children 
 " as directed by will," and the will directed a di- 
 vision of his estate equally among all children, no 
 reference being made in the will to the benefit 
 certificate, the effect of the amendment of 1901 
 was to give all insurance money to infant child- 
 ren to exclusion of adults: Ee Snyder, 4 0. L. E. 
 320, but see amendment of 1903. A devise of a 
 testator of all his life insurance in favour of 
 "preferred beneficiaries," as defined by the Act, is 
 sufficient to vary a policy or declaration of appor- 
 tionment previously made without specifically identi- 
 fying the policies by number, name, date or amount 
 insured. Semble, such a devise does not affect a pol- 
 icy issued after the date of the will: Ee Cheese- 
 borough, 30 0. E. 639. Manner of identifying policy: 
 effect of the word " otherwise:" Ee Cheesborough, 
 30 0. E. 639; Ee Harkness, 8 0. L. E. 720, 4 0. W. E. 
 533; Ee Cochrane, 9 O. W. E. 956, 16 0. L. E. 328. 
 The decision (Ee Cheeseborough) was specially dis- 
 cussed in Ee Cochrane, 16 0. L. E. 328, where it was 
 held that a devise of " all the rest and residue of 
 my insurance funds" did not sufficiently identify 
 the insurance, and that extrinsic evidence was in- 
 admissible. Re Cochrane, 16 0. L. R. 328, was gen- 
 erally followed (e.g., Re Earl, 16 0. W. R. 901, 1 
 
CHAPTER 183. 879 
 
 0. W. N. 1141), and finally the statute was changed. 
 See now sub-see. 5 as to operation of general declara- 
 tion ; and see Re Stewart, 4 O. W. N. 293. Reappor- 
 tionment by will of benefit society insurance ; Racher 
 v. Pew, 30 0. R. 483 ; see also Re Harrison, 31 0. R. 
 316 ; Potts v. Potts, 31 0. R. 452 ; Gillie v. Young, 1 0. 
 L. R. 368; Book v. Book, 1 0. L. R. 86. A bequest of a 
 policy of life insurance was a valid declaration of 
 trust within R. S. 0. 1887, ch. 136, sec. 5 : McKibbon 
 v. Feegan, 21 A. R. 87 ; R. S. 0. 1887, ch. 136. Volun- 
 tary settlement on sisters : see Re Roddick, 27 0. R. 
 537. Apportionment by will: Re Grant, 26 0. R. 120, 
 485. Power to bequeath to executors, money limited 
 by society to certain classes : Morgan v. Hunt, 26 0. 
 R. 568. Moneys payable to infants where no trustee 
 or guardian is appointed: Dodds v. A. 0. U. W., 25 
 0. R. 570 (and see new sec. 175 infra). Policies de- 
 vised to executors to be invested for benefit of wife 
 and children within the provisions of R. S. 0. 1887, 
 ch. 136 : Beam v. Beam, 24 A. R. 189. 
 
 "What is sufficient evidence of change of beneficiary : 
 Simmons v. Simmons, 24 0. R. 662. Variation 
 of terms of certificate and revocation of direc- 
 tion for payment: Neilson v. Trust Corporation, 
 24 0. R. 517. The interest of a wife in a policy 
 of insurance effected by her husband on his own 
 life and declared by him to be for her benefit, 
 under R. S. 0. 1887, ch. 136, was separate estate, 
 and could be assigned by her during her hus- 
 band's lifetime: Graham v. Canada Life, 24 0. R. 
 607. Apportionment by policy ; variance by will : Re 
 Dicks, 18 0. L. R. 657. A bequest by one of four poli- 
 cies, any one of which may *be selected to answer the 
 bequest, is not such a designation as will even in fa- 
 vour of preferred beneficiaries meet the requirements 
 of the statute: MacLaren v MacLaren, 15 0. L. R. 
 142, 10 0. W. R. 835. Incomplete declaration of 
 trust ; revocable and not capable of taking effect as a 
 will : Kreh v. Moses, 22 0. R. 307. Sufficiency of de- 
 claration by will in favour of wife : Re Lynn, 20 0. R. 
 475, or to change previous declaration in favour of 
 child: Scott v. Scott, 20 0. R. 313. A testator hold- 
 ing a policy of insurance payable to "his order or 
 heirs," made a will devising his real estate and pro- 
 ceeding, "I give the residue of my property, includ- 
 ing life insurance, to my wife." Held, a sufficient 
 
ggQ CHAPTER 183. 
 
 identification of the policy within this section, and 
 operated as a valid declaration to the exclusion of 
 creditors. The word "including" did not mean that 
 the insurance was part of the residue, but that it was 
 given in addition to the residue : Be Harkness, 8 0. L. 
 E. 720, 4 0. W. N. 533. A will invalidly executed is 
 not an "instrument in writing" effectual to vary the 
 benefit of an insurance certificate under this section : 
 Ee Jansen, 12 O. L. E. 63. Where a will is validly 
 executed, but afterwards revoked by marriage, the 
 revocation of the will by marriage annuls the de- 
 claration of trust made in the will: Ee Watters, 13 
 0. W. E. 385. Identification of policy: Ee 
 Eoger, 14 0. W. E. 267, 18 0. L. E. 649. What is 
 sufficient identification of policy in will : Ee Watson 
 and C. 0. H. C, 3 0. W. N. 1605, 22 0. W. E. 834. 
 Change of beneficiary; agreement not to change: 
 Clarke v. Loftus, 19 O. W. E. 606, 21 0. W. E. 705, 2 
 0. W. N. 1288, 3 O. W. N. 1027, 24 0. L. E. 174, 26 
 0. L. E. 204. Assignment of policy to fiancee and 
 designation of beneficiary distinguished: Wilson v. 
 Hicks, 21 0. L. E. 623, 23 0. L. E. 496. Prima facie 
 title to insurance moneys : see Blahoult v. Equitable 
 Life, 11 0. W. E. 313. Changing benefit of policy as 
 between members of the preferred class : see sec. 179 
 notes. The question whether insurance moneys are 
 validly bequeathed to preferred beneficiaries may be 
 determined by originating notice under Con. Eule 
 938: see Holmested and Langton^ p. 1180, and cases 
 there cited ( 1913, Eule 600) . 
 
 171. — (4) Date from which the will speaks: see Wills Act, 
 
 E. S. 0. 1914, ch. 120, sec. 27. Betrospective effect of 
 this section and its application considered: Ee C. 0. 
 
 F. and McHutchion, 14 0. W. E. 251. Will containing 
 general devise of all testator's life insurance; sem- 
 ble, will not affect policy issued after date of will: 
 Be Cheeseborough, 30 0. B. 639. 
 
 171.— (5) Decision Ee Cochrane, 16 0. L. E. 328, con- 
 struing B. S. 0. 1897, ch. 203, sec. 160, and its effect on 
 change of law: Ee Stewart, 4 0. W. N. 293, 23 0. W. 
 B. 343. Ee Cheeseborough, 30 O. E. 639, Ee Hark- 
 ness, 8 0. L. E. 720, and Be Cochrane, 16 0. L. E. 
 328, commented on and distinguished: Be Watters, 
 13 0. W. E. 385. See notes to sec. 171 (3) ante. 
 
CHAPTER 183. 881 
 
 171. — (7) Where an insurance was effected in favour of 
 mother, not expressly stated to be a beneficiary for 
 value, and afterwards transferred to wife : see Potts 
 v. Potts, 31 0. R. 452. The insured cannot of his will 
 transfer the benefit of insurance from a beneficiary 
 for value who is of the preferred class to another 
 member of the preferred class : see sec. 179, Notes ; 
 Book v. Book, 1 0. L. R. 86. Beneficiary for value : 
 Re Commercial Travellers and June, 13 O. W. R. 932. 
 Beneficiary for value, but not so recognised in the 
 policy: Clark v. Loftus, 24 0. L. R. 174, 26 0. L. R. 
 204. See also Re Mills, Newcombe v. Mills, 28 0. R. 
 563 ; Re Kemp and A. O. U. W., 9 0. W. R. 18, 11 0. 
 W. R. 91, noted ante, sec. 171 (3). Policies effected 
 under Friendly Society Acts, 1875 and 1896, (Eng.) 
 are not assignable otherwise than by nomination 
 under the Acts: Re Redman, (1901) 2 Ch 471; Re 
 Griffin, (1902) 1 Ch, 135. 
 
 171.— (8) Policy payable to wife of insured ; assignment 
 by insured to creditor^ absolute nullity under Quebec 
 law: Crawford v. Bank of Commerce, 12 0. W. R. 
 401; see Lee v. Abdy, 17 Q. B. D. 309. Informal as- 
 signment as security for debt ; rights of other cred- 
 itors : Thompson v. Macdonnell, 13 0. L. R. 653, 8 0. 
 W. R. 721. 
 
 171. — (9) "Survivor," "surviving children": Re Janni- 
 son, 4 0. W. N. 1084, 24 O. W. R. 391. Where a pre- 
 ferred beneficiary dies, see post, sec. 178 (7), and 
 notes. 
 
 172. Renewal receipt of accident policy; effect: Youlden 
 v. London Guarantee, 28 0. L. R. 161, and cases there 
 considered, and see notes to sees. 2 (14) and 156. Re- 
 quirement of immediate written notice in personal 
 accident policy held reasonable and that the Court 
 had no jurisdiction under R. S. 0. 1897, ch. 51, sec. 
 57 (3), or otherwise, to relieve against forfeiture en- 
 suing through non-observance of the requirement. 
 "Immediate notice" means "reasonable expeditious 
 notice": Johnston v Dominion of Canada Guarantee 
 and Accident, 17 O. L. R. 462. Failure by assured to 
 give ' ' immediate notice of accident ; ' ' condition prece- 
 dent: Re Coleman's Depositories and Life and 
 
 s.A. — 56 
 
gg2 CHAPTER 183. 
 
 Health Assurance Association, 1907, 2 K. B. 798: 
 Hawes v. Canadian Ey. Accident, 44 S. C. E. 
 386. Bequirement as to notice of accident in accident 
 policies ; lack of statutory conditions : Evans v. Eail- 
 way Passenger Assurance Co., 21 0. W. E. 442, 3 0. 
 W. N. 881. Expiry of accident policy ; attempted re- 
 newal after accident : Carpenter v. Canadian Ey. Ac- 
 cident, 13 0. W. E. 821, 18 0. L. E. 388. What amounts 
 to waiver by an aecident insurance company of suffi- 
 ciency of proofs, of. loss ; clause providing against 
 suicide: Fowlie v. Ocean Accident, 4 0. L. E. 146. 
 What amounts to a finding of "accidental death:" 
 Fowlie v. Ocean Accident/ 4 0. L. E. 146. (See 
 S. C. 33, S. C. E. . 253 >. Eelease to further 
 claim for injuries subsequently developing from 
 the same accident: Kent v. Ocean Accident, 13 0. 
 W. E. 1072, 1 0. W. N. 324, 15 O. W. E. 177, 20 0. 
 L. E. 226. Construction of stipulations as to proof of 
 death, etc., in accident policy: see Johnson v. Dom. 
 Can. G. & A. Ins. Co., 11 0. W. E. 363; Atkinson v. 
 Dom. Can. G. & A. Ins. Co., 11 0. W. E. 449, 16 0. L. 
 E. 619. What is an " accident ; ' ' death from hemorr- 
 hage result of accident or disease : Davis v. Bro. Loco- 
 motive Engineers, 5 0. W. N. 279.. Cause of death: In- 
 juries " caused by the burning of a building;" " in- 
 juries happening from fits;" " external violent and 
 accidental means;" construction of policy: Wads- 
 worth v. Canadian Ey. Accident, 26 0. L. E. 55, 28 0. 
 L. E. 537. Pneumonia consequent on accident; death 
 resulting: Ee Etherington, 1909, 1 K. B. 591. Policy 
 issued to "traveller;" accident happening while act- 
 ing as brakesman: Stanford v. Imperial Guarantee, 
 12 0. W. E. 1289, 13 0. W. E. 1171, 18 0. L. E. 
 562. More hazardous occupation than that stated 
 in the' application: McNevin v. Canadian Ey. Ac- 
 cident, 32 0. E. 284, 2 0. L. E. 531, 32 S. C. E. 
 194; Stanford v. I. G. & A. Ins. Co., 18 0. L. 
 E. 562; Thomas v. Masons' Fraternal, 105 N. Y. 
 St. Eep. 692. Double indemnity in accident in- 
 surance; "riding as a passenger:" Wallace v. Em- 
 ployers' Liability, 25 0. L. E. 80, 26 0. L. E. 10. . Neg- 
 ligent exposure to unnecessary danger: Fowlie v. 
 Ocean Accident, 4 0. L. E. 146, 33 S. C. E. 253. 
 
 173. A contract ,to pay "out of the total disability fund 
 in accordance with the laws governing such fund 
 sums not exceeding in the aggregate $1,000" is not 
 
CHAPTER 183. 883 
 
 within this section: Hargrove v. Eoyal Templars, 2 
 0. L. E. 79. Application of this clause to cases in 
 . accident policies where the insured was engaged in 
 more hazardous occupation than the "application 
 stated: see Stanford v. I. G. & A. Ins. Co., 12 0. W. 
 B. 1289, 13 0. W. E. 1171, 18 0. L. E. 562. 
 
 174. Powers of executors and testamentary guardian in 
 regard to insurance money for benefit of children: 
 Campbell v. Dunn, 22 0. E. 98; but see notes to sec. 
 175 infra. 
 
 175. Where an infant entitled to insurance money lived 
 with her mother in a foreign jurisdiction where secur- 
 ity had been given by the mother, it was held that the 
 security given in the foreign Court would not attach 
 to her appointment as trustee under this act and the 
 Court declined to appoint her unless she furnished 
 the necessary security here : Be Slqsson, 15 P. E. 156 ; 
 see also Be Daniels, 16' "P. E. 304; Ee Berry- 
 man, 17 0. E. 573; Be Thin, 10 P. E. 490, and Be 
 Andrews, 11 P. B. 199. Moneys payable to in- 
 fants where no trustee or guardian appointed ■ Dodds 
 v. A. 0. TJ, W., 25 0. B. 570. Moneys directed 
 to be paid to administrator appointed where execu- 
 tors had renounced and not permitted to be paid into 
 Court: Merchants Bank v Monteith, 10 P. E. 588. 
 Payment qf life insurance moneys payable to infants : 
 Campbell v. Dunn, 22 0. B- 98. Payment of proceeds 
 to trustee for benefit of children: Dicks v. Sun Life, 
 14 0. W. E. 979, 1 0. W. N. 178, 461, 15 0. W. E. 366, 
 20 0. L. E. 369. 
 
 The purpose Of the amendment of 1913 is to commit 
 infants' shares of insurance moneys to the super- 
 vision of the Supreme Court as a Court of equity : 
 Ee Havey, 5 0. W, N. 45, 29 0. L. B. 336. The 
 changes made in this section by the amendments of 
 1913 would seem to exclude executors and guardians 
 appointed by the Surrogate Court from the right to 
 be paid insurance moneys of infants, and to make 
 them payable to a trustee appointed by the Court and 
 to such, a trustee, or in the absence of such a trustee 
 into Court, only: Be Eennie Infants, 5 O.'W. N. 459. 
 Proceedings where money payable to infants ; appli- 
 cation to Court to appoint trustee to receive the 
 
884 
 
 CHAPTER 183. 
 
 money; notice "to insurers; security: Re Rennie In- 
 fants, 5 0. W. N. 45ft. 
 
 177. The insured then living in Ontario took out two poli- 
 cies in an Ontario company. These he assigned as 
 collateral security to two notes, moved to a foreign 
 country and there died, having actual possession of 
 one of the policies at the time. Letters of adminis- 
 tration were granted to a person in the foreign juris- 
 diction and also to an assignee of one of the policies 
 here. It was held that the appointment of an admin- 
 istrator in Ontario was necessary and the money hav- 
 ing been paid into Court, should be paid out to the 
 administrator here : Re Ontario Mutual Life and Fox, 
 30 0. R. 666. The provisions .of the Insurance Act 
 provide a special mode of dealing with the shares of 
 infants in insurance moneys and exclude the appli- 
 cation of the ordinary rules of law so far as incon- 
 sistent therewith: Re Berryman, 17 0. R. 573. 
 Foreign trustee ; security : Re Slosson, 15 P. R. 156 ; 
 Re Thin, 10 P. R. 490, and Re Andrews, 11 P. R. 199. 
 A tutrix of infants in Quebec, duly appointed, is not 
 entitled qua tutrix to moneys of infants paid into 
 Court under the Act, but she may be appointed trus- 
 tee of the fund and receive it upon giving proper 
 security : Re Berryman, 17 P. R. 573. As to payment 
 to infants out of the jurisdiction where the fund con- 
 sists of insurance money: see Holmested and Lang- 
 ton, p. 231. Certificate of Judge of Court of Pro- 
 bate in another province where letters of guardian- 
 ship had issued as evidence in support of petition 
 under this section : Re Daniels, 16 P. R. 304. 
 
 178. — (1) Deceased insured his life in favour of his. 
 mother as sole beneficiary. This policy he later 
 assumed to surrender in favour of a paid-up policy 
 for $500, to be paid to his mother, " or in the event of 
 her prior death" (which event occurred) to a sister. 
 The sister was held entitled to the moneys as against 
 the executors of the mother : Kelly v. McBride, 7 0- 
 L. R. 30. As to effect of provisions securing the bene- 
 fit of life insurance to wives and children on existing 
 policies when it came into force: see Re Cameron, 
 21 O. R. 634. A supposititious wife of the holder of 
 a benefit certificate who had married him in ignor- 
 ance that he had a lawful wife living and had cohabi- 
 ted with him for some six years and up to his death,, 
 
CHAPTER 183. g85 
 
 believing herself during the greater part of this 
 time to be his wife and to whom the certificate was 
 made payable by name, with the appellation of "my 
 wife" added, was held entitled as against the lawful 
 wife to the moneys payable thereunder as being a 
 "dependent" within the society's rules notwith- 
 standing the conjunction of that word with a number 
 of others importing relationship by blood or affinity : 
 Cro&by v. Ball, 4 O. L. E. 496. The section applies to 
 benevolent societies : Swift v. Provident Institution, 
 17 A. E. 66. Children of "adopted" child: Fidelity 
 'Trust Co. v. Buchner, 26 0. L. E. 267. Position of 
 preferred beneficiaries in Winding-up: Ee Mutual 
 Life, Wellington's Claim: 13 0. W. E. 1109, 18 O. L. 
 E. 411. When insurance money is appropriated by 
 the husband to the wife, as wife, the wife, if validly 
 divorced before the husband's death, cannot get the 
 insurance money, nor can she be heard to say that 
 a divorce obtained by her on her application to a 
 foreign Court is invalid: Ee Williams and A. 0. U. 
 W., 14 0. L. E. 482, 10 0. W. E. 50, 215; see alsio 
 Magurn v. Magurn, 11 A. E. 178; Swaizie v. 
 Swaizie, 11 0. E. 324; O'Eeilly v. O'Eeilly, 12 0. W. 
 E. 688, 13 0. W. E. 967, 16 O. W. E. 75, 21 0. L. E. 
 201; Cartwright v. Cartwright, 12 0. L, E. 272. 
 
 178.— ( 2 ) ' ' Declaration ' ' means ' ' declaration designating 
 a beneficiary:" Wilson v. Hicks, 1 0. W. N. 429, 15 
 O. W. E. 309 ; see 1 0. W. N, 1138, 16 0. W. E. 857. A 
 designation of "legal heirs" as beneficiaries, al- 
 though these legal heirs may in fact be members of 
 the preferred class of beneficiaries does not come 
 within this sec. and is revocable : Ee Farley, 9 0. L. E. 
 517, 10 0. L. E. 540 (see see, 163 notes). Once the 
 insurance is made payable to the wife, the section 
 applies and the assured cannot divert it to bene- 
 ficiaries not in the preferred class. A change in the 
 rules of a benevolent society will not affect this : Ee 
 Harrison, 31 0. E. 314, Ee L 'Union St. Joseph, 12 
 0. W. E. 37. Eequest to issue policy in wife's favour; 
 trust created by operation of Insurance Act: Cun- 
 ningham v. Can. Home Circles, 3 0. W. N. 118, 20 0. 
 W. E. 205. A certificate was left blank for the designa- 
 tion of beneficiaries, but none were designated and no 
 reference to the certificate was made in the insured's 
 will. The by-laws of the society provided that unless 
 designation was made the money should go one-half 
 
ggg CHAPTER 183. 
 
 to insured's wife and one-half to his children. It was 
 held that the widow and children should divide the 
 money between them and that the fund was no part of 
 the estate in the hands of the executors: Babe v. 
 Board of Trade, 30 0. E. 69. Where a testator has 
 4 policies each of the same date and terms in the 
 same company, what amounts to a sufficient desig- 
 nation: see MacLaren v. MacLaren, 15 0. Li R. 142 
 (see sec. 171 (3), and cases noted there). Attempted 
 displacement of trust: where there is an appoint- 
 ment to an object of the power, with directions that 
 the same shall be settled, or upon any trust, or sub- 
 , ject to any condition, then the appointment is held 
 to be a valid appointment, and the superadded direc- 
 tion, trust or condition is void, and not only void, but 
 inoperative to raise any case of election: Wallas- 
 ton v. King, (1869) L. E. 8 Eq. 165. The testator 
 having power to appoint within the class of pre- 
 ferred beneficiaries, first gave the insurance moneys 
 in trust for his wife for life, and then over; he 
 could not do this and the wife was entitled to the 
 insurance moneys as well as to the other benefits 
 under the will: Be Edwards, 22 0. L. E. 367. 
 "It is not desirable to incorporate the somewhat 
 technical and not always satisfactory doctrine as to 
 vesting of legacies into these policies of insurance:" 
 per Boyd C, Re McKellar, 21 C. L. T., Occ. N. 381. 
 Construction of disposition made by insured of fund 
 for benefit of wife and children : Vesting of legacies : 
 Ee Shafer, 15 0. L. E. 266, 10 0. W. E. 409, 865. The 
 interest of a wife in a policy effected by her husband 
 on his life and declared by him to be for her benefit 
 under E. S. 0. 1887, ch. 136, was her separate 
 estate and might in her husband's lifetime be'as- 
 signed by her: Graham v. Canada Life, 24 0. 
 E. 607. A will devising an insurance policy to. 
 executors for the benefit of the testator's wife and 
 children was a sufficient declaration under E. S. 0. 
 1887, Ch. 136, sec. 5: Ee Lynn, 20 0. E. 475, Beam v. 
 Beam, 24 0. E. 189; McKibbon v. Feegan, 21 A. R. 
 87. 
 
 The dominating idea underlying the sections of this 
 Act which relate to preferred beneficiaries is the crea- 
 tion of a trust which withdraws the insurance moneys 
 from the estate of the insured and from interference 
 
CHAPTER 183. 887 
 
 by his creditors: Ee Lloyd and A. 0. U. W., 29 0. L. 
 E. 312. The plaintiff was a judgment creditor of the 
 defendant under a judgment against her separate 
 estate for trade debts. On the death of her husband 
 she became entitled to the proceeds of a policy made 
 payable to her as beneficiary. Held that the effect of 
 this section is to create a statutory trust of the insur- 
 ance money in favour of the wife without restraint on 
 anticipation. On the death of her husband the absolute 
 right to the money vested in her, and her original in- 
 terest being separate property within the Married 
 Women's Property Act, the fruits of the trust must 
 be regarded as separate property and liable to satisfy 
 the, plaintiff's judgment: Doull v. Doelle, 10 0. L. E. 
 411. Policies creating a trust for the wife as pre- 
 ferred beneficiary and not forming part of testator's 
 estate : see Ee Duncombe, 3 0. L. E. 510. The in- 
 sured assigned an endowment policy to a creditor, the 
 surplus to be paid to insured's wife, and subsequently 
 elected to take the cash surrender value. A judg- 
 ment creditor attached the fund in the company's 
 hands, and as no action had been taken by the com- 
 pany, the insured withdrew his election and executed 
 a declaration that the policy was held subject to the 
 assignment for the benefit of his wife. It was held 
 that his election to take the cash surrender value was 
 a mere proposal to the company and revocable^ and 
 that the declaration in the wife's favour defeated the 
 attaching creditor's claim: Fiskin v. Marshall, 10 
 0. L. E. 552, Policies of life insurance were by the 
 terms thereof made payable to the deceased's per- 
 sonal representatives, but by his will after directing 
 the payment of his debts he bequeathed all his estate 
 to his widow, including the policies subject to the 
 payment of the said debts. Held that the widow only 
 took; subject to the payment of the debts: Ee 
 "Wrighton, 8 0. L. E. 630. Where wife entitled, her 
 interest not affected by absolute assignment to a 
 creditor: Fisher v. Fisher, 28 0. E. 459, 25 A. E. 108, 
 28 S. C. E. 494. Benefit certificate amounting to 
 voluntary settlement in favour of sisters, dependents 
 as defined in the rules of the benefit society ; although 
 not within the protection of E. S. 0. 1887, Ch. 136, the 
 sisters were held entitled as against creditors of the 
 insured's estate which was insolvent: Ee William 
 Eoddick, 27 0. E. 537. Order for receiver to sell ; sub- 
 
888 CHAPTER 183, 
 
 sequent declaration by insured for benefit of wife and 
 children: Weeks v. Frawley, 23 O. B. 235. 
 
 178. — (3) A man with wife and children insured "for 
 benefit of wife and children. ' ' The wife died and the 
 man remarried and had a child by second wife. The 
 widow and her child were entitled to participate : Ee 
 Browne, 1903, 1 Oh. 739; see also Ee Parker, 1906, 
 1 Oh. 526. A man effected insurance "for the bene- 
 
 , fit of his wife, or if she be dead, between his children 
 equally." The wife died and the insured remarried 
 
 : and had a child. The money went to all the children 
 equally, but the widow was not entitled to participate: 
 
 i Ee Griffiths, 1903, 1 Ch. 739. A policy of insurance 
 under this section will enure to the benefit of an after 
 taken wife : Ee Parker's policies, 1906, 1 Oh. 526. In- 
 sured left a policy of insurance payable to his "Wife 
 B.K." if living, and if dead, to his children. B.K. died 
 and insured remarried. The wife living at the time 
 of insured's death was entitled by statutory con- 
 struction: Ee Kloepfer, 5 0. W. N. 133, 25 O. W. E. 
 101. "Wife" means wife living at the maturity of 
 the contract notwithstanding first wife is designated 
 by name; and this applies to part as well as the 
 whole of the insurance : Ee Lloyd and A. 0. U. W., 4 
 0. W. N. 1246, 5 0. W. N. 5, 29 O. L. E. 312. Desig- 
 nation of "wife" second wife will take: Ee Bottom- 
 ley and A. 0. IT. W., 5 0. W. N. 83, 25 0. W. E. 26. 
 Eight of second wife surviving insured as preferred 
 beneficiary: Lambertus v. Lambertus, 5 0. W. N. 420. 
 And see also : Ee Sons of Scotland and Davidson, 2 
 O. W. N. 200, 17 O. W. E. 300; Ee Eaton, 23 0. E. 593. 
 See E. S. 0. 1914, ch. 120, sec. 27, notes. 
 
 Death of one of two designated beneficiaries in life- 
 time of assured: Eight of survivor: see Ee Lloyd 
 and A. 0. U. W., 4 0. W. N. 1246, 5 0. W. N. 5, 29 
 0. L. E. 312. Survivorship among children; repre- 
 sentation of grandchildren: Murray v. Macdonald, 
 22 0. E. 557, and see notes to sec. 178 (7), infra. 
 
 178. — (5) As to indorsements made by unmarried man: 
 see Toronto General Trusts Co. v. Sewell, 17 0. E. 
 442. See also : Ee McHutchion and C. 0. F., 13 0. 
 W. E. 1010, 14 0. W. E. 251. 
 
CHAPTER 183. 889 
 
 178. — (7) "One or all of the designated preferred bene- 
 ficiaries:" Be Caiger, 4 0. W. N. 1174, 24 0. W. R. 
 442; Re Lloyd and A. 0. U. W, 4 O. W. N. 1246, 
 5 0. W. N. 5, 24 0. W. R. 546, 29 O. L. R. 
 312. Former rule as to lapse on death of pre- 
 ferred beneficiary : Re Eaton, 23 O. R. 593. Ascer- 
 tainment of beneficiary — right of representation of 
 grandchildren: Re Sons of Scotland and Davidson, 
 17 0. W. R. 300, 2 0. W. N. 200. ' ' Survivor, " " sur- 
 viving children:" Re Jannison, 4 0. W. N. 1084, 24 
 0. W. R. 391. A policy was made payable to 
 insured's mother "or in the event of her prior 
 death," to a sister; The mother predeceased the in- 
 sured and the sister was held entitled to the insur- 
 ance money as against the executors of the mother: 
 Kelley v. McBride, 7 0. L. R. 30. See also as to death 
 of beneficiary: "Wicksteed v. Munro, 10 0. R. 283, 13 
 A. R. 486. Distribution among survivors of pre- 
 ferred beneficiaries : Re Irwin, 3 0. "W. N. 936. The 
 contention that, this section does not apply where 
 there was only one benefieiary originally named who 
 dies in the lifetime of the assured, cannot be upheld r 
 Re Henderson and C. 0. F., 8 0. W. R. 117. The in- 
 sured effected a policy in favour of his wife and two 
 children, and perished with his wife in a storm on the 
 Great Lakes. There was no evidence of survivorship. 
 The personal representative of the wife claimed a 
 third of the money but it was held that (apart from 
 sub-sec. 7) a preferred beneficiary within sub-sec. 
 1 only acquires an interest contingent on being alive 
 when the insured dies, and the wife's representatives 
 being unable to prove this, were not entitled: Re 
 Philips and Chosen Friends, 12 0. L. R. 48. Designa- 
 tion of wife as beneficiary; subsequent designation by 
 will in favour of mother or sisters; predecease of 
 mother: see Re C. 0. F. and McHutchion, 13 0. W. 
 R. 1010, 14 0. W. R. 251. Certificate was payable 
 to assured's wife (naming her) one-half, and to 
 daughter, one-half. Designated wife died and as- 
 sured re-married and no change was made in certifi- 
 cate. The second wife took one-half by force of 
 sub-sec. 3 (supra). Sub-section 7 can be given full 
 effect by dealing with it as providing for survivor- 
 ship only where one or more or all of the designated 
 beneficiaries die in the lifetime of the assured, pro- 
 vided there is no wife living at the maturity of the 
 contract: Re Lloyd and A. 0. U. W.., 29 0. L. R. 
 
ggg CHAPTER 183. 
 
 312. Amendment of 1913 considered. Power of 
 father (assured) after his wife's death to defeat 
 infant's interest in policy: Ee Reimie Infants, 5 0. 
 W. N. 459. 
 
 179. The Wills Act, E. S. 0. 1914, ch. 120, sec. 30, has no 
 application to case of limited powers, such as those 
 exercisable with reference to beneficiaries under 
 the Insurance Act: Cloves v. Awdry, 12 Beav. 604, 
 but only to cases where the testator has power to 
 appoint in any manner he may think proper: Re 
 Cochrane & A. O. IT. W., 11 O. W. E. 956, 16 0. L. E. 
 328. The construction given by the Courts to the 
 case of lapsed legacies or lapsed appointments fall- 
 ing into residue (e.g., Falkner v. Butler, Ambl. 514), 
 is not warranted in dealing with attempts to change 
 beneficiaries under the Insurance Act: Ee Coch- 
 rane & A. 0. U. W., 11 0. W. E. 956, 16 0. L. E. 
 328. The power to vary can be exercised by will so 
 long as the allotment is confined to beneficiaries 
 of the preferred class: Ee Lynn, 20 0. E. 475; 
 McKibbon v. Feegan, 21 A. E. 87; Re Cheese- 
 borough, 30 0. E. 639. Where certificate became 
 trusts under E. S. 0. 1887, ch. 136, they could not be 
 revoked or replaced: Migneaud v. Packer, 21 0. E. 
 267, 19 A. E. 290; Ee Grant, 26 0. E. 120. Where 
 a certificate became a trust in the wife's favour, its 
 surrender could only take place with the wife's con- 
 sent under 48 Vic. ch. 28 ; E. S. 0. 1897, ch. 203, sec. 
 160 (5) also considered: Cartwright v. Cartwright, 
 8 O. W. E. 109, 12 0. L. E. 272. The insured might 
 vary but not destroy the trust created by the policy 
 and declare a new trust which would or might de- 
 prive his children of all benefit in the trust: Neilson 
 v. Trusts Corporation of Ontario, 24 0. E. 517. The 
 insured had two policies payable " for the use 
 and behoof " of his wife and children. By his will 
 he directed that one-half be given to the wife 
 and one-half to the children. By a codicil he 
 directed that all be given the wife "in lieu of the 
 house deeded to her and since disposed of." The 
 house had not, in fact, been disposed of, and was 
 vested in the wife. Held, that the wife was entitled to 
 the insurance moneys and was not put to election be- 
 tween the house and one-half the insurance money, 
 the essential elements of a case of election being 
 wanting : Mutchmor v. Mutchmor, 8 0. L. E. 271. A 
 
CHAPTER 183. ggl 
 
 person having effected an insurance on his life in 
 favour of his mother, the policy not expressly stat- 
 ing that she was a beneficiary for value, subsequently 
 transferred the benefit of it to his wife alone. Held, 
 that the provisions of the statute must prevail and 
 that the wife was entitled to the policy moneys : Potts 
 v. Potts, 31 0. B. 452. Benefits passing away from 
 brother named in certificate to wife by virtue of will 
 of insured contrary to rules of the society issuing the 
 certificate: Gillie v. Young, 1 0. L. B. 368. When a 
 policy is payable to a beneficiary for value who is 
 also one of the preferred class of beneficiaries, the 
 assured cannot by his will transfer the benefit of the 
 insurance to another beneficiary of the preferred 
 class. Such a case is governed by sec. 171 : Book v. 
 Book, 1 0. L. E. 86. The by-laws of a benefit 
 society providing that any indorsement could be re- 
 voked, are modified or controlled by this section: 
 Be Harrison, 31 0. E. 314. Where benefit certificate 
 was payable to wife of assured and subsequently by 
 will he designated his mother and sisters as benefi- 
 ciaries, and his mother predeceased the assured, the 
 certificate being unaltered, payment into Court was 
 directed: Ee McHutchion and C. 0. F. 13 0. W. E. 
 1010 ; and payment out to sisters : Ee McHutchion and 
 C. 0. F., 14 O. W. E. 251. Bequest of insurance 
 moneys to wife for life, with remainder to others 
 not preferred beneficiaries: Ee Edwards, 2 0. W. 
 N. 323, 17 0. W. E. 643, 22 0. L. E. 367 (see 
 sec. 178 (2), note). Where after making his will 
 altering the apportionment of policies among 
 beneficiaries, the insured cancelled his policies and 
 had new ones issued to his "executors in trust," it 
 was held that this did no,t affect the rights of the par- 
 ties, as the executors would take in trust for those 
 beneficially entitled: Mclntyre v. Silcox, 29 0. E. 593, 
 30 0. E. 488. The insured cannot, except by express 
 variation of the allotment and apportionment of the 
 insurance money among the preferred beneficiaries, 
 deprive the widow of her share nor make the accept- 
 ance by the widow of the sum so allotted conditional 
 upon such acceptance being in lieu of dower : Ee Les- 
 ter, 13 0. W. E. 343; see also Fisken v. Marshall, 10 
 0. L. E. 552; Griffith v. Howes, 5 0. L. E. 349; Ee 
 Cochrane, 16 0. L. E. 328, 11 0. W. E. 956. Where 
 policies amounting to $6,000 were apportioned among 
 
892 
 
 CHAPTER 183. 
 
 a wife and nine children, and by the insured's will 
 amounts in all $5,100 were reapportioned in specific 
 varying sums, among eight children, nothing being 
 said of the wife and remaining child, it was held that 
 the insured could make the reapportionment, and the 
 wife and remaining child took the $900. One of the 
 policies having turned out worthless, the sum going to 
 each beneficiary was abated in due proportion: Re 
 Carbery, 30 0. R. 40. What is sufficient evidence of 
 change of beneficiary : Simmons v. Simmons, 24 O. R. 
 662. A provision in a reapportionment of insurance 
 amongst preferred beneficiaries directing that a share 
 shall not be paid to a certain beneficiary until he is 
 25 years old, is ineffective : Re Canadian Home Cir- 
 cles and Smith, 9 O. W. R, 738, 14 O. L. R. 322. A 
 certificate issued by a benefit society to a married wo- 
 man provided that the benefit should be payable to 
 her ' ' legal heirs as designated by her will. ' ' She left 
 three children. By her will she gave specific legacies 
 to her husband and each of the three children by 
 name, the insurance to her executors to pay debts, and 
 the residue to the children. It was held that the 
 bequest of the insurance money was inoperative; 
 that it was payable to the three children as 
 " legal heirs designated by the will," and that the 
 children were not bound to elect between the benefits 
 specifically given them and the insurance money: 
 Griffith v. Howes, 5 O. L. R. 439. Where the insured 
 had a policy designated in favour of wife and chil- 
 dren, and varied the designation in favour of one of 
 the same class who was also a creditor with the in- 
 tention of exonerating his estate from debt, a Divi- 
 sional Court considered the transfer null and void 
 under the Statute as being an attempt to convert the 
 insurance moneys to the insured's estate and also in- 
 valid as not being a bona fide exercise of the power 
 of appointment vested in the insured. The Conrt of 
 Appeal, without interfering with the interpretation 
 placed upon the Statute by the Divisional Court, re- 
 versed their decision: Re Kemp, Johnson v. A. 0. TT. 
 W., 9 0. W. R. 899, 14 0. L. R. 424, 11 0. W. R. 91, 
 15 0. L. R. 339. Change of beneficiary: Agreement 
 not to change : Clarke v. Lof tus, 24 0. L. R. 174, 19 
 0. W. R. 606, 2 0. W. N. 1288, 0. L. R., 21 0. W. R. 
 705, 3 0. W. N. 1027. As against a second wife and 
 adopted daughter, a first wife will not be heard to 
 
CHAPTER 183. 393 
 
 impugn the jurisdiction of the Court which she had 
 invoked to grant her a divorce: Ee Williams and A. 
 O. U. W, 14 0. L. R. 482 ; see sec. 178 (1), note. As 
 to variation of beneficiary generally: see sec. 171 
 (3), notes. 
 
 184. Eules and regulations of friendly societies: see 
 Johnston v. C. M. B. A., 24 A. R. 28; Fawcett v. 
 Fawcett, 26 A. R. 335; Long v. A. G. IT. W., 25 
 A. R. 147 (notes to sec. 2 (51) ) ; Cerri v. A. 0. F., 
 28 O. R. Ill, 25 A. R. 22; Morgan v. Hunt, 26 
 0. R. 568; Long v. A. O. U. W., 25 A. R. 147 (notes to 
 sec. 156) ; Fidelity Trust v. Buchner, 26 0. L. R. 367; 
 Racher v. Pew, 30 0. R. 483; Gillie v. Young, 1 0. L. 
 R. 368; Re Harrison, 31 0. R. 314; Lints v. Lints, 
 6 0. L. R. 100 (notes to sec 171 (3) ) ; Re Harrison, 
 31 0.-B. 314 ; Morgan v. Hunt, 26 0. R. 568 ; Johnston 
 v. C. M. B. A., 24 A. R. 88 j Yelland v. Yelland, 25 A. 
 R 91; Babe v. Board of Trade, 30 0. R. 69; Re Wil- 
 liam Roddick, 27 0. R. 537; Crosby v. Ball, 4 0. L. R. 
 496; Re L 'Union St. Joseph, 12 O. W. R. 37 (notes 
 to sec. 178) ; and see also Hoefner v. Canadian Order 
 of Chosen Friends, 29 0. R. 125. 
 
 187. A benevolent society attached to their declaration 
 of incorporation a printed book stated to contain a 
 copy of the constitution and by-laws, which were to 
 govern the society; held that these "became part of 
 the organic law of the society and changes made in 
 the by-laws in accordance with the provisions of the 
 constitution were valid and binding. The mere fact 
 of becoming a member raises no implied contract to 
 pay dues and assessments and there is no obligation 
 for the breach of which an action will be. Liabilities 
 may be imposed on members by. changes in the by- 
 laws which did not exist when they became members. 
 This section does not create a personal liability to 
 pay assessments when none exists apart from it. 
 All conditions prescribed in the constitution in order 
 to withdrawal from membership must be rigorously 
 observed. A suspended member is still a member, 
 and where there is liability on his part for dues and 
 assessments that liability continues, including those 
 which become payable after suspension and, before 
 expulsion: Re Ontario Insurance Act and Select 
 Knights, 31 0. R. 154. 
 
894 
 
 CHAPTER 183. 
 
 188. The meaning of the section is that in the case of 
 assessments which by implication are of fixed amount 
 and which by the rules of the society are payable at 
 fixed dates it is left to the society to provide for the 
 consequence of non-payment ; but if the periodicity of 
 payment does not exist,, the Statute intervenes and 
 regulates the procedure : Ee Select Knights, 29 0. B. 
 708; See Ee Massachusetts Benefit, 30 0. E. 309. ft 
 is not a renewal 'of contract of insurance, but a con- 
 tinuance of the original contract when after default 
 and suspension, a member of a benevolent society 
 pursuant to the rules of the society pay the assess- 
 ments as of right and is reinstated : Long v. A. 0. U. 
 W., 25 A. E. 147. 'Total disability through insanity; 
 suspension for non-payment of dues : McCuaig v. I. 0. 
 F., 19 0. L. E. 613, 14 0. W. E. 935, 1 0. W. N. 166. 
 Payment on account of premium ; waiver of forfeit- 
 ure : "Whitehorn v. Canadian Guardian, 19 0. L. B. 
 535, 14 0. W. E. 804. Membership in good standing: 
 McKechnieV. Grand Orange Lodge, 18 0. L. B. 555. 
 
 189. Member changing occupation and not complying with 
 rule of society as to notice: Wilson v. S. 0. E., 14 
 0. W. E. 912, 1 0. W. N. 144. The action of the do- 
 mestic tribunal is final unless contrary to natural jus- 
 tice, or in violation of the rules of the society or done 
 mala fide: Thompson v. Court Harmony A. 0. F., 1 
 0. W. N. 870, 16 0. W. E. 330. . 
 
 191. — (1) Standing timber is not a "commodity" within 
 the wording of the former section: C. P. E. v. Ottawa 
 Fire Ins. Co., 9 0. L. E 493, 11 0. L. E. 465. Insur- 
 able interest in property not owned by the insured but 
 for the destruction of which by fire the insured is 
 liable : C. P. E. v. Ottawa Fire Ins. Co., 9 0. L. E. 
 493, 11 0. L. E. 465. 
 
 192. — (2) As to the effect of a "renewal;" not a new 
 contract of insurance: Agricultural S. & L. Co. v. 
 Liverpool L. & G. Co., 32 0. E. 369, 3 0. L. E. 127, 
 33 S. C. E. 94; notes to sees. 194 and 2 (14). 
 
 194. Query : Do Ontario statutory conditions printed on 
 the back of a policy issued in Quebec and not referred 
 to in the body of the policy, form part of the contract 
 between the parties : Guerin v. Manchester Fire, 29 
 S. C. E. 139. Where a contract of insurance was 
 
CHAPTER 183. 895 
 
 not in the form of a policy, the statutory conditions 
 still governed it ; waiver of right to cancel : Bradt v. 
 Dominion Grange Mutual, 25 S. C. E. 154. Where a 
 policy does not contain the statutory conditions but 
 contains other conditions not printed as variations, 
 it must be read as containing the statutory condi- 
 tions and no others : Findley v. Fire Ins. Co. of North 
 America : 25 0. E. 515. Under a parol contract, an 
 implication is raised that a proper policy would be 
 issued subject to the statutory conditions, and such 
 variations as are just and reasonable: Coulter v. 
 Equity Fire, 7 0. L. E. 180, 9 0. L. E. 35. An in- 
 terim receipt does not modify or impair a valid 
 parol contract: lb. Uniform conditions in poli- 
 cies of fire insurance; constitutionality: see Citizens 
 Ins. Co. v. Parsons, 7 App. Cas. 96. 
 
 194; — (1) This condition must be taken to refer to state- 
 ments and representations on which the policy is 
 based, whether the risk they relate to is physical or 
 moral. Where the applicant was asked if incendiary 
 danger was threatened or apprehended and untruly 
 answered "No," the policy was avoided: Findley v. 
 Fire Ins. Co. of N. A., 25 0. B. 515. Even where the 
 insured did not read over the application and had 
 not been told that the question had been answered in 
 the negative : Knisley v. British America, 32 0. E. 
 376. Question: " Have you ever had any property 
 destroyed or damaged by fire?" Held immaterial: 
 Stott v. London & Lancashire, 21 0. E. 312. 
 A variation of the first condition required in- 
 sured to disclose incumbrances and it was objected 
 that the insured had omitted to do so. Held that the 
 object of the condition was to obtain information be- 
 fore accepting the risk, which is usually done by 
 questions and answers in a written application. As 
 there were no questions here, written or Verbal, no 
 duty was imposed on the insured to communicate the 
 existence of the mortgage : Coulter v. Equity Fire, 9 
 0. L. E. 35. A variation of this condition providing 
 that any incumbrance by way of mortgage should be 
 deemed material is too wide to be just or reasonable 
 and the onus was on the insurers who asserted its 
 materiality: lb. The mortgage clause attached to a 
 policy which provided that "the insurance as to the 
 interest only of the mortgagees therein shall not be 
 
ggg CHAPTER 183. 
 
 invalidated by any act or neglect of the mortgagor 
 or owner, etc.," applies only to acts of the mortgagor 
 after the policy comes into operation and cannot be 
 invoked as against the concealment of material facts 
 by the mortgagor in his application for a policy. 
 Quaere, would the mortgage clause enable a mortgagee 
 to bring an action in his own name alone on a policy? 
 Agricultural L. & S. v. Liverpool- L. & G. Co., 32 0. 
 B. 369, 3 0. L. E. 127, 33 S. C. B. 94; see Greet v. 
 Citizen® Ins. Co., 27 Gr. 121, 5 A. E. 596; Haslem v. 
 Equity Fire, 8 0. L. E. 246, as to right of mortgagee 
 to sue in his own name. Where insured conceals a 
 material fact — defence where policy in hands of 
 assignee for value without notice: Pickersgill v. Lon- 
 don and Provincial, 1912, 3 K. B. 614. Misrepresen- 
 tation or omission; undisclosed incumbrance: Fritz- 
 ley v. Germania Mutual, 14 0. W. E. 18, 19 0. L. E. 
 49. As to misrepresentations generally : see sec. 156, 
 notes. 
 
 194. — (2) A variation of this condition providing that 
 "if the premises insured become untenanted or va- 
 cant and so remain for more than 10 days without 
 notifying the company the policy will be void," is 
 reasonable. "Untenanted" is to be read as "un- 
 occupied." Meaning of "untenanted and vacant:" 
 Spahr v. North Waterloo Ins. Co., 31 0. E. 525. The 
 fact that the owners have entered into an executory 
 contract for pulling down the insured building and 
 for the sale of the materials for less than the insur- 
 ance is no bar to their right to recover the full 
 amount of insurance when the building is burnt down 
 before the time for transfer of possession: Ardill v. 
 Citizens Ins. Co., 22 0. E. 529, 20 A. E. 605. A 
 chattel mortgage is not a "sale or transfer," but it 
 is a "change of title" and an "incumbrance," and 
 where a variation of condition requiring these to be 
 notified was not complied with the policy was 
 avoided: Citizens Ins. Co. v. Salterio, 23 S. C. E. 155. 
 Changing the occupation of the insured premises 
 from a dwelling to a hotel is a change material to the 
 risk: Guerin v. Manchester Fire, 29 S. C. E. 139. A 
 variation of "to the company or its local agent" to 
 "authorized agent" in the clause requiring notice of 
 material change which was explained to mean the 
 company's secretary only, was held not unjust or 
 
CHAPTER 183. g97 
 
 unreasonable where the company's head office was in 
 Ontario: Lount v. London Mutual Fire, 9 0. L. E. 
 549, 699. The fact that a dwelling is unoccupied is 
 not per se a "change material to the risk" within the 
 condition in a fire policy on household furniture: 
 Boardman v. North "Waterloo Ins. Co., 31 0. R. 525. 
 Vacant or unoccupied : Dodge v. York Fire, 2 0. W. 
 N. 571. Change in occupation material to risk, use of 
 gasoline: Anglo-American v. Morton, 2 0. W. N. 
 237, 19 0. W. E. 870, 46 S. C. E. 635, 23 0. W. E. 316. 
 "Where the business of a partnership is taken over by 
 a limited liability company formed for the purpose, 
 there is a material change of interest which requires 
 the assent of the insurers even though the partners 
 hold nearly all the stock in the company : Peuehen v. 
 City Mutual Fire, 18 A. E. 446. Increased hazard: 
 Ee Standard Mutual Fire, 2 0. W. N. 235, 17 0. "W. 
 E. 407. Mortgage subsequent to application; ven- 
 dors' liens on implements are not material to the 
 risk : Fritzley v. Germania Mutual, 14 0. "W. E. 18, 
 19 0. L. E. 49. A security under the Bank Act is not 
 a chattel mortgage which must be disclosed within 
 the meaning of a special condition, making void the 
 policy if the property "become encumbered by a 
 chattel mortgage:" Ghiimond v. Fidelity Phenix, 47 
 S. C. E. 216. The statutory policy is avoided only 
 by an increase of risk within the knowledge or con- 
 trol of the assured : Heneker v. British America As- 
 surance, 14 C. P. 57. And this applies where a ten- 
 ant has been let in and makes changes for his own 
 purposes, there being no difference whether the ten- 
 ancy began before or after the date of the policy: 
 London and "Western Trusts v. Canadian Fire Ins. 
 Co., 8 0. "W. E. 872, 11 0. W. E. 781. 13 0. L. E. 540, 
 16 0. L. E. 217. Change of location of insured chat- 
 tels : see Annotation^ 1 D. L. E. 745. 
 
 194. — ^(3) A mortgagee of the insured premises to whom 
 payment is to be made "as his interest may appear," 
 cannot recover on the policy when his mortgage has 
 been assigned and he has ceased to have an interest 
 at the time of the loss : Guerin v. Manchester Fire, 29 
 S. C. E. 139. "Where a policy of insurance in one sum 
 covers buildings and chattels, and the land is con- 
 veyed by deed without the consent of the insurers, the 
 
 s.a. — 57 
 
g98 CHAPTER 183. 
 
 policy is avoided in toto and does not remain in force 
 as to the chattels: Dunlop v. Usborne and Hibbert 
 Farmers Mutual, 22 A. E. 364. Where a mortgagor 
 insured with loss payable to the mortgagee "as his 
 interest may appear" and subsequently released his 
 equity of redemption to the mortgagee, no consent be- 
 ing obtained from the insurers, the mortgagee could 
 not recover for a loss, because the mortgagor had 
 ceased to have an interest and because the conveyance 
 was a breach of this condition : Pinkey v. Mercantile 
 Fire, 2 0. L. E. 296. Leasing property insured is 
 not a transfer of interest: National Protector Fire 
 Co. v. Nivert, 1913, A. C. 507. Where property is 
 assigned for benefit of creditors, effect is not to void 
 policy if no consent obtained: Wade v. Eochester 
 German, 16 0. W. E. 1004, 2 0. W. N. 59, 1076, 19 
 0. W. E. 99, 23 0. L. E. 635. Changed condition of 
 policy material to risk : see Morton v. Anglo-Ameri- 
 can, 2 0. W. N. 1470, 19 0. W. E. 870, 46 S. C. E. 635. 
 
 194. — (5) Where subsequent insurance was effected with- 
 out notifying the insurers, the fact that the subse- 
 quent insurance was effected through a sub-agent of 
 the insurer's general agent who had also acted in 
 procuring the prior insurance, should not be re- 
 garded as affecting the company with constructive 
 notice of the subsequent insurance : Imperial Bank v. 
 Eoyal Ins. Co., 12 0. L. E. 519. Where a policy was 
 void by reason of subsequent insurance of which the 
 insurers were not notified, they were ordered to re- 
 turn the last premium received by them in ignorance 
 of the fact that the policy was no longer in force: 
 Imperial Bank v. Eoyal Ins. Co., 12 0. L. E. 519. 
 Insurance effected by mortgagees without the mort- 
 gagor's assent after attemped cancellation under 
 covenant in mortgage not "subsequent" insurance 
 nor "double" insurance, and does not affect the 
 mortgagor's Tight of recovery on the policy effected 
 by him : Morrow v. Lancashire Ins. Co., 29 0. E. 377, 
 26 A. E. 173. Subsequent insurance in another com- 
 pany in substitution for a prior insurance for the 
 same amount previously assented to, does not require 
 the assent of the insurers ; assent express or implied 
 to subsequent insurance is sufficient even if given 
 after loss and may be evidenced by the insurers join- 
 ing in an adjustment of loss : Mutchmoor v. Waterloo 
 
CHAPTER 183. g99 
 
 Mutual, 4 0. L. R. 606. Where there is a con- 
 dition requiring disclosure of concurrent insur- 
 ance (which is done) and subsequently the concur- 
 rent insurance is replaced by other substituted insur- 
 ance in other companies there is no breach Of con- 
 dition: National Protector Fire Co. v. Nivert, 1913, 
 A. 0. 507. Where a condition required that 
 notice of subsequent insurance be given to the 
 insurers "forthwith," this condition did not apply 
 where the property was destroyed by fire on the day 
 that an application for further insurance was ac- 
 cepted and notice did not reach the insurers until 
 after the loss: Temple v. Commercial Union, 29 
 S. C. E. 206. A "renewal" of an insurance policy 
 is not a new contract of insurance. Where at the 
 time of the original application there was undis- 
 closed prior insurance which rendered it void, the re- 
 newal was likewise a nullity, though the prior insur- 
 ance had ceased to exist in the interval : Agricul- 
 tural S. & L. Co. v. Liverpool L. & G., 32 0. E. 369, 
 3 O. L. E. 127, 33 S. C. E. 94. What amounts to a 
 breach of the condition against subsequent insurance 
 unless assented to; subsequent policy a nullity: see 
 Equitable Fire v. The Ching Wo Hong, 1907, A. C. 
 96. Breach of condition requiring notice to as- 
 surers and their .consent to subsequent insurance: 
 Western Assurance v. Doull, 12 S. C. E. 454 ; North- 
 ern Assurance v. Grand View Building Association, 
 183 U. S. 308, 319 ; Imperial Bank v. Eoyal Ins, Co., 
 8 0. W. E. 148. Subsequent insurance undisclosed : 
 Mutchmoor v. Waterloo Fire Ins. Co., 4 0. L. E. 606 ; 
 Thompson v. Equity Fire Ins. Co., 10 0. W. E. 761, 
 12 O W. E. 373, 17 0. L. E. 214, 41 S. C. E. 491. 
 Negligence of agent in not disclosing prior insur- 
 ance: Beaudry v. Eudd, 14 0. W. E. 197, 1 0. W. N. 
 326, 15 0, W. E. 197. 
 
 194.^— (6a) Where the insured disclosed their title, which 
 was that of lessees, to the insurer's agent, and the 
 policy subsequently issued to the insured as owners, 
 they were not precluded. from recovery by this condi- 
 tion as the insurers had notice by their agents, and it 
 was their duty to have endorsed on the policy the 
 necessary statement as to it. At all events they were 
 estopped from setting up the condition : Davidson v. 
 Waterloo Mutual, 9 0. L. E. 394. 
 
900 CHAPTER 183. 
 
 194. — (6/) Gasoline on the premises: Lewis v. Standard 
 Mutual Fire, 44 S. C. E. 40. Gasoline " stored or 
 kept:" Thompson v. Equity Fire, 17 0. L. E. 214, 
 41 S. C. E. 491; and see also: Anglo-American v. 
 Morton, 46 S. C. E. 635 ; Mitchell v. London Assur- 
 ance, 12 0. E. 706, 15 A. E. 262; Williams v. Fire- 
 man's Fund Ins. Co., 54 N. Y. 569; May on Insur- 
 ance, 4th ed., p. 242. 
 
 194. — (7) As to reasonable requirements in regard to 
 notice: see Lount v. London Mutual Fire, 9 0. L. E. 
 549, 699. 
 
 194. — (8) The insurers issued an interim receipt for 30 
 days. The insured thinking he was getting insurance 
 for one year remitted to the company a year's pre- 
 mium and they accepted it. The insurers were held 
 liable. If they wished to treat the insurance as for 
 30 days only they should have notified the insured 
 and returned him the proportion of premium. Not 
 having done so they were liable under this condition 
 as "policy" includes "interim receipt" and also were 
 estopped: Coulter v. Equity Fire, 7 O. L. E. 180, 9 
 O. L. E. 35. The insured held machinery as lessees 
 and disclosed their title to the insurer's agent to 
 whom they verbally applied for insurance, who had 
 authority to accept the risk and issue interim re- 
 ceipts and did so. The policy issued stated that the 
 insured were owners. Held that the terms of this 
 condition as to policies issued after application ex- 
 tends to verbal as well as written applications: 
 Davidson v. Waterloo Mutual, 9 0. L. E. 394. Where 
 the application disclosed two prior insurances qf 
 $4,000, but the policy assented to only one ; it was held 
 that if the insurers had not intended to assent to 
 $8,000 prior insurance they would have been bound 
 under this condition to set out in writing the particu- 
 lars wherewith policy differed from the application: 
 Mutchmoor v. Waterloo Mutual, 4 O. L. E. 606. In- 
 surer may be estopped by laches: McCutcheon v. 
 Traders Fire, 2 O. W. N! 1136, 19 O. W. E. 279. 
 
 194. — (12) The insured sent his policy to the insurers 
 with an endorsed surrender, and a letter asking that 
 the insurance be cancelled and unearned premium re- 
 turned. Owing to misdirection the letter was delayed 
 
CHAPTER 183. 901 
 
 and did not reach the company until the goods had 
 been destroyed by fire. Held that the letter only took 
 effect from the time of its receipt and by that time the 
 relations of the parties were so changed that the sur- 
 render did not operate : Skillings v. Boyal Ins. Co., 4 
 0. L. E. 123, 6 0. L. E. 401. A policy of insurance 
 covering the buildings or mortgaged property assign- 
 ed to the mortgagees as collateral security cannot be 
 cancelled by the insurance company at the request of 
 the mortgagees without notice to the mortgagors: 
 Morrow v. Lancashire Ins. Co., 29 0. E. 377, 26 A. E. 
 173. Variation inconsistent with the provision for 
 notice held ineffective: Bradt v. Dominion Grange, 
 25 0. E. 100, 22 A. E. 68, 25 S. C. E. 154. About a 
 week before the fire, the insured write to the com- 
 pany's local agent that they had decided to cancel the 
 existing policy and have a new one issued, for a re- 
 duced amount, but this was never communicated to 
 the head office nor action taken on it. Held this was 
 merely an intimation of the insured to have the policy 
 cancelled and a new one substituted which was never 
 carried out, and was not a notice as required by the 
 condition : Merchants Fire v. Equity Fire, 9 0. L. E. 
 241. A notice of cancellation should be wholly in 
 writing and should inform the insured that the pol- 
 icy will be terminated at the expiration of the pre- 
 scribed statutory period after notice. "Where a com- 
 pany gave a notice which was in effect an imme- 
 diate cancellation with return of unearned premium, 
 it was held that the policy had not been cancelled : 
 Bank of Commerce v. British America Assurance 
 Co., 18 0. E. 234. 
 
 194. — (18) Where an insurance company repudiates lia- 
 bility on a policy, they cannot object that proofs of 
 loss have not been furnished : Morrow v. Lancashire 
 Fire, 29 0, E. 377, 26 A. E. 173. Certain conditions 
 in a policy required proof of loss to be filed within 14 
 days after loss and provided that no claim should be 
 payable for a specified time after proof of loss ; the 
 condition as to production of proof of loss was, a 
 condition precedent to the liability of the insured. 
 Neither a local agent nor an adjuster has power to 
 waive compliance with a condition precedent to the 
 insurer's liability nor extend the time for their ful- 
 fillment: Margeson v. Commercial Union, 29 S. C. E. 
 
902 CHAPTER 183. 
 
 601; Brownell v. Atlas Assurance Co., 29 S. C. E. 537. 
 The " actual cash value of articles insured " within 
 the meaning of policy defined: see Fritzley v. Ger- 
 mania Mutual, 14 O. W. B. 18, at p. 24, 19 0. L. E. 49, 
 at p. 56. Notice of loss in writing ; sufficiency of proof ; 
 relief against imperfect compliance with statutory 
 conditions : Strong v. Crown Fire, 20 0. W. E. 901, 
 
 22 O. W. E. 734, 23 O. W. E. 701, 3 O. W. N. 48, 1534, 
 4 O. W. N. 584, 10 D. L. E. 42, 29 O. L. E. 33, 
 and see notes to sec. 199 post. Particulars required: 
 Patterson v. Oxford F. M. Ins. Co., 4 O. W. N. 140, 
 
 23 O. W. E. 122. Notice and proof of loss: Bell 
 Bros. v. Hudson Bay Ins. Co., 44 S. C. E. 419. 
 
 194. — (20) Materiality of misstatement : Patterson v. Ox- 
 ford Farmers Mutual, 4 O. W. N. 140, 23 O. W. E. 122 ; 
 and see notes to sees. 156 and 194 (1) ante. 
 
 194. — (21) Proceedings under this condition are in 1 the 
 nature of an arbitration and not a valuation merely. 
 Arbitrators must be indifferent, and where one of the 
 arbitrators was sub-agent and interested in obtaining 
 risks for the defendant company, although only to a 
 small extent, the award was void : Vineberg v. Guar: 
 dian Fire, 19 A. E. 293 ; see also Eace v. Anderson, 
 14 A. E. 213. Costs of arbitration under this condi- 
 tion: see Hughes v. Hand in Hand, 7 O. E. 615; St. 
 Philips Church v. Glasgow and London, 17 0. R. 95. 
 Eeference after action; mistake of agent: Smith v. 
 City of London Ins. Co., 14 A. E. 328. Eeference in 
 action: Clary v. British America, 12 P. E. 357. Ee- 
 f usal to admit liability : Hughes v. London Assurance, 
 4 0. E. 293. Waiver: Mclntyre v. National, 5 A. E. 
 580. Where a condition provided that no action 
 should be brought for any claim under the policy until 
 after an award should have been obtained as pro- 
 vided, the making of such an award was a condition 
 precedent to a right of action for loss: Guerin v. 
 Manchester Fire, 29 S. C. E. 139. Where a policy not 
 containing any mortgage or subrogation clause nor 
 any direct agreement with the mortgagee is effected 
 by the mortgagor with loss payable to the mortgagee 
 as his interest may appear, an appraisement of loss 
 under this condition is binding on the mortgagee, al- 
 though he has not been consulted in or notified of 
 the appraisement : Haslem v. Equity Fire, 8 0. L. E. 
 
CHAPTER 183. 903 
 
 246. In such a case the mortgagee can sue the insur- 
 ance company in his own name for the amount due : 
 Haslem v. Equity Fire, 8 0. L. E. 246; Greet v. Citi- 
 zens Ins. Co., 27 Gr. 121, 5 A. R. 596. Onerous terms 
 of appraisement not constituting a just and reason- 
 able variation of this statutory condition : see Cole v. 
 London Mutual, 10 0. W. E. 930, 15 0. L. R. 619. 
 Special agreement for joint survey : see Axler v. Lon- 
 don, Liverpool & Globe, 12 0. W. R. 100; Cole v. 
 London Mutual, 15 0. L. R. 619. Motion to stay pro- 
 ceedings is too late after issue joined: see R. S. 0. 
 1887, 62, sec. 6 ; Cole v. Canadian Fire Ins. Co., 15 
 0. L. R. 336; and see now R. S. 0. 1914, ch. 65, sec. 8 
 and notes. Insurers or insured under a policy con- 
 taining or subject to this clause are "parties to a 
 submission" within sec. 6 of R. S. 0. 1897, ch. 62: 
 Hughes v. Hand in Hand, 7 0. R. 615. The power 
 given to stay proceedings is upon application after 
 appearance and before defence. An application after 
 delivery of defence will be refused : West London Ins. 
 Co. v. Abbott, 29 W. R. 584; Cole v. Can. Fire Ins. 
 Co., 10 0. W. R. 906, 16 0. L. R. 336. See R. S. 0. 
 1914, ch. 65, and notes. 
 
 194. — (22) Where proof of loss furnished and insured ad- 
 vised that the claim would not be paid, and the policy 
 contained a condition that it should not be payable 
 until 3 months after receipt of proofs of loss, an ac- 
 tion brought within the 3 months was premature : 
 Mutual Fire Ins. Co. v. Frey, 4 A. R. 293, 5 S. C. R. 
 82. Where a policy has a mortgage clause the 
 mortgagee is not bound as the "assured" to make 
 proofs of loss ; the mortgagor is the person to make 
 them. The mortgagor is bound to make proofs of loss 
 so that 60 days may elapse thereafter before the ex- 
 piry of the year limited for bringing the action. A 
 mortgagor neglecting to do this does not prejudice 
 the mortgagee whose action, if brought within the 
 year, is not brought prematurely even if the 60 days 
 have not elapsed through the neglect of the mortga- 
 gor to make proofs of loss: Anderson v. Saugeen 
 Mutual, 18 O. R. 355. Completion of proof of loss : 
 Morton v. Anglo-Am. Ins. Co., 2 0. W. N. 237, 46 S. 
 C. R. 635. A variation cutting down the time to 
 bring action from 1 year to 6 months is not just or 
 reasonable and is void : Strong v. Crown Fire, 4 0. W. 
 N. 1319, 23 0. W. R. 701, 29 0. L. R. 33. Sufficiency 
 
904 CHAPTER 183. 
 
 of proofs : premature action : National Stationery v. 
 Traders Fire, 13 0. W. E. 367. Where insurance 
 assigned who can sue: effect of E. S. 0. 1914, ch. 
 109, sec. 49 : assignment by way of charge : Thomp- 
 son v. Equity Fire, 17 0. L. E. 214, 41 S. C. E. 491; 
 National Stationery v. Traders Fire, 13 0. W. E. 
 367. 
 
 194. — (24) A variation of this condition reducing the time 
 for bringing an action to 6 months is unjust and un- 
 reasonable: Merchants Fire v. Equity Fire, 9 0. L. E. 
 241; see also Strong v. Crown Fire, 29 0. L. E. 33; 
 note to 194 (22) ante. This condition bars the rem- 
 edy and not the right ; subrogation mortgagor delay- 
 ing proof of loss to prejudice of mortgage : see An- 
 derson v. Saugeen Mutual, 18 0. E. 355. Waiver of 
 condition : Cbusineau v. City of London Fire Ins. Co., 
 15 0. E. 329. A stipulation in a printed policy setting 
 a limit to the time for bringing action under the pol- 
 icy does not apply to a contract of reinsurance : Home 
 Insurance Co. v. Victoria Montreal Fire Ins. Co., 
 1907, A. C. 59. 
 
 195. The conditions printed in black ink and the varia- 
 tions in the same type in bright scarlet sufficiently 
 complies with the requirements of the section: Lount 
 
 1 v. London Mutual, 9 0. L. E. 549. Provision as to 
 non-receipt of a policy ineffectual through not being 
 printed in different ink : Bradt v. Dominion Grange, 
 25 0. E. 100, 22 A. E. 68, 25 S. C. E. 154. " Co- 
 insurance clause " when inserted pursuant to this 
 section in consideration of a reduction of premium 
 is " just and reasonable:" Eckhardt v. London 
 Ins. Co., 29 0. E. 695, 27 A. E. 373, 31 S. C. E. 72. 
 "Co-insurance clause" is a condition and not a mere 
 direction as to the mode of ascertaining the amount 
 of loss and is void if not printed in accordance with 
 the provision of the Act : Wanless v. Lancashire, 23 
 A. E. 224. A policy issued in 1895 insured S.S. Baltic 
 "whilst running on the inland lakes during the season 
 of navigation. To be laid up during the winter 
 months in a place of safety." The Baltic laid up in 
 1893 and never afterwards went to sea. She was 
 destroyed by fire in 1896. It was held that the policy 
 never attached. That the stipulation was not a con- 
 dition, but a description of the subject matter and did 
 
CHAPTER 183. 905 
 
 not come within the provisions as to variations of the 
 statutory conditions : Great Northern Transit v. Lon- 
 don Assurance Co., 29 S. C. R. 577. Where a policy 
 did not contain the statutory conditions, but con- 
 tained conditions not printed as variations, it was 
 read as containing the statutory conditions and no 
 others : Findley v- Fire Ins. Co. of North America, 25 
 0. R. 515. Variations in conditions. Fritzley v. 
 Germania Mutual, 14 0. W. R. 18, 19 0. L. R. 49. 
 Condition as to loss by leakage or discharge of 
 sprinkler system: see Davies v. Canadian Casualty, 
 14 0. L. R. 166, 39 S. C. R. 558. 
 
 196. Conditions dealing with the same subjects as those 
 given by the Statute and by variations of the statu- 
 tory conditions should be tried by the standard af- 
 forded by the Statute and held not to be just and 
 reasonable if they impose upon the insured terms 
 more onerous, stringent or complicated than those 
 attached by the Statute to the same subject or inci- 
 dent : Smith v. City of London Ins. Co., 14 A. R., at 
 p. 337, 15 S. C. R. 69; Ballagh v. Royal Ins. Co., 5 
 A. R. at p. 107 ; May v. Standard Ins. Co., 5 A. R. at 
 p. 622. 
 
 197. A condition that any mortgage or lien shall be 
 deemed material, if designed to prevent any Judge 
 or jury determining the fact of the materiality 
 is not just or reasonable: Fritzley v. Germania 
 Mutual, 14 0. W. R. 18, 19 0. L. R. 49. Where 
 the premium is reduced in consideration of the 
 insertion in a policy of fire insurance in the man- 
 ner prescribed in section 195 of the condition com- 
 monly known as the "co-insurance condition," that 
 condition is prima facie valid and should not be held 
 not "just and reasonable*' without evidence to that 
 effect : Eckhardt v. Lancashire Ins. Co., 29 0. R. 695, 
 27 A. R. 373, 31 S. C. R. 72. See ante sec. 195, notes. 
 
 199. This sec. construed and compared with former sec. 
 R. S. 0. 1897, ch. 203, sec. 172: Strong v. Crown Fire, 
 29 0. L. R. 33. When forfeiture through imperfect 
 compliance with conditions inequitable: Strong v. 
 Crown Fire, 4 0. W. N. 584, 1319, 23 0. W. R. 701, 
 29 0. L. R. 33. Grounds for application of this sec- 
 tion : Thompson v. Equity Fire, 17 0. L. R. 214, 41 
 S. C. R. 491. 
 
906 CHAPTER 183. 
 
 205. As to powers of provincial fire insurance companies 
 to make contracts and insure property throughout 
 Canada : see In re Companies, 48 S. C. R. 331. 
 
 211. Winding-up under E. S. C, ch. 144 and ch. 34: Re 
 Mutual Life, Wellington's Claim, 13 0. W. R. 1109, 
 18 0. L. R. 411. 
 
 216. The Ontario Legislature has power to confer on the 
 Master the powers given by this Act. The Master has 
 power to settle schedules of creditors, which implies 
 power to adjudicate upon the claims of officials of a 
 company for services to ascertain whether they shall 
 appear as creditors in the schedules, but he cannot 
 adjudicate on whether they have been guilty of such 
 conduct as deprives them of their right to claim as 
 creditors. He has also power to settle schedules of 
 contributories, but cannot adjudicate on the question 
 whether officials of the company have been guilty of 
 such breach of duty as to make them liable for any 
 loss by reason thereof. Such matters can only be 
 determined by action : Re Dominion Provident, 25 0. 
 R. 619. 
 
 219. The amount for which the holder of an unmatured 
 policy payable at death is to rank against an insol- 
 vent insurance company in liquidation is the differ- 
 ence, if any, at the date of commencement of the 
 winding-up proceedings between and in favour of the 
 present value of the reversion in the sum insured at 
 the decease of the life, and the present value of a life 
 annuity for an amount equal to the future premiums 
 which would become payable during the estimated 
 duration of life of the insured : Re Merchants Life, 1 
 O. L. R. 256, 2 0. L. R. 682. Valuing policies; con- 
 tingent claims maturing after winding-up begun : Re 
 Law, Car and General Ins. Corporation, 1913, 2 Ch. 
 103. Holder of unpaid shares upon acknowledged 
 trust : Re Standard Mutual, 1 0. W. N. 974. 
 
 220. See Re Insurance Act, re Select Knights, 31 0. R. 
 154. 
 
 222. The provision of Con. Rule 769 (1913, Rule 502) that 
 notice of filing a Master's report is to be served on 
 the opposite party is a prerequisite to the report be- 
 coming absolute. Where the report is on a claim to 
 rank on the assets of an insurance corporation in 
 
CHAPTER 184. 907 
 
 compulsory liquidation under the Insurance Act, 
 notice of filing the report given in the Ontario Gazette 
 and other newspapers is not tantamount to personal 
 service : Re Select Knights, 9 0. R. 708 ; but see pro- 
 visions introduced in 1901, ch. 21, sec. 3, and now 
 amended and appearing as sub-sees. (2) -(6) of this 
 section. 
 
 CHAPTER 184. 
 
 The Loan and Trust Cobpobations Act. 
 
 2.— (2) See Rex. v. Pierce, 9 0. L. R. 374; note to sec. 128. 
 
 9. Terminating shares : see sec. 101 notes. Provisions of 
 English Act, 6 & 7 Wm. IV, ch. 32, and of English 
 Building Societies Act 1874, 37-38 Vic, ch. 42, especi- 
 ally sees. 13 and 16, compared and contrasted with 
 R. S. 0. 1897, ch. 205; Re York County Loan, Claims 
 of holders of matured and withdrawable shares, 11 O. 
 W. R. 888. 
 
 18. — (e) At common law, it seems that a corporation 
 and a natural person can hold lands only as tenants 
 in common and not as joint tenants. This has been 
 altered in England (see 62 and 63 Vic. (Imp.) ch, 
 20). Difficulty may arise over the appointment of a 
 corporation as trustee jointly with an individual: 
 Re Thompson, Thompson v. Alexander (1905), 1 
 Ch. 229. Can a company be next friend : Fidelity 
 Trust v. Buchner, 22 O. W. R. 72, 3 0. W. N. 1208, 
 26 0. L. R. 367. No company can be or be appointed 
 guardian of the person of an infant. See former 
 provisions of Companies Act, 7 Edw. VII. ch. 34, 
 sec. 149. 
 
 22. Bearing of this section on B. N. A. Act, section 92, cl. 
 11; a company legally incorporated by a Province is 
 not limited to confine its operations within the Pro- 
 vince which created it : Re x ork County Loan, 11 0. 
 W. R. 507; see also In re Companies, 48 S. C. R. 331. 
 Effect of lack of by-law; position of shareholders out 
 of the province as creditors : Re York County Loan, 
 11 0. W. R. 507. 
 
 24. See Re York County Loan (shareholders in arrears), 
 11 0. W. R, 701. Permanent shareholders acquiring 
 
908 
 
 CHAPTER 184. 
 
 stock in manner not in compliance with the pro- 
 visions of E. S. 0. 1897, ch. 204, sees. 13 and 15 : Ee 
 York County Loan, Permanent Shareholders' Claim, 
 11 0. W. E. 624. 
 
 31. A reserve fund was constituted by by-law out of the 
 existing fund "together with such sums as may be 
 contributed thereto or as the directors may retain 
 from undivided profits." Many shareholders contri- 
 buted and received interest at dividend rate. In 
 winding-up, the contributors were not entitled to rank 
 as creditors on the assets for the sums so contri- 
 buted: Ee Atlas Loan, 7 0. L. E. 706. 
 
 35. — (1) Where the plaintiff mortgaged his lands as col- 
 lateral security for -the value of stock advanced to 
 him, which stock he assigned to the company and 
 covenanted to repay its par value in 96 monthly pay- 
 ments "as per rules," etc. The company sold out to 
 a similar company and the plaintiff accepted shares 
 in the now company and agreed to observe its by- 
 laws. Having made the 96 payments the plaintiff 
 asked for a discharge, but the stock having depre- 
 ciated 38 per cent, he was held not entitled to it until 
 he paid his proportion of the deficiency of the assets : 
 Lee v. Canadian Mutual Loan, 3 0. L. E. 191. 
 
 35. — (5) The words of the section cover mortgages exe- 
 cuted prior to its passing: Bradburn v. Edinburgh 
 Life, 5 0. L. E. 657. Where the loan was made and 
 the property was situate here and the mortgage pro- 
 vided the option of payment here, the local law must 
 govern in relation to the contract and its incidents: 
 Bradburn v. Edinburgh Life, 5 0. L. E. 657. 
 
 36. In line 1, for " 14 and 15 " read " 15 and 16 :" 4 Geo. 
 V. ch. 2, Schedule (29). 
 
 50. A loan company having issued "prepaid terminating 
 shares " to the plaintiff, amalgamated under this 
 and following sections with another company; see 
 consideration of rights of such a shareholder to be 
 treated as a creditor or to be compelled to take per- 
 manent shares substituted for his stock: Lennon v. 
 Empire Loan, 12 0. L. E. 560, 8 Q. W. E. 162. 
 
 63. — While this section relieves a company from seeing to 
 the execution of any trust to which shares are sub- 
 ject, it does not empower them to disregard the fact 
 
CHAPTER 184. 909 
 
 that shares assigned to them as security are "in 
 trust: Birkbeck Loan v. Johnston, 3 0. L. R. 497, 6 
 0. L. R. 258. 
 
 76. When a building society is known to be insolvent, no 
 rule can be 'passed affecting priorities of members 
 inter se : Sixth West Kent Building Society v. Hills 
 1899, 2 Ch. 60. 
 
 81. By-laws: see Be York County /Loan; Permanent 
 Shareholders' Claim, 11 0. W. E. 624. 
 
 82. Confirmation of by-laws : see Be York County Loan, 
 Permanent Shareholders' Claim, 11 0. W. E. 624. 
 
 91. Re York County Loan. (Case of shareholders in 
 arrears), 11 0. W. R. 701. 
 
 94. "Bond debenture or obligation" includes money de- 
 posited on a savings account : Re Ging, 20 0. R. 1. 
 
 95. "Reasonable doubt:" see Re Ging, 20 O. R. 1. 
 
 98.— (7)' In line 2, for " 9 " read " 8:" 4 Geo. V. ch'. 2, 
 Schedule (30). 
 
 98. See Re York County Loan, Permanent Shareholders' 
 Claim, 11 0. W. R. 624. 
 
 101. The position of a holder of terminating shares who 
 has given notice of withdrawal under by-laws permit- 
 ting him to do so is not that of an ordinary creditor 
 and cannot come into competition with outside credi- 
 tors. On the other hand, as between himself and the 
 continuing members he is entitled to be paid the 
 amount due him before they can divide the assets. He 
 remains a member of the corporation until he has been 
 "paid out:" Sibun v. Pearce, 44, Ch. D. 354. In that 
 sense he is a creditor: Re Blackburn and District 
 Benefit, 24 Oh. D. 421; sub nom. : Walton v. Edge, 10 
 App. Cas. 33. Terminating shares ; a rule that a 
 member may withdraw his shares and receive their 
 value ceases to operate not only when the company 
 becomes insolvent, but at the moment when there is a 
 stoppage of business or a recognition of the fact that 
 business must be stopped. A member who has given 
 notice of withdrawal which matured before the pass- 
 ing of resolutions for dissolution was held to have 
 
gig CHAPTER 184. 
 
 gained priority to other members : Re Ambition In- 
 vestment Society, 1896, 1 Ch. 89. A member who gave 
 notice of withdrawal and subsequently accepted an 
 advance on the security of his share was held to have 
 waived his notice of withdrawal: Ee Counties Con- 
 servative Society; Davis v. Norton, 1900, 2 Ch. 819; 
 see Ee York County Loan (Case of shareholders in 
 arrears), 11 0. W. E. 701. 
 
 102. Written statements made by the president of a loan 
 company when applying to a guarantee company for 
 a policy to protect the loan company against loss from 
 defalcations of a general manager, as to there being 
 an effective audit, though recited in the agreement 
 cannot be set up as an answer to a claim under the 
 guarantee unless E. S. 0. 1897, c. 203 sec. 144 (1) has 
 been complied with. (See E. S. 0. 1897, c. 183, sec. 
 156) : Elgin Loan v. London Guarantee, 8 O. L. E. 117. 
 
 104. ' ' Director, " " Officer : ' ' Powell Eees v. Anglo-Ameri- 
 can Mortgage Co., 26 O. L. E. 490. 
 
 122. — (la) In-line 1, strike out the word " hereafter:" 
 4 Geo. V. ch. 2, Schedule (31). 
 
 128. Effect of non-registration: Powell Eees v. Anglo- 
 American Mtge. Co., 26 O. L. E. 490. The con- 
 tracts referred to in clause (b) of 4 Edw. "VTL, 
 ch. 17, sec. 4 (see now sec. 130), is not restricted 
 to such contracts as are mentioned in E. S. 0. 
 1897, ch. 205, sec. 2 (5), The effect of clause (b) 
 is to prohibit the making of such contracts as are 
 dealt with by that clause under the penalty therein 
 mentioned and the enactment is intra vires the Pro- 
 vincial Legislature: Eex v. Pierce, 9 O. L. E. 374. 
 Foreign loan company taking mortgage : Euclid Ave- 
 nue Trusts Co. v. Hohs, 24 0. L. E. 447. 
 
 130. See E. v. Pierce, 9 0. L. E. 374, note to sec. 128, 
 supra. 
 
 133. There was no right of appeal to the Court of Appeal 
 from a judgment or order of a Divisional Court made 
 on an appeal to that Court under this section from a 
 magistrate's conviction: Eex v. Pierce, 10 0. L. E. 
 297. Provisions for appeals under the Summary 
 Convictions Act, see E. S. 0. 1914, ch. 90, sees. 10, 
 11, notes. 
 
 ..j'.j 
 
CHAPTER 185. QH 
 
 CHAPTER 185. 
 
 The Ontario Railway Act. 
 
 Refer to Abbott, Law of Railways (Can.) ; Farmer, 
 the Ontario Railway Act; Jacobs, Railway Law of 
 Canada; Macmurchy and Denison, The Canadian 
 Railway Law; Macmurchy and Denison, Canadian 
 Railway Cases; Browne and Theobald on Railways 
 (Eng.) ; Baldwin, American Railroad Law (includ- 
 ing. Street Railroads) ; Thornton, Fences and Pri- 
 vate Crossings (U.S.); Hudson on Compensation 
 (Eng.) ; Nichols, Power of Eminent Domain (U.S., 
 with Can, Cases) ; Lewis, Eminent Domain (U.S.) ; 
 Brown on Carriers (Eng.) ; Macnamara, Law of 
 Carriers (Eng.) ; Darlington on Railways (Eng.) ; 
 Disney, Law of Carriage by Railways (Eng.) ; 
 Schouler, Bailments and Carriers (U.S.) ; Cross, Law 
 of Lien and Stoppage in Transitu (Eng.) ; Beven on 
 Negligence. 
 
 2. — (a) Enforcement of orders of the Board: see sees. 
 260 and 205 post, and notes, and R. S. 0. 1914, ch. 186, 
 sec. 27. 
 
 2.— (d) See post, sec. 90 (32) and sec. 242 (4). 
 
 2.— (h) See post sec. 241 (3) and 259. Highway Cross- 
 ings: see sees. 118-128. Other provisions: see sees. 
 114 (lc), 155. Highway has been held to "include" 
 (see R. S. C. 190, ch. 37, sec. 2 (11), a road allowance 
 not used or opened : Tp. of Gloucester v. Canada At- 
 lantic, 3 O. L. R. 85; Regina v. Hunt, 16 C. P. 145. 
 As to road laid out on plan : see Toronto v. Gr. T. R., 2 
 O. W. R. 3, 4 O. W. R. 491; see also sec. 155 notes. 
 
 2.— (ft) Lands: see as to conveyance sees. 83, 302. Note 
 as to minerals ; see sec. 133 and notes. 
 
 2.— (m) See sees. 82> 83, notes. 
 
 2.— (o) "Railway" and "extension;" liability of gen- 
 eral undertaking for costs of construction of separate 
 subordinate undertaking : Pearson v. Dublin & S. E. 
 Railway, 1909, A. C. 217. See R. S. C. ch. 37, sec. 2 
 (21). 
 
912 CHAPTER 185. 
 
 2— (£) "And with which this Act is incorporated:" see 
 Ee Port Arthur Electric, 18 0. L. E. 376. 
 
 2.—(u) The Toronto Eailway is a street railway within 
 this sec. : Ee West Toronto and Toronto By., 25 0. L. 
 E. 9. 
 
 2.— (x) An engine with tender is a train: Bellinger v 
 C. P. E., 21 0. E. 705, 20 A. E. 244; see also Cox v. 
 Great Western Ey., 9 Q. B. D. 106; McLeod v., Cam- 
 mill, 1895, A. C. 57. Is a hand-car a "train:" see 
 Burtch v. C. P. E., 13 0. L. E. 632; Vaccaro v. King- 
 ston and Pembroke Ey., 11 0. W. E. 836 at 839. An 
 engine returning to the yard after pushing a train up 
 a grade is a "train:" Fralick v G. T. E., 1 0. W. N. 
 309, 15 0. W. E. 55, 43 S. C. E. 495. See also note 
 to E. S. 0. 1914, ch. 146, sec. 3 (5). 
 
 2- — {y) "Undertaking:" Phelps v. Niagara Central Ey., 
 18 0. E. 581, 19 0. E. 501. Amalgamation of two 
 "undertakings:" Atty.-Gen. v. North Eastern Ey. 
 1906, 2 Ch. 675. 
 
 2.— (e) See E. S. C, ch. 37, sec. 2 (34). 
 
 Application of Act. 
 
 3. See Dominion Eailway Act, E. S. C. 1906, ch. 37, sees. 
 5, 6, 8. Purpose of the section : Kerley v. London & 
 Lake Erie, 26 0. L. E. 588, 4 0. W. N. 1234. By 
 E. S. C. ch. 37, sec. 6, it is provided that that Act 
 shall apply to railways declared to be for the "gen- 
 eral advantage of Canada" (see B. N. A. Act, sec. 
 92, sub-sec. 10c). Where the subject matter of the 
 legislation is obviously beyond the powersof the local 
 legislature there is no necessity for an enacting clause 
 specially declaring the work to be for the "general 
 advantage of Canada:" Hewson v. Ontario Power 
 Co., 6 0. L. E. 11, 8 0. L. E. 88, 36 S. C. E. 596. The 
 Supreme Court of Canada is divided on the question 
 whether or not a recital in the preamble to a private 
 Act is a sufficient declaration within B. N. A. Act, 
 sec. 92, sub-sec. 10c : Hewson v. Ontario Power Co., 
 36 S. C. E. 596. " General advantage of Canada:" 
 Conflict of Dominion and Provincial Acts: see To- 
 ronto Belt Line v. Lauder, 19 0. E. 607 ; Darling v. 
 
CHAPTER 185. 913 
 
 Midland By., 11 P. R. 32; Barbeau v. St. Catharines, 
 etc., Ry., 15 0. R. 586; Re St. Catharines, etc., Ry. 
 and Barbeau, 15 0. R. 583 ; Nihan v. St. Catharines, 
 etc., Ry., 16 0. R. 459; Clegg v. G. T. R., 10 0. R. 
 708 ;. Re Grand Junction Ry. Co; v. Peterborough, 6 
 A. R. 339. Application of this Act to the Temiskam- 
 ing and Northern Ontario Ry.: see R. S. 0. 1914, c. 
 38, sec. 17. The commission is a department of gov- 
 ernment and not responsible for the neglect or mis- 
 conduct of servants though appointed by themselves : 
 see Gillies Bros. v. T. & N. 0. Ry. Com., No. 2, 10 
 0. W. R. 975. Where a railway subject to this Act 
 crosses another which is subject to the Dominion 
 Railway Act, the first railway is brought within the 
 jurisdiction of the Dominion Board of Railway Com- 
 missioners "in respect of such crossing:" C. P. R. v. 
 G. T. R., 12 0. L. R. 320; see also R. v. Toronto Ry. 
 Co., 26 A. R. 491. It is not competent to a Provin- 
 cial Legislature to impose conditions precedent to 
 the exercise of powers conferred by the Dominion 
 Parliament : Toronto v. Bell Telephone, 1905, A. C. 52. 
 Where a railway is within the federal jurisdiction, 
 the province has no power to regulate the structure 
 of a ditch (C. P. R. v. Parish of N. D. de Bonsecours, 
 1899, A. C. 367), or the structural conditions of road- 
 beds or to make regulations as to crossings (G. T. R. 
 v. Therrien, 30 S. C. R. 485), or fences (Madden .v. 
 Nelson, etc., Ry. 1899, A. C. 626), but may regulate 
 the cleaning of the ditch so as to prevent inundation 
 of adjoining land (C. P. R. v. Parish of N. D. de 
 Bonsecours, 1899, A. C. 367, and see R. S. C, ch. 37, 
 sec. 251). The Dominion Railway Committee can em- 
 power a Provincial electric railway to cross a Fed- 
 eral railway at grade, contrary to the desire of the 
 Federal railway and the charter of the Provincial 
 railway: G. T. R. v. Hamilton Radial, 29 0. R. 143. 
 The Ontario Supreme Court at the instance of a credi- 
 tor of the railway company has power to appoint a 
 receiver both where the company is under Provincial 
 Legislative jurisdiction and where it is under Federal 
 jurisdiction if there is no Federal legislation provid- 
 ing otherwise : Wile v. Bruce Mines Ry., 11 0. L. R. 
 200 ; see also Grey v. Manitoba, etc., Ry. 1897, A. C. 
 254; Toronto General Trusts Co. v. Central Ontario 
 Ry. 6 0. L. R. 1, 8 0. L. R. 342, 1905, A. C. 576. The 
 
 s.A.— 58 
 
gy. CHAPTER 185. 
 
 Mechanics Lien Act, R. S.. 0. 1914, ch. 140, does not 
 apply to Federal Railways: Crawford v. Tilden, 9 
 0. W, R. 781, 13 0. L. R. 169. As to the application 
 of R. S. 0. 1914, ch. 146, sec. 5, see note to sec. 108 
 infra. As to R. S. 0. 1914, ch. 146, generally and 
 especially, sec. 10> which was held to be valid and ap- 
 plicable to Federal railways : see Canada Southern v. 
 Jackson, 17 S. C. R. 316, 4 Cart. 451. The provisions 
 of the Dominion Act giving a right of action "for the 
 full amount of damages sustained" is intra vires and 
 the restriction of amount under R. S. 0. 1914, ch. 146, 
 does not apply to an action thereunder: Curran v. 
 G. T. R., 25 A. R. 407. 
 
 6. Purpose of the sec. : Kerley v. London & Lake Erie, 
 26 0. L. R. 588, 4 O. W. N. 1234. Franchise to St. 
 Ry. ; private Act and general Act : Sandwich v. S. W. 
 & A. Ry., 17 0. W. R. 45, 2 0. W. N. 93. As to-pro- 
 vision in special Acts as to passenger fares on elec- 
 tric railways : see sec. 210 (1) infra. 
 
 Organization of the Company. 
 
 8. By-laws : see sees. 163 et seq. notes, and R. S. 0. 1914, 
 
 ch. 1, sec. 28 (g). 
 
 9. As to companies offering stock for public subscription: 
 
 see Companies Act, R. S. 0. 1914, ch. 178, Part VIII, 
 sees. Ill, et seq. and notes. As to prospectus and 
 directors' liability: see same Act, Part VII, sees. 99 
 et seq. and notes. As to directors and their powers : 
 see same Act, Part VI, sees. 83 et seq. and notes. 
 Signature of stock book: see Ray v. Blair, 12 
 C. P. 257. Withdrawal of subscription: Smith v. 
 Spencer, 12 C. P. 277. Payment of percentage : Port 
 Dover, etc., Ry. v. Grey, 36 TJ. C. R. 425. Conditional : 
 "Whitby and Port Perry Ry. v. Jones, 31 U. C. R. 
 subscriptions : Moore v. Murphy, 11 C. P. 444; Moore 
 v. Gurney, 21 U. C. R. 127, and 22 U. C. R. 209; 
 170 ; Bullivant v. Manning, 41 IT. C. R. 517 ; Wilson v. 
 Ginty, 3 A. R. 124; Newman v. Ginty, 29 C. P. 34. 
 Powers of provisional directors : Selkirk v. Windsor, 
 etc., Ry., 1 0. W. N. 731, 2 0. W. N. 193, 15 0. W. R. 
 87, 16 0. W. R. 1, 17 0. W. R. 317, 20 0. L. R. 290 
 21 0. L. R. 109, 22 0. L. R. 250. 
 
CHAPTER 185. 915 
 
 10. Municipal corporations duly empowered by the laws 
 of their province may take shares in a Dominion Rail- 
 way: R. S. C. 1906, ch. 37, sec. 99. As to municipal 
 bonuses: see R. S. 0. 1914, dh. 192, sec. 397, which sec- 
 tion comprises what were formerly sees. 130 to 146 of 
 the Railway Act, 6 Edw. VII, ch. 30. , 
 
 11. "Expressly called for that purpose:" see notes to 
 Companies Act, R. S. 0. 1914, ch. 178, sec. 16. As to 
 
 ( preference shares: see sec. 41 infra, and notes to 
 Companies Act, R. S. 0. 1914, ch. 178, sees. 78 et seq. 
 In allotting new stock the directors must be fair. Any- 
 thing in the nature of manipulation, either with a 
 view to or which results in control of the voting 
 power, is ultra vires and not susceptible of being rati- 
 fied by shareholders : Punt v. Lynn, 1903, 2 Ch. 517. 
 Anything looking to a confiscation of corporate rights 
 or privileges by a majority at the expense of a minor- 
 ity is frowned upon by the Court : Griffith v. Paget, 
 5 Ch. D. 898; Meunier v. Hooper, L. R. 9 Ch. 350; 
 Percival v. Bright 1902, 2 Ch. 425; Martin v. Gibson, 
 10 O. W. R. 66, 15.0. L. R. 623. See notes to Com- 
 panies Act : R. S. 0. 1914, ch. 178, sees. 83 et seq. 
 
 12. Mandamus calling anij/ual meeting : see Hatton v. M. 
 P. & B. Ry.,,M. L. R, 1 S. C. 69. Jurisdiction of the 
 Court in matters of internal management: Burland 
 v. Earle, 71 L. J. P. C. 1, 1902, A. C. 83. As to gen- 
 eral meetings : see notes to Company Act, R. S. 0. 
 1914, ch. 178, sees. 43 et seq. 
 
 14. Votes of bondholders: see Weddell v. Ritchie, 10 0. 
 L. R. 5, and see post sec. 50. In the absence of special 
 provision to the contrary, a shareholder partially 
 paid up has the same voice as one fully paid up, pro- 
 vided the former is not in arrears for calls : Purdom 
 v. Ontario Loan, 22 0. R. 597; see Companies Act, 
 R. S. 0. 1914, ch. 178; notes to Part III, sees. 43 
 et seq. 
 
 17.^-(1) See Dom. Ry. Act, R. S. C. 1906, ch. 37, sec. 110. 
 See Companies Act, R. S. 0. 1914, oh, 178, Part VI, 
 sec. 83 et seq. and notes. 
 
 17.— (4) See Companies Act, R. S. 0. 1914, ch. 178, notes. 
 to sec. 87. 
 
916 CHAPTER 185. 
 
 « 
 
 17. — (7) This sub-sec. and sub-sees. (8) and (9) are iden- 
 tical with. E. S. 0. 1914, ch. 178, see. 85 (3), (4), (5). 
 
 17. — (10) Personal liability of president on acceptance of 
 bill of exchange : Madden v. Cox, 5 A. R. 473. 
 
 17. — (12) A statutory corporation created by Act of Par- 
 liament for a particular purpose is limited as to all 
 its powers by the purposes of its incorporation as de- 
 fined in that Act : Ashbury Railway Carriage Co. v. 
 Riche, L. R. 7 H. L. 553, A.-G. v. Great Eastern Ry, 
 5 App. Cas. 473 ; Baroness Wenlock v. River Dee, 10 
 App. Cas. 354. Act of the directors ; generally as to 
 liability of directors : see Companies Act, R. S. 0. 
 1914, ch. 178, especially notes to sees. 84, 91, 93,. 95. 
 
 19. See R. S. C. 1906, ch. 37, sec. 112; see also notes to 
 Companies Act, R. S. 0. 1914, ch. 178, sec. 93. 
 
 20. — (1) Powers of provisional directors: see Allen v. 
 Ontario and Rainy River Ry., 29 O. R. 510. Powers 
 of directors : see Michie v. Erie and Huron Ry, 26 
 C. P. 566; Re North Simcoe Ry., 36 U. C. R. 101; 
 Peterborough and Victoria v. G. T. R. 18, U. C. R. 
 220; McLaren v. Fisken, 28-Gr. 352 ; Wilson v. Ginty, 
 3 A. R. 124; Denison v. Leslie, 3 A. R. 536. Authority 
 of directors of electric railway to contract for equip- 
 ment, etc. Position where authority exceeded: 
 Thomas v. Walker, 1 O. W. N. 1094. Office of 
 solicitor and salary: Falkener v. Grand Junction, 4 
 0. R. 350. Office and salary of managing director: 
 Reynolds v. Whitley, 26 Gr. 519. When a by-law is 
 passed at a general meeting providing for the allot- 
 ment of certain new stock by the shareholders, direc- 
 tors have no power to pass a by-law directing its re- 
 peal and providing for the allotment by themselves : 
 Stephenson v. Vokes, 27 O. R. 691 ; see also Martin v. 
 Gibson, 10 O. W. R. 66, 16 0. L. R. 623. Allotment 
 of shares to director though a questionable act may 
 be ratified: Christoper v. Noxon, 4 0. R. 672. By- 
 laws : see Companies Act, R. S. 0. 1914, ch. 178 ; notes 
 to sec. 89-90; see also Interpretation Act, R. S. 0. 
 1914, ch. 1, sec. 28 (g). 
 
 23. See Companies Act, R. S. 0. 1914, ch. 178, sec. 92 
 notes. 
 
CHAPTER 185. 917 
 
 27. — (1) "Interval of two months :" see Buffalo, etc, Ey. 
 v. Parke, 12 TJ. C. E. 607; Moore v. McLaren, 11 C. P. 
 534; Port Dover, etc., Ey., v. Grey, 36 U. C. E. 425. 
 Cf. Dominion Bailway Act, E. S. 0. 1906, ch. 37, seds. 
 ^125-130. See Companies Act, E. S. 0. 1914, ch. 178, 
 sec. 60 and notes. 
 
 27.— (4) Interest : Nasmith v. Diekey, 44 U. C. E. 414. 
 
 27. — (5) Eight of action for calls: see Toronto, etc., Ey. 
 v. Crookshank, 4 U. C. E ; 309. As to nature of lia- 
 bility; see Companies Act, E. S. 0. 1914, ch. 178, sees. 
 72-77 and 167 notes. 
 
 28. See Companies Act, E. S. 0. 1914, ch. 178, sec. 56 and 
 notes. Mandamus to enforce transfer of shares: 
 Nelles v. Windsor, Essex and Lake Shore Ey., 16 0. 
 L. E. 359. • 
 
 29. See Companies Act, E. S. 0. 1914, ch. 178, sec. 57 (1) 
 and notes. 
 
 31. See Companies Act, E. S. 0. 1914, ch. 178, sec. 72 and 
 notes. 
 
 33. Forfeiture of shares: see Companies Act, E. S. 0. 
 1914, ch. 178, sec. 62 and notes. 
 
 38. See Companies Act, E. S. 0. 1914, ch. 178, sec. 74, 167 
 notes ; and see E. S. C. ch. 37, sec. 98. 
 
 41. See E. S. C. 1914, ch. 178, sec. 78, et seq. and notes. 
 
 42. Dividends : Compare Dominion Act E. S. C. 1906, cL 
 37, sees. 131, 133. See Companies Act, E. S. 0, 1914, 
 ch. 178, sees: 1 91, 95 and notes. 
 
 47. Cf. E. S. C. 1906, ch. 37, sec. 137. Where neither the 
 company nor the shareholders see fit to impugn the 
 validity of bonds, it is not competent for certain hold- 
 ers of bonds to impugn the position of other bond- 
 holders of their own class : Bank of Toronto v. Cb- 
 bourg, etc., Ey., 10 0. E. 376. Assignment of deben- 
 tures and coupons for interest: see McKenzie v. 
 Montreal, etc., Ey., 27 C. P. 224, 29 C. P. 333. 
 
928 CHAPTER 185. 
 
 48. Generally as to validity of mortgage of railway pro- 
 perty: see Bickford v. Grand Junction By., 23 Gr. 
 302, 1 S. C. E. 696. 
 
 50.— (1) See E.S.C. 1906, ch. 37, sees. 143, 144, 145. Eights 
 of bondholders and shareholders to vote. If the votes 
 of bondholders entitled to vote are rejected, an 
 arrangement before the meeting for confirmation is 
 not properly confirmed even though confirmed by 
 itwo-thirds of the actual shareholders present: Hen- 
 drie v. G. T. E., 2 O. E. 441. 
 
 50. — (2) Under a provision similar to sub-sec. 2 it was 
 held that the bondholders ' right to vote might be exer- 
 cised at any time when interest was in arrear and was 
 not restricted to the annual meeting. Each bond- 
 holder has one vote for every $100 of his bond, the 
 shares being $100 shares : "Weddell v. Eitchie, 10 0. 
 L. E. 5 ; but see Bunting v. Laidlaw, 8 P. E. 538. 
 
 50. — (3) To give bondholders voting rights, their bonds 
 must be registered as shares are registered. Eegis- 
 tration can be compelled on a prima facie title being 
 made out. No special provision by by-law is neces- 
 sary : Ee Thomson and Victoria By., 9 P. E. 119 ; Be 
 Johnson & T. G. & B. By., 8 P. B. 535. The secretary 
 of the company may be compelled to register bonds 
 without the production of intermediate transfers: 
 Ee Osier and T. G. & B. By., 8 P. E. 506. 
 
 50. — (4) As to sale of railway as a going concern under 
 a mortgage at the instance of bondholders : see To- 
 ronto General Trusts v. Central Ontario By., 8 0. L. 
 E. 342. 
 
 51. Construction of power of sale in memo of hypotheca- 
 tion of railway bonds pledged as collateral security 
 to a promissory note : Toronto General Trusts v. Cen- 
 tral Ontario By., 7 0. L. E. 660, 10 O. L. E. 347. As 
 to deposit of mortgage to secure bonds covering roll- 
 ing stock leased to company : see B. S. 0. 135, sec. 26. 
 
 52. See E. S. C. 1906, ch. 37, sec. 147; see Companies Act, 
 E. S. 0. 1914, ch. 178, sees. 23 (I), 78 (la). 
 
 53. This section does not apply to street railway com- 
 panies. See sec. 7 ante. 
 
CHAPTER 185. 919 
 
 -«-,s„ 
 
 Powers. ' ,: ' '-'i%i 
 
 54.— (a) Cf. E. S. C. 1906, ch. 37, sec. 151. Eight of way 
 over lands occupied by another railway : G. T. E. v. 
 Lindsay, etc., Ey. Co., 3 0. "W. E. 54. As to taking 
 lands without consent of the owners: see sees. 87-90 
 post. 
 
 54. — (6) As to aid to railways: see cases collected Ontario 
 Digest Case Law, cols. 5806 to 5823, covering aid to 
 railways by government, col. 5806 ; aid to railways 
 by municipalities by by-laws, col. 5806; terms and 
 conditions of aid, col. 5812; other cases, col. 5820; 
 see also 1 Can. Ey. Cases, pp. 289-297. Powers of 
 municipal councils to grant aid to railways, see E. 
 S. 0. 1914, ch. 192, sees. 395 and 397. 
 
 54.— (c) Alienation: see Pratt v. G. T. E., 8 0. E. 499. 
 The statutes of limitation as to real property do not 
 run against a railway unless where it may be shewn 
 that the land in questionjs not necessary for the rail- 
 way and therefore capable of being sold: McMahon 
 v. G. T. E., 12 O. W. E. 324; G. T. E. v. Valliear, 7 
 
 0. L. E. 364. A stranger may acquire a title by pos- 
 session to land vertically over a railway tunnel even 
 though not superfluous land, subject to the right of 
 the railway to use the tunnel : Midland Ey. v. "Wright, 
 1901, 1 Ch. 738. In order to acquire a right of way 
 by prescription over railway lands, the right must 
 rest in the presumption of a grant and the rights of 
 a railway to grant lands are restricted. If the actual 
 grant would have been illegal, the implied grant can- 
 not be valid: G. T. E. v. Valliear, 7 0. L. E. 364. 
 Conditions of grants to railway and their enforce- 
 ment : see Digest Ontario Case Law, col. 5960-63. As 
 to minerals: see sees. 132-137, post and notes. 
 
 54. — (e) Junctions: see sec. 129. 
 
 54. — (g) Stations : see sec. 146. 
 
 54. — (h) See regulations of the Eailway Board, Schedule 
 
 1, No. 5. Power to build branch lines ; construction of 
 contract; limitation of time: see C. P. B. v. James 
 BayEy., 36 S. C. E. 42. 
 
920 CHAPTER 185. 
 
 54. — (i) In the absence of express power a railway is not 
 entitled to carry on the business of omnibus pro- 
 prietors except as strictly incidental to and conse- 
 quential on their business : A. G. v. Mersey Eailway, 
 1907, A. C. 415. 
 
 54. — (j) The right of a railway to cut down trees is en- 
 tirely distinct from their right to expropriate land. 
 If compensation can be claimed for it, it must be dis- 
 tinctly demanded by the notice: Ee 0. & Q. Ey. Co. 
 and Taylor, 6 0. E. 338. Damages for slashing: see 
 Ee Great Western Ey. and Chauvin, 1 P. E. 288. 
 
 54. — (k) As to bridges, tunnels, viaducts, trestles, etc.: 
 see sees. 116-117. As to Highway Crossings: sees. 
 118-128. Eailway crossings: sec. 129. Drainage: 
 109, 110. Fences: 114. Stretching electric wires 
 across canal : see Dundas v. Hamilton Cataract Co., 
 18 O. W. E. 168, 2 0. W. N. 517. 
 
 54. — (I) Injury by flooding lands adjoining right of way 
 through farm; right to damages and right to apply to 
 Board: Woods v. C. P. E., 13 0. W. E. 49. Where a 
 railway company, desiring to cross a highway where 
 a stream crossed it, diverted the stream and built a 
 new bridge, the railway was under no liability to keep 
 the bridge in repair: Peterborough v. G. T. E., 32 
 0. E. 154, 1 0. L. E. 144. Interference with water 
 course and navigation ; special interest to enable pri- 
 vate right of action to be maintained : Drake v. Sault 
 Ste. Marie Pulp Co., 25 A. E. 251. If a railway divert 
 a water course without filing plans under sees. 70-72 
 the owner injuriously affected has a right of action 
 not limited to arbitration: Arthur v. G. T. E., 25 0. 
 E. 37, 22 A. E. 89. What amounts to a water course: 
 Arthur v. G. T. E., 25 0. E. 37, 22 A. E. 89; Ostrom 
 v. Sills, 24 A. E. 526, 28 S. C. E. 485 ; Young v. Tucker, 
 26 A. E. 162; C. P. E. v. McBryan, 6 B. C. Eep. 136, 
 29 S. C. E. 359; Beer v. Stroud, 19 0. E. 10; Wil- 
 liams v. Eichards, 23 0. E. 651. Diversion of water 
 course : see Tolton v. C. P. E., 22 0. E. 204. Inter- 
 ference with drainage : Knill v. G. T. E., 8 0. W. E. 
 870. Cases collected, Dig. Ont. Case Law, col. 5870- 
 5876; and see sec. 109 notes, post. 
 
 54. — (p) Authority of directors of electric railway to con- 
 tract for equipment, etc. Position where authority 
 exceeded: Thomas v. Walker, 1 0. W. N. 1094. 
 
CHAPTER 185. 921 
 
 55. Stretching electric wires across canal: see Dundas v. 
 Hamilton Cataract Co., 18 0. W. E. 168. Order for 
 demolition of unapproved works, obstructing navi- 
 gable waters: G. T. P. v. Eoehester, 48 S. C. R. 238. 
 
 59. See E. S. C, cb. 37, sec. 155. 
 
 60. Sections 60-65 inclusive do not apply to street railway 
 companies: see sec. 7 ante; but see sec. 65 (8). 
 
 62 See as to telegraph companies; arrangements with 
 railway Co. : C. P. E. v. Western Union, 17 S. C. E. 
 151. Lease of telegraph lines : G. N. W. Tel. Co. v. 
 Montreal Telegraph Co., 20 S. C. E. 170, 
 
 64. See Eailway Board regulations, Schedule 1, No. 9. 
 
 65.— (1) See E. S. C, ch. 37, sees. 317, 364. Formerly the 
 words "in this province or elsewhere" were in the 
 sub-section. As to extra-territorial effect: see Mac- 
 donald v. G. T. E., 31 O. E. 663. Construction of traf- 
 fic arrangement contract : Great Northern v. Furness 
 & Co., 42 S. C. E. 234; see post sees. 211, 212, notes. 
 
 65. — (8) Order for interchange of traffic : Ee Toronto and 
 Toronto Ey., 26 0. L. E. 225; and see post sec. 212. 
 
 Plans and Subveys. 
 
 69. Sections of this part, 69 to 97 inclusive, do not apply 
 to street railway companies : see sec. 7 ante. Sections 
 69 to 97 of this Act, do not apply to the Hydro- 
 Electric Power Commission or any railway con- 
 structed or operated by it: E. S. 0. 1914, ch. 187, sec. 
 12. For meaning of " land:" see ante sec. 2 (k). 
 
 70. See E. S. C:, ch. 37, sec. 158, et seq. Eailway Board 
 regulations as to plans and surveys: see Sched. 1, 
 No. 1 Location plans: McDonald v. V. V. and 
 E. Ey., 44 S. C. E. 65. Jurisdiction of Eail- 
 way Commissioners in respect of location of rail- 
 way: Essex Terminal v. Windsor, Essex and Lake 
 Shore, 40 S. C. E. 620. It is not necessary that 
 the particular works should appear on the de- 
 posited plans: Weld v. L. & S. W. Ey., 32 Beav. 
 340. What is a sufficient delineation of lands: Ee 
 Huddersfield, L. E. 17 Eq. 476; Bowling v. Pontypool, 
 
922 CHAPTER 185. 
 
 etc., Ry., L. E. 18 Eq> 714; Wrigley v. Lancashire, 
 etc., Ry., 4 Giff. 352; Richards v. Scarboro Market, 
 23 L. J. Ch. 110; Protheroe v. Tottenham, etc.* 1891, 
 3 Ch. 278. Order of the Railway Committee alone 
 will not authorize a railway to begin operations and 
 enter on lands. They are not entitled to prdceed un- 
 til they deposit a plan as required by statute : Park- 
 dale v. West, 12 App. Cas. 602 ; Hendrie v. T., H. & B. 
 Ry., 26 0. R. 667, 27 0. R. 46. The statutory provi- 
 sion requiring a plan to be filed before land can be ex- 
 propriated applies to a deviation: Kingston and Pem- 
 broke Ry. v. Murphy, 17 S. 0. R. 582. And a railway 
 will be restrained from proceeding under a warrant 
 for possession granted without the plan of the devia- 
 tion being filed, even though the deviation be small : 
 Brooke v. Toronto Belt Line Ry., 21 0. R. 401; see 
 also Ontario and S. M. Ry. v. C. P. R., 14 0. R. 432; 
 Quebec, etc., Ry. v. Gibsone, 29 S. C. R. 340. Where 
 a watercourse is diverted by a company without 
 plans being filed, tbe owner has a right of action not 
 limited to arbitration: Arthur v. G. T. R., 25 0. R. 
 37, 22 A. R. 89. Necessity for approval of railway's 
 route and location plans by Board. Order for de- 
 molition of unapproved works obstructing navigable 
 waters : G. T. P. v. Rochester, 48 S. C. R. 238. 
 
 71. — (2) Condition imposed by Railway Board in approv- 
 ing location of railway on highway ; compensation and 
 damages to frontagers : G. T. R. v. Fort William, 43 
 S. C. R. 412, 1912, A. C. 224. 
 
 71.— (3) See R. S. C. 1906, ch. 37, sec. 167. What amounts 
 to a deviation. When the road authorized is com- 
 pleted the compulsory power to expropriate may 
 cease: Kingston and Pembroke Ry. v. Murphy, 17 
 S. C. R. 582. Extension of line : see C. P. R. v. Major, 
 13 S. C. R. 233; Vancouver v. C. P. R., 23 S. C. R. U 
 Necessity for filing plan of deviation : Kingston and 
 Pembroke Ry. v. Murphy, 17 S. C. R. 582. Meaning 
 of "deviation" as affecting street railways: T. & Y. 
 Radial v. Toronto, 4 0. W. N. 784, 28 0. L. R. 180, 
 25 0.W.R. 315 (P.C.). 
 
 74. See R. S. C, ch. 37, sec. 162. 
 
 75. See R. S. C, ch. 37, sec. 163 (3), (4), and sec. 74. 
 
CHAPTER 185. 923 
 
 76. Railway Board Regulations, Sched. 1, No. 3. 
 79. Railway Board Regulations, Sched. 1, No. 2. 
 Acquisition of Lands. 
 
 81. Sees. 81 to 97 do not apply to street railway com- 
 panies. Compulsory powers of street railway com- 
 panies to take lands : see sec. 245 infra. The section 
 sets the limits of what may be expropriated; the 
 lands taken must be in one parcel : Stewart v. Ottawa, 
 etc., Ry., 30 O. R. 599; see sec. 87. See R. S. C. 1906, 
 ch: 37, sec. 180. Expropriated by public utility 
 companies : see R. S. 0. 1914, ch. 178, sec. 166. Statu- 
 tory right to take foreshore of harbour : Vancouver 
 y, C. P. R., 23 S. C. R. 1. Powers to expropriate be- 
 ing intended for commercial purposes are more strict- 
 ly construed than those of municipal corporations: 
 Harding v. Cardiff, 29 Gr. 308. What are proper 
 purposes: Jenkins v. Central Ontario, 4 O. R. 593; 
 Nihan v. St. Catharines, etc., Ry., 16 0. R. 459. Gra- 
 vel : see sec. 92. Limitation of time as to powers of 
 expropriation: G. W. Ry. v. Midland Ry., 1908, 2 Ch. 
 455, 644. Crown lands : Booth v. Mclntyre, 31 C. P. 
 183; and see sec. 61, ante. 
 
 82. Compare R. S. C. 1906, ch. 37, sees. 183, 184, 185. See 
 "owner," sec. 2 (m) ante. The scheme of the Act is 
 that the railway shall deal with the person in posses- 
 sion as owner, and must proceed according to the Act. 
 The matter of title is held in abeyance until a later 
 stage of the expropriation, proceedings : Stewart v. 
 Ottawa, etc., Ry, 30 O. R. 599. A person in posses- 
 sion of land as owner, and having, theref ore> title 
 against all the world but the rightful owner, has a 
 prima facie right to compensation on the taking of 
 the land under compulsory powers : Perry v. Clissold, 
 1907, A. C. 73. Where a railway acquires land by 
 voluntary purchase within its statutory powers, it 
 cannot legally covenant limiting the use to which the 
 land may be put so as to preclude in the use of the 
 land the exercise of all its statutory powers: Re 
 South Eastern Ry. and Wiffin, 1907, 2 Ch. 366. A 
 mortgagor is not included among the persons who are 
 enabled to convey to the company. He can only deal 
 with his equity of redemption, leaving the mort- 
 
924 CHAPTER 185. 
 
 gagee's compensation to be separately ascertained: 
 Re Toronto Belt Line, 26 0. E. 413. A mortgagee 
 having been dispossessed and the land taken by rail- 
 way is entitled to recover the value of the lands as 
 damages to be held by him as security for his mort- 
 gage money, the mortgagor being entitled to redeem 
 in respect of the damages as he would have been in 
 respect of the land: Delaney v. C. P. R., 21 0. R. 11; 
 see also as to mortgagees : Scottish American v. Prit- 
 tie, 20 A. R. 398; Re T., H. & B. Ry. and Burke, 27 
 0. R. 690. Right of husband of married woman 
 considered: Bryson v. O. & Q. Ry. Co., 8 0. R. 
 .380. Railway's agreement with husband, land 
 owned by wife : Re Benson & Port Hope, etc., Ry., 
 29 U. C. R. 529 ; Great Western Ry. v. Baby, 12 U. C. 
 R. 106. Widow entitled to a life estate with remain- 
 der to infant children in fee : Re C. P. R. and Bryne, 
 15 0. L. R. 45, 10 0. W. R. 278; Re Dolsen, 13 P. R. 
 84. Position of a vendee under a contract of sale con- 
 sidered: Mason v. South Norfolk Ry., 19 0. R. 132. 
 Enforcement of judgment for vendor's lien: Lincoln 
 Paper Mills v. St. Catharines, 19 0. R. 106. Execu- 
 tors : Mitchell v. G. W. Ry. Co., 38 U. C. R. 471; Ow- 
 ston v. G. T. R., 26 Gr. 93, 28 Gr. 428. Although the 
 ■tenant for life has authority to contract for the sale 
 and convey the fee simple of land required for the 
 railway, the company are not warranted in paying 
 him the full amount of the compensation: Cameron 
 v. Wigle, 24 Gr. 8. See also as to rights of remain- 
 dermen and others interested: Young v. Midland Ry. 
 Co., 16 0. R. 738, 19 A. R. 265, 22 S. C. R. 190; Re 
 Dolsen, 13 P. R. 84; Dunlop v. Canada Central Ry., 
 45 U. C. R. 74; Slater v. Canada Central, 25 Gr,363. 
 Cestui que trust : Re James Bay Ry. and Worrell, 6 
 0. W. R. 473. Tenant : Johnson v. Ontario, etc., Ry., 
 11 IT. C. R. 246. Lessees under renewable lease where 
 lessors have option to renew or pay for improvements 
 and who are overholding, no renewal lease having 
 been granted though demanded, are tenants at will, 
 and not entitled to compensation : C. P. R. v. Brown 
 Milling Co., 13 0. W. R. 301, 18 0. L. R. 85. 
 
 83. See R. S. C, ch. 37, sec, 186. "Owner" : see mt% sec. 
 2 (w); "land": see ante, 2 {k). The "agreement" 
 vests the fee simple, a vesting order is unnecessary: 
 Re Toronto and Niagara Power Co. and Webb, 10 
 
CHAPTER 185. 925 
 
 0. W. R. 402. The Acts vest the land in the company 
 and not merely a right of way or easement : Anglin 
 v. Nickle, 30 C. P. 72. The company in ejectment can 
 rely on the title acquired under the Act and is not 
 driven to prove strictly the title of its grantors : Great 
 Western Ry. v. Lutz, 32 C. P. 166. In treating with 
 the owner of lands the solicitor of the company is not 
 qualified to enter into any special agreement binding 
 the company to maintain a crossing : Wood v. Ham- 
 ilton, etc., Ry. 25 Gr. 135. Liability of company when 
 money wrongly paid, e.g., to life tenant : see Cameron 
 v. Wigle, 24 G. R. 8; Young v. Midland Ry., 16 0. R. 
 738. As to mortgagees: see Scottish American v. 
 Prittie, 20 A. R. 398; Re Toronto Belt Line, 26 0. R. 
 413 ; notes to sec. 82 supra. Fee simple ; as to min- 
 erals : see sec. 133 post. As to power to alienate or 
 to lose title by adverse possession: see sec. 54 (c) 
 ante notes. 
 
 84. The right to compensation is not barred until the ex- 
 piration of 20 years from the time the land is entered 
 on and taken for railway purposes : Essery v. G. T. 
 R., 21 0. R. 224. i The rule as to costs is that when 
 the company, desiring land for their own purposes 
 which they might expropriate if the owners would 
 not or could not make a valid deed, pay money into 
 Court, not for the advantage of those entitled, but 
 for their own purposes, the company must pay the 
 costs including the costs of payment out: Re Dolsen, 
 13 P. R. 84; Re C. P. R. and Byrne, 10 0. W. R. 278, 
 15 O. L. R. 45; Re Toronto and Niagara Power Co. 
 and Webb, 10 0. W. R. 402. 
 
 85. A company without authority diverted a water course 
 and afterwards made compensation to the then owner. 
 The ■ equitable easement thus created was not 
 valid against the registered deed of a subsequent pur- 
 chaser without notice : Tolton v. C. P. R., 22 0. R. 
 204. 
 
 87. See Rules of the Board, Schedule 1, No. 4. Taking 
 extra land: see Cavanagh and Atlantic Ry. Co., 14 
 0. L. R. 523. Municipal land: see Re G. T. R. and 
 Ste. Cunegonde, 4 Can. Ry. Cas. 277. 
 
 88. Cf. R. S. C. 1906, ch. 37, sec. 191. "Lands which may 
 
 suffer damage:" see notes to sec. 90 (10) post. 
 
926 
 
 CHAPTER 185. 
 
 89. In ascertaining the amount of compensation, .the date 
 of taking must be ascertained with reference to the 
 date of deposit of plan : James v. 0. & Q. By., 12 0. E. 
 624, 15 A. B. 1. Where land is taken without filing 
 maps or giving notice, the owner has' a right of action 
 not limited to arbitration: Arthur v. G-. T. B., 22 
 A. B. 89. As to precedence between rival Dominion 
 and Provincial companies and priorities : see Pontiac 
 Pacific By. v. Hull E. By., Q, B. 11 S. C. 140. Plans 
 not filed; running of limitation of action for dam- 
 ages: Lumsden v. T. and N. O. By., 15 0. L. B. 469; 
 see E. S. C, ch. 37, sec. 192, 8-9 Edw. VII (D), eh. 32, 
 sec. 3. 
 
 90. — (1) The notice must be definite as to the "land" 
 sought to be acquired and must so state if the fee 
 simple is intended to be taken : Lees v. Toronto and 
 Niagara Power, 12 0. L. B. 505, 8 0. W. B. 294. No- 
 tice must not include lands not intended to be taken: 
 Wood v. Atlantic, etc., By., Q. E. 2, Q. B. 335. A 
 railroad has no right to give notice of intention to 
 acquire a mere easement: Be James Bay and Wor- 
 rell, 6 0. W. B. 512. Expropriation of right of way 
 over lands occupied by another railway: Gt. T. B. v. 
 Lindsay, etc., By., 3 O. W. E. 54. The right to cut 
 down trees is entirely distinct from the right to ex- 
 propriate land. It is a matter of separate demand: 
 Be O. & Q. By. Co. v. Taylor, 6 0. B. 338; see sec. 
 54 (j). Eequisites. of notice: see Widder v. Buf- 
 falo and L. H. Ey., 24 U. C. E. 520. The fonnda- ' 
 tion of the proceedings to take lands compul- 
 sorily is the notice served on the landowner. 
 In the absence of this notice the railway is a tres- 
 passer and responsible in damages in the ordinary 
 Courts of the country: Hanley v. T. H. & B. By., 11 
 0. L. B. 91. To bring themselves within this section 
 the railway must take the proper preliminary steps : 
 Mclsaac v. Inverness By., 37 S. C. B. 134. The notice 
 must state in cash the sum offered as compensation. 
 An offer of crossing and station privileges is not 
 within the section: Brooke v. Toronto Belt Line: 21 
 O. B. 401. Creation of new interest after notice to 
 treat: Zick v. London United Tramway, 1908, 2 K. B. 
 126. 
 
 90.— (5) Offer of compensation: G. T. E. v. Ash, 4 0. W. 
 N. 810. Where valuers are appointed by the parties 
 
CHAPTER 185. 927 
 
 the price they agree on is not an "award" of com- 
 pensation for land expropriated: Ee Laidlaw and 
 Campbellford, etc., By., 5 0. W. N. 534. See as to 
 this and following clauses, notes to E. S. 0. 1914, 
 ch. 65. 
 
 90. — (6) Where arbitration is the proper remedy no ac- 
 tion lies: Todd v. Meatford, 6 0. L. E., 469; Knill v. 
 G-. T. E., 8 0. W. E. 870. Disqualification; engineer 
 of railway company ; see Widder v. Buffalo, etc., Ey., 
 24 U. C. E. 520. Eatepayer of shareholder munici- 
 pality: Ee McQuillan and Guelph Junction Ey., 12 
 P. E. 294. See E. S. C, ch. 37, sec. 208. 
 
 90.— (7) Third arbitrator: Daly v. Buffalo, etc., Ey., 16 
 U. C. E. 238. "Opposite party" includes both 
 mortgagor and mortgagee: Ee T. H. & B. Ey. and 
 Burke, 27 0. E. 690. " Opposite party;" mortgagee 
 is to be treated as an opposite party and when he 
 does not name an arbitrator the company is entitled 
 to apply to have a sole arbitrator appointed: Ee 
 a P. E. and Batter, 20 Occ. N. 317, 13 M. L. E. 200. 
 A purchaser pending expropriation takes with no- 
 tice and is bound by them : Ee C. P. E. and Batter, lb. 
 Evidence in support of application may be by affi- 
 davit: Ee C. P. E. and Batter, lb. 
 
 90. — (9) Distinction between compensation for land and 
 damages : Martini v. Gaowski, 13 XL C. E. 298. A 
 company going on lands and making improvements 
 before notice does not stand in the same position as 
 an ordinary trespasser. They have a statutory right 
 to acquire title. The company's improvements be- 
 fore depositing plan do not go to the owner. The 
 lands dealt with are the lands of the company in the 
 condition they were when the company entered, valued 
 as of the date of filing the plan : Ee Euttan and Drei- 
 fus, 12 O. L. $ . 187. What evidence can be given in 
 regard to sales of neighbouring lands on expropria- 
 tion proceedings : Ee National Trust and C. P. E., 5 
 O. W. N. 221. 
 
 Expropriation of land, compensation for injurious 
 affection of land not taken; method of computation: 
 Ee Ketcheson and 0. N. O., 5 0. W. N. 36, 25 0. W. 
 E. 20, 29 O. L. E. 339. Method of computing dam- 
 ages caused by severance and results flowing from 
 
928 CHAPTER 185. 
 
 having to team clay for brick making over a farm 
 crossing: Davies v. James Bay, 28 0. L. R. 544. It 
 is not a proper principle for arbitrators to proceed 
 by taking an average of the different estimates sub- 
 mitted. An award made on an improper principle 
 will be set aside : G. T. R. v. Ooupal, 28 S. C. R. 531; 
 Fairman v. Montreal, 31 S. C. R. 210. The compen- 
 sation is to be ascertained by subtracting the value 
 of the lands after the taking from their value before 
 the taking. The value should include an increase 
 which may be owing to the contemplated construc- 
 tion of the railway : James v. 0. and Q. Ry., 12 0. R. 
 * 624, 15 A. R. 1. Benefit to remaining lands ; deduc- 
 tion: Re Credit Valley Ry. Co. and Spragge, 24 Gr. 
 231. The advantage resulting to the owner of a 
 town site from it being made the terminus of a rail- 
 way is a point which should be taken into account by 
 way of set off under the Dominion Act, R. S. C. 1906, 
 ch. 37, sec. 198: Point v. The Queen, 2 Ex. C. R. 149. 
 Set off of increased value : Chateauguay, etc., Ry. v. 
 Trenholme, Q. B. 11 K. B. 45. Excessive compensa- 
 tion: Great Western Ry. v. Baby, 12 U. C. R. 106; 
 Great Western Ry. v. Dodds, 12 U. C. R. 133 ; Re Mil- 
 ler and Great Western Ry., 13 U. C. R. 582 ; Re Great 
 Western and Chauvin, 1 P. R. 288 and see Dig. Ont. 
 Case Law, col. 5948. Insufficient compensation: Re 
 Armstrong and James Bay Ry., 12 O. L. R. 137. 
 
 Arbitrators have no jurisdiction to give interest as 
 part of their award : Re Clarke and T. G. & B., 18 0. 
 L. R. 628; Re Davies and James Bay Ry., 20 O. L. R. 
 534; Re Keteheson and C. N. 0., 29 0. L. R. 339. 
 Interest on amount awarded : Re Cavanagh and Can- 
 ade Atlantic, 14 0. L. R. 523, 9 0. W. R. 842. Date 
 of commencement: James v. 0. & Q. Ry., 12 0. R. 
 624, 15 A. R. 1. Rate of: Re Taylor and 0. & Q. 
 Ry., 11 P. R. 371; Re Philbrick and 0. & Q. Ry., 11 
 P. R. 373. Right to : Re Foster and Great Western 
 Ry., 32 U. C. R. 162. Diligence: Atlantic and N. W. 
 Ry. v. Judah, 23 S. C. R. 231. Interest is properly 
 allowed to the land owner from the time of the taking 
 to the time of the award : James v. 0. & Q. Ry., 12 
 0. R. 624, 15 A. R. 1. But only bank interest : Taylor 
 v. 0. & Q. Ry., 11 P. R. 371. As to " date of taking : ' ' 
 see sec. 89 note; and see notes to sec. 90 (34) infra. 
 
CHAPTER 185. 929 
 
 Value of land taken: damage to residue: interfer- 
 ence with working of farm: Ee Davies and James 
 Bay By., 20 0. L. B. 534, 1 0. W. N. 549, 15 0. W. B. 
 625, 4 0. W. N. 1154, 28 0. L. E. 544. Damage to re- 
 maining land: Be 0. & Q. By. Oo. and Taylor, 6 
 0. E. 338. Depreciation of land : Guay v. The Queen, 
 17 S. C. E. 30; Vezina v. The Queen, 17 S. C. E. 1. 
 Depreciation of remaining land : Great Western By. 
 v. Warner, 19 Gr. 506. Injury to land not taken; 
 smoke, noise, dust, vibration; adaptability of land 
 taken for purpose; elements of compensation: Ee 
 C. P. E. and Gordon, 11 0. W. E. 876. Interference 
 with business : Todd v. Meaford, 6 0. L. E. 469. In- 
 terference with hotel and loss of license: Ee Cava- 
 nagh and Canada Atlantic, 14 0. L. E. 523, 9 0. W. 
 
 B. 842. Baising grade of farm crossing: Knill v. 
 G. T. E., 8 0. W. E. 870. Where land expropriated 
 and access to highway interfered with ; compensation : 
 Ee Billings and C. N. By., 5 0. W. N. 396. Allow- 
 ance for trade profits where lands for brick making 
 taken for railway right of way : Davies v. James Bay, 
 28 0. L. B. 544. Compensation for minerals in slope 
 supporting right of way; loss of trade profits: Be 
 Davies iand James Bay, 28 0. L. B. 544. Measure of 
 damages where lands taken in eminent domain pro- 
 ceedings : 1 D. L. E. 508. 
 
 90.— (10) The provisions of 6 Edw. VII., ch. 30, sec. 68, 
 sub-sees. (11), (12), (13), are omitted as being suffi- 
 ciently covered by E. S. 0. 1914, ch. 65, sees. 10, 15, 
 16. As to sub-sec. (10), referring to costs: see B. S. 
 O. 1914, ch. 65, sec. 18 et seq. and notes, and see : E. 
 S. C. 1906, ch. 37, sec, 199; also see. 2 (7) supra. See 
 as to taxation of costs under Dominion Act: Be 
 Oliver and Bay of Quinte By., 7 O. L. B. 567. Arbi- 
 trators' fees and costs; recovery: Be Philbriek and 
 O. & Q. By., 11 P. E. 373; Ee Foster and Great 
 Western, 32 TJ. C. E. 503. Eight to costs where suc- 
 cess divided; O. & Q. Ey. v. Philbriek, 12 S. C. B. 
 288. Pleading: Widder v. Buffalo, etc., By., 24 U. 
 
 C. E. 222. Taxation: Ee McDermott, 25 U. C. E. 
 152; Ee McDermott and 0. & Q. Ey., 12 P. E. 282, 
 328. Quantum : Ee Bronson and C. A. By., 13 P. E. 
 440. Witness fees : Be McBae and 0. & Q. Ey., 12 
 P. E. 282. 
 
 S.A.— 59 
 
930 CHAPTER 185. 
 
 Extension of time for making award: see Ee C. P. 
 R. and DuCailland, 3 0. W. E. 33 ; In re Wynnes and 
 Montreal Park and Island By., Q. E. 9 Q. B. 483. 
 
 90. — (12) Where arbitrator dies: see Montreal Park and 
 Island Ey. v. Shannon, 28 S. C. E. 374, and see E. 
 S. C. 1906, oh. 37, sec. 206. 
 
 90.— (13) See E. S. C. 1906, ch. 37, sec. 207. A railway 
 company having given notice of requiring certain 
 land and having taken possession of it cannot aban- 
 don their notice and give a new notice for the same 
 land: Ee Haskill and G. T. E., 7 O. L. E 429; C. P. 
 E v. Ste. Therese, 16 S. C. E. 606; see Grimshawe 
 v. G. T. E., 15 IT. C. E. 224; Ee Hooper and Erie and 
 Huron Ey., 12 P. E. 408, and cases collected Dig. 
 Ont. Case Law, col. 5993-6. 
 
 90.— (14) See E. S. C. 1906, ch. 37, sec. 205. Correction 
 of clerical error: see E. S. 0. 1914, ch. 65, sec. 10 (c), 
 notes ; Ee McAlpine and Lake Erie, etc., Ey., 3 0. L. 
 E. 230; Demo rest v. Grand Junction Ey., 10 0. E. 
 515. Mistake in acreage: Ee Brennan and Ottawa 
 Electric Ey., 21 Occ. N. 20. 
 
 90. — (15) Where valuers are appointed by the parties, the 
 price they agree on is not an ' ' award : ' ' Ee Laidlaw 
 and Campbellford, etc., Ey., 5 O. W. N. 534. 
 
 90.— (16) See E. S. O. 1914, ch. 65, sec. 17 and notes; see 
 1913 Eules 503, 492. Practice regarding appeals 
 from arbitrators: Ee Ketcheson and C. N. O., 5 0. 
 W. N. 271, 25 O. W. E. 252. See also notice of ap- 
 peal: Ee Potter and Central Counties Ey., 16 P. R. 
 16. Hearing: Neilson v. Quebec Bridge Co., Q. E. 
 21, S. C. 329; Ee Montreal and Ottawa Ey. and Ogil- 
 vie, 18 P. E. 120. Further appeal: Brierley v. T. H. 
 and B. Ey., 25 A. E. 88. Appeal to Supreme Court : 
 Brennan v. Ottawa Electric, 31 S. C. E. 311; Arm- 
 strong v. James Bay Ey., 38 S. C. E. 511; G. T. E. 
 v. Coupal, 28 S. C. E. 531. 
 
 Award should only be altered where it is clear that 
 it is the result of a gross error in law or in appre- 
 ciation of the facts : Neilson v. Quebec Bridge, Q. E. 
 21 S. C. 329. The Court can not remit the case to 
 
CHAPTER 185. 
 
 931 
 
 the arbitrators : see Ee G. T. R. and Petrie, 2 0. L. 
 R. 284; Re McAlpine and Lake Erie Ry., 3 0. L. R. 
 230. When the arbitrator awards that the land- 
 owner has suffered no damage no appeal lies : Re T. 
 H. & B. Ry. and Kerner, 28 0. R. 14. Written reasons 
 of the arbitrators are admissible as evidence on an 
 appeal. The Court on appeal is to review the judg- 
 ment of the arbitrators as it would that of an in- 
 ferior Court: Re Brennan and Ottawa Electric, 
 21 Occ. N. 208. An arbitrator may properly 
 make an affidavit shewing how the compensa- 
 tion awarded was arrived at. This is evidence 
 on the appeal, as is also the examination of an 
 arbitrator on a pending motion: Re Cavanagh and 
 C. A. Ry., 14 0. L. R. 523. As to new evidence: 
 see Pontiac Pacific Junction v. Sisters of Charity at 
 Ottawa, Q. R. 20 S. C. 567. Excess and inadequacy 
 of compensation as ground of appeal: see notes to 
 sec. 90 (9) supra. 
 
 90. — (17) Payment or agreement: injunction: Burns v. 
 James Bay Ry., 11 0. W. R. 570. See as to enforce- 
 ment of award: execution by two arbitrators only; 
 uncertain or unauthorized provisions and other ob- 
 jections to : Digest Ont. Case Law, col. 5985-91. 
 
 90.— (20) Payment of compensation is a condition prece- 
 dent to the right of a railway interfering with the 
 possession of land or the rights of individuals : Park- 
 dale v. West, 7 O. R. 720, 8 O. R. 59, 12 A. R. 393, 12 
 S. C. R. 250, 12 App. Cas. 602. The foundation of 
 the judge's authority to issue a warrant depends on 
 a proper compliance by fhe railway with the preced- 
 ing sections of the Act : Brooke v. Toronto Belt Line, 
 21 0. R. 401. How far the compulsory power will 
 go : see Kingston, etc., Ry. v. Murphy, 17 S. C. R. 582. 
 Sufficiency of notice : see Lees v. Toronto and Niagara 
 Power Co., 12 0. L. R. 505. Immediate possession: 
 McCarthy v. Tilsonburg, 2 0. W. N. 34, 16 0. W. R. 
 964. The warrant for possession must be supported * 
 and justified by the material filed. The proceedings 
 will not be amended: Re Strong and the Campbell- 
 ford, etc., Ry., 5 0. W. N. 25, 24 0. W. R. 966. 
 
 90. — (23) Immediate possession should not be given un- 
 less (1) the company has an indisputable right to 
 
932 CHAPTER 185. 
 
 \ 
 
 acquire the land in compulsory proceedings (2) there 
 is some urgent and immediate need of action: Re 
 Kingston, etc., Ey. and Murphy, 11 P. R. 304; C. P. 
 R. v. Little Seminary of Ste. Therese, 16 S. C. R. 606. 
 A bare trustee is not "the owner of the land, etc.," 
 within the section. Notice must be served on all ces- 
 tuis que trustent : Re James Bay Ry. and Worrell, 10 
 0. L. R. 740. In computing the 10 days, the day of 
 service and the day of return must both be excluded: 
 Re Ontario Tanners Supplies, 12 P. R. 563. Powers 
 of County Court Judge : see Jenkins v. Central On- 
 tario, 4 O. R. 593. 
 
 90. — (25) "When the amount subsequently awarded the 
 land owner is not more than he was previously of- 
 fered, the costs of the application for the warrant 
 should be borne by the land owner : Re Shibley and 
 Napanee, etc., Ry., 13 P. R. 347. A Judge making 
 order for payment out of compensation is persona 
 designata and no appeal lies from his order : C. P. R. 
 v. Little Seminary of Ste. Therese, 16 S. C. R. 606; 
 Re T. H. & B. and Hendrie, 17 P. R. 199. 
 
 Limitation of actions ; trespass and nuisance by build- 
 ing embankment, 6 years : Chaudiere Machine Co. v. 
 Canada Atlantic Ry., 33 S. C. R. 11. Possession; 
 Prescription, 20 years : Ross v. G. T. R., 10 O. R. 447; 
 Essery v. G. T. R., 21 O. R. 224, and see notes to sec. 
 265 infra. Conveyance under the Act bars dower: 
 Chewett v. Great Western Ry., 26 C. P. 118. Liability 
 of company when money wrongly paid, e.g., to life 
 tenant: see Cameron v. Wigle, 24 Gr. 8; Young v. 
 Midland Ry., 16 O. R. 738, 19 A. R. 265, 22 S. C. R. 
 190. As to mortgagees: >see Scottish American v. 
 Prittie, 20 A. R. 398; Re Toronto Belt Line, 26 O. R 
 413 ; see notes to sees. 82, 84 ante. 
 
 90. — (33) Interest on compensation awarded: cases re- 
 viewed: Re Clarke and T. G. & B., 13 O. W. R. 699, 
 .18 0. L. R. 628. Diligence in obtaining confirmation 
 of title; interest: see Atlantic and North- West Ry. 
 v. Judah, 23 S. C. R. 231; and see notes to sec. 90 
 (9) supra. 
 
 91. Compensation for closing up streets : Re Medler and 
 Toronto, 1 0. W. R. 545, 3 0. W. R. 534. Compensation 
 
CHAPTER 185. 933 
 
 for alterations in street: interference with access: 
 injury from, smoke: Re Macdonald and T. H. & B. 
 Ry., 2 0. W. R. 721, 723. Where railway on highway, 
 compensation to owners abutting on highway : G. T. 
 P. v. Fort William, 43 S. C. R. 412. Raising grade of 
 farm crossing : Knill v. G. T. R., 8 0. W. R. 870. No 
 compensation can be allowed to owner of land front- 
 ing on street along which a railway is lawfully con- 
 structed, there being no particular interference with 
 access: Powell v. T. H. & B. Ry., 25 A. R. 209. No 
 compensation for structural damages caused to build- 
 ings or for personal inconvenience by reason of inter- 
 ference with, access : Re T. H. & B. and Kerner, 28 0. 
 R. 14; Ford v. Metropolitan Ry., 17 Q. B. D. 12. 
 Operation of engines causing vibration rendering 
 house uninhabitable : Hopkin v. Hamilton Electric, 2 
 0. L. R. 240. A claimant is entitled to compensation 
 for injury to lands by reason of a railway, owing to 
 alterations of grades of streets and other structural 
 alterations, and is entitled to compensation notwith- 
 standing that no part of such lands have been taken 
 by the railway: Re Birely and T. H. & B. Ry., 28 0. 
 R. 468, 25 A. R. 88. But the compensation recover- 
 able must be based on injury or damage to the land 
 itself and not on personal inconvenience to the owner : 
 Powell v. T. H. & B. Ry., 25 A. R. 209. Condition im- 
 posed by Ry. Board in approving location of railway 
 on highway, compensation and damages to fronta- 
 gers: G. T. R. v. Fort William, 43 S. C. R. 412, 1912 
 A. C. 224. 
 
 92. Where there is no market for gravel, land taken for 
 that purpose is to be paid for as farm land only: 
 Vezina v. The Queen, 17 S. C. R. 1. Gravel on high- 
 way; title in municipality: see Municipality of Louise 
 v. 0. P. R., 22 Occ. N. 124, 12 M. L. R. 124. See Mit- 
 chell v. G. W. Ry., 35 U. C. R. 159, 38 XL C. R. 471; 
 Re Watson and Northern Ry., 5 0. R. 550. 
 
 94. See R. S. C, ch. 37, sec. 226; Bertram and Sons v. 
 Hamilton and Dundas Street Ry., 6 Can. Ry. Cas. 158. 
 
 95. See ante, sees. 54 (c), 82 and notes. 
 
g34 CHAPTER 185. 
 
 CoNSTBUCTION AND EQUIPMENT. 
 
 99. — (1) Sees. 99-103, inclusive, do not apply to street 
 railway companies: see ante sec. 7. Appliances. for 
 coupling: Stone v. C. P. E., 26 0. L. E. 121, 47 S. C. 
 E. 634. Defective coupler : Injury to brakeman : Dar- 
 rant v. C. P. E., 12 0. W. E. 294, 13 O. W. E. 316. Ac- 
 cident happening in coupling cars : Insurance benefit : 
 Farmer v. G. T. E., 21 O. E. 299. Directions given 
 by conductor as to coupling: Authority : Weegar 
 v. G. T. E. 23 0. E. 436, 20 A. E. 528, 23 S. C. E. 
 422. Street railway coupling: defective plant : negli- 
 gence : Bond v. Toronto Ey., 24 S. C. E. 715. See 
 post, sec. 288, note (a). 
 
 99. — (3) Action for injuries arising out of breach of 
 this section in regard to brakes and couplers : Durant 
 (Darrant) v. C. P. E., 12 0. W. E. 294, 13 0. W. 
 E. 316. Defective brake: evidence not connecting 
 defendants' negligence with engine driver's death: 
 Woolsey v. C. P. E. 11 0. W. E. 1030. Hand brakes 
 supplementary to air brakes: Brown v. Great 
 Western Ey., 40 U. C. E. 33, 2 A. E. 64, 3 S. C. 
 E. 159. Defective brakes: death of brakeman: 
 brakeman 's duty to examine condition of brakes: 
 Badgerow v. G. T. E., 19 0. E. 191; Fawcett v. 
 C. P. E. 8 B. C. 393, 32 S. C. E. 721; see also 
 Markle v. Donaldson, 7 0. L. E, 376, and E. S. 0. 
 1914, ch. 146, sec. 3, and notes. See post, sec. 288, 
 note (a). 
 
 99. — (6) Dominion railway not affected by statute 
 purporting to apply only to railways in respect of 
 which the province had authority to enact such pro- 
 visions : Monkhouse v. G. T. E., 8 A. E. 637. Know- 
 ledge by defendants of defect, or ignorance of it 
 by the plaintiff, or notification to defendants or the 
 plaintiff's superior officer must be pleaded and 
 proved: Clegg v. G. T. E., 10 0. E. 708; see also 
 Le May v. C. P. E., 18 0. E. 314, 17 A. E. 293; 
 Misener v. Michigan Central, 24 0. E. 411 ; see E. S. 
 0. 1914, ch. 143, sec. 5 and notes. 
 
 99.— (9) See E. S. C. ch. 37, sec. 265. 
 
 99.— (12) See E. S. C. 1906, ch. 37, sec. 267. Prosecu- 
 tion of company for nonfeasance and misfeasance: 
 
CHAPTER 185. 935 
 
 see E. v. Hays, 14 0. L. E. 201. Neglect of statutory 
 duty as to equipment for protection of employees: 
 foreign car: Stone v. C. P. E., 26 0. L. E. 121, 
 47 S. C. E. 634. "Agreement to the contrary." 
 . see E. S. 0. 1914, ch. 146, sec. 10 and notes; see 
 also Ee Eailway Act Amendment, 1904, 36 S. C. E. 
 136; and 4 Edw. VII. ch. 31 (D). As to sections of 
 Quebec Code corresponding to Lord Campbell's Act 
 and contracting out: indemnity or satisfaction: 
 see Miller v. G-. T. E., 34 8. C- E. 45, 1906, 
 A. C. 187. As to effect of payment of insurance 
 benefit: see Queen v. Grenier, 30 S3. C. E. 42; 
 Griffiths v. Earl Dudley, 9Q. B. D. 357; Lougheed 
 v. Collingwood Shipbuilding Co., 11 O. W. E. 329; 
 Harris v. G. T. E., 3 O. W. E. 211, 550, 567; and 
 notes to E. S. O. 1914, ch. 146, sec. 12. As to 
 agreements with applicants for free passes, and 
 for non-liability in consideration of reduced rates: 
 see sec. 216 post, notes. 
 
 101. Negligence of electric railway in not giving notice 
 by bell: Ford v. Metropolitan Ey., 4 O. L. E. 29; 
 Mulvaney v. Toronto Eailway, 38 S. C. E. 327 ; and 
 see notes to sec. 155 (2), infra. 
 
 102. Operating without vestibule: E. v. Toronto Ey., 
 21 Occ. N. 120. Closing front vestibule and requir- 
 ing passengers to / enter car at rear : McGraw v. 
 Toronto Ey., 12 O. W. E. 587, 13 O. W. E. 129, 18 
 O. L. E. 154. 
 
 104. Jurisdiction over ' ' trailers : " E. v. Toronto Ey., 23 
 O. L. E. 187. Mode of entering car: McGraw v. 
 Toronto Ey., 18 O. L. E. 154. 
 
 105— (2) Jurisdiction of Board: "Tracks" and 
 " lines:" Ee Toronto and Toronto and Suburban 
 Ey., 4 G. W. N. 1379. 
 
 105. — (3) Powers of the Board: E. v. Toronto Ey., 2 
 O. W. N. 753, 18 O. W. E. 104, 23 O. L. E. 186. 
 
 105. — (6) Order to double track: Waddington v. T. 
 & T. Eadial, 18 O. W. E. 621. 
 
 107.-^- (2) A person who is injured while getting into a 
 public conveyance, after he has got on the. step or 
 
936 CHAPTER 185. 
 
 platform, but before the vehicle has begun to move 
 is "riding as a passenger in a public conveyance," 
 within the meaning of an accident insurance policy: 
 Powis v. Ontario Accident Ins. Co., 1 0. L. R. 54. 
 
 The Road Bed and Adjacent Lands. 
 
 108. Compare R. S. C. 1907, ch. 37, sec. 288 and R. S. 
 0. 1914, ch. 146, sec. 5 and notes. The latter section 
 was held not to apply to Dominion Railways: 
 G. T. R. v. Washington, 1899, A. C. 275. The Dom- 
 inion Act has been altered since that decision. As 
 to application of Act to private railways: Cooper 
 v. Hamilton Steel and Iron, 8 O. L. R. 353; note 
 to R. S. 0. 1914, ch. 146, sec. 5. Where a 
 statutory direction has been imposed on an em- 
 ployer, and not observed, it is no defence that its 
 non-observance is due to the negligence of a fellow 
 servant of the person injured: Curran v. G-. T. 
 R., 25 A. R. 407. The right of action under this sec- 
 tion is for the full amount of damages sustained, 
 and the limitations of the Workmen's Compensa- 
 tion for Injuries Act, do not apply: Curran v. 
 G. T. R., 25 A. R. 407. Unpacked frog: Default 
 of contractor: Macdonald v. Walkerton and Luck- 
 now, 1 0. W. N. 395, 15 0. W. R. 151. As to pack- 
 ing railway frogs: see Monkhous v. Gr. T. R., 8 A. 
 R. 637; Clegg v. G. T. R., 10 0. R. 708; Misener 
 v. Michigan Central, 24 0. R. 411; Le May v. C. 
 P. R., 18 0. R. 314, 17 A. R. 293. The omission to 
 have a lock at a railway switch, not otherwise 
 securely guarded, is such negligence as to make the 
 railway liable for the death of their servants result- 
 ing from the switch becoming misplaced: Rom- 
 bough v. Balch, 27 A. R. 32. See post, notes to sec. 
 288, note (m). 
 
 109. See R. S. C. 1907, ch. 37. sec. 250, see ante sec. 54, 
 (k), (I) and notes. Injury by flooding to lands ad- 
 joining right of way : Woods v. C. P. R., 1 0. W. N. 
 872, 16 0. W. R. 313. Flooding lands adjoining 
 works : Niles v. G. T. R., 4 0. W. N. 820. 
 
 110. See R. S. C. 1907, ch. 37, sec. 251; R. S. 0. 1914, 
 ch. 198. Municipal drainage scheme: Re Dover 
 and Chatham, 1 0. W. N. 327. 
 
CHAPTER 185. 937 
 
 112. Eelative rights and duties of railway companies 
 and land owners, with regard to the use of farm 
 crossings considered: Bender v. Canada Southern, 
 37 U. C. B. 25. Place for crossing: Burke v. G. 
 T. E. 6 C. P. 484; In re Eeist and G. T. E., 12 U. 
 C. E. 675, Eeist v. G. T. E., 6 C. P. E. 421. Other 
 access: Carrol v. Great Western Ey., 14 U. C. E. 
 614. Delay in furnishing : Shaver v. Great "Western, 
 6 C. P. 321. Acquisition of right of crossing by 
 prescription : Guthrie v. C. P. E., 27 A. E. 64. Use 
 by third party: Plester v. G. T. E. 32 0. E. 55. 
 An owner whose land adjoins a railway upon one 
 side is not entitled to a crossing: Therrien v. G. 
 T. E., 30 S. C. E. 485. The statutory obligation to 
 provide and maintain farm crossings originated in 
 the Dominion Eailway Act of 1888. The statutory 
 provisions are not retroactive: Ontario Oil Lands 
 v. Canada Southern, 1 0. L. E. 215; Carew v. G. 
 T. E., 5 0. L. E. 653. Statutory right considered, 
 also right to damages for insufficiency of crossing: 
 see Ee Armstrong and James Bay Ey., 12 0. L. E. 
 137. Compensation in lieu of crossing: Martin v. 
 Maine Central Ey., Q. E. 19 S. C. 561. Agree- 
 ment to provide entrance gates: right of way: T. 
 H. & B. Ey. v. Hanley, 6 O. W. E. 921. Eights of 
 landowners in established farm crossings and in 
 maintenance of them: McKenzie v. G. T. E., 14 O. 
 L. E. 671. Where a railway severs a farm and the 
 company have made a farm crossing, no duty is 
 oast on them, in the absence of agreement, to repair 
 the approaches thereto within the farm: Palmer 
 v. Michigan Central, 6 0. L. E. 90; see also 7 0. 
 L. E. 87, and sec. 125 note. Maintenance of under- 
 grade crossing: Leslie v. Pere Marquette, 2 0. W. 
 N. 1316, 19 0. W. E. 613, 24 0. L. E. 206, 25 0. L. 
 E. 326. What must be shewn in action for a farm 
 crossing: title: jurisdiction: Bolduc v. C. P. E., 
 Q. E. 23 S. C. 238. "Farm purposes:" use of 
 crossing for business of brick yard: severance of 
 ownership: T. H. & B. Ey. v. Simpson Brick Co., 
 13 0. W. E. 215, 17 0. L. E. 632. Damages' for 
 destruction of overhead farm bridge crossing, with- 
 out authority from Commissioners: Kelly v. G. T. 
 E. 13. 0. W. E. 781, 1 0. W. K 24, 211, 14 0. W. 
 E. 602. Eight to use culvert as a cattle pass : Oat- 
 man v. G. T. E., 2 0. W. N. 21, 16 0. W. E. 905. 
 
938 CHAPTER 185. 
 
 " Farm:" " Land on either side of the railway " 
 — discretion of the Board: Ee New and T. H. & B. 
 By. 12 O. W. R. 1049. Jurisdiction of Board : see 
 Perrault v. G. T. B., 36 S. C. B. 671; McKenzie v. 
 G. T. B., 14 0. L. E. 671. 
 
 113. Construction of farm crossing ordered: Biddell 
 v. G. T. E., 22 0. W. B. 331. 
 
 114. — (1) The duty to fence is purely statutory. There 
 is no common law liability to fence, either as 
 regards the highway or adjoining properties : West- 
 bourne Cattle Co. v. Manitoba and Northwestern 
 By., 6 Man. L. B. 553; Gunning v. South Western 
 Traction, 10 0. W. E. 285. For history of duty of 
 railway companies to fence, and collection of cases: 
 English, Scottish, Ontario and Manitoba: see 
 appellant's factum, McKay v. G. T. E. 34 S. C. E. 
 81. A Dominion railway is not bound to comply 
 with provincial legislation as to fencing: Madden 
 v. Nelson and Fort Sheppard By., 5 B. C. 541, 
 1899, A. C. 626; and see Therrien v. G. T. E., 30 
 S. C. B. 485. Statutory obligation as to fences: 
 McLeod v. Canadian Northern, 18 0. L. E. 616. 
 The proper maintenance of cattle guards is 
 a determining factor in considering whether the 
 speed of a train is reasonable : Mackay v. G. T. E. 
 34 S. C. E. 81; Girard v. Quebec and St. John By., 
 Q. B. 25, S. C. 245. Swing gates becoming un- 
 fastened through defective posts: Dolson v. C. P. 
 B., 1 0. W. N. 1061. Duty to maintain sufficient 
 gates: Dunsford v. Michigan Central, 20 A. B. 
 577; McMichael v. G T. E., 12 O. E. 547. Considera- 
 tion of effect of change of user of level crossing so 
 as to increase the burden of the easement: Taff 
 Vale By. v. Canning, 1909, 2 Ch. 48. Bailway is 
 under no obligation to fence each side of a culvert 
 across a watercourse crossed by the railway : James 
 v. G. T. E., 31 S. C. E. 420. Neglect of duty to 
 fence will make company liable for death of infant, 
 if the jury find that the deceased displayed such 
 reasonable care as might be expected from one of 
 his tender years: Tabb v. G. T. E., 8 O. L. B. 203; 
 see also Newell v. C. P. E., 12 O. L. E. 21; Potvin 
 v. C. P. E., 4 O. W. B. 511. Insufficient -fence: 
 children trespassing: invitation: Jenkins v. G. W. 
 
CHAPTER 185. 939 
 
 E. 1912, 1 K. B. 525. Where horses escaped from 
 land leased from railway company, where the 
 tenant had agreed to maintain the fences: see 
 Beck v. C. P. R., 10 0. W. B. 644. Owner of lands 
 adjoining railway who has agreed to keep up gates, 
 cannot claim against railway for defect in gates, 
 and his tenant is in no better position : Yeates v. 
 G. T. B., 14 0. L. B. 63. See as to duties regarding 
 fences, gates and cattle guards: Dig. Ont. Case 
 Law, col. 5878. See sees. 281, 282, 283 post and 
 notes. 
 
 114. — (3) What is meant by passing " along " a high- 
 way : see Gunning v. S. W. Traction, 10 0. W. E. 285. 
 Bunning along or across highways: see Dig. Ont. 
 Case Law-, col. 5881. 
 
 114. — (4) As to liability where cattle are at large con- 
 trary to the provisions of the Act: see sec. 281 
 post. Dilapidated fence: McCracken v. C. P. B. 
 13 0. W. E. 412. Extent of the statutory duty to 
 maintain cattle guards and fences: see Hainer v. 
 G. T. B., 36 S. C. B. 180. Injuries to animals at 
 crossings: Ont. Dig. Case Law, col. 5898, by want 
 of, or defects in fences, col. 5890, by want of, or 
 defects in cattle guards, col. 5906, 
 
 114.— (5) Under the provisions of 6 Edw. VII., ch. 30, 
 sec. 87 (4), the railway did not need to fence if the 
 lands were not " improved or settled and en- 
 closed." As to this see Phair v. Canadian North- 
 ern, 6 O. W. B. 137. What are settled and improved 
 lands: McCracken v. C. P. E., 13 O. W. E. 412. 
 Fencing; unenclosed lands: Ee By. Commissioners' 
 order and the C. N. 0., 42 S. C. E. 443. 
 
 114. — (7) See notes to sec. 282, post. 
 
 115. Passing " along," " alongside of " a public high- 
 way: Gunning v. South Western Traction Co., 10 
 0. W. R. 285. 
 
 116. — (1) The car of a foreign corporation forming part 
 of a Canadian train will render company liable if 
 headway insufficient : Atcheson v. G. T. E., 1 0. L. E. 
 
940 CHAPTER 185. 
 
 168. Railways are prohibited under a proper con- 
 struction of this section from using higher freight 
 cars than admit of seven feet clear headway : Deyo v. 
 Kingston and Pembroke By., 8 0. L. E. 588: see 
 McLauchlin v. G. T. R., 12 0. R. 418; Gibson v. Mid- 
 land Ry., 2 0. R. 658 ; see R. S. 0. 1914, ch. 146, sec. 
 
 5 (a) and notes. 
 
 116. — (4) As to erection and maintenance of bridge; 
 operation and maintenance of swing : C. P. R. v. The 
 King, 38 S. C. R. 211. Liability for repair of sub- 
 stitutional bridge : see Peterborough v. G-. T. R., 32 
 
 0. R. 154, 1 0. L. R. 144. Contribution to cost and 
 maintenance : Toronto v. G-. T. R., 4 0. "W. R. 304, 
 
 6 0. W. R. 632. 
 
 117. See First Schedule Regulation No. 8 of the Ontario 
 Railway and Municipal Board Rules. 
 
 118.— (1) See R. S. C, ch. 37, sec. 235, 1-2 Geo. (D), ch. 
 22, sec. 6. Effect of order of Railway Committee; 
 taking of lands : see Parkdale v.- "West, 7 0. R. 270, 
 8 0. R. 59, 12 A. R. 393, 12 S. C. R. 250, 12 A. C. 602; 
 and see notes to sec. 91, ante. Operation on high- 
 ways : see sees. 241, 246, 256, 259, 261. Evidence of 
 consent of municipality : see Montreal Street Ry. v. 
 Montreal Terminal Ry., 36 S. C. R. 369. See Schedule 
 
 1, Regulation No. 7 of the 0. R. and M. Board Rules. 
 
 118. — (2) Where a railway track was being built across 
 a city street lawfully and without negligence, neither 
 the railway nor the municipality are liable in dam- 
 ages to a person who, while crossing, falls and is 
 injured: Atkin v. Hamilton, 24 A. R. 389; Keachie 
 v. Toronto, 22 A. R. 371; see R. S. 0. 1914, ch. 192, 
 sec. 460 (7). 
 
 119. Roadbed below level: G. T. R. v. Sibbald, 20 S. C. 
 R. 259. "Where the municipality raises the grade of 
 highway, company not responsible : Carson v. "Wes- 
 ton, 1 0. L. R. 15. 
 
 120. See 8-9 Edw. VII. (Dom.) ch. 32, sec. 4. Bridge over 
 highway crossing; The Yonge Street Bridge Case: 
 G. T. R. v. Toronto, 6 0. "W. R. 852, 10 0. W. R. 483. 
 It is no answer to the complaint of a landowner 
 
CHAPTER 185. 94^ 
 
 where the company is proceeding without taking 
 steps tinder sees. 81-90 to interrupt his use of a 
 highway that the company has the authority of the 
 Railway Committee. These sections apply to lands 
 injuriously affected as well as to lands taken : Park- 
 dale v. West, 12 A. C. 602; Hendrie v. T., H. & B. 
 Ey., 26 0. E. 667, 27 O. E. 46; Jones v. Atlantic and 
 North West Ey., Q. E. 14 K. B. 392. Apportion- 
 ment of cost of construction of subway: Ottawa 
 Electric v. Ottawa, 37 S. C. E. 355. Cost of main- 
 tenance of gates for the protection of the public at 
 highway crossings: C. P. B. v. Toronto, 8 0. W. E. 
 348. By whom application can be made; private 
 person: Ee Eeid and Canada Atlantic, 4 Can. Ey. 
 Cas. 272; or municipality: Ottawa Electric v. Ot- 
 tawa, 37 S. C. E. 355. Eailways proceeding legally 
 have right to cross streets without taking expropri- 
 ation proceedings under the Act and without mak- 
 ing compensation. See as to toll road acquired by 
 city: Canada Atlantic v. Ottawa, 2 0. L. E. 336. A 
 municipality may be a party interested in works for 
 the protection of a railway crossing, though such 
 crossing is neither within nor immediately adjoin- 
 ing its bounds : Oarleton v. Ottawa, 41 S. C. E. 552. 
 Liability of railway for action of watchman at gates : 
 Hammond v. G. T. E., 9 0. L. E. 64. Eeasonableness 
 of precautions taken at crossing; necessity for 
 watchman: Barclay v. Lake Erie and Detroit Ey., 
 30 S. C. E. 360. Absence of protection : Girouard v. 
 C. P. E., Q. E. 19 S. C. 529. Dangerous crossing: 
 Smith v. Niagara and St. Catharines Ey., 9 0. L. E. 
 158; and see sec. 129, 155, notes. 
 
 123. See 8-9 Edw. VII. (D), ch. 32, sec. 5 (1). 
 
 125. See 8-9 Edw. VII., ch. 32, sec. 8. Injury to infant 
 playing ; notice to public that bridge is not safe : Far- 
 rell v. G. T. E., 2 0. W. E. 85. Absence of railing: 
 Mclnnes v. Egremont, 5 0. L. E. 713. See E. S. 0. 
 1914, ch. 192, sec. 460 (7) and notes. 
 
 126. There is a distinction between an overhead bridge 
 on a public highway and an approach on private 
 lands. In the former case the approach is part of 
 the bridge and is to be maintained by the railway; 
 in the latter case it is for the owner to maintain the 
 
qa.2 CHAPTER 185. 
 
 approaches : Palmer v. Michigan Central, 7 0. L. E. 
 87 ; see sec. 86 note. A railway erected an overhead 
 bridge, and afterwards without the consent of the 
 municipality, raised it so that the approaches were 
 at an incline greater than that prescribed. An ac- 
 cumulation of snow resulted and the plaintiff was 
 injured. The accumulation of snow amounted to 
 want of repair, for which the municipality was liable 
 and the railway was also liable for misfeasance: 
 Fairbanks v. Yarmouth, 24 A. E. 273. 
 
 127. Absence of signboard: Crouch v. Pere Marquette, 
 1 0. W. N. 637, 15 0. W. E. 694, 22 0. W. E. 333. 
 "When the planting of posts in the highway to sup- 
 port the signboard may be deemed a nuisance: see 
 Soule v. G. T. E., 21 C. P. 308. 
 
 128. Liability of railway to repair approaches to level 
 crossing: Hertfordshire County Council y. Great 
 Eastern Ey., 1909, 2 K. B. 403. 
 
 129. Cf. E. S. C. 1907, ch. 37, sec. 227. As to precau- 
 tions to be taken at highway crossings: see sees. 
 155, 156. As to regulations of the 0. E. and M. 
 Board as to crossings and junctions: see Schedule 
 1, No. 6. Crossing of provincial and Dominion 
 railways : see E. S. C. 1907, ch. 37, sec. 8 ; C. P. E. v. 
 G. T. E., 12 0. L. E. 320; see also Credit Valley Ey. 
 v. Great Western Ey., 25 Gr. 507; G. T. E. v. Ham- 
 ilton Eadial Electric, 29 0. E. 143; C. P. E. v. Bay 
 of Quinte Ey., 3 0. "W. E. 542, 658. Jurisdiction of 
 board to impose terms where one railway passes 
 under another : James Bay Ey. v. G. T. E., 37 S. C. 
 E. 372. Where junction with local railway is 
 sought; municipal consent: see Toronto v. Metro- 
 politan Ey., 31 0. E. 367. Board may order junc- 
 tion contrary to desire of one company : Niagara, St. 
 Catharines, etc., Ey. v. G. T. E., 3 Can. Ey. Cas. 256. 
 Protection and compensation: lb. 263. Action on 
 order; injunction: see C. P. E. v. Vancouver, West- 
 minster & Yukon Ey., 10 B. C. E. 228, Indictment 
 of railway companies for neglecting to maintain 
 gates and post watchmen at crossing : E. v. G. T. E. 
 and C. P. E., 12 0. W. E. 975. See ante, sec. 120, 
 and post, sec. 157, notes. 
 
CHAPTER 185. 943 
 
 131. See Montreal Park and Island By. v. Montreal, 43 
 S. C. E. 197, 256. 
 
 133. See ante sees. 2 (k) and 54 (c) and notes. Beser- 
 vation by the Crown of minerals under right of way : 
 see !La Eose Mining Co. v. T. & N. 0. Ey. Commis- 
 sion, 9 0. W. E. 513, 10 0. W. E. 516; T. & N. 0. Ey. 
 Com. v. Alpha Mining Co., 10 0. W. E. 1110, 13 0. 
 W. E. 804. And see E. S. 0. 1914, ch. 38, sees. 23, 
 24. Limestone is a " mineral:" Midland Ey. v. 
 Bobinson, 15 A. C. 19. So is clay: Midland Ey. v. 
 Haunchwood Brick and Tile Co., L. E. 20 Ch. D. 
 552; Loosemore v. Tiverton, etc., Ey., L. E. 22 Ch. 
 D. 25. Eight of railway to subjacent and adjacent 
 lateral support: Caledonian Ey. v. Sprot, 2 Jur. N. 
 . S. 623, 4 W. E. 659; Caledonian Ey. v. Belhaven, 3 
 Jur. N. S. 573; G. W. Ey. v. Bennett, L. E. 2 H. L. 
 27; Duke of Buccleugh v. Wakefield, L. E. 4 H. L. 
 399. Liability of railway for allowing water to flood 
 mines below its right of way : Bagnall v. L. & N. W. 
 Ey., 1 H. & C. 544. 
 
 138. Fire caused by accumulation of rubbish along 
 tracks : see Eainville v. G. T. E., 25 A. E. 242, 29 S. 
 C. E. 201; Grant v. C. P. E., 36 KB. 528. 
 
 139.--(1) In an action to recover damages from fire, the 
 plaintiff must shew something in the nature of neg- 
 ligence, i.e., in construction or management or want 
 of repair of the engine. The onus is not on the de- 
 fendants to shew that they used reasonable contri- 
 vances with due care : Oatman v. M. C. E. E., 1 0. 
 L- E. 145. Qui jure suo utitur neminem laedit; 
 nemo damnum facit nisi facit quod facere jus non- 
 habet : Oatman v. Michigan Central, 1 O. L. E. 145, 
 and cases there cited; New Brunswick Ey. v. Eod- 
 inson, 11 S. C. E. 688; Canada Atlantic v. Moxley, 
 "15 S. C. E. 145; Canada Southern v. Phelps, 14 S^ 
 C. E. 132; C. P. E. v. Boy, 1902, A. C. 220; Jaekson 
 v. G. T. E., 2 0. L. E. 689, 32 S. C. E. 245 ; Senesac v. 
 Central Vermont, 26 S. C. E. 641. Where injury is 
 occasioned by sparks from engine the railway is re- 
 sponsible without proof of direct negligence : Henley 
 v. C. P. E., 21 Occ. N. 394. Injury from smoke: Be 
 Macdonald and T., H. & B. By., 2 0. W. E., 721, 723. 
 Fire from locomotive: Caledonia Milling Co. v. G. 
 
944 CHAPTEK 185. 
 
 T. E., 14 0. W. E. 394. Combustible material on 
 right of way: Blue v. Bed Mountain By., 12 B. C. 
 Eep. 460, 39 S. C. E. 390, 1909, A. C. 361. Combus- 
 tible matter: Laidlaw v. Crow's Nest Southern, 42 S. 
 C. E. 355. Destruction by fire of wood piled near 
 siding: Scott v. Pere Marquette, 13 0. W. E. 1113. 
 Cause of fire ; conjecture ; evidence : Beal v. M. C. E. 
 E., 19 0. L. E. 502, 1 0. W. N. 80, 14 0. W. E. 778. 
 Fire damage to " standing bush." Eule of inter- 
 pretation to be applied : Campbell v. C. P. E., 14 0. 
 W. E. 144, 139, 18 O. L. E. 466. Meaning of 
 "crops." Marsh hay baled and piled at siding de- 
 stroyed by fire : Fraser v. Pere Marquette, 12 0. W. 
 E. 531, 838, 13 O. W. E. 883, 18 0. L. E. 589. Dam- 
 ages for timber burnt by reason of negligence of 
 railway ; expiry of license : see Gillies v. Temiskam- 
 ing and N. 0. Ey. (No. 1), 10 0. W. E. 971. A Gov- 
 ernment Eailway Commission are not responsible 
 for the neglect or misconduct of servants : Gillies v. 
 Temiskaming and N. 0. Ey. (No. 2), 10 0. W. E. 
 975; see E. S. 0. 1914, ch. 38, sec. 35. Fire froin en- 
 gine ; Government railway : Chamber lin v. The King, 
 42 S. C. E. 350. Leger v. the King, 43 S. C. E. 164. 
 Prairie Fire Ordinances, how far ultra vires : The 
 King v. C. P. E., 39 S. C. E. 476; see also as to lim- 
 itations of provincial railway legislation herein: 
 C. P. E. v. Notre Dame de Bonsecours, 1899, A. C. 
 367; Madden v. Nelson and Fort Sheppard Ey., 
 1899, A. C. 626. 
 
 139. — (2) Fire insurance; credit for insurance moneys: 
 Stratford v. T., H. & B. Ey., 6 0. W. E. 698. 
 
 139. — (6) An insurance company incorporated in On- 
 tario insured a railway, part of whose line ran 
 through Maine, against loss or damage to property 
 in Maine, not including that of the assured. The 
 policy was held not to cover standing timber, which 
 the charter of the company did not permit it to in- 
 sure. The policy was not on that account of no effect, 
 as it covered other property in which the railway had 
 an insurable interest and the premium was not re- 
 coverable : C. P. E. v. Ottawa Insurance Co., 9 0. L. 
 E 493, 11 0. L. E. 465, 39 S. C. E. 405. 
 
 141. Lapse of chartered powers; injunction to prevent 
 construction of another railway: Chateauguay and 
 
CHAPTER 185. 945 
 
 Si Northern Ry. v. Montreal Park and Island Ey., 35 
 S. C. R. 48. Commencement of work: Ontario and 
 Sault Ste. Marie Ry. v. C. P. R., 14 0. R. 432; see 
 Parkdale v West, 12 A. C. 602. Right to land owing 
 to non-completion of work: Grand Junction Ry. v. 
 Midland Ry., 7 A. R. 681. Forfeiture of charter: 
 Hardy Lumber Co. v. Pickerel River Improvement 
 Co., 29 S. C. R. 211. Failure to organize: see 
 Hodgins v. O'Hara, 22 Occ. N. 29, 133. Limitation 
 of time for exercise of statutory powers: Midland 
 Ry. v. Great Western Ry., 1908, 2 Ch. 455, 644, 1909, 
 A. C. 445. Non-user: see sec. 240, infra and notes. 
 
 Operation and, Service. 
 
 144. Train " behind time," accident at crossing: Hanley 
 - v, M. C. R., 13 O. L. R. 560. 
 
 146. — (la) Station houses and accommodation for pas- 
 sengers there : see notes f o sec. 161, post. 
 
 146. — (16) Carrying passengers; powers of conductor as 
 constable: see post, sec. 226 and notes. Payment of 
 fares: sec. 148 and notes. Passengers on passes, 
 etc.: sec. 216 and notes. Railways are bound to use 
 reasonable care and diligence in the conveyance of 
 passengers; but they are not common carriers of 
 passengers and not under obligation to carry safely : 
 East Indian Ry.; v. Kalidas Mukerjee, 1901, A. C. 
 ■ 396. Furnishing third-class carriages under G. T. 
 R. Act: see Robertson and G. T. R., 9 O. W. R. 629, 
 14 O. L. R. 497, 39 S. C. R. 506, (1909) A C. 325. 
 A passenger on a second-class ticket cannot be 
 compelled to travel in a smoking car: Jones v. G. 
 T. S., 9 O. L. R. 723. Criminal responsibility of of- 
 ficers of company in not providing the accommoda- 
 tion called for in their Act : see Rex v- Hays, 14 O. 
 L. R. 201. Right of passenger to a particular seat ; 
 authority of conductor: Brazeau v. C. P. R., 11 O. 
 W. R. 136. Ejection of drunken passenger: Dela- 
 hanty v. Michigan Central, 10 O. L. R. 388. Assault 
 on passenger ; duty of conductor : Blain v. C. P. R., 
 5 0. L. R. 334, 34 S. C. R. 75. Expulsion of passen- 
 ger: Jones v. G. T. R., 9 0. L. R, 723. Passenger 
 
 8A.— 60 
 
946 CHAPTER 185. 
 
 carried in pursuance of a contract: Railway Mail 
 Clerk Kenny v. C. P. R., 5 Terr. L. R. 420. Over- 
 crowding: Burriss v. Pere Marquette, 9 O. L. R. 
 259. And see generally Dig. Ont. Case Law, col. 
 5558-5864. 
 
 146. — (lc) Damages through refusal by a railway to 
 furnish proper facilities for forwarding freight: 
 Robinson v. Canadian Northern, 43 S. C. R. 387. 
 Liability for destruction of goods in carriage; con- 
 tract: Allen v. C. P. R., 19 0. L. R. 510, 21 0. L. R. 
 416, 1 0. W. N. 84, 897, 14 0. W. R. 752, 16 0. W. 
 R. 512. Carriage of goods; claim for detention; 
 notice required by contract: Newman v. G. T. R., 
 20 0. L. R. 285, 21 O. L. R. 72, 1 0. W. N. 345, 705, 
 
 15 0. "W. R. 101, 845: Carriage of goods ; failure to 
 deliver; fault of connecting carrier; contract: 
 Laurie v C. N. R., 21 0. L. R. 178, 1 0. W. N. 777, 
 
 16 0. W. R. 139. Action to recover damages for loss 
 of goods shipped; application of condition of con- 
 tract to give notice of loss where loss not known: 
 Sheppard v C. P. R., 11 0. W. R. 697. Loss of 
 goods while in possession of intermediate carrier: 
 Jenckes Machine Co. v. C. N. R., 14 0. W. R. 307. 
 Delivery of goods without surrender of bill of lad- 
 ing : condition : time for claim for loss : Tolmie v. M. 
 C. R. R., 14 0. W. R. 32, 19 0. L. R. 26. Conditions in 
 bill of lading: Lafontaine v. G. T. R., Q. R. 26 S. C. 
 455; Gelmas v. C. P. R., Q. R., 11 S. C. 253; Shep- 
 pard v. C. P. R., 11 0. W. R. 697. Delivery to wrong 
 person: Conley v. C. P. R., 32 0. R. 258, 1 0. L. R. 
 345. Delay in delivery: Corby v. G..T. R., 6 0. W. 
 R. 81, 492. Destruction by fire: Chandler Massey 
 v. G. T. R., 2 0. W. R. 286, 407, 427, 1044. Animals; 
 nuisance : Bennett v. G. T. R., 2 0. L. R. 425. Non- 
 delivery and conversion of goods: Smith v. Cana- 
 dian Express, 12 0. L. R. 84. Negligence in for- 
 warding perishable goods : James v. Dominion Ex- 
 press, 13 0. L. R. 211. Conditions limiting liability; 
 requiring insurance: St. Mary's Creamery v. G. T. 
 R., 8 0. L. R. 1. Claim for non-delivery: Frankel 
 v. G. T. R,, 33 S. C. R. 115. Special contract limit- 
 ing liability: Buskey v. C. P. R., 11 0. L. R. 1. Mis- 
 delivery: Armstrong v. Mich. Central, 1 0. W. R. 
 714. Loss bv fire : McMorrin v. C. P. R., 1 0. L. R. 
 561. Loss : Ferris v. C. P. R., 15 Man. L. R. 134. 
 
CHAPTER 185. 947 
 
 Liability for loss: McCormack v. G. T. E., 6 0. L. 
 E. 577; Parker v. G. T. E., 3 0. W. E. 651. And see 
 generally as to carriage of goods: Dig. Ont. Case 
 Law, col. 5830-5854. Contracts limiting liability : see 
 notes to sec. 146 (7). 
 
 UB.-r(7\ See E. S. C. 1906, ch. 37, sec. 284 (7). The 
 approval of the Eailway Board of a condition in 
 the shipping bill requiring notice of loss to be given 
 within 36 hours will not deprive a shipper of his 
 right of action: Sheppard v. C. P. E., 11 0. W. E. 
 697, 16 0. L. E. 259; see Hayward v. Canadian 
 Northern, 4 W. L. E. 299. Except as -modified by 
 statute, the responsibility of, a common carrier 
 rests in Canada on the common law and may be so 
 limited by special contract that the carrier shall not 
 be liable even in case of gross negligence, miscon- 
 duct or fraud on the part of his agents : Dodson v. 
 G. T. E., 7 Can. L. J. N. S. 263, P. C. Special con- 
 tract limiting liability (see E. S. 0. 1906, ch. 37, sec. 
 284 (7)) ; cases collected: see Mercer v. C. P. E., 12 
 0. W. E. 1212, 17 0. L. E. 585. Live stock contract; 
 limitation of liability; connecting railway: Suther- 
 land v. G. T. E., ,13 0. W. E. 321, 18 0. L. E. 139. 
 Loss of boxes shipped ; condition in contract ; neces- 
 sity for notice of loss: Sheppard v. C. P. E., 16 0. 
 L. E. 259. Carriage of goods ; special contract lim- 
 iting liability; omission to give notice of loss: Mer- 
 cer v. C. P. E., 17 0. L. E. 585. Special contract 
 limiting liability for carriage of horse and passen- 
 ger: Heller v. G. T. E., 25 0. L. E. 117, 488. Eea- 
 sonableness of condition limiting liability of carrier : 
 Williams v. Midland Ey., 1908, 1 K. B. 252, 13 Com. 
 Cas. 119. Notice to passenger of special conditions 
 in special contract exempting railway from liability : 
 _ Nelson v. G. T. E., 26 0. L.' E. 437, 27 0. L. E. 290, 
 47 S. C. E. 622. Limitation of liability in respect ol 
 lost baggage: see sec. 151, infra, and notes. As to 
 liability where passenger travelling on pass : see 
 see. 216 infra notes. See also notes to E. S. 0. 1914, 
 ch. 133 and ch. 137. 
 
 147. " Upon his hat or cap:" see Farewell v. G. T. E., 
 15 C. P. 427. 
 
 148. Freight tolls and their collection: see post, sec. 186 
 and notes. Passenger, conductor as constable: see 
 
948 
 
 CHAPTER 185. 
 
 post, sec. 226 and notes. A conductor may be 
 authorized in putting a passenger off a train who 
 is unable to produce or refuses to produce his 
 ticket (G. T. E. v. Beaver, 22 S. C. E. 498), but 
 where a passenger has given up his ticket, a con- 
 ductor is not authorized to eject him for failing to 
 produce a " hat check:" Haines v. G. T. E., 5 0. W. 
 N. 298. It is not the law in this country that a pas- 
 senger rightfully travelling on his ticket is bound 
 to pay fare wrongfully demanded or leave the train 
 on the conductor's order at the peril of not being 
 able to collect damages for the assault committed in 
 expelling him by force : Dancey v. G. T. E., 20 0. E. 
 603, 19 A. E. 664. Expulsion from car ; transfer re- 
 fused; damages: Grinsted v. Toronto By., 24 0. E. 
 683, 21 A. E. 578, 24 S. C. E. 570. Expulsion for 
 misconduct: Davis v. Ottawa Electric, 28 O. E. 654. 
 What amounts to a refusal to pay fare : Fulton v. 
 G. T. E., 17 U. C. E. 428; Duke v. Great Western 
 Ey., 14 IT. C. E. 369; G. T. E. v. Beaver, 22 S, C. E. 
 498. Putting passenger off; damages; accidental 
 injury: Williamson v. G. T. E., 17 C. P. 615. Incon- 
 venience: Huntsman v. Great Western Ey., 20 U. 
 C. E. 24. Non-production of ticket; offer to pay 
 fare: Curtis v. G. T. E., 12 C. P. 89. Presentation 
 of old ticket : Davis v. Great Western Ey., 20 TJ. C. 
 E. 27. Where a person having a return ticket is put 
 off at an intermediate point, the cause of action 
 arises there and not where the ticket was issued: 
 Ealph v. Great Western, 14 C. L. J. 172. Where a 
 passenger having a return excursion ticket requir- 
 ing identification neglects to identify himself, he 
 cannot recover damages for being put off after re- 
 fusing to pay fare, although he offers to identify 
 himself: Taylor v. G. T. E., 4 0. L. E. 357. Ejec- 
 tion of drunken passenger : Delahanty v. Michigan 
 Central, 7 0. L. E. 690, 10 0. (L. E. 388. And see 
 provisions of sec. 226, infra. Expulsion from car 
 for refusal to pay fare; injury to passenger: Paget 
 v. Toronto Ey., 12 0. W. E. 330, 1102, 42 S. C. E. 
 488. Third-class fares: G. T. E. v. Eobertson, 39 
 S. C. E. 506. This section not inconsistent with Tor- 
 onto Ey. Act: Paget v. Toronto Ey., 42 S. C. E. 488. 
 Eailway tickets as personal property: E. v. Chap- 
 man, 1910, W. N. 131. Eailway tickets and travel- 
 lers : 45 C. L. J. 499. 
 
CHAPTER 185. 949 
 
 1 
 
 149. The railway is* liable for injuries received by a pas- 
 senger who is compelled to resort to the platform 
 as a result of overcrowding: Burriss v. Pere Mar- 
 quette, 9 0. L. E. 259. Overcrowding is evidence of 
 negligence: Metropolitan E. W. Co. "v. Jackson, 3 
 App. Cas. 193. Voluntary standing on platform: 
 see Hurd v. G. T. E., 15 A. E. 58. Passenger 
 standing on platform: Cornish v. Toronto St. By., 
 23 C. P. 355. Negligence; fall from vestibule 
 of car: Thonger v. C. P. B., 1 0. W. N. 725, 15 
 0. WE. 859. Standing on footboard : Fraser v. 
 London St. Ey., 29 0. E. 411, 26 A. E. 383. Acci- 
 dent to passenger riding on platform of tramcar; 
 dangerous arrangement of car: Dynes v. B. C. Elec- 
 tric, 15 B. C. Eep. 429, 47 S. C. E. 395. 
 
 151. Destruction of luggage; joint contract for carriage 
 of Chinamen; action by one: Chan Dy Chea v. Al- 
 berta Ey., 1 W. L. E. 371. Unchecked luggage; the 
 mere fact of a passenger retaining possession of 
 some luggage does not relieve the company from 
 their liability as common carriers : Gamble v. Great 
 Western Ey., 24 IT. C. E. 407, 3 E. & A. 163. Com- 
 mencement of responsibility towards baggage of in- 
 tending passenger : Kerr v. G. T. E., 24 C. P. 209. 
 Termination of responsibility: Penton v. G. T. E., 
 28 IT. C. E. 367; Vineberg v. G. T. E., 13 A. E. 93. 
 Disappearance of money package, absence of neg- 
 ligence: Stearn v. Pullman Car Co., 8 0. E. 171. 
 
 - Liability of railway company for loss of baggage; 
 carrier or warehouseman: Hamel v. G. T. E., 2 0. 
 W. N. 1286, 19 0. W. E. 533. Liability for baggage 
 destroyed in baggage room: Carlisle v. G. T. B., 20 
 0. W. E. 860, 3 0. W. N. 510. Checked baggage; 
 continuous journey; connecting lines: Smith v. G. 
 T. E., 35 IT. C. E. 547. Contents ; evidence : Thomas 
 v. Great Western, 14. IT. C. E. 389. Merchandise: 
 Lee v. G. T. E., 36 IT. C. E. 350; Shaw v. G. T. E., 7 
 C. P. 493. The fact that a lost trunk contains mis- 
 cellaneous articles, some properly baggage and 
 some not, will not disentitle the owner to recover the 
 value of such as are proper personal baggage; spe- 
 cial contract ; limitation of amount : Anderson v. 
 C. P. E., 17 0. E. 747, 17 A. E. 480; Bate v. C. P. E., 
 18 S. C. E. 697. Loss or damage to luggage : Harris 
 v. G. W. E., 1 Q. B. D. 515 ; Henderson v. Stevenson, 
 
950 CHAPTER 185. 
 
 IL. R. 2 H. L. Sc. 470. Loss of luggage containing 
 commercial samples ; measure of damages : Chapman 
 v. Canadian Northern, 12 0. W. E. 1035. Limitation 
 of carrier's liability in respect of lost luggage: 
 Lamont v. Canadian Transfer, 11 0. W. E. 953, 12 0. 
 W. E. 882, 13 O. W. E. 1181, 19 0. L. E. 292. Where 
 condition printed on check limiting carrier's liabil- 
 ity, onus is on carrier to shew assent of passenger, 
 and this not being shewn, the passenger may re- 
 cover the full value : Spencer v. C. P. E., 4 0. W. N. 
 1446, 29 0. L. E. 122. See as to contracts limiting 
 liability: notes to sec. 146 {7), ante. 
 
 152. Indictment of railway company for carrying dan- 
 gerous explosives: see Criminal Code, sees. 221-247; 
 Eex v. Michigan Central, 10 0. W. E. 660, and cases 
 there cited ; see E. S. C. 1906, ch. 37, sees. 286, 287. 
 Where the plaintiff's son was killed by the explosion 
 of a bomb brought by passengers into the railway 
 carriage, the company was held not liable: see this 
 case, note to sec. 144: East Indian Ey. v. Kalidas 
 Mukerjee, 1901, A. C. 396; see also Collett v. Lon- 
 don North Western, 16 Q. B. 984. 
 
 154. Eegulations of municipal board; general require- 
 ments for interlocking at drawbridges : Eules, p. 17. 
 
 155.— (1) " Train:" see Cox v. Great Western Ey., 9 Q. 
 B. D. 106; McCord v. Cammell, 1895, A. 0. 57; Hol- 
 linger v. C. P. E., 21 0. E. 705, 30 A. E. 244. "Is 
 a handcar a train?" Burtch v. C. P. E., 13 0. L. E." 
 632. Apparently not: Vaccaro v. Kingston and 
 Pembroke Ey., 11 0. W. E. 836; see ante, sec. 2 (h) ; 
 see also E. S. 0. 1914, ch. 146, sec. 3 (e), and notes. 
 Trains moving reversely : see notes to sec. 158, post. 
 Neglect to give the statutory warning : Peart v. G. 
 T. E., 10 A. E. 191 (Privy Council decision reported 
 10 0. L. E. 753) ; Champaigne v. G. T. E., 9 0. L. R. 
 589 ; Smith v. Niagara and St. Catharines By.^ 9 0. 
 L. E. 158; Moir v. C. P. E., 10 0. W. E. 413; Eoyle 
 v. Canadian Northern, 23 Oec, N. 25, 14 Man. L. E. 
 275; New Brunswick By. v. Vanwart, 17 S. C. R. 35; 
 G. T. E. v. Eosenberger, 9 S. C. E. 311; Sibbald v. 
 G. T. E., 18 A. E. 184, 20 S. C. E. 259; Henderson 
 v. C. A. E., 25 A. E. 437, 29 S. C. E. 632; Shoebrink 
 v. C. A. E., 16 0. E. 515 ; Hanley v. Michigan Central, 
 
CHAPTER 185. 95^ 
 
 13 0. L. E. 560; Burtch v. C. P. E., 13 .L. E. 632; 
 Hanna v. C. P. E., 11 0. W. E. 1069 ; Sexton v. G. T. 
 E., 13 O. W. E. 566. Griffith v. G. T. E., 17 0. W. 
 E. 509, 2 0. W. N. 252, 2 0. W. N. 1059, 19 0. W. E. 
 53; Zufelt v. C. P. E., 2 0. W. N. 1063, 19 0. W. E. 
 77. This section does not apply to an engine en- 
 gaged in shunting, and never being in the course of 
 its work more than 80 rods from any level crossing 
 which it crosses: McAlpine v. G. T. E. (1913) A. C. 
 838. It is necessary only that the warning should 
 be such as ought to be apprehended by a person of 
 ordinary faculties, in a reasonably sound, active and 
 alert condition, and that the time given to avoid the 
 danger should be reasonably sufficient to enable a 
 person of that description to avoid it: McAlpine v. 
 G. T. E., (1913) A. C. 838. 
 
 " Look and listen:" Andreas v. C. P. E., 2 West. 
 L. E. 249, 37 S. C. E. 1; Hainer v. G. T. E., 36 S. C. 
 E. 180; Wright v. G. T. E, 12 0. L. E. 114; Sims v. 
 G. T. E., 10 0. L. E. 330, 12 0. L. E. 39; Morrow v. 
 C. P. E., 21 A. E. 149; Vallee v. G. T. E., 1 0. L. E, 
 224; Misener v. Wabash Ey., 12 O. L. E. 71, 38 S. 
 C. E. 94; Peart v. G. T. E., 10 A. E. 191, 10 0. L. E. 
 753. 
 
 Duty to give statutory warning extends to em- 
 ployees: see Canada Southern v. Jackson, 17 S. 
 C. E. 316; see also Curran v. G. T. E., 25 A. E. 407; 
 Bennett v. G. T. E., 3 0. E. 446; C. P. E. v. Boisseau, 
 32 S. C. E. 424. Actions against railway in respect 
 of persons injured crossing tracks : see Dunsmoor v. 
 National Portland Cement r 2 0. W. N. 281, 17 0. W. 
 E. 555. In an action for damages for personal in- 
 juries, a plaintiff relying on the. breach of a statutory 
 duty must prove not only the breach, but also that 
 the breach caused the injuries : McAlpine v. G. T. E., 
 (1913) A. C. 838. Injury to persons at crossings by 
 collision with trains : Dig. Ont. Case Law, col. 5910 ; 
 by fright at approach of train, lb. col. 5917 ; by ob- 
 struction in the highway, lb. col. 5919 ; contributory 
 negligence, lb. col. 5920. Cars placed so as to obstruct 
 view: Hansford v. G. T. E., 13 0. W. E. 1184. 
 Foot caught between rail and plank: Stevens v, C. 
 
952 
 
 CHAPTER 185. 
 
 P. E., 4 0. W. N. 697. As to injuries to persons 
 crossing tracks of street railway companies: see 
 notes to sec. 259, post. Injuries to cattle : see notes 
 to sees. 281-283, post. Damages anl negligence gen- 
 erally: see sec. -288, post, notes (e), (g), (I). 
 
 155. — (2) Gong to be sounded: Wallingford v. Ottawa 
 Electric, 9 0. W. E. 495, 14 0. L. E. 383; Bell v. 
 Winnipeg Electric, 15 Man. L. E. 338, 37 S. C. E. 
 515; Deslongchamps v. Montreal St. Ey., Q. B. 14 
 K. B. 355, 37 S. C. E. 685 ; and see notes to sec. 101, 
 ante. • 
 
 156.— (1) Cf. E. S. C. 1906, ch. 37, sec. 277; crossing af- 
 ter signal that the way is not clear : see Graham v. 
 Great Western Ey., 41 XL C. E. 324. Train must 
 stop and other brakes should be provided in case 
 the air brakes fail : Brown v. Great Western Ey., 40 
 U. C. E. 333, 2 A. E. 64, 3 S. C. E. 159; see McKay 
 v. Wabash Ey., 10 O. W. E. 416, 40 S. C. E. 251. 
 Bringing train to standstill at crossing: Johnston 
 v. Thousand Island Ey., 17 0. W. E. 7, 2 0. W. N. 
 91. Collision of street car with G. T. E. train; neg- 
 ligence, " railway shock:" Toms v. Toronto Bv., 17 
 0. W. E. 254, 2 0. W. N. 169, 0. L. E. Neglect of 
 motorman to shut off speed on approaching cross- 
 ing: Brenner v. Toronto Ey., 13 0. L. E. 423, 15 0. 
 L. E. 195. 
 
 156. — (3) See Eegulations of the Board; interlocking 
 system. Eules, p. 15. 
 
 157. As to excessive speed: see Dominion Act, E. S. C. 
 1906, ch. 37, sec. 275. Excessive speed of street 
 railways: sec. '259. infra, and notes. And see also 
 Andreas v. C. P. E., 2 W. L. E. 249, 37 S. C. E. 1; 
 Tabb v. G. T. E., 8 0. L. E. 203; Filiatrault v. C. P. 
 E., Q. E. 18 S. C. 491. Moving train causing bodily 
 injury. Construction of section and consideration 
 of the provisions as to protection in Dominion Act: 
 Bell v. G. T. E., 29 0. L. E. 247; see also G. T. E. v. 
 McKay, 34 S. C. E. 81. 
 
 Gates and watchmen at highway crossings: Negli- 
 gence; gates at level crossing: Mackison v. G. T. E., 
 
CHAPTER 185. 953 
 
 1 0. W. N. 903, 16 0. W. E. 516. Level crossing 
 fatality; open gates; absence of watchman: Fraser 
 v. G. T. R., 1 0. W. N. 322. Injury to and death of 
 watchman at highway crossing; failure to give 
 warning of approaching shunting cars: Lamond v. 
 G. T. R., 11 0. W. R. 442, 158, and see ante sees. 120, 
 129, notes. 
 
 158. This enactment is for the protection of servants 
 of the company standing on or crossing the 
 track, as well as other persons: McMullin v. Nova 
 Scotia Steel, 39 S. C. E. 593. Neglect to signal: 
 Wright v. G. T. E., 12 0. L. R. 114; Lett v. St. 
 Lawrence and Ottawa Ey., 1 0. E. 545, 11 A. 
 E. 1, 11 S. C. E. 422. The necessity for signal 
 applies to trains in the station yard: Boisseau 
 v. C. P. E., 32 S. C. E. 424; Bennett v. G. T. E., 3 
 0. E. 446. See also as to trains moving reversely: 
 Anderson v. Northern Ey., 25 C. P. 301; Levoy v. 
 Midland, 3 0. E. 623; Casey v. C. P. E., 15 0. E. 
 574; Hollinger v. C. P. E., 21 0. E. 705, 20 A. E. 244; 
 Moyer v. G. T. E., 2 0. W. E. 83. Electric car run- 
 ning backwards : Balfour v. Toronto Ey., 5 0. L. E. 
 735. Car running on left hand track : Heath v. Ham- 
 ilton Street Ey., 8 0. W. E. 937. Engine shunting 
 reversely; absence of statutory warning: Hobley v. 
 G. T. E., 13 0. W. E. 294. Train moving reversely: 
 neglect of statutory duty : Lamond v. G. T. E., 16 O. 
 L. E. 365. Electric car moving reversely on high- 
 way; headlight and fender: E. v. Toronto Railway, 
 10 0. L. E. 26. Fender when car moving reversely : 
 Toronto v. Toronto Ey., 10 0. L. E. 730. Liability 
 of company for injury to trackwalker ; man not in a 
 position to be seen by engine-driver : Gilchrist v. 
 G. T. R., 14 0. W. R. 9. Liability for injury and 
 death of workman run over by train moving reversely 
 in yard: Giovinazzo v. C. P. R., 13 0. W. R. 24. 
 
 160. Where injury is sustained by passenger in sleeping 
 berth by being thrown out, some negligence on the 
 part of the company must be shewn to make it lia- 
 ble,- such as excessive speed or defect in roadbed: 
 Smith v. C. P. R., 31 S. C. R. 367. Negligence of 
 servant of Pullman Car Company; liability of both 
 companies: Decue v. Wabash Ry., 3 0. W. R. 102. 
 Responsibility for money package taken from berth : 
 Stern v. Pullman Car Co., 8 0. R. 171. 
 
954 CHAPTER 185. 
 
 161. As to stations and land for same: see ante sec. 
 54 (g). Access to station over the permanent way to 
 highway, and when long user of such may amount to 
 invitation or license to use same : Anderson v. G-. T. 
 E., 27 0. E. 441, 24 A. E. 672, 27 S. C E. 541. A rail- 
 way is not bound to maintain any but the usual and 
 direct road for access to the station: Walker v. 
 Great Western Ey., 8 C. P. 161. Invitation to cross 
 tracks at a station : Jones v. G. T. E., 16 A. E. 37, 
 18 S. C. E. 696. Injury to passenger through un- 
 guarded excavation in station grounds: Oldright 
 v. G. T. E., 22 A. E. 286. Sloping station platform : 
 Hansen v. C. P. E., 40 S. C. E. 194. Permission 
 to alight at point beyond station: Fleming v. C. 
 P. E. 11 0. W. E. 982. Liability for breach of 
 statutory duty in not furnishing accommodation for 
 passengers at station : Morrison v. Pere Marquette, 
 4 0. W. N. 186, 544, 889, 27 0. L. E. 271, 551, 28 
 0. L. E. 319. 
 
 Municipal, Bonuses. 
 
 162. See E. S. 0. 1914, ch. 192, sec. 397. 
 
 By-laws, Eules and Eegulations. 
 
 163. A railway company may be liable to an engine man 
 for injuries received through obeying conductor 
 whom he is bound to obey, and who breaks the com- 
 pany's rules: Miller v. G. T. E. 32 S. C. E. 454; 
 but not to the representatives of a conductor who 
 is killed as a result of his own neglect of rules: 
 Fawcett v. C. P. E. 8 B. C. E. 393, 32 S. C E. 721; 
 Sloan v. Georgia Pacific Ey., 44 Am. & Eng. Ey. 
 Cases 553. When the disobedience of the rule is 
 not the proximate cause of the injury: see Birkett 
 v. G. T. E. 35 S. C. E. 296. Where the disobedience 
 of the rule is the proximate cause, the railway is 
 not liable, though they may be at fault, e. g., under 
 sec. 116: Deyo v. Kingston and Pembroke By.,- 
 8 0.. L. E. 588; or may have permitted laxity in 
 enforcement of their rules: Maycock v. Wabash 
 Ey., 9 0. W. E. 546, 10 0. W. E. 127; or although 
 there may be a plain defect in the condition of the 
 way: Holden v. G. T. E., 5 0. L. E. 301. Where 
 the disobedience of rules by an engine-driver results 
 
CHAPTER 185. 955 
 
 in the death, of another employee, the company is 
 liable: Muma v. C. P. R., 14 0. L. R. 147. Considera- 
 tion of rules directing motorman as to speed of cars, 
 in action for negligence : Brenner v. Toronto Railway, 
 13 0. L. R. 423, 15 0. L. R. 195, 40 S. C. R. 540. 
 Disobedience of rules : collision : Walker v. "Wabash, 
 18 0. L. R. 21. Where accident to motorman due 
 to his disregard of rules, he could not recover: 
 Harris v. London St. By., 39 S. C. R. 398. No 
 action for negligence lies where death results 
 through neglect of company's rules by deceased: 
 Pettigrew v. G. T. R., 2 0. W. N. 57, 709, 16 0. W. 
 R. 989, 18 0. W. R. 531, 22 O. L. R. 23. Injury to 
 servant when disobeying rules of railway company: 
 Bist v. London and S. W. By., 1907, A. C. 209; 
 Anderson v. Mikado Mining Co., 3 0. L. R. 581. See 
 also post, sec. 288, note (h). And see R. S. 0. 1914, 
 ch. 146, sec. 3 (d), note. 
 
 165. Special instruction inconsistent with system: Fra- 
 lick v. G. T. R., 43 S. C. B. 494, and see 1 0. W. 
 B. 309, 15 0. W. B. 55. 
 
 170. Statutory powers given to company to make rules: 
 B. v. Toronto By., 23 0. L. E. 187. 
 
 Inspection op Batlways. 
 
 175. Bepairs and renewals: Be West Toronto and 
 Toronto By., 25 0. L. B. 9. 
 
 Tolls. 
 
 177. The fact that a railway company has not had its 
 tolls approved by order in council, was held not 
 in itself to entitle the passenger to recover back 
 the amount paid where it was such as he ought to 
 have paid: Tees v. Ottawa and New York By., 31 
 0. E. 567. Authorized tolls: Duthie v. G. T. E., 
 4. Can. By. Cas. 304. Beasonable rates : Cooperage 
 Stock Bates, 3 Can. By. Cas. 421 ; United Factories 
 v. G. T. B., 3 Can. Ey. Cas. 424. 
 
 186— (3) Passenger fares or tolls : see ante sec. 148 and 
 
 notes. Lien for tolls: Be C. P. B. and Warren, 
 
 ■< 13 0. W. E. 225. "Owner's risk:" Swale v. C. P. 
 
956 CHAPTER 185. 
 
 i 
 
 R., 4 0. W. N. 884, 5 0. W. N. 402, 24 0. W. R. 224. 
 " Seize:" Carriers lien when maintainable and 
 when terminated: Clisdell v. Kingston & Pem- 
 broke Ry., 13 0. W. R. 626, 18 0. L. R. 169. Carriage 
 of goods received by railway subject to general lien 
 for money due by shippers on any account. Rights 
 of consignor stopping in transitu, as against rail- 
 way: TJ. S. Steel Products Co., v. Gk "W. Ry. Co., 
 1913, 3 K. B. 357. 
 
 186. — (4) "When sale of perishable goods delayed by 
 strike, justified on part of carrier: Suris v. Mid- 
 land Ry., 1913, 1 K. B. 103. Action for conversion 
 of goods against railway and auctioneers: Swale 
 v. C. P. R., 4 0. W. N. 884, 5 0. W. N. 402, 24 O. 
 W. R. 224. 
 
 187. Tolls: Discrimination: Scott v. Midland Ry., 33 
 U. C. R. 580; Atty. Gen. v. Ontario, Simcoe and 
 Huron, 6 Gr. 446. McDougall v. Covert, 18 C. P. 
 119; Re Cedar Lumber Products, 3 Can. Ry. Cas. 
 412; Re Tower Oiled Clothing, 3 Can. Ry. Cas. 417; 
 Re Manufacturers Coal Rates, 3. Can. Ry. Cas. 438; 
 Re Brant Milling Co., 4 Can. Ry. Cas. 259. Special 
 rates: Re Canadian Freight Association, 3 Can. 
 Ry. Cas. 427. By-laws: Discrimination; Scott v. 
 Midland Ry., 33 U. C. R. 580. 
 
 188. Freight classification: Re Sydenham Glass Co., 
 3 Can. Ry. Cas. 409 ; Re Fruit Growers, 3 Can. Ry. 
 Cas. 430; Re Almonte Knitting Co., 3 Can. Ry. 
 Cas. 441. 
 
 200. Joint International tariffs: G. T. R. and British 
 American Oil Co., 43 S. C. R. 311. The Board of 
 Ry. Commissioners for Canada cannot make orders 
 respecting through traffic over a provincial railway 
 or tramway, which connects with or crosses a rail- 
 way subject to the authority of the Parliament of 
 Canada: Montreal St. Ry. v. Montreal, 43 S. C. R. 
 197, 256. 
 
 210. See wording of sec. 6 ante. Board to try all cases 
 of breach of agreement, post sec. 260.' Action to 
 enforce agreement to sell " workmen's ticket," or 
 limited tickets: see Hamilton v. Hamilton St. Ry., 
 
CHAPTER 185. 957 
 
 8 0. L. E. 642, 10 0. L. E. 594, 39 S. C. E. 673; 
 Kingston v. Kingston Electric, 25 A. E. 462. 
 Agreement as to special rates : Ee Montreal Island 
 Ey. and Montreal, 43 S. C. E. 256. School child- 
 ren's rates: Ee Sandwich East and "W. & T. 
 Electric Ey., 12 0. W. E. 370, 16 0. L. E. 641. 
 (See note to E. S. O. 1914, ch. 266, sec. 48 (3) ). 
 International Ey Co., at Niagara Falls, within the 
 exception in sub-sec. (3) : Ee Niagara Falls Board 
 of Trade and I. Ey. Co., 20 0. L. E. 197, 1 0. W. N. 
 312, 15 G. W. E. 119. 
 
 211. See E. S. C. 1906, ch. 37, sec. 317. Liability beyond 
 railway's own line: delivery to connecting com- 
 pany's nearest station: Devlin v. G. T. E., 30 TJ. 
 C. E. 537. Subsequent delay: Eogers v. G, W. Ey., 
 16 TJ. C. E. 389. Delivery to wrong person : Eennie 
 v. Northern Ey., 27 C. P. 153. Subsequent loss: 
 La Pointe v. G, T. E., 26 U. C. E. 479 ; and other 
 cases : Dig. Ont. Case Law, cols. 5839-5843. Liability 
 for goods received from other companies; through 
 rate: Gordon v. G. W. Ey., 34 IT. C. E. 224, 25 C. 
 P. 488. Eefusal of connecting company to receive 
 goods: Crawford v. G. W. Ey., 18 C. P. 510, etc., 
 Dig. Ont. Case Law, cols, 5843-5846; see also 
 Vickers Express Co.. v. C. P. E., 13 A. E. 210. 
 Eunning arrangements: see Dig. Ont. Case Law, 
 cols. 6039-6044. See also ante, sec. 65, notes. 
 
 212. Interchange of traffic with municipal railway: 
 Toronto v. Toronto Ey., 26 0. L. E. 225, 3 0. W. N. 
 1021, 21 0. W. E. 723. ,See also ante, sec. 65 (8), 
 notes. 
 
 216. Generally, as to agreements limiting the railway's 
 liability: see see. 146 (7) and notes. Liability in 
 respect' of luggage: see sec. 151 notes. In the 
 absence of gross negligence a carrier is not liable 
 for injuries sustained by a gratuitous passenger: 
 Nightingale v. Union Colliery, 9 B. C. E. 453, 35 
 S. & E. 65; Moffatt v. Bateman, L. E. 3 P. 
 C. 115. Where condition in pass freeing company 
 from liability not accepted by passenger : Franchere 
 v. Central Vermont Ey., 35 S. C. E. 68. A 
 head-on collision is prima facie evidence of negli- 
 
958 CHAPTER 185. 
 
 gence as will entitle a gratuitous passenger to 
 damages : Eyckman v. Hamilton Grimsby, etc., By., 
 10 0. L. B. 419. A condition freeing the company 
 from liability is valid and can be taken advantage 
 of by a connecting railway company: Bicknell v. 
 G. T. B., 26 A. B. 431. Generally as to validity of 
 agreements limiting the railway's liability: see sec. 
 146 (7). Beduced rates in consideration of non- 
 liability: Cobban v. C. P. B., 26 0. E. 732, 23 A. 
 E. 115; Drainville v. C. P. E., Q. B. 22 S. C. 480. 
 Non-liability contract where shipper travelling on 
 pass: Heller v. G. T. B., 3 0. W. N. 275, 642, 20 
 O. W. B. 478, 21 0. W. B. 219, 25 0. L. E. 117, 488. 
 Injury to persons in charge of live stock, and 
 travelling on a pass: Goldstein v. C. P. B., 1 0. 
 W. N. 1086, 2 0. W. N. 964, 21 0. L. B. 575, 23 0. 
 L. B. 536; Bobinson v. C. P. E., 14 0. W. B. 706, 
 16 0. W. B. 725. Injury to person riding for half 
 fare, and in charge of cattle : Bobinson v. G. T. B., 
 3 0. W. N. 1345, 4 0. W. N. 309, 22 0. W. E. 290, 
 26 0. L. E. 437, 27 0. L. B. 290. Limiting liability 
 by posting notice in cars that the fare less than the 
 statutory maximum, and that in consideration of 
 the reduced fare the company would, not be liable 
 beyond £25 damages : Held that perhaps they might 
 do this by publishing alternative lists of fares and 
 allowing passengers to elect : Clarke v. West Ham, 
 1909, 2 K. B. 858. 
 
 222. Applies only where the constable arrests the 
 offender, and takes him before the justice, and not 
 where a summons issues: B. v. Hughes, 26 0- B. 
 486. "Where a railway watchman who was also a 
 constable under the Bailway Act, made an arrest 
 and subsequently an action was brought for false 
 arrest, it was held that the defendant company was 
 not liable as the watchman acted, not as their ser- 
 vant, but as an officer of the law, in which capacity 
 they exercised no control over him : Thomas v. C. P. 
 E., 14 0. L. B. 55; see O'Donnell v. Canada Foundry, 
 5 0. W. B. 215; Dennison v. C. P. E., 36 N. B. 250. 
 [Liability of railway company for acts of constable: 
 Nazarino v. C. P. B., 11 0. W. B. 662. See post, 
 sec. 288, note (j). 
 
CHAPTER 185. 959 
 
 Powers of Passenger Conductors as Constables. 
 
 226. Ejection of drunken passenger: Delahanty v. 
 Michigan Central, 10 0. L. B. 388. Assault on pas- 
 senger: duty of conductor: Blain y. C. P. B., 5 
 0. L. E. 344, 34 S. C. E. 75. Expulsion of pas- 
 senger: Jones v. G. T. E., 9 0. L. E. 723. Street 
 car conductor justified in ejecting passenger who 
 refuses to remove his feet from cushions : Davis v. 
 Ottawa Electric Ey., 28 0. E. 654. Eight of con- 
 ductor to remove passenger from seat taken by 
 another and temporarily vacated : Brazeau v. C. P. 
 E., 11 0. W, E. 136. Expulsion from car': result- 
 ing chill, and illness: G-rinsted v. Toronto Ey., 24 
 0. E. 683, 21 A. E. 578, 24 S. C. E. 570. See post, 
 sec 288 note (j). 
 
 Street Bailways and Bailways Operating' Along 
 Highways. 
 
 228. "Along highways:" see as to what this means, 
 Gunning v. South Western Traction Co., 10 0. W. 
 B. 285. 
 
 229. A railway company having only the usual statu- 
 tory powers is not entitled, in the absence of ex- 
 press powers, to carry on the business of omnibus 
 proprietors ancillary to its undertaking : Atty. Gen. 
 v. Mersey By., 1906, 1 Ch. 811. " Tracks " mean, 
 when applied to a railway laid on a highway, that 
 part of it occupied by the railway : Be Toronto and 
 Toronto and Suburban, 29 0. L. B. 105. 
 
 231. Agreements with street railways and the enforce- 
 ment of them : see notes to sees. 259, 260 post. As to 
 passenger fares on electric railways: see ante sec. 
 210 notes. Construction of agreement between 
 Toronto and Toronto Bailway: see City of Toronto 
 v. Toronto By., 1907, A. C. 315; Be Toronto By. 
 and Toronto, 19 0. L. B. 396. Effect of Toronto 
 v. Toronto Ey., 1907, A. C. 315, and 8 Edw. VII., 
 ch. 112, sec. 1, as to powers of Toronto By. : Be 
 Toronto Ey. v. Toronto, 19 0. L. E. 396. Agree- 
 ment with municipality: Be Waddington and York 
 Badial, 4 0. W. N. 617. 
 
 231. — (a) Position of municipality when performance 
 of agreement by company is prevented by the effect 
 
960 CHAPTER 185. 
 
 of legislation, or by reason of the occupation of the 
 street by another railway, with or without lawful 
 authority: Ottawa v. Ottawa Electric By., 1 0. L. 
 E. 377. Acquisition of land for car-barns ; right of 
 city to expropriate: Toronto Ey. v. Toronto, 13 0. 
 L. E. 532, 1907 A. C. 315. 
 
 231.; — (/) Extension of lines: City of Toronto agree- 
 ment: neither the company nor the corporation 
 has any street railway powers within new terri- 
 torial additions, made during the term: remedy 
 on failure to lay down new lines: company 
 to determine what new lines should be laid, routes 
 adopted, and stops chosen: Toronto v. Toronto 
 Eailway, 1907, A. C. 315; see also Toronto v. 
 Toronto Ey., 5 O. W. E. 130, affirmed by P. C, see 
 
 1906, A. C. 117. Authority of city engineer to fix 
 stopping places for cars: construction of agree- 
 ment with municipality: Toronto v. Toronto Ey., 
 11 O. L. E. 103, 12 O. L. E. 534; Toronto v. 
 Toronto Ey., 5 0. W. E. 130, affirmed 1906, A. C. 
 117. Operation, breach of conditions, construction 
 and location of lines, use of highway, car service, 
 time table, newly annexed territory: Toronto V; 
 Toronto Ey., 9 0. L. E. 333, 10 0. L. E. 657, 37 S. 
 C. E. 430. Streets in newly annexed territory, 
 recommendation of engineer, option to others to 
 lay down rails, stopping, places: Toronto v. 
 Toronto Ey., 11 0. L. E, 103, varied, 12 0. !L. E. 
 534. Eight to lay new tracks under Toronto city 
 agreement: Toronto Ey. v. Toronto, 14 0. W. E. 
 578, 10.W.N.5;' see also Toronto v. Toronto Ey., 
 
 1907, A. C. 315; and 55 Vic. ch. 99, 8 Edw. VH., 
 ch. 112. 
 
 231. — (h) By-law as to routes and speed; necessity for 
 mayor's signature; ratio of track mileage to in- 
 creased population; newly annexed territory: Lon- 
 don St. Ey. v. London, 9 0. L. E. 439. As to dam- 
 ages for injuries from excessive speed: see post 
 sec. 259 (f ) and notes. 
 
 231. — (i) Agreement as to special rates: Ee Montreal 
 Island Ey., and Montreal, 43 S. C. E. 256. Enforc- 
 ing agreement as to workmen's tickets: Hamilton 
 v. Hamilton St. Ey., 39 S. C. E. 673 ; and see notes 
 to sec. 210 ante. 
 
CHAPTER 185. 951 
 
 231. — (j) Agreement for percentage of receipts; traffic 
 beyond city: Hamilton v. Hamilton St. Ry., 8 0. 
 L. R. 455. 10 0. L. R. 575, 38 S. C. R. 106; Montreal 
 v. Montreal St. Ry., 1903, A. C. 482; Montreal St. 
 Ry. v. Montreal, 1906, A. C. 100. Construction of 
 the Toronto Railway agreement ; mileage payments ; 
 interest: Toronto Ry. v. Toronto, 1906, A. C. 117. 
 
 232. Assumption of ownership of street railway by muni- 
 cipality : Re Berlin and Waterloo St. Ry. and Berlin, 
 19 O. L. R. 57, and see post, sec. 246, notes. 
 
 234. See R. S. 0. 1906, ch. 37, sees. 9, 44, also Lord's 
 Day Act, 6 Edw. VII., (D) ch. 27, especially sec. 
 3. (g-k), and R. S. 0. 1914, Vol. II., p. 2962, see 
 also sec. 241 post. Consideration of section, and 
 constitutionality of it: Dominion and Provincial 
 legislation regarding operation of railways on Sun- 
 day; Kerley v. London & Lake Erie, 3 0. W. N. 
 1498, 4 0. W. N. 1234, 26 0. L. R. 588, 28 0. L. R. 
 606. Sunday law respecting provincial railways: 
 see article 48 C. L. J. 677. 
 
 239. Injury to gas pipes ; pleading defences : Consumers 
 Gas Co. v. Toronto Ry., 10 0. W. R. 105. Wires 
 on public highway in proximity to bridge : Gloster 
 v. Toronto Electric Light, 12 0. L. R. 413, 38 S. C. 
 R. 27. Injury to person; proximity to highway: 
 Findlay v. Hamilton Electric, 9 0. W. R. 434; 773, 
 11 0. W. R. 46. Exposed Switch: Bradd v. Whitney, 
 9 0. W. R. 656. Allowing guy wire to hang loose ; con- 
 tact with live wire: Labombarde v. Chatham Gas 
 Co., 10 0. L. R. 446. Electric shock; death caused 
 by: Royal Electric Co. "v. Hevi, 21 Occ. N. 442. 
 Electric wire; trespasser; use of pole by stranger: 
 Randall v.. Ottawa Electric, 6 0. L. R. 619, 24 Occ. 
 N. 262, 4 0. W. R. 240, 269, 6 0. W. R. 913; Randl 
 all v. Ahearn and Sbper, 34 S. C. R. 698. Electric 
 wires; statutory authority; contact with derrick: 
 Dumphy v. Montreal Light Co., Q. R. 28 S. C. 18, 
 Q. R. 15, K. B. 11; and see R. S. 0. 1914, ch. 146, 
 sec. 3 (a) note. 
 
 240. Forfeiture of charter. The non-completion of work 
 within the time limit would not ipso facto forfeit 
 
 S.A.— 61 
 
962 CHAPTER 185. 
 
 the charter, but only afford grounds for proceed- 
 ings by the Attorney-General to have a forfeiture 
 declared : Hardy v. Pickerel River, 29 S. C. R. 211. 
 Where a company had a time limit within which 
 to organize and obtain a license after the passing 
 of its incorporating Act, no license having been 
 obtained, the company ceased to exist when the 
 time expired: Hodgins v. O'Hara, 22 Occ. N. 133. 
 Forfeiture; effect on title to lands: Grand Junc- 
 tion v. Midland Ry., 7 A. R. 681 ; and see notes to 
 sec. 141 ante. 
 
 241. Where a company are empowered to lay wires 
 underground or overhead, there is no obligation on 
 them on the ground of affording greater protec- 
 tion to the public, to lay their wires underground 
 and not overhead. In the absence of evidence that 
 such a precaution would have been efficient, there 
 was no negligence in the respondents not insulating 
 or guarding their wires: Dumphy v. Montreal 
 Light, 1907, A. C. 454. Working of engines causing 
 so much vibration as to render house uninhabitable, 
 and to create a nuisance though doing no actual 
 structural injury: see Hopkin v. Hamilton Electric, 
 2 0. L. R. 240. Power to erect poles to earry power 
 line without leave of municipality: T» & j& Power 
 Co- v. North Toronto, 28 T. L. E. 563, 23 0. W. E. 
 85. Consent by municipal authority a condition 
 precedent to use of highway : Montreal Street Ey. 
 v. Montreal Terminal Ey., 36 S. C. E. 369. Necessity 
 for mayor's signature to by-law: London Street 
 Ey. v. London, 9 0. L. E. 439. Railways on muni- 
 cipal streets : G. T. P. v. Fort William, 43 S. C. E. 
 412, 
 
 243. '/' Deviation " and relocation, section considered: 
 Toronto v, Toronto and York Eadial, 4 0. W. N. 
 784, 28 O. L. R. 180, 25 0. W. E. 3l5 (P. CL) ; and 
 see notes to sec. 71 (3) ante. 
 
 245. As to effect of omission from private Act of general 
 power to take land : Hopkins v. Hamilton Electric, 
 2 0. L. R. 240. As to expropriation: see sees. 81 
 to 90 and 91 ante and notes. As to terms on which 
 an application for immediate possession may be 
 granted: see sec. 90 (19) et seq., and notes. 
 
CHAPTER 185. 963 
 
 246. Municipality assuming ownership; principle of 
 valuation ; railway franchises and privileges : Town 
 of Berlin and Berlin and Waterloo Ry., 8 0. W. R. 
 284, 9 O. W. R. 412, 13 0. W. R, 157, 19 0. L. R. 
 57, 42 S. C. R. 581 ; see alsb Kingston v. Kingston 
 Light Heat and PoWer Co., 3 0. L, R, 637, 5 0. L. 
 R. 348, affirmed by Privy Council, 20 April, 1904; 
 Edinburgh Street Tramway v. Edinburgh, 1894, A. 
 C. 456; Stockton and Middleware Water Board v. 
 Kifkleathem Local Board, 1893, A. C, 444; Re Berlin 
 and Waterloo St. Ry, and Berlin, 19 0. L. R, 57, and 
 see ante, sec. 232, and notes. 
 
 253. Absence of fenders on electric cars; cars funning 
 reversely; criminal law: R. v. Toronto Ry., 10 0. 
 L. R. 26. Application of, and powers of the Board : 
 Ret v. Toronto Ry., 2 0; W; N. 753, 18 0. W. R. 
 104. The " front '' of a car is the end furthest 
 forward Wh6n the caf is in motion. The defend- 
 ants operating a car 1,200 feet with the fender at 
 the back, as so denned, Were liable to the penalty : 
 Toronto v. Toronto Ry. Co., 10 0. L. R. 730. 
 
 259.— (a) t)uty to keep rails flush With street: Fox v. 
 Cornwall St. Ry., 11 0. W. R. 222, 12 0. W. R. 942. 
 Track; ties &nd fail above the level of highway; un- 
 reasonable user : Pow V. West Oxf otd, 11 0. W. 
 R. 115; Harris v. Mills, 3 Ex. B. 271. Liability of 
 railway company for grading: Maedonnell v. B. C. 
 Electric By., 9 B. C. R. 542 (see as to railways, 
 sec. 91 ante). Height of fails ; change in street level : 
 Eddy v. Ottawa City Passenger Ry., 31 IT. C. R. 
 569: Enforcement of contract providing that rails 
 be kept flush; nuisance* abatement: At'ty. Gen. v. 
 Toronto Street By., 14 Gr. 673, 15 Gr. 187. In- 
 dictment: R. V. Toronto St. Ry., 24 U. C. R. 454. 
 Ro&dbed below level: G. T. R. v. Sibbald, 20 S. C. 
 R. 259. 
 
 259.— (c) Liability for cost of new pavement between 
 rails: St. Catharines v. Niagara, etc., Ry. Co., 14 
 0. W. R. 116. 
 
 259. — (d) Repair of streets; liability of municipality 
 and remedy over against street railway: Cafty v. 
 London, 18 0. R. 122; Mead v. Etobicoke, 18 0. 
 
964 
 
 CHAPTER 185. 
 
 E. 438; Stuart v. Metropolitan By., 6 0. W. E. 
 255; Van Cleaf v. Hamilton St. By., 5 0. W. B. 
 278, 628; Marsh v. Hamilton, 3 O. W. B. 525; Pow 
 v. West Oxford, 11 0. W. B. 115. Obligation to keep 
 highways in repair; agreement with street railway 
 company; relief over: Bobertson v. Toronto, 12 0. 
 W. B, 870, 932. Contract with city corporation: 
 repair of roadway outside rails: Be Hamilton and 
 Hamilton St. By. Co., 1 0. W, N. 948, 16 0. W. B. 279. 
 Non-repair of portion of highway occupied by 
 street railway tracks: injury to person: Van Cleaf 
 v. Hamilton St. By., 5 0, W. B. 278, 628 ; Borough of 
 Bathurst v. Macpherson, 4 App. Cas. 256; Bull v. 
 Shoreditch, 19 T. L. B. 64, 20 T. L. B. 254. 
 
 259. — (/) A street railway company is bound to recog- 
 nise the rights and necessities of public travel, and 
 so regulate the speed of their cars that they may 
 be quickly stopped should occasion require it. They 
 have no exclusive right of way at any speed they 
 please: Gosnell v. Toronto Bailway, 21 A. E. 553, 
 24 S. 0. E. 582; see also King v. Toronto By., 8 
 0. W. B. 507. Excessive speed : Brenner v. Toronto 
 By., 13 0. L. E. 423, 15 0. L. E. 195; Wallingford 
 v. Ottawa Electric, 14 0. L. E. 383 ; Hill v. Toronto 
 By., 9 0. W. B. 988 ; Deslongchamps v, Montreal 
 Street By., 37 S. C. B. 685; Taylor v. Ottawa 
 Electric By., 8 0. W. B. 612 ; Furlong v. Hamilton 
 St By., 2 0. W. B. 1007; Livingstone v. Sydney 
 and Glace Bay, 37 N. S. Bep. 336; Mulvaney v. 
 Toronto By., 7 0. W. E. 644, 38 S. C. E. 327; Inglis 
 v. Halifax Electric By., 32 N. S. Eeps. 117, 30 S. C. 
 E. 256; Haight v. Hamilton St. Ey., 29 0. B. 279; 
 Ewing v. Toronto By., 24 0. B. 694; Gosnell v. 
 Toronto By., 21 A. E. 553, 24 S. C. E. 582; Danger 
 v. London St. Ey., 30 0. E. 493; Green v. Toronto 
 Ey., 26 0. B. 319 ; Brown v. London St. By., 2 0. 
 L. E. 53; Dart v. Toronto By., 4 0. W. N. 315, 23 
 0. W. B. 380; McBain v. Toronto By., 1 0. W. N. 
 169, 395; Myers v. Toronto Ey., 4 0. W. N. 1120; 
 Eice v. Toronto Ey., 1 0. W. N. 912, 2 0. W. N. 
 405, 16 0. W. E. 527, 17 0. W. E. 770, 22 0. L. E. 
 446; Jones v. Toronto and York Eadial, 1 0. W. 
 N. 267, 906, 14 0. W. E. 1168, 16 0. W. B. 522, 20 
 0. L. E. 71, 21 0. L. E. 421, 23 0. L. E. 331, 25 
 0. L. B. 158; Brill v. Toronto Bailway, 13 0. W. 
 
CHAPTER 185. 965 
 
 E. 114; . Goodyear v. Toronto and York Radial, 13 
 O. W. E. 648; Huisley v. London St. Ey., 16 0. L. 
 E. 350. Injury to infant; reckless speed: Lott v. 
 Sydney and Glace Bay Ey., 42 S. C. E. 220. Injury 
 to person driving on highway owing to horse becom- 
 ing unmanageable through excessive speed of car: 
 Foreman v. Berlin and Waterloo St. Ey., 11 0. W. 
 E. 756. Injury to person crossing track after alight- 
 ing — excessive speed: Cooper v. London St. By., 
 3 0. W. N. 1277, 22 0, W. E. 87, 4 0. W. N. 623; 
 See ante, sec. 155 and notes; post, sec. 288 notes 
 («)■(/). 
 
 259. — (i) The duty is cast on the company to exercise 
 its privilege to remove the snow in a reasonable and 
 proper way and without negligence : Mader v. Hali- 
 fax Electric, 37 S. C. E. 94. Liability of the com- 
 pany to indemnify the city against damages recov- 
 ered for injury to a person in consequence of being 
 upset by snowbank thrown up by company: Mitchell 
 v. Hamilton, 2 0. L. R. 58 ; Toronto v. Toronto Ey., 
 24 S. C. E. 589. Eights of company to sweep snow 
 and to use electric sweepers : Montreal v. Montreal 
 St. Ey., 1903, A. C. 482 ; Toronto v. Toronto Ey., 16 
 0. L. E. 205. Blocking highway a nuisance : Bell v. 
 Cape Breton Electric, 37 N. S. Eeps. 298. Eemoval 
 of snow from street car tracks: Acton v. London 
 IT. T., 1909, 1 K. B. 68 ; Shea v. Eeid Newfoundland 
 Co., 1908, A. C. 520. 
 
 259. — (o) " The common law doctrine applicable gener- 
 ally to public highways in this country is that the 
 public are entitled not only to a free passage along 
 the travelled part, but to a free passage along any 
 portion not in actual use of another traveller:" Per 
 Boyd, C: Pow v. West Oxford, 11 0. W. E. 115. 
 What is meant by a " crossing " in the ordinary 
 sense. It is not confined to the crossing of an inter- 
 secting street: Wallingford v. Ottawa Electric Ey., 
 14 0. <L. E. 383; Brenner v. Toronto Ey., 13 0. L. R, 
 423. Consideration of "fight of way:" Jones v. 
 Toronto and York Eadial, 23 0. L. E. 331, 25 0. L. 
 E. 158. , Mutual duty of motorman and driver^ of 
 vehicle : Herron v. Toronto Ry., 28 0. L. E. 59. Driv- 
 ing waggon on car tracks when run into by car : Suri 
 v. Port Arthur, 2 0. W. N. 864, 18 0. W. R. 822. Foot 
 
966 CHAPTEB 185. 
 
 passenger crossing street railway tracks; Slingsby 
 v. Toronto Ey., 3 0. W. N. 1161, 21 0. W. E. 980. 
 Passenger after alighting, crossing tracks: Cooper 
 v. London St. Ey., 22 0. W. E. 87, 3 0. W. N. 1277, 
 4 0. W. N. 623. Eeciprocal duties of motqrman and 
 driver of vehicle crossing tracks: 1 D. L. E. 783. 
 See post, sec. 288, notes (e), (/). 
 
 260. See sec. 105 (5) ante. Agreements with municipali- 
 ties : see sees. 231 and 259, ante and notes. Passen- 
 ger fares on electric railway: see ante, sec. 210 and 
 notes. Order can be made specifying what is 
 necessary to be done to constitute a substantial com- 
 pliance with the agreement. But the Court will "not 
 grant specific performance where it cannot oversee 
 the carrying out of the judgment if granted: King- 
 ston v. Kingston Electric Ey., 25 A. E. 462. Specific 
 performance of an agreement by a street railway 
 company with a municipal corporation: Ottawa v. 
 Ottawa Electric, 1 0. L. E. 377. Enforcement of 
 agreement with municipality: Toronto v. Toronto 
 Ey., 16 0. L. E. 205. The Board hag authority to 
 try all cases of breach of agreement, whether it is 
 alleged by a municipal corporation that the railway 
 company are guilty of the breach or vice versa: 
 Toronto Suburban v. Toronto Junction, H 0. W. E. 
 108. Order for repair or renewal of tracks and 
 appeal: Ee West Toronto and Toronto Ey., 25 0. 
 L. E. 9. This section considered : Waterloo v. Berlin, 
 28 0. L. E. 206. 
 
 Examination poe Colottb Blindness. 
 
 264. Where a railway permit an employee to engage in 
 operation of trains without passing tests required 
 by the Eailway Commission they are liable for dam- 
 ages resulting: Jones v. C. P. E., 3 0. W. N. 1404, 
 13 D. L. E. 900 (P. C). See post, sec. 288, note (ft). 
 
 Actions foe Damages. 
 
 265. Damages in general: see cases noted post, sec. 288. 
 Damages for change in grade of streets, closing 
 streets, interference with access: see ante, sec. 91, 
 notes. Compensation where lands are taken, ante, 
 sec, 90, esp. sub-sec. (9) and notes. Damages from 
 fires, sec. 139. Failure to provide accommodation : 
 
CHAPTER 185. 967 
 
 sees. 146, 161. Safety appliances: sec. 99. Non- 
 protection of wires, etc. : sec. 239. Liability of direc- 
 tors: sec. 288. Freight contracts: sec. 146 (lc). Con- 
 tracts limiting liability: sec. 146 (7). Damages 
 through operation of street cars at excessive speed: 
 sec. 259 (/). "Construction and operation of the 
 railway:" Anderson v. C, N- E., 45 S. C E. 355. 
 Damages by " reason of construction:" "West v. 
 Corbett, 47 S. C. E 596. Validity of the corres- 
 ponding section of the Dominion Act, now E. S. C. 
 1906, ch. 37, sec. 306, discussed: see McArthur v. 
 N. P. Junction Ey., 15 0. E. 733, 17 A. E. 86. What 
 ' ' damages ' ' are included in the words of the sec- 
 tion (lb.), (followed: Lumsden v. T. & N. 0., 10 0. W. 
 E. 115, 11 0. W. E. 78). The Government Eailway 
 Commission is entitled to the benefit of this section : 
 Lumsden v. Temiskaming and N. 0., 10 0. W. E. 
 115, 11 0. W. E, 78, 15 0. L. E. 469, The limitation 
 does not apply where a municipality seeks a remedy 
 over against a street railway company for indem- 
 nity for a damage claim : Carty v. London, 18 0. E. 
 122; see also Kelly v. Ottawa St. Ey., 3 A. E. 616. 
 Timber cut for construction; limitation: Lumsden 
 v. T. and N. 0. Ey., 15 0. L. E. 469. This section 
 does not apply to an action for damages for tearing 
 down an overhead farm crossing bridge: Kelly v. 
 G, T. B., 1 0. W. N. 24, 211, 13 0. W. E, 781, 14 0. 
 W. E. 602. Injuries suffered through refusal by a 
 railway company to furnish proper facilities for for- 
 warding freight are not withinthis section: Eobin- 
 sonv. Canadian Northern, 43 S. C E. 387. The 
 limitation applies to injuries sustained " by reason 
 of the railway," and will not include a breach of 
 their common law duty as carriers: Eyckman v. 
 Hamilton, etc., Electric Ey., 10 0. L. E. 419. Limita- 
 tion of action; trespass and nuisance by building 
 embankment six years: Chandiere Machine Co. v. 
 Canada Atlantic, 33 S. C. E. 11. Eight of compen- 
 sation for land taken is not barred until twenty 
 years, and is not barred by the claimant's title to 
 the land having been extinguished: Boss v. G. T. E., 
 10 0, E. 447; Essery v. G. T. E., 21 O. E. 224. See 
 Dig. Ont. Case Law: Limitations of actions and 
 daniages : injury to land (col, 6000) ; injury to persons 
 (col. 6003); lands taken (col, 6005); other cases' 
 (col. 6006). 
 
ggg CHAPTER 185. 
 
 266. Defective machinery; action under Workmen's 
 Compensation Act: Schwoob v. Michigan Central 
 By., 9 O. L. E. 86, 10 0. L. R. 647, 13 0. L. E 548. 
 Negligence may consist in not having light on rear 
 end of train: Boisseau v. C. P. B., 22 Occ. N. ?58, 32 
 S. C. R. 424. Negligence of electric railway in not 
 giving notice by bell : Ford v. Metropolitan By., 4 
 0. L. B. 29. Where ankle of sectionmah fractured 
 by coal from passing train: O'Brien v. M. C. B. B., 
 14 0. W. B. 581. " Vestibule " case: see E. v. Tor- 
 onto By., 21 Occ. N. 120. Fender at front: Toronto 
 v. Toronto By., 10 0. L. B. 730. Defective coupling: 
 Bond v. Toronto By., 22 A. E. 78, 24 S. C. E. 715. 
 Improper construction: Blackmore y. Toronto St. 
 By., 38 U. C. B. 172. Dangerous steps : McCormack 
 v. Sydney and Glace Bay, 37 N. S. Beps. 254. Ab- 
 sence of step: Blackmore v. Toronto St. By., 38 U. 
 C. B. 172. See Be Bailway Amendment Act, 4 Edw. 
 VII. ch. 31 (D) : 36 S. C. E. 136. See also ante, sec. 
 99 and notes, post, sec. 288 note (a); E. S. 0. 1914, 
 ch. 146, notes to sees. 3 (a), (d), (e), 5, 6, 7, 10. 
 
 As to effect of payment of insurance benefit: 
 see Beg. v. Grenier, 30 S. C. E. 42 ; Griffiths v. Earl 
 Dudley, 9 Q. B. D. 357; Lougheed v. Collingwood, 11 
 0. W. B. 329 ; Harris v. G. T. B., 3 0. W. E. 211, 550, 
 567; Farmer v. G. T. E., 23 0. B. 436, 20 A. B. 528, 
 23 S. C. E. 422; see also E. S. O. 1914, ch. 151, sec. 
 4 (2) ; ch. 146, sec. 12. 
 
 Investigation - of. Accidents. 
 
 280. Beports made by the employees of a railway to 
 their superior officers according to its rules con- 
 cerning an accident resulting fatally are not privi- 
 leged from production in an action for damages aris- 
 ing out of the accident if made in the regular course 
 for the purpose of informing the superior officers: 
 Savage v. C. P. B., 15 Man. L. E. 401, 1 W. L. B. 
 44i; see also Stocker v. C. P. B., 5 Q. P. E. 117. But 
 if made " in contemplation of litigation " are privi- 
 leged: Orr v. Toronto By., 9 0. W. E. 30; Collins v. 
 London General Omnibus Co., 68 L. T. 831; Hunter 
 y. G. T. E., 16 P. B. 385. But note present word- 
 ing of section. 
 
CHAPTER 185. 969 
 
 Animals at Laege. 
 
 281. See E. S. C. 37, sec. 294, 9-10 Edw. VII. (D), oh. 50, 
 sec. 8. See notes to sec. 114, ante. Cattle running 
 at large : see E. S. 0. 1914, ch. 247, and notes. The 
 Dominion Act, 9 and 10 Edw. VII., ch. 50, sec. 8, 
 shifts the onus and in effect provides that the rail- 
 way company, to escape liability, must prove that 
 the animal was "at large," and at large through 
 owner's negligence or wilful act or omission. " At 
 the land of its owner: Palo v. Can. Northern, 5 O. 
 W. N. 176, 25 0. W. E. 165; McLeod v. Can. North- 
 ern, 12 0. W. E. 1279. Animals on track ; escape 
 from adjoining field: meaning of "at large:" 
 McLeod v. Canadian Northern, 12 0. W. E. 1279, 
 18 0. L. E. 616. Escape of animals on to track from 
 adjoining enclosure: Yeates v. G. T. E., 9 0. W. E. 
 423. The plaintiff's cattle running at large under 
 permission of a local by-law got on Crown lands and 
 thence on the railway and were killed; held that the 
 railway company were liable: Pensom v. C. P. E., 
 24 Occ. N. 87, 391, 70. !L. E. 254, 8 0. L. E. 688. 
 Sheep escaping to adjoining farm and thence to 
 railway track: Higgins v. C. P. E., 12 0. W. E. 1030, 
 18 0. L. E. 12. Animals killed on track; negligence 
 of owner ; fences : Armour v. G. T. E., 12 0. W. E. 
 927, 13 0. W. E. 264. There is no common law lia- 
 bility to fence, it is purely statutory whether in re- 
 spect of the highway or in respect of the adjoining 
 properties : Gunning v. South Western Traction, 10 
 0. W. E. 285; Westbourne Cattle Co. v. Manitoba 
 and North Western By., 6 Man. L. E. 553. Cattle 
 killed at highway intersection ; failure to give warn- 
 ing of approach of train : Sexton v. G. T. E., 13 0. 
 W. E. 566 ; and see sec. 155, ante. See Bacon v. G. 
 T. E., 12 0. L. E. 196; Lebu v. G. T. E., 12 0. L. E. 
 590; Oarruthers v. C. P. E., 3 W. L. B. 455, 4 W. L. 
 E. 441 ; Eggleston v. C. P. E., 36 S. C. E. 641 ; Daigle 
 v. Temiscouata By., 37 N. B. E. 219; Lezotte v. 
 Temiscouata, 37 N. B. E. 397; Schellenberg v. C. 
 P. E., 3 W. L. E. 457; Tabb v. G. T. E., 8 0. L. E. 
 203; Perrault v. G. T. E., 36 S. C. E. 671; Nixon v. 
 G. T. B., 23 0. E. 124. The owner of land adjoining 
 a railway who agrees to keep up gates cannot claim 
 for defect in such gates and his tenant is in no bet- 
 ter position: Yeates v. G. T. E., i4 0. L. E. 63; Beck 
 
970 CHAPTER 185. 
 
 v. C. P. E., 10 0. W. R. 644. Crown lands : Fensom 
 v. C- P. R., 8 0. L. R. 688. See as to duties regard- 
 ing fences, gates and cattle guards: Dig. Ont. Cage 
 Law, col. 5878. Running along or across highways: 
 col. 5881. Injuries, to animals at crossings : col, 5898. 
 By want of or defects in fences : col. 5890. By want 
 of or defects in gates and cattle guards: col. 5906. 
 
 281. — (2) A railway is under no obligation to maintain 
 a fence on each side of a culvert across a water 
 course and where cattle strayed through the culvert, 
 thence to the highway, and thence to the railway, 
 the company are not liable for injury to them: 
 James v. G. T. R., 31 O. R. 672, 1 0, l>- R- 127, 31 S. 
 C. R. 420. On the proper construction of this sec- 
 tion, while the company are exempt from liability 
 if cattle are at large contrary to it's provisions, yet 
 if they get out by reason of failure of the railway to 
 comply with statutory requirements, such as fencing, 
 guards, etc., and are killed or injured at some other 
 point than the intersection, the company are liable 
 unless they can shew negligence in the owner. The 
 mere fact that they were at large and not in charge 
 of a competent person is not sufficient: Arthur v. 
 Central Ontario, 11 0. L, R. 537. Cattle " at large 
 upon the highway : ' ' Carruthers v. C. P, R., 39 S". C. 
 R. 251. Cattle at large ; a boy of ten may be a " com- 
 petent person:" Sexton v. G. T. R r , 13 0. W. R. 566, 
 18 0. L. R. 202, 
 
 281- — (6) " Right of way owned by the company;" as 
 to what is meant by " along " a highway; see Gun- 
 ning v. South Western Traction Co., 10 0. W. R. 
 285 ; and see sec. 228, et seq. Animal killed on track 
 of electric railway: Gunning v. South West Trac- 
 tion Co., 10 0. W. R. 285. Electric railway as nuis- 
 ance; injury to animals: Joyce v. Halifax St. Ry., 
 22 S. C. R. 258. 
 
 282. See R. S. C, ch. 37, sec. 295. See notes to sees. 114, 
 281, ante. Duty to keep gates closed: Woodburn 
 Milling Co. v. G. T. R., 14 0. W. R. 553, 1 0. W. N. 
 10, 19 0. L. R. 276. 
 
 Offences and Penalties. 
 284. See R. S. C, ch. 37, sec. 407. 
 
CHAPTER 185. 971 
 
 285. Long user of the permanent way in passing to and 
 from the highway by passengers taking and leaving 
 the company's trains does not amount to leave and 
 license, and an action will not lie at the suit of a per- 
 son injured when walking on the track under such 
 circumstances: Anderson v. G. T. E., 27 0. B. 441, 
 24 A. E. 672, 28 S. C. E. 541. Boy of eight, tres- 
 passing on unfenced premises of railway where he 
 had no business or invitation; no action maintain- 
 able for his death: Newell v. C. P. E., 12 0. L. B- 21. 
 Evidence may shew that the company so acquiesced 
 in trespass as to be guilty of negligence and liable 
 for resulting accident : Cooke v. Midland G. W. By., 
 1909, A. C. 229. Use of excessive force by con- 
 ductor in ejecting from moving train person steal- 
 ing ride : Brown v. C. P. B., 13 0. W. B. 879, 18 0. 
 W. E. 409, 2 0. W. N. 773. Licensee or trespasser ; 
 injury to person riding on train " for a ' lift:' " Bar- 
 nett v. G. T. E, 17 0. W. B. 67, 1 0. W. N. 491, 2 0. 
 W. N. 102, 20 0. L. B. 390, 22 0. L. E. 84. Where a 
 person is on a railway track under circumstances in 
 which he cannot be looked on as a trespasser, the 
 railway company is bound to use reasonable care to- 
 wards him; whether he is entitled to the benefit of 
 the provisions of the Eailway Act requiring warn- 
 ing by bell or whistle on approaching a highway 
 maybe questioned: Anderson v. G. T. B., 27 O. B. 
 441, 24 A. B. 672. Question whether plaintiff was 
 a trespasser : Carruthers v. T. & T. Badial, 3 0. W. N. 
 14, 19 O. W, B. 983. Plaintiff struck by engine while 
 pn defendant's tracks: Fewings v. G. T- B., 14 0. 
 W. B. 586, 1 0. W. N. 1. Eailway not under obli- 
 gation to look out for trespassers on its tracks ; neg- 
 ligence must be shewn: Bondy v. Sandwich, etc., By., 
 2 0. W. N. 1476, 23 0. L. B., 19 0. W. B. 860. Duty 
 to licensee and trespasser: see Annotations, 1 D. L. 
 E. 240, 6 P. L, E. 76. 
 
 288. — (a) Damages arising out of defective apparatus: 
 see ante sees. 99, 266 and notes. Latent defect in 
 car wheel ; derailment : Gaiser v. Niagara, etc., By., 
 14 0. W. E. 42, 19 0. L. E. 31. Breaking rail : Galusha 
 T. G. T. E., 1 0. W. N. 559, 15 0. W. B- 595. Derail- 
 ment of train: Ferguson v. C. P. B., 11 0. "W. E. 470, 
 12 0, W. E. 943. Dangerous condition of tracks: Ee 
 
972 CHAPTER 185. 
 
 "West Toronto and Toronto Ry., 3 0. W. N. 181. De- 
 fective controller ; explosion : Fleming v. Toronto Ry., 
 4 0. W. N. 323, 27 0. L. R. 332, 47 S. C. R. 612. Dan- 
 gerous condition of steps : McCormack v. Sydney and 
 Glace Bay, 37 N. S. Reps. 254. Improper construction 
 of car: Blackmore v. Toronto St. Ry,, 38 U. C. R. 
 172. Defect in plant ; coupling : Bond v. Toronto Ry. 
 22 A. R. 78, 24 S. C. R. 715. 
 
 (6) Passengers injured getting on and off cars: see 
 e.g. Passenger alighting; door of coach closed: Mc- 
 Dougall v. G. T. R., 4 0. W. N. 363, 23 0. W. R. 364, 
 27 0. L. R. 369. Defective step ; injury to passenger 
 alighting: Hoskin v. M. C. R. R., 1 0. W..N. 503, 2 
 0. W. N. 195, 17 0. W. R. 331. Injury to passenger 
 alighting from cars : Wallingf ord v. Ottawa Electric 
 Ry., 14 0. L. R. 383; Bell v. Winnipeg Electric Ry., 
 15 Man. L. R. 338, 37 S. C. R. 515; Gallinger v. To- 
 ronto Ry., 8 0. L. R. 698; Coolidge v. Toronto Ry., 
 9 0. W. R. 222, 623; Walker v. C. P. R., 1 0. W. N. 
 663, 15 0. W. R. 833 ; Tidy v. Toronto Ry., 12 0. W. R. 
 994. Injury to passenger alighting from car; negli- 
 gence ; defective system, car starting too soon : Haigh 
 v. Toronto Ry., 16 0. W. R. 828, 21 0. L. R. 601. Pre- 
 mature starting car : Letcher v. Toronto Ry., 1 0. W. 
 N. 59, 273, 14 0. W. R. 1240, 15 0. W. R. 65; Burman 
 v. Ottawa Electric, 21 0. L. R. 446, 1 0. W. N. 941, 15 
 0. W. R. 494. Passenger alighting; jerk of car: Mazza 
 v. Port Arthur, 14 0. W. R. 1108. Where a street car 
 door is opened mechanically by the motorman, it is an 
 invitation to the passenger to alight: Reeves v. To- 
 ronto Ry., 25 0. W. R. 91. Letting down the running 
 board on an electric car and opening the door is an 
 invitation to alight, and the railway is liable for dam- 
 ages ensuing through defect in the running board: 
 Jones v. Hamilton Radial, 5 0. W. N. 282, 25 0. W. R. 
 267. Injury to passenger attempting to board car: 
 Forwood v. Toronto, 22 0. R. 351 ; Dawdy v. Ham- 
 ilton, etc., Ry., 5 0. L. R. 92. ' Boarding moving train; 
 injury ; duty to licensee : Perdue v. C. P. R., 1 0. W. 
 N. 665, 15 0. W. R. 836. 
 
 (c) Persons projecting beyond car. Liability of om- 
 nibus company where passenger projects his arm and 
 is injured : Simon v. London General Omnibus Co., 23 
 T. L. R. 463. Body of brakeman protruding beyond 
 
CHAPTER 185. 973 
 
 car: Leitch v. Pere Marquette, 1 0. W. N. 562, In- 
 jury from striking post ; passenger leaning out from 
 car: Simpson v. T. & Y. Eadial, 10 0. W. E. 33, 16 
 0, L. E. 31. 
 
 (d) Injuries to passengers standing on platform : see 
 sec. 149, Notes. 
 
 (e) Injuries to persons crossing street railway 
 tracks: see notes to sec. 259 (/) (excessive speed), 
 and (o) (right of way). Liability of company 
 to person crossing in front of car which omitted stop- 
 ping at its usual stopping place : Tinsley v. Toronto 
 By,, 10 0. W. B. 1077, 12 0. W. E. 389, 15 0. L. E. 488, 
 17 0. L. E. 74. Injury to person crossing track : Kins- 
 ley v. London St. Ey., 11 0. W.E. 743 ; Milligan v. To- 
 ronto Ey., 11 0. W. E. 966, 12 0. W. E. 967; O'Leary 
 v. Ottawa Electric, 12 0. W. E. 469; Hill v. Toronto 
 Ey., 9 0. W. E. 988 ; King v. Toronto Ey., 8 0. W. E. 
 507 ; Deslongchamps v. Montreal St. Ey., Q. E. 14 K. 
 B. 355, 37 S. C. E. 685; Mulvanev v. Toronto Ey., 7 
 0. W. E. 644; Taylor v. Ottawa Electric, 8 0. W. E. 
 612; Mitchell v. Toronto Ey., 5 0. W. E. 128, 38 S. 0. 
 E. 327 ; Furlong v. Hamilton St. Ey., 2 0. W. E. 1007 ; 
 Livingston v.. Sydney and Glace Bay, 37 N, S. Eeps. 
 336 ; Gosnell v. Toronto Ey., 4 0. W. E. 522 ; Gallinger 
 v. Toronto By., 8 0. L. E. 698 ; Daldry v. Toronto Ey., 
 6 0. W. E. 62; Hackett v. Toronto Ey., 10 0. W. E. 
 25 ; Brown v. London St. Ey., 2 0. L. E. 53. Injury to 
 person working on track : Green v. Toronto Eailway, 
 26 0. E. 319; Moran v. Hamilton St. Ey., 24 S. C. E. 
 717; Small v. Toronto Ey., 6 O. W. E. 97. Injury to 
 pedestrian: Bicketts v. Sydney and Glace Bay Ey., 37 
 N. S. Eeps. 270. Infirm person r.Haight v. Hamilton 
 St. Ey., 29 0. E. 279. Crossing in front of car : King 
 v. Toronto Ey., 8 0. W. E. 507, in appeal (Privy 
 Council) : Toronto Ey. v. King, 12 0: W. E. 40. Lia- 
 bility of company for injury causing death of child 
 crossing track: McKeown v. Toronto Ey., 12 0. W. E. 
 1297. As to warning and "Look and Listen" rule 
 at highway crossings : see ante, sec. 155, and notes. 
 
 (/) Vehicles on the tracks : see also notes to sec. 259 
 ante. Vehicles crossing in front of car : Milligan v. 
 Toronto Ey., 17 0. L. E. 530. Collision with vehicle : 
 Cohen v. Hamilton Street Ey., 4 0. W. E. 19; Gosnell 
 
974 CHAPTER 185. 
 
 v. Toronto By., 24 S. C. E. 582; Snell v. Toronto Ey., 
 27 A. E. 151; Bell V. Cape Breton Electric, 37 N. S. 
 Eeps. 298; O'Hearn v. Port Arthur, 4 0. L. B. 209. 
 Collision with, bicyclist : Preston v. Toronto By., 11 
 0. L. E. 56, 13 0. L. B. 69; Eowan v. Toronto Ey., 29 
 S. C. B. 717; Heath v. Hamilton St. By., 8 0. W. B. 
 937; Haverstick v. Emory (motor car), 8 O. W. E. 
 528. Frightening horses : Myers v. Brantf ord Street 
 Ey., 27 A. E. 513 ; Eobinson v. Toronto By,, 2 0. L. B. 
 18; Drewitt v. Hamilton, etc., By., 9 0. W. B. 427. 
 
 (g) The operation of trains: see ante sees. 155<-6-7-8 
 and notes. Shunting in station yafd: Collier v. 
 Michigan Central, 27 A. B. 630; Burlerv. G. T. B., 
 10 O. Ww E. 857 ; London and Western Trusts v. Lake 
 Erie and Detroit Ey., 12 0. L. E. 28 j Phillips v. G. T. 
 E,, 1 O. L. E. 28; Casey v. C. P. B., 15 0. B. 574. 
 Shunting at highway crossing : Hollinger v. C. P. B., 
 20 A. E. 244; Henderson v. C. A. By., 29 8, C. B. 632. 
 Injury to and death of yard foreman through, negli- 
 gence of engine driver in shunting triaitt in yard ; de- 
 fective system: McDonald v. G, T. B., 14 0. W. E. 
 303. 
 
 (h) Injuries to animals i see ante sees. 281 j 282j notes. 
 
 (i) Duties to trespassers, etc 1 . : see ante sec. 285 (e) 
 and notes. 
 
 (j) Scope of servants' authortty-^GOAdUctoti Bawdy 
 v. Hamilton, etc., By., 1 0. W. B. 304, 781. Motor- 
 man: Coll v. Toronto By., 25 A. B. 55. Watchman: 
 Hammond v. G. T. B., 9 0. L. E. 64. Foreman: For- 
 sythe v. C. P. E., 10 0. L. E. 73. Officer in charge: 
 Oldwright v. Hamilton Cataract Pdwer Co\, 3 0. W. 
 B. 16, 397.. Constable; watchman: Thdmsts v. C. P. 
 E., 14 0. L. B. 55. Injuries to persion fallittg from 
 car in endeavor to avoid kick aimed by conductor: 
 Wills v. Port Arthur, 12 0. W. B. 496; and see ante 
 notes to sees. 222, 226. 
 
 (&) Defective system; common employment, etc.: 
 see notes to E. S. 0. 1914, ch. 146, sec. 3 (a); ch. 
 151; see also sees. 263-4 ante, and as to rules, 
 sees. 163, 165, and notes. Liability for death 
 of woTkman in yard from defective systerii Under 
 
CHAPTER 185. 975 
 
 clause (a), see. 3, B. 8. 0. 1914, ch. 146: Giovinazzo 
 v. C. P. B., 19 O. L. E. 325. Injury to brake- 
 man; defective system; foreign car: Stone v. 
 C. P. E., 3 0. W. N. 973. Breacb of statutory duty 
 in employment of incompetent signalman resulting in 
 death of fireman on snow plough; common employ- 
 ment no defence: Jones v. C. P. E., 22 O. W. E. 439, 
 24 0. W. E. 917 (P.O.) i see also Johnson v. Lindsay, 
 1891, A. O. 382; Groves v. Wimbotne, 1898, 2 Q. B. 
 402 1 Butler v. Fife Coal Co., 1912, A. C. 149 ; David v. 
 Britannic Metfthyf Coal Co., 1909, 2 K. B. 146. In- 
 jury to signalman; servant of two railways : Pattison 
 v. C. P. B< and C. N. E., 20 O. W. E. 18, 3 0. W. N. 
 45. Defective system; negligence of fellow servant: 
 Fralieh v. G. T. B., 1 O. W. N. 309, 15 0. W. B. 55, 
 43 8. C. E. 494. 
 
 (I) Negligence 'and contributory negligence. Acts 
 Of negligence, see ufldef various heads noted. 
 Failure of motorman to apply Drakes and trip 
 fender: Clafrmont v. Ottawa Electric, 17 0. W. 
 B.- 52, 2 O. W. N. 108. Negligence; responsi- 
 bility of conductor: Smith v. G. T. E., 20 O. W. 
 B, 654, 3 0. W. N. 659, 21 O. W. E. 236. Negligence 
 of fcreffi&n: Lennox v. G. T. E., 2 0. W. N. 1078, 19 
 O. W. E. 160. Head-on collision as evidence of neg- 
 ligence: Londofi, etc., Trusts Co. v, G. T. B., 2 O. W. 
 N. 225, if 0. W. E. 413, O. L. E. Negligence; unau- 
 thorized signal to start car: Saigh v, Toronto By., 1 
 0. W* N. 1124. Injafies through negligent Operation 
 0f street e&r; damage: Moriii V. Ottawa Electric, 13 
 0. W. B. 850. Negligence ; accident in yard ; insuffi- 
 cient men: daniy v. 0. P. B, 1 O. W. N. 661. Switch 
 left open j injury id servant : Warren v. Maedonnell, 
 12 0. W. E. 493. Negligence in use of dangerous ma- 
 terials? explosives: Makins v. Piggott & Inglis, 29 
 S. C. E. 188; MoShane v. T i( H, & B, By., 31 0. E. 
 185. Passenger alighting from train; negligence of 
 railway keeping doors closed : McDougall v. G. T. E., 
 4 0. W. N. 363, 23 0. W. B. 364, 27 6. L. E. 369. The 
 standard of care required in a carrier of passengers : 
 it is sufficient if the carrier adopt the best known 
 apparatus, kept in perfect order, and worked with- 
 out negligence by the servants he employed: New- 
 bury v. Bristol Tramways, 29 T. L. E. 177. 
 
976 CHAPTER 185. 
 
 Particulars of negligence: Bachar v. G. T. R., 14 
 0. W. E. 548; Tracey v. Toronto Ey., 13 0. W. R. 
 15. Negligence ; evidence : Brennan v. G. T. R., 1 0. 
 "W. N. 365, 15 0. W. B. 146. Beasonable inference of 
 negligence: Griffith v. G. T. B., 17 0. W. E., 2 0. W. 
 N. 252, 19 0. W, E., 2 0, W. N. 1059, 21 0. W. E. 
 305. Servant killed while walking on tracks; ulti- 
 mate negligence: McEachren v. G. T. B., 21 0. W. B. 
 187, 3 0. W. N. 628. " Stop, look and listen "—nature 
 of the so-called rule to be observed at railway cross- 
 ings considered : Misener v. Wabash By., 12 Q. L. E. 
 71. Whether omission to observe such precaution 
 amounts to contributory negligence is a question for 
 the jury: Peart v. G. T. E., 10 A. E. 191, 10 0. L. E. 
 753; Vallee v. G. T. E., 1 0. L. E. 224; and see notes 
 to sec. 155. Accident; crossing street; contributory 
 negligence; cases reviewed: Tinsley v. Toronto Ey., 
 15 0. L. E. 438, 17 0. L. E. 74 j see also Preston v. 
 Toronto Ey., 13 0. L. B. 369. Contributory negli- 
 gence: see Bowan v. Toronto By., 29 S. C. B. 717; 
 O'Hearn v. Port Arthur, 4 0. L. B. 209; Preston v. 
 Toronto By., 11 0. L. E. 56, 13 0. L. E. 369; Danger 
 v. London St. By., 30 0. B. 593; Brenner v. Toronto 
 By., 13 0. L. B. 423, 15 0. L. E. 195, . Contributory 
 negligence; "ultimate" negligence; see Eadley v. 
 London N. W. By., 1 App. Cas. 754, at p. 759; Scott 
 v. Dublin and Wicklow By., 11 Ir. C. L. E. 377; Tuff 
 v. Warman, 5 C. B. N. S., at p. 584; Davis v. Mann, 
 10 M. & W. 546; Brown v. London Street Ey., 2 0. L. 
 E. 53, 31 S. C. B. 642; Beynolds v. Tilling, 19 Times 
 L. E. 539, 20 Times L. B. 57 ; Brenner v. Toronto By., 
 13 0. L. E. 423, and see 15 0, L. B. 195; see Cases 
 Dig. Ont. Case Law, col. 5920. Could the plaintiff by 
 exercising reasonable care have avoided the accident? 
 "He might have" is not a real answer: Badgeley v. 
 G. T. E., 14 0. W. E. 425. Contributory negligence 
 of children injured on highway through negligent 
 driving : see Annotation 9 D. L. B. 522. 
 
 (m) Damages (in general). Computation of dam- 
 ages: see G. T. B. v. Jennings, 13 App. Cas. 800. 
 "Pull amount of damages sustained" is recoverable 
 and the liability is not confined within the limits of 
 B. S. 0., ch. 160: Curran v. G. T. B. 25 A. B. 407; see 
 G. T. E. v. Washington, 1899, A. C. 275, and see 108 
 ante and notes. " Person injured;" includes em- 
 ployee: Lemay v. C. P. E., 17 A. E. 293; see E. S. C. 
 
CHAPTER 185. 977 
 
 1906, eh. 37, sec. 427. Measure of damages in case of 
 death — (1) Of aged person: see Dewey v. Hamilton 
 and Dundas By. Co., 9 0. W. E. 511; (2) Labourer, 
 workman: Stephens v. Toronto By., 11 0. L. B. 19; 
 Atcheson v. G. T. E., 1 0. L. B. 168; (3) Skilled work- 
 man: Stuart v. Davidson, 14 Man. L. B. 74, 34 S. C. 
 B. 215; (4) Child: Eenwick v. Gait, etc., By., 12 0. L. 
 E. 35; Bombough v. Baleh, 27 A. B. 32; McKeown v. 
 Toronto Eailway, 12 0. W. E, 1297, 14 0. W. B. 572, 
 1 0. W. N. 3; and see notes to B. S. 0. 1914, ch. 151, 
 sec. 4. Bight to have deducted from damages the 
 amount of accident insurance carried : Walker v. "Wa- 
 bash By., 13 0. W. B. 250, at 257 ; and see notes to 
 E. S. 0. 1914, ch. 151, sec. 4 (2), and to E. S. 0. 1914, 
 ch. 146, sec. 4 (2); see also notes to sec. 266 ante. 
 Eailway provident insurance as a defence to damage 
 actions : see Article 41, Can. Law Journ., p. 465. Ex- 
 pulsion from car ; resulting chill and illness : Grinsted 
 v. Toronto Ey., 24 0. E. 683, 21 A. E. 578, 24 S. C. E. 
 570. Expulsion for misconduct: Davis, v. Ottawa 
 Electric, 28 O. E. 654. Damages for mental shock: 
 Geiger v. G. T. E., 10 0. L. E. 511 ; Henderson v. Can- 
 ada Atlantic, 25 A. B. 437 ; Victorian Commissioners 
 v. Coultas, 13 App. Cas. 222. Damages for physical 
 shock : Toms v, Toronto By., 22. 0. L. E. 204. 
 
 (n) Actions on freight contracts: see sec. 146 (lc), 
 notes: Action when railway has sought to limit its 
 liability: see sec. 146 (7). 
 
 (o) Operation of street cars at excessive speed: see 
 sec. 259 (/), 
 
 (p) Damages for failure to provide accommodation: 
 see sees. 146, 161. Safety appliances: see sec. 99. 
 Non-protection of wires, etc. : see sec. 239. 
 
 (g) Damages from fires: see sec. 139 and notes. 
 
 (r) Compensation where lands are taken: see sec. 90 
 and especially sec. 90 (9) and notes. 
 
 (s) Damages for change in grade of streets; closing 
 streets; interference with access, etc.: see sec. 91, 
 notes. 
 
 S.A.— 62 
 
978 CHAPTER 185. 
 
 (t) Limitations: see sec. 265, ante, and notes. 
 
 (u) Company's rules and their breach: see sec. 163, 
 notes. 
 
 (v) Matters at stations: see sec. 161, notes. 
 
 289. It is good cause for summary dismissal by a rail- 
 way of one of its employees that he was proved while 
 on duty to have drunk intoxicating liquor with other 
 employees: Marshall v. Central Ontario, 28 0. E. 
 241. This section is restricted to railways within 
 the legislative authority of the province. The cor- 
 responding seetion (414) of the Dominion Act is 
 somewhat different, and in a conviction the specific 
 Act under which the conviction is made must be re- 
 ferred to: E. v. Treanor, 12 0. W. E. 1175, 18 0. L. 
 E. 194. 
 
 292. See E. S. C, 1906 ch. 37, sec. 426; also Code E. S. 
 C. 1906, ch. 146, sec. 517-521. 
 
 295. Enforcing orders of the board: see E. v, G. T. E. 
 and C. P. E., 17 0. L. E. 601. As to liability of com- 
 pany in damages for act of servant within the scope 
 of his employment : see sec. 288, notes. Criminal re- 
 sponsibility : see B. v. Hays, 9 0. W. E. 488, 14 0. L. 
 E. 201; E. v. Toronto Eailway, 10 0. L. E. 26. 
 
 Conveyance op Land. 
 
 302. Bar of dower: Chewett v. Great Western By., 26 
 C. P. 118< Conveyances, see notes to sec. 90 ante. 
 
CHAPTER 186. 979 
 
 CHAPTER 186. 
 
 The Ontario Railway and Municipal Boakd Act. 
 
 The Ontario Railway and Municipal Board, Rules 
 of Practice and Procedure; Regulations and Speci- 
 fications, and Forms; The Ontario Railway and 
 Municipal Board, Standard Specifications for 
 Bridges, Viaducts, Trestles and other Structures; 
 Annual Reports of the Ontario Raitway and Muni- 
 cipal Board, for 1906 and following years. 
 
 7. Regularity of hearing and jurisdiction of Board: Re 
 Brussels and McKillop, 26 0. L. B. 29. 
 
 24. Jurisdiction of Board and of Court: Waterloo v. 
 Berlin, 23 0. W. R. 337, 4 0- W. N. 256, 799, 28 0. 
 L. R„ 206. The jurisdiction of the Board is not ex- 
 clusive so as to prevent a railway being indicted as 
 a nuisance : R. v. Toronto Ry., 2 0. W. N. 753, 18 0. 
 W. R. 104 23 O. L. R. 188. Jurisdiction : see also G. 
 T. R. V. Toronto, 42 S. C. R. 613. Powers of Board: 
 Re Port Arthur Electric, 13 0. W. R. 811, 18 0. L. R. 
 376. Neglect of duty under Act, regulation, order or 
 agreement: jurisdiction of Board: Toronto Subur- 
 ban By. v. Toronto Junction, 11 0. W. R. 108. Order 
 electric railway to lay trackage : see as to interpreta- 
 tion of 8 Edw. VII. ch. 112, sec. 1 : Toronto v. Toronto 
 Ry., 1910, A. C. 312. Jurisdiction of Court to order 
 water supply to district annexed by order of the 
 Board: Malone v. Hamilton, 4 0. W. N. 755, 23 0. 
 W. R. 956. Admissibility qf proceedings before the 
 Board in evidence in another action; order of the 
 Board : C. P. R. v. G. T. R., 9 0. W> R. 158, at p. 164. 
 Pending actions : Re Berlin and B. & W. St. Ry., 8 
 0. W. R. 284, 9 0. W. R. 412, 
 
 22. Exclusive jurisdiction of Board: Toronto Suburban 
 Ry. v. Toronto Junction, 11 0. W. R. 108. The On- 
 tario R. & M. Board is not a criminal Court. The 
 Supreme Court must deal with violators of the code : 
 R. v. Toronto Ry., 18 0. W. R. 104, 2 0. W. N. 753, 23 
 0. L. R. 186. 
 
980 CHAPTER 187. 
 
 26. See R. S. 0. 1914, ch. 185, sec. 105 (5), notes. 
 
 27. Enforcement of orders of Railway Commission: see 
 R. v. G. T. R. and C. P. R., 17 0. L. R. 601. 
 
 45. — (3) Appeal on question of law: Toronto Ry. v. Tor- 
 onto, 14 0. W. R. 578, 19 0. L. R. 396. 
 
 48. — (1) Appeal from order of Railway Board. Effect 
 of city of Toronto v. Toronto Ry., 1907, A. C. 315, 
 and 8 Edw. VIL ch. 112, sec. 1 : Re Toronto Ry. v. 
 Toronto, 14 0. W. R. 578, 19 O. L. R. 397; and see 
 Toronto v. Toronto Ry., 1910, A. C. 312. Appeal to 
 Appellate Division and to P. C. : T. & Y. Radial v. 
 Toronto, 25 0. W. R. 315. Jurisdiction to entertain 
 appeal: Re Toronto and Toronto Ry., 11 0. W. R. 
 275. Appeal: Re Sandwich East and the Windsor 
 and Tecumseh Electric, 16 0. L. R. 641; West Tor- 
 onto v. Toronto Ry., 3 0. W. N. 181, 20 0. W. R. 271, 
 25 0. L. R. 9. Time within which to appeal : see G. 
 T. R. v. Ontario Dept. of Agriculture, 42 S. 0. R. 
 557. Functions of Supreme Court: N. Y. & O. Ry. 
 v. Cornwall, 5 0. W- N. 304. Payment of $250 into 
 Court to answer costs: Re Coniagas and Cohalt, 15 
 0. L. R. 386. 
 
 48.— (8) See R. v. Toronto Ry., 2 0. W. N. 753, 18 0. W. 
 R. 104, 23 0. L. R. 186, noted sec 22, ante. See also 
 Toronto Suburban Ry. v. Toronto Junction, 11 0. 
 W. R. 108. 
 
 CHAPTER 187. 
 
 The Hydro-Electric Railway Act. 
 
 12. In line 1 for " 68 " read " 69:" 4 Geo. V. ch. 2, 
 Schedule (32). 
 
CHAPTERS 188, 189. 9§1 
 
 CHAPTER 188. 
 
 The Ontario Telephone Act. 
 
 See Telephone Systems : The Ontario Telephone Act, 
 Municipal Ownership of Sural Telephone Systems: 
 Francis Dagger (See Report of 0. R. and M. Board, 
 1911). 
 
 8. By-law establishing telephone system; signature: Re 
 Robertson v. Colborne, 4 0. W. N. 274, 23 0. W. R. 
 325. The erection of poles on highway under statu- 
 tory authority relieves from liability under the doc- 
 trine of Fletcher v. Rylands, unless negligence is 
 shewn : Roberts v. Bell Telephone, 4 0. W. N. 1099, 
 24 0. W. R. 428. 
 
 17. Collection from subscribers of additional cost im- 
 posed by law: Re Brussels and McKillop, 3 0. W. 
 N. 781, 21 0. W. R. 628, 26 0. L. R. 29. 
 
 33. Application to Ontario Railway Board : Re Brussels 
 
 and McKillop, 3 0. W. N. 781, 21 0. W. R. 628, 26 0. 
 L. R. 29. 
 
 34. Agreement approved by Board; jurisdiction: Re 
 Brussels and McKillop, 26 0. L. R. 29. 
 
 35. Varying agreement indirectly: Re Brussels and 
 McKillop, 26 0. L. R, 29. 
 
 CHAPTER 189. 
 The Public Utilities Cobpobations Act. 
 
9g2 CHAPTERS 190, 191. 
 
 CHAPTEE 190. 
 
 The Guarantee Companies Securities Act. 
 
 6. See e.g. R. S. 0. 1914, ch. 68, sec. 11. Bond of foreign 
 guarantee corporation: Boyle v. Rothschild, 12 0. 
 W. R. 104. Bond of guarantee company : Aldrich v. 
 British Griffin (1904), 2 K. B. 850. Form of bond, 
 cf. : Hohnested & Langton Forms, No. 1297, p. 758. 
 
 8. The Lieutenant-Governor by Order in Council has 
 approved of the following companies: Dominion of 
 Canada Guarantee and Accident Insurance Com- 
 pany; Guarantee Company of North America; 
 London Guarantee and Accident Company, Limited; 
 Employers' Liability Assurance Corporation, 
 Limited ; United States Fidelity and Guaranty Com- 
 pany; Imperial Guarantee and Accident Company^ 
 London and Lancashire Guarantee and Accident 
 Company of Canada ; The Maryland Casualty Com- 
 pany; National Surety Company; Railway Passen- 
 gers Assurance Company of London, England; The 
 Guardian Accident and Guarantee Company of 
 Montreal; Ocean Accident and Guarantee Corpora- 
 tion, Limited; Canadian Surety Company. See R. 
 S. 0. 1914, ch. 23, sec. 11, ch. 56, sec. 69. 
 
 CHAPTER 191. 
 The Cheese and Butter Exchanges Act. 
 
CHAPTER 192. ggg 
 
 CHAPTER 192. 
 
 The Municipal Act. 
 
 Refer to Biggar, Municipal Manual; Denton, Muni- 
 cipal Negligence respecting Highways; Dillon, Law 
 '''' of Municipal Corporations; Abbott, Municipal Cor- 
 porations ; Williams, Liability of Municipal Corpora- 
 tions for Tort. 
 
 Pbeliminaby. 
 
 2.— .(f) "Lands:" see Williams v. Cornwall, 32 0. R. 
 255. " Real property :" see provision of Interpre- 
 tation Act extending the interpretation section of 
 this Act to all enactments relating 'to municipalities. 
 See also "land," " real property," as defined by 
 R» S. 0. 1914, ch. 195, sec. 2 (%). As to easements: 
 see Belleville Bridge Co. v. Ameliasburg, 10 0. W. 
 R. 988,.15 0. L. R. 174. Essery v. Bell, 13 0. W. R. 
 395. 
 
 6. Meaning of ' ' acquire. ' ' Wider than in 3 Edw. VII., 
 ch. 19, sec. 576 (3) : Re Boyle and Toronto, 5 0. W. 
 N. 97, 25 0. W. R. 67. 
 
 10. The Ontario municipality is wholly a creature of the 
 Legislature, without abstract rights. The Legisla- 
 ture can vary its contracts and interfere with rights 
 in litigation: Smith v. London, 13 0. W. R. 1148. 
 Consideration of powers of municipal corporations 
 as a branch of civil government to transact business 
 within the limit of their powers without interference 
 by the Courts: Norfolk v. Roberts, 28 0. L. R. 593. 
 The Municipal Council is the voice of the munici- 
 pality: Stoddart v. Owen Sound, 23 0. W. R. 165, 4 
 0, W. N. 171. The exceptions to the rule that a 
 municipal corporation can only act by its seal are 
 in regard to (a) insignificant matters of daily oc- 
 currence or matters of convenience amounting al- 
 most to necessity, (b) where the consideration has 
 been fully executed, and (c) contracts in the name 
 of the corporation made by agents who are author- 
 ized under the seal of the corporation to make such 
 
984 CHAPTER 192. 
 
 contracts: Leslie v. Malahide, 15 0. L. E. 4. See 
 also Young v. Corporation of Leamington, 8 App. 
 Cas. 517 ; Hunt v. Wimbledon Local Board, 4 C. P. 
 D. 40; Smart v. "West Ham Union, 10 Ex. 686; 
 Nicholson v. The Guardians of the Bradford Union, 
 L. E. 1 Q. B. 620. Consideration of powers and 
 functions of municipal councils : Parsons v. London, 
 3 0. W. N. 321, 20 O. W. E. 534. Municipal institu- 
 tions in England and Canada : see article, 41 Canada 
 Law Journal, p. 505. 
 
 PAET I. 
 
 Formation op New Corporations and Alterations op 
 Boundaries of Corporations. 
 
 13. Constitutionality of delegation by Legislature: 
 Hodge v. the Queen, 9 App. Cas. 117. The method 
 of procedure in the exercise of the power of erect- 
 ing new corporations must be carefully followed: 
 Trustees E. C. School Sec. v. Arthur, 21 O. E. 60. 
 Census taken under the direction of the Council 
 (sub-sec. 4) : Ee Fenton and Simcoe, 10 O. R 
 27. Sufficiently near: Ee Flatt and Prescott, 
 18 A. E. 1. Petitions and what should appear in 
 them: Ee Southampton and Bruce, 8 0. L. E. 106. 
 What discretion the Council may exercise : Ee South- 
 ampton and Bruce, 8 0. L. E. 106. 
 
 21. Where the municipal councils of a city and township 
 entered into an agreement which was in fact ultra 
 vires, and the terms of the agreement were subse- 
 quently embodied in a proclamation, the proclama- 
 tion was held effectual and of the same validity as 
 if its terms were contained in a statute : Barton v. 
 Hamilton, 13 0. W. E. 1118, at 1126. Power of board 
 to order for interchange of traffic: Toronto v. Tor- 
 onto Ey., 26 0. L. E. 225. 
 
 32. The words " in force " are used as meaning " hav- 
 ing the force of law " or as being in existence. A 
 by-law has the force of law from its final passing 
 although its prohibition does not become operative 
 
CHAPTER 192. 985 
 
 until a later day : Ee Denison and Wright, 13 0. W. 
 R. 1056, 19 0. L. R. 5. 
 
 33. See Windsor v. Southern Ry., 20 A. R. 388. 
 
 34. A township in which extensive drainage works had 
 
 been constructed was divided into two townships by 
 a statute which provided that the assets and debts 
 of the original municipality should be divided be- 
 tween the two new municipalities, each remaining 
 liable as surety for the portion of debts it was not 
 liable primarily to pay, and the provisions of this 
 Act were made applicable as far as possible. Held 
 that an action for damages incurred before the divi- 
 sion caused by the drainage works, part of the area 
 of which was in each township and asking to have 
 the drains kept in repair, must be brought against 
 both townships and not only against the one where 
 the plaintiff's lands were situate: Wigle v. Grosfield 
 South, 1 0. L. R. 519. 
 
 37. " Debts:" Woodstock v. Oxford, 22 0. L. R. 151. 
 
 38. On motion to set aside an award made by two of 
 three arbitrators for the settlement of terms of sep- 
 aration and annexation, the evidence of the dissent- 
 ing arbitrator as to the basis of the award is ad- 
 missible : Re Southampton and Saugeen, 12 0. L. R. 
 214. In the valuation of assets and liabilities: (1) 
 School houses are not to be allowed for as they are 
 vested in School Boards whose limits of control may 
 or may not be the same as the municipal limits. (2) 
 Sidewalks are allowed for as they are within muni- 
 cipal control and liability. (3) Mistakes in con- 
 struction (e.g. of waterworks) should not reduce 
 value, being common incidents of such construction : 
 Re Southampton and Saugeen* 12 0. L. R. 214. 
 
 39. Where limits are extended to take in township lands 
 which were exempted from taxation: see Windsor 
 v. Canada Southern, 20 A. R. 388. 
 
 40. Are bridges " property and assets " within the 
 meaning of this section : Ottawa v. Nepean, 2 0- W. 
 N\ 49, 2 0. W. N. 480, 16 0. W. R. 969, 17 0. W. R. 
 1051. 
 
9g6 CHAPTER 192. 
 
 PAET H. 
 
 Municipal Councils; How Composed. 
 
 52. Comment on history of section : E. ex rel. Morton v. 
 Eoberts, 3 0. W.-N. 1089, 22 0. W. E. 50, 26 0. L. E. 
 263. The qualification, partly freehold and partly 
 leasehold, is satisfied by half the amount being free- 
 hold and half leasehold: E. ex rel. Burnham v. 
 Hagerman, 31 0. E. 636.. Title by possession con- 
 firmed by conveyance after election a sufficient quali- 
 fication : E. ex rel. Burnham v. Hagerman, 31 O. E. 
 636. " Over and above all liens, charges and in- 
 cumbrances affecting the same:" see E. ex rel. Fer- 
 ris v. Speck, 28 0. E. 486. "Actual occupation" in 
 the case of mortgaged premises means the exclusive 
 unqualified right to possession (apart from the 
 mortgage) : E. ex rel. Sharpe v. Beck, 13 0. W. E. 
 457, 539. "Actual occupation:" E. ex rel. Milli- 
 gan v. Harrison, 11 0. W, E. 554, 678, 16 0. L. E. 
 475. " Actual occupation : ' ' see E. ex rel. Jbanisse 
 v. Mason, 28 0. E. 495. " As owner or tenant:" 
 E. ex rel. Harding v. Bennett, 27 0. E. 314. Sale 
 of qualifying property with mortgage back; right 
 of mortgages assessed to qualify on legal estate : E. 
 ex rel. Morton v. Eoberts, 26 0. L. E. 263. Joint 
 assessment; qualification considered: E. ex rel. 
 O'Shea v. Letherby, 11 0. W. E. 929, 16 0. L, B. 581. 
 Qualification of Councillor: E. ex rel. Beck v. 
 Sharpe, U 0. W. E. 642, 827. Construction of sec. 
 18, E. S. 6. 1897, ch. 225, as to persons entitled to 
 vote: Be Hagar Voters' List, 17 0. "W. E. 1. 
 
 53. — (1) Grounds of disqualification: E. ex rel. Guard- 
 house v. Irwin, 4 0. "W. N. 1043. Disqualification of 
 Councillor as paid clerk of joint committee of two 
 municipalities : Greville Smith v. Tomlin, 1911, 2 K. 
 B. 9. A member of a School Board for which rates 
 are levied cannot be elected Councillor and then re- 
 sign as School Trustee and hold his seat as Coun- 
 cillor: E. ex rel. O'Donnell v. Broomfield, 5 0. L. 
 E. 596. The respondent was a member of a School 
 Board and his resignation as such not having been 
 accepted by his co-trustees, he was disqualified for 
 
CHAPTER 192. 937 
 
 the office of township Councillor: R. ex rel. Robin- 
 son v. McCarty, 5 0. L. R. 638. The respondent was 
 a member of a School Board for a section that had 
 no teacher and no school of its own, but the Board 
 was organized and paid over rates levied to the 
 Board of an adjoining section, who provided ac- 
 commodation; held disqualified: R. ex rel. Zim- 
 merman v. Steele, 5 0. L. R. 565. The re- 
 spondent being a member of a School Board 
 on the day of nomination, it does not save him 
 to resign before the day of polling: R. ex rel. Zim- 
 merman v. Steele, 5 O. L. R. 565 ; R. ex rel. Jamie- 
 son v. Cook, 9 O. L. R. 466; see R. ex rel. Rollo v. 
 Beard, 3 P. R. 357 ; R. ex rel, Adamson v. Boyd, 4 
 P. R. 204. High School Trustee may be Water 
 Commissioner: R. ex rel. Gardhouse v. Irwin, 4 0. 
 W. N. 1043, 1097, 24 O. W. R. 466. 
 
 Disqualification in regard to interest under con- 
 tract; the maxim de minimis non curat lex does not 
 apply: R. ex rel. O'Shea v. Letherby, 12 0. L. R. 581. 
 As to English provision where a member of a cor- 
 poration is " interested or concerned in any con- 
 tract:" see City of London Electric v. London, 
 1903, A, C. 434. Disqualification of Alderman for 
 interest in municipal contract: R. ex rel. Slater v. 
 Homan, 2 0. W. N. 1334, 19 0. W. R. 621. This sec- 
 tion applies to a person having a contract with the 
 School Board : R. ex rel. Martin v. Jacques, 4 0. W. 
 N. 1112, 24 0. W. R. 457. The word '< contract " 
 must be construed in its widest sense, the object 
 of the Legislature being to prevent anyone being 
 elected whose personal interests might clash with 
 those of the municipality. A member of a Council 
 against whom the corporation held an unsatisfied 
 judgment for costs was disqualified: R. ex rel. 
 Macnamara v. Hefferman, 7 0. L. R. 289. Member 
 interested in sub-contract: Ryan v. Willoughby, 30 
 0. R. 411, 27 A. R. 135. To buy on behalf of villagers, 
 land intended to be conveyed to the Crown for 
 a Government building in lieu of another lot which 
 the Crown was to convey to the village corporation, 
 is not to be interested in a contract on behalf of the 
 corporation within the meaning of this section: R. 
 ex rel. Fitzgerald v. Stapleford, 4 0. W. N. 1468, 29 
 
988 
 
 CHAPTER 192. 
 
 0. L. E. 133. Of. provisions of E. S. 0. 1914, ch. 
 266, sec. 119, and cases noted there. 
 
 53.— (2c) See E, ex rel. O'Shea v. Letherby, 16 0. L. E. 
 581 and notes to sees. 395 (/), and 396 (e), post. 
 
 PAET III. 
 
 Municipal Elections. 
 
 56. This section applies to the qualification of electors, 
 not of candidates: E. ex rel. Milligan v. Harrison, 
 11 0. W. E. 554, 678, 16 0. L. E. 475. Determination 
 of residence; animus revertendi; Ee Stunner and 
 Beaverton, 2 0. W. N. 1227, 19 0. W. E. 430, 24 0. 
 L. E. 65. "Owner " includes a locatee: see Patti- 
 son v. Emo, 28 0. L. E. 228. Joint assessment; 
 qualification considered: E. ex rel. O'Shea v. Leth- 
 erby, 11 0. W. E. 929, 16 0. L. E. 581. Partnership: 
 E. ex rel. Harding v. Bennett, 27 0. E. 314. See 
 notes to E. S. 0. 1914, ch. 6, the Ontario Voters' 
 Lists Act,, and esp. sec. 24. 
 
 57. Eesiding within the municipality: Fitzmartin v. 
 Newburg, 2 0. W. N. 1114, 1177, 19 0. W. E. 267, 24 
 0. L. E. 102. Claiming to vote as tenant: Ee Schu- 
 macher and Chesley, 21 0. L. E. 522, 1 0. W. N. 
 1041, 16 0. W. E. 641. " One month before the 
 election:" Ee Fitzmartin and Newburg, 24 0. L. 
 E. 102. Qualifications of right to vote: Ee West 
 Lome Scrutiny, 23 0. L. E. 598, 25 0. L. E. 267, 277, 
 26 0. L. E. 339, 47 S. C. E. 451. And see notes to 
 E. S. 0. 1914, ch. 6, sec. 24, and also notes to sec. 279, 
 post. 
 
 58. A person's name was properly entered on the list as 
 
 a tenant, but after final revision of the list he ceased 
 to be a tenant or to occupy the property but con- 
 tinued to reside in the municipality and was a free- 
 holder to an extent entitling him to vote. At au 
 election he demanded a ballot and was willing to 
 take the oath as a freeholder. Held, entitled, and a 
 refusal to allow him to vote was a breach of duty 
 by the returning officer: Wilson v. Manes, 28 0. E. 
 439, 26 A. E. 398/ The voters' lists under the Muni- 
 cipal Act have the quality of finality as an integral 
 
CHAPTER 192. 9g9 
 
 part of them. They indicate the persons entitled to 
 vote in such manner that their qualification cannot 
 be further enquired into: Ee Mitchell and Camp- 
 bellford, 11 0. W. E. 943, 16 0. L. E. 578; see also 
 Ee Port Arthur and Eainy Eiver, Preston v. Ken- 
 nedy, 14 0. L. E. 345, 9 0. W. E. 347; Ee Saltfleet 
 Local Option, 11 0. W. E. 326, 545'; E. ex rel. Mc- 
 Kenzie v. Martin, 28 0. E. 523; Ee Armour and 
 Onondaga, 14 0. L. E. 606, 9 0. W. E. 833; but see 
 Ee Cleary and Nepean, 14 0. L. E. 392, 9 0. W. E. 
 406. Objections to votes on account of what had 
 taken place after the final revision of the roll, 
 overruled: Ee Armour and Onondaga, 14 0. L. 
 ' E. 606, 9 0. W. E. 833. The Court will not enquire 
 into the qualification of those entered on the voters' 
 list: E. ex rel. McKenzie v. Martin, 28 0. E. 523. 
 
 A Judge holding a scrutiny under this Act may go 
 behind the list to enquire if a tenant, whose name is 
 on the list, has the residential qualification entitling 
 . Tn'm to vote: Ee West Lome Scrutiny, 23 0. L. E. 
 598, 25 0. L. E. 267, 26 0. L. E. 339, 47 S. C. E. 451. 
 There is jurisdiction at a scrutiny under the Muni- 
 cipal Act, to investigate the voter's qualification, 
 so long as it does not conflict with the finality of the 
 lists certified under the Act.- The Judge has juris- 
 diction to investigate as to whether or not, in a given 
 case, the right to vote, finally and absolutely certified 
 by the list, was subsequently so exercised as to con- 
 stitute the ballot deposited a legal vote: Ee Aurora 
 Scrutiny, 28 O. L. E. 475. See E. S. 0. 1914, ch. 6, 
 sec. 24, notes. 
 
 60. As to right of clerk to vote in local option contests : 
 
 see sec. 270 infra, and notes. Giving casting vote 
 at municipal elections : see sec. 127. 
 
 61. See Election Act, E. S. 0. 1914, ch. 8, sec. 13. Pay- 
 ing a voter to act as scrutineer is not per se a corrupt 
 practice: E. ex rel. Fitzgerald v. Stapleford, 29 0. 
 L. E. 133. 
 
 68. The provision that every nomination is to state the 
 full name, etc., of the candidate is directory, not 
 imperative, and the presiding' officer cannot after 
 the close of the meeting for nominations, reject 
 
g9Q CHAPTER 192. 
 
 those made on account of non-compliance with such 
 requirements. Semble if objection is made at the 
 time and the nominations are not amended, the 
 presiding officer may then and there reject them : B. 
 ex rel. Walton v. Freeborn, 2 0. L. B. 165. The 
 provisions of sub-sec. (3) for the closing of the 
 meeting for nomination after the lapse of one hour, 
 only applies where no more than one candidate is 
 proposed. Sub-sec. (4) applies where more than 
 one candidate is proposed : Be Parke, 30 O. B. 498. 
 
 69. — (3) Form of withdrawal by candidate after nomina- 
 tion : see Biggar, p. 154, also form of election where 
 candidate nominated for two or more offices, and 
 elects for which he will run. 
 
 69. — (4) A candidate for the office of alderman, though 
 in fact possessing the necessary property qualifi- 
 cation, mis-stated it in his declaration under this 
 section, and, as there set out, it was insufficient. 
 This declaration, however, he supplemented by an- 
 other before taking office as required by sec. 242, 
 in which he shewed sufficient property qualification. 
 It was too late after the election to contend that the 
 mis-statement in the former declaration Was ground 
 for setting aside an election otherwise free from 
 objection: B. ex rel. Martin v. Watson, 11 Q. L. 
 B. 336. The declaration is to be a statutory decla- 
 ration in accordance with the Dominion form, and 
 before the officers entitled under that Act to take 
 such declarations: B. ex rel. Cavers v. Itelly, 7 0. 
 W. B. 600 ; see also B. ex rel. Milligan v. Harrison, 
 11 0. W. B. 554, 16 0. L. B. 475. The declaration 
 may be made and subscribed before the nomination: 
 B. ex rel. Armstrong v. Garratt, 14 0. L. B. 395, 
 9 0. W. B. 636. Declaration of qualification is in- 
 valid if made before the town clerk: B. ex rel. 
 O'Shea y. Letherby, 11 0. W. B. 929, 16 0. L. E. 
 581. Objections to declaration: B. ex rel. Milligan 
 v. Harrison, ll 0. W. E. 554, 678, 16 0. L. B. 475. 
 
 71. See E. S. 0. 1914, ch. 218, sec. 116 ; postponement in 
 case of epidemics. 
 
 77. — (1) Disregard of these prescribed formalities com- 
 mented on: Be Eickey and Marlborough, 14 0. L. 
 E. 587, at 590. 
 
CHAPTER 192. 991 
 
 77. — (Id) That a D. B. 0. is a strong advocate for the 
 passing of a by-law is not a disqualifying circum- 
 stance: Ee North GoWer L. 0., 24 0. W. E. 489, 
 25 0. W. B. 224; 5 O. W. N. 249; and see Ee Dun- 
 can and Midland, 16 O. L. E. 132. 
 
 77.— (3) Sub-sees. (3) and (4), see E. S. 0. 1914, ch. 
 8, sec. 43. 
 
 81. See E. S. 0. 1914, ch. 8, sees. 153, 154, 156. 
 
 83. Form of ballot box: Ee Wilson and Wardsville, 2 
 0. W. N. 914. 
 
 88. " Screened from observation:" Ee Quigley and Bas- 
 tard, 24 0. L. E. 622. 
 
 89. In an election on a local option by-law, directions 
 to Voters were not furnished to the deputy returning 
 officer. This was an irregularity not cured by sec. 
 150, the fact that, as far as shewn, no harm had 
 resulted being no answer : Ee Salter and Beckwith, 
 4 0. L. B. 51. 
 
 91. If a later list of voters has been validly certified by 
 the Judge, but not delivered or transmitted to the 
 clerk of the peace before the opening of the pftll on 
 polling day, it is not the proper list to be used at 
 the election. Semble, the list must be certified and 
 delivered or transmitted before the nomination. 
 Quare whether a list can be validly certified on 
 Sunday: B. ex rel. Black v. Campbell, 18 G. L. E. 
 269. Last list of voters certified by the Judge: 
 Carr v. North Bay, 4 Ov W. N. 1284. Proper list : 
 see Ee West Lome, 19 0. W. E. 231, 967, 20 0. W. 
 E. 738, 2 0. W. N. 1038, 3 0. W. N. 25, 422, 23 0. 
 L. E. 598, 25 0. L. B. 267, 277, 26 O. L. B. 389, 47 
 S. C. E. 451. Proper list of Voters in local option 
 contests : see sec. 268 infra ; and E. S. 0. 1914, ch. 
 215, sec. 137 (2) and notes; see also E. S. 0. 1914, 
 eh. 6 and notes. 
 
 93. Duty of clerk as to the certificate of the Judge certi- 
 fying list : Ee Eyan and Alliston, 16 0. W. E. 794, 
 17 O. W. E. 222, 18 0. W. E. 841, 2 0. W. N. 161, 
 841, 21 0. L. E. 582. 
 
992 
 
 CHAPTER 192. 
 
 99. Voting in more than- one ward at a municipal elec- 
 tion by general vote was an indictable offence under 
 former sec. 158 a, 1 Edw. VII., ch. 26, sec. 9, and 
 mandamus, lay to a Police Magistrate haying ter- 
 ritorial jurisdiction to compel him to consider and 
 deal with an application for an information for 
 such an offence: In re E. v. Meehan, 3 0. L. E. 
 567; see now sec. 138 (g) which prescribes a 
 penalty; see sec. 269 notes. 
 
 100. Deputy returning officers and poll clerks have a 
 right to vote, even apart from special provisions: 
 Ee Joyce and Pittsburg, 11 0. W. E. 850, 16 O. L. 
 E. 380. Eight of D. E. O.'s and poll clerks to vote 
 in local option contests : Ee Armour and Onondaga, 
 14 0. L. E. 606, 9 0. W. E. 833; Ee Local Option 
 Saltfleet, 16 0. L. E. 293; Ee Duncan and Midland, 
 16 0. L. E. 132 at 149. D. E. O.'s right to vote on 
 local option by-laws: see sec. 274 infra. Position 
 of paid scrutineer: Fitzgerald v. Stapleford, 4 0. 
 W. N. 1468, 29 0. L. E. 133 (noted sec. 61 ante). 
 
 103. See Wilson v. Manes, 28 0. E. 419, 26 A. E. 398. 
 
 104. "Person intended to be named:" (Form 9) Ee 
 Schumacher and Chesley, 21 0. L. E. 522, 1 0. W. N. 
 1041, 16 0. W. E. 641. See Wilson v. Manes, 28 0. 
 E. 419, 26 A. E. 398. 
 
 106. Ballots must be marked within the booth: Quigley 
 v. Bastard, 2 0. W. N. 1047, 19 0. W. E. 176. The 
 irregularity of a voter putting the ballot directly 
 in the box instead of handing it to the D. E. 0., 
 cured by sec. 150: Ee Duncan and Midland, 16 0. 
 L. E. 132. 
 
 107. Polling places crowded at voting and counting, 
 violation of secrecy of ballot: Ee Service and 
 Front of Escott, 13 0. W. E. 1215. 
 
 109. Neglect of D. E. 0. to comply with requirements 
 of this section: Ee Praugley and Strathroy, 21 
 0. L. E. 54, 1 0. W. N. 706, 15 0. W. E. 890. The 
 omission of an illiterate person to make a declara- 
 tion is a mere irregularity: Ee North Grower Local 
 Option, 4 0. W. N. 1177, 24 0. W. E. 489, 25 0. W. 
 
CHAPTEE 192. 993 
 
 E. 224, 5 0. W. N. 249. Noncompliance with this 
 section in the case of an illiterate voter can be 
 cured by sec. 150; Ee Ellis and Eenfrew, 23 0. L. 
 E. 427. Blind voter: Ee Ellis and Pembroke, 21 
 0. L. E. 74, 15 0. W. E. 880. 
 
 111. The presumption is only prima facie evidence 
 against the elector, and does not apply in proceed- 
 ings to set aside an election: E. ex rel. Tohriie v. 
 Campbell, 4 0. L. E. 25; see E. S. 0. 1914, ch. 8, 
 sec. 110. 
 
 112. Persons present : Ee Quigley and Bastard, 24 0. 
 L. E. 622. Where the provisions of this section 
 were violated, it was held that the election was not 
 Conducted in accordance with the principles laid 
 down in the Act (sec. 150) and the election Was de- 
 clared void: Ee Service and Front of Escott, 13 
 0. W. E. 1215. 
 
 115. Compare sees. 115 to 123 inc., and E. S. 0. 1914, 
 ch. 8, sees. 113 to 121 inc. 
 
 122. Importance of the principle of inviolability of the 
 ballots cast: E. ex rel. Hewson V. Eiddell, 14 0. 
 W. E. 49. Upon a scrutiny it was found, having 
 regard to evidence both viva voce and by affidavit, 
 that the ballot papers had been tampered With, and 
 there was also a breach of the Act in the D. E. 0. 
 taking the ballot box to his own house instead of 
 to the town clerk. It was impossible to say that the 
 result of the election had not been affected thereby, 
 and the election was set aside: E. ex rel. Ivison v. 
 Irwin, 4 0. L. E. 192. 
 
 126. Making declaration elsewhere than at town hall may 
 be an irregularity within the curative powers of 
 see. 150: E. ex rel. Armour v. Peddie, 9 0. W. E. 
 393, 14 O. L. E. 339. This section applies to local 
 option contests : Ee Ellis and Eenfrew, 23 0. L. E. 
 427; see sees. 274, 275 infra. 
 
 127. As to right of clerk to vote: see sees. 60 and 270 
 and notes. 
 
 s.a. — 63 
 
994 
 
 CHAPTER 192. 
 
 129. Compare sees. 129 to 142, with E. S. 0. 1914, ch. 
 8, sees. 138, 143, 160, 161, 163, 164, 165, 191, 192, 
 174, 193, 194, 195 and 198. 
 
 131. Violation of provisions as to secrecy of ballot; 
 irregularities ; when curative provisions not applic- 
 able: Ee Hickey and Orillia, 17 0. L. E. 317. 
 Maintaining secrecy : Ee Quigley and Bastard, 24 
 0. L. E. 622. 
 
 134. The provisions of the section as to declaration of 
 secrecy are directory only, and failure of officers to 
 comply with its requirements does not invalidate the 
 election : Wynn v. Weston. 15 0. L. E. 1. 
 
 136. The provisions of this section must be construed 
 as absolutely excluding such testimony: E. ex rel. 
 Ivison v. Irwin: 4 0. L. E. 192. Upon a scrutiny 
 the Judge has no power to inquire how any person 
 not entitled to vote marked his ballot: Ee "West 
 Lome Scrutiny, 23 0. L. E. 598, 25 0. L. E. 267, 277, 
 26 0. L. B. 339, 47 S. C. E. 451. 
 
 138. Unjustified threat of penalty: Ee Sinclair v. Owen 
 Sound, 8 0. W. E. 238. Procedure on charge for 
 offence under this section; jurisdiction of Police 
 Magistrate: E. v. Durocher, 4 0. W. N. 867, 1057, 
 24 0. W. E. 140, 28 0. L. E. 499. 
 
 143. Wilson v. Manes, 28 0. E. 419, 26 A. E. 398. 
 
 150. Consideration of the principles governing the appli- 
 cation of the curative provisions of this section: Ee 
 Hickey and Orillia, 17 0. L. E. 317, especially at 
 pp. 322-3, 330-1, 341-2. The saving virtue of this 
 section is only effective when (1) the election was 
 conducted according to the principles laid down in 
 the Act, and (2) the irregularity did not affect the 
 result. Both these elements must concur: Ee 
 Hickey and Orillia, 12 0. W. E. 433 at 443, 17 0. 
 L. E. 317. Principle of application of section: see 
 East Simcoe, 1 Ont. E. C. 291 ; E. ex rel. Warr v. 
 Walsh, 5 0. L. E. at p. 272. Even apart from this 
 section it is not every irregularity that voids an 
 election: Ee Hickey and Orillia, 12 0. W. E. 68, 
 433, 17 0. L. E. 317. Wide effect given to this 
 
CHAPTER 192. 995 
 
 section: Pickett v. Wainfleet, 28 0. E. 464, at pp. 
 467-8; E. ex rel. Warr v. "Walsh, 5 0. L. E. at p. 
 272; E. ex rel. Armour v. Peddie, 9 0. W. E. 393, 
 14 0. L. E. 339. "Where the provisions as to the 
 inviolability of the 'ballots cast are not complied 
 with, this section cannot save the election: B. ex 
 rel. Hewson v. Eiddell, 14 0. W. E. 49. Applied to 
 cure use of improperly worded ballot : Ee Giles and 
 Almonte, 21 O. L. E. 362. Violation of provisions 
 as to secrecy not validated by this section: Ee 
 Hickey and Orillia, 17 0. L. E. 317. An election 
 held without warrant is not validated by this sec- 
 tion: B. ex rel. Bawkes v. Letherby, 17 0. L. E. 
 304. Marking ballots outside polling booths is an 
 irregularity not to be cured by this section : Quigley 
 v. Bastard, 19 0. W. E. 176, 2 0. W. N. 1047, 20 
 0. W. E. 223, 3 0. W. N. 170. The use of a wrong 
 list of voters is not a curable irregularity: E. ex 
 rel. Block v. Campbell, 18 0. L. E. 269, 13 O. W. 
 E. 553. An error as to the time and place of nomina- 
 tion in respect of a question whether or not the 
 mayor and councillors could be nominated at the 
 same time, would come within the curative pro- 
 visions of this section: E. ex rel. Warr v. Walsh, 
 5 0. L. E. 268. "When directions to voters had not 
 been furnished to the deputy returning officers on 
 the voting on a local option by-law, and as there 
 was not clear evidence of the posting up, under the 
 direction of the council, at four or more public 
 places, the by-law was quashed as these were not 
 irregularities cured by this section, the fact that 
 no harm had resulted, as far as shewn, being no 
 answer: Ee Salter and Beckwith, 4 0. L. E. 51. 
 Objections based on formalities not observed in 
 the taking of votes on a local option by-law, not 
 being such as are required by the statute in express 
 words to be observed as a condition precedent to 
 the right to pass the by-law, were held to come 
 within the curative provisions of this section, there 
 being nothing to shew or suggest any intentional 
 violation of the directions of the Act, nor any rea- 
 son for believing that any disregard of the statutable 
 formalities called for by the Act affected the result 
 of the voting: Ee Sinclair v. Owen Sound, 12 0. 
 L. E. 488. The omission of an illiterate to take 
 declaration is a mere irregularity of mode of 
 
996 
 
 CHAPTER 192. 
 
 voting: Ee North Gower, 24 0. W. E. 489, 
 25 0. W. E. 224, 4 0. W. N. 1177, 5 0. W. N.' 
 249; and see Ee Ellis and Eenfrew, 23 0. L. 
 E. 427. Onus of proving that omission to post 
 copies of by-law, as required by former sec. 388 (2), 
 had not affected the result: Be Begg and Dun- 
 wick, 21 0. L. E. 94, 15 0. W. E. 908, 1 O. W. N. 
 719 (see now sec. 263). Non-compliance with sees. 
 263, 264: Ee Schumacher and Chesley, 21 0. L. 
 B. 522, 1 0. W. N. 1041, 16 0. W. E. 641. Non- 
 compliance with sec. 263 as to advertisement is not 
 a curable defect: Ee Eickey and Marlborough, 9 
 0. W. E. 563, 14 0. 'L. E. 587. Irregularities in 
 advertisement : see sec. 263 notes. Section nlay be 
 applied to cure certain irregularities in declarations 
 under sec. 69: B. ex rel. Milligan v. Harrison, 16 
 O. L. E. 475, 11 0. W. E. 554. When declarations 
 required under sec. 69 cannot be cured: E. ex rel. 
 O'Shea v. Letherby, 16 0. L. E. 581, 11 0. W. E. 
 929. 
 
 This section is applicable to contests over local 
 option by-laws : see E. S. 0. 1914, ch. 215, sec. 137. 
 The following have been held to be within the sav- 
 ing provisions of this section: (1) No newspaper 
 designated in the by-law: Be Dillon and Cardinal, 
 10 0. L. B. 371, and no places specifically designated 
 for the voting: Be Coxworth and Henshall, 17 0. 
 L. B. 431. (2) Persons allowed in the polling place 
 who were not entitled to be there: see above cases 
 and Be Sinclair and Owen Sound, 12 0. L. E. 488; 
 Be Bickey and Marlborough, 14 0. L. B. 587 ; but see 
 Ee Hickey and Orillia, 17 0. L. E. 317. (3) Non- 
 performance by the deputy returning officer of 
 various duties required of him at and after the 
 close of the poll: see above cases, esp. Ee Eickey 
 and Marlborough, 14 0. L. E. 587, and other cases 
 infra. (4) Irregular voters' lists: Be Sinclair V. 
 Owen Sound, 12 0. L. E. 488; Ee Duncan and Mid- 
 land, 16 0. L. B. 132. (5) Omission to enter the 
 electors as voting: Ee Sinclair and Owen Sound, 
 12 0. L. E. 488 ; Ee Duncan and Midland, 16 0. L. 
 B. 132. (6) Declarations missing or not taken. 
 (7) Defaulters' list not supplied. (8) Certificates 
 not furnished to deputy returning officer: (see same 
 cases). (9) Oath of secrecy not taken: above cases 
 
CHAPTER 192. 997 
 
 and Wynn v. Weston, 15 0. L. R. 1. (10) Number 
 who voted not certified by deputy returning officer: 
 (id). (11) Publication of by-law defective: above 
 cases and Re Robinson and Beamsville, 8 0. W. R. 
 689, 9 0. W. R. 273. 
 
 The following have been held not to be within the 
 curative provisions of sec. 150: (1) Omission to 
 post directions to voters: Re Salter and Beckwith, 
 4 0. L. R. 51. (2) "Want of posting up of copies of 
 by-law: lb.; but see Re Begg and Dunwich, 21 
 L. R. 94. (3) Illegal voting, if it affects the result: 
 Re Cleary and Nepean, 14 0. L. R. 392. (4) Want 
 of proper publication: Re Cartwright and Napanee, 
 11 0. L. R. 69; Re Rickey and Marlborough, 14 0. 
 L. R. 587. (5) Omission of time and place for 
 summing up votes: Re Bell and Elma, 13 0. L. 
 R. 80; Re Coxworth and Henshall, 17 0. L. R. 431; 
 Re Kerr and Thornbury, 8 0. W. R. 451. (6) 
 Where the principle of the inviolability of the ballot 
 is infringed: R. ex rel. Hewson v. Riddell, 14 0. 
 W. R. 49. 
 
 The omission in a local option by-law of the time 
 and place where the votes are to be summed up, as 
 provided by former sees. 341 and 342, (see now sees. 
 263, 264) was the omission of an essential part and 
 made the by-law invalid. This section did not 
 apply to cure the defect, as an omission was more 
 than. an irregularity: Re Bell and Elma, 13 0. L. 
 R. 80. Examples of irregularities not affecting the 
 result and cured by the section: Re Dillon and 
 Cardinal, 10 0. L. R. 371 ; Re Young and Burbrook, 
 31 0. R. 108; Cartwright v. Napanee, 11 0. L. R. 
 69; see also Re Picket and Wainfleet, 28 0. R. 
 464; R. ex rel. Wallerworth and Buchanan, 28 0. R. 
 352; R. ex rel. St. Louis and Rheaum, 26 0. R. 460. 
 ; Non T compliance with literal wording of isec. 126 
 cured by sec. 150: R. ex rel. Armour v. Peddie, 9 
 0. W. R. 393, 14 0. L. R. 339. For citation of cases 
 looking to strict compliance with all statutory pro- 
 visions: see R. ex rel. Armour v. Peddie, 9 0. W. 
 R. 393, 14 0. L. R. 339. Threat of prosecution 
 under 3 Edw. VTI., ch. 19, sec. 162, not an irregu- 
 larity which can be cured under this section: Re 
 Sinclair and Owen Sound, 8 0. W. R. 239, 12 0. L. 
 
ggg CHAPTER 192. 
 
 E. 488. No voters' lists supplied to D. R. — 
 curable irregularity: Re Sinclair and Owen Sound, 
 8 0. W. R. 239, 12 0. L. R. 488; Re Duncan and 
 . Midland, 9 0. W. R. 826, 10 0. W. R. 345, 16 0. L. 
 R. 132. "Voters' lists containing more than the 
 proper number of names, (see sec. 391) curable 
 irregularity: Re Sinclair and Owen Sound, 12 
 0. L. R. 488, 8 0. W. R. 239; Re Duncan and 
 Midland, 9 0. W. R. 826, 10 0. W. R. 345, 
 16 0. L. R. 132. Irregular appointment of D. 
 R. 0. and poll clerk: Re Duncan and Mid- 
 land, 16 0. L. R. 132, 9 0. W. R. 826, 10 
 0. W. R. 345. Disregard of provisions of Act not 
 affecting result: Stoddart v. Owen Sound, 27 0. 
 L. R. 221. Curing irregularities in voters' list used 
 at local option contest : Re Ryan and Alliston, 22 
 0. L. R. 200. Application of this section to cure 
 irregularities — principle considered*. Re Ellis and 
 Renfrew, 23 0. L. R. 427 ; Re Stunner and Beaver- 
 ton, 24 0. L. R. 65; Re Ryan and Alliston, 22 0. 
 L. R. 200; Re Dale and Blanchard, 21 0. L. R. 522, 
 1 0. W. N. 65, 14 0. W. R. 704; Re Prangley and 
 Strathroy, 21 0. L. R. 54, 1 0. W. N. 706. Ballot 
 not in prescribed form: Re Milne and Thorold, 
 3 0- W. N. 536. Irregularities: Stoddart v. Owen 
 Sound, 4 0. W. N. 83. Incurable irregularity: Re 
 Milne and Thorold, 25 0. L. R. 420; Re Quigley 
 and Bastard, 24 0. L. R. 622. 
 
 152. See Mearns v. Petrolia, 28 Gr. 98. Comment on 
 history of section: R. ex rel. Morton v. Roberts, 
 22 0. "W. R. 50, 3 0. W. N. 1089, 26 0. L. R. 263. 
 
 153. Application Of section: R. ex rel. Grardhouse v. 
 Irwin, 4 0. W. N. 1043. 
 
 156. The proclamation without the warrant as well, is 
 insufficient: R. ex rel. Bawkes v. Letherby, 17 0. 
 L. R. 304, 12 0. W. R. 664. See as to time: R. ex 
 rel. Bawkes v. Letherby, 17 0. L. R. 304, 12 0. W. 
 R. 664. 
 
 157. — (6) Does not apply to vacancy caused by quo 
 warranto proceedings : R. ex rel. Martin v. Jacques, 
 4. 0. W. N. 1112, 24 0. W. R. 457. 
 
CHAPTER 192. 999 
 
 PAET IV. 
 
 Pboceedings to Declare Seat Vacant. 
 
 161. History of section: E. ex rel. Morton v. Eoberts, 
 22 0. W. E. 50, 3 0. W. N. 1089, 26 0. L. E. 263. 
 Two motions by different relators to toy the validity 
 of the same election were made returnable, one be- 
 fore, the Master in Chambers, and the other before 
 the County Judge, who, notwithstanding objections, 
 proceeded with the motion before him and decided 
 that the proceedings before the Master in Cham- 
 bers were collusive. It was held that a Judge of 
 the High Court sitting in Chambers having equal 
 and concurrent jurisdiction under the Statute could 
 not prohibit the County Judge. Semble, a County 
 Court Judge who, without knowledge of prior pro- 
 ceedings, had granted a fiat for like proceedings, had 
 jurisdiction on the return thereof to enquire of the 
 prior proceedings, were collusive and if so to dis- 
 regard them: E. ex rel. Winton v. G-owanlock, 29 0. 
 E. 435. Who may bring proceedings to unseat : E. 
 v. Slater and Homan, 2 0. W. N. 1221, 19 0. W. E. 
 427. Procedure in attacking right to hold seat: E. 
 ex rel. Morton v. Eoberts, 26 0. L. E. 263. Delega- 
 tion to County Judge to take evidence; see sec. 173 : 
 E. ex rel. O'Shea v. Letherby, 16 0. L. E. 581. When 
 the Legislature wishes to give jurisdiction to the 
 Master in Chambers he is mentioned by name, as 
 here: Harrison v. Mobbs, 9 0. W. E. 545. 
 
 162. Where an election was attacked for non- 
 compliance with certain statutory formalities, 
 it was held that the relator, by voting for 
 one of the respondents who was in the same 
 class as the others, acquiesced in and became 
 a party to" the irregularity and could not be 
 heard to complain. The fact that the respondent 
 whom the relator had voted for disclaimed office af- 
 ter service of the notice of motion was nihil ad rem : 
 E. ex rel. McLeod v. Bathurst, 5 0. L. E. 573. Where 
 the wrong day of the week was inserted by mistake 
 as the day when the motion was returnable it was 
 held sufficient and that the practice of actions in the 
 Supreme Court is applicable to these proceedings : E. 
 
1000 CHAPTER 192. 
 
 ex rel. Roberts v. Ponsford, 3 0. L. E. 410, and see 
 sec. 185. Laches and acquiesence of relator affects 
 his right to move against Councillor on ground of 
 interest under contract within section 53 : B. ex rel. 
 Hunt v. Genge, 8 O. W. E. 583. Time for applica- 
 tion : E. ex rel. Morton v. Eoberts, 22 O. W. E. 
 50, 3 O. W. N. 1089, 26 O. L. E. 263; E. ex rel. 
 Froelich v. Woeller, 3 O. W. N. 828, 21 0. W. 
 E. 672. Where relator dies, the action is at an end 
 and no new proceeding can be taken after six weeks : 
 E. ex rel. Warner v. Skelton, 3 0. W. N. 175. When 
 a recognizance has been duly entered into with sure- 
 ties and affidavit of justification the security is com- 
 pleted, but the Judge may postpone endorsing his 
 allowance of it until objection raised. Such inter- 
 locutory procedure is a matter of discretion and not 
 subject to appeal: E. ex rel. Walton v. Freeborn, 
 2 0. L. E. 165. For forms of fiat, recognizance, 
 affidavit: see Biggar, pp. 240, 241. 
 
 163. See as to amendment of slips, etc.: Con. Eules 312 
 and 640; H. & L. note, p. 527, 1913 Eules 183, 521; 
 see also E. ex rel. Eoberts v. Ponsford, 3 0. L. E. 
 410, noted, ante. For form of notice of motion : see 
 Biggar, p. 243. 
 
 164. Witnesses who can be examined : E. ex rel. Sabourin 
 v. Berthiaume, 4 0. W. N. 1201, 24 0. W. E. 559. 
 Con. Eule 491 (1913 Eule 228) is not applicable: E. 
 ex rel. Beck v. Sharp, 16 0. L. E. 267. 
 
 166. A relator is not entitled to the seat if he neither 
 objects to the disqualification of the respondent at 
 the nomination nor gives any notice on the election 
 day to the electors that they were throwing away 
 their votes: E. ex rel. O'Donnell v. Broomfield, 5 
 0. L. E. 596; E. ex rel. Eobinson v. MeCarty, 5 0. 
 L. E. 638. And where notices were put up in five 
 out of twelve booths it was insufficient: E. ex rel. 
 Zimmerman v. Steele, 5 0. L. E. 565. 
 
 167. It is permissible to join two or more persons in one 
 motion only when the grounds of objection apply 
 equally to both. Where the objections to the. quali- 
 fication of two aldermen were distinct, the joining of 
 the two in one motion was held to be improper: E. 
 
CHAPTER 192. 1001 
 
 ex rel. Burnham v. Hagerman, 31 0. E. 636. This 
 section only authorizes proceedings against more 
 than one person in the same motion where the 
 grounds apply equally to two or more persons 
 elected: E. ex rel. Warner v. Skelton, 2 0. W. N. 
 693, 748, 18 0. W. E. 534, 23 0. L. E. 182. 
 
 169. See E. ex rel. Winton v. Gowanloek, 29 0. E. 435, 
 ante, sec. 161. 
 
 173.— (1) Affidavit evidence may be supported at the 
 trial by viva voce evidence, although not mentioned 
 in the notice of motion. After the trial of such a 
 proceeding has commenced it is discretionary with 
 the Judge to allow a person who has made an affi- 
 davit to be cross-examined, though before com- 
 mencement of the trial cross-examination may pro- 
 perly be had : E. ex rel. Ivison v. Irwin, 4 0. L. E. 
 192; see also E. ex rel. McFarlane v. Coulter, 4 0. 
 L. E. 520. Witnesses who can be examined: E. ex 
 rel. Sabourin v. Berthiaume, 4 0. W. N. 1201, 24 0. 
 W. E. 559. The cross-examination of the affiants 
 on their affidavits can only be had on leave obtained 
 from the Judge or Master in Chambers or officer 
 before whom the proceedings are carried on, and he 
 must take such cross-examination himself : E. ex rel. 
 Beck v. Sharp, 16 0. L. E. 267, 11 0. W. E. 493. Pro- 
 cedure as to taking down and signing evidence: E. 
 ex rel. Sabourin v. Berthiaume, 4 0. W. N. 1201, 24 
 0. W. E. 559. Con. Eule 490 (1913 Eule 227) is not 
 applicable to these proceedings : E. ex rel. Beck v. 
 Sharp, 16 0. L. E. 267. 
 
 173. — (2) Upon an application to set aside a municipal 
 election on the ground of bribery, all the evidence, 
 pro and con, and hot merely the evidence of the re- 
 lator in support of the charge is to be taken viva 
 voce. The heading may be read into the section, to 
 aid construction. Affidavits in answer to oral testi- 
 mony cannot be received : E. ex rel. Carr v. Cuth- 
 bert, 1 0. L. E. 211. Evidence as to corrupt prac- 
 tices directed to be taken before the County Judge : 
 E. ex rel. O'Shea v. Letherby, 16 0. L. E. 581. 
 
 173. Form of order for trial of an issue and form of en- 
 - dorsement of verdict : see Biggar, pp. 249-250. 
 
2002 CHAPTER 192. 
 
 177. Forms of judgment : see Biggar, pp. 250, 251. 
 
 179. A County Judge granted a fiat for a motion to set 
 aside the election of a township Eeeve, and sub- 
 sequently on the respondent's motion made an order 
 setting aside the relator's whole proceedings from 
 the beginning. Quaere, whether the County Judge 
 could make such an order, but no appeal lay to a 
 Judge of the High Court in Chambers, the appeal 
 given by the section being from the County Judge's 
 decision of a contested election and not from an 
 order quashing the proceedings without a trial: (E. 
 ex rel. Grant v. Coleman, 7 A. E. 619, is no longer 
 law) ; E. ex rel. McFarlane v. Coulter, 4 0. L. E. 520. 
 
 182. See E. ex rel. McLeod v. Bathurst, 5 O. L. E. 573. 
 
 185. See as to applicability of Eules : E. ex rel. Beck v. 
 Sharp, 16 O. L. E. 267, 11 0. W. E. 493. 
 
 186. E. S. 0. 1914, ch. 56, sec. 146, et seq., and notes ; see 
 also H. & L., p. 218. 
 
 PAET V. 
 
 Bbibeey and Corrupt Practices. 
 
 187. See E. S. 0. 1914, ch. 8, sec. 167, and notes. For 
 application of sees. 187 to 189 to elections in respect 
 of by-laws : see sec. 284, post. A cattle drover who 
 was not a "temperance man," nor an agent of the 
 ' ' temperance people, ' ' who, where promoting the 
 passage of a local option law, having a grudge 
 against an hotelkeeper, took an active interest in 
 the passing of the by-law by treating freely through 
 the township with a view to influencing the electors 
 to pass the by-law. There was no general drunken- 
 ness and it was not proved definitely that any one 
 elector had been treated. The by-law was carried 
 by a substantial majority. Under the circumstances 
 such treating and conduct were not the means of 
 passing the by-law: Ee Gerow and Pickering, 12 0. 
 L. E. 545 ; see also E. ex rel. Thornton v. Dewar, 26 
 0. E. 312; Biggar, p. 259. Promises not amounting 
 to bribery: Ee~Leaby and Lakefield, 8 0'. W. E. 743. 
 
CHAPTER 192. 1003 
 
 Paying a voter to act as scrutineer is not per se a 
 corrupt practice. Payment of an honest debt may 
 be a corrupt practice : E. ex rel. Fitzgerald v. Staple- 
 ford, 29 0. L. E. 133. 
 
 188. See E. S. 0. 1914, ch. 8, sec. 171, and notes. 
 
 189. See E. S. 0. 1914, cb. 8, sec. 173, and notes. 
 
 PAST VI. 
 
 Meetings of Municipal Councils, 
 
 201. Special meetings ; Good Friday : Ee Schumacher and 
 Chesley, 21 0. L. E. 522. 
 
 208. A meeting of the Council may adjourn temporarily 
 "without a formal motion to adjourn by the consent 
 of a majority of a quorum present. Even if the ad- 
 journment announced by the Mayor was not in a 
 particular case by the consent of a majority, the 
 validity of an objection grounded on the absence of 
 such consent would be so doubtful that the Court 
 should not in its discretion quash by-laws passed 
 after the adjournment: Ee Jones and London, 30 
 0. E. 383. 
 
 PAET VII. 
 
 Boards of Control. 
 
 213. Section construed : Brundle v. Toronto, 2 0. W. N. 
 35, 16 0. W. E. 953. 
 
 PAET VIII. 
 
 Officers of Municipal Corporations. 
 
 215. A member of a Municipal Council other than the 
 head is not examinable for discovery under Con. 
 Eule 1259, 439a : Davies v. The Sovereign Bank, 12 
 0. L. E. 557 (1913 Eule 327). The Mayor cannot 
 by his act make city liable for illegal arrest, nor can 
 Board of Control: Waters v. Toronto, 24 0. W. E. 
 746. 
 
]^004 CHAPTER 192. 
 
 227. Recovery from municipality of moneys paid by 
 Treasurer out of his own pocket: Leslie v. Mala- 
 hide,13 0. L. R. 97. 
 
 230. An assessor or collector may be appointed by re- 
 solution: Foster v. Reno, 22 0. L. R. 413. Regula- 
 tions governing collectors: Arnprior and U. S. 
 Fidelity, 4 O, W. N. 1426. 
 
 242. Comment on history of section: R. ex rel. Morton 
 v. Roberts, 22 0. W. R. 50, 3 0. W. N. 1089, 26 0. ju. 
 R. 263. A candidate for office of alderman having 
 in fact the necessary property qualification, mis- 
 stated it in his declaration made under section 69, 
 and as there set out it was insufficient. This declar- 
 ation he supplemented by one under this section, in 
 which he shewed sufficient property qualification. 
 Held that it was too late after election to object to 
 the former declaration, the election being otherwise 
 free from objection: R. ex rel. Martin v. Watson, 
 11 0. L. R. 336. Variation in form of declaration: 
 R. ex rel. Morton v. Roberts, 26 0. L. R. 263. Be- 
 fore whom declarations taken: R. ex rel. Milligan 
 v. Harrison, 11 0. W. R. 678, at 680; R. ex rel. 
 O'Shea v. Letherby, 11 0. W. R. 929, at 930. See 
 provisions of section 69 and notes thereto as to filing 
 declaration. 
 
 245. Appointment of Medical Officer of Health: Warren 
 v. Whitby, 4 0. W. N. 1029, 24 0. W. R. 317. And 
 see R. S. 0. 1914, ch. 218, sec. 35, et seq. 
 
 246. See London v. Bartram, 26 0. R. 161; Hellems v. 
 St. Catharines, 25 0. R. -583. 
 
 248. " The Judge shall enquire." The Judge is persona 
 designata and therefore not subject to control by 
 writ of prohibition: Re Godson and Toronto. 16 0. 
 R. 275, 16 A. R. 552, 18 S. C. R. 36. The Act Re- 
 specting Inquiries concerning Public Matters: see 
 R. S. 0. 1914, ch. 18. Under this s_ection a city has 
 power to order an enquiry by the County Court 
 Judge into an election for members of the Council 
 and Board of Education at which it was alleged cor- 
 rupt practices had prevailed. The Supreme Court 
 will not, in an action by a ratepayer for an injunc- 
 tion, interfere with the conduct of the enquiry by 
 
CHAPTER 192. -[005 
 
 the Judge in regard to the admission or rejection 
 of evidence, the examination of ballot papers, com- 
 pelling witnesses to answer incriminating questions, 
 etc. : Ee Lane and Toronto, 7 0. L. E. 423. Powers 
 and duties of a commissioner appointed to investi- 
 ■gate charges of misconduct: Chambers v. Winches- 
 ter, lJO 0. W. E. 909, 15 0. L. E. 316. 
 
 PAET IX. 
 
 General Provisions Applicable to All Municipalities. 
 
 249. "Shall be exercised by by-law." The cases on 
 this important section are collected in Biggar's 
 Municipal Manual, p. 327-334, and arranged under 
 the following headings: (1) Limits of operation; 
 (2) Bequisites of a valid by-law; (3) Ambiguity; 
 (4) Certainty, (5) Eeasonableness ; (6) Discrim- 
 inating by-laws; (7) Ultra vires by-laws; (8) 
 Bepugnant to law; (9) Bona fides; (10) By-laws 
 not in the public interest; (11) By-laws partly good 
 and partly bad; (12) Mistake as to jurisdiction. 
 
 Doctrine Of ultra vires in its applicability under 
 this section: Ee Hassard and Toronto, 16 0. L. E. 
 500, 11 O. W. E. 684, 1088. As to exceptions to rule 
 that municipal corporation can only act by its seal : 
 see Leslie v. Malahide, 15 0. L. E. 4. Absence of 
 by-law and seal; executed contract: East Gwillim- 
 bury v. King, 14 0. W. E. 122. Absence of by-law 
 and seal; settlement of action against corporation 
 accepted by resolution not binding: Leslie v. Mala- 
 hide, 10 0'. W. E. 199, 15 0. L. E. 4. By-laws are re- 
 quired in the exercise of legislative power. Statu- 
 tory duty may be performed by resolution: Foster 
 v. Eeno, 22 0. L. E. 413. For distinction between 
 acts which a corporation can do in the discharge 
 of its duty to repair a highway without passing a 
 by-law and acts for the improvement of a highway 
 for which a by-law is necessary: see Croft v. Peter- 
 borough, 5 U. C. C. P. 141; Eeid v. Hamilton, 5 TJ. 
 C. C. P. 269, 287; Hislop v. McGillivray, 17 S. C. 
 E. 479 ; Taylor v. Gage, 5 0. "W. N. 489, and see sec. 
 460 and notes. For the common law regarding 
 
1006 
 
 CHAPTER 192. 
 
 by-laws of corporations, see R. v. The Coopers Com- 
 pany, 7 T. E. 543; E. v. Cutbush, 4 Burr. 2204; E. 
 v. Ashwell, 12 East. 22. 
 
 250. It was formerly provided in this section that 
 " every Council may make regulations," but by 3 
 Edw. VII. ch. 18, sec. 70, this was amended by in- 
 serting the words " by by-law." This was shortly 
 after the decision : Liverpool and Milton Ey. v. Liv- 
 erpool, 33 S. C. E. 180, holding that the regulations 
 there in question could be made only by by-law: see 
 Leslie v. Malahide, 15 O. L. E. 4; see also sec. 10, 
 ante, and notes. See also Dwyre v. Ottawa, 25 A. E. 
 121: Biggar, p. 335, and note the present wording. 
 Having enacted a by-law to establish a park, a muni- 
 cipal Council, the same body or its successors, may 
 repeal, alter or amend as is deemed proper so long as 
 no vested right is disturbed : Atty.-Gen. v. Toronto, 
 6 O. L. E. 159. By-law governing proceedings of Coun- 
 cil disregarded : see Heff erman v. Walkerton, 6 O. L. 
 E. 79; see dissenting judgment of Street, J., at p. 82. 
 A committee of a municipal Council cannot, unless 
 authorized by the Council, sell corporate property: 
 New Glasgow v. Brown, 39 S. C. E. 586. Sale of City 
 Hall : Parsons v. London, 20 O. W. E. 534, 25 0. L. E. 
 172, 3 0. W. N. 604. 21 0. W. E. 205. " Specific provi- 
 sions of the Act:" see e.g., sec. 293. 
 
 253. See Biggar, pp. 339-343. Motive affecting licens- 
 ing power ; prohibitive fee : Ee Foster and Ealeigh, 
 22^0. L. E. 26, 22 0. L. E. 342. 
 
 254. Tavern keeping is within this provision: Ee Mc- 
 Cracken and Sherborne, 23 0. L. E. 81. And Town- 
 ship Council cannot pass by-law under E. S. 0. 1897, 
 ch. 245, sec. 20, limiting liquor licenses to one: Ee 
 McCracken and Sherborne, 16 0. W. E. 731, 18 0. 
 W. E. 24, 1 0. W. N. 1091, 2 0. W. N. 601, 23 0. L. 
 E. 81; see E. S. 0. 1914, ch. 215, sec, 28. 
 
 258. This section is imperative and imposes on the 
 Mayor a ministerial statutory duty enforceable by 
 summary order of mandamus: Kennedy v. Boles, 6 
 0. W. E. 837. The provision for compelling \he 
 Mayor to sign applies where the matter is one of 
 
CHAPTER 192. 
 
 1007 
 
 policy merely and not where the validity of the 
 Council's action is in question: Ee Gait, Scott v. 
 Patterson, 17 0. L. E. 270. A mandamus will not 
 issue to compel the Mayor to sign a contract sub- 
 stantially different from the terms approved by the 
 ratepayers: Ee Scott and Patterson, 12 0. W. E. 
 637, 17 O. L. E. 270. Production of by-law authen- 
 ticated by corporate seal is prima facie evidence of 
 publication and compliance with regulations: Bob- 
 inson v. Gregory, 1905, 1 K. B. 534. As to produc- 
 tion of original record in Court: see Con. Eule 479 
 (1913 Eule 274) ; see also Eobinson v. Gregory, 
 1905, 1 K. B. 534; Wigle v. Kingsville, 28 O. E. 378. 
 
 PAETX. 
 
 Voting on By-laws. 
 
 260. — (a) Submission to electors of question as to sup- 
 ply of electric power from H. E. Commission: Hor- 
 rigan v. Port Arthur, 1 O. W. N. 216, 14 O. W. E. 
 973, 1087. 
 
 263. — (1) Fixing less number of polling places for voters 
 on money by-laws than are required for general vot- 
 ing: Ee Hickey and Orillia, 12 0. W. E. 68. Neces- 
 sity for fixing in and by the by-law the places for 
 taking the votes: Ee Hickey and Orillia, 12 0. W. 
 E. 433; Ee Coxwell and Hensall, 12 0. W. E. 279, 
 936. Omission to name D. E. O.'s in local option 
 by-law: Ee McCartee and Mulmur, 32 0. E. 69. Ef- 
 fect of amendment of 1904 : Ward v. Owen Sound, 1 
 0. W. N. 512, 15 0. W. E. 443. Sufficient descrip- 
 tion of polling places: Ee Salter and Beckwith, 4 
 0. L. E. 51. Various irregularities cured by sec. 
 150: Ee Dillon and Cardinal, 10 0. <L. E. 371, and 
 see sec. 150, notes. Second reading of by-law: see 
 Ee Kelly and Toronto Junction, 8 0. L. E. 162. Final 
 passing: see sec. 280; see also Ee Dewar and East 
 Williams, 10 0. L. E. 463. 
 
 The Ontario Eailway and Municipal Board have 
 approved (see post, sec. 536), the following Forms 
 of By-laws and notices to be passed and given : 
 
1008 CHAPTER 192. 
 
 FOEM NO. 1. 
 By-Law No. — 
 
 A By-law to provide for taking the votes of the 
 electors on a proposed By-law entitled (here set out 
 the short title of the proposed By-law). 
 
 Passed the day of A.D. 19 . 
 
 Whereas a proposed By-law of the Corporation 
 of the of entitled (here set out 
 
 the short title of the proposed By-law) requires for 
 its validity the assent of the electors, and it is ex- 
 pedient and necessary to pass this By-law for the 
 purpose of enabling the electors to vote on the pro- 
 posed By-law ; 
 
 Be it therefore enacted by the Municipal Council 
 of the Corporation of the of as follows : — 
 
 1. The votes of the electors of the Corporation 
 of the of shall be taken on the said 
 proposed By-law on the day of A.D. 
 19 , between the hours of nine o'clock in the fore- 
 noon and five o 'clock in the afternoon at the following 
 places, and by the following Deputy-Beturning Offi- 
 cers, namely: (here set but the polling places and 
 the names of the Deputy-Returning Officers). 
 
 2. On the day of A.D. 19 , at the 
 hour of o'clock in the noon, the head oT 
 the Council of the said Corporation or some member 
 of the said Council appointed for that purpose by 
 resolution shall attend at in the said Muni- 
 cipality for the purpose of appointing, and, if 
 requested so to do, shall appoint by writing signed 
 by him, two persons to attend at the final summing 
 up of the votes by the Clerk, and one person to 
 attend at each polling place on behalf of the persons 
 interested in and promoting the proposed By-law, 
 and a like number on behalf of the persons interested 
 in and opposing the proposed By-law. 
 
 3. On the day of A.D. 19 , at th« hour 
 of o'clock in the noon, at , in the 
 said municipality, the Clerk of the said municipality 
 shall attend and sum up the votes given for and 
 against the proposed By-law. . 
 
 Note. — When a proposed By-law is submitted on 
 the day of the annual election for the Municipal 
 
CHAPTER 192. 
 
 1009 
 
 Council, the following shall be substituted for Section 
 1 of the foregoing By-law: — 
 
 > 1. The votes of the electors of the Corporation 
 of the of shall be taken upon the said 
 
 proposed By-law at the same time and at the same 
 places as the annual election for the Municipal Coun- 
 cil, and the Deputy-Returning Officers appointed to 
 hold said election shall take the vote. 
 
 FORM NO. 2. 
 
 By-Law No. — 
 
 A By-law to provide for taking the votes of the 
 electors on the following question : (here state ques- 
 tion). 
 
 Passed the day of A.D. 19 . 
 
 Whereas it is considered desirable and expedient 
 to obtain the opinion of the electors on the following 
 question: (here state question), and to pass this 
 By-law for the purpose of enabling the electors to 
 vote on said question; 
 
 Be it therefore enacted by the Municipal Council 
 of the Corporation of the of as follows : — 
 
 1. The votes of the electors of the Corporation 
 of the of shall be taken on the said ques- 
 tion on the day of A.D. 19 , between 
 the hours of nine o'clock in the forenoon and five 
 o 'clock in the afternoon at the following places, and 
 by the following Deputy-Returning Officers, namely : 
 (here set out the polling places and the names of the 
 Deputy-Returning Officers). 
 
 2. On the day of A.D. 19 , at the 
 hour of o'clock in the noon, the head of the 
 Council of the said Corporation or some member of 
 said Council appointed for that purpose by resolu- 
 tion shall attend at in the said Municipality 
 for the purpose of appointing, and if, requested so 
 to do, shall appoint by writing signed by him, two 
 persons to attend at the filial summing up of the 
 votes by the Clerk, and one person to attend at each 
 polling place on behalf of the persons interested in 
 and voting in the affirmative on said question, and a 
 like number on behalf of the persons interested in 
 and voting in the negative on said question. 
 
 S.A.— 64 
 
1010 CHAPTER 192. 
 
 3. On the day of A.D. 19 , at the 
 
 hour of o'clock in the noon, at , in 
 
 the said municipality, the Clerk of the said muni- 
 cipality shall attend and sum up the votes given in 
 the affirmative and negative on the question. 
 
 Note. — When a question is submitted to obtain 
 the opinion of the electors on the day of the annual 
 election for the Municipal Council, the following 
 shall be substituted for section 1 of the foregoing 
 By-law : — 
 
 1. The votes of the duly qualified electors of the 
 Corporation of the of shall be taken 
 
 on the said question at the same time and at the 
 same places as the annual election for the Municipal 
 Council, and the Deputy-Eeturning Officers appointed 
 to hold said election shall take the vote. 
 
 FOEM NO. 3. 
 
 Notice to be published with a copy or synopsis 
 of a proposed by-law. 
 
 NOTICE. 
 
 Take notice that the foregoing is a true copy or 
 synopsis (as the case may be) of a proposed By-law 
 of the Corporation of the of to be sub- 
 
 mitted to the votes of the electors on the. day 
 of A.D. 19 , between the hours of nine o'clock 
 
 in the forenoon and five o'clock in the afternoon at 
 the following places : — 
 
 (Here state the polling places). 
 
 And that the day of A.D. 19 , at 
 
 o'clock in the noon at in the said muni- 
 
 cipality has been fixed for the appointment of per- 
 sons to attend at the polling places, and at the final 
 summing up of the votes by the Clerk. 
 
 And that if the assent of the electors is obtained 
 to the said proposed By-law it will be taken into con- 
 sideration by the Municipal Council of the said 
 Corporation at a meeting thereof to be held after the 
 expiration of one month from the date of the first 
 publication of this notice, and that such first publica- 
 tion was made on the day of A.D. 19 . 
 
 Clerk. 
 
CHAPTER 192. 2011 
 
 Note 1. — In the case of a money By-law the notice 
 shall contain in addition the following : — 
 
 Take notice further that a tenant who desires to 
 vote upon said proposed By-law must deliver to the 
 Clerk not later than the tenth day before the day ap- 
 pointed for taking the vote a declaration under The 
 Canada Evidence Act, that he is a tenant whose lease 
 extends for the time for which the debt or liability 
 is to be created, or in which the money to be raised 
 by the proposed By-law is payable, or for at least 
 twenty-one years, and that he has by the lease coven- 
 anted to pay all municipal taxes in respect of the 
 property of which he is tenant other than local im- 
 provement rates. 
 
 Note 2. — Where the vote is taken on the date of 
 the annual election for the Municipal Council the first 
 paragraph of the foregoing notice may read: — 
 
 Take notice that the foregoing is a true copy or 
 synopsis (as the case may be) of a proposed By-law 
 of the Corporation of the of to be sub- 
 
 mitted to the votes of the electors at the same time 
 and at the same places as the annual election for 
 the Municipal Council, and the Deputy-Returning 
 Officers appointed to hold the said election shall take 
 the vote. 
 
 FORM NO. 4. 
 
 Notice to be published with a statement of a 
 question submitted. 
 
 NOTICE. 
 
 Take notice that the foregoing is a correct state* 
 ment of the question to be submitted to the votes of 
 the electors on the .day of A.D. 19 , 
 
 between the hours of nine o'clock in the forenoon 
 and five o'clock in the afternoon at the following 
 places : 
 
 (Here state the polling places). 
 
 And that the day of A.D. 19 , at 
 
 o'clock in the noon, at , in the said 
 
 municipality has been fixed for the appointment of 
 persons tp attend at the polling places and at the 
 final summing up of the votes by the Clerk. 
 
 Clerh. 
 
2012 CHAPTER 192. 
 
 Note. — Where the vote is taken on the date of the 
 annual election for the Municipal Council the first 
 paragraph of the foregoing notice may read: — 
 
 Take notice that the foregoing is a correct state- 
 ment of the question to be submitted to the votes of 
 the electors at the same time and at the same places 
 as the annual election for the Municipal Council,, 
 and the Deputy-Beturning Officers appointed to hold 
 the said election shall take the vote. 
 
 263. — (2) Where a municipal Council submitted a local 
 option repealing by-law more than seven weeks 
 after the first publication it was held invalid and 
 the electors could demand another vote the following 
 year on another repealing by-law : Be Vandyke and 
 Grimsby, 14 0. W. E. 538. Day fixed f or^ taking 
 votes more than five weeks after first publication of 
 proposed by-law : Ee Henderson and Mono,' 9 0. W. 
 E. 599. Where no one was prejudiced and the local 
 option by-law was passed by a few hours only within 
 the minimum time limit the objection was not fatal : 
 Ee North Gower L. 0., 24 O. W. E. 489, 25 0. W. E. 
 224, 5 0. W. N. 249. 
 
 263. — (4) The omission in a local option by-law of the 
 time and place where the votes are to be summed 
 up is an omission of an essential part and renders 
 the by-law invalid, section 150 not applying to cure 
 this defect, which is more than an irregularity: Ee 
 Bell and Elma, 13 0. L. E. 80. 
 
 263. — (5) A clerical change, merely substituting one 
 equivalent for another, not a breach of this section: 
 Ee Coxworth and Hensall, 17 0. L. E. 431. " Three 
 successive weeks " means a publication once in each 
 of three successive periods of seven days beginning 
 on the first day of actual publication : Ee Eickey and 
 Marlborough, 9 0. W. E. 563, 930, 14 0. L. E. 587. 
 The word " week " is taken in its ordinary signifi- 
 cation: Ee Armour and Onondaga, 14 0. L. E. 606; 
 Ee Duncan and Midland, 16 0. L. E. 132, 9 0. W. E. 
 826, 10 0. W. E. 345. Sufficient and insufficient pub- 
 lication: Ee Coe and Pickering, 24 U. C. E. 439; Ee 
 Mills and Eichmond, 28 U. C. E. 333; Ee Brophy 
 and Gananoque, 26 C. P. 290; Ee Mace and Fron- 
 tenac, 42 U. C. E. 70 ; Ee Armstrong and Toronto, 
 
CHAPTER 192. 2013 
 
 17 0. E. 766 ; Eickey v. Marlborough, 9 0. W. E. 563, 
 930 ; Ee Duncan and Midland, 16 0. L. E. 132 ; Ee 
 Armour and Onondaga, 14 0. L. E. 606; Ee Bobin- 
 son and Beamsville, 8 0. W. E. 68, 9 0. W. E. 317 ; Ee 
 Wilson and Wardsville, 2 0. W. N. 914; Ee Vaughan 
 and Grimsby, 12 0. L. E. 211 ; Brooker v. Mariposa, 
 22 0. E. 120. Formerly the by-law was required to 
 be " posted " as well as published. As to effect of 
 lack of posting or irregular posting: see Ee Salter 
 and Beckwith, 4 0. L. E. 51 ; Ee Angus and Widdi- 
 field, 24 0. L. E. 318; Ee Begg and Dunwich, 21 0. 
 L. E. 94; Ee Wilson and Wardsville, 2 0. W. N. 914; 
 Ee Eobinson and Beamsville, 9 O. W. E. 317. Size 
 of type to be Used : Ee Leahy and Lakefield, 8 0. W. 
 E. 744. Discretion of municipal Council in carrying 
 out directions : Angus v. Widdifield, 2 0. W. N. 1376, 
 19 0. W. E. 709. As to effect of sec. 150, see notes 
 to that section, ante. 
 
 263.— (7) From E. S. Man., ch. 116, sec. 376 (6). 
 
 264. Failure to comply with the provisions of this sec- 
 tion is fatal to the by-law : Ee Kerr and Thornbury, 
 8 0. W. E. 451. Non-cbmplianee with this section: 
 Ee Schumacher and Chesley, 21 0. L. E. 522, 1 O. 
 W. N. 1041. Objection need not be taken to irregu- 
 larity when it occurs. "Acquiesence " of "agents:" 
 see Quigley v 5 Bastard, 3 0. W. N. 170, 20 0. W. E. 
 233, 24 0. L. E. 622. 
 
 266. The clerk of the municipality should treat as in- 
 cluded in the " voters' list " persons found by the 
 County Judge upon revising the voters' list to be 
 entitled to vote : Ee Wynn and Weston, 10 0. W. E. 
 1115, 15 O. L. E. 1. Farmers' sons and income 
 voters should be included in the voters' lists: Ee 
 Young and Benbrook, 31 0. E. 108. The voters are 
 those entitled, to vote at municipal elections : Ee 
 Croft and Peterborough, 17 0. E.522, 17 A. E. 439. 
 Application, construction and history of section: 
 see Ee McGrath and Durham, 17 0. L. E. 514, 12 0. 
 W. E. 149; Ee Sinclair and Owen Sound, 13 0. L. 
 E. 447, at p. 457; see also 39 S. C. E. 236. Qualifi- 
 cation for voting on money by-law: Ee Dale and 
 Blanchard, 21 0. L. E. 497, 23 0. L. E. 69. Proper 
 list of voters in local option contests : see post, sec. 
 
1014 OHAPTEE 192. 
 
 268, note. See notes to sees. 56-58 and 91, ante, 
 and sec. 279 post ; see also notes to sec. 150. 
 
 267. The certificate of a County Judge as to the correct- 
 ness of the voters' list should not be gone behind or 
 the steps investigated by which he arrived at his 
 conclusions : Ee North Gower, 24 0. W. E. 489, 25 
 0. W. E. 224, 5 0. W. N. 249 ; and see Ee Eyan and 
 Alliston, 18 0. W. E. 131, 21 0. L. E. 583, 22 0. L. 
 E. 200. 
 
 268. What is the proper list considered and result 
 of using wrong list. Not an irregularity within 
 section 150: E. ex rel. Black v. Campbell, 13 0. W. 
 E. 553, 18 0. L. E. 269. Proper list of voters in 
 local option contest and right to enquire into, quali- 
 fication on motion to quash by-law: Ee Mitchell and 
 Campbellford, 11 0. W. E. 941, 16 0. L. E. 578. Pro- 
 per list: Ee Eyan and Alliston, 21 0. L. E. 582, 22 
 O. L. E. 200; Ee West Lorne, 23 0. L. E. 598, 25 
 0. L. E. 267, 277, 26 0. L. E. 339, 47 S. C. E. 451; 
 Ee Aurora Scrutiny, 28 0. L. E. 475; E. ex rel. 
 Black v. Campbell, 18 0. L. E. 269; Carr v. North 
 Bay, 28 0. L. E. 623, and see E. S. 0. 1914, ch. 215, 
 sec. 137 (2). See also notes to sees. 56-58 and 91, 
 ante, and sec. 279 post. 
 
 269. The principle of multiple voting does not apply to 
 voting on local option by-laws : " Ee Sinclair and 
 Owen Sound, 12 0. L. E. 488, 13 0. L. E. 447, 39 S. 
 C. E. 236. See ante sees. 99 and 138 (g) and notes. 
 
 270. Clerk of municipality can vote on submission of 
 local option by-law: Ee Schumacher and Chesley, 
 21 0. L. E. 522. Sturmer v. Beaverton, 2 0. W. N. 
 1116, 19 0. W. E. 255, 24 0. L. E. 65; Fitzmartin v. 
 Newburg, 2 0. W. N. 1114, 1177, 19 0. W. E. 267, 24 
 0. L. E. 102. Contra: Ee Ellis and Eenfrew, 23 0. 
 L. E. 427. As to right of clerk to vote: see also 
 sees. 60 and 127, and notes. As to poll clerks voting : 
 see sec. 100 and notes. 
 
 272. Omission to furnish directions to voters to D. E. 
 O.'s rendered by law invalid: Ee Salter and Beck- 
 with, 4 0. L. E. 51. 
 
CHAPTER 192. 1015 
 
 274. See Ee Sinclair and Owen Sound, notes to sec. 269, 
 ante. As to right of D. E. O.'s to vote on local op- 
 tion by-laws : see Ee Local Option Saltfleet, 16 0. L. 
 E^293; and see sec. 100, ante, notes. 
 
 275. ' ' Electors voting on the by-law : " Ee Brown and 
 E. Flamboro', 2 0. W. N. 1000, 19 O. W. E. 35. Sum- 
 mation of votes: Ee Armour and Onondaga, 14 0. 
 L. E. 606. 
 
 276. For " three-fifths " majority requirement in local 
 option contests and method of computation: see 
 post, sec. 279 (3) notes, and E. S. 0. 1914, ch. 215, 
 sec. 137 (5) (6) and notes. 
 
 278. See as to agreements under former section: E. S. 
 0. 1897, ch. 223, sec. 411, exempting industries from 
 taxation: C. P. E. v. Oarleton Place, 12 0. W. E. 567. 
 
 279. — (1) History of " scrutiny " and similar investiga- 
 tions under'these provisions and other similar acts, 
 together with collection of cases: Ee McGrath and 
 Durham, 12 0. W. E. 1091, 17 0. L. E. 514, at p. 523. 
 Voting on a local option by-law is an " election " 
 and a motion to quash the by-law is a scrutiny : Ee 
 Mitchell and Campbellford, 16 0. L. E. 578. A 
 " scrutiny " is something more comprehensive than 
 a recount. As to its extent and limits : see Ee Local 
 Option in Saltfleet, 16 0. L. E. 293, 11 0. "W. E. 356, 
 545. " Scrutiny of votes " and " scrutiny of bal- 
 lots " distinguished: see Ee McGrath and Owen 
 Sound, 12 0. W. E. 1091 ; and see Ee Saltfleet, 11 0. 
 W. E. 356, 545, 16 0. V. E. 293. "Within two 
 weeks " — where by-law passed before the expiry of 
 this period: see Ee Ooxworth and Hensall, 17 0. L. 
 E. 431, 12 0. W. E. 279; Ee Duncan and Midland, 
 11 /O. W. E. 242. Form of petition for a scrutiny : 
 Biggar, p. 369. Form of recognizance : p. 370. See 
 R. S. 0. 1914, ch. 6, sec. 24; ch. 7, sec. 33; ch. 8, sec. 
 19, and notes. 
 
 279. — (3) In proceedings on scrutiny the certified list 
 is conclusive except as to (1) persons guilty of cor- 
 rupt practices, etc., (2) becoming non-resident, etc., 
 (3) persons disqualified under the Elections Act. 
 This applies to proceedings to quash a local option 
 
1016 
 
 CHAPTER 192. 
 
 by-law: Ee McGrath and Durham, 17 0. L. E. 514. 
 Judge's powers of enquiry considered in regard to 
 persons who have voted and their right to do so : Ee 
 Orangeville L. 0. By-law, 20 0. L. E. 476, 1 0. W. 
 N. 536. A County Court Judge holding a scrutiny 
 of the ballot papers deposited in a vote on a munici- 
 pal by-law may go behind the voters' list and inquire 
 if a tenant whose name is placed thereon has the re- 
 sidential qualification entitling him to vote. _ The 
 Judge has no power to enquire whether rejected 
 ballots were cast for or against the by-law: Ee 
 West Lome, 23 0. L. E. 598, 25 0. L. E. 267, 
 277, 26 0. L. E. 339, 47 S. C. E. 451. Where votes 
 are cast by persons who were residents at the 
 time of official revision of voters' lists and who 
 have abandoned their residence before the time of 
 voting, and by non-residents improperly put on the 
 list and who are non-residents at the time of voting, 
 the Judge on a scrutiny has jurisdiction to enquire 
 as to the validity of the votes of these persons: Ee 
 Saltfleet L 0. By-law, 16 0. L. Ej.293; Ee West 
 Lome, supra; Ee Aurora Scrutiny, 28 0. L. E. 
 475. A scrutiny includes jurisdiction to investi- 
 gate the voter's qualification so long as it does not 
 conflict with the finality of the lists under the On- 
 tario Voters' Lists Act. The Judge has jurisdic- 
 tion to investigate whether or not in a given case 
 the right to vote, finally and absolutely certified by 
 the list, was subsequently so exercised as to consti- 
 tute the ballot a legal vote : Ee Aurora Scrutiny, 28 
 0. L. E. 475. Where a voter who was on the list as 
 resident in two wards at the time of the revision of 
 the list and before the time of voting, changed his 
 actual residence from one to the other property, the 
 Judge, on scrutiny, has power to inquire into the 
 validity of such a vote, and also where a votervoted 
 twice : Ee Aurora Scrutiny, 28 0. L. E. 475. See also 
 Ee Strathroy L. 0. By-law, 1 0. W. N. 465, 15 0. W. 
 E. 386; Ee Mitchell and Campbellford, 11 0. W. E. 
 941; Ee Weston Local Option, 9 0. W. E. 250; Ee 
 Orangeville L. 0. By-law, 20 0. L. E. 476, 1 0. W. 
 N. 536, 15 0. W. E. 564. Certifying the result of a 
 scrutiny of ballots cast at the voting on a munici- 
 pal by-law is a judicial and not a ministerial act : Ee 
 Aurora Scrutiny, 28 0. L. E. 475, 4 0. W. N. 1069. 
 Effect of this: see Ee Local Option in Saltfleet, 16 
 
CHAPTER 192. 1017 
 
 0. L. E. 293, 11 0. W. E. 356, 545. In determining 
 the " majority " of the votes given and the "total 
 number of electors voting ' ' in local option elections, 
 position of spoiled ballots and blank ballots con- 
 sidered: see Ee Weston Local Option, 9 0. W. E. 
 250; Ee Swan Eiver Local Option, 3 W. L. E. 546. 
 "Majority " in case of local option by-law means 
 such majority as is required by statute : Ee Duncan 
 and Midland, 16 0. L. E. 132. Ballots rejected on a 
 scrutiny must be deducted from the total number of 
 votes cast in favour of the by-law: Ee West Lome 
 Scrutiny, 47 S. C. E. 451. As to three-fifths major- 
 ity required to pass local option by-laws : see E. S. 
 0. 1914, ch. 215, sec. 137. The Court first decides 
 whether enough votes were illegally • cast to affect 
 the result. If so, should the Court then quash for 
 illegality or proceed to ascertain how the bad ballots 
 were marked? Voters alone are protected: Sturmer 
 v. Beaverton, 2 0. W. N. 1116, 19 0. W. E. 255. Pro- 
 tection of persons voting from disclosing in a scru- 
 tiny, how they voted, where votes improperly cast: 
 Ee West Lome Scrutiny, 23 0. L. E. 598, 25 0. L. 
 E. 267, 277, 26 0. L. E. 339, 47 S. C. E. 451. Motion 
 to prohibit Judge from certifying to the result: Ee 
 Schumaker and Chesley, 17 O". W. E. 174. 
 
 279. — (5) " The Judge shall possess the like powers:" 
 see sees. 170-173, ante, and notes; see also Ee Au- 
 rora Scrutiny, 28 0. L. E. 475. On a scrutiny of the 
 ballot papers cast -on the voting for a bonus by-law 
 a County Judge cannot award costs against the cor- 
 poration if it be successful in upholding the by-law : 
 Ee Aldborough and Schmeltz, 32 O. E. 64. 
 
 280.— (1) Applicability to local option by-laws: Ee 
 Dewar and East Williams, 10 0. L. E. 463. Second 
 reading without formal motion: see Ee Kelly and 
 Toronto Junction, 8 0. L. E. 162. The final passing 
 is purely a ministerial duty; defects in the manner 
 •of the passing are of little consequence : Ee Duncan 
 and Midland, 10 0. W. E. 345, 11 0. W. E. 242, 16 
 0. L. E. 132 ; but see Ee Dewar and East Williams, 
 10 0. L. E. 463. 
 
 280.^(3) Final passing; scrutiny intervening; three- 
 fifths majority: Ee Duncan and Midland, 16 0. L. 
 
1018 CHAPTER 192. 
 
 E. 132, 11 0. W. E. 242. Objection that by-law was 
 passed before the two weeks allowed for scrutiny 
 overruled: Ee Coxworth and Hensall, 17 O. L. E. 
 431, 12 0. W. E. 279 ; see also Ee Duncan and Mid- 
 land, 11 0. W. E. 242. Third reading of by-law be- 
 fore the expiration of two weeks allowed for scru- 
 tiny: see Ee Joyce and Pittsburg, 16 O. L. E. 380; 
 see also as to time of passing: Ee Eobinson and 
 Beamsville, 8 0. W. E. 689, 9 0. W. E. 317. 
 
 PAET XI. 
 
 Quashing By-laws. 
 
 283. See formerly : E. ex rel. Mason v. Butler, 17 P. E. 
 382. Nine interested ratepayers combined to apply 
 to quash a by-law, made the necessary deposit and 
 put forward one of their number who launched the 
 application and afterwards gave notice discontinu- 
 ing. After the time for making the application had 
 expired, the application not having been dismissed, 
 one of the remaining ratepayers was on his appli- 
 cation allowed to continue the proceedings in the 
 original applicant's name: Ee Eitz and New Ham- 
 burg, 4 0. L. E. 639. The Municipal Council hav- 
 ing decided not to oppose a motion to quash a local 
 option by-law, certain electors were allowed at 
 their individual risk as to costs to oppose it in the 
 Council's name: Ee Salter and Beckwith, 4 0. L. E. 
 51. A motion to quash a by-law should be made to 
 a Judge in Court and from his decision for or 
 against the motion an appeal lies to a Divisional 
 Court: 1913 Eule 492. The period of seven clear 
 days' notice being fixed bv statute cannot be short- 
 ened under Con. Eule 353 (1913 Eule 176) : Ee Sweet- 
 man and G-osfield, 13 P. E. 293 ; see also Con. Eules 
 349, 356 and H. & L. notes, pp. 564-5 (1913 Eules 
 204, 213). Irregularities not sufficient to invalidate 
 by-law: see Dillon and Cardinal, 10 O. L. E.»371. 
 Motion to quash a by-law for the construction of 
 electric light works on the ground that 3 Edw. VII. 
 ch. 19, sec. 569 (5) had not been complied with, and 
 also upon the ground of the omission to appoint and 
 give notice of the appointment of a day for finally 
 considering the by-law in Council. It was held that 
 
CHAPTER 192. JQ19 
 
 the jurisdiction to quash should not be exer- 
 cised as the by-law might be validated by registration 
 (under section 296, infra), and the irregularities had 
 not affected the result. The jurisdiction to quash 
 ought, generally speaking, to be exercised in every 
 case of an illegal by-law, which cannot be validated, 
 but in the case of one which can ,be validated it 
 should be exercised only, generally speaking, when 
 the irregularities in question affected or might have 
 affected the passing of it: Cartwright v. Napanee, 
 11 0. L. E. 69. Refusal of Court in its discretion to 
 restrain a Municipal Council from acting on a by- 
 law for the payment of money not provided for on 
 the face of its estimates passed against protest of 
 minority of Council and in contravention of its pro- 
 cedure : Heff erman v. Walkerton, 6 0. L. E. 79. On a 
 motion to quash a by-law authorizing the expropria- 
 tion of an easement to construct a sewer, it ap- 
 peared that the sewer was part of a system, but 
 the upper end thereof, and not an outlet for any 
 part already constructed. Held, no money having 
 been spent under the by-law, it had not been acted 
 on so as to prevent its being quashed: Ee Davis 
 and Toronto, 21 0. E. 243. As a general rule no 
 councillor should vote on a matter involving his 
 direct pecuniary interest, but no interest can dis- 
 qualify a councillor from performing his duties as 
 such that spring solely from his being a ratepayer 
 in the municipality: Elliott v. St. Catharines, 12 
 0. W. E. 653, 13 0. W. E. 89. History of statutory 
 powers to quash by-laws, and of provisions for 
 scrutiny; cases collected: Ee McGrath and Dur- 
 ham, 17 0. L. E. 514, at 523; Ee Alexander and 
 Milverton, 12 0. W. E. 61. Costs of motion to quash 
 by-law where legislature has intervened to validate 
 by-law admittedly bad : Ee Alexander and Milver- 
 ton, 12 0. W. E. 61. Eeal applicant held liable for 
 costs : Ee Sturmer and Beaverton, 20 0. W. E. 560, 
 21 O. W. E, 55, 390, 3 0. W. N. 613, 715, 25 0. L. 
 E. 190, 566. See also cases collected in Biggar's 
 Municipal Manual, pp. 375-384. Form of notice of 
 motion to quash by-law, p. 382. Form of recogni- 
 zance, p. 383. 
 
 284. Majority for local option by-law procured by 
 bribery: Ee Gerow and Pickering, 8 0. "W. E. 356, 
 
1020 CHAPTER 192. 
 
 497, 12 0. L. R. 545; and see notes to sees. 187- 
 189, and sections there referred to. 
 
 285. A by-law of a county council detached certain lands 
 from a village municipality and added them to 
 another municipality. The village corporation was 
 entitled, under this section, to apply to quash the 
 by-law: Re Southampton & Bruce, 8 0. L. R. 106, 
 664. 
 
 PART XII. 
 
 Money By-laws. 
 
 288. — (1) Application of section: Re Holmested and 
 Seaforth, 2 O. W. N. 464, 17 O. W. R. 1060, Forms 
 of debenture by-laws : see Biggar, pp.- 395-399, 404, 
 et seq. 
 
 288. — (3) As to alternative provisions of this sub-section 
 and sub-sec. (4) : see Forbes v. Grimsby School 
 Board, 7 O. L. R. 137. 
 
 288. — (4) The omission to observe the provisions of 
 3 Edw. VII., ch. 19, sec. 685 (2), which were merely 
 directory was not fatal to a by-law otherwise valid 
 on its face: Ward v. Welland, 31 0. R. 303; see 
 now R. S. 0. 1914, ch. 193, sec. 40, sub-sees. (2) 
 and (6). Non-oompliance with the terms of this 
 section in regard to equality of annual instalments, 
 cured by registration under sec. 296: Georgetown 
 v. Stimson, 23 0. R. 33. 
 
 288. — (7) A by-law was passed under the provisions of 
 the Act authorizing a township corporation to raise 
 a sum by issuing debentures to be met by special 
 rate, to provide a bonus for a railway company, 
 payable on its compliance with certain conditions, 
 no time for compliance being limited. The deben- 
 tures were duly executed but remained unissued in 
 the control of the municipality. Held that until the 
 sale or negotiation of the debentures there was no 
 debt on the part of the township, and the special 
 rate was not leviable though the time fixed for the 
 payment of some of the debentures had passed: 
 Bogart v. King, 1 0. iL. R. 496. 
 
CHAPTER 192. 1021 
 
 288. — (11) Date when by-law takes effect when date left 
 blank: Ee Caldwell and Gait, 30 0. E. 378. 
 
 289. A municipality cannot pass a by-law for the pur- 
 chase of land to be presented to the Dominion 
 Government for the site of a post office and custom 
 house : Jones v. Port Arthur, 16 0. E. 474. Muni- 
 cipal corporations are within the Statutes of Mort- 
 main : Brown v. McNab, 20 Gr. 179. Powers of cor- 
 porations as to holding lands : Atty.-Gen. v. "Webster, 
 L. E. 20 Eq. 483; Ee Campden Charities, 18 Ch. D. 
 310. See as to mortgages : Brown v. McNab, 20 Gr. 
 179; Township of Oxford v. Bailey, 12 Gr. 276; Belle- 
 ville v. Judd, 16 C. P. 397. Eight to enquire into 
 purpose of purchase of land by a municipality: 
 Verner v. Toronto, 21 O. W. E. 170. Contract for 
 supply of electric light: Hogan v. Brantford, 1 O. 
 W. N. 226. 
 
 295. Validation of municipal by-law : Ee Davis & Beams- 
 ville, 2 0. W. N. 423 
 
 The Ontario Eailway and Municipal Board have 
 approved the following form of affidavit on applica- 
 tion for approval of By-law under E. S. 0. 1914, ch. 
 266, sees. 43, 44. 
 
 The Ontario Eailway and Municipal Boaed. 
 
 In the matter of the Application of the Corpora- 
 tion of the Township of in the of 
 for validation of its By-law No. and the 
 debentures thereunder ($ * for 
 
 I, of the Township of in the 
 
 of make oath and say : — 
 
 1. That I am the Clerk of the Council of the 
 Municipality of the Township of in the 
 
 of . 
 
 2. That the Board of Public School Trustees for 
 School Section Number of the Township of 
 
 in the of made due applica- 
 
 tion, a true copy of which is hereto annexed marked 
 "A," to the Council of the Municipality of the 
 Township of under Section, 44 of the Public 
 
 Schools Act, for the issue of debentures to the 
 amount of for the purpose of in the said 
 
2022 CHAPTER 192. 
 
 School Section and proved to the satisfaction of the 
 Council that the proposal for such loan had been sub- 
 mitted by the Trustees to and sanctioned at a special 
 meeting of the ratepayers of the said Section duly 
 called for that purpose. 
 
 3. That on the day of A.D., 19 , 
 the said By-law No. , providing for the issue 
 of the said debentures, was duly passed by the said 
 Council, and was duly signed by the Eeeve and Clerk 
 and the Corporate seal was affixed. 
 
 4. That a copy of the said By-law is annexed to 
 this my affidavit, marked with the letter " B," and 
 that such copy is a true copy including the signatures 
 thereto. 
 
 5. That the said By-law being Number of 
 the By-laws of the Municipality of the Township of 
 
 was duly registered within four weeks of 
 the passing thereof on the day of A.D., 
 
 19 , as Number in the Registry Office for the 
 
 of at being the Registry 
 
 Division in which the Municipality of the Township 
 of is situate. 
 
 6. That notice of the passing of said By-law was 
 immediately after the registration thereof published 
 in the , a public newspaper published in the 
 Town of in the of being 
 the Town of the in which the said 
 Municipality is situated, in the issues of such news- 
 paper which were published on , 
 being at least once a week for three successive weeks, 
 and that a true copy of the said Notice is hereto 
 annexed marked " C. " 
 
 7. That the said By-law is in full force and effect 
 and has not been altered or repealed, and no action, 
 motion, or proceeding, in which the validity of the 
 said By-law has been called in question or by which 
 it is sought to quash the same or any part thereof, 
 has been commenced or is pending, and no notice of 
 any such motion, action or proceeding has been given, 
 and I have no reason to believe that any such motion, 
 action or proceeding will be made or taken. 
 
 8. That all the recitals in the said By-law are 
 true in substance and in fact, and comply with Section 
 288 of " The Municipal Act." 
 
 9. That there is no irregularity in, or in connec- 
 tion with, the said By-law No. , or the proceed- 
 ings had and taken in connection therewith, except 
 
CHAPTER 192. 2023 
 
 (set forth fully and specifically every irregularity for 
 consideration by the Board) : — 
 •Sworn, etc. 
 (If By-law be passed under Section 43 of the 
 Public School Act (B. S. 0. 1914, ch, 266), make 
 necessary changes in above Affidavit.) 
 
 The following is the form approved by the Board for 
 use on applications for approval of bonus or money 
 By-law:— (See sees. 260-296 and 395-387). 
 
 The Ontario Railway and Municipal Board. 
 
 In the matter of the Application of the Corpora- 
 tion of under section 295 of " The 
 Municipal Act, ," for validation of its By-law 
 No. and the Debentures thereunder ($ 
 for 
 
 I, of the of in the 
 
 of make oath and say : — 
 
 1. That I am the Municipal Clerk of the said 
 Corporation. 
 
 2. That the Municipal Council of the said Cor- 
 poration did on the day of finally pass 
 By-law No. a true certified copy of which is 
 hereto annexed, marked " A, " providing for a poll 
 on said (then proposed) By-law No. 
 
 3. That a copy* of said (then proposed) By- 
 law, together with a Notice, complying with section 
 263 (5) and (6) of the said Act (a true copy of which 
 
 and Notice is hereto annexed marked " B,") 
 was published once a week for three successive weeks 
 in the issues of a newspaper pub- 
 
 lished at of the dates following : — 
 
 * (If a Synopsis published, make a true copy of 
 same, and the Notice published therewith, an Exhibit 
 to Affidavit). 
 
 4. That the requirements of section 264 of " The 
 Municipal Act, ," were duly complied with. 
 
 5. That the said By-law No. was adopted 
 by the persons qualified to vote thereon at a poll duly 
 held according to law on the day of, 
 
 A.D., 19 , there being valid votes in favor of 
 
 and valid votes against the said 
 
 By-law, the total possible valid vote being 
 
 6. That after I had (at the time and place pro- 
 vided for in said By-law No. ) summed up the 
 
1024 CHAPTER 192. 
 
 number of votes cast, I declared the result of the vot- 
 ing and did forthwith certify to the Council the result 
 of the voting and the total number of persons entitled 
 to vote upon the By-law, and a true copy of my 
 Certificate is hereto annexed marked " C." 
 
 7. That a scrutiny of the votes was not applied 
 for and after the expiration of two weeks from the 
 declaration of the result of the voting, and within 
 six weeks after the voting took place, the Council of 
 the said Corporation duly passed the said By-law 
 No. 
 
 8. That the said By-law No. with the Notice 
 mentioned in section 281 of the said Act, was duly 
 promulgated by publication at least once a week for 
 three successive weeks in the issues of a 
 
 newspaper published at of the 
 
 dates following: — 
 
 and that a true copy of the said By-law and Notice 
 as so published is hereto annexed marked " D." 
 
 9. That within four weeks after the passing of 
 the said By-law the same was duly registered on the 
 
 day of 19 , in the proper Eegistry 
 
 Office being the Eegistry Office for as Number 
 
 in and that a Notice of such registra- 
 
 tion (a true copy of which Notice is hereto annexed 
 marked " E "), was immediately after such regis- 
 tration published at least once a week for three suc- 
 cessive weeks in the issues of newspaper, a 
 
 newspaper published at aforesaid 
 
 of the dates following:— 
 
 10. That the recitals in the said By-law No. 
 are true and in compliance with section 288 of the 
 said Act, and duly and correctly set forth : — 
 
 (a) The amount of the debt to be created, 
 
 namely $ and in brief and general 
 
 terms the object for which it is to be 
 created, namely 
 
 (b) The amount of the whole rateable pro- 
 
 perty of the Municipality, according to 
 the last revised assessment roll, 
 
 namely $ 
 
 (c) The amount of the debenture debt of the 
 
 Corporation, namely $ and that 
 
 of the principal or interest is in 
 
 arrear ; 
 and that the said By-law provides for raising in each 
 year, during the currency of the debentures or any 
 
CHAPTER 192. JQ25 
 
 of them, a specific sum or sums sufficient to pay (give 
 particulars here). 
 
 11. That no motion, action or proceeding is pend- 
 ing in which the validity of the said By-laws or either 
 of them is called in question, or by which it is sought 
 to quash the same, and I have no knowledge or notice 
 of any kind of any intended motion, action or pro- 
 ceeding of such a nature. 
 
 12. That there is no irregularity in, or in con- 
 nection with, the vote or any of the proceedings 
 prior to the passing of either of the said By-laws or 
 in, or in connection with, the said By-laws them- 
 selves, or either of them, or in, or in connection with, 
 the passing, promulgation or registration of the said 
 By-law No. except (here set forth specifically 
 and in detail every irregularity for consideration by 
 the Board) : — 
 
 (In case By-law grants a bonus to manufacturers 
 add:) 
 
 13. That the said By-law complies with, and does 
 not in any way contravene any of the provisions of 
 section 396 of " The Municipal Act, ," and the 
 Bonus granted thereby, together with bonuses 
 already granted, will not require an annual levy for 
 the payment of principal and interest exceeding ten 
 per cent, of the total amount required to he raised 
 by taxation for the year next preceding the passing 
 of the said By-law No. 
 
 Sworn, etc. 
 
 The following are the approved forms for use on 
 application for approval of By-laws passed under 
 the Local Improvement Act, E. S. 0. 1914, ch. 193. 
 Form " A " Works on Petition (See sec. 3). 
 
 The Ontabio Bailway and Municipal Board. 
 
 In the matter, of the Application, under Section 
 295 of " The Municipal Act, ," of the Corpora- 
 tion of for validation of its By-law No. 
 , and the debentures thereunder, ($ for 
 ). 
 I, of the of in the 
 County of make oath and say:— 
 
 1. That I am the Municipal Clerk of the said 
 Corporation ; 
 
 S.A.— 65 
 
1026 CHAPTER 192. 
 
 2. That a Petition for signed by at 
 least two-thirds in number of the owners, represent- 
 ing at least one-half of the value of the Lots liable 
 to be specially assessed, ' was on the day of 
 
 19 , lodged with me and found by me 
 to be sufficient, and was duly certified as such on the 
 day of , 19 , under section 16 of 
 
 " The Local Improvement Act," and that a true copy 
 of my certificate is now shown to me and marked 
 Exhibit " A " hereto; 
 
 3. That the Council of the said Corporation did, 
 by By-law passed on the day of by a vote 
 of of all the members, provide that the cost 
 of the work should be apportioned and borne as 
 follows : 
 
 and that a copy of such By-law is now produced and 
 shown to me and marked Exhibit " B " hereto; 
 
 4. That the said Council did, by By-law No. , 
 passed on the day of provide for the 
 making of the reports, statements, estimates, and 
 special assessment roll for the said work ; 
 
 5. That before passing the By-law for undertak- 
 ing the work, the said Council did procure to be made 
 a report as follows : — (Shew that Section 30 was com- 
 plied with, giving all details) ; 
 
 6. That before a Special Assessment was imposed 
 the said Council did procure to be made a Special 
 Assessment Boll in which were entered (Shew that 
 Section 31 was strictly complied with, giving de- 
 tails) ; 
 
 7. That before a Special Assessment was imposed 
 a Sittings of the Court of Bevision for the hearing 
 of complaints against the proposed Special Assess- 
 ment was duly held in accordance with Sections 33, 
 34, 35, 36 and 37 of " The Local Improvement Act," 
 that Ten days' Notice of the said Sittings was duly 
 given by publication in the newspaper 
 published at and at least Fifteen days 
 before the day appointed for the Sittings a Notice 
 was mailed to the Owner of every Lot to be specially 
 assessed, a true copy of which Notice so mailed is 
 marked Exhibit " C " hereto, and that thereafter 
 (such corrections having been made therein as were 
 necessary to give effect to the decisions of the Court 
 of Bevision) I did on the day of duly 
 certify the Special Assessment Boll in accordance 
 
CHAPTER 192. 
 
 1027 
 
 with Section 38 of " The Local Improvement Act," 
 and that a true copy of the said Special Assessment 
 Eoll as so certified by me is now shewn to me and 
 marked Exhibit " D " hereto: 
 
 8. That there was no appeal to a Judge of the 
 County Court from any decision of the Court of 
 Eevision respecting the said Special Assessment Roll 
 (or as the case may be, setting forth the facts fully) ; 
 
 9. That now produced and shown to me and 
 marked Exhibits " E," hereto are By-laws 
 Nos. of the said Council, providing respec- 
 tively as follows : — 
 
 Exhibit " E " By-law No. to authorize 
 
 the construction of 
 
 Exhibit " F "— By-law No. to provide for 
 
 borrowing 
 
 Exhibit " G "—By-law (if any) No. to 
 
 consolidate 
 
 10. That the following defects or irregularities 
 in, or in the proceedings taken in connection with, 
 the said Petition, Special Assessment Boll or By-laws 
 Nos. are submitted to the said Board for 
 consideration : — 
 
 11. That there is no other irregularity or defect 
 in the said Petition or Special Assessment Boll, or 
 By-laws Nos. or any of them, or in the 
 proceedings had or taken in connection with the same, 
 or any of them. 
 
 12. That no action or proceeding is pending in 
 which the validity of the said By-laws or any of 
 them is called in question, or by which it is sought 
 to quash the same, and I have no knowledge or notice 
 of any kind of any intended action or proceeding of 
 such a nature. 
 
 Sworn, etc. 
 
 Form " B " — "Works without petition, under Sec- 
 tions 5, 9 or 10 of E. S. 0. 1914, ch. 193. 
 
 Use foregoing Form " A " so far as applicable; 
 also prove Vote of Council (Sees. 5, 9, 10) ; and also 
 prove publication of Notice, giving dates, name and 
 description of newspaper (Sec. 11), and make a true 
 copy of the Notice an Exhibit. 
 
^Q2g CHAPTER 192. 
 
 Form " C "—On the Initiative Plan. 
 
 Use foregoing Form " A " so far as applicable; 
 also prove publication of Notice (Sec. 13), giving 
 dates and name and description of newspaper, prove 
 service of Notice, with full details (Sec. 13), and 
 make a true copy of tbe Notice an Exhibit. Sate 
 whether Petition filed against the work, and shew 
 fully how disposed of. 
 
 296. A summary application to quash a municipal by- 
 law is " made " when notice of the motion is served, 
 the affidavits in support of it having been already 
 filed. It is not necessary that the motion should 
 be brought on for hearing within the time pre- 
 scribed: Re Shaw and St. Thomas, 18 P. R. 454. 
 When a by-law can be validated by registration the 
 jurisdiction to quash should only be exercised when 
 the irregularities in question affected, or might 
 have affected the passing of it: Cartwright v. 
 Napanee, 11 0. L. R. 69; see also Georgetown v. 
 Stimson, 23 0. R. 23. Setting aside by-law regis- 
 tered under this section as being ultra vires: 
 Ottawa Electric v. Ottawa, 6 0. W. R. 930, 8 0. W. 
 R. 204. As to mode of registration of municipal 
 by-laws : see Guthrie 's decisions under the Registry 
 Act, 1897, pp. 38, 48; and see R. S. 0. 1914, ch. 124, 
 see. 70. 
 
 PART XIII. 
 
 Ybaelt Rates and Estimates. 
 
 297. See Bogart v. King, 32 0. R. 135, and 1 0. L. R. 
 496. 
 
 299. Right of city on incorporation, to share in county 
 surplus: Woodstock v. Oxford, 17 0. W. R. 176, 
 2 0. W. N. 134, 22 0. L. R. 151. 
 
 300. In the absence of agreement to the contrary, the 
 vendor assumes the payment of the proportion of 
 taxes for the year up to the completion of the title : 
 Armour, Titles, p. 164, and cases there cited. 
 
CHAPTEE 192. ]^Q29 
 
 PART XIV. 
 
 Respecting Finances. 
 
 302. The provisions of the section do not apply to deben- 
 tures payable in annual instalments, there being in 
 such a case no sinking fund to be provided : R. ex 
 rel. Seymour v. Plant, 7 0. L. R. 467. No special 
 appropriation is necessary in . order to create a 
 special rate applicable to the payment of principal 
 and interest of a municipal debt. If the provisions 
 of the Act are observed, such separate rate and the 
 sinking fund as part of it arise as the taxes are col- 
 lected, and where no such appropriation having been 
 made, one of the municipal council voted for de- 
 fraying certain of the current expenses of the muni- 
 cipality out of the amount attributable to that fund, 
 his election as reeve was set aside and he was dis- 
 qualified. When without any such appropriation, 
 so much of the year's income has been expended as 
 to leave no more than sufficient to cover such sink- 
 ing fund, the balance is impressed with that 
 character and to apply it otherwise is a diversion 
 within the meaning of this section: R. ex rel. Cav- 
 anagh v. Smith, 26 0. R. 632. 
 
 314. Form of debenture and debenture coupon: see 
 Biggar, pp. 446-7. 
 
 315. Where a municipal by-law provided for the pay- 
 ment of interest on debentures, but not principal, 
 and the interest had all been paid but not the prin- 
 cipal although that was due, it was held that the 
 effect of this section was that one payment of in- 
 terest validates the debenture in respect of which 
 it is paid, and one payment of principal validates 
 the series in respect to which it is paid: Standard 
 Life v. Tweed, 6 0. L. R. 653. 
 
 319. A lender is bound to enquire into the amount of 
 taxes authorized to be levied by a municipality to 
 meet the then current expenditure, and cannot law- 
 fully lend more than that sum, although not bound 
 to enquire into the alleged necessity for borrowing. 
 
1Q30 CHAPTER 132. 
 
 A municipal council may, however, with the consent 
 of the ratepayers raise money by debentures to 
 repay money so unlawfully borrowed when the 
 expenditure, although not included in the estimates, 
 was for purposes within the general powers of the 
 corporation: Fitzgerald v. Molsons Bank, 29 0. E. 
 105. The power conferred on a municipality of 
 borrowing money to meet current expenditure is 
 distinct from the power conferred of borrowing 
 money for school purposes, and the amount bor- 
 rowed for the former purpose must not exceed 80 
 per cent, of the amount collected in the preceding 
 municipal year for the current expenditure of the 
 municipality, apart from the expenditure for school 
 purposes. An outlay which is not contemplated 
 when the estimates are prepared and for which no 
 provision as a special or possible contingency is 
 made in the estimates for the year, cannot be treated 
 as part of the ordinary expenditure, to meet which, 
 a loan may be effected: Holmes v. Goderieh, 5 O. 
 (L. E. 33. Costs of ratepayer suing on behalf of 
 himself and all other ratepayers where statutory 
 limit exceeded: see Holmes v. Goderieh, 5 O. L. 
 E. 33. 
 
 PAET XV. 
 
 Acquisition op Land and Compensation. 
 
 321. Property expropriated in Eminent Domain proceed- 
 ings. Measure of compensation: see Annotation 
 1 D. L. E. 508. 
 
 322. An expropriation by-law does not operate to create 
 vested interests. It creates a statutory option to 
 take the land at a price to be fixed by arbitration: 
 Grimsbaw v. Toronto, 8 O. L. E. 512. Propriety of 
 registration of expropriation by-law, and effect: 
 Grimshaw v. Toronto, 28 0. L. E. 512; and see E. 
 S. 0. 1914, ch. 124, sec. 70. 
 
 324. Where an expropriation by-law did not authorize 
 entry, a trifling entry will not preclude the muni- 
 cipality from repealing the by4aw : Guest v. Hamil- 
 ton, 5 0. W. N. 310, 25 O. W. E. 274; see also 
 Grimshaw v. Toronto, 28 0. L. E. 512. 
 
CHAPTER 192. 1031 
 
 325. Compensation for lands injuriously affected in the 
 exercise of municipal powers is in the nature of 
 damages, and interest should not be allowed thereon 
 before the time of the liquidation .of the damages 
 by the making of the award. Distinction between 
 such compensation and compensation for lands 
 taken or taken and injuriously affected: see Ee 
 Leak and Toronto, 29 0. E. 685, 26 A. E. 351. As 
 to costs : see Ee Patullo and Orangeville, 31 0. E. 
 192, post sec. 344. A property on the west side of 
 a street running north and south was " injuriously 
 affected "by the closing of a street running from 
 the first street in an easterly direction, opposite the 
 property in question: Ee Tate and Toronto, 10 0. 
 L. E. 651. Damage resulting from closing highway: 
 Ee Taylor and Belle Eiver, 15 0. W. E. 733, 1 0. W. 
 N. 609, 17 0, W. E. 815, 2 0. W. N. 387. Matters 
 which the arbitrator should consider as increas- 
 ing or diminishing permanently or temporarily 
 the value of land where lands expropriated for 
 street widening: Review of authorities: Ee Gib- 
 son and Toronto, 28 0. L. E. 20. Expropriation of 
 land for highway; compensation: McLean v. How- 
 land, 14 0. W. E. 509, 16 0. W. E. 608. Expro- 
 priation; right to lateral support: Manchester 
 Corporation v. New Moss Colliery, 1906, 2 Ch. 546. 
 Injury to land as a result of highway improvement 
 where watercourses interfered with : Martin v. Mid- 
 dlesex, 4 0. W. N. 1540. Flooding land adjoining 
 highway: McMulkin v. Oxford, 1 0. W. N. 410, 747, 
 15 0. W. E. 294, 16 0. W. E. 3. " Necessarily result :" 
 Merritt v. Toronto, 3 0. W. N. 1550, 22 0. W. E. 710, 
 27 0. L. E. 1. "Due compensation:" Ee Mac- 
 donald and Toronto, 27 0. L. E. 179. " Contem- 
 plated work " means work of the corporation alone. 
 If a road is closed as part of a scheme for granting 
 facilities to a company and the company's works 
 enhance the value of the lands, this will not be 
 taken into consideration : Ee Brown and Owen Sound, 
 9 0. W. E. 727, 14 0. L. E. 627 (note changed word- 
 ing of present section). Compensation for expro- 
 priation; contingent advantages: Ee Gibson and 
 Toronto, 4 0. W. N. 612. A person in possession 
 of land as owner, and having, therefore, a title 
 against all the world but the rightful owner, has a 
 
JQ32 CHAPTER 192. 
 
 prima facie right to compensation on the taking of 
 the land under statutory powers: Perry v. Clis- 
 sold, 1907, A. 0. 73. An arbitrator to whom is 
 referred a claim for compensation for injury to land 
 through lowering the grade of a highway, has no 
 power to direct the municipal corporation to main- 
 tain a retaining wall: Ee Burnett and Durham, 
 31 0. E. 262. In expropriation, the value to be 
 arrived at is the value to the owner, not the value 
 to the expropriating body: Ee Harvey and Park- 
 dale, 16 A. E. 468; see also Ee Lucas and Chester- 
 field Gas and Water Board, 1909, 1 K. B. 16; Ee 
 Fitzpatrick and New Liskeard, 13 0. W. E. 806. 
 Eight of compensation: Donaldson v. Dereham, 10 
 0. W. E. 220. Method of computing amount to be 
 awarded where lucrative business is practically obli- 
 terated by expropriation proceedings by municipal 
 corporation: Meyer v. Toronto, 25 0. W. E. 1. 
 "Expropriated by the corporation," e.g., under sees. 
 373 (2), 398 (11) (32), 400^11), 472, 482, 483 (9), 
 etc. Compare expropriatory enactments in E. S. 
 O. 1914, ch. 35, sees. 18, et seq., (The Public Works 
 Act) ; E. S. 0. 1914, ch. 185, sees. 81, et seq., (The 
 Eailway Act), etc.; and also E. S. 0. 1914, ch. 178, 
 see 166 ; ch. 204, sec. 54 ; ch. 38, sec. 17 ; ch. 39, sec. ., 
 9, etc. 
 
 326. The provision limiting the time for the enforce- 
 ment of claims for compensation had no retroactive 
 effect: Ee Eoden and Toronto, 25 A. E. 12. Form 
 of notice: see Biggar, p. 470. 
 
 327. See Herriman v. Owen Sound, 16 0. W. E. 98, 1 
 0. W. N. 759. 
 
 328. Where a municipal corporation taking over the 
 works of a waterworks company under the statutory 
 arbitration procedure, wishes to take advantage 
 of sees. 328-9, it must pay into Court the amount 
 awarded with interest to the date of payment in, 
 and six months' interest in advance: Ee Cornwall, 
 30 0. E. 81, 27 A. E. 48. 
 
CHAPTER 192. 1033 
 
 PAET XVI. 
 
 Akbiteations. 
 
 333. In an arbitration for the purchase of an electric 
 light plant a question arose concerning E. S. 0. 
 1897, ch. 62, sec. 8 It seemed in that case that the ar- 
 bitration was really under the Municipal Act, and 
 if so, section 8 was not applicable, under the word- 
 ing of 3 Edw. VII., ch. 19, sec. 467: Ee Sturgeon 
 Falls, 2 0. L. E. 585. 
 
 335.— (1) See Cummings v. Carleton, 25 0. E. 601, 26 0. 
 E. 1; see Ee Field Marshall and Beamsville, 11 0. 
 L. E. 472, note to sec. 346. Form of appointment of 
 arbitrator and -notice to opposite party. Form of 
 appointment of third arbitrator: see Biggar, pp. 
 480-1. 
 
 335. — (7) " Where more than two municipalities are 
 interested:" see E. S. 0. 1914, ch. 198; see Ee 
 Eomney and Tilbury, 18 A. E. 477 ; Ee Harwich and 
 Ealeigh, 20 0. E. 154. " May appoint the other ar- 
 bitrator:" see Ee Palgrave and McMillan, 1892, A. 
 C. 460. 
 
 336. County Judge as arbitrator: Ee Herriman and 
 Owen Sound, 1 0. W. N. 759. 
 
 338. A member of a school board is not disqualified as 
 arbitrator by this section: Ee Sarnia and Sarnia 
 Gas, 3 0. W. N. 117, 20 O. W. E. 204. 
 
 339. An arbitration pending before an arbitrator named 
 under this section is not a " matter " within Con. 
 Eule 485 : see Ee McPherson and Toronto, 16 P. E. 
 630 (1913 Eule 271). Compensation for lowering 
 grade where there is encroachment on street: see 
 Williams v. Cornwall, 32 0. L. E. 255. Arbitration 
 between landowner and city and county together: 
 see Ee Cummings and Carleton, 26 O. E. 1. 
 
 340. The failure of an arbitrator to take the oath is fatal 
 to his award, but when an award is moved against 
 on the ground of such failure it must be clearly 
 
2034 CHAPTER 192. 
 
 shown that the applicant was not aware of the 
 omission until after the making of the award: Ee 
 Burnett and Durham, 31 0. R. 262. 
 
 342. " Power of amendment:" see Con. Eule 304, 1913 
 Rule 130. 
 
 344. The power " to award payment by any of the par- 
 ties to the other of the costs of the arbitration or of 
 any portion thereof " should receive the same con- 
 struction as Con. Rule 1130 (see R. S. O. 1914, ch. 
 56, sec. 74). The discretion given is a legal discre- 
 tion and subject to the rule that when the claimant 
 has been guilty of no misconduct, omission or 
 neglect such as to induce the Court to deprive him 
 of his costs, the unsuccessful party should bear 
 the whole costs of the litigation: Re Patullo and 
 Orangeville, 31 O. R. 192. Where arbitrators made 
 their award and directed that the costs should be 
 paid by one party, but did not fix them or direct 
 on what scale they should be taxed, there was no 
 authority to tax them either on the Supreme Court or 
 County Court scale, but, semble, the proper course 
 would be to refer the award back to the arbitrators 
 to complete it in the matter of costs. lb. 
 
 345. See Re Christie and Toronto Junction, 21 A. R. 21, 
 25 S. C. R. 551; Re Herriman and Owen Sound, 1 
 0. W. N. 759, 16 O. W. R. 98. Exercise* of ^ power 
 enabling the Court to call for additional evidence: 
 Re Fitzpatrick and New Liskeard, 11 0. W. R. 483. 
 And see further consideration of this case and of 
 principle of valuation: 13 0. W. R. 806. Scope of 
 award; city separated from county; maintenance of 
 Court House : Re Carleton and Ottawa, 24 A. R. 409, 
 28 S. C. R. 606. Upon a claim for damages for in- 
 jury to property through a change of grade, arbitra- 
 tors found that the property had been benefited 
 rather than injured, but allowed $100 damages and 
 a portion of costs. On appeal the damages were 
 increased to $1,000 with full costs. Though the 
 Court will not usually increase sueh damages with- 
 out cross appeal, yet where the original pro- 
 ceedings were by arbitration under a statute requir- 
 ing the Court on appeal from the award to pro- 
 nounce such judgment as the arbitrators should 
 
CHAPTER 192. JQ35 
 
 have given, the statute is sufficient notice to an ap- 
 pellant of what the Court way do, and a cross ap- 
 peal is not necessary: Ee Christie and Toronto 
 Junction, 21 A. E. 21, 28 S. C. E. 551. Where a sub- 
 mission to arbitration was drawn up including dam- 
 ages for lands taken and injuriously affected and 
 also other matters, e.g., damages for breach of con- 
 tract not within the scope of the Municipal Act, and 
 the submission made no provision for appeal, it was 
 held that the award being one and indivisible, no 
 appeal on the merits lay: Ee Field Marshall and 
 Beamsville, 11 0. L. E. 472. From what date time 
 for appeal runs : Ee Burnett and Durham, 31 O. E. 
 262; Ee McLellan and Chinguacousy, 18 P. E. 246. 
 As to appeals under Arbitrations Act: see E. S. 0. 
 1914, ch. 65, sec. 17 and notes; see also 1913 Eules 
 503, 504, 492. 
 
 347. Eefusal to ratify award : see Ee McCall and Toronto 
 21 A. E. 256. Where debentures issued : Ee Ussher 
 and North Toronto, 2 0. W. N. 851. Eegistration 
 of expropriation by-law and its effect : Grimshaw v. 
 Toronto, 4 0. W. N. 1124, 28 0. L. E. 512; see E. S. 
 0. 1914, ch. 124, sec. 70. 
 
 PAET XVII. 
 
 Actions By and Against Municipal Corporations. 
 
 348. An action for damages for diverting water on the 
 plaintiff's land by the construction of a ditch with- 
 out a proper by-law authorizing the work is an ac- 
 tion for trespass: Lawrence v. Owen Sound, 5 0. L. 
 E. 369. Eesponsibility of municipal corporation for 
 prosecution of offender against by-law: Waters v. 
 Toronto, 5 0. W. N. 210. 
 
 349. See E. S. 0. 1914. ch. 89, sec. 17. 
 
 PAET XVIII. 
 
 Ebspecting the Administration op Justice. 
 
 350. Calling out troops : E. v. Sault Ste. Marie, 1 0. W. 
 N 1144. 
 
1Q36 CHAPTER 192. 
 
 353. — (5) A police magistrate cannot require the cor- 
 poration to provide facilities for the transaction of 
 business not strictly appertaining to his office, nor 
 is he entitled to a private office in addition to a pub- 
 lic one. It is sufficient if a suitable room or cham- 
 ber is provided in any building belonging to the 
 municipality {e.g. the Council Chamber), although 
 by doing so the hours for the transaction of police 
 business may be limited. A municipal corporation 
 is liable to a police magistrate for a claim for sta- 
 tionery although extending beyond a year: Mitchell 
 v. Pembroke, 31 0. E. 348. 
 
 354. A constable in charge of a patrol wagon is not a 
 servant of a Board of Commissioners of Police so 
 as to make them liable for his negligence in the per- 
 formance of his duties : "Winterbottom v. Police Com- 
 missioners of London, 1 0. L. E. 549, 2 0. L. E. 105. 
 
 359. On a motion to attach a constable's pay, although 
 the constable is not a servant of the corporation, the 
 treasurer is the proper person to serve; as to pay- 
 ment in advance: see Fallis v. Wilson, 13 0. L. E. 
 595 ; Wilson v. Fleming, 1 0. L. E. 599. 
 
 364. Where a constable was appointed by by-law " for 
 one year " and was dismissed within the year with- 
 
 • out cause assigned: see Vernon v. Smith's Falls, 21 
 0. E. 331. 
 
 365. Eesponsibility of municipality for acts of police 
 officer. Where the acts done are in the exercise of 
 functions of general government, the officers are re- 
 garded as public officials and the doctrine of respon- 
 deat superior does not apply: There is no right of 
 action against a municipality in respect of neglect 
 by the custodian of prisoners: English and Amer- 
 ican authorities collected: Nettleton v. Prescott, 10 
 0. W. E. 944, 11 0. W. E. 539, 16 0. L. E. 538. Lia- 
 bility of municipality for act of constable : Eobinson 
 v. Morris, 19 0. L. E. 633. 
 
 377. The office of a local master in Chancery is within 
 this section. The words "stationery and furni- 
 ture" do not extend to law and text books: Ee Local 
 Offices of the High Court, 12 0. L. E. 16. Duty of 
 
CHAPTER 192. 
 
 1037 
 
 County Council in regard. to office of Clerk of the 
 Peace : Eodd v. Essex, 19 0. L. E. 659, 14 0. W. R. 
 953, 44 S. C. R. 137. 
 
 379. See Mitchell v. Pembroke, 31 0. R. 348, note to sec, 
 353 (5). " Furniture " must include everything 
 necessary for the furnishing of the offices referred 
 to the enactment for the purpose of transacting 
 such business as might properly be done in such 
 offices and includes stationery and printed forms in 
 use in the Courts : Newsome v. Oxford, 28 0. R. 442. 
 Compensation in respect of the use by a city separ- 
 ated from a county of the Court house and gaol ; care 
 and maintenance of prisoners: Re Carleton and 
 Ottawa, 24 A. R. 409, 28 S. C. R. 606. 
 
 384. See Carleton v. Ottawa, 24 A. R. 409, 28 S. C. R. 
 606, noted supra. 
 
 386. Death through fire of prisoner in lock-up; action 
 under Fatal Accidents Act : McKenzie v. Chilliwack, 
 1912, A. C. 888. Non-liability of corporation for 
 lack of proper heating in lock-up house, resulting in 
 illness of person confined therein; the corporation 
 acting in such a case as deputy of the Crown: Net- 
 tletoh v. Prescott, 16 0. L. R. 538, 21 0. L. R. 561. 
 
 390. This section is intra vires : R. v. Riddell, 3 0. W. N. 
 1628, 22 0. W. R. 847. A hotel is not a " public 
 place " within this section: R. v. Cook, 4 0. W. N. 
 383, 23 0. W. R. 425, 27 O. L. R. 406. Where prisoner 
 was committed to industrial farm on indeterminate 
 sentence, this did not authorize his incarceration in 
 the Central Prison: Re Gray, 5 0. W. N. 102. Pro- 
 ceedings on conviction for being found drunk in a 
 public place: proceedings on appeal: R. v, Keenan, 
 4 0. W. N. 1034, 28 0. L. R. 441. 
 
 PART XIX. 
 
 Polling Sub-divisions and Polling Places. 
 
 391.^(&) Consideration of the object of the directions 
 as to polling sub-divisions and places : Carr v. North 
 Bay, 4 0. W. N. 1284, 28 0. L. R. 623. Application 
 
1038 CHAPTER 192. 
 
 of this section to local option contests: Re Hickey 
 and Orillia, 17 0. L. E. 317. 
 
 391.— (/) Ee Sinclair and Owen Sound, 12 0. L. E. 488, 
 8 O. W. E. 239, 298, 460, 974, 13 0. L. E. 477. 
 
 391. — (i) Filing forthwith: Ee Stunner and Beaverton, 
 24 0. L. E. 65. 
 
 391. — (k) Application of this section to local option con- 
 tests: Ee Hickey and Orillia, 12 0. W. E. 433. 
 Voters' lists containing more than the lawful num- 
 ber of names : see Ee Sinclair and Owen Sound, 12 
 0, L. E. 488, 8 0. W. E. 239, 298, 460, 974, 13 0. L. 
 E. 447 ; Ee Duncan and Midland, 9 0. W. E. 826, 10 
 0. W. E. 345. 
 
 392. It is competent for the Council not to hold a poll in 
 each sub-division of the municipality if in its judg- 
 ment it is thought expedient not to do so : Wynn v. 
 Weston, 15 0. L. E. 1. 
 
 PAET XX. 
 
 Powees of Municipal Councils. 
 
 395. — (a) " Bonus," Loan: The Court will not interfere 
 to compel municipal council to collect a debt, at any 
 rate in circumstances such as would require an 
 honest man not to exact payment : Norfolk v. Rob- 
 erts, 28 0. L. E. 593. Loan to manufacturing com- 
 pany to be repaid by credits for keeping men em- 
 ployed: where company assigns for benefit of credi- 
 tors, consideration of position of equity of redemp- 
 tion in mortgage and attempted assignment of it to 
 another company: Woodstock v. Woodstock Auto. 
 Co., 5 0. W. N. 540. 
 
 395. — (b) Guarantee of debentures; bonus: Ee Holme- 
 sted v. Seaforth, 2 0. W. N. 464, 17 0. W. E. 1060. 
 
 395. — (d) The fact of no contract being made by a com' 
 pany to add to their works, increase their business 
 or employ additional men when a by-law was passed 
 
CHAPTER 192. ^030 
 
 closing a street by way of bonus to them, did not in- 
 validate the by-law or prove that it was in the pri- 
 vate interest of the company and not also in the 
 public interest: Ee Inglis and Toronto, 8 0. L. E. 
 570,9 0. L.E. 562. 
 
 395. — (f) Tax exemption as bonus : C. P. E. v. Carleton 
 Place, 12 0. W. E. 567 r Pringle v. Stratford, 
 20 0. L. E. 246, 1 0. W. N. 313. Exemption 
 from taxes, school rates ; commutation ; repugnancy 
 of special act to subsequent general act: Way v. 
 St. Thomas, 12 0. L. E. 240. Bonus by way of 
 exemption from taxation ceases, when the estab- 
 lishment exempted ceases under liquidation to carry 
 on business : Poison v. Owen Sound, 31 0. E. 6. Ex- 
 emption by-laws shall not include school rates: see 
 E. S. 0. 1914, eh. 266, sec. 39 and notes. 
 
 396. Procedure to prevent bonus: London v. Newmar- 
 ket, 20 0. W. E. 929, 3 O. W. N. 565. Bonus con- 
 tract: New Hamburg v. N. H. Mfg. Co., 1 0. W. N. 
 495. Membership in firm having fixed assessment 
 by contract with corporation as ground for disquali- 
 fication of councillor : E. ex rel. 'Shea v. Letherby, 
 11 0. W. E. 929; but see now sec. 53 (2) (c), ante. 
 
 396. — (c) By-laws of a town granting aid to persons who 
 were carrying "on a manufacturing business in a vil- 
 lage and who were about to remove their plant and 
 machinery and carry on the same business in the 
 town were illegal, notwithstanding that these per- 
 sons had determined before negotiating with the 
 town to remove from the village at all events and to 
 such other place as should offer the largest induce- 
 ment. These by-laws were quashed on an applica- 
 tion made within three months after registration 
 and nearly three months after they were passed, 
 notwithstanding the industry had in the meantime 
 established in the town and that the money was 
 paid over : Ee Markham and Aurora, 3 0. L. E. 609 ; 
 and see S. C. 32 S. C. E. 457. Meaning of an indus- 
 try " already established " in another municipality: 
 Ee Black and Orillia, 5 0. W. N. 67, 25 O. W. E. 17. 
 
 396. — (e) An agreement to grant a fixed assessment for 
 all purposes, " including school taxes," is ultra 
 
1040 CHAPTER 192. 
 
 vires : E. ex rel. 'Shea v. Letherby, 16 0. L. E. 581 ; 
 see E. S. 0. 1914 ch. 266, sec. 39 and notes; see also 
 notes to sec. 395 (/), supra. 
 
 397. Aid to railway by portion of municipality : Ee Blen- 
 heim, 1 0. W. N. 363, 15 0. W. E. 186. Notwith- 
 standing the requirements as to the number of peti- 
 tioners and the requirements as to value, it is suf- 
 ficient if the by-law is carried at the polls by a major- 
 ity of those voting upon it : Adamson v. Etobicoke, 
 22 0. E. 341. A municipal corporation passed a by- 
 law authorizing the issuing of debentures to be met 
 by special rate to provide a bonus for a railway 
 company payable upon its compliance with condi- 
 tions, for which no time limit was fixed. The de- 
 bentures are executed but remained unissued. It 
 was held that until the sale or negotiation of the de- 
 bentures there was no debt on the part of the town- 
 ship and no rate was leviable although the time for 
 payment of some of the debentures had passed: 
 Bogart v. King, 1 0. L. E. 496. By-law authorizing 
 the raising of a sum by debentures may be valid, 
 and not provide for the construction of the railway 
 on which the money was to be expended; effect of 
 validating Act considered and of erroneous pream- 
 ble : Dwyer v. Port Arthur, 19 A. E. 335, rev. 22 S. 
 C. E. 241. Agreement by a railway company in con- 
 sideration of a bonus to keep for all time its head 
 office and machine shops in a town held not enforce- 
 able : see Whitby v. G. T. E., 32 0. E. 99, 1 0. L. E. 
 480. See Cases, Dig. Ont. Case Law, col. 5806-5823. 
 
 398. — (7) A local authority which pours offensive matter 
 into a receptacle or channel insufficient for the pur- 
 pose and so damages private property is guilty of 
 negligence. It is no defence that the system was 
 sufficient when constructed : Hawthorn v. Kannuluik, 
 1906, A. C. 105, 75 L. J. P. C. 7. Liability of muni- 
 cipality for overflow of waters from negligent con- 
 struction of drain : Moore v. Cornwall, 4 0. W. N. 
 145. Liability of municipality for overflow of drains: 
 Lamport v. Toronto, 11 0. W. E. 537. Surface 
 water; extraordinary rainfall: James v. Bridge- 
 burg, 9 0. W. E. 189. Injury to property tnrough 
 insufficiency of sewer : Gallagher v. Toronto, 9 0. "W. 
 E. 310. Non-liability of corporation in absence of 
 
CHAPTER 192. 2041 
 
 negligence for sewer backing up water into cellar 
 of house where sewer normally sufficient; capacity 
 of drain; vis major: Faulkner v. Ottawa, 10 0. W. 
 E. 807, 41 S. C. R. 191. Insufficiency of sewer caus- 
 ing flooding of premises of householder : Roberts v. 
 Port Arthur, 10 O. W. R. Ill, 11 0. W. R. 642. Lia- 
 bility of municipality for overflow of water and in- 
 jury to building; computation of damage: Rudd v. 
 Arnprior, 11 O. W. R. 886, 13 0. W. R. 172. Non- 
 liability for negligence of independent contractor 
 constructing sewer and throwing out earth so as to 
 obstruct surface drains, thereby flooding the plain- 
 tiff's property: Dorst v. Toronto, 11 0. W. R. 738, 
 12 0. W. R. 261. Damages ; repairing drains in win- 
 ter ; remedy : Miernicki v. Sandwich East, 14 0. W. 
 R. 455. See cases under Municipal Drainage Act: 
 R. S. O. 1914, eh. 198. 
 
 398.-^(15) A by-law is necessary authorizing the pur- 
 chase of Are apparatus. A contract under seal of 
 the corporation and signed by the mayor and clerk 
 is insufficient where the fire apparatus has not been 
 accepted: Waterous Engine Works Co. v. Palmer- 
 ston, 21 0. R. 411, 19 A. R. 47, 21 S. C. R. 556. 
 
 398.— (16) Repair of highway; drainage; water course; 
 injury to land: Smith v. Eldon, 9 0. W. R. 963. 
 Flooding land adjoining highway: McMulkin v. Ox- 
 ford, 1 0. W. N. 410, 747, 15 0. W. R. 294, 16 0. "W. 
 R. 3. 
 
 398.— (17) See R. S. 0, 1914, ch. 202. The power to grant 
 aid to free libraries is absolutely in the hands of 
 the local municipality : see Hunt v, Palmer ston, 5 0. 
 L. R. 76. 
 
 398. — (20) A municipality built a dock and passed a by- 
 law for the collection of wharfage fees, one item be- 
 ing for the loading and unloading of bricks. A quan- 
 tity of bricks were unloaded from a vessel and the 
 wharf collapsed by reason of some structural de- 
 fect. It was held that the municipality had invited 
 the use of the dock for such purposes as public docks 
 are ordinarily used for and were liable for the loss : 
 Thompson v. Sandwich, 1 0. L. R. 407. 
 
 S.A— 6C 
 
1042 ' CHAPTER 192. 
 
 398. — (29) Liability for act of man in charge of steam 
 roller in backing it over a gas main and thereby 
 causing fire in a building: Methodist Church Trus- 
 tees v. Welland, 11 0. W. E. 429, 12 0. W. E. 153. 
 Inspectors of sheep worried or killed by dogs: see 
 E. S. 0. 1914, ch. 246; see also as to discretion of 
 council in regard to damages payable: Craig v. 
 Malahide, 13 0. W. E. 686. 
 
 398. — (32) Where a by-law was passed establishing a 
 park on Toronto Island and afterwards part of the 
 land was leased for building lots, it was held that 
 the corporation had not exceeded their ppwers in so 
 dealing with the land. The doctrine of irrevocable 
 dedication is not applicable in the case of a park 
 which is established by by-law out of land belonging 
 to the corporation as owners in fee, and the fact 
 that the corporate action is embodied in a by-law 
 implies its revocability : Attv.-Gen. v. Toronto, 6 0. 
 L. E. 159. See Orillia v. Matchedash, 7 0. L. E. 387 
 as to property of a municipality situated in another 
 municipality. 
 
 398.— (37) Bicycles on sidewalks : E. v. Justin, 24 0. E. 
 327. 
 
 399. — (6) If by the negligence of a competent and' duly 
 qualified medical man appointed by the corporation 
 as physician to a city hospital, a patient is prema- 
 turely discharged and contagion is caused to other 
 persons, the corporation is not liable : Evans v. Liv- 
 erpool, 1906, K. B. 160, 74 L. J. K B. 742; and 
 see provisions of E. S. 0. 1914, ch. 218. 
 
 399. — (18) Keeping " gunpowder and other combusti- 
 ble or dangerous materials " includes keeping certain 
 quantities of coal oil, naphtha, benzine, etc., and is 
 not confined to gunpowder and other substances 
 ejusdem generis. Such legislation is not superseded 
 by the Dominion Petroleum Inspection Act: Bex. v. 
 McGregor, 4 C. L. E. 198, 5 Can. Crim. Cas. 485. 
 Storing gunpowder; repeal of by-law; mala fides: 
 Ee Hamilton Powder Co. and Gloucester, 13 0. W. 
 E. 661. 
 
 399. — (40) The section is pointed at houses where gam- 
 ing or gambling is practised and the house kept for 
 
CHAPTER 192. 
 
 1043 
 
 such purpose, and will not support a by-law provid- 
 ing that no person should permit any game of 
 chance or hazard with cards to be played for money 
 within any house : Bex. v. Spegelman, 9 0. L. E. 75. 
 
 399.-^(50) History of this legislation; power of muni- 
 cipalities considered: C. P. E. v. Falls Power Co., 
 10 0. "W". E. 1125. A telephone company having per- 
 mission by its Act to erect poles on the streets of 
 towns and incorporated villages so as not to inter- 
 fere with the public right of travel, is not relieved 
 from liability when it plants its poles on the high- 
 way so as to become a danger to the public, even 
 although the poles are planted under the supervision 
 of the municipality : Bonn v. Bell Telephone Co., 30 
 ' O. E. 696. Powers of company: Bucke v. New Lis- 
 keard, 1 0. W. N. 123, 14 0. W. E. 841. Liability of 
 township municipality for telephone pole placed by 
 unauthorized person on highway: House v. South- 
 wold, 3 0. W. N. 1295, 22 O. W. E. 212. Authority 
 to erect poles and wires in streets of town without 
 permission: City of Toronto v. Bell Telephone Co., 
 1905, A. C. 52. Consent of municipality to erection 
 of telephone poles and wires: Haldimand v. Bell 
 Tel. Co., 25 0. L. E. 467. Power to erect poles 
 to carry power line under act of incorporation 
 without leave of municipality: Toronto and N. 
 Power Co. v. North Toronto, 25 0. L. E. 475, 28 
 T. L. E. 536, (1912) A. C. 834. Necessity for 
 consent of municipality to erection of electric light 
 and power poles in lanes of town; unreasonable 
 withholding: "Wakerville v. "Walkerville Light and 
 Power Co., 5 0. W. N. 429. See E. S. 0. 1914, chs. 
 197, 204. See also ch. 178, Part XII., notes. 
 
 399. — (53) A by-law prohibiting cattle running at large 
 but permitting milch cows, etc., to graze on public 
 highways of the township under a license fee of 
 $200 and a tag was held intra vires, and the license 
 fee not excessive being intended to meet the ex- 
 penses of carrying out the by-law and not for the 
 purpose of raising a revenue : Eoss v. East Nissouri, 
 1 0. L. E. 353. Cattle running at large in a muni- 
 cipality which had a by-law permitting it, got on 
 Crown lands and thence to a railway and were killed 
 in consequence of the railway not having a fence. 
 
1044 CHAPTER 192. 
 
 It was held that notwithstanding the by-law, the 
 cattle were not properly on the Crown lands, but 
 under the Dominion Railway Act, the railway was 
 liable: Fensom v. C. P. E., 7 O. L. E. 254, 8 0. L. E. 
 688. The Pounds Act may be superseded by by-laws 
 under sec. 399 (52) to (55) ; see E. S. O. 1914, eh, 
 247, sec. 2 and notes. 
 
 399. — (56) Arbitrators made an award permitting an 
 extension of a sewer from one municipality to 
 another, but no by-law had ever been passed defining 
 the lands to be taken or the route of the sewer, and 
 no terms or conditions were imposed by the award. 
 It was held that the aWard was bad and should be 
 set aside : Tp. of Waterloo v. Berlin, 8 0. L. E. 335. 
 The acquisition of lands is not a condition prece- 
 dent to an arbitration, but the arbitration or an 
 agreement between the municipalities as to terms 
 and conditions is a condition precedent to the domi- 
 nant municipality exercising the right of expropri- 
 ation in the servient municipality. An award in 
 which no specific lands are mentioned which may be 
 taken by the dominant municipality with which the 
 necessary connection with its sewage system may be 
 made is void for uncertainty ; an award is bad which 
 does not determine the terms and conditions upon 
 which a proposed extension is to be made as be- 
 tween the municipalities : Tp. of Waterloo v. Berlin, 
 7 0. L .E. 64, aff., 8 0. L. E. 335. One municipality 
 cannot extend a sewer through lands within a con- 
 tiguous municipality without the consent of the lat- 
 ter or without taking the statutory steps, even al- 
 though the lands have been purchased by the former 
 municipality from the private owners : Hamilton v. 
 Barton, 18 O. E. 199, 17 A. E. 346, 20 S. 0- E. 173. 
 
 400. — (4) Application of by-law regulating the erection 
 and safety of buildings : Norman v. Hamilton Bridge 
 Co., 15 0. L. E. 457. Section discussed and system 
 of building permits considered: Ee Eyan and Mc- 
 Callum, 4 O. W. N. 193, 23 0. W. E. 193. Municipal 
 regulation of building permits : see Annotation, 7 D. 
 L. E. 422, 
 
 400. — (10) Purchase of lands outside municipal limits: 
 Verner v. Toronto, 3 0. W. N. 586. 
 
CHAPTER 192. 2045 
 
 400. — (14) Municipal corporations are not obliged to 
 protect property against fire : G-agnon v. Haileybury, 
 5 0. W. N. 435. Although municipal corporations 
 are not bound by law to establish and manage fire 
 departments, yet if they do so they are liable for in- 
 juries caused by the negligence of the servants em- 
 ployed by them therein, while in the performance of 
 their duties: Hesketh v. Toronto, 25 A. E. 449. 
 
 400.— {19) This does not empower the Council to pass a 
 by-law requiring all buildings damaged by fire, if re- 
 built or partially rebuilt, to be made fireproof at the 
 peril of such building being removed at the expense 
 of the owner : Quinn v. Orillia, 28 O. E. 435. 
 
 40Q.—K20) A by-law was passed setting aside fire limits 
 where no wooden building could be erected and pro- 
 viding that any such erected might be pulled down 
 and imposing a penalty of $50. This did not give 
 a right of action to the owner of a contiguous pro- 
 perty injuriously affected when a wooden building 
 was erected within such limits. Where a particular 
 course of action is imperative and non-performance 
 is in the general interest punishable by penalty, an 
 action will not lie : Tomkins v. Brockville Bink Co., 
 31 O. E. 124. 
 
 400. — (21) Liability of municipal corporation in respect 
 of dangerous condition of wall left standing after 
 a fire; liability over of owners of building; Camp- 
 bell v. Gluff, 9 O. W. E. 401. 
 
 4G0.— (33) See Hesketh v. Toronto, 25 A. E. 449 ; Camp- 
 bell v. Cluff, 9 O. W. E. 401. 
 
 400*— (49) See the provisions of the Traction Engines 
 Act, E. S. O. 1914, ch. 212. 
 
 401.— (1) Power of Council to permit part of market to 
 be used for exhibitions and meetings: dedication 
 of market square, Toronto : Godden v. Toronto, 12 
 O. W. E. 708. Consideration of liability of munici- 
 pality for. non-repair of market stall, whereby health 
 of occupant is injured : Wood v. Hamilton, 28 O. L. 
 E. 214. A municipal council cannot under this pro- 
 vision prohibit an auctioneer from carrying on his 
 
1046 CHAPTER 192. 
 
 business in the public markets of the city in respect 
 of any commodities which may properly be sold 
 there: Bollander v. Ottawa, 30 0. R. 7, 27 A. E. 335. 
 
 401. — (3) Although sections 401 and 419 deal specifically 
 with the sale of meat, a transient trader under sec. 
 420 (6) (7) might include a butcher or dealer in 
 meat : Bex v. Myers, 6 O. L. E. 120. 
 
 401.— (4) See Virgo v. Toronto, 1896, A. C. 92, and see 
 sec. 416 (1). 
 
 401. — (6) This provision must be read as limited to such 
 articles as are marketed or exposed for sale within 
 the limits of the municipality and does not apply to 
 such articles as have been the subject of a complete 
 contract of sale made beyond the municipality and 
 the only act done within is delivery, which would 
 be practically imposing a tax on the vendor of such' 
 articles : Bex v. Woolwatt, 11 O. L. E. 544. 
 
 406. — (5) Consideration of and objections to by-law 
 establishing system for collection and disposal of 
 garbage: Ee Jones and Ottawa, 9 O. W. E. 323, 660. 
 The point on which Ee Jones and Ottawa, 9 0. W. 
 E. 323, 606, turned, was narrow and technical: Re 
 Knox and Belleville, 5 O. W. N. 237, 25 O. W. E. 201. 
 
 406. — (7) By-law regulating laundries: Pang Sing v. 
 Chatham, 14 O. W. E. 1161, 16 O. W. E. 338. Power 
 of municipal corporations to revoke license to carry 
 on business : see Annotation, 9 D. L. E. 411. 
 
 406. — (10) Eegulation of building line on residential 
 streets and application to corner lots: Toronto v. 
 Schultz, 19 O. "W. E. 1013, 26 O. L. E. 554. Section 
 considered and construed, meaning of "front," 
 " frontage," etc.; application of restricting by-law 
 to corner lot : Ee Dinnick and McCallum, 3 O. "W. N. 
 1061, 1463, 4 O. W. N. 687, 21 0. W. E. 897, 22 0. W. 
 E, 546, 26 0. L. E. 551, 28 0. L. E. 52. 
 
 407. — (1) As to purchase of fire appliances: see Water- 
 ous v. Palmerston, 20 0. E. 411, 19 A. E. 47, 21 S. 
 C. E. 556. 
 
CHAPTER 192. 1047 
 
 408. — (2) Condition undertaking by municipality in 
 by-law to pay for wire fences erected to prevent 
 drifts: Brohm v. Somerville, 11 0. L. E. 588. Neg- 
 ligence of municipality in regard to temporary side 
 track and drift: Hogg v. Brooke, 7 0. L. B. 273. 
 
 409. — (2) A garage to be let to tenants of an apartment 
 house is not a garage " to be used for hire or gain ' ' 
 within the meaning of a city by-law: Toronto v. 
 Delaplante, 5 0. W. N. 69, 25 0. W. E. 16. " Store," 
 "manufactory." Toronto v. Foss, 3 0. W. N. 
 1426, 4 O. W. N. 597, 27 0. L. B. 264, 612. " Stores," 
 "shops," "purpose of storage:" Be Hobbs and 
 Toronto, 23 0. W. B. 8, 4 0. W. N. 31. 
 
 410. — (1) " Location " of apartment house: Toronto v. 
 Williams, 3 0. W. N. 1643, 22 0. W. B. 899, 4 0. W. 
 N. 58, 27 0. L. B. 186. Toronto v. Ford, 4 0. W. N. 
 1386, 24 0. W. B. 35l, 717. Private temperance 
 hotel within definition of apartment house : Coleman 
 v. Toronto, 4 0. W. N. 1127, 1449, 24 0. W. B. 470, 
 754. Bestriction of erection of garage: Toronto v. 
 Wheeler, 22 0. W. B. 326, 3 0. W. N. 1424; Toronto 
 v. Delaplante, 5 0. W. N. 69, 25 0. W. B. 16. Loca- 
 tion of apartment house; withdrawal of permit: 
 Toronto v. Garfunkel, 23 0. W. E. 374. Actual work 
 on ground; private apartment house by-law: Tor- 
 onto v. Stewart, 4 0. W. N. 1027, 24 0. W. E. 323. 
 
 411. — (3) Omission to employ statute labour to make a 
 safe track through drifts: see Hogg v. Brooke, 7 
 0. L. E. 273, at p. 285. 
 
 411.— (5) Injury to plaintiff's lands by flooding by 
 reason of closing up a natural watercourse : Martin 
 v. Middlesex, 4 0. W. N. 682, 1540, 23 0. W. E. 974, 
 24 0. W. E. 869. 
 
 412. — (1) An auctioneer selling land requires no license : 
 B. v. Chapman, 1 0. B. 582. An auctioneer for the 
 sale of goods requires a license, and this includes 
 an assignee for the benefit of creditors : B. v. Baw- 
 son, 22 0. B. 467. Before the Amending Act of 
 1894, a municipal corporation could not, on the 
 ground of the applicant's bad character, refuse him 
 an auctioneer's license: Merritt v. Toronto, 25 0. 
 
^048 CHAPTER 192. 
 
 E. 256, 22 A. E. 205. A municipal council cannot 
 prohibit an auctioneer from Carrying on bis busi- 
 ness in tbe public markets, in respect of any com- 
 modities which may properly be sold there: Bal- 
 landor v. Ottawa, 30 0. E. 727, A. E, 335. As to 
 auctions under the direction of the Court : see 1913 
 Eules 441-446. Power of municipal corporations 
 to revoke license to carry on business : see Annota- 
 tion 9 D. L. E. 411, 
 
 416. — (1) A statutory power conferred on a municipal 
 council to make by-laws for regulating and govern- 
 ing a trade, does not in the absence of an express 
 power of prohibition authorize the making of it 
 unlawful to carry on a lawful trade in a lawful 
 manner, and this applied where a municipal by-law 
 was passed prohibiting hawkers front plying their 
 trade in an important part of the municipality — no 
 question of nuisance having been raised : Ee Virgo 
 and Toronto, 20 A. E. 435, 22 S. C. E. 447, 1896 A. C. 
 88. A by-law provided that no license should be 
 required from any pedlar of fish, farm and garden 
 produce, fruit, coal oil, etc. A subsequent by-law 
 fixing a license fee for fish hawkers and pedlars 
 was not void for repugnancy: Ee Virgo and 
 Toronto, 20 A. E. 435, 22 S. C. E, 447, 1896, A. C. 
 88. A by4aw under this section contained no ex- 
 ception such as is mentioned in the proviso, but 
 enacted that " no person shall exercise the calling 
 of a hawker, pedlar, without a license." The by- 
 law was held ultra vires and a conviction under it 
 bad. The conviction was also bad because it did 
 not negative the exception in the proviso and there 
 was no power to amend it where the evidence did 
 not shew whether or not the defendant's acts came 
 within it: E. v. Smith, 31 O. E. 224. But where 
 the conviction did not negative the exception in the 
 proviso, but the evidence shewed the defendant's 
 acts not to come therein the conviction was amended: 
 E. v, Laforge, 12 O. L. E. 308. Prohibitory effect 
 of a by-law to license ; not disposed of on motion to 
 quash conviction: E. v. Laforge, 12 O. L. E. 308. 
 The onus is on the defendant to prove that he comes 
 within the exception of the statute; bona fide 
 servant of manufacturer; Magistrate not bound to 
 accredit evidence produced: E. v. VanNorman, 
 
CHAPTER 192. j^g 
 
 19 O. L. E. 447, 14 0. W. E. 659, 1 0. W. N. 35. 
 Definition of hawkers not intended to be exhaus- 
 tive: E. v. VanNorman, 1 0. W. N. 35, 14 0. W. 
 E. 659, 19 0. L. E. 447. County by-law regulating ped- 
 lars held hot to apply to boundary road between two 
 counties: E. ex rel. Whitesides v. Hamilton, 5 
 W. N. 58, 265, 25 0. W. E. 33. 
 
 416—(3) A power to license vendors of ice cream does 
 not give power to restrict hours of sale: Eossi v. 
 Edinburgh, 1905, A. C. 21. 
 
 417— (4) Eegulation of "eating houses:" Ee Camp- 
 bell and Stratford, 9 0. W. E. 115, 345, 14 0. L. E. 
 184. Under this, council can pass a Sunday clos- 
 ing by-law for victualling houses. That is a reason- 
 able restraint: Ee Karry and Chatham, 20 0. L. 
 E. 178, 1 O. W. N. 291, 1053, 15 O. W. E. 1, 16 
 0. W. E. 686, 21 0. L. E. 566. 
 
 419. See Eex v. Meyers, 6 0. L. E. 120, noted ante, sec. 
 401 (3). A municipal corporation passed a by-law 
 providing that (with certain exceptions) no butcher 
 should, without being duly licensed, sell fresh meat in 
 the municipality. The license fee was $10, and a pen- 
 alty of $50 was provided. The plaintiff after some 
 demur took out licenses for two years, and then 
 refused to do so, was fined and the by-law was 
 declared invalid. In an action brought by him and 
 the other butchers to recover back the license fees 
 ■ paid, it was held that the fees having been paid with 
 a full knowledge of the facts, under claim of right 
 without fraud or imposition, without actual inter- 
 ference with the butchers' business or compulsion 
 exercised upon them, could not be recovered: 
 Cushen v. Hamilton, 4 0. L. E. 265. 
 
 419. — (2) A by-law imposing a license fee of $200 on 
 the Bale of cigarettes was held ultra vires as in 
 effect prohibitive, the evidence shewing that the fee 
 exceeded the annual profits which any shop in the 
 municipality could make on the sale of cigarettes : 
 Ee Talbot and Peterborough, 8 0. W. E. 274, 12 0. 
 L. E. 858. A by-law must neither probibit nor so 
 restrict as to create a monopoly: Eowland v. Col- 
 lingwood, 16 0. L. E. 272 ; Talbot v. Peterborough, 
 
1050 CHAPTER 192. 
 
 12 0. L. E. 358 ; Ee Brodie and Bowmanville, 38 U. 
 C. E. 580. 
 
 420. — (1) Amendment of 1908 discussed, and what con- 
 stitutes a proprietary club considered : E. v. Domin- 
 ion Bowling and Athletic Club, 19 O. !L. E. 107, 
 14 O. W. E. 468. " Hire or gain," " place of public 
 entertainment or resort:" B. v. Dominion Bowling 
 and Athletic Club, 19 0. L. E. 107. Motive as affect- 
 ing licensing power: Ee Foster and Baleigh, 2 0. 
 "W. N. 65, 16 0. W. E. 1012, 22 0. L. E. 26, 342. 
 
 420.— (2) " Eunning at large:" McNair v. Collins, 3 0. 
 W. N. 1639, 22 0. W. E. 891, 27 0. L. E. 44; and see 
 also Sexton v. G. T. E., 18 0. L. E. 202; Eogers 
 v. McFarland, 19 0. L. E. 622. 
 
 420. — (3) " Hire or profit:" E. v. Dominion Bowling 
 and Athletic Club, 17 0. L. E. 107. History of the 
 sub-section : lb. p. 123. 
 
 420. — (5) What a by-law under this section may pro- 
 vide : E. v. Whittaker, 24 0. E. 437. 
 
 420. — (6) A transient trader under this section may 
 include a butcher or dealer in meat, in spite of sees. 
 401 (3) and 419. The by-law need not contain the 
 words " for temporary purposes," and " assess- 
 ment roll for the then municipal year." Form of 
 conviction and nature of penalty considered: E. 
 v. Meyers, 6 O. L. E. 120. A trading stamp arrange- 
 ment was held not to contravene a by-law passed . 
 under these sub-sections as formerly constituted: 
 E. v. Langley, 31 0. E. 295. " Persons not entered 
 on the assessment roll:" see E. v. Applebe, 30 0. 
 E. 623, (under a former wording). What the evi- 
 dence must shew and what omissions are fatal to a 
 conviction: see E. v. Eoche, 32 0. E. 20. Pro- 
 visions in by-law as to costs: see E. v. Eoche, 32 
 0. E. 20. Persons living at hotels and there tak- 
 ing orders for goods to be made outside the muni- 
 cipality, are not transient traders: E. v. Pember, 
 3 0. W. N. 957, 1216, 21 0. W. E. 915. See also 
 as to who are transient traders : E. v. Preston Co- 
 operative, 1 0. W. N. 983. 
 
CHAPTER 192. 
 
 1051 
 
 421.— (2) "Apparently under the age of 18:" See E. 
 v. Levy, 30 0. E. 403. 
 
 422. — (5) A by-law for licensing express wagons autho- 
 rized the alteration by agreement of the rates fixed 
 thereby. Held beyond the powers conferred by the 
 statute : E. v. Latham, 24 0. E. 616. The authority 
 conveyed is to license owners of livery stables, 
 omnibuses, &c, and does not extend to licensing 
 drivers: E. v. Butler, 22 0. E. 462. License does 
 not permit the licensee to solicit passengers except 
 on the premises mentioned. Form of license: see 
 E. v. Gurr, 21 0. E. 499. 
 
 PAET XXL 
 
 Highways and Bbidges. 
 
 432. The purpose of this section is to declare that cer- 
 tain classes of roads are public highways. It has 
 no bearing on the question whether an actual high- 
 way laid out by a private person has been assumed 
 for public uses: Holland v. York, 7 0. L. E. 533. 
 By an order of quarter sessions in 1834 a highway 
 was opened through several lots, the title to one of 
 which was in the Crown, occupied under license. The 
 highway was never opened, but another road follow- 
 ing the same general direction was opened and used 
 as a highway, fenced and improved with public 
 money and statute labour. A patent, issued in 1904, 
 was issued to the successor of the locatee without 
 mentioning the road. It, was held that the road 
 had become established as a highway and could not 
 be closed and one removing obstructions from it 
 could not be treated as a trespasser : . Fraser v. 
 Diamond, 10 0. L. E. 90. It is essential to the 
 validity of a by-law expropriating land for a high- 
 way that the course, boundary _ and width_ of the 
 highway should be capable of being ascertained by 
 the by-law itself, or by some document referred to 
 in it. Semble, land for a road not havingbeen ex- 
 propriated, the mere expenditure of public money 
 in opening it, and the performance of statute labour 
 on it does not make it a highway: St. Vincent v. 
 Greenfield, 15 A. E. 567. Land dedicated to the 
 
1052 CHAPTER 192. 
 
 public for the purpose of a passage becomes a 
 highway when accepted for such purpose by the 
 public. Dedication and acceptance are questions of 
 fact. Authorities considered: O'Neil v. Harper, A 
 0, W. N. 841, 1276, 24 0. W. E. 88, 28 0. L. E. 
 635. What evidence is sufficient to establish that land 
 has been dedicated to public and accepted by muni- 
 cipality as a street: Sinclair v. Peters, 23 0. W. E. 
 441, 48 S. C. E. 57; Holland v. York, 7 0. L. E. 533. 
 Dedication of highways ; roads laid out on plan : Hay 
 v. Bissonnette, 14 0. W. E. 279, 1 O. W. N. 287. 
 Acceptance by municipality of private lane : Eushton 
 v. Galley, 21 0. L. E. 135. Deposit of plan and user 
 by the public of road shown on it as dedication and 
 acceptance: Tottenham v. Eowley, (1912) 2 Ch. 633. 
 Dedication of highway: Watson v. Kincardine, 11 
 0. W. E. 699, 13 0. W. E. 327. Evidence of dedica- 
 tion of lands as highway: Niagara Navigation Co. 
 v. Niagara, 5 0. W. N. 46, 25 0. W. E. 42. High- 
 way; dedication and user; access to harbour: Gr. 
 T. E. v. Toront6 (Viaduct Case), 6 0. W. E. 852, 10 0. 
 W. E. 483, 42 S. C. B. 613. Dedication of highway: life 
 tenant and remainderman: Farquhar v. Newbury 
 Sural District Council, 1909, 1 Ch. 12. Acts of dedica- 
 tion and acceptance : Strang v. Arran, 28 0. L. E. 106. 
 Acceptance of dedication of highway by munici- 
 pality by memorandum of consent endorsed on 
 registered plan: Ee Toronto Plan M. 188, 28 0. 
 L. E. 41. Eefusal of municipality to accept dedica- 
 tion of highway: Pigott v. Bell, 5 0. W. N. 314. 
 There may be a dedication to the public of a space 
 lying between two fences including a ditch although 
 at the time of the dedication the ditch was incap- 
 able of being used as a passageway: Chorley Cor- 
 poration y. Nightengale, 1906, 2 K. B. 612. Where 
 two adjoining owners each agreed to give 20 feet 
 for a road and the line fence was taken down; one 
 owner fencing so as to leave 20 feet of his land 
 and the other fencing so as to leave 40 feet of his 
 land. The 60 feet was graded and used as a high- 
 way. The giving of 40 feet by the second owner 
 did not relieve the first owner of his obligation to 
 give 20 feet, and he could not after the expendi- 
 ture of public money on it and its acceptance retract 
 the dedication: Pedlow v. Eenfrew, 27 A. E. 611. 
 
CHAPTER 192. 
 
 1053 
 
 Under the Municipal and Survey Acts, by the filing 
 of a plan and the sale of lots according to it abutting 
 on a street, the property in the street becomes vested 
 in the municipality, although they may have done 
 no corporate act by which they have become liable 
 to repair : Eoche v. Byan, 22 0. E. 107. As to. regis- 
 tration of plans, scale, particulars, designation of 
 lots, and conditions of registration, and as to roads 
 thereon, their width and when approval of Munici- 
 pal Board required: see E. S. 0. 1914, ch. 124, sec. 
 81 and notes. As to the position of land which is 
 laid out in streets and lanes shewn on a regis- 
 tered plan and the relative rights of vendor, pur- 
 chaser and the public: see Armour Titles, pp. 228, 
 et seq., and cases there cited. Alteration of regis- 
 tered plans and streets thereon: see E. S. O. 1914, 
 ch. 124, see. 86. Dedication of highways and as- 
 sumption by muiiicipality of streets on plans: Ar- 
 mour Titles, p. 231. When highways not assumed 
 are closed: see E. S. 0. 1914, eh. 166, sec. 44 and 
 notes; see also Armour Titles p. 231. Non-liability 
 of municipality to repair unassumed roads: see 
 post, sec. 460 (6) and notes. 
 
 433. Although originally the soil and freehold of roads 
 and streets may have remained in the private owner 
 subject to the public easement (right of user), since 
 the year 1858 at all events, they became vested in 
 the Crown as representing the province of Ontario : 
 Ee Trent Valley Oanal, 11 0. L. E. 687 : see Eae v. 
 Trim, 27 Gr. 374. Although the soil and freehold 
 are vested in the Crown, yet the possession, control 
 and liability are in the corporation and sidewalks 
 are to be reckoned municipal assets: Ee Southamp- 
 ton and Saugeen, 12 0. L. E. 214. Where the subsi- 
 dence of highway through working of mine occurs, 
 the measure of damages is the cost of restoring the 
 highway to its original level: Wednesbury Corpor- 
 ation v. Lodge Holes Colliery, 1907, 1 K. B. 78. 
 
 436 Where a bridge over a river which fiormed _ the 
 boundary between a city and a township within a 
 county was erected by the councils of the city and 
 county jointly, and in raising the approaches on the 
 township side certain lands were injuriously af- 
 fected, only the county could be compelled to arbi- 
 
1054 CHAPTER 192. 
 
 trate in respect of such, compensation: Re Cum- 
 mings and Carleton, 25 0. E. 607, 26 0. R. 1. The 
 County Council is given exclusive jurisdiction over 
 all bridges, by whomever built, crossing streams or 
 rivers over 100 feet in width within the limits of any 
 incorporated village in the county and connecting 
 any main highway leading through the county, and 
 is compellable to build such bridges only where 
 necessary to connect any main public highway lead- 
 ing through the county. The place where the width 
 of the stream is to be ascertained is the place where 
 the bridge crosses, and the width is to be determined 
 by the width of the natural channel of such stream 
 taking it in its highest ordinary state, and (held by 
 the Supreme Court of Canada), the width of the 
 river attained after heavy rain and freshets each 
 year should be taken into consideration. The width at 
 ordinary high-water mark is not the test : New Ham- 
 burg v. Waterloo, 22 O. R. 193, 20 A. R. 1, 22 S. C. 
 R. 296. Maintenance of bridge over stream forming 
 boundary between local municipalities: Re Pem- 
 broke and Renfrew, 21 O. L. R. 366, 1 O. W. N. 927, 
 16 0. W. R. 454. Liability for repair of bridges be- 
 tween city and township ; notice of abandonment by 
 general road company. Liability devolves on city 
 and county, not on township :• Ottawa, etc., Road Co. 
 v. Ottawa, 4 0. W. N. 1015, 5 0. W. N. 57, 24 0. W. 
 R. 344, 984. " Over 100 feet in width " refers to 
 the width of the river, not to the length of the 
 bridge : Re Newburgh and Lennox, 10 0. W. R. 541. 
 Measurement of stream: Re Caledonia and Haldi- 
 mand, 3 0. W. N. 1654, 22 0. W. R. 961. See also 
 Pow v. West Oxford, 11 0. W. R. 115, 13 0. W. R. 
 162. 
 
 442. Bridge over a river forming boundary between a 
 city and township within a county erected by city 
 and county jointly; county only compellable to arbi- 
 trate in respect of compensation for land damages: 
 Re Cummings and Carleton, 25 0. R. 607, 26 0. R. 1. 
 The word " approaches " means all such artificial 
 structures as may be reasonably necessary and con- 
 venient for the purpose of enabling the public to 
 pass to and from the bridge on to the road, and does 
 not include the highway to a distance of 100 feet 
 from each end of the bridge, at all events unless the 
 
CHAPTER 192. 
 
 1055 
 
 artificial structures extend so far. In an action under 
 Lord Campbell's Act it was held that the section 
 did not relieve the local municipality from its sta- 
 tutory liability to repair, but merely gives to such 
 municipality the right to enforce the provisions 
 against the municipality or municipalities owning 
 the bridge: Traversy v. Gloucester 15 0. E. 214; 
 see also Johnson v. Township of Nelson, 17 A. E. 16, 
 as to time limit, etc. This section only applies to 
 ' cases in which two municipalities are concerned, 
 one having jurisdiction over the bridge and the other 
 over the highway : Victoria v. Carden, 8 0. W. E. 1. 
 
 449. The " use by inhabitants of municipalities other 
 than the township " need not be by the inhabitants 
 of municipalities within the county — the point is the 
 extensive use for travel. The road need not be a 
 line of road extending through the municipalities 
 referred to nor a main trunk road with branches. 
 All that is necessary is that it should be an "im- 
 portant road " connected "with other roads or ways 
 forming means of communication, whereby the in- 
 habitants of such municipalities may pass and re- 
 pass over the said bridge : McNab v. Eenfrew, 11 0. 
 L. E. 180. A structure for crossing the waters of a 
 lake with a wooden section 243 feet long spanning 
 the waters at low water and embankments at either 
 end 140 feet and 260 feet respectively, the whole 
 width being covered at high water, is a bridge over 
 300 feet long within the meaning of this section. 
 Semble, the section includes bridges crossing ravines 
 as well as rivers, streams, ponds and lakes : Ee Mud 
 Lake Bridge, 12 O. L. E. 159. Method of computing 
 length of bridge: Ee Williamsburg and Stormont 
 (Casselman Bridge Case), 11 O. W. E. 235, 15 0. L. 
 E. 586. Ee Maidstone and Essex, 12 0. W. E. 1190. 
 Duty cast on county to maintain certain bridges : Ee 
 Pembroke and Eenfrew, 21 0. L. E. 366. This sec- 
 tion is not limited to bridges over rivers, streams, 
 ponds or lakes. It does not exclude bridges crossing 
 ravines: Victoria v. Carden, 8 0. W. E. 1. The 
 registration of the order declaring a bridge to be a 
 county bridge does not necessarily affect any par- 
 ticular land. The registration is made as a matter 
 of public record: Guthrie, 1910, p. 23. 
 
1056 CHAPTER 192. 
 
 450. New Hamburg v. Waterloo, 22 0. E. 193, 29 A. E. 
 1, 22 S. C. E. 296. Duty of County Council tolmild, 
 maintain and repair: Ee Caledonia and Haldimand, 
 3 W. N. 1654. 
 
 452. A horse escaping from the person in charge of him 
 got on the public road, ran a long distance and 
 reaching a drawbridge when the draw was open was 
 drowned. There was not any gate or other protec- 
 tion to guard the approaches of the bridge when 
 swung. The county constructing the bridge was 
 not liable: Steinhoff v. Kent, 14 A. E. 12.^ What 
 are " bridges over rivers " within the meaning and 
 intention of the section : North Dorchester vi Mid- 
 dlesex, 16 0. E. 658. Joint jurisdiction and liability 
 of adjoining counties; maintenance of bridge be- 
 tween counties: Victoria v. Peterborough, 15 A. E. 
 617, Cass. Dig. 558. See also Cummings v. Carle- 
 ton, 25 O. E. 607, 26 0. E. 1. What is a boundary 
 line road within the meaning of sub-sec. 2. Devi- 
 ation to avoid expense of a bridge* History and 
 meaning of boundary line legislation discussed: 
 Fitzroy v. Carleton, 9 O. L. E. 686. Distinction be- 
 tween a bridge and a culvert: Dufferin v. Welling- 
 ton, 10 0. W. E. 239. 
 
 453. Enforcement of agreement between municipalities 
 as to building and maintenance of roads: E. Gwil- 
 limbury v. King, 1 O. W. N. 577. Joint jurisdiction 
 and liability iof adjoining counties: Victoria v. 
 Peterborough, 17 A. E. 617, Cas. Dig. 558. There 
 was formerly in these sections a provision as to 
 boundary roads providing for joint jurisdiction 
 " although the roadway so deviate as in some places 
 to be wholly or in part" within either of them " (the 
 municipalities in question) : see 3 Edw. VET., eh. 19, 
 sec. 622. For recent case on " deviation " and re- 
 view of authorities: see Wentworth v. West Flam- 
 boro', 23 0. L. E. 583, 26 0. L. E. 199. See now, 
 provisions of sec. 458 post. The sections formerly 
 included a provision for " opening " as well as 
 erecting and maintaining boundary lines. As to 
 these sections and status of private individual to 
 sue: see Hislop v. McGillivray, 12 O. E. 749, 15 
 A. E. 687, 17 S. C. E. 479. 
 
CHAPTER 192. 1057 
 
 457. See also E. S. 0. 1914, oh. 198, sees. 80, 82, etc. Where 
 a Council passed a by-law authorizing drainage 
 works including the removal of a dam, the by-law 
 was set aside on the ground that the removal of an 
 artificial obstruction was not contemplated by the 
 law then in force. The law was amended and the 
 Council passed another by-law. The engineer did 
 not again make an examination, the condition not 
 having changed, but presented his former report, 
 plans, etc., under which the work was done. It was 
 held, reversing the lower Court, that the engineer's 
 report was sufficient without the preparation of new 
 plans and assessment: Elizabethtown v. Augusta, 2 
 6. L. B. 4, 22 Occ. N. 191, 32 S. C. E. 295. 
 
 458. ' '" Deviation : ' ' see authorities reviewed : Wentworth" 
 v. West Flamboro, 23 0. L. E. 583, 26 0. L. E. 199. 
 See post, sec. 469, notes. 
 
 460. — (1) The liability of a municipality to repair a 
 highway, whether at common law or by statute, is 
 general. The Court will not prescribe what parti- 
 cular works are necessary or whether any particular 
 work or repairs be necessary: A. G. v. Stafford- 
 shire, 1905, 1 Ch. 336. Proceedings against the cor- 
 poration of a city on the charge of neglecting to re- 
 pair and keep in repair one of its public streets, 
 thereby committing a common nuisance, should be 
 by indictment. Prohibition was granted to restrain 
 a preliminary investigation before a police magis- 
 trate: E. v. London, 32 0. E. 326. This sub-sec. is 
 not confined to claims arising out of accidents: 
 Strang v. Arran, 28 0. L. E. 106. Statutory duty of 
 municipalities in respect of repair of highways. 
 Onus of proof; knowledge; res ipsa loquitur: Cum- 
 mings v. Vancouver, 46 S. C. E. 457. The statutory 
 duty to repair and maintain highways extends to 
 all ordinary traffic; liability for collapse of bridge 
 when traction engine passing over : the duty imposed 
 by this sec. is subject' to the requirements of E. S. 0. 
 1914, ch. 212,* sec. 5: Goodison Thresher Co. v. Mc- 
 Nab, 14 0. W. E. 25, 19 0. L. E. 188, 44 S. C. E. 
 187; see E. S. 0. 1914, <*• 212 notes, especially sec. 
 5. Liability of municipality for injury to children 
 playing on streets ; measure of damages for injury 
 
 B.A.— C7 
 
2058 CHAPTER 192. 
 
 resulting in death — expectation of pecuniary bene- 
 fit in the future capable of being estimated : Bicketts 
 v. Markdale, 31 0. R. 610 ; and see also notes to E. 
 S. 0. 1914, ch. 151, sec. 4 (1). The township corpor- 
 ation and not the trustees of a police village are re- 
 sponsible for the condition of highways within the 
 limits of the police village : Smith v. Bertie, 4 0. W. 
 N. 907, 28 0. L. R. 330. But see provision for rem- 
 edy over, sees. 533, 464, infra. 
 
 Extent of obligation of municipalities to erect rail- 
 ings along highways: Kelly v. Carrick, 2 0. "W. N. 
 1429, 19 O. W. E. 796. Non-repair of highway; no 
 guard rail: Barclay v. Ancastef, 4 0; W. N. 764, 24 
 O. W. E. 60. Necessity for guard rail: Campbell v. 
 Brooke, 8 0. "W. E. 292. Insufficient surface indica- 
 tions of conditions of danger below to warn the cor- 
 poration of threatened cave-in: O'Connor v. Ham- 
 ilton, 8 0. L. E. 391, 10 0. L. E. 529. Cavity not 
 properly guarded : Morrison v. Toronto, 12 0. L. R. 
 333. Injury to person on highway crossing railway 
 track where city corporation had erected gates 
 which were left open: Soulsby v. Toronto. 9 0. W. 
 E. 871. Open excavation unguarded: Burns v. Tor- 
 onto, 10 0. W. E. 723. Hole in highway caused by 
 works undertaken by corporation: Sangstef v. God- 
 erich, 13 0. W. E. 419. Lack of safeguards in re- 
 pairing pavement: Waller v. Sarnia, 23 0. W. E. 
 831, 4 0. W. N. 890, 24 0. W. E. 204. Non-repair of 
 bridge ; absence of railing ; accident caused by horse 
 becoming frightened in thunderstorm when cross- 
 ing: Mclnnes v. Egremont, 5 O. L. E. 713. 
 
 The existence of things on a trap door a little more 
 than an inch above the level of a city sidewalk does 
 not constitute want of repair so as to make a muni- 
 cipal corporation liable for want of repair — at any 
 rate as against a plaintiff who was well aware of the 
 existence of the hinges : Ewing v. Toronto, 29 0. R. 
 197. Slight inequalities in the surface of a walk 
 which may lead to an exceptional slip or fall are not 
 to be accounted such non-repair as will make a 
 municipality liable for negligence : Andef son v. Tor- 
 onto, 11 0. W. E. 337. But see Ewing V. Hewitt, 27 
 A.. E. 296, 299 (Burton, C. J. 0.). Non-repair of 
 highway by waterpipe protruding above the level of 
 
CHAPTER 192. 
 
 1059 
 
 sidewalk : Roach v. Port Colborne, 4 0. W. N. 1366, 
 28 0. L. E. 69. Depression in pavement: Anderson 
 v. Toronto, 11 0. W. R. 337, 15 0. L. R. 643. Defect 
 in sidewalk: Breault v. Lindsay, 10 0. W. R. 890. 
 Sidewalk out of repair : Innis v. Havelock. 17 0. "W 
 R. 311, 2 0. W. N. 205, 871. Loose iron lid of catch 
 basin in sidewalk : Hobin v. Ottawa, 8 0. W. R. 101, 
 589. Dangerous condition of county road by reason 
 of accumulation of ice and snow: Gallagher v. Len- 
 nox, 13 0. W. R. 227. See also Hogg v. Brooke, 7 
 0. L. R. 273. Obstruction at side of road causing 
 injury to occupants of overcrowded buggy: Everitt 
 v. Raleigh, 1 0. W. N. 717, 15 O. W. R. 855, 21 O. L. 
 R. 91. Telephone pole as obstruction ott highway: 
 Howse v. SouthWold, 3 0. W. N. 1295, 1592, 22 0. W. 
 R. 212, 797, 27 0. L. R. 29. Heaps of dirt on high- 
 way as source of injury to bicyclist : Keech v. Smith's 
 Falls, 11 0. W. R. 309, 15 0. L. R. 300. Want of re- 
 pair: Stillwell v. Houghton, 2 0. W. N. 185, 17 W. 
 R. 239. A highway in a well-settled district is out of 
 repair when a large stump is allowed to stand in the 
 highway just at the edge of the travelled way. Con- 
 tributory negligence of the driver of the vehicle in 
 such a case is not an answer to an action for injuries 
 by an occupant of the vehicle. Semble, where horses 
 run away without fault of the driver and he sus- 
 tains injury by such a defect he is entitled to 
 damages : Foley v. Bast FlamboroUgh, 29 0. R. 139, 
 26 A. R. 43. House being moved along the high- 
 way : when an obstruction ; notice and lapse of time 
 required to make municipality liable : Rice v. "Whitby, 
 28 0. R. 598, 25 A. R. 191. Defective sidewalk, 
 scantlings rotten, and board missing for a week; 
 notice of defect assumed and corporation held lia- 
 ble: McGarr v. Prescott, 4 0. L. R. 280. Defect in 
 sidewalk extending beyond the true line of the 
 street : Badams v. Toronto, 24 A. R. 8. Liability of 
 municipality for non-repair of approach to weigh 
 scales at side of road : 'Neil v. London, 3 0. W. N. 
 345, 20 0. W. R. 573. Repair of highway; drainage; 
 Watercourse: Smith v. Eldon, 9 0. W. R. 963. As to 
 drainage: see sec. 398 (7), notes. 
 
 It ,is not contributory negligence to cross a busy 
 street diagonally, but a foot passenger using the 
 carriageway cannot expect any greater degree of 
 
J060 CHAPTER 192. 
 
 repair than will render the roadway reasonably 
 safe for horses and vehicles: Belling v. Hamilton, 
 3 0. L. R. 318. Long continuance of an obstacle in 
 a highway does not enure to the exemption of the 
 municipality: Eoach v. Port Oolborne, 28 0. L. R. 
 69. The plaintiff's knowledge of the existence of 
 an obstacle in a highway by which he is subsequently 
 injured is not per se a defence: Roach v. Port Col- 
 borne, 28 0. L. R. 69. Quantum of damages ; refusal 
 to submit to operation; neurasthenia: Bateman v. 
 Middlesex, 2 0. W. N. 1238, 3 0. W. N. 307, 24 0. L. 
 R. 84. "Where a motor truck was injured through the 
 negligence of a municipality, the measure of damages 
 was the cost of replacing to the plaintiffs the use of 
 the truck during the period of repair: Armstrong 
 Cartage Co. v. Peel) 24 0. W. R. 372, 4 0. W. N. 
 1031, 10 D. L. R. 169 See also The Argentina, 14 
 A. C. 519; Greta Holme (1897), A. C. 596. 
 
 Liability where act of third party intervenes: see 
 also provisions of sub-sec. (7), and sees. 464 and 
 483 and notes. Telephone pole, when an obstruc- 
 tion, liability of corporation, liability of telephone 
 company: Atkinson v. Chatham, 29 0. R. 518. Lia- 
 bility of municipality for damages through collision 
 with telephone pole erected without statutory right: 
 Howse v. Southwold, 3 0. W. N. 1295, 1592, 22 0. W. 
 R. 212, 797, 3 0. W. N. 1592, 27 0. L. R. 29. Prim- 
 ary responsibility of municipality for fault of elec- 
 tric railway company, where tracks laid on highway 
 and raised above level: Pow v. "West Oxford, 11 0. 
 W. R. 115, 13 0. "W. R. 162. Municipality not liable 
 where horse took fright at railway ties piled with- ' 
 out the authority of the corporation on the untra- 
 velled portion of the highway, but the person piling 
 them is responsible: O'Neil v. "Windham, 24 A. R. 
 341. Accumulation of snow resulting from unlawful 
 incline of overhead railway bridge; municipality 
 liable and railway also for resulting accident: Fair- 
 banks v. Yarmouth, 24 A. R. 273. Piling drain tiles 
 at side of highway required in work of rebuilding a 
 culvert which frighten plaintiff's horse — liability of 
 committee of Council: McDonald v. Yarmouth, 29 
 0. R. 259; McDonald v. Dickenson, 24 A. R. 31. Use 
 : of' dangerous material in repair of pavement by in- 
 dependent contractor: "Waller v. Sarnia, 4 0. W. N. 
 
CHAPTER 192. 
 
 1061 
 
 403. Dangerous condition of highway from con- 
 tractor's obstructions: Hawkins v. McGuigan, 3 0. 
 W. N. 1064. Where a committee drove stakes in a 
 highway to indicate where a ditch should be dug and 
 the plaintiff was injured. Held misfeasance, and the 
 corporation liable as the committee were within the 
 scope of their authority: Biggar v. Crowland, 8 0. 
 W. E. 819, 13 0. L. E. 164. Allowing piles of lum- 
 ber to remain on the highway; corporation liable in 
 case of accident: Kelly v. Whitchurch, 11 0. L. E. 
 155. Boulder placed on highway : McKelvin v. London, 
 22 0. E. 70. Milkstand built on the highway by an ad- 
 joining proprietor projecting over the highway: 
 Where this had remained in place for three years 
 and the corporation had taken no steps to remove it, 
 they were held liable: Huffman v. Bayham, 26 A. 
 E. 514. A milkstand upon the highway at the side 
 and not upon the via trita is not a breach of town- 
 ship's duty to repair. Cases followed commented 
 on as unsatisfactory: Colquhoun v. Fullerton, 4 0. 
 W. N. 737, 11 P. L. E. 469, 28 0. L. E. 102. Where 
 a highway was for a long time in bad repair and lia- 
 ble to be flooded at seasons, third parties put cin- 
 ders on it to enable them to cross it, whereby the 
 plaintiff was injured. The defendants should have 
 anticipated that some such means would be adopted 
 and were liable for negligence in the performance of 
 their statutory duty to keep the highway in repair, 
 but the -third parties were liable over to the de- 
 fendants: Holland v. York, 7 0. L. E. 533. The 
 time limit in sub-fsec. 2 applies to an action in re- 
 spect of an accident occasioned by the failure to 
 properly guard an opening made, with the corpor- 
 ation's permission, in the sidewalk to permit access 
 to a cellar; it was never intended that a permission 
 under section 483 should render the corporation 
 liable for the acts and omissions of its licensee ex- 
 cept subject to the requirements of section 460: 
 Minns v. Omemee, 2 0. L. E. 579, 8 0. L. E. 508. A 
 municipal corporation having placed a barrier 
 around a portion of sidewalk which they were re- 
 pairing, the plaintiff, going around it at night, fell 
 into a trench dug by a gas company under an agree- 
 ment for indemnity and to properly warm and pro- 
 ject the public. It was held that both the defendants 
 were liable, but that the corporation should have 
 
2062 CHAPTER 192. 
 
 judgment over against the company: Mclntyre v. 
 'Lindsay, 4 0. L. E. 448. Where there was an open- 
 ing in the sidewalk by permission under sec. 483, 
 and it was insufficiently guarded, the plaintiff whose 
 eyesight was defective, fell in and was injured. The 
 corporation was liable and the licensee liable over 
 to them: Homewood v. Hamilton, 1 O. L. E. 266. 
 
 Actions for injuries sustained by default in keeping 
 in repair to be tried by a Judge without the inter- 
 vention of a jury: E. S. 0. 1914, ch. 56, sec. 54; see 
 same section as to venue. 
 
 460.— (2) The doing of a lawful act by the corporation 
 on a highway in such a way as to endanger the safety 
 of the public is misfeasance: Keech v. Smith's Falls, 
 15 0. L. E. 300. Municipality guilty of non-feasance 
 of the statutory duty to keep its highways in good 
 repair : McPhalin v. Vancouver, 45 S. C. E. i94. See 
 'also as to non-feasance and misfeasance: Brown v. 
 Toronto, 21 0. L. E. 230, and cases cited. Pleading : 
 see Stilwell v. Houghton, 1 0. W. N. 804; Striking 
 out jury notice in action for non-repair of highway : 
 James v. Toronto, 3 0. W. N. 1007. This section is 
 not retroactive. Section 606 of the Municipal Act, 
 3 Edw. VII., ch. 19, provided that an action lay 
 against a municipality in case of accident sustained 
 by default to keep the highway in repair. By a line 
 of decisions, that was limited to default attributable 
 to non-feasance ; cases of misfeasance were held to 
 lie outside the statute and untouched by its pre- 
 liminaries as to notice and time of suing: -Glynn v. 
 Niagara Falls, 5 O. W. N. 285. 
 
 460. — (3) "Gross negligence " means at least " great 
 negligence " — and it must be shewn that the side- 
 walk was allowed to remain in a dangerous condi- 
 tion for an unreasonable length of time. If a side- 
 walk is constructed according to plans of competent 
 engineers, the possibility of a less dangerous plan 
 of construction is not an element to be considered. 
 Where there was a sudden change in temperature 
 resulting in ice forming and there was no actual 
 notice, the corporation was not liable for an accident 
 occurring within a comparatively short time: Ince 
 
CHAPTER 192. -^Qgg 
 
 v. Toronto, 27 A. E. 41(T, 31 S. C. E. 323. Accumu- 
 lation of snow on highway: see Fairbanks v. Yar- 
 mouth, 24 A. E. 273 ; Gallagher v. Lennox, 13 0. W. E. 
 227 ; Hogg v. Brooke, 7 0. L. E. 273. Snow and ice on 
 sidewalk ; evidence as to duration of condition-— rapid 
 climatic changes : Lynn v. Hamilton, 10 0. W. E. 329. 
 Gross negligence in permitting accumulations of snow 
 and ice on sidewalk: Yates v. Windsor, 3 0. W. N. 
 1513; 22 O. W. E. 608; Joncas v. Ottawa, 1 0. W. N. 
 737, 2 0. W. N. 168 ; Bell v. Hamilton, 1 0. W. N. 644, 
 784, 15 0. W. E. 747; Merritt v. Ottawa, 12 0. W. 
 B. 561; Ludgate v. Ottawa, 8 0. W. E. 257, 865. Lia- 
 bility of owner, tenant and municipality where ice 
 is caused by water from pipe from roof of building 
 being allowed to flow over sidewalk and freeze : Or- 
 gan v. Toronto, 24 0. E. 318. Steep inclines of snow 
 at ends pf crossings; crossing, regarded as part of 
 the sidewalk; " Gross " negligence considered — 
 evidence to justify finding that corporation had not 
 fulfilled its statutory, obligation: Drennan v. King- 
 ston, 23 A. E. 406, 27 S. C. E. 46, and see cases noted 
 supra, sec. 460 (1). > 
 
 460.— (4) , Leizert v. Matilda, 29 0, E. 98, 26 A. E. 1, is 
 not applicable since this sub-section was passed. 
 What amounts to a waiver of notice by one of two 
 municipalities jointly liable: Jones v. Stephenson, 
 32 0. E. 226. Meaning and construction of sub-sec- 
 tion and its application to other than accident cases : 
 Strang v. Arran, 4 0. W, N. 765, 28 0. L. E. 106; 
 Cummings v. Dundas, 13 0. L. E. 384. This sub- 
 section applies to all cases of non-repair, and is not 
 confined to cases arising under sub-sec. (3) : Aldis v. 
 Chatham, 28 0. E. 525. The ruling of a Judge at the 
 trial as to whether there is reasonable excuse for the 
 want or insufficiency of a " notice in writing of the 
 accident and the cause thereof, ' ' and whether the de- 
 fendants have been prejudiced in their defence, is 
 subject to appeal. What amounts to reasonable ex- 
 cuse for want of notice in due time; where there is 
 actual knowledge or verbal notice it may be regarded 
 as an element of the excuse, but something more is 
 required. The fact of the accident by itself is not a 
 reasonable excuse if it is not accompanied by some 
 disabling circumstances; being misled may be an 
 excuse: O'Connor v. Hamilton, 8 0. L. E. 391, 10 Q» 
 
1064 CHAPTER 192. 
 
 L. E. 529. See also as to what constitutes reason- 
 able excuse : Armstrong v. Canada Atlantic Ey. Co., 
 2 0. L. E. 219, 4 0. L. E. 560. Appellate Court would 
 not interfere with discretion of trial Judge in dis- 
 pensing with notice of action: Drennan v. Kings- 
 ton, 27 S. C. E. 46. Seasonable excuse arising 
 from condition of mental incapacity caused by the 
 accident: Morrison v. Toronto, 12 0. L. E. 333. 
 An injury which, though it may involve great 
 bodily suffering, does not physically or mentally in- 
 capacitate the patient from giving the notice or dir- 
 ecting it to be given, was not an excuse for not giv- 
 ing the notice : Anderson v. Toronto, 11 0. W. E. 
 337, 15 0. L. E. 643. A sufficient excuse for not giv- 
 ing notice is that the nature of the injury is such as 
 to cause the plaintiff to become for the time being 
 incapable of considering his situation except as a 
 sufferer : Morrison v. Toronto, 7 0. W. E. 547, 607, 
 12 O. L. E. 333. Non-repair of sidewalk ; facts from 
 which notice must be implied: Kew v. London, 9 0. 
 W. E. 224. Want of notice to municipality: 
 Colquhoun v. Fullerton, 4 0. W. N. 737. Non-repair 
 of sidewalk; notice of action: Brown v. Toronto, 2 
 0. W. N. 982, 18 0. W. E. 996, 21 0. L. E. 230. Ee- 
 quirements of notice of action: Young v. Bruce, 3 
 O W. N. 89, 20 0. W. E. 87, 21 G. W. E. 404, 24 0. 
 L. E. 546. The time and place of the accident should 
 be given with reasonable particularity so as to iden- 
 tify the occasion : Mclnnes v. Bgremont, 2 0. W. E. 
 283, 5 0. L. E. 713. Notice of action arising out of 
 defective sidewalk — sufficient to state cause of acci- 
 dent, name of street, the particular side and reason- 
 able information as to the locality. It is not neces- 
 sary to mention the exact locality : McQuillan v. St. 
 Marys, 31 0. E. 401. The particular side of the street 
 should be indicated and the defect in plain terms: 
 Breault v. Lindsay, 10 0. W. E. 890. Neither ignor- 
 ance of the law nor verbal notice was sufficient to 
 excuse the want of notice required by sec. 606 (3) 
 of 3 Bdw.. VII., ch. 19. Cases considered and 
 amendment suggested: Egan v. Saltfleet, 4 0. W. 
 N. 1384, 29 0. L. E. 116, and see sec. 460 (5). 
 As to reasonable excuse for not giving written 
 notice : see notes to E. S. 0. 1914, ch. 146, sec. 13. 
 
 460. — (5) See notes to sec. 460 (4), supra. See also notes 
 to E. S. 0. 1914, ch. 146, sec. 13. 
 
CHAPTER 192. 
 
 1065 
 
 460. — (6) Duty of municipal councils in maintaining and 
 keeping in repair roads under the jurisdiction of 
 councils only applies to roads formally opened and 
 used: Hislop v. McGillivray, 17 S. C. E. 479. For 
 distinction between acts which a corporation can do 
 in the discharge of its duty to repair a highway 
 without passing a by-law and acts for the improve- 
 ment of a highway for which a by-law is necessary: 
 see Croft v. Peterborough, 5 U. C. C. P. 35, 141; 
 Eeid v. Hamilton, 5 U. C. C. P. 269, 287. Work of 
 repair which requires a by-law: Taylor v. Gage, 5 
 O. W. N. 489. Township municipality liable for 
 non-repair of sidewalk built by voluntary subscrip- 
 tion and statute labour, although no control as- 
 sumed nor any public money or statute labour ex- 
 pended With the knowledge of the council, yet they 
 knew of the existence of the sidewalk and had op- 
 portunity and time to repair it: Madill v. Caledon, 
 3 0. L. R. 66, 555. Acceptance by municipality of 
 private lane: Eushton v. Galley, 21 0. L. E. 135, 1 
 0. W. N. 754, 16 0. W. E. 12, 256. What is sufficient 
 to show that a road laid out by a private person has 
 been assumed for public use by a corporation : Hol- 
 land v. York, 7 0. L. E. 533. And see sec. 432, ante 
 and notes. 
 
 460. — (7) By this section introduced in 1896, no 
 liability is now imposed on a municipal corporation 
 for want of repair of a railway crossing by reason 
 of its being too high a grade, and the omission to 
 fence, the obligation therefor being, under the Eail- 
 way Act, solely on the railway company : Holden v. 
 Yarmouth, 5 0. L. E. 579. Construction of wall by 
 railway company : Hurd v. Hamilton, 1 0. W. BT. 881. 
 Non-repair of portion of highway occupied by St. 
 Ey. tracks ; injury to person : Van Cleaf v. Hamilton 
 St. Ey., 5 0. W. E. 278, 628; Borough of Bathurst v. 
 MacPherson, 4 App. Cas. 256; Bull v. Shoreditch, 
 19 Times L. E. 64, 20 Times L. E. 254. See also Mc- 
 Intyre v. Lindsay, 4 O. L. E. 448, and cases referred 
 to &Me> sec. 460 (1), notes. See Eailway Act, E. 
 S. 0. 1914, ch. 185, sees. 118 and 125, 259, 265, and 
 notes. See as to damage claims against companies 
 operating public utilities : E. S. 0. 1914, ch. 204, sec. 
 51 (6) and notes, also ch. 178, Part XII. 
 
1066 CHAPTER 192. 
 
 460. — (8) In order to maintain an action for obstructing 
 a public way the plaintiff must suffer some substan- 
 tial damage peculiar to himself, beyond what is suf- 
 fered by the rest of the public who use the way: 
 Winterbottom v. Lord Derby (1867), L. E. 2 Ex. 316. 
 
 464. In an action for damages against a corporation for 
 allowing lumber to remain on one of its streets, 
 which had been left there wrongfully by other de- 
 fendants and which fell on the plaintiff and injured 
 him, the defendants were held not joint tort-feasors : 
 Oon. Eule 186 was not so amended by this section 
 as to authorize an action so constituted: Baines v. 
 Woodstock, 10 0. L. E. 694; See also Hinds v. Bar- 
 rie, 6 0. L. E. 656; Eice v. Whitby, 25 A. E. 191; 
 Homewood v. Hamilton, 1 0. L. E. 266; McKel- 
 vin v. London, 22 0. E. 70; Balzer v. Gosfield, 17 0. 
 E. 700. A millowner having a license from a town- 
 ship to construct his dam so as to flood part of a 
 highway, constructed it so negligently as to damage 
 proprietors below; such a license is lawful and the 
 damage being caused by the negligence of the mill- 
 owner, the township was not liable. Such a case is 
 not within this section giving a right to claim relief 
 over: Ward v. Caledon, 19 A. E. 69. The section 
 applies to the case of an obstruction, etc., directly 
 and immediately placed in the highway by the cor^ 
 poration or person against whom the remedy over 
 is given. It does not give the right to one township 
 corporation to recover from an adjoining township 
 damages recovered for an accident caused by non- 
 repair of a road lying between the two townships 
 which they were jointly liable to keep in repair: 
 Sombra v. Moore, 19 A, E. 144. Where a railway 
 raised the grade of a highway, the plaintiff's remedy 
 as a property owner was by arbitration, and in any 
 event the corporation could not bring in the rail- 
 way under this section: BaskerviUe v. Ottawa, 20 
 A. E. 108. Where relief over is proper and party is 
 added, procedure at trial : see Stilliway v. Toronto, 
 20 O. E. 98. Liability as between tenant, owner and 
 municipality for ice on sidewalk caused by flooding 
 from conducting pipe from gutter: Organ v. Tor- 
 onto, 24 O. E. 318. Negligence of contractors for 
 municipal building ; where corporation entitled to re- 
 lief over : McOann v. Toronto, 28 0. E. 650. Eemedy 
 
CHAPTER 192. 1067 
 
 over against telephone company where pole not 
 erected under municipal supervision : Bell Telephone 
 Co. v. Chatham, 31 S. C. R. 61. A third party is a 
 " party to the action." Where a municipality seeks 
 relief as against a person or corporation under 
 this section to enforce a remedy over, such person 
 or corporation should be made a third party and not 
 a defendant unless the plaintiff seeks some relief 
 against the third party. It is improper to add such 
 party both as defendant and third party: Erdman 
 v. Walkerton, 15 P. R. 12, 22 0. R. 693, 20 A. R. 444, 
 23 S. C. R. 352. Application of section considered : 
 Sutton v Dundas, 17 0, L. R. 556. Non-repair, relief 
 over: Reid v. Toronto, 1 0. W. N. 450, 699, 15 O. W. 
 R. 353; Holmes v. St. Catharines, 14 0. W. R. 736. 
 Unsafe condition of sidewalk taken over from town- 
 ship: Jackson v. Toronto, 2 0. W. N. 461, 17 0. W. 
 R. 1007. Third party notice in view of obligation of 
 city under agreement with Toronto Railway to keep 
 streets in repair: Robertson v. Toronto, 12 0. W. 
 R. 870. As to third party procedure generally: see 
 Con. Rule 209, H. & L. notes, especially at p. 393; 
 1913 Rule 165, et seq. See sec. 460 (1) and (7) ante 
 and notes, 
 
 465. Maintenance of bridge crossing stream forming 
 boundary between local municipalities. Re Pem- 
 broke and Renfrew, 1 0. W. N. 927, 21 0. L. R. 366. 
 
 469. Deviation: Wentworth v. Flamboro', 23 0. L. R. 
 583, 26 0. L. R. 199. Status of private individuals 
 to sue in regard to opening boundary lines: see 
 Hislop v McGillivray, 12 0. R. 749, 15 A. R. 687, 17 
 S. C. R. 479. Deviation ; construction of the amend- 
 ment of 1906: Normanby v. Carrick, 8 0. W. R. 908; 
 see ante, sees. 449-455, 458, and notes. 
 
 472. Application of section : Hanley v. Brantf ord, 16 0. 
 W. R. 812, 1 0. W. N. 1121. History of seetion : Re 
 Cameron and Hagarty, 10 0. W. R. 357. A motion 
 to quash a by-law under this section is premature 
 until the provisoes have been complied with: Re 
 Cameron and Hagarty, 10 0. W. R. 357. The doc- 
 trine of irrevocable dedication is not applicable to 
 ' the case of a park which is established by by-law out 
 of land belonging to the corporation. The fact of 
 
1068 CHAPTER 192. 
 
 corporate action being embodied in a by-law implies 
 its revocability : Atty.-Gren. v. Toronto, 6 0. L. E. 
 159. Method of selling or disposing of lanes closed 
 up; exchange: Ee Mills and Hamilton, 9 0. W. E. 
 731. Jurisdiction of the council over road: see Ee 
 Taylor and Belle Eiver, 13 0. W. E. 778, 18 0. L. 
 E. 330. A council passed a by-law closing a street 
 which, by reason of this section they had no power 
 to do without the consent of the Dominion Govern- 
 ment first obtained and recited in the by-law. They 
 then applied for and obtained this consent and a 
 fortnight after passed an amending by-law reciting 
 it. Held that the power of the city was spent when 
 the first by-law was passed, and being void it could 
 not be validated by subsequent consent and amend- 
 ment: Ee Inglis and Toronto, 8 0. L. E. 570. A by- 
 law passed by a municipal corporation cannot have 
 the effect of taking any lands of the Crown in ad- 
 dition to those appropriated by the Crown for the 
 purpose of highways in order to the opening up of 
 the country: Eae v. Trim, 17 Gr. 374. " Or part of 
 a highway:" see Ee Taylor and Belle Eiver, 13 0. 
 W. E. 778, 18 0. L. E. 330. Way substituted for 
 original road allowance: McLean v. Howland, 1 0. 
 W. N. 1036. Proceedings for closing portion of 
 highway; damages for deprivation of access; user 
 of highway not an original road allowance: Hanley 
 v. Brantford, 1 0. W. N. 1121, 16 0. W. E. 812. 
 Establishment of highways by statutory or muni- 
 cipal authorities: Irregularities in proceedings for 
 the opening or closing of highways and streets : see 
 Annotation, 9 D. L. E. 490. 
 
 473. A farm lot occupied by the owner as one farm was 
 diagonally divided by a railway into two parcels, 
 having a farm crossing connecting them. In addi- 
 tion to the road which gave access to the parcel 
 where the residence was, there was a road giving 
 access to the other parcel and which except for the 
 farm crossing was the only mode of access. This 
 latter road could not be closed up by the council 
 unless in addition to compensation another road or 
 way was provided : Ee Martin and Moulton, 1 0. L. 
 E. 645. The road need not, to come within this sec- 
 tion, actually form a boundary of land, provided 
 there is ingress or egress to and from such land 
 
CHAPTER 182. ]_Q69 
 
 over it : Ee Brown and Owen Sound, 14 0. L. B. 627. 
 Damages for deprivation of access: see Hanley v. 
 Brantford, 1 0. W. N. 1121, 16 0. W. E. 812. 
 
 474. Legal possession of road allowance : Ee Lister and 
 Clinton, 13 0. W. E. 582. Compensation for expro- 
 priation, of land for highway : McLean v. Howland, 
 14 0. W. E. 509. Sufficiency of notice: Ee Lister 
 and Clinton, 13 0. W. E. 582. 
 
 475. A notice providing that any one desiring to petition 
 against the passing of a by-law to close a road 
 must do so within a month from the date thereof, 
 is sufficient, per Boyd, C. : Ee Martin and Moulton, 
 1 0. L. E. 645. 2 Edw. VII., ch. 27, sec. 16, 
 provided that prior to the passing of a by-law 
 authorizing an electric railway on a highway, 
 notice must be given similar to that required by this 
 section. This however only applied to railways 
 within E. S. 0. 1897, ch. 209, and had no applica- 
 tion to the Toronto Eailway : Toronto v. Toronto 
 Eailway, 11 0. L. E. 103. The fact that the appli- 
 cant to quash a by-law had bought his land under 
 a registered plan shewing a street 80 feet wide, did 
 not prevent a municipality passing a by-law by 
 which the width of the street was reduced at the 
 part affected to 66 feet: Ee Inglis and Toronto, 9 
 0. L. E. 562. This section prescribes the prelim- 
 inaries of sale. Interests of public and of private 
 persons in closing lane and opening new lane : Ee 
 Mills and Hamilton, 9 0. W. E. 731. Notice for 
 selling and subsequent closing of street : Ee Seguin 
 and Hawkesbury, 4 0. W. N. 521, 1409, 23 0. W. E. 
 857, 24 0. W. E. 695. The Court will not go into 
 action of council in closing road when effect is to 
 unsettle titles in respect of a matter long settled: 
 Pirie v. Parry Sound Lumber Co., 13 0. W. E. 319. 
 
 479. Eoad less than 66 feet wide ; consent to plan does 
 not involve inadvertent closing of highway : Larcher 
 v. Sudbury, 4 0. W. N. 1289, 24 0. W. E. 659. As 
 to registration of plans and as to roads thereon: see 
 E. S. 0. 1914, ch. 124, sec. 81, et seq. 
 
 481. Municipal regulation of building permits : see An- 
 notation 8 D..L. E- 422. 
 
1Q70 CHAPTER 192. 
 
 483. A municipality fails in its duty to the public by 
 creating, Without notice, a dangerous condition on 
 a boulevard, and is liable for damage resulting: 
 Breen v. Toronto, 17 0. W. E. 41, 18 0. W. E. 522, 
 2 0. W. N. 87, 690. Where an area was negligently 
 guarded and a passerby injured, the city was held 
 liable with a remedy over to. the licensee of the area : 
 Homewood v. Hamilton, 1 0. L. E. 266. See as to 
 application of time limit in sec. 460 to actions brought 
 against a municipality and licensee: Minns v. Ome- 
 mee, 2 0. L. E. 579, 8 0. L. E. 508. See sec. 460, ante 
 and notes. 
 
 487. Overhanging branches, projecting into the street 
 from trees growing within private owner's grounds 
 and not interfering with the use of the highway, 
 cannot be cut away. Where a telephone company 
 did this with the assent, but without express resolu- 
 tion or by-law of the city, or notice or compensa- 
 tion to the owner, alleging that the branches inter- 
 fered with the use of the wires of a telephone system 
 for public purposes which they had contracted with 
 the city to maintain, the city was liable in damages : 
 Hodgins v. Toronto, 19 A. E. 537. Municipal cor- 
 porations have power to deal with the trimming of 
 all trees the branches of which extend over the 
 streets of the municipality, but the matter should 
 not be dealt with by resolution, but by by-law : Ee 
 Allen and Napanee, 4 0. L. E. 582. See the provi- 
 sions of the Tree Planting Act, E. S. 0. 1914, eh. 213, 
 and notes. 
 
 491. Eemoval of unauthorized approach built by plain- 
 tiff to his residence: McLeod v. Aurora, 14 0. W. 
 E. 610. A verandah built after a street had been 
 dedicated, and projecting some distance, is an un- 
 lawful obstruction^ but where the Verandah had 
 been in existence for many years and there was no 
 special necessity for its removal, a mandatory in- 
 junction for its removal was refused: Caldwell v. 
 Gait, 27 A. E. 162. Injuries resulting from non- 
 repair and obstructions on highway: see sec. 460 
 notes. 
 
 492. This section though in terms applying only to the 
 sale of road allowance* would seem to imply a like 
 
CHAPTER 192. 107l 
 
 precaution in the case of an exchange: Herriman 
 v. Pulling & Co., 8 0. W. E. 149. Closing up; con- 
 veyance of part of road allowance: Pirie v. Parry 
 Sound Lumber Co., 11 0. W. R. 11. 
 
 493. History of the section: Pirie v. Parry Sound 
 Lumber Co., 11 O. W. R. 11, at p. 17. New road 
 in lieu of old road, compensation: Re Lister and 
 Clinton, 13 0- W. R. 582, 18 0. L. R. 197. Devia- 
 tion: see Wentworth v. Flamboro, 23 0. L. R. 583, 
 26 O. L. R. 199. What is required under this sec: 
 see Mills v. Freel, 23 0. W. R. 45, 3 0. W. N. 1240, 
 4 0. W. N. 79; see also Herriman v. Pulling & Co., 
 8 0. L. R. 149, noted ante sec. 492. 
 
 PART XXII. 
 
 Penalties an"d Enfobcement op By-laws. 
 
 497. The provision as to summary prosecution before a 
 justice of the peace for offences against municipal 
 laws applies to corporations as well as individuals: 
 R. v. Toronto Railway, 30 0. R. 214. Infraction of 
 resolution of a board of license commissioners: see 
 R. v. Laird, 6 0. L. R. 180, at p. 183. Conviction 
 for selling bread under weight ; power of Provincial 
 Legislature considered; R. v. Chisholm, 9 0. W. 
 R. 914; and see R. S. 0. 1914, ch. 224, and notes. 
 
 498. Effect of clause in by-law providing that half the 
 penalty should go to the informer : R. v. Van Nor- 
 man, 19 0. L. R. 447, 1 0. W. N. 35, 14 0. W. R. 
 659. 
 
 PART XXIII. 
 
 Police Villages. 
 
 502. A police village is not a corporation separate from 
 the township in which it is situated. Powers and 
 liabilities considered: Smith v. Bertie, 28 0. L. R. 
 330. 
 
 533. See Smith v. Bertie, 28 0. L. R. 330, and notes to 
 sec. 460 ante; see also provisions of sec. 464 ante. 
 
2072 CHAPTER 193. 
 
 CHAPTER 193. 
 
 The Local Improvement Act. 
 
 See Biggar, Municipal Manual, etc. (see ch. 192, 
 head note) ; Notes on the Act, W. B. Wilkinson. 
 
 2. — (j) "Frontage" "benefited:" Murphy v. Sand- 
 wich, 17 0. W. E. 738, 2 0. W. N. 369. 
 
 2. — (%) This is a change in the law. Formerly (3 Edw. 
 VII. ch. 19, sec. 668 (1) ), buildings were included. 
 See post, sec. 16, note. 
 
 3. Application of Local Improvement sections: McLean 
 v. Sault Ste. Marie, 2 0. W. E. 41. The power 
 given in sub-sec. (i) is now limited to extensions, 
 as was the case before 1903. Compare the provisions 
 of 3 Edw. VII. ch. 19, sec. 664 (3). The powers <&) 
 and (I) are new. 
 
 For forms approved by the Ontario Eailway and 
 Municipal Board, see post, sec. 54, notes. These are 
 numbered consecutively after the forms appended to 
 the statute and are: 
 
 4. Petition for local improvement. 
 
 5. Clerk's certificate. 
 
 6. Declaration of publication. 
 
 7. Declaration of service. 
 
 8. By-law under sec. 32. 
 
 9. By-law under sec. 23. 
 
 10. Construction By-law. 
 
 11. Special Assessment Eoll. 
 
 12. Debenture By-law, Sinking Fund Plan. 
 
 13. Debenture By-law, Instalment Plan. 
 
 14. Schedule attached to Debenture By-law. 
 
 15. Consolidating By-law, Sinking Fund Plan. 
 
 16. Consolidating By-law, Instalment Plan. 
 
 17. Debenture, Instalment Plan (without coupons). 
 
 18. Debenture, Instalment or Sinking Fund Plan. 
 
 For form of affidavit on application to the Ontario 
 Eailway and Municipal Board for approval of Local 
 Improvement By-law, see E. S. 0. 1914, ch. 192, sec. 
 295, notes; and see post, sec. 5, note. 
 
CHAPTER 193. 
 
 1073 
 
 4. Compare 3 Edw. VII. ch. 19, sec. 673 (1), (3), and 
 
 note the express provisions of the latter part of the 
 present section. 
 
 5. Compare the wording of 3 Edw. VII. ch. 19, sec. 673 
 
 (2a) as enacted by 6 Edw. VII. ch. 34„ sec. 37. The 
 present section extends the former powers to in- 
 clude every case where a sewer has been or may 
 be constructed. For form of affidavit on application 
 to Ontario Railway and Municipal Board for ap- 
 proval of By-law for works without petition, see 
 E. S. 0. 1914, eh. 192, sec. 295. 
 
 8. An alderman is not disqualified from voting on a pro- 
 posed, by-law to construct a sewer on a certain 
 street, merely because he owns property fronting on 
 the street which gives him a large interest in the 
 proposed drainage: Elliott v. St. Catharines, 12 
 O.'W. R. 653, 13 0. W. R. 89, 18 0. L. R. 57. See 
 Forms, sec. 54 post. 
 
 9 See Equity Fire Insurance Co., and Weston, 12 0. 
 W. R. 221. The power to undertake works on two- 
 thirds vote of all the members of the council, has 
 been of gradual growth. The power was first given 
 in 1890, to cities, referred to plank sidewalks, and 
 was exerciseable by two-thirds of the members pres- 
 ent at a meeting. In 1891 it was extended to towns. 
 In 1901 to villages, and made to include sidewalks 
 constructed of certain other specified materials. In 
 1903 extended to include sidewalks of concrete and 
 brick. In 1906 the power was confined to a two- 
 thirds vote of all members, and was extended to 
 include sidewalks and pavements. In 1908 curbs 
 were added. In 1911 the present wide powers were 
 attained. For form of affidavit on application to the 
 Ontario Railway and Municipal Board for approval 
 of By-law for works without petition, see R. S. 0. 
 1914, ch. 192, sec. 295, notes. 
 
 13. Failure to serve the owner of property fronting on 
 a street proposed to be asphalted, was held fatal 
 to the. by-law: Hodgins v. Toronto, 14 0. W. R. 
 642, 1 0. W. N. 31. ■ Publication of an advertise- 
 ment in a newspaper having a large circulation 
 in the municipality stating that the corporation 
 
 S.A.— 68 
 
1074: CHAPTER 193. 
 
 intended constructing sidewalks in certain named 
 districts, is not sufficient notice to a property owner 
 affected by the work. Procedure to be observed 
 in passing by-laws for the construction of side- 
 walks considered; Ee Hodgms and Toronto, 20,O. 
 E. 480, 23 A. E. 80. It is a fatal objection to the 
 validity of a local improvement by-law that notice 
 was not given to owners as provided by this section. 
 Semble, an owner may waive such notice: Ee Me- 
 Crae and Brussels, 7 0. L. E. 146, 8 0. L. E. 156. 
 When a statute confers a right, privilege or im- 
 munity, the regulations, forms or conditions which 
 it prescribes for its acquisition are imperative in 
 the sense that non-observance of them is fatal: 
 Goodison v. McNab, 14 0. W. E. 25, 19 0. L. E. 
 188; Barton v. Hamilton, 13 0. W. E. 1118; Hodgins 
 v. Toronto, 14 0. W. E. 642, 1 0. W. N. 31. Note the 
 special provisions as to service of notice, sub-sees. 
 (5) and (6). See post, sec. 54, forms of declaration 
 of publication and declaration of service. For forms 
 of affidavit on application to the Ontario Eailway and 
 Municipal Board for approval of By-law for works 
 on the initiative plan, see E. S. 0. 1914, ch. 192, sec. 
 295, notes. 
 
 16. In ascertaining whether a petition for local improve- 
 ment is sufficiently signed by owners of the pro- 
 perty intended to be benefited, taxable persons and 
 taxable property only were to be taken into account. 
 " Eeal property " included both land and buildings 
 which formerly were both taken into account in com- 
 puting the requisite proportion of value : Macdonell 
 v. Toronto, 4 0. L. E. 315. But now see ante, sec. 
 2 (x). Compare 3 Edw. VII. ch. 19, sees. 668 (1), 
 669 (3). Clerk's certificate, post, sec. 54, form 5. 
 
 19. Necessity for new by r law where original estimate 
 
 insufficient, status of contract under seal to pay 
 additional amount: C. P. E. v. Chatham, 25 0. E. 
 465, 22 A. E. 330, 25 S. C. E. 608. Compare 3 Edw. 
 VII. ch. 19, sec. 665 (3), 673 (1), 674 (3). 
 
 20. The power to take a guarantee dates from 1909. 
 There was an earlier, similar provision in 1903. 
 
 21. See former section, 3 Edw. VII. ch. 19, sec. 679 (1), 
 under which assuming cost of street intersections 
 was optional. 
 
CHAPTER 193. ^075 
 
 22. See former section, 3 Edw. VII. eh. 19, sec. 673 (2b), 
 as enacted 6 Edw. VII. ch. 40, sec. 32. See also 
 former sec. 664 (a). 
 
 23. Where sidewalks were reconstructed out of the 
 general funds under the belief that such course was 
 justified by a special Act, the Court refused to hold 
 the councillors personally liable as they had acted 
 reasonably and were within the equity, at least, of 
 62 Vic, ch. 15, sec. 1; King v. Matthews, 5 0. L. 
 E 228. See 3 Edw. VII. ch. 19, sec. 678, and also sec. 
 680 (now omitted). 
 
 24. See 3 Edw. VII. ch. 19, sec. 673 (6). 
 
 26. "Where a sewer is being constructed as a local im- 
 provement and land not fronting on the street in 
 question is benefited as well as land fronting there- 
 on, the proper method of assessment is to deter- 
 mine what proportion of the cost the land front- 
 ing on the street shall bear and what portion the 
 land not so fronting shall bear, and to assess the 
 proportion payable by each class according to the 
 total frontage of each class, and not according to 
 the benefits received by lots of that class inter se. 
 Such an improvement and assessment must be 
 carried out under the provisions of a special by-law : 
 Ee Eobertson and Chatham, 30 O. E. 158, 26 A. E. 
 554. 
 
 27. A general by-law may be passed providing the means 
 
 of ascertaining and determining what real property 
 will be immediately benefited by any proposed work 
 or assessment, the whole cost of which is to be 
 assessed on that property, but such a general by- 
 law is not sufficient in the case of local improvements 
 or construction of bridges, the whole cost 
 of which the council deem it inequitable to 
 raise by local special assessment: Fleming v. 
 Toronto, 20 O. E. 547, 19 A. E. 318. General by-law; 
 irregularity in compliance with: Canada Company 
 v. Mitchell, 8 0. L. E. 482. Special by-law required 
 where special classes of frontages to be considered : 
 see Ee Eobertson and Chatham, 30 0. E. 158, 26 A. 
 E. 554; see also Ee Dundas Street Bridges, 8 0. L. 
 E. 52. See 3 Edw. VII. ch. 19, sees. 674 (1), (2), 
 675, 675 (&). 
 
1076 CHAPTER 193. 
 
 30. See post, sec. 54, form 11, Special Assessment Roll. 
 
 36. See 3 Edw. VII. ch. 19, sec. 671 (5), 671 (8), the 
 latter part of which is omitted. 
 
 39. After the County Court Judge had, on appeal by an 
 
 owner, given his decision on a day subsequent to 
 the argument, it was too late to obtain an order 
 for prohibition against him: Ee Eobertson and 
 Chatham, 30 0. E. 158, 26 A. E. 554. By-law passed 
 upon petition for construction of bridges, as local 
 improvement; Court of Eevision declared engineer's 
 assessment invalid. Held that the County Judge 
 could properly entertain an appeal from the Court 
 of Eevision at the instance of the city and the 
 Assessment Commissioner: Ee Dundas Street 
 Bridges, 8 0. L. E. 52. 
 
 40. Se'e Ward v. Welland, 31 0. E. 303. Compare 3 Edw. 
 VII. ch. 19, sec. 679 (2). See notes to E. S. 0, 1914, 
 Ch; 192, sec. 188. 
 
 41. Form of by-law consolidating several issues of local 
 
 improvement debentures, see post, sec. 54. Com- 
 pare 3 Edw. VII. ch. 19, sec. 433. 
 
 44. Where work was done, clerk not having complied 
 with provisions of general by-law : see Canada Com- 
 pany v. Mitchell, 8 0. L. E. 482. Debt created on 
 the security of a special rate: Ee Blenheim, 1 0. 
 W. N. 363, 15 0. W. E. 186. 
 
 45. What the legislature contemplated was that the 
 initial cost of construction of the local improvement 
 should be borne by the owners of the property 
 benefited, but that they should not be responsible 
 for keeping of it in repair, that duty being cast upon 
 the municipality generally, and that when it should 
 become necessary to reconstruct the work the cost 
 of so doings should be defrayed by the owners of the 
 property benefiting by the work of reconstruction. 
 This duty is imposed on the municipality for the 
 benefit of those at whose expense the improvement 
 has been made, and is not to be confounded with 
 the general duty to repair which is a duty towards 
 the public, The duty ends when it becomes neces- 
 sary to reconstruct the work or improvement. When 
 practical men would say it was worn out and not 
 
CHAPTER 193. 1077 
 
 worth repairing, no order for repair can be made: 
 Ee Medland and Toronto, 31 0. E. 243. 
 
 46. Compare 3 Edw. VII. ch. 19, sec. 666 (2). 
 
 48. Compare 3 Edw. VII. ch. 19, sec. 684 (1), (2). 
 
 53. Local improvements are a charge on land : Armour, 
 
 Titles, p. 165. For discussion of this section and 
 mutual rights of vendor and purchaser in regard to 
 local improvements : see Armour, Titles, pp. 168- 
 170, and cases cited. This section though applicable 
 quantum valeat to a vendor before conveyance, does 
 not relieve him from liability to remove a charge 
 for local improvement rates where he is bound to 
 convey free from incumbrances, notwithstanding the 
 purchaser's agreement to assume " all taxes, rates 
 and assessments wherewith the lands may be rated 
 or charged," from and after the day fixed for the 
 completion of the sale: Ee Taylor and Martyn, 9 
 0. W. E. 666, 14 0. L. E. 132. 
 
 54. The following Forms have been approved of by The 
 Ontario Eailway and Municipal Board, under the 
 authority of sec. 54 of the Act: 
 
 FOEM 4. 
 
 PETITION FOE LOCAL IMPEOVEMENT. 
 
 To the Council or the Cobpokation of the 
 
 of 
 The Petition of the Undersigned, owners of 
 
 lands abutting directly on the work hereinafter 
 
 referred to. 
 
 Sheweth as Follows: — 
 
 1. That it is expedient to construct a ^ side- 
 
 walk feet wide or such other width as the 
 
 Council may deem best upon the side of 
 
 street from to 
 
 Or 1. That it is expedient to construct a curbing 
 upon the side of street from 
 
 to 
 
 Or 1. That it is expedient to construct a sewer 
 on street from to 
 
 (Where the circumstances require, the following 
 may be added) : That such sewer, if deemed advis- 
 able, may be constructed of a larger capacity than 
 
1078 CHAPTER 193. 
 
 is required for the purpose of the abutting land in 
 order to afford an outlet for the sewage of lands 
 not abutting directly on the work, subject to the 
 provisions of the Act as to assessing the, non-abut- 
 ting lands for a fair and just proportion of the cost 
 of the work. 
 
 Or 1. That it is expedient to pave 
 with from to 
 
 Or 1. — (1) That it is expedient to alter the 
 grade of street from to 
 
 by (describe character of work as cutting and filling, 
 or as the case may be) so that the same may be 
 reduced to a grade not exceeding 
 (Where the circumstances require the following mag 
 be added) : — 
 
 (2) That your petitioners submit, subject to the 
 opinion of the Council, that such change in the grade 
 will benefit the Municipality at large, and will speci- 
 ally benefit lands in the vicinity of the work other 
 than those abutting directly thereon, and it Would 
 therefore be inequitable to charge all the cost thereof 
 on the lands abutting directly upon the work. 
 
 (Note. — These clauses relating to the changing 
 of the grade of a street with such changes as may 
 be necessary, will apply to the opening, widening, 
 extending, grading, diverting or improving of a 
 street or the construction of a bridge.) 
 
 2. That such work be constructed as a local im- 
 provement under the provisions of The Local Im- 
 provement Sections of The Municipal Act. 
 
 Yotjb Petitioners Therefore Pray: — 
 
 That the said (insert here description of work as 
 sidewalk, or curbing, etc.) may be con- 
 
 structed as a local improvement as aforesaid. 
 
 Dated this day of 19 
 
 Signature of 
 Petitioner. 
 
 Street, Number or Lot, 
 
 or Other Description 
 
 of Land Owned by 
 
 Petitioner. 
 
 Post Office Address 
 of Petitioner. 
 
FOEM 5. 
 
 CHAPTER 193. ^Q79 
 
 CLEEK'S CEETIFICATE. 
 
 To the Council op the Corporation op the 
 of 
 
 I, Clerk of the of 
 
 do hereby certify. 
 
 That the annexed (or within) petition of 
 and others praying for the construction of 
 upon (or in) street from to as a 
 
 local improvement lodged with me on the 
 day of 19 , is sufficient. 
 
 Dated this day of , 19 . 
 
 Clerk. 
 
 FOEM 6. 
 
 DECLAEATION OF PUBLICATION. 
 
 I, of the of , in 
 
 the County of , do solemnly declare : 
 
 1. A true copy of the notice hereto annexed was 
 published in the newspaper published at 
 
 on the day of , 19 . (// 
 
 published more than once insert " and on the 
 days of , 19 .". 
 
 And I make this solemn declaration conscienti- 
 ously believing it to be true, and knowing that it is 
 of the same force and effect as if made under oath 
 and by virtue of The Canada Evidence Act. 
 
 Declared before me, etc. 
 
 FOEM 7. 
 
 DECLAEATION OF SEEVICE. 
 
 I, of the of , in the 
 
 County of do solemnly declare: 
 
 1. I served a true copy of the notice hereto 
 annexed on the owners whose names appear in 
 Column 1 of Schedule 1 on the dates mentioned in 
 Column 2, and in the manner mentioned in Column 3. 
 
 2. The owners whose names appear in Schedule 
 . 2, were not served for the reasons set opposite their 
 
 respective names. . 
 
 And I make this solemn declaration conscienti- 
 ously believing it to be true and knowing that it is 
 
1080 
 
 CHAPTER 193. 
 
 of the same force and effect as if made under oath 
 and by virtue of The Canada Evidence Act. 
 Declared before me, etc. 
 
 SCHEDULE 1. 
 
 Column 1. 
 
 Column 2. 
 
 Column 3. 
 
 Name of Owner 
 
 Date of Service. 
 
 How served. 
 
 
 
 
 SCHEDULE 2. 
 Column 1. Column 2. 
 
 Name of Owner. Eeasons for Not Serving. 
 
 
 
 FORM 8. 
 
 PROCEDURE BY-LAW No. (See Sec. 32) . 
 
 By-law to provide for proceedings to be taken 
 for the construction of a work undertaken as a Local 
 Improvement. 
 
 Whereas it is expedient to provide for the mak- 
 ing of the reports, statements, estimates and special 
 assessment roll required in the case of a work under- 
 taken as a Local Improvement under The Local Im- 
 provement Act. 
 
 Therefore the Municipal Council of the Corpora- 
 tion of the of enacts as follows: 
 
 1. In this by-law " the Act " shall mean The 
 Local Improvement Act. 
 
 2. The interpretation section of the Act shall 
 apply to this by-law. 
 
 3. A duly qualified engineer, or some officer of 
 this Corporation or some other person, competent 
 to perform the duties of an Engineer under the Act, 
 hereinafter called the " Engineer," shall be ap- 
 pointed to perform all services which under the Act 
 
CHAPTER 193. 
 
 1081 
 
 may be performed by an Engineer, and he shall make 
 all reports, statements and estimates and the special 
 assessment roll required in the case of a work under- 
 taken. 
 
 4. The Clerk shall give to the Engineer such ^in- 
 formation and assistance as may reasonably be 
 required of him. 
 
 5. Upon the Council acquiring power to under- 
 take a work, the Engineer shall forthwith make the 
 report, statements and estimates respecting such 
 work required by the Act, and deliver the same to 
 the Clerk, who shall submit them to the Council at 
 the next meeting thereof. 
 
 6. Upon the completion of the work the Engineer 
 shall make a special assessment roll for the cost of 
 the work, and deliver the same to the Clerk. He shall 
 also make a statement showing under appropriate 
 heads the actual cost of the work. The Clerk, 
 Treasurer and Assessment Commissioner shall assist 
 the Engineer in making such statement and when 
 it is completed the Treasurer, or in his absence the 
 Clerk, shall verify the same by his certificate, and 
 the Statement shall be delivered to the Chairman 
 of the Court of Eevision. 
 
 7. Upon receiving the Special Assessment Roll, 
 the Clerk shall notify the Chairman of the Court of 
 Revision, who shall, without delay, call sittings of 
 the Court for the hearing of complaints against the 
 proposed special assessment, and shall notify the 
 Clerk of the time and place at which sittings will 
 be held. 
 
 8. The Clerk shall prepare and serve or cause to 
 be served and published all notices required by the 
 Act to be served or published, and shall prepare the 
 affidavits and other evidence of the service and pub- 
 lication thereof, and keep the same on file in his 
 office, and he shall also prepare all such certificates, 
 papers and documents as may be required and shall 
 see that all the requirements of the Act respecting 
 the proceedings for or in connection with the con- 
 struction of the work are complied with. 
 
 Passed this day of 19 . 
 
 Mayor {or Reeve). 
 
 Clerk, 
 
 Seal of 
 Corporation 
 
1082 CHAPTER 193. 
 
 FORM 9. 
 
 BY-LAW No. . (See Sec. 23). 
 
 By-law to provide for the payment by the Cor- 
 poration of part of the cost of certain works con- 
 structed as local improvements otherwise charge- 
 able upon the lands abutting directly upon the works. 
 
 Whebbas it is expedient that part of the cost of 
 every work of any of the classes or descriptions 
 hereinafter mentioned, constructed as a local im- 
 provement which otherwise would be chargeable 
 upon lands abutting directly on the work shall be 
 paid by the Corporation. 
 
 And whereas there is not in force in this muni- 
 cipality any by-law passed with the assent of the 
 Municipal electors providing that all works of any 
 of the classes or descriptions hereinafter mentioned 
 shall be undertaken as local improvements and not 
 otherwise. 
 
 Therefore the Municipal Council of the Corpora- 
 tion of the of enacts as follows : — 
 
 1. The interpretation section of -The Local Im- 
 provement Act shall apply to this by-law. 
 
 2. The Corporation shall pay per cent, 
 of that part of the cost of every granolithic, stone, 
 cement, asphalt or brick sidewalk; if pavements and 
 curbings are to be provided for add " and of every 
 pavement and curbing constructed as a local improve- 
 ment which otherwise would be chargeable upon the 
 lands abutting directly on the work." 
 
 3. This by-law shall apply to such works only as 
 are undertaken after the passing hereof. 
 
 Passed by a vote of three-fourths of all the mem- 
 bers of the Council this day of 
 19 . 
 
 Mayor (or Reeve) . f seal of 
 
 Clerk. 1 Corporation 
 
 FORM 10. 
 
 CONSTRUCTION BY-LAW No. 
 
 By-law to authorize the construction of 
 on Street from to 
 
 as a Local Improvement under the provisions of 
 The Local Improvement Act. 
 
 [7/ on Petition insert this recital.] 
 
CHAPTER 193. 2083 
 
 Whereas and others have petitioned 
 
 the Council to construct, as a local improvement, 
 the work hereinafter described, and the Clerk has 
 certified that the petition is sufficient and it is ex- 
 pedient to grant the prayer of the petition in man- 
 ner hereinafter provided. 
 
 [Or if on the Initiative insert this recital.] 
 
 Wheeeas notice of the intention of the Council to 
 undertake the construction as a local improvement 
 of the work hereinafter described, has been duly 
 given by publication of the notice and by service of 
 it upon the owners of the lots liable to be specially 
 assessed, and the publication and service of such 
 notice has been proved by a statutory declaration 
 filed with the Clerk, and no petition against the work 
 signed by a majority of the owners, representing at 
 least one-half the value of the lots which are liable 
 to be specially assessed, has been presented. 
 
 [Or if on two-thirds vote of Council insert this 
 recital.] 
 
 Wheeeas it is expedient that the construction of 
 the work hereinafter described shall be undertaken 
 as a local improvement and notice of the intention 
 of the Council to undertake such work has been duly 
 published. 
 
 [Or where private drain connections are to be 
 constructed as a separate work, insert this recital.] 
 
 Wheeeas a sewer has been constructed upon 
 Street from to and it 
 
 is expedient to construct as a local improvement 
 private drain connections from the sewer to the 
 street line on the side of the street (if 
 
 connections are to be constructed on both sides insert 
 " or both sides of the street ") connecting the sewer 
 with the lots abutting thereon specified in Schedule 
 1, and notice of the intention of the Council to under- 
 take the construction of such private drain con- 
 nections has been duly given. 
 
 [Or if work is to be constructed on sanitary 
 grounds, insert this recital.] 
 
 Wheeeas the Provincial Board of Health (or) 
 the Local Board of Health of this Municipality (as 
 the case may be) has recommended the construction 
 (or the enlargement or the extension) of a (the) 
 sewer on Street from to 
 
 and it is therefore necessary and desirable in the 
 
1084 CHAPTER 193. 
 
 public interest on sanitary grounds to construct (or 
 enlarge or extend) siich sewer according to such 
 recommendation as a local improvement. 
 
 Therefore the Municipal Council of the Corpora- 
 tion of the of enacts as follows: 
 
 1. That a be constructed on 
 
 Street from to as a local im- 
 
 provement under the provisions of The Local Im- 
 provement Act. 
 
 Or 1. That a pavement feet 
 
 wide, be constructed on Street, from 
 
 to as a local improvement under 
 
 the provisions of The Local Improvement Act. (See 
 
 sec. 4). 
 
 Note. — (If the Council determines to construct as 
 part of the work a water main, a gas main, private 
 drain connections, and alterations or renewals of 
 water service pipes and stop cocks and of gas con- 
 nections, or any or either of such works, set out the 
 additional work to be undertaken, and set out in a 
 schedule the lots to be specially assessed for such 
 additional work.) 
 
 Or 1. That private drain connections be con- 
 structed as a local improvement, under the provi- 
 sions of The Local Improvement Act applicable 
 to such a work, from the sewer on 
 Street, from to to the 
 
 street line on both sides (or if on one side only 
 insert " on the side "), of the street, con- 
 
 necting the sewer with the lots abutting on that part 
 of the street specified in Schedule 1. 
 
 Or 1. That a sewer (describe hind of sewer and 
 its dimensions) be constructed as a local improve- 
 ment, under the provisions of The Local Improve- 
 ment Act, on Street, from 
 to (if the Council so determines add) : 
 ^ with private connections to the line of the street 
 connecting such sewer with the lots specified in 
 Schedule 1. 
 
 Or 1. — (1) That if is determined and declared, 
 this by-law being passed by a vote of two-thirds of 
 all the members of the Council, that it is desirable 
 that the construction of a on 
 
 Street, from to should be under- 
 
 taken as a local improvement under the provisions 
 of The Local Improvement Act. 
 
CHAPTER 193. 
 
 1085 
 
 (2) That as above determined and declared a 
 be constructed on Street, from 
 
 to as a local improvement under 
 
 the provisions of The Local Improvement Act. 
 
 2. The Engineer of the Corporation (or 
 
 insert name of person appointed as Engineer of the 
 work), do forthwith make such plans, profiles and 
 specifications and furnish such information as may 
 be necessary for the making of a contract for the" 
 execution of the work. 
 
 3. The work shall be carried on and executed 
 under the superintendence and according to the 
 directions and orders of such Engineer. 
 
 4. The Mayor (or Eeeve) and Clerk are author- 
 ized to cause a contract for the construction of the 
 work to be made and entered into with some person 
 or persons, firm or Corporation, subject to the ap- 
 proval of this Council to be declared by resolution. 
 
 5. The Treasurer may (subject to the approval of 
 the Council), agree with any bank or person for 
 temporary advances of money to meet the cost of 
 the work pending the completion of it. 
 
 6. The special assessment shall be paid by 
 annual instalments (this period must be within 
 
 the lifetime of the work). 
 
 7. The debentures to be issued for the loan to 
 be effected to pay for the cost of the work when 
 completed shall bear interest at per cent, per 
 annum and be made payable within years 
 on the instalment plan (or if on the sinking fund 
 plan insert " on the sinking fund plan '.'), and in 
 settling the sum to be raised annually to pay the 
 debt the rate of interest on investments shall not be 
 estimated at more than four per cent, per annum. 
 
 8. Any person whose lot is specially assessed may 
 commute for a payment in cash the special rates im- 
 posed thereon, by paying the portion of the cost of 
 construction assessed upon such lot, without the in- 
 terest, forthwith after the Special Assessment Roll 
 has been certified by the Clerk, and at any time 
 thereafter by the payment of such sum as when in- 
 vested at four per cent, per annum will provide an 
 annuity sufficient to pay the special rates for the un- 
 expired portion of the term as they fall due. 
 
 Passed this day of , 19 
 
 Clerk 
 Mayor (or Reeve). 
 
 Seal of 
 Corporation 
 
1086 
 
 CHAPTER 193. 
 
 FORM 11. 
 
 SPECIAL ASSESSMENT. BOLL. 
 
 For the cost of a (description of work) on the 
 side of Street, from 
 
 to constructed as a local improvement. 
 
 Name of Owner. 
 
 CO 
 
 I! 
 
 e.o.5 
 
 1*8 
 
 D 
 
 i" <= 
 3 
 
 I! 
 
 So 
 
 o 
 
 ** 
 
 st 
 
 i* 3 
 
 i°- 
 *l"g 
 
 £« o.2 
 
 » S • g 
 
 go«8 
 
 oJj: g 
 _, e.2 a> 
 
 1**1 
 
 = ■§- 
 
 § = £ 
 
 gas 
 
 Lots abutting on works. 
 
 
 
 
 
 
 
 
 
 
 
 - . 
 
 
 
 Exempt Lots, the Assessment upon which is payable by 
 
 Corporation. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Lots not abutting upon the work. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I, Clerk of the of 
 
 do hereby certify that the foregoing Special Assess- 
 ment Roll is correct. 
 
 Dated day of 19 . 
 
 Clerk. 
 
 (Note.— For convenience the following may be 
 added after the signature of the clerk.) 
 
 "WOBK UNDERTAKEN: — 
 
 Construction of a (describe work) on the 
 side of Street, from to 
 
 Total cost of the work $ 
 
 The Corporation's portion of the cost is.$ 
 
CHAPTER 193. 1Q07 
 
 The Owners' portion of the cost of the 
 work is $ 
 
 The part of the Owners' portion of the 
 cost specially assessed upon the 
 lots abutting directly on the work 
 is : $ 
 
 The part of the Owners' portion of the 
 cost specially assessed upon land 
 not abutting directly on the work is.$ 
 The special assessment is to be paid in 
 
 instalments. 
 
 The debentures are to bear interest at 
 
 per cent, per annum. 
 
 FORM 12. 
 DEBENTURE BY-LAW. SINKING FUND PLAN. 
 
 By-law No. 
 
 By-law to provide for borrowing $ upon 
 
 debentures to pay for the construction of a 
 on Street, from to 
 
 And whereas the total cost of the work is $ 
 
 passed on the day of 19 , a 
 
 has been constructed on Street, 
 
 from to as a local improvement 
 
 under the provisions of The Local Improvement 
 
 Act. 
 
 And whereas the total cost of the work is $ 
 of which $ is the Corporation's portion of the 
 
 cost, and $ is the owners' portion of the cost; 
 
 for which a Special Assessment Boll has been duly 
 made and certified. 
 
 And whereas the estimated lifetime of the work 
 is years. 
 
 And whereas it is necessary to borrow the said 
 sum of $ on the credit of the Corporation and 
 
 to issue debentures therefor payable within 
 years from the time of the issue thereof, and bearing 
 interest at the rate of per cent, per annum, 
 
 which is the amount of the debt intended to be 
 created by this by-law. 
 
 And whereas it will be necessary to raise 
 annually $ for the payment of the debt, and 
 
 $ for the payment of the interest thereon, 
 
 making in all $ to be raised annually for the 
 
 payment of the debt and interest, of which $ 
 is required to pay the Corporation's portion of the 
 
1088 CHAPTER 193. 
 
 cost and the interest thereon, and $ is re- 
 
 quired to pay the owners' portion of the cost and 
 the interest thereon. 
 
 And whereas the amount of the whole rateable 
 property of the municipality according to the last 
 revised assessment roll is $ . 
 
 And whereas the amount of the existing deben- 
 ture debt of the Corporation (exclusive of local im- 
 provement debts, secured by special rates or assess- 
 ments) is $ and no part of the principal or 
 interest is in arrear. 
 
 Therefore the Municipal Council of the Corpora- 
 tion of the of enacts as follows : — 
 
 1. That for the purpose aforesaid there shall be 
 borrowed on the credit of the Corporation at large: 
 the sum of dollars ($ ) and deben- 
 tures shall be issued therefor in sums of not less than 
 $100 each, which shall have coupons attached thereto 
 for the payment of the interest. 
 
 2. The debentures shall all bear the same date 
 and shall be issued within two years after the day 
 on which this By-law is passed and may bear any 
 date within such two years and shall be payable 
 within years after the time when the same 
 are issued. 
 
 3. The debentures shall bear interest at the rate 
 of per cent, per annum payable yearly, 
 and as to both principal and interest may be ex- 
 pressed in Canadian Currency or Sterling money of 
 Great Britain at the rate of one pound sterling for 
 each four dollars and eighty-six and two-third cents, 
 and may be payable at any place or places in Canada 
 or Great Britain. 
 
 4. The (Mayor or Beeve) of the Coporation shall 
 sign and issue the debentures and interest coupons, 
 and the same shall also be signed by the Treasurer 
 of the Corporation, and the debentures shall be 
 sealed with the seal of the Corporation. 
 
 m 'In the case of a city it is unnecessary that the 
 coupons be signed by the Mayor. 
 
 5. During years, the currency of the 
 debentures, $ shall be raised annually to 
 form a sinking fund for the payment of the. debt, 
 and $ shall be raised annually for the pay- 
 ment of the interest thereon, making in all $ 
 
 to be raised annually for the payment of the debt 
 and interest, as follows: — , 
 
CHAPTER 193. -. qqq 
 
 The sum of $ shall be raised annually for the 
 
 payment of the Corporation's portion of the cost 
 and the interest thereon, and shall be levied and 
 raised annually by a special rate sufficient therefor 
 over and above all other rates on all the rateable 
 property m the municipality at the same time and 
 in the same manner as other rates. 
 
 m If the rate per foot frontage is the same on 
 all the lots, insert the following clause : — 
 
 For the payment of the owners' portion of the 
 cost and the interest thereon, the special assessment 
 set forth in the said special Assessment Roll is 
 hereby imposed upon the lands liable therefor as 
 therein set forth; which said special assessment 
 with a sum sufficient to cover interest thereon at 
 the rate aforesaid shall be payable in equal 
 
 annual instalments of $ each, and for that 
 
 purpose an equal annual special rate of 
 cents per foot frontage is hereby imposed upon each 
 lot entered in the said special Assessment Eoll, ac- 
 cording to the assessed frontage thereof, over and 
 above all other rates and taxes, which said special 
 rate shall be collected annually by the collector of 
 taxes for the Corporation at the same time and in 
 the same manner as other rates. 
 
 6. All money arising from the said special rates 
 or from the commutation thereof not immediately re- 
 quired for the payment of interest shall be invested 
 as required by law. 
 
 7. The debentures may contain any clause pro- 
 viding for the registration thereof authorized by any 
 statute relating to Municipal debentures in force at 
 the time of the issue thereof. 
 
 8. The amount of the loan authorized by this 
 by-law may be consolidated with the amount of any 
 loans authorized by other local improvement by- 
 laws, by including the same with f such other loans in 
 a consolidating by-law authorizing the borrowing of, 
 the<aggregate thereof as one loan and the issue of de- 
 bentures for such loan in one consecutive issue pur- 
 suant to the provisions of the statute in that behalf. 
 
 9. This by-law shall take effect on the day of 
 the final passing thereof. 
 
 Passed this day of , 19 . 
 
 Mayor (or Reeve). f g ea i f 
 
 Clerk. 1 Corporation 
 i s.a.— 69 
 
1090 CHAPTER 193. 
 
 FORM 13. 
 DEBENTURE BY-LAW. INSTALMENT PLAN. 
 
 By-law No. 
 
 By-law to provide for borrowing $ upon 
 
 debentures to pay for the construction of a 
 on the side of Street 
 
 from to 
 
 Whebeas, pursuant to construction By-law No. 
 passed on the day of , 19 , 
 
 a has been constructed on Street, 
 
 from to as a local improvement 
 
 under the provisions of The Local Improvement 
 Act. 
 
 And whebeas the total cost of the work is $ , 
 of which $ is The Corporation's portion of 
 
 the cost, and $ is the owners' portion of the 
 
 cost, for which a Special Assessment Roll has been 
 duly made and certified. 
 
 And whebeas the estimated lifetime of the work 
 is years. 
 
 And whebeas it is necessary to borrow the said 
 sum of $ on the credit of the Corporation 
 
 and to issue debentures therefor bearing interest 
 at the rate of per cent, per annum, which 
 
 is the amount of the debt intended to be created by 
 this by-law. 
 
 And whebeas it is expedient to make the prin- 
 cipal of the said debt repayable in yearly sums 
 during the period of years, of such amounts 
 
 respectively that the aggregate amount payable for 
 principal and interest in any year shall be equal as 
 nearly as may be to the amount so payable for prin- 
 cipal and interest in each of the other years. 
 
 And whebeas it will be necessary to raise an- 
 nually the sum of $ during the period of 
 years to pay the said yearly sums of principal and 
 interest as they become due, of which $ is 
 required to pay the Corporation's portion of the 
 cost and the interest thereon, and $ is re- 
 quired to pay the owners' portion of the cost and 
 the interest thereon. 
 
 And whebeas the amount of the whole rateable 
 property of the Municipality, according to the last 
 revised assessment roll, is $ 
 
 And whebeas the amount of the existing deben- 
 ture debt of the Corporation (exclusive of local 
 
CHAPTER 193. 
 
 1091 
 
 improvement debts, secured by special rates or 
 assessments) is $ and no part of the principal 
 
 or interest is in arrear. 
 
 Theeefobe, the Municipal Council of the Cor- 
 poration of the of enacts as 
 follows : — 
 
 1. That for the purpose aforesaid there shall be 
 borrowed on the credit of the Corporation at large 
 the sum of dollars ($ ), and de- 
 bentures shall be issued therefor in sums of not less 
 than $100 each, bearing interest at the rate of 
 
 per cent, per annum, and having coupons attached 
 thereto for the payment of the interest. 
 
 2. The debentures shall all bear the same date 
 and shall be issued within two years after the day 
 on which this By-law is passed, and may bear any 
 date within such two years, and shall be payable in 
 
 annual instalments during the years 
 
 next after the time when the same are issued, and 
 the respective amounts of principal and interest pay- 
 able in each of such years shall be as follows : — 
 
 No. 
 
 Principal 
 
 Interest 
 
 Total 
 
 1 
 
 2 
 3 
 
 $ 
 
 $ 
 
 $ 
 
 3. The debentures as to both prinicpal and inter- 
 est may be expressed in Canadian currency or Ster- 
 ling money of Great Britain, at the rate of one 
 pound sterling for each four dollars and eighty-six 
 and two-thirds cents, and may be payable, at any 
 place or places in Canada or Great Britain. 
 
 4. The (Mayor or Beeve) of the Corporation shall 
 sign and issue the debentures and interest coupons, 
 and the same shall also be signed by the Treasurer 
 of the Corporation, and the debentures shall be 
 sealed with the seal of the Corporation. 
 
 t&In the case of a city it is unnecessary that the 
 coupons be signed by the Mayor. 
 
 5. During years, the currency of the 
 debentures, the sum of $ shall be raised 
 
1092 CHAPTER 193. 
 
 annually for the payment of the debt and interest, 
 as follows: — 
 
 The sum of $ shall be raised annually 
 
 for the payment of the Corporation's portion of the 
 cost and the interest thereon, and shall be levied and 
 raised annually by a special rate sufficient therefor, 
 over and above all other rates, on all the rateable 
 property in the municipality, at the same time and in 
 the same manner as other rates. 
 
 m If the rate per foot frontage is the same on all 
 the lots, insert the following clause: 
 
 For the payment of the owners' portion of the 
 cost and the interest thereon, the special assessment 
 set forth in the said special Assessment Roll is 
 hereby imposed upon the lands liable therefor as 
 therein set forth; which said special assessment, 
 with a sum sufficient to cover interest thereon at the 
 rate aforesaid shall be payable in equal 
 
 annual instalments of $ each, and for that 
 
 purpose an equal annual special rate of cents 
 
 per foot frontage is hereby imposed upon each lot' 
 entered in the said special Assessment Roll, accord- 
 ing to the assessed frontage thereof, over and above 
 all other rates and taxes, which said special rate 
 shall be collected annually by the collector of taxes 
 for the Corporation, at the same time and in the 
 same manner as other rates. 
 
 t3 'If the rate per foot frontage is not the same 
 on all the lots, insert the following clause instead of 
 the next preceding one: — 
 
 For the payment of the owners' portion of the 
 cost and the interest thereon, the special assessment 
 set forth in the said Special Assessment Roll is 
 hereby imposed upon the lands liable therefor as 
 therein set forth ; which said special assessment, with 
 a sum sufficient to cover interest. thereon at the rate 
 aforesaid, shall be payable in equal annual 
 
 instalments of $ each, and for that purpose 
 
 the special annual rates per foot frontage set forth 
 in Schedule 1 hereto attached, are hereby imposed 
 upon the lots entered in the said special Assessment 
 Roll, according to the assessed frontage thereof, 
 over and above all other rates and taxes, and the 
 said special rates shall be collected annually by the 
 collector of taxes for the Corporation at the same 
 time and in the same manner as other rates. 
 
CHAPTER 193. 
 
 1093 
 
 6. The debentures may contain any clause pro- 
 viding for the registration thereof, authorized by 
 any statute relating to Municipal debentures in 
 force at the time of the issue thereof. 
 
 7. The amount of the loan authorized by this 
 by-law may be consolidated with the amount of any 
 loans authorized by other local improvement by- 
 laws, by mduding the same with such other loans 
 in a consolidating by-law authorizing the borrowing 
 of the aggregate thereof as one loan, and the issue 
 of debentures for such loan in one consecutive issue, 
 pursuant to the provisions of the statute in that 
 behalf. 
 
 8. This by-law shall take effect on the day of the 
 final passing thereof . 
 
 Passed this day of , 19 . 
 
 Mayor {or Reeve). f Seal of ) 
 
 Clerh. \ Corporation J 
 
 FORM 14. 
 
 SCHEDULE I. 
 
 Attached to Debenture By-law No. 
 This form is to be used in connection with both forms of 
 debenture by-laws if the rate per foot frontage 
 is not the samevon all the lots. 
 
 Name of Owner. 
 
 
 
 
 43 
 
 
 
 
 43 
 
 « 
 
 <a 
 
 u 
 
 
 <» 
 
 
 to b 
 nuall 
 debt 
 ereat 
 
 Street 
 
 
 Lot 
 
 assessed. 
 
 « 05 
 
 o £ S o • 
 
 
 
 
 
 §3 
 
 |a'?ss 
 
 2 S o c 
 
 
 53 
 
 
 .SB 
 
 S 
 
 < 
 
 Lots abutting on work. 
 
 •Exempt Lots, the Assessment upon -which is payable by the 
 
 Corporation. 
 
 Lots not abutting upon the work. 
 
1094 CHAPTER 193. 
 
 FOEM 15. 
 
 CONSOLIDATING BY-LAW— SINKING FUND 
 
 PLAN. 
 
 By-law No. 
 
 By-law to consolidate the sums authorized to be 
 borrowed by certain local improvement by-laws into 
 one sum of $ , and to borrow the same by the 
 
 issue of debentures therefor. 
 
 Wheeeas the Municipal Council of the Corpora- 
 tion of the of has passed the 
 by-laws hereinafter mentioned providing for bor- 
 rowing money by the issue of debentures to pay for 
 the construction of certain works, as local improve- 
 ments, therein referred to, namely: — 
 
 No. of 
 By-law. 
 
 When 
 Passed. 
 
 Nature 
 of Work. 
 
 Situation 
 of Work. 
 
 Amount 
 of Loan. 
 
 
 
 
 
 
 And wheeeas the aggregate of the sums author- 
 ized by the said by-laws to be borrowed is the sum 
 Of . dollars ($ ), and it is desir- 
 
 able to consolidate the said sum into one sum of 
 $ , and to issue debentures therefor in one 
 
 consecutive issue, which is the amount of the debt 
 intended to be created by this by-law. 
 
 And wheeeas all of the said bylaws provide that 
 the debentures to be issued thereunder shall be pay- 
 able within years after the time when the 
 same are issued and shall bear interest at the rate of 
 per cent.' per annum, payable yeaiJy- 
 
 And wheeeas the amount of the whole rateable 
 property of the Municipality according to the last 
 revised assessment roll is $ 
 
 And wheeeas the amount of the existing deben- 
 ture debt of the municipality, exclusive of local im- 
 provement debts secured by special rates or assess- 
 ments, is $ , and no part of the principal or in- 
 terest is in arrear. 
 
 Theeepoee the Municipal Council of the Corpora- 
 tion of the of enacts as follows: — 
 
CHAPTER 193. IO95 
 
 1. The sums authorized by the said by-laws to 
 be borrowed are hereby consolidated into one sum 
 of $ 
 
 2. For the purpose aforesaid there shall be bor- 
 rowed on the eredit of the Corporation at large the 
 sum of dollars ($ ), and debentures 
 shall be issued therefor in one consecutive issue in 
 sums of not less than $100 each, which shall have 
 coupons attached thereto for the payment of the 
 interest. 
 
 3. The debentures shall all bear the same date 
 and shall be issued within two years after the day 
 on which the earliest of the said by-laws was passed, 
 and may bear any date within such two years and 
 shall be payable within years after the time 
 when the same are issued. 
 
 4. The debentures shall bear interest at the rate 
 of per cent, per annum, payable 
 
 yearly, and as to both principal and interest may be 
 expressed in Canadian Currency or Sterling money 
 of Great Britain at the rate of one pound Sterling 
 for «ach four dollars and eighty-six and two-thirds 
 ^ents, and may be payable at any place or places in 
 Canada or Great Britain. 
 
 5. The Mayor (or Eeeve) of the Corporation 
 shall sign and issue the debentures and interest 
 coupons and the same shall also be signed by the 
 Treasurer of the Corporatipn, and the debentures 
 shall be sealed with the seal of the Corporation. 
 
 m In the case of a city it is unnecessary that the 
 coupons be signed by the Mayor. 
 
 6. The money to be borrowed as aforesaid shall 
 be apportioned, crediting each work with the amount 
 of the loan provided for by the by-law relating 
 thereto as above set forth. 
 
 7. This by-law shall come into force and take 
 effect on the day of the final passing thereof. 
 
 Passed this day of , 19 . 
 
 Mayor (or Eeeve). I g^ f 
 
 Clerk. 1 Corporation. 
 
1096 
 
 CHAPTER 193. 
 
 FORM 16. 
 
 CONSOLIDATING BY-LAW— INSTALMENT PLAN. 
 By-law No. 
 
 By-law to consolidate the sums authorized to be 
 borrowed by certain local improvement by-laws into 
 one sum of $ , and to borrow the same by 
 
 the issue of debentures therefor. 
 
 Whbbbas the Municipal Council of the Corpora- 
 tion of the of has passed the 
 by-laws hereinafter mentioned providing for bor- 
 rowing money by the issue of debentures to pay for 
 the construction of certain works, as local improve- 
 ments, therein referred to, namely: — 
 
 No. of 
 By-law. 
 
 When 
 Passed. 
 
 Nature 
 of Work. 
 
 Situation 
 of Work. 
 
 Amount 
 of Loan. 
 
 And whereas the aggregate of the sums author- 
 ized by the said by-laws to be borrowed is the sum 
 of dollars ($ ), and it is desirable to 
 
 consolidate the said sums into one sum of $ 
 and to issue debentures therefor in one consecutive 
 issue, which is the amount of the debt intended to be 
 created by this by-law. 
 
 And whereas all of the said by-laws provide that 
 the debentures to be issued thereunder shall bear in- 
 terest at the rate of per cent, per annum, and 
 that the principal of the debt shall be repayable in 
 yearly sums during the period of years, of 
 such amounts respectively that the aggregate 
 amount payable for principal and interest in any 
 year shall be equal, as nearly as may be, to the 
 amount so payable in each of the other years. 
 
 And whereas the amount of the whole rateable 
 property of the Municipality according to the last 
 revised assessment roll is $ 
 
 And whereas the amount of the existing deben- 
 ture debt of the Municipality, exclusive of local im- 
 provement debts secured by special rates or assess- 
 ments, is $ , and no part of the principal or 
 interest is in arrear. 
 
CHAPTER 193. 
 
 1097 
 
 Theebfobe the Municipal Council of the Corpora- 
 tion of the of enacts as follows : — 
 
 1. The sums authorized by the said by-laws to be 
 borrowed are hereby consolidated into one sum of 
 $ 
 
 2. For the purpose aforesaid there shall be bor- 
 rowed on the credit of the Corporation at large the 
 sum of dollars ($ ), and debentures 
 shall be issued therefor in one consecutive issue in 
 sums of not less than $100 each, bearing interest 
 at the rate of per cent, per annum, and having 
 coupons attached thereto for the payment of the 
 interest. 
 
 3. The debentures shall bear the same date and 
 shall be issued within two years after the day on 
 which the earliest of the said by-laws was passed, 
 and may bear any date within such two years, and 
 shall be payable in annual instalments dur- 
 ing the years next after the time when the 
 same are issued, and the respective amounts of prin- 
 cipal and interest payable in each of such years 
 shall be as follows : — 
 
 No. 
 
 Principal 
 
 Interest 
 
 Total 
 
 1 
 2 
 3 
 
 
 
 
 4. The debentures as to both principal and inter- 
 est, may be expressed in Canadian currency or Ster- 
 ling money of Great Britain, at the rate of one pound 
 sterling for each four dollars and eighty-six and two- 
 thirds cents, and may be payable at any place or 
 places in Canada or Great Britain. 
 
 5. The Mayor {or Eeeve) of the Corporation 
 shall sign and issue the debentures and interest 
 coupons and the same shall also be signed by the 
 Treasurer of the Corporation, and the debentures 
 shall be sealed with the seal of the Corporation. 
 
 ^In the case of a city it is unnecessary that the 
 coupons be signed by the Mayor. 
 
 6. The money to be borrowed as aforesaid shall 
 be apportioned, crediting each work with the amount 
 
1098 CHAPTER 193. 
 
 of the loan provided for by the by-law i relating 
 thereto as above set forth. 
 
 7. This by-law shall come into force and take 
 effect on the day of the final passing thereof. 
 
 Passed this day of , 19 . 
 
 Mayor (or Reeve). f ^ of \ 
 
 Clerk. \ Corporation, j 
 
 FORM 17. 
 
 DEBENTURE— INSTALMENT PLAN. 
 
 (Without Coupons). 
 
 No. $ 
 
 Canada, Province of Ontario! of 
 
 Debenture* 
 
 The Corporation of the of 
 
 hereby promises to pay to the Bearer the sum of 
 Dollars and cents of lawful money 
 
 of Canada, at the office of the in the 
 
 on the day of , 19 . 
 
 This debenture) or any interest therein, shall not, 
 after a certificate of ownership has been endorsed 
 thereon by the Treasurer of this Municipal Corpora- 
 tion, be transferable, except by entry, by the Treas- 
 urer or his Deputy, in the Debenture Registry Book 
 of the said Corporation at the of 
 
 Dated at this day of , one 
 
 thousand nine hundred and 
 
 In testimony whereof and under the authority 
 of By-law No. of the Municipal Council of 
 
 the Corporation of the passed on the 
 
 day of , 19 , this debenture is sealed with 
 
 the Seal of the Corporation and signed by the 
 and Treasurer thereof. 
 
 Treasurer,. f g ea i of I 
 
 V Corporation, f 
 
 Mayor (or Reeve) 
 
 FORM 18. 
 
 DEBENTURE— INSTALMENT OR SINKING FUND 
 
 PLAN. 
 
 No. . $ 
 
 Canada, Province of Ontario, of 
 
 Debenture. 
 
 The Corporation of the of 
 
 hereby promises to pay to the Bearer the sum of 
 Dollars and cents of lawful money of 
 
CHAPTER 193. 10Q9 
 
 Canada, at the Office of the in the 
 
 on the day of , 19 , and to pay in- 
 
 terest thereon in the meantime at the rate of 
 per centum per annum, yearly on the 
 
 day of and of in each year to the 
 
 Bearer of the annexed Coupons upon presentation 
 thereof at the said Office, as they become due. 
 
 ■This Debenture, or any interest therein^ shall not, 
 after a certificate of ownership has been endorsed 
 thereon by the Treasurer of this Municipal Corpora- 
 tion, be transferable, except by entry, by the Treas- 
 urer or his Deputy, in the Debenture Registry Book 
 of the said Corporation at the of 
 
 Dated at this day of one 
 
 thousand nine hundred and 
 
 In testimony whereof and under the authority of 
 By-law No. of the Municipal Council of the 
 
 Corporation of the duly passed on the 
 
 day of , 19 , this debenture is 
 
 sealed with the Seal of the said Corporation and 
 signed by the and Treasurer thereof. 
 
 Treasurer. 
 Mayor (or Reeve) 
 
 Seal 
 Corporation 
 
 of I 
 tion. ( 
 
 Debenture No, 
 By-Law No. . Coupon No. 
 
 The Corporation of the will pay to the 
 
 Bearer at the Office of the Ontario, on the 
 
 day of , 19 , the sum of $ , 
 
 interest due on that day oh the above debenture. 
 
 $ 
 
 Mayor, 
 
 ., Treasurer^ 
 
 Form of affidavit on application to Board for ap- 
 proval of Local Improvement By-law, where works 
 undertaken on petition and without petition, see R. 
 S. 0. 1914, ch. 192, sec: 295, notes. 
 
1100 CHAPTERS 194, 195. 
 
 CHAPTEE 194. 
 
 The City and Suburbs Plans Act. 
 
 i . Does not apply to plans in existence on May 14, 1912 : 
 Toronto v. Hill, 24 0. W. E. 388, 4 0. W. N. 1076. 
 
 4. Construction of sees. 4, 6, and 7: Ee Can. Building 
 and Loan and Hamilton, 4 O. W. N. 1185, 24 0. W. E. 
 858. i [-f- 
 
 7. The Eailway and Municipal Board are not bound to 
 approve of the plans of a sub-division even though 
 the city corporation have not filed their objections 
 within 21 days: Ee Canadian, etc., Association v. 
 Hamilton, 4 0. W. N. 1185, 24 0. W. E. 858. 
 
 CHAPTEE 195. 
 
 The Assessment Act. 
 
 Eefer to: "Weir, The Law of Assessment (Can.); 
 Cooley, Taxation, Local Assessments and Tax 
 Titles; Black, Tax Titles; Taylor on Titles (Ont). 
 
 2. — (h) Consideration of this sub-section: Belleville 
 Bridge Co. v. Ameliasburg, 10 0. W. E. 988, 15 0. 
 L. E. 174. Assessment where land not liable: E. 
 H. Y. C. y. Jarvis, 2 0. W. N. 357, 17 0. W. E. 700. 
 Timber licenses are not real property and are not 
 assessable: Ee Shier Lumber Cos., 14 0. L. E. 210, 
 9 0. W. E. 605. The mains and pipes of the Toronto 
 G-as Company laid under the public streets were 
 held assessable under the Act of 1892, as appur- 
 tenant to the land owned by the company for the 
 purposes of ;its business: Consumers Gas v. 
 Toronto, 26 0. E. 727, 23 A. E. 551, 27 S. C. E. 
 453. As also were the rails, poles and wires of the 
 Toronto Eailway Company used in operating their 
 electric railway. Ee Toronto Eailway, 25 A. E. 135. 
 
CHAPTER 195. 1101 
 
 See also Ee Bell Telephone, 25 A. R. 351; Ee C. P. 
 E. Telegraph, 34 C. L. J. 789; Ee London St. By., 
 27 A. E. 83. Structures, ' ' storage battery : ' ' Ottawa 
 Electric v. Ottawa, 7 0. W. E. 481. 
 
 2.— (p) See Ee Voters' List of Carleton Place, 3 0. L. 
 E. 223. 
 
 5. Taxes; exemption: See Annotation, 11 D. L. E. 66. 
 
 5. — (1) The plaintiffs had a license to use, and were 
 using, a right of way through Queen Victoria 
 Niagara Falls Park. The company was held liable 
 to taxation for, the roadbed, as an occupant is 
 assessed in respect of property, but the property 
 itself being in the Crown was exempt: Niagara 
 Falls Park and Eiver Ey. Co. v. Niagara, 31 0. 
 E. 29; see also Eegina v. County of Wellington, 17 
 0. E. 615, 17 A. R. 421; Quirt v. The Queen, 19 
 S. C. E.-510; Quebec v. The Queen, 2 Ex. C. E. 450. 
 
 5; — (2) A disused cemetery is exempt from taxation: 
 E. C. Diocese of S. Ste. Marie v. S. Ste. Marie, 2 0. 
 W. N. 1178, 19 0. W. E. 364, 24 0. L. E. 35. 
 
 5._(3) See Haynes v. Copeland, 18 C. P. 150; Harris 
 v. Whitby, 34 C. L. J. 240. 
 
 5— (4) Letting rooms; educational building; liability 
 for taxes: Ee Notre Dame and Ottawa, 21 0. W. 
 E. 394, 3 0. W. N. 693. Benevolent association: 
 Ottawa T. M. C. A. v. Ottawa, 1 0. W.N. 603, 15 
 0. W. E. 666. Exemption of convent and school: 
 Ee Ottawa and Grey Nuns, 5 0. W. N. 380. Exemp- 
 tion of Y. M. C, A. building where bed rooms rented 
 to members and meals supplied: Ottawa T. M. C. 
 A. v. Ottawa, 5 0. W. N. 383, 387. 
 
 5.— (5) What is a public hospital: Strufhers v. Sud- 
 bury, 30 A. E. 116, 27 A. E. 217. 
 
 5.— (6) See Belleville Bridge Co. v. Ameliasburg, 10 
 0. W. E. 591, 988, 15 0. L. E. 174. 
 
 5._(7) City property when occupied by a tenant other 
 than a servant or officer of the corporation occupy- 
 
1102 CHAPTER 195. 
 
 ing the premises for the purposes thereof, is sub- 
 ject to taxation and such tax is a tenant's tax pay- 
 able by him and not in any event payable by the 
 landlord as between him and the tenant unless by 
 express agreement: 0. P.JB. v. Toronto, 4 0. L. E. 
 134. Property acquired by a town under special 
 Act as a power house and site situate 19 miles away 
 in a neighbouring township municipality is exempt 
 from taxation : Be Orillia and Matchedash, 7 0. L. 
 E. 389. 
 
 5. — (15) Taxation of income of Dominion Government 
 Officials : Abbott v. Saint John, 40 S. C. E. 597. 
 The exemption of this sub-section did not extend 
 to income allowed" under the Dominion Superannua- 
 tion Act : Bucke v. London, 10 0. L. E. 628. Note 
 that the word " Imperial " has been omitted in the 
 present wording. 
 
 5. — (17) " Fixed machinery;" gas and oil appliances: 
 see Canadian Oil Fields v. Oil Springs, 8 0. W. E. 
 480. As to valuation and assessment of rails, poles, 
 wires and plant of electric companies: see sec. 
 44 notes. 
 
 5. — (18) "When a city granted a company exemption 
 from taxation and all other municipal rates on the 
 income of the company, the income of a person from 
 dividends upon shares of the capital stock of the 
 company was not exempt from municipal taxation 
 by the city: Goodwin v. Ottawa, 12 0. L. E. 236. 
 The Assessment Act does not confer upon the share- 
 holders of a company, which is not liable to income 
 assessment, but is liable to business assessment, an 
 exemption from assessment upon their dividends 
 from stock in the company (except as under sec. 10 
 (8) ) : Goodwin v. Ottawa, 12 O. L. E. 236, 
 
 10. — (1) For a business to be assessable, the land used 
 or occupied for the purpose of the business must Fe 
 land subject to taxation: Ee Shier Lumber Co., 14 
 0. L. E. 210, 9 0. W. E. 605. 
 
 10. — (lc) Liability of an express company for business 
 assessment— wharf and premises of steamboat com- 
 pany: Dominion Express v. Niagara, 10 0. W. E. 
 513, 15 0. L. E. 78; Dominion Express Co. v. 
 Alliston, 14 0. W. E. 196. 
 
CHAPTER 195. 
 
 1103 
 
 10. — (le) It is a question, of fact to be determined on 
 the evidence whether a person is carrying on the 
 business of a retail merchant dealing in more than 
 five branches of retail trade : Ee Knox Assessment, 
 12 0. W. E. 499, 17 0. L. E. 175, 13 0. W. E. 823, 18 
 0. L. E. 645. 
 
 Jfl.-— (li) Effect of local option by-law on assessment 
 of hotel properties and business assessment: Ed 
 Eattenbury and Clinton, 4 0. W. N. 1607, 24 0. W. 
 E. 910. Business assessment; offices of mining and 
 industrial companies: Ee Coniagas Mines, 13 0. 
 W. E. 55; and see sec. 40 (6) post. 
 
 10. — (Ik) Business assessment of electric railway: 
 Sandwich Ey. v. Windsor, 21 0. W. E. 44, 3 0. W. 
 N. 575. Assessment of rails, poles, wires and plant 
 of electric companies : see notes to sec. 44. 
 
 10— (2) Liability of a non-proprietary club for business 
 assessment: Bideau Club v. Ottawa, 8 0. W. E. 
 106, 10 0. W. E. 519, 12 0. L. E. 275, 15 0. L. E. 
 118. 
 
 10.— (6) Wharf and premises of steamboat company: 
 see Dominion Express v. Niagara, 15 0. L. E. 78. 
 
 10. — (8) The Act does not confer upon the shareholders 
 of a company which is not liable to income assess- 
 ment, but is liable to business assessment, an ex- 
 emption from assessment on their dividends from 
 their stock in the company except as set out in this 
 sub-section: Goodwin v. Ottawa, 12 0. L. E. 236. 
 Income on reserve fund provided by insurance com- 
 pany to meet unforeseen liabilities, not liable to 
 taxation: Economical Mutual v. Berlin, 20 0. W. 
 E. 349. 
 
 11. Income assessment ; dividends on shares in Ottawa 
 Electric Co.; agreements between company and city; 
 exemptions : Goodwin v. Ottawa, 7 0. W. E. 204, 8 O. 
 W. E. 77, 12 0. L. E. 236. The net interest and divi- 
 dends received by the Canada Life from investments 
 of their reserve fund form part of their taxable in- 
 come, although to the extent of 90 per cent, divisible 
 as profits among participating shareholders and not 
 
1104 CHAPTER 195. 
 
 subject to control or disposition by the company i 
 Re Canada Life, 25 A. E. 312; Confederation Life 
 v. Toronto, 24 0. E. 643, 22 A. E. 166. 
 
 1?. Place of business: Watt v. City of London, 19 A. 
 E. 675, 22 S. C. E. 300. 
 
 13. — (1) The income derived from property' vested in 
 trustees is regarded as their own income and is 
 subject to assessment though the trustees have no 
 personal interest in it. Its ultimate disposition is 
 immaterial. The obligation of the trustees to pay 
 it to the beneficiaries is not a debt to be offset 
 against it: Ee McMaster Estate, 2 O. L. E. 474; 
 see sec. 37 (12). 
 
 14. Method of assessing a telephone company: see Ee 
 Bell Telephone Co. and Hamilton, 25 A. E. 351. 
 Local telephone company's assessment: Ee North 
 Huron Telephone Co. and Turnberry, 17 0. W. E. 
 273, 2 0. W. N. 187. " All branch and party lines," 
 (sub-sec. (8)): Ee Turnberry and North Huron 
 Telephone Co., 4 0. W. N. 598. 
 
 20. Delivery of incorrect income statement : Atty. Gen. 
 v. Till, 1910 A. C. 50. 
 
 22. Effect of non-compliance with this sec: Sturgeon 
 Falls v. Imperial Land Co., 4 0. W. N. 178, 23 0. 
 W. E. 170. A purchaser who has gone into posses- 
 sion under an agreement to purchase and made part 
 payment, is an owner: Sawers v. Toronto, 2 0. L. 
 E. 717; and see post sec. 109 notes. Vague and 
 indefinite description of lands : Eussell v. Toronto, 
 9 0. W. E. 288, 11 O. W. E. 23, 15 0. L. E. 484; 
 Carter v. Hunter, 9 0. W. E. 58, 13 0. L. E. 310. 
 In describing lands for assessment " the north east 
 part," even with the acreage is an ambiguous des- 
 cription: Ee Jenkins and Enniskillen, 25 0. E. 
 399. Sufficient particulars : E. H. T. C* v. Jarvis, 
 2 0. W. N. 357, 17 0. W. E. 700. 
 
 22. — (Id) An assessment of lots as " water lots 436 x 
 660 " is invalid as not indentifying them. An 
 assessment of lots en Hoc after they have been sub- 
 divided by a registered plan and without shewing 
 
CHAPTER 196. 
 
 1105 
 
 the known owner against whom particular parcels 
 are assessable, is invalid : Wildman v. Tait, 32 0. 
 R. 274, 2 0. L. R. 307. Where an assessment was 
 too vague a subsequent tax sale was set aside : Carter 
 v. Hunter, 13 0. L. R. 310. Particulars of descrip- 
 tion of land to be sold for taxes: Sturgeon Falls 
 v. Imp. Land Co., 2 0. W. N. 1433, 19 0. W. R. 757, 
 1011; and see sees, 127, 141 post. 
 
 26. Manhood suffrage voters: Re Adolphustown Voters' 
 List, 12 0. W. R. 827, 17 0. L. R. 312. 
 
 37.— (4) See Blakey v. Smith, 1 0. W. N. 340, 15 0. W- 
 R. 62, 20 O.L. R. 279. 
 
 37. — (11) The rating of the husband provided by this 
 sub-'section is not a joint rating : R. ex rel. Milligan 
 v. Harrison, 16 0. L. R. 475. 
 
 37.— (12) See Re McMaster Estate, 2 0. L. R. 474, note 
 to sec. 13 (1). 
 
 38. See Niagara Falls Park & R. R. Co. v. Niagara, 
 31 0. R. 29; Chatham v. C. P. R., 37 C. L. J. 791; 
 O. T. R. v. Port Perry, 34 C. L. J. 239. 
 
 39. Property of the Crown; lease: Niagara Falls Park 
 : Ryi v. Niagara Falls, 31 0. R. 29; Ottawa Electric 
 
 v. Ottawa, 7 0. W. R. 481. The holder of a timber 
 license on Crown lands has no interest in the lands : 
 Re Shier Lumber Co., 14 0. L. R. 210, 9 O. W. R. 
 605; see notes to see 5 (1) ante, and sec. 46 post. 
 
 40.— (1) See Re Bell Telephone and the City of Hamil- 
 ton, 25 A. R. 351 ; and see also Kirkpatrick v. Corn- 
 wall, 2 0. L. R. 113. 
 
 40.— (3) Where farm lands were not benefited by 
 certain improvements: Re Giles and Wellington, 
 30 0. R. 610. 
 
 40. — (4) Mining lands were assessed as agricultural 
 lands under this section. The assessor also assessed 
 the buildings and mining plant as such, and, add- 
 ing the two latter together entered them on the roll 
 
 s.a. — 70 
 
1106 CHAPTER 195. 
 
 as the assessed value of the buildings. This was 
 held to be an attempt to evade the Act, and the 
 assessment of the plant was illegal. The illegality 
 being established, the Court had jurisdiction to deal 
 with the matter outside of the machinery provided 
 by the Act: Canadian Oil Fields v. Oil Springs, 8 
 0. W. E. 480, 13 0. L. E. 405. Canadian Oil Fields 
 v. Oil Springs, 13 0. L. E. 405, commented on and 
 interpretation placed by Boyd, C, preferred to that 
 of Divisional Court: Be Bruce Mines (Court of 
 Appeal), 20 O. L. E. 315, 1 0. W. N. 369, 15 
 0. W. E. 253. All buildings which add to 
 the value of the land for any purpose and not 
 merely buildings which add to its agricultural value 
 are to be assessed: Be Bruce Mines, 20 0. L. B. 
 315, 1 0. W. N. 369, 15 0. W. E. 253. 
 
 40. — (6) " Income derived from the mine:" Be Coni- 
 agas Mines and Cobalt, 10 0. W. E. 1007, 15 0. L. 
 E. 386. 
 
 41. Application of this section: Belleville Bridge Co. 
 v. Ameliasburg, 10 0. W. B. 591, 988, 15 0. L. E. 
 174; Niagara Falls Park, etc., Co. v. Niagara, 31 
 0. E. 29. 
 
 44. Electric cars, apparatus and plant of a tramway 
 company are not assessable as real estate : Toronto 
 Eailway v. Toronto, 1904, A. C. 809. The proper 
 mode of assessment in a city divided into wards 
 would be to value the concern as a whole and then 
 apportion rateably to the words so much of the 
 value as falls to that part of the concern territorially 
 situated in each locality: Be Con. Gas v. Toronto, 
 26 0. B. 722. Assessment of pipe line of company 
 for transmitting crude petroleum: Be Canadian 
 Oil Fields and Enniskillen, 7 0. L. B. 101. Assess- 
 ment of rails, ties, poles, wires, pipes, mains, con- 
 duits, sub- and superstructures on public streets 
 belonging to street railway, gas and electric light 
 companies : Toronto By. et ah v. Toronto et ah, 6 
 0. L. E. 187. Method of assessing electric light 
 company: see Be Toronto Electric Light, 3 0. L. 
 B. 620. Method of assessing street railway: see 
 Ee London Street By., 27 A. E. 83. 
 
CHAPTER 195. 
 
 1107 
 
 46. Liability of International railway bridge to assess- 
 ment as to part in Ontario : New York & 0. Ey. Co. 
 v. Cornwall, 5 0. W. N. 304. In assessing that part 
 of a bridge crossing the Niagara Eiver lying within 
 a township of Canada, regard could not be had to 
 its value in proportion to the value of the franchise 
 or of the whole bridge or to the cost of construction, 
 but only to the actual cash price obtainable for the 
 land and materials situate within the township : Ee 
 Queenston Heights Bridge, 1 0. L. E. 114. Assess- 
 ment of toll bridge over navigable water: Belle- 
 ville Bridge Co. v. Ameliasburg, 10 0. W. E. 571, 
 988, 15 0. L. E. 174; Ee International Bridge Co. 
 - v. Bridgeburg, 7 0. W. E. 497, 12 0. L. E. 314. 
 
 48. Assessment of railway property: Ee C. P. E. and 
 
 Steelton ? 22 0. W. E. 94, 3 0. W. N. 1199. 
 
 49. Section considered: Gast v. Moore, 27 0. L. E. 515. 
 
 56. Construction of the phrase " may be adopted by the 
 Council of the following year." Overwhelmingly 
 strong reasons might justify the Court in giving 
 ' ' may ' ' the force of ' ' must : " Ee Dwyer and Port 
 Arthur, 21 0. E. 175. 
 
 57. Appeal from assessment: Ee Fort Frances Assess- 
 ment, 4 0. W. N. 600, 27 0. L. E. 622. 
 
 62. Functions of Court of Eevision: N. Y. & 0. Ey. v. 
 Cornwall, 5 0. W. N. 304. While the direction of 
 the statute that the members of the Court of Eevi- 
 sion are to be sworn should not be ignored, it does 
 not follow that neglect or failure to take the oath 
 renders their acts void: Ee McCrae and Brussels, 
 8 0. L. E. 156. 
 
 66. Voters' list, where the provisions of this section 
 and sec. 69 (20) are not complied with: Ee Dale 
 and Blanchard, 1 0. W. N. 729, 1018, 2 0. W. N. 
 574, 16 0. W. E. 86, 349, 18 0. W. E. 360, 21 
 0. L. E. 497, 23 0. L. E. 69. Courts of Ee- 
 vision are not obliged to hear counsel in support 
 of an appeal against an assessment of property: Ee 
 Eoseback and Carlyle, 23 0. E. 37. 
 
1108 CHAPTER 195. 
 
 69.— (1) Functions of Court of Revision: N. T. & 0. 
 Ey. v. Cornwall, 5 0. W. N. 304. 
 
 69. — (10) As to necessity for personal notice: see Vivian 
 v. McKim, 23 O. B. 561. 
 
 69. — (20) Voters' list where provisions of this sub- 
 section and sec. 66 are not complied with : Be Dale 
 and Blanchard, 21 O. L. E. 497, 23 O. L. E. 69. 
 
 70. Finality of this roll where person rated as a free- 
 holder is not so in fact: Ee Dale and Blanchard, 
 21 O. L. E. 497, 23 0. L. E. 69. Finality of roll; 
 property qualification of reeve : E. ex rel. Ingolds- 
 by v. Spiers, 13 0. W. E. 611. Where the plaintiffs 
 were illegally assessed and paid the taxes under 
 protest, they were held entitled to maintain an action 
 to recover them: Watt v. London, 19 A. E. 675, 22 
 S. C. E. 300. Finality of the roll: Burf ord v. Bur- 
 ford, 18 0. E. 546. 
 
 72. Procedure on appeal; formerly could be taken only 
 by municipal corporation: Be British Mortgage 
 Loan Co., 29 0. E. 641 ; Ee Dundas Street Bridges, 
 8 0. L. E. 52. What constitutes good service of 
 notice of appeal; time for service: see Scott et al. 
 v. Listowel, 12 P. E. 77. 
 
 74. See Ee London Street Eailway, 27 A. E. 83. 
 
 79. When jurisdiction to assess attaches, the judgment 
 of the County Judge is conclusive: Canadian Oil 
 Fields v. Oil Springs, 8 0. W. E. 480, 13 0. L. E. 
 405. The decision of a County Judge on a question 
 of assessment is final when he is dealing with pro- 
 perty which is assessable at all: Confederation 
 Life v. Toronto, 22 A. E. 166. 
 
 80. — (1) Where rights of a class may be involved: Good- 
 win v. Ottawa, 12 0. L. E. 603. Assessment appeal : 
 Ee Coniagas and Cobalt, 15 0. L. E. 386. The 
 amount of assessment made by the assessor is the 
 determining factor to entitle to an appeal — not the 
 amount fixed by the Court of Eevision: Ee Coni- 
 agas Mines and Cobalt, 20 0. L. E. 323, 1 0. W. N. 
 371, 15 0. W. E. 258. 
 
CHAPTER 195. 
 
 1109 
 
 80.— (6) Section considered: Waterloo v. Berlin, 28 0. 
 L. E. 206. Appeals; functions of Supreme Court 
 and Ontario Railway and Municipal Board: N. Y. 
 & 0. Ry. v. Cornwall, 5 O. W. N. 304. Question 
 whether certain buildings were assessable is ques- 
 tion of law: Re Bruce Mines, 20 0. L. R. 315, 15 
 0. W. R. 253, 1 O. W. N. 369. An appeal from the 
 decisipn of the Board on an appeal thereto from a 
 Court of Revision lies only on a question of law: 
 Re S. H. Knox & Co. Assessment, 18 0. L. R. 645. 
 It is desirable in appeals under this section that if 
 the Railway and Municipal Board pass upon ques- 
 tions of law, they should so state in their reasons 
 for judgment : Re Niagara Falls and N. F. Suspen- 
 sion Bridge Co., 9 0. W. R. 865. Question of value 
 is question of fact and no appeal lies: Re Coni- 
 agas and Cobalt, 20 0. L. R. 322, 15 0. W. R. 258, 
 1 0. W. R. 371. Former jurisdiction of Court of 
 Revision and Courts exercising appellate jurisdic- 
 tion (before 6 Edw. VII., ch. 31, sec. 51) : see 
 Toronto R. W. Co. v. Toronto, 1905, A. C. 809; Re 
 International Bridge Co. v. Bridgeburg, 12 0. L. R. 
 314. 
 
 81. Uniformity of decision : Re Shier Lumber Co., 14 0. 
 L. R. 210, 9 0. W. R. 605. Rights of a class : see Good- 
 win v. Ottawa, 12 0. L. R. 603. Case stated; ques- 
 tion of general application; consideration leading 
 Court to answer or decline to answer questions: Re 
 Norfolk Voters' Lists, 15 0. L. R. 108, 10 0. W. R. 
 743; Re Ontario Medical Act, 13 0. L. R. 501, 8 0. 
 W. R. 766 ; Re Knox Assessment, 12 0. W. R. 499, 
 17 0. L. R. 175, 13 0. W. R. 823, 18 0. L. R. 645; 
 Re C. P. R. and Steelton, 3 0. W. N. 1199, 22 0. 
 W. R. 94; Re Fort Frances Assessment, 27 0. L. 
 R, 622. 
 
 83. Application : Murphy v. Sandwich, 17 0. W. R. 738, 
 2-0. W. N. 367. 
 
 87.— (8) The date fixed beyond which judgment shall not 
 be deferred is imperative: Re Nottawasaga and 
 Simcoe, 4 0. L. R. 1, reversing 3 0. L. R. 169 ; see 
 also 3 0. L. R. 171. 
 
 91. As to Burlington Beach: Wentworth v. Saltfleet, 2 
 0. W. N. 339, 17 0. W. R. 649. 
 
1110 CHAPTER 195. 
 
 92. See Ee Nottawasaga and Simcoe, 3 0. L. B. 171, 
 169, 4 0. L. E. 1. 
 
 94. Taxes a lien not requiring registration to preserve 
 priority and as between vendor and purchaser they 
 are an incumbrance: see Armour Titles, pp. 162-5. 
 Business tax not a lien: see ante sec. 10 (10). Effect 
 of the lien given by this section: Sturgeon Falls 
 and Imp. Land Co., 4 O. W. N. 178, 23 0. W. E. 170. 
 Statement of law before 1st January, 1895. This 
 section not retroactive: Jaspers on v. Bomney, 12 
 O. W. E. 575, 734. 
 
 95. Formerly, taxes were recoverable by action only 
 
 when not recoverable in any special manner pro- 
 vided by the Act. Effect where company in liqui- 
 dation : see Ee Ottawa Porcelain, &c, Co., 31 0. 
 E. 679. 
 
 97. Taxes payable by landlord, where no stipulation in 
 
 lease: Eule otherwise in England: Fitzgerald v. 
 Mandas, 21 0. L. E. 312. The landlord is the real 
 ratepayer: Dove v. Dove, 1868, 18 C. P. 424; Eoch- 
 ford v. Brown, 3 0. W. N. 343, 20 O. W. E. 591, 25 
 0. L. E. 206. Corporation tenant : see C. P. E. v. 
 Toronto, 4 0. L. E. 134. A tenant is not at liberty 
 to deduct from the rent and compel the landlord to 
 pay taxes for which the tenant and others were 
 jointly assessed for a year prior to his existing 
 tenancy: Meehan v. Pears, 30 0. E. 433. Landlord 
 and tenant; right of landlord and of collector to 
 distrain: Campbell v. Wallaceburg, 14 0. W. E. 
 473. 
 
 98. See Trenton v. Dyer, 24 S. C. E. 474, note to sec. 
 100. The delivery of the roll is imperative equally 
 in the case of municipal and provincial taxes. 76. 
 
 99. Where a township by-law provided for the raising 
 
 by issue and sale of debentures of a bonus to a rail- 
 way company, and for the levying of an annual rate 
 to pay the debentures, it was the duty of the town- 
 ship clerk without further authorization to insert in 
 the collector's rolls the amount with which each 
 ratepayer was chargeable: Bogart v. King, 32 0. 
 E. 135. Local improvement rates grouped with 
 
CHAPTER 195. 1111 
 
 other taxes and included in the collector's roll are 
 " taxes " in its broad sense and may be collected 
 or realized by uniform statutory process: Sawers 
 v. Toronto, 2 0. L. E. 717. 
 
 100. The provision as to delivery of the roll to the col- 
 lector is imperative and its non-delivery a sufficient 
 answer to a suit against the collector for failure 
 to collect the taxes: Trenton v. Dyer, 24 S. C. E. 
 474; see Lewis v. Brady, 17 0. E. 377. Certificate 
 not in conformity with the section : Tiny v. Archer, 
 12 0. W. E. 255. 
 
 101. See Carter v. Hunter, 9 0. W. E. 58, 13 0. L. E. 
 310. The entries referred to are imperative. Where 
 the amount of the taxes for the year was entered in 
 one sum in the roll transmitted to the treasurer, 
 a tax sale founded thereon was held invalid: Love 
 v. Webster, 26 0. E. 453. 
 
 103. See Sawers v. Toronto, 2 0. L. E. 717. As to what 
 may constitute a good appointment of collector : see 
 Lewis v. Brady, 17 0. E. 377. 
 
 104. Notice : Eussell v. Toronto : 9 0. W. E. 288, 11 0. 
 W. E. 23, 15 0. L. E. 484. It is essential to the 
 validity of a good demand or notice that it should 
 contain a schedule specifying the different rates, 
 etc. : McKinnon v. McTague, 1 0. L. E. 233 ; see 
 also McDermott v. Trachsel, 26 0. E. 218 ; see sec. 
 110 infra. 
 
 104.— (2) In line 1 after " towns " insert " townships:" 
 4 Geo. V. ch. 2, Schedule (33). 
 
 106. Section considered : Gast v. Moore, 27 0. L. E. 515. 
 The duties Of the collector are imperative : Donovan 
 v. Hogan, 15 A. E. 432. (See now sees. 110, 117, 
 infra). Donovan v. Hogan is now of doubtful 
 authority: Burrows v. Campbell, 23 0. W. E. 271, 
 24 0. W. E. 190; see post sec. 178, notes. 
 
 109. The plaintiff agreed with mortgagees in possession 
 to purchase lands of which they were to obtain a 
 final order of foreclosure and in the meantime he 
 should manage it as their agent. The plaintiff was 
 
1112 CHAPTER 195. 
 
 not assessed nor had the taxes been charged against 
 his name. Held he was not an " owner " within 
 sub-sec. 1 (3), and such taxes could not be levied 
 on his goods: Lloyd v/ Walker, 4 0. L. E. 112. 
 A purchaser in possession under an agreement for 
 sale unexecuted by the vendor, and which provides 
 for the payment of taxes by the purchaser, is an 
 " owner:" Sawers v. Toronto, 2 0. L. E. 717, 4 
 0. L. E. 624. Goods purchased from the mortgagee 
 of the owner or person assessed are not goods 
 whereof title is claimed by purchase from the owner 
 or person assessed, and cannot be levied on for 
 taxes in respect of premises owned by the mort- 
 gagor of the goods: Horsman v. Toronto, 31 0. 
 B. 301. There is nothing to warrant a collector 
 seizing for arrears of taxes, goods which being 
 under distraint by a landlord, are in custodia legis. 
 Where subsequent rent accrued during the joint 
 possession of the landlord and the collector, the 
 landlord was held to have priority also in respect 
 of another distress made by him for subsequent 
 rent: Kingston v. Eogers, 31 0. E. 119. A warrant 
 of distress specifying two bailiffs is unobjection- 
 able: Sawers v. Toronto, 2 0. L. E. 717. Where 
 one bailiff entered and seized and afterwards with- 
 drew by reason of mis-statements of the owner, it 
 was competent for another bailiff to return forth- 
 with and continue the first lawful taking: Sawers 
 v. Toronto, 2 0. L. E. 717. Goods which are not in 
 possession of the person assessed in respect of them 
 cannot be distrained for taxes assessed against 
 them. Goods which had been mortgaged were, when 
 seized, in possession of the bailiff of the mortgagee 
 who had taken possession on default. It was held 
 that the bailiff being in possession had a right to 
 bring action for illegal distress : Donahue v. Camp- 
 bell, 2 0. L. E. 124. Eight of assessor to seize; 
 landlord and tenant: Campbell v. Wallaceburg, 
 14 0. W. E. 473. The person taxed can recover for 
 excessive distress : Bradley v. Gainsboro, 9 O. W. 
 E. 397, 819. Even where no special damage is 
 proved: Black v. Coleman, 29 C. P. 507. In the 
 absence of definition of ' ' owner, ' ' Court will not hold 
 that locatee is liable for taxes unpaid by former lo- 
 catee : Patteson v. Emo, 28 0. L. E. 228. Claim of title 
 to goods seized for taxes : Foster v. Eeno, 22 0. L. E. 
 
CHAPTER 195. 
 
 1113 
 
 413. Distress by de facto officer of municipality: 
 Foster v. Reno, 2 0. W. N. 351, 4 0. W. N. 807, 17 0. 
 "W. E. 707, 22 0. L. E. 413. As to sub-sec. 3 ; see Nor- 
 ris v. Toronto, 24 0. E. 297. Whether the collector 
 " had good reason to believe " (sub-sec. 6) is one for 
 the Judge or jury, the onus being on the collector to 
 prove that he had : McKinnon v. McTague, 1 0. L. E. 
 233. 
 
 118. The Court of Eevision is obliged to receive and 
 decide upon a petition for the remission of taxes, 
 notwithstanding that the municipality has not 
 passed a by-law on the subject: Ee Norris, 28 0. 
 E. 636. 
 
 119. This enactment and the results of failure to comply 
 with its provisions considered: Jasperson v. Eom- 
 ney, 12 0. W. E. 575, 734. The provisions provid- 
 ing for what the account of the collector shall shew 
 on delivery of the roll to the treasurer and requir- 
 ing the clerk to be furnished with notice, are impera- 
 tive: Oaston v. Toronto, 30 0. E. 16, 26 A. E. 459, 
 30 S. C. E. 390. Where there is sufficient property 
 available for distress on land assessed during all 
 the time in which the collector for the year has the 
 roll, the taxes thereon cannot be legally returned 
 to the treasurer and cannot be legally placed on the 
 collector's roll for a subsequent year: Caston v. 
 Toronto, 30 0. E. 16, 26 A. E. 459. See also Wild- 
 man v. Tait, 32 0. E. 274. Where the requirements 
 as to the duties of the clerk, collector, assessor and 
 treasurer with reference to the list of lands to be 
 sold, have not been complied with, the defects are 
 not cured by sees. 177 and 178, but, to the extent 
 to which the assessments are valid, a purchaser has 
 his lien under sec. 187 : Wildman v. Tait, 32 0. E. 
 274, 2 0. L. E. 307 ; see also Boland v. Toronto, 32 
 0. E. 358; see also sec. 141 and sees. 177, 178 post 
 and notes. 
 
 127. See Caston v. Toronto, 30 0. E. 16, 26 A. E. 459, 
 30 S. C. E. 390; Wildman v. Tait, 32 0. E. 274, 
 2 0. L. E. 307; Boland v. Toronto, 32 0. E. 358; 
 and notes to sec. 119 ante. A sale had taken 
 place to the defendants who had erected buildings 
 on the land, and the proceedings had been substanti- 
 ally regular except that the clerk had omitted to 
 
1X14 CHAPTER 195. 
 
 furnish the treasurer with a true copy of the list 
 with the assessor's return certified by the clerk, 
 (see sec. 128). It was held that the onus lay on the 
 plaintiffs and that as the taxes had been legally im- 
 posed, the omission worked no injury to the plaintiff 
 who had all notices and delays. In other respects 
 the sale was valid, and it was held that as the action 
 was brought after three years the defendants could 
 rely on the provisions of sections 172 and 173 : Ken- 
 nan v. Turner, 5 0. L. E. 560. The provisions of 
 the Act are imperative, and where two lots sold were 
 not included in the lists, furnished by the clerk, a 
 subsequent tax sale was set aside : Carter v. Hunter, 
 13 0. L. E. 310. As to descriptions: see ante, sec. 
 22 (Id) and note. See also notes to sec. 177 post. , 
 
 128. Sale of occupied and improved lands as vacant 
 land: Eadford v. Disher, 12 O. W. E. 207; Blakey v. 
 Smith, 1 0. W. N. 340, 14 0. W- E. 241, 15 0. W. E. 
 62, 20 0. L. E. 279. The Legislature intended that 
 the owners, if known, would be notified by the as- 
 sessor of their danger whether or not he found the 
 lands occupied or built on: Mackenzie v. Wadson, 9 
 O. "W. E. 26. Failure of assessor to notify owner 
 is fatal to validity of tax sale : Deverill v. Coe, 11 0. 
 E. 222 ; Mackenzie v. Wadson, 9 0. W. E. 26. Qucere 
 whether the requirement in this section requiring 
 the clerk to furnish to the treasurer a copy of the 
 list certified by him under the seal of the corporation 
 is so essential that non-compliance with it would- 
 render invalid a tax sale attacked before the statu- 
 tory limitation came into operation: Kennan v. 
 Turner, 5 0. L. E. 560 ; see also Love v. Webster, 26 
 0. E. 453, and cases referred to in notes to sees. 119, 
 127, 177. 
 
 141. As to placing arrears on collectors' roll where there 
 was sufficient distress: see Caston v. Toronto, 30 0. 
 E. 16, 26 A. E. 459, 30 S. C. E. 390, note to sec. 119, 
 ante. Where there was a direct breach of this sec- 
 tion, a subsequent tax sale was set aside : Carter v. 
 Hunter, 13 0. L. E. 310. The omission of the trea- 
 surer to furnish to the clerk a list of lands liable 
 to be sold for taxes is a fatal objection to the valid- 
 ity of a tax sale : Euttan v. Burk, 7 0. L. E. 56. See 
 post sec. 177, notes. 
 
CHAPTER 195. 
 
 1115 
 
 142. The lands must be distinguished as patented or un- 
 patented. This is a compulsory provision: Hall v. 
 Hill, 2 E. and A. 568, 22 U. C. E. 578; Scott v. 
 Stuart, 18 0. B. 211; Kempt v. Parkyn, 28 C. P. 123; 
 Haisley v. Somers, 13 0. E. 600. Where there were 
 irregularities in the warrant, a substantial compli- 
 ance with the Act was held sufficient: Church v. 
 Fenton, 4 A. E. 159, 5 S. C. E. 239. It is not neces- 
 sary that the treasurer should keep his accounts of 
 taxes due according to "the statute in order to vali- 
 date the sale: Cotter v. Sutherland, 18 C. P. 357. 
 Strict proof should be required of the legality of the 
 tax and its actual imposition, but in matters con- 
 cerning its collection, unnecessary or unreasonable 
 rigour in carrying out the clauses of the statute 
 should not be exacted from the officials entrusted 
 therewith: Cotter v. Sutherland, 18 C. P. 357; Fitz- 
 gerald v. Wilson, 8 0. E. 559 ; see Dig. Ont. Case Law, 
 col. 307-332. 
 
 147. As to descriptions: see ante, sec. 22 (Id) and notes. 
 
 149. Advertising: see Williams v. Taylor, 13 C. P. 219; 
 Cotter v. Sutherland, 18 C. P. 357. Misdescription 
 in roll and advertisement: Booth v. Girthwood, 32 
 U. C. E. 23. Where the advertisement was of a 
 character to damp the sale, the sale was not ' ' fairly 
 conducted:" Scott v. Stuart, 18 0. E. 211. A county 
 municipality is not liable for the cost of advertising 
 the County Treasurer's list of land for taxes. The 
 County Treasurer does not act as an officer of the 
 corporation in regard to tax sales. He is merely 
 persona designata on behalf of the local municipali- 
 ties, and a creditor must look to him personally : 
 Warwick v. Simcoe, 36 C. L. J. 461 ; see also as re- 
 gards cities and towns : Bank of Commerce v. Tor- 
 onto Junction, 3 0. L. E. 309. Advertisement: Bus- 
 sell v. Toronto, 15 0. L. E. 484; Toronto v. Eussell, 
 1908, A. C. 493. Irregularity in publication of ad- 
 vertisement: Sutherland v. Sutherland, 22 0. W. E. 
 296, 3 0. W. N. 1368. 
 
 154. Sale of occupied and improved land as vacant land : 
 
 Eadford v. Disher, 12 0. W. E. 207. " Notice in 
 
 writing " of intention of municipality to purchase: 
 
 ' Cartwright v. Toronto, 4 O. W. N. 863. Power and 
 
IHQ CHAPTER 195. 
 
 right to purchase in view of this section: see Bus- 
 sell v. Toronto, 9 0. W. R. 288, 11 0. W. R. 23, 
 15 0. L. R. 484. Effect of validating Act: Rus- 
 sell v. Toronto, 15 0. L. R. 484,_ (1908) A. C. 493. 
 The procurement by the corporation of men to make 
 bids at the sale is not an irregularity. The 
 failure to give notice may be effectually waived by 
 the acts and conduct of the owner in arrear : Toronto 
 v. Russell, (1908) A. C. 493. As regards property 
 bought under this section the municipal corporation 
 is in the position of a trustee and is amenable to the 
 like jurisdiction of the Court. A lower tender was 
 not allowed to be accepted: Phillips v. Belleville, 9 
 0. L. R. 732. See also Ray v. Kilgour, 9 0. W. R. 
 641. 
 
 158. As to the application of the powers of the Super- 
 intendent-General of Indian Affairs: see R. S. C. 
 51, sees. 58-60; Richards v. Collins, 3 0. W. N. 1479, 
 22 0. W. R. 592. 
 
 160. Seizure of locatee's goods for taxes unpaid by 
 former locatee: Pattison v. Emo, 28 0. L. R. 228. 
 
 163. Description of lands sold. There is nothing requir- 
 ing the assessor to define the land assessed as the 
 .land sold for taxes : Tiny v. Archer, 12 0. W. R. 255. 
 
 171. Section construed: Errekkila v. McGovern, 4 0. W. 
 N. 195, 27 0. L. R. 498. " Known " address, sub- 
 sec. (2) ; section considered: Gast v. Moore, 27 0. L. 
 R. 515. Mandamus to compel treasurer to make 
 searches, and with corporation, to execute deed: 
 Dawson v. Sault Ste. Marie, 15 0. W. R. 230. As to 
 protection of persons enjoying easement over lands 
 sold for taxes : Essery v. Bell, 13 0. W. R. 395, 18 
 0. L. R. 76. 
 
 173. The title acquired by the purchase of land sold un- 
 der statutory authority for non-payment of taxes 
 and not redeemed with the statutory period* is an 
 absolute title entitling the holder at any time after- 
 wards to perfect it by a deed of sale from the trea- 
 surer under the Act : McConnell v. Beatty, 1908, A. 
 C. 82 ; reported also 11 0. W. R. 1. Sale of Crown 
 lands for arrears of taxes; purchaser entitled to 
 
CHAPTER 195. 
 
 1117 
 
 treasurer's deed: McConnell v. Beatty, 1908, A. C. 
 82. Provision for registration of tax deeds within 
 eighteen months : see E. S. 0. 1914, ch. 124, sec. 78. 
 
 177. The change in wording from E. S. 0. 224, sec. 208 to 
 4 Edw. VII., ch. 23, sec. 172, commented on and its 
 effect considered : Blakey v. Smith, 20 0. L. E. 279, 
 1 0. W. N. 340, 14 0. W. E. 241, 15 0. W. E. 62. If 
 there is no valid assessment, no taxes can be legally 
 imposed, and a sale based on such taxes is invalid: 
 Blakey v. Smith, 20 0. L. E. 279, 1 0. W. N. 340, 14 
 0. W. E. 241, 15 0. W. E. 62. Scope of the curative 
 effect of this section: see Laird v. Neelin, 10 0. W. 
 E. 429. It was at one time thought to apply to cure 
 defects notwithstanding non-compliance with the 
 provisions of the requirements of sections 127 et seq ; 
 but this position is not tenable since Euttan v. Burk, 
 7 0. L. E. 56. As to its application to cure non-com- 
 pliance with section 141 : see cases collected, Laird 
 v. Neelin, 10 0. W. E. 429 at p. 431. Setting aside 
 tax sale for want of notice (see sec. 171 (2)) : G-ast v. 
 Moore, 4 0. W. N. 525, 23 0. W. E. 577, 27 0. L. E. 
 515. Lack of notice under sec. 128 as ground of in- 
 validity: Mackenzie v. Wadson, 9 0. W. E. 26; Dev- 
 erill v. Coe, 11 6. E. 222. Omissions and irregulari- 
 ties : Kennan v. Turner, 5 0. L. E. 560, 2 0. W. E. 
 239; Boland v. Toronto, 32 0. E. 358. Failure to 
 observe requirements of the Act as ground of attack 
 on tax deed: Fisher v. Parry Sound Lumber Co., 6 
 0. W. E. 381, 7 0. W. E. 55. Conduct of tax sale ; 
 execution and delivery of tax deed; irregularities: 
 Errikkila v. McGovern, 4 0. W. N. 195, 518, 27 0. L. 
 E. 498. Grounds for attacking tax deeds: see sees. 
 104, 119, 128, 154, 173, and notes. 
 
 " Fairly and openly:" Sutherland v. Sutherland, 22 
 O. W. E. 296, 3 0. W. N. 1368. Where the adver- 
 tisement was of a character to damp the sale, the 
 sale was not " fairly conducted:" Scott v. Stuart, 18 
 0. E. 211 ; and see notes to sec. 149, ante. The onus 
 of proof that there were taxes in arrear for which 
 land might be rightly sold is upon the person claim- 
 ing under the sale for taxes: Hislop v. Joss, 3 0. L. 
 E. 281. Onus of proof of invalidity of tax title: 
 Kennan v. Turner, 5 0. L. E. 560, 2 0. W. E. 239; 
 Mackenzie v. Wadson, 9 0. W. E. 26. The onus of 
 
1H8 CHAPTER 195. 
 
 proving a valid sale for taxes is upon the party set- 
 ting up title under a tax deed ; the production of the 
 deed is not enough: Essery v. Bell, 18 0. L. R. 76. 
 The sale of the servient lands for taxes does not ex- 
 tinguish the title to an easement thereover: Essery 
 v. Bell, 13 0. W. R. 395, 18 0. L. B. 76. Effect of 
 statutory curative provision on contract of sale: Re 
 National Trust and Ewing, 2 0. W. N. 801, 18 0. W. 
 R. 770. A tax deed must, to retain its priority un- 
 der the Registry Act, be registered within eighteen 
 months: R. S. 0. 1914, ch. 124, sec. 28; Armour 
 Titles, p. 163. 
 
 Construction of Statutes validating tax sales. Vali- 
 dation of tax sales in Toronto up to and including 
 the one held in 1902 : see 3 Edw., ch. 86, sec. 8, and 
 see Russell v. Toronto, 9 0. W. R. 288, 11 0. W. R. 
 23, 15 0. L. R. 484, 1908, A. C. 493. Consideration of 
 validating statute affecting tax sales in Toronto: 3 
 Edw. VII., ch. 86, sec. 8: Right to redeem lands 
 purchased by city: Cartwright v. Toronto, 4 0; W. 
 N. 863, 29 0. L. R. 73. Construction and consider- 
 ation of acts validating tax sales in Toronto : 6 Edw. 
 VII., ch. 99, sec. 9, 7 Edw. VII., ch. 97, sec. 9; Rad- 
 ford v. Disber, 12 0. W. R. 207; Blakely v. Smith, 
 20 0. L. R. 279. Act validating tax sales in Port 
 Arthur : 2 Edw. VII., ch. 49. Construction : Ray v. 
 Kilgour, 9 0. W. R. 641. Port Arthur validating 
 Act: 10 Edw., ch. 124; Errikkila v. McGovern, 27 0. 
 L. R. 498. 
 
 178. "Where it appeared that as far as the County Trea- 
 surer was concerned, all the steps taken by him in 
 regard to the sale were regular, and that the sale bad 
 taken place for taxes actually in arrear, followed by 
 a deed which had not been questioned within two 
 years, the sale and deed were not afterwards im- 
 peachable, although it was not clear on the evidence 
 whether the clerk and assessor had or had not pro- 
 perly complied with the requirements of the Act: 
 Smith v. Midland Ry., 4 0. R. 494. Where the ac- 
 tion was brought , after three years, the proceed- 
 ings on the sale were substantially regular with one 
 exception, the taxes had been legally imposed 
 and the plaintiffs had had all notices and delays, the 
 defendants were entitled to rely on these sections 
 
CHAPTER 195. 
 
 1119 
 
 (177, 178) as a defence: Kennan v. Turner, 5 0. L. 
 R. 560. Where two years have elapsed without the 
 deed being questioned, it is not necessary to give 
 evidence that the lands were duly advertised: 
 Wapels v. Ball, 29 C. P. 403. Where a sale was in- 
 valid for failure to set out why the taxes had not 
 been collected, and for other irregularities, it was 
 held that these sections (177-178) did not cure 
 the invalidity: Boland v. Toronto, 32 0. R. 358; 
 see also Wildman v. Tait, 32 0. R. 274, 2 0. L. R. 
 307; Love v. Webster, 26 0. R. 453. The limitation 
 sections are no protection to a tax purchaser where 
 there has been no list furnished by the treasurer to 
 the clerk of lands liable to be sold for taxes under 
 sec. 127; Ruttan v. Burk, 7 0. L. R. 56; see also 
 Whelan v. Ryan, 20 S. C. R. 65. " Two years " 
 runs from the date of the tax deed, not from the 
 date of the auction sale: Sutherland v. Sutherland, 
 3 0. W. K 1368, 22 0. W. R. 296. " The time of 
 sale " means the time of the deliverv of the tax 
 deed: Errikkila v. McG-overn, 17 0. L. R. 498. Sec- 
 tion considered: Burrows v. Campbell, 23 0. W. R. 
 271, 24 0. W. R. 190, 4 0. W. N. 249. And sea also 
 Donovan v. Hogan, 15 A. R. 342, which is now of 
 doubtful authoritv : Burrows v. Campbell, '24 0. W. 
 R. 190. 
 
 180. This was formerly R. S. 0. 1897, ch. 224, sec. 211, 
 repealed by 2 Edw. VII., ch. 1, sched,, and now re- 
 vived. Cf. 32 Henry VII., ch. 9, the Act "Against 
 Maintenance and Embracery and Byeing of Titles." 
 Where a lot contained 82 acres and the northerly 50 
 acres were sold for taxes in 1868 and in 1871 there 
 was sold " the whole of southerly part containing 
 10 acres being the part not sold in 1868," it was 
 held that this was not a sale of 10 acres which could 
 be located by the Court " in such manner as is best 
 for the owner," but was a sale of the whole unsold 
 portion and could not be attacked by a purchaser 
 from the owner after the time of the tax sale, who 
 then had a mere right of entry. Application and ef- 
 fect of section considered: Hyatt v. Mills, 19 A. R. 
 329; see Ruttan v. Burk, 7 0. L. R. 56. 
 
 181. Lien of purchaser at tax sale for improvements and 
 money expended : Richard v. Collins, 4 0. W. N. 375, 
 23 0. W. R. 499, 27 0. L. R. 390. 
 
1120 CHAPTER 196. 
 
 186. — (2) Pre-requisite for application of this section is 
 finding notice not given: Eichards v. Collins, 27 0. 
 L. E. 390. 
 
 187. This section giving a purchaser a lien for the pur- 
 chase money and ten per cent, has no application 
 where the taxes have not been legally imposed or 
 where there are no taxes in arrear: Wildman v. 
 Tait, 2 0. L. E. 307; Carter v. Hunter, 13 0. L. E. 
 310. 
 
 191. A treasurer of a town has no authority to bind the 
 municipal corporation to pay the cost of advertis- 
 ing his list of land for sale for arrears of taxes. He 
 is a persona designata and the municipality has no 
 authority to interfere with him in the performance 
 of his defined duties. A creditor for such adver- 
 tisements must look to bim personally: Bank of 
 Commerce v. Toronto Junction, 3 O. L. E. 309 ; War- 
 wick v. Simcoe, 36 C. L. J. 461. 
 
 193. Former procedure in respect of tax sales in dis- 
 tricts : see E. S. 0. 1897, ch. 23, sec. 23, etc. See also 
 Beatty v. McConnell, 6 0. W. E. 822, 7 0. W. E. 11, 
 8 0. W. E. 916 (C. A), 11 0. W. E. 1 (P. C.) ; also 
 1908, A. C. 82. 
 
 195. Consideration of this section in view of the Separ- 
 ate Schools Act, E. S. 0. 1914, ch. 270, sec. 67 (5) : 
 Ee Therriault and Cochrane, 5 0. W. N. 26, 24 0. 
 W. E. 964. 
 
 202. Appointment of collector may be by resolution: 
 Foster v. Eeno, 2 0. W. N. 351, 4 0. W. N. 807, 17 
 0. W. E. 707, 22 0. L. E. 413. 
 
 CHAPTEE 196. 
 
 The Statute Labour Act. 
 
CHAPTERS 197, 198. -Q21 
 
 CHAPTEK 197. 
 
 The Municipal Franchises Act. 
 
 3. Contract for supply of electric light: Date of con- 
 tract : Hogan v. Brantf ord, 1 0. W. N. 226, 14 0. W. 
 E. 1117. Injunction may be granted if agreement 
 has not received the required assent of the electors : 
 Abbott v. Trenton, 14 0. "W. E. 1101, 1 0. W. N. 218. 
 Unreasonable withholding by municipality of con- 
 sent to erection of electric light and power poles in 
 lanes : Walkerville v. Walkerville Light and Power 
 Go., 5 0. W. N. 429. Pleadings; cause of action: 
 see Hogan v. Brantf ord, 14 O.-W. E. 1117, 1 0. W. N. 
 216; See provisions of E. S. 0. 1914> ch. 192, sec. 
 399 (50), 408 (4), and notes. 
 
 CHAPTEE 19& 
 
 The Municipal Dbainage Act. 
 
 Eefer to: Proctor, The Drainage Acts of Ontario; 
 Clarke and Scully, Ontario Drainage Cases. 
 
 1. This Act has not abrogated the fundamental principle 
 underlying the Acts respecting the powers of muni- 
 cipal institutions as to assessments for the improve- 
 ment of particular lands at the cost of the owners, 
 which rests on the maxim: qui sentit commodwm 
 sentire debet et onus : Sunderland v. Eomney, 30 S. 
 C. E. 495. In drainage matters the policy of the 
 Legislature is to leave the management largely in 
 the hands of the localities, and the Court should re- 
 frain "from interference unless there has been a 
 manifest and indisputable excess of jurisdiction or 
 an undoubted disregard of personal rights: Ee 
 Stephens and Moore, 25 0. E. 600. 
 
 2.— (i) Owner: see note to sec. 3 (1). 
 
 S.A.^71 
 
1122 CHAPTER 198. 
 
 3. — (1) The assessment roll is conclusive as to the status 
 of the persons mentioned in it and evidence is not 
 admissible to shew that a person entered on the roll 
 as an owner is in fact a farmer's son and has been 
 entered on the roll as owner by the assessor's error: 
 Warwick v. Brooke, 1 0. L. E. 433. History and 
 analysis of section: Warwick v. Brooke, 10. L. E. 
 433 ; and see post, sec. 21. The " last revised assess- 
 ment roll," which governs the status of petitioners 
 is the roll in force at the time the petition is 
 adopted by the Council and referred to the 
 engineer for enquiry and report and not the roll 
 in force at the time the by-law is finally passed: 
 Challoner v. Lobo, 32 0. E. 247, rev., 10. L. E. 136, 
 32 S. C. E. 505. Since 1906 it is no longer necessary 
 that the petition should be signed by a majority of 
 the owners whose lands are found by the engineer 
 who makes the report, to be benefited, but it is still 
 as necessary as ever that the petition should describe 
 a real drainage area which should bear a reasonable 
 proportion to the size and extent of the scheme: Ee 
 Duane and Finch, 12 0. W. E. 144. Majority of 
 owners benefited: Assessment for outlet: Fair- 
 bairn v. Sandwich South, 8 O. W. E. 925. Petition: 
 Eochester v. Mersea, 2 O. L. E. 435; Orford v. Aid- 
 borough, 3 0. W. N. 1517, 27 0. L. E. 107. 
 
 3. — (2) Because in the course of construction of a drain- 
 age work, banks are formed with the spoil east from 
 the dredge, the work is not one within this sub-sec- 
 tion, which relates to the reclamation of wet or sub- 
 merged lands: Sutherland v. Eomney, 26 A. E. 495, 
 30 S. C. E. 495. 
 
 3. — (3) Lands in one municipality from which water has 
 been caused to flow upon and injure lands in another 
 municipality, either immediately or by means of 
 another drain or by means of a natural watercourse, 
 may be assessed and charged for the construction 
 and maintenance of a drainage work required to re- 
 lieve the injured lands from such water: Orford v. 
 Howard, 27 A. E, 223. This section wider than the 
 former Act: Township of Orford v. Aldborough, 3 
 0. W. N. 1517, 22 0. W. E. 853, 27 0. L. E. 107. 
 
 3. — (5) Injuring liability: Huntley v. March, 14 0. W. E. 
 1033, 1 0. W. N. 190. " Outlet:" Ee Jenkins and 
 Enniskillen, 25 0. E. 399. 
 
CHAPTER 198. -t -.90 
 
 5. Taking the prescribed oath is an essential prerequisite 
 to the exercise of jurisdiction by the engineer under 
 section 77 : Colchester v. Gosfield, 27 A. R. 281. 
 
 8. Tender based on erroneous estimate of engineer as to 
 measurements and quantity of work; contract held 
 not binding: McKillop v. Pidgeon and Foley, 11 0. 
 W. E. 401. Engineer may delegate clerical work 
 not involving the exercise of judicial discretion: 
 Moore v. March, 13 0. W. E. 692; Eobertson v. 
 North Easthope, 15 O. E. 423; Elizabethtown v. 
 Augusta, 2 0. L. E. 4, 32 S. C. E. 295. Proper 
 charges for clerical assistance for engineer: Moore 
 v. March, 13 0. W. E. 694. 
 
 9. — (9) The power to extend time is a limited power to 
 extend for good cause and not upon dilatoriness on 
 the engineer's part: Ee McKenna and Osgoode, 13 
 0. L. E. 471. 
 
 9.— (10) Undue delay impugning validity of report: Ee 
 McKenna and Osgoode, 8 0. W. E. 713, 13 0. L. E. 
 471. 
 
 16. The written request is an essential prerequisite to 
 the jurisdiction of the County Court Judge. There 
 is no appeal: Moore v. March, 13 0. W. E. 692, 14 
 0. W. E. 1194, 20 0. L. E. 67. 
 
 19. Before the report, plans and assessment of the en- 
 gineer have been adopted by the Council, it can refer 
 them back to him for further consideration and for 
 amendment, but after they have been adopted, it 
 cannot of its own motion change or amend them, and 
 if the drainage scheme is carried out with a material 
 change the municipality are not protected and are 
 liable to make good any damages resulting from the 
 work: Priest v. Flos, 1 0. L. E. 78. 
 
 20. Power of withdrawal from petition, and how exer- 
 
 cised: Gibson v. North Easthope, 21 A. E. 504, 24 S. 
 C. E. 707. Insufficient petition ; prohibition : Ander- 
 son v. Colchester North, 21 0. E. 476. 
 
 26. It was held that a petition is an indispensable prelim- 
 inary, and the fact of the by-law not having been 
 
1124 CHAPTER 198. 
 
 quashed within the period limited would not prevent 
 its being treated as invalid. On appeal, a Divisional 
 Court was equally divided : Anderdon v. Colchester 
 North, 21 0. E. 476. A summary application to quash 
 a by-law is " made " when notice of the motion is 
 served and the affidavits in support of it filed — al- 
 though the motion is not made returnable until after 
 the prescribed period : Ee Sweetnam and G-osfield, 13 
 P. E. 293 ; Ee Shaw and St. Thomas, 18 P. E. 454. A 
 Council passed a provisional by-law, and on the mat- 
 ter coming up before the Court of Eevision, it was 
 found that the petition had not been signed by suffi- 
 cient owners. The Council without new petition or re- 
 port altered the report, reduced the size and cost of 
 works and passed a by-law for the construction of 
 the work as altered in three townships. Held that 
 this by-law was void: McCulloch v. Caledonia, 25 A. 
 E. 417; Ealeigh v. Williams, 1893, A. C. 540, at p. 
 550. 
 
 44. Quaere whether an appeal lies under this section to 
 the County Judge at the instance of the municipal- 
 ity: see Ee Dundas St. Bridges, 8 0. L. E. 52. 
 
 48. Construction of section: After the expiration of 30 
 days the Judge is functus officio : Eowland v. McCal- 
 lum, 1 0. W. N. 319, 2 0. W. N. 365, 17 0. W. E. 557, 
 735, 22 0. L. E. 418. 
 
 60. See Jenkins v. Enniskillen, 25 0. E. 399, note to sec. 
 63. 
 
 63 Although a Township Council is not powerless in re- 
 gard to the report of its engineer, it is contrary to 
 the spirit and meaning of the Act that two adjoining 
 Councils should agree on a drainage scheme and the 
 proportion of its cost to be borne by each, and that 
 the engineer of one of them should be instructed to 
 make a report carrying out the scheme and charg- 
 ing each municipality with the sum agreed on. 
 Such a course would interfere with the independent 
 judgment of the engineer and pledge each township 
 in advance not to appeal, to the possible detriment 
 of the owners assessed : Ee Jenkins and Enniskillen, 
 25 0. E. 399. What is an " outlet:" Ee Jenkins and 
 Enniskillen, 25 0. E. 399. Where a drain con- 
 structed or improved by one municipality affords 
 
CHAPTER 198. 
 
 1125 
 
 an outlet either immediately or by means of another 
 drain or natural watercourse for waters flowing 
 from lands in an adjoining municipality, the muni- 
 cipality that has constructed or improved the outlet 
 can assess the lands in the adjoining municipality 
 for a proper share of the cost of construction or im- 
 provement, and the Drainage Eeferee has power to 
 decide all questions relating to the assessment : Per 
 Hagarty, C.J.O., and Burton, J.A. Osier and Mac- 
 lennan, JJ.A., however, held that the section does 
 not extend to original watercourses which have 
 been deepened or enlarged, but only to drains pro- 
 perly so called: The Court was divided: Re Har- 
 wich and Raleigh, 21 A. R. 677; see Re Orford and 
 Howard, 18 A. R. 496. In Broughton y. Grey, 27 S. 
 C. R. 495, the Supreme Court held that the section 
 does not include original watercourses which have 
 been deepened or enlarged. See also Stephen v. 
 McGillivray, 18 A. R. 516. The scheme of the Act 
 is to make the total cost of the proposed work fall 
 upon the initiating municipality, less such sums as 
 may be properly chargeable against other munici- 
 palities for the benefits received by them respec- 
 - lively. And if the benefit is disproved, the attempted 
 charge fails : Re Romney and Tilbury, 18 A. R. 477. 
 
 66. Where a sum amply sufficient to complete drainage 
 works has been paid over to the initiating munici- 
 pality and was misapplied in a manner not author- 
 ized by the by-law, the municipality cannot after- 
 wards by another by-law, levy from the contributors 
 to the fund so paid any further sum to replace the 
 sum wasted : Sombra v. Chatham, 28 S. C. R. 1. 
 Right of owner in adjoining municipality proposed 
 
 rtobe made a contributor to bring action to prevent 
 passing of by-law by initiating municipality: 
 Broughton v. Grey, 27 S. C. R. 495. Liability of sub- 
 servient townships to pay interest: March v. Huntr 
 ley, 17 0. W. R. 731. 
 
 67. Where benefit to municipality sought to be charged 
 cannot be proved the attempted charge fails: Re 
 Romney and Tilbury, 18 A. R. 477 ; see note to sec. 
 63, ante. Where in a drainage scheme initiated by 
 one township, several are brought in, each of these 
 is interested only in its own assessment, as against 
 
1126 CHAPTER 198. 
 
 the initiating township, and not in the assessments 
 of each other: Ee Eomney and Tilbury West, 18 
 A. E. 477. See sees. 63, 72, notes. 
 
 69 The by-law referred to in this section is one which 
 provides for the completion of the work so as to 
 render it efficient, although there may have been 
 some deviations and variations and even additions 
 to the work as originally planned, e.g. where it was 
 found that stone portals were needed and the outlet 
 to a lake deepened: Ee Suskey and Eomney, 22 0. 
 E. 664. 
 
 71. Where the drain was an old one constructed out of 
 
 general funds and out of repair, the Court declined 
 to quash a by-law assessing certain property for its 
 maintenance and repair, although there were some 
 irregularities. The policy is that the Court should 
 leave the matters in the hands of the localities, un- 
 less there has been manifest excess of jurisdiction 
 or disregard of personal rights: Ee Stephens and 
 Moore, 25 0. E. 600. What is maintenance work, 
 Ee Johnston and Tilbury East, 25 0, L. E. 242, Re- 
 pair of old drain : Anderton v. Maiden, 4 0. W. N. 
 327, 23 0. W. E. 320. 
 
 72. See Broughton v. Grey, 26 0. E. 694, 23 A. E. 601, 27 
 S. C. E. 495. Where in a drainage scheme initiated 
 by one township, assessments are made agaihst more 
 than one other, each township is interested only in 
 the question of its own assessment, and the arbitra- 
 tion provided for is between each township and the 
 
 ' initiating township not a joint arbitration : Ee Eom- 
 ney & Tilbury West, 18 A. E. 477. See note to sec. 
 63; and see Ee Harwich and Ealeigh, 20 0. E. 154; 
 Ee Orford and Howard, 18 A. E. 496. 
 
 73. Where drainage works affecting several minor muni- 
 
 cipalities are constructed by the county, each minor 
 municipality must keep, in repair the part of the 
 works within its own limits and cannot call upon 
 other minor municipalities to contribute to the ex- 
 pense of repairs. The Drainage Eeferee has juris- 
 diction to "set aside a by-law attempting this; Ee 
 Mersea and Eochester, 22 A, E. 110. 
 
CHAPTER 198. 
 
 1127 
 
 74. Upon certain repairs to drainage work becoming 
 necessary, one of the townships directed their en- 
 gineer to make a report, and he assessed the cost 
 against th© different townships in the proportions in 
 which the original cost had been assessed, no pro- 
 ceedings having been taken under sections 72 or 75 
 to vary the assessment. It was held that this was 
 a proper mode of apportionment and that the 
 Drainage Eeferee had no power to vary an appor- 
 tionment made under such circumstances: Chatham 
 v. Dover, 8 0. L. E. 132. 
 
 77. Taking the oath prescribed in section 5 is an essen- 
 tial prerequisite to the exercise of jurisdiction by 
 the engineer under this section: Colchester v. Gfos- 
 field, 27 A. E. 281. While an appeal to the Drainage 
 Eeferee is pending, the initiating municipality can- 
 not refer back the report to the engineer for. amend- 
 ment, lb. A drainage scheme cannot be upheld if 
 the engineer does not make sufficient outlet for the 
 water dealt with ; Ee Ealeigh and Harwich, 26 A. E. 
 313. Any municipality whose duty it is to maintain 
 any part of a drainage work may without being set 
 in motion by a complainant, initiate repair and ex- 
 tension proceedings although nearly all the cost is 
 assessable against adjoining townships: Caradoc v. 
 Ekfrid, 24 A. E. 576. Where the engineer of the 
 initiating township assessed lands in the adjoining 
 townships for an improved outlet on the principle 
 that all lands in the drainage area were liable there- 
 for, no matter how remote, and though the original 
 outlet was sufficient for their drainage or cultivation, 
 his report was set aside : lb. A township which has 
 constructed a drain within its boundaries, connected 
 with ia drain constructed as an independent work in 
 another township, has power without the petition of 
 the ratepayers to provide for the necessary repairs 
 of both drains and to assess the adjoining munici- 
 pality with its proportion of the cost: Ee Stonehouse 
 and Plympton, 24 A. E. 416; see also Elizabethtnwn 
 v. Augusta, 32 S. C. E. 295. This section applied 
 only to drains artificially constructed and did not 
 apply to the improvement or repair of an ordinary 
 watercourse: Ee Eochester v. Mersea, 2 0. L. E. 
 435; Sutherland.v. Eomney, 30 S. C. E. 495; but now 
 see sub-sec. 2 (1906). Formerly the cost of widening 
 
H28 CHAPTER 198. 
 
 and deepening a natural watercourse constituted a 
 charge on the general funds of the township: Suth- 
 erland v. Eomney, 30 S. C. E. 495. Where part of 
 a drainage work to which the section applies is out 
 of repair, it is not necessary before initiating pro- 
 ceedings for the improvement of the drain under 
 the section for the initiating township to repair the 
 portion of the existing drain which it is bound to 
 repair. Both classes of work may be provided for 
 in the same by-law* the engineer estimating and as- 
 sessing separately the cost of each class : Ee Eoches- 
 ter and Mersea, 2 0. L. E. 435. See also Orford v. 
 Howard, 27 A. E. 223. Old section 75 was materially 
 amended after Sutherland Innes v. Eomney, 30 S. 
 C. E. 495, and Orford v. Howard, 27 A. E. 223. (See 6 
 Edw. VII., oh. 37, sec. 9). History of section and de j 
 cisions : see Orford v. Aldborough, 3 0. W. N. 1517, 
 22 0. W. E. 853, 27 0. L. E. 107. Proceedings under 
 this section : Ee Dover and Chatham, 1 0. W. N. 327, 
 15 0. W. E. 156. Mandate of engineer: Gibson v. 
 West Luther, 20 0. W. E. 405. Where report of 
 engineer is a condition precedent: scope of section 
 considered: Johnston v. Tilbury East, 3 0;,W. N. 
 405, 25 0. L. E. 242. Eepairing upon report: Ee 
 Orford and Aldborough, 27 0. L. E. 107. 
 
 80. It is the claimant's duty to shew that proper notice 
 has been given if a mandamus is asked for, and ob- 
 jection to the sufficiency of the notice may be taken 
 by the defendants at any stage of the action without 
 pleading want of notice: What is sufficient notice: 
 McKim v. East Luther, 1 0. L. E. 89. A complain- 
 ant is entitled to recover damages for injury to or 
 depreciation in value of land caused by failure to 
 keep drain in repair, but not for depreciation in 
 value based on the insufficiency of the drain as orig- 
 inally made: McKim v. East Luther, 1 0. L. E. 89. 
 Where a drain is out of repair and lands are injured 
 by water overflowing from it, the municipality bound 
 to keep it in repair cannot escape liability on the 
 ground that the injury was caused by an extraordin- 
 ary rainfall, unless it is shewn that even if the drain 
 had been in repair, the same injury would have re : 
 suited: Mackenzie v. West Flamborough, 26 A. E. 
 198. Any ratepayer whose property has been as- 
 sessed for the maintenance and repair of a drain is 
 
CHAPTER 198. H29 
 
 a person injuriously affected by its want of repair 
 although, he can shew no actual loss. He can be 
 awarded a mandamus to "compel repair unless the 
 municipality can shew that even if the drain were 
 repaired it would be useless to the complainant's 
 property: Stephens v. Moore, 25 A. R. 42. To en- 
 title a complainant to a mandamus the notice while 
 not technical in form must be so clear and precise 
 that the municipality can decide whether the com- 
 plaint is well grounded or frivolous. A letter re- 
 ferring to defects and suggesting steps to be taken 
 but not calling on the municipality to do the work 
 is not sufficient. The notice by which proceedings 
 are initiated in Court is not the notice meant by this 
 section: Crawford v. Ellice, 26 A. E. 484; Chrysler 
 v. Sarnia, 15 0. E. 180. While the section requires 
 notice to be given of a mandamus, it did not pre- 
 clude an action for damages without such notice. 
 An action for damages lies at the suit of any person 
 who can shew that he has sustained damage 
 from the non-performance of the statutory duty to 
 repair. Damages are recoverable when a drain is 
 not kept so as to be able to carry off the water it 
 was originally constructed to carry. The liability 
 does not extend to injury caused by negligent con- 
 struction of another drain by the municipality under 
 its statutory powers: Ealeigh v. Williams, 1893, A. 
 C. 540. As to notice of claims for damages, see sub- 
 sec. 2. The provision for mandamus to maintain 
 a drain does not extend to a drain never fully made 
 and completed. Where lands were flooded in such a 
 case it was not an injury for which the plaintiff 
 township could maintain an action for damages even 
 though a general nuisance was occasioned. Their 
 only pecuniary compensation was for roads washed 
 away: Sombra v. Chatham, 21 S. C. E. 305. Pro- 
 hibition: see Anderson v. Colchester North, 21 O. E. 
 476. Injunction to restrain municipality from con- 
 tinuing improperly constructed drainage works: 
 McG-arvey v. Strathroy, 10 A. E. 631 ; Van Egmond 
 v. Seaforth, 6 O. E. 699; Malott v. Mersea, 9 O. E. 
 611. And to restrain misapplication of moneys as- 
 sessed for drainage purposes: Smith v. Ealeigh, 3 
 O. E. 405. Claim for damages for flooding lands 
 met by answer of compensating benefit on the whole : 
 see Northwood v. Ealeigh, 3 0. E. 347. Where two 
 
U30 CHAPTER 198. 
 
 drains were 'constructed, the second running into the 
 first below the plaintiff's land, and the first was al- 
 lowed to become choked and flooded the plaintiff's 
 land, the plaintiff was entitled to a mandamus: 
 White v. Gosfield, 2 O. E. 287, 10 A. E. 555. A muni- 
 cipality was held liable for damages for bringing 
 sewage matter and anthrax germs on the plaintiff's 
 farm. The authority- under the Act to construct 
 drains is only to do so in such a way as not to cause 
 a nuisance or injure others. The municipality were 
 not relieved from liability by shewing that they had 
 forbidden, the tannery from which the anthrax 
 germs had come draining into the sewer, because 
 they had the power of stopping the connection and 
 had not exercised it: Measure of damage in such a 
 case : Weber v. Berlin, 8 0. L. E. 302 ; see also Brad- 
 ley v. Ealeigh, 10 O. L. E. 201. A municipality is 
 not now liable for damages caused by non-repair of 
 drainage works unless and until a notice specifying 
 the non-repair is served on it: Cullerton v. Logan, 
 25 O. W. E. 254. An action can be brought for con- 
 tinuing damage, even though two years have elapsed 
 since the inception of it: Cullerton v. Logan, 25 0. 
 W. E. 254; Wigle v. Gosfield, 7 O. L. E. 32. A cor- 
 poration cannot take advantage of the limitations 
 in this Act, where to do so they must set up that a 
 contract entered into with the owner of lands dam- 
 aged by flooding is unsealed: McBain v. Cavan, 5 
 0. W. N. 544. Mandamus : see Con. Eules, 1080, et 
 seq.; H, & L. notes, pp. 1293-1302; 1913 Eules 622, 
 et seq. See notes to sec. 98 post; and also see E. S. 0. 
 1914, ch, 192, sec. 457, notes. 
 
 85. Eemoval of artificial obstruction: Elizabethtown v. 
 Augusta, 32 S. C. E. 295. 
 
 88. The provisions of the Municipal Act as to the regis- 
 
 tration of by-laws for contracting debts apply to 
 by : laws for the issue of debentures for drainage 
 works, and where such by-laws have been registered 
 in accordance with the provisions of the Act they 
 cannot be set aside even if originally ultra vires: 
 Sutherland v. Eomney, 26 A. E. 495; see E. S. 0. 
 1914, ch. 43, also ch. 192, sec. 281. 
 
 89. Lawful assessment: Ee Johnston and Tilbury East, 
 
 25 0. L. E. 242. 
 
CHAPTER 198. 
 
 1131 
 
 90. Assumption of award drain. Enlargement of scheme 
 by Council : Fairbairn v. Sandwich South, 8 0. W. E. 
 925. 
 
 93. Before the amendment of 1906: see McClure v. 
 Brooke, 4 O. L. R. 97, 5 0. L. E. 59. 
 
 94. A Drainage Referee cannot, upon the admission of 
 the initiating township that the report appealed from 
 is defective, refer it back against the wishes of the 
 appealing townships to the engineer for amend- 
 ment : Adelaide v. Metcalfe, 27 A. E. 92. A referee 
 had no jurisdiction to adjudicate as to the propriety 
 o£ the route selected by the engineer and adopted 
 by the by-law, the only remedy, if any, being by 
 appeal against the project proposed by the by-law: 
 Hiles v. Ellice, 20 A. E. 225, 23 S. C. E. 429. A 
 drainage referee set aside a by-law of a minor 
 municipality charging other minor municipalities 
 with the expense of repairs within their own limits. 
 On appeal the Court of appeal was evenly divided 
 as to whether he had jurisdiction: Ee Mersea, 22 
 A. E. 110. The drainage referee has jurisdiction 
 with the consent of the engineer, upon evidence 
 given, to amend the engineer's report by charging 
 against the municipalities for injuring liability 
 assessments erroneously charged against them by 
 the engineer for outlet liability: Ee Eochester and 
 Mersea, 25 A. E. 474. The Drainage Eeferee is not 
 an Official Eeferee under the Judicature Act, unless 
 specially so appointed: McClure v. Brooke, 5 O. 
 L. E. 59. See E. S. O. 1914, ch. 56, sec. 86; ch. 65, 
 sees. 10-14. 
 
 95. An order assuming to refer back a report is not an 
 interlocutory order and an appeal to the Court of 
 Appeal lies against it: Adelaide v. Metcalfe, 27 
 A. E. 92. 
 
 98. A municipal corporation having constructed a drain 
 without a by-law for the particular portion passing 
 through, private property whereby noxious matter 
 was brought down and deposited, was held liable 
 for damages in spite of the fact that there were 
 excavations on the land, but for which the noxious 
 matter might have passed off. It was no answer 
 
1132 CHAPTER 198. 
 
 that the drain was used by others as well as the 
 Corporation: Close v. Woodstock, 23 0. R. 99. 
 Action is maintainable for injury occasioned by 
 municipal Idrain and embankment being out of 
 repair' or from their not being kept in such a state 
 as to carry off, in relief of the plaintiff's lands, 
 all the water which the drain was capable of carry- 
 ing off as originally constructed. So far as injury 
 was occasioned by the negligent construction by 
 the municipality under its statutory powers of 
 another drain, the action was not maintainable: 
 Raleigh v. Williams, 1893, A. C. 540. Necessity of 
 notice: Raleigh v. Williams, 1893, A. C. 540. (See 
 ante sec. 80, and notes). Proceedings to attack by-law 
 for absence of petition and non-observance of I orm- 
 alities: Alexander v. Howard, 14 0. R. 22. Negli- 
 gent construction of drains and discharging sur- 
 face water doing damage: Derinzy v. Ottawa, 15 
 A. R. 712; Reeves v. Toronto, 21 U. C. R. 157. 
 Where the damage is caused by the act of private 
 parties; liability of corporation: McConkey v. 
 Brockville, 11 0. R. 322 ; Welsh v. St. Catharines, 
 13 0. R. 369. Injunction: Malott v. Mersea, 9 0. 
 R. 611; Van Egmond v. Seaforth, 6 O. R. 599; 
 see notes to sec 80 ante. Was damage caused by 
 negligent construction or vis major: McArthur v. 
 Collingwood, 9 0. R. 368. No damage for doing a 
 lawful act unless in a negligent manner: Preston 
 v. Camden, 14 A. R. 85. Unlawful act ; compensat- 
 ing benefit: Northwood v. Raleigh, 3 0. R. 347. 
 A tenant may recover damages suffered during his 
 occupation from construction of drainage work, his 
 rights resting on the same foundation as those of 
 a freeholder: Hiles v. Ellice, 23 S. C. R. 429. 
 Where a scheme of drainage work under a valid by- 
 law proves defective and the work has not been pro- 
 perly performed, the municipality is not liable to 
 persons whose lands are damaged as tort-feasors, 
 but are liable under the Act for damage done in 
 the construction or consequent thereto: Hiles v. 
 Ellice, 20 A. R. 225, 23 S. C. R. 429. The plaintiffs 
 were at liberty to take proceedings under this sec- 
 tion as often as damages should arise in the future 
 until a remedy should be provided to prevent their 
 recurrence : Wigle v. Grosfield, 7 0. L. R. 302. Persons 
 
CHAPTER 198. 
 
 1133 
 
 whose lands are injuriously affected by the non-op- 
 eration or imperfect or negligent operation of pump- 
 ing machinery constructed under the Act are entitled 
 to damages. Where damages were recovered for 
 neglect to efficiently operate a pumping plant, one- 
 half was assessed on the general funds of the town- 
 ship and one-half on the area benefited: Bradley 
 v. Raleigh, 10 0. L. R. 201; see also Weber v. 
 Berlin, 8 0. L. R: 302. An action for damages in- 
 curred before the division of a township in respect 
 of drainage works, part of the area of which was in 
 each township, must be brought against both town- 
 ships and not against the one where the plaintiff's 
 land lies : Wigle v. Gosfield South, 1 0. L. R. 519. 
 Where a drain was completed and a township sub- 
 sequently divided into two, the plaintiff's claim for 
 damages was against both new townships jointly, and 
 was confined to damages which had arisen within two 
 years : Wigle v. Gosfield, 7 0. L. R. 302. The provision 
 in the former section requiring notice was held direc- 
 tory and not imperative. A notice that the claim was 
 for damages sustained ' ' by reason of the enlarge- 
 ment and construction " of the drain in question, 
 is sufficient to support a claim for damages for 
 interference because of the drain, to part of the 
 claimant's farm : Thackeray v. Raleigh, 25 A. R. 226. 
 Compensation for damages by water overflowing on 
 lands: McLaughlan v. Plympton, 18 0. L. R. 417, 2 
 0. W. N. 845. Action against municipal corporation 
 for turning water on plaintiff's land: McMulkin 
 v. Oxford, 15 0. W. R. 294, 1 0. W. N. 410. 
 This section deals only with cases of damages oc- 
 casioned to others by reason of the construction 
 of the drainage works and does not refer to 
 the claim of a contractor or workman to be paid 
 for work performed: Bank of Ottawa v. Rox- 
 borough, 18 0. L. R. 511. The claim of a civil 
 engineer for a balance due him for preparing plans, 
 estimates, etc., for draining certain lands, does not 
 fall within this provision: Moore v.. March, 14 0. 
 W. R. 1066, 1 0. W. N. 206, and see further, 14 
 0. W. R. 1194, 1 0. W. N. 38. Purview and inten- 
 tion of amendment of 1901: Burke v. Tilbury 
 North, 13 0. L. R. 225, 8 0. L. R. 457, 862; Bank 
 of Ottawa v. Roxborough, 11 0- W. R. 320, 1106. 
 Matters not to be brought before the referee: 
 
H34 CHAPTER 198. 
 
 Wigle v. Gosfield, 3 0. W. N. 708, 21 0. W. E. 483, 
 25 0. L. E. 646. The tariff made applicable by sec. 
 119 only refers to actions which ought properly to be 
 instituted by notice under this section and not to ac- 
 tions which might properly be brought notwithstand- 
 ing the Drainage Act, e.g., claims under the former 
 sec. 94 : McCullough v. Caledonia, 19 P. E. 115. Costs 
 of proceedings under see. 98 on County Court scale : 
 see Moke v. Osnabruck, 19 P. E. 117; Fewster v. 
 Ealeigh, 31 C. L. J. 287; see sec 119. Attacking 
 validity of petition: see also notes to sec. 26; Man- 
 damus, see notes to sec. 80. Costs in drainage cases : 
 see H. & L. notes, p. 1014. 
 
 39. Comment on this section and on cases of flooding 
 land within and not within provisions of Muni- 
 cipal Drainage Act: Wigle v. Grosfteld. 3 O. W. 
 N. 708, 21 O. W. E. 483,. 25 O. L. E. 646. As to 
 construction of sewers by local municipalities and 
 damages arising: see E. S. 0. 1914, eh. 192, sec, 
 398 (7) and notes. Former sec. 94 provided for 
 reference of certain matters to the Eeferee. For 
 consideration of this, see Sage v. West Oxford, 22 
 0. E. 679. 
 
 101. The assessment of damages and costs recovered by 
 a person complaining of a defective system of 
 drainage must be made only against the lands in- 
 cluded in the drainage scheme complained of: Ee 
 McClure and Brooke, 11 0. L. E. 115. 
 
 103. A Drainage Eeferee in trying an action may pro- 
 ceed partly on view but in doing so must follow 
 strictly the provisions of the Act and not make the 
 view without appointment or notice to the parties. 
 If he do proceed however, his finding, though based 
 partly on view, may be upheld if the evidence sup- 
 ports it: McKim v. East Luther, 1 0. L. E. 89. 
 
 112. Where actions were begun in the High Court and 
 were referred at the trial to the Drainage Eeferee, 
 and upon appeal from his report an order was 
 made for taxation and payment of costs, it was 
 held that these were costs taxable in the usual way 
 in which costs of actions are taxed and subject to 
 the same right of appeal : Crooks v. Ellice, 16 P. 
 
CHAPTER 199. ^35 
 
 E. 553. Costs in drainage cases : see H. & L. notes, 
 p. 1014. 
 
 116. Appeals: see E. S. 0. 1914, ch. 56, sees. 26 (2), 
 (m). The rules of the High Court are applied as 
 far as possible to reports of the Drainage Eef erees, 
 and Christmas vacation is excluded from the 
 computation of the month within which an appeal 
 is to be made: Ee Ealeigh and Harwich, 18 P. E. 
 73. Appeal from Drainage Eef eree : Ee Bright' and 
 Sarnia, 4 0. W. N. 1535, 24 0. W. E. 817. 
 
 119, The costs of an appeal to the Court of Appeal 
 from the decision of the Drainage Eef eree in a pro- 
 ceeding under the Act initiated before him, should, 
 if awarded either party, be taxed on the scale ap- 
 plicable to appeals in cases begun in the High Court : 
 Ee Metcalfe and Adelaide, 19 P. E. 188, 2 0. L. 
 E. 103. The tariff made applicable by this section 
 refers only to actions which ought properly to be 
 instituted by notice under sec. 98 and not to actions 
 which might properly be brought notwithstanding 
 the Drainage Act : McCullough v. Caledonia, 19 P. 
 E. 115. Costs of proceedings under sec. 98; see 
 Moke v. Osnabruch, 19 P. E. 117; Fewster v. 
 Ealeigh, 31 C. L. J. 287. 
 
 CHAPTEE 199. 
 
 The Municipal Akbitkations Act. 
 
 2. Powers of official arbitrator: see E. S. 0. 1914, ch. 
 56, sec. 86;*ch. 65, sees. 10-14; ch. 192, sec. 332, 
 et seq. Where a submission to arbitration under 
 this Act was silent as to costs, it was held that this 
 section applied and empowered the Arbitrator to 
 deal with them. He having awarded costs to the 
 claimant, the Court refused to interfere: Dalton 
 v. Toronto, 12 0. L. E. 582. 
 
 5. An award for compensation to a land owner for lands 
 injuriously affected is an award which does not 
 
1136 CHAPTERS 200, 201. 
 
 require adoption by the council, but is subject to 
 appeal to the High Court. Where it is not shewn 
 that such an award has been filed, or that notice 
 thereof has been served, an objection that an appeal 
 therefrom is not in time cannot prevail: Ee Mc- 
 Lellan and Chinguaconsy, 18 P. B. 246. 
 
 7. Time within which appeal must be launched: Ee 
 Ketchum and Ottawa, 4 0. W. N. 828, 24 0. W. E. 
 113. Practice as to appeals laid down here governs 
 appeals in respect of an award of compensation to 
 a land owner for lands injuriously affected by work 
 done by a municipal corporation: Ee McLellan 
 and Chinguaconsy, 18 P. E. 246 ; see E. S. 0. 1914, 
 ch. 56, sees. 23 (2), (f). 
 
 CHAPTEE 200. 
 
 The Municipal and School Accounts Audit Act. 
 
 16. A person appointed by the Provincial Auditor under 
 this Act to audit the accounts of a municipality has 
 no action against the municipality for his fees 
 until three months after the amount has been 
 determined by the Provincial Auditor with " the 
 approval 'of the Attorney-General or other min- 
 ister," as provided in sec. 16. The approval by the 
 Attorney-General of a tariff according to which 
 fees were made up and allowed by the Provincial 
 Auditor is not sufficient: Williamson v. Elizabeth- 
 town, 8 0. IL. E. 181. 
 
 CHAPTEE 201. 
 The Firemen's Exemption Act. 
 
CHAPTER 202. 1I37 
 
 CHAPTEE 202. 
 
 The Public Libraries Act. 
 
 3. See E. S. 0. 1914, ch. 192, sec. 398 (17), notes. 
 
 12. "When a public body is requested to perform a statu- 
 tory duty the practice in England is to move for 
 a prerogative writ of mandamus. Here, under 
 the provisions governing applications of a sum- 
 mary nature, where an application was made 
 in an action to compel a city to levy a special 
 rate for library purposes, the affidavits were 
 directed to be resworn and intituled in an applica- 
 tion — not in an action — for a prerogative writ: 
 Toronto Pub. Lib. Board v. Toronto, 19 P. E. 329. 
 Where a mechanics' institute was converted into a 
 , public library, and a board organized under this 
 Act, a grant for the purchase of a site was made 
 by by-law without the assent of the electors either 
 to the appointment of the board or the grant. The 
 by-law was held valid, notwithstanding former sec. 18 
 E. S. 0. 1897, ch. 232, which it was held, might have 
 its full and legitimate scope by being applied to the 
 raising of ways and means by the requisitionary 
 powers entrusted: Hunt v. Palmerston, 5 0. L. E. 
 76. The power to grant aid tc> free libraries _ is 
 absolutely in the hands of the local municipality 
 under the general provisions of the Municipal Act : 
 Hunt v. Palmerston, 5 0. L. E. 76; see E. S. 
 - 1914, ch. 192, sec. 398 (17). 
 
 S.A.— 72 
 
2138 CHAPTER 208. 
 
 CHAPTER 203. 
 The Public Pabks Act. 
 
 2. Application of this Act to City of Ottawa: see 2 
 
 Edw. VII., ch. 54; see Ee Jones and Ottawa, 9 0. 
 W. R. 323. 
 
 3. A municipal corporation, owner of a public park and 
 
 building therein, is not liable to a mere licensee for 
 personal injuries sustained owing te the want of 
 repair of such building, at all events where know- 
 ledge of the want of repair is not shewn : Sehmidt 
 v. Berlin, 26 0. R. 54; see Graham v. Commis- 
 sioners of Queen Victoria Niagara Falls Park, 28 
 0. R. 1. The liability, if any, on the part of the 
 city in regard to park roads does not extend beyond 
 keeping the roadway in repair and free from 
 dangerous pitfalls and obstructions of which they 
 have or may be deemed to have notice : Marshall 
 v. Industrial Exhibition, 1 0. L. R. 319. The prin- 
 ciples which determine liability for negligence are 
 to be drawn from cases as to the permissive use 
 of premises rather than those of invitation to use 
 and come upon the property of another: Moore v. 
 Toronto, 26 0. R.. 59 (n). A municipality owes no 
 duty to maintain, or efficiently maintain, a gate at a 
 railway crossing at a park entrance in respect of 
 persons driving through the park and desiring to 
 pass over the railway to a highway: Soulsby v. 
 Toronto, 15 0. L. R. 13. There is no liability on the 
 part of the Park Commissioners at Niagara Falls 
 .to the public using the highways by reason of the 
 absence or insufficiency of a railing or barrier at 
 the edge of a cliff, there being no statutory liability 
 in that behalf imposed on them. This quite irre- 
 spective of the Commissioners being servants of 
 the Crown: Graham v. Commissioners for Queen 
 Victoria Niagara Falls Park, 28 0. R. 1. 
 
 11. Under this, a corporation can pass a by-law prevent- 
 ing public preaching in a park on the Sabbath day. 
 Such a by-law is not unreasonable, violates no 
 
CHAPTER 208. 
 
 1139 
 
 constitutional rights and is not bad for uncertainty 
 as to the day of the week intended: Ee Cribbin 
 and Toronto, 21 0. E. 325. 
 
 12. Consideration of this section in the light of the 
 Mortmain Acts : see Ee Battershall, 10 0. W. E. 
 933. 
 
 13. "Where a municipality takes proceedings under the 
 Act to form a board of park management for doing 
 the various matters authorized, including the pur- 
 chase by the board of the lands required, such board 
 becomes the statutory agent of the municipality 
 and the municipality, not the board, must pay for 
 the lands: McViear v. Port Arthur, 26 0. E. 391. 
 
 18. Park Commissioners in the exercise of their bona 
 fide discretion have the right to enter into contracts 
 for the purchase of park lands, and the city, so long 
 as the statutory limit is not exceeded, is bound to 
 provide the purchase money, (Osier and Maclennan, 
 JJ.A., dissenting) : Ottawa v. Keefer, 23 A. E. 386. 
 The purchase money for park lands may be raised 
 by a special issue of debentures or may be paid 
 out of the general funds of the municipality, which 
 is liable to pay whether the debentures specially 
 issued have been sold or not: Mc Vicar v. Port 
 Arthur, 26 0. E. 391 
 
H40 CHAPTER 204. 
 
 CHAPTER 204. 
 
 'The Public Utilities Act. 
 
 3. Submission to electors of by-law to sell water power : 
 Abbott v. Trenton, 1. 0. W. N. 218, 14 0. W. R. 
 1101; see also Smith v. Hamilton, 13 0. W. R. 66. 
 Property acquired by tbe corporation of a town, 
 under special Act, situate in a neighbouring town- 
 ship, consisting of land, machinery and plant of 
 electric light and power works, is exempt from 
 taxation by the township corporation: Orillia v. 
 Matchedash, 7 O. L. R. 389. Acquiring water 
 rights; arbitration: see Re Fieldmarshall and 
 Beamsville, 11 0. L. R. 472. 
 
 10. See Atty. Gen. for Canada v. Toronto, 20 0. R. 19, 
 18 A. R. 622, 23 S. C. R. 514; note to sec. 26 post. 
 
 13. In actions by consumers of water against a muni- 
 cipal corporation for not providing a proper supply 
 of pure water, and allowing the water supplied to 
 become impregnated with sand, damaging the plain- 
 tiff's elevators, there is no right of action in the 
 plaintiff by reason of any statutory obligation on 
 the part of the defendants — the relation is rather 
 . that of licensor and licensee: Scottish Land Co. 
 v. Toronto, 29 0. R. 459, 26 A. R. 345. 
 
 18. Assent of electors to by-law: see Smith v. Hamil- 
 
 ton, 13 0. W. R. 66. By-law for construction of 
 electric light works : Cartwright v. Napanee, 11 0. 
 L. R. 61 ; and see R. S. 0. 1914, ch. 205. 
 
 19. In line 1 for " requires " read " acquire:" 4 Geo. V. 
 ch. 2, Schedule (34). 
 
 26. A corporation passed a by-law providing for 50 
 per cent reduction on water rates paid within first 
 two months of the half year " save and except in 
 the case of government and other institutions which 
 are exempt from city taxes in which case the said 
 provisions as to discount shall not apply." Held 
 that the post office and customs house were within 
 
CHAPTER 204. 
 
 1141 
 
 the by-law; that the price paid as water rates was 
 not taxes but the price of water sold; that the by- 
 law was not invalid as discriminating against the 
 Crown, but held by the Supreme Court, that the 
 rates imposed must be uniform and that the by- 
 law was invalid as regards such exception: Atty. 
 Gen. for Canada v. Toronto, 20 0. E. 19, 18 A. *R. 
 622, 23 S. C. E. 514. The rates must be uniform to 
 all consumers save as provided by express legisla- 
 tive authority: Atty. Gen. of Canada v. Toronto, 
 23 S. C. E. 514; Hamilton Distillery v. Hamilton, 
 10 0. L. E. 280, 12 O. L. E. 75. Eight of ratepayer 
 to compel municipal corporation to collect water 
 rates : Norfolk v. Eoberts, 4 0. W. N. 1231. 
 
 29. Date of commencement: Glynn v. Niagara Falls, 
 5 0. W. N. 285. 
 
 33. Where lands were acquired, as expressed in the deed 
 
 of conveyance, for water works purposes and cer- 
 tain special conditions, but no provision that the 
 lands should not be put to any other use and no 
 condition making the grant void upon the happen- 
 ing of any subsequent event, it was held that the 
 corporation took the lands in fee, unincumbered by 
 any restriction and under this section, could dis- 
 pose of them: McLean v. St. Thomas, 23 0. E. 
 114. 
 
 34. Liability of municipality in respect of plant in 
 charge of board of commissioners ; statutory agent : 
 Young v. Gravenhurst, 17 0. W. E. 491, 19 0. W. 
 E. 925, 2 0. W. N. 262, 3 0. W. N. 10, 22 0. L. E. 
 291, 24 0. L. E. 467; Mersey Docks Trustees v. 
 Gibbs, L. E. 1 H. L. 93. Substantial compliance with 
 the statute: Brown v. Weir, 3 0. W. N. 385, 20 
 0. W. E. 665. Members of municipal light com- 
 mission can be examined under Con. Eule 439 (a), 
 1913 Eule 327 : Young v. Gravenhurst, 22 0. L. E. 
 291, 24 0. L. E. 467. 
 
 36. Liability of municipality for body created by this 
 statute: Young v. Gravenhurst, 22 0. L. R. 291, 
 24 0. L. E. 469. Disqualification of commissioner. 
 E. ex rel. Gardhouse v. Irwin, 4 0. W. N. 1043, 
 1097, 24 0. W. E. 466. 
 
;Q42 CHAPTER 204. 
 
 38. Salary. Barclay v. Whitby, 11 0. W. B. 200. 
 
 51. See the Municipal Franchises Act, R. S. 0. 1914, ch. 
 197. Duty cast on public utility corporation in break- 
 ing up a street not to cause escape of gas which may 
 be dangerous : Ballentine v. Ontario Pipe Line Co., 
 12 0. W. B. 273, 16 0. L. B. 654. Nuisance to ad- 
 joining property caused in exercise of powers of 
 public ultility corporation : Hopkin v. Hamilton Elec- 
 tric, 2 0. L. B. 240, 4 0. L. B. 258. Liability of cor- 
 poration and gas company where accident happened 
 through non-repair of street, due to trench dug by 
 gas company : Mclntyre v. Lindsay, 4 O. L. B. 448. 
 
 Powers of company to place poles and wires on high- 
 way : Bueke v. New Liskeard, 1 0. W. N. 123. Power 
 to erect poles for electric wires in streets under Act 
 of Incorporation ; position of municipality : Toronto 
 and N. Power Co. v. North Toronto, 1912, A, C. 834. 
 See Municipal Franchises Act, B. S. 0. 1914, ch. 
 197. See also ch. 192, sec. 399 (50), (51), notes. 
 
 There is an absolute duty cast on municipal corpora- 
 tion by 3 Edw. VII., ch. 19, sec. 606, B. S. 0. 1914, 
 ch. 192, sec. 460, to keep highways in repair, and they 
 cannot divest themselves of it by requiring public 
 utility corporations to assume it. Such a company 
 may have a right to dig up the highway, but in giving 
 that authority the municipality does not free itself 
 from its statutory liability: Mclntyre v. Lindsay, 4 
 0. L. E. 448; Stilliway v. Toronto, 20 0. E. 98. Lia- 
 bility of company operating a public utility : It must 
 exercise its powers in respect of its works so as not 
 to commit a nuisance : Hopkin v. Hamilton Electric, 
 2 0. L. B. 240, 4 0. L B. 258; Gareau v. Montreal St. 
 By., 31 S. C. B. 463 ; as to railways see : London and 
 Brighton By. v. Truman, 11 App. Cas. 45 ; Bapier v. 
 London Tramways, 1893, 2 Ch. 588. See B, S. 0. 
 1914, ch. 192, sec. 460 (7), and cases noted there. 
 See also ch. 178, Part XII., and notes. 
 
 Municipality operating water works is liable for 
 negligence of its servants in the performance of their 
 duties : Shaw v. Winnipeg, 19 Man. L. B, 234 ; Hes- 
 keth v. Toronto, 25 A. B. 449 ; Garbutt v. Winnipeg, 
 18 M. B. 345. A municipality is not bound to under- 
 take such works as supplying electric power for light 
 
CHAPTER 204. ^43 
 
 or other purposes, but in doing so, it is in the same 
 position to its customers and others, and under the 
 same obligation as to care as a private individual or 
 ordinary company so contracting : Young v. Graven- 
 hurst, 22 0. L. B. 291, 24 0. L. E. 467. The degree 
 of care and skill required is commensurate with the 
 danger, and it is no excuse to say that the system is 
 old: Young v. Gravenhurst, 22 0. L. E. 291, 24 0. L. 
 E. 467 ; Eoyal Electric €o. v. Heve, 32 S. C. E. 462, 
 and see ante, E. S. 0. 1914, ch. 146, sec. 3, note 
 " Electricity and Electric "Wires." 
 
 53. Gas company supplying natural gas: Harmer v. 
 Brantford Gas Co. 13 0. W. E. 873. 
 
 54. Measure of damages where property take in emi- 
 nent domain proceeding: 1 D. L. E. 508. Acquisition 
 of land without consent of owner under Eailway Act : 
 see E. S. 0. 1914, ch. 185, sees. 81 et seq., and notes 
 to these sections. See also Expropriation Act, E. S. 
 C. 143, and the expropriation sections of Dominion 
 Eailway Act, E. S. C, 37, sec. 172 et seq. Eight of 
 expropriation by timber slide companies, see E. S. 0. 
 1914, ch. 181, and especially sees. 23 and 26. Expro- 
 priation under this Act, see sees. 5 (4) (municipal 
 waterworks) ; sec. 19 (municipal utility works other 
 than waterworks) ; sec. 54 (conditions precedent to 
 public utility company expropriating). As to ex- 
 propriation and compensation under the Municipal 
 Act, see E. S. 0. 1914, ch. 192, sec. 321 et seq. Powers 
 of companies operating public utilities to expropriate 
 lands without owner's consent: see E. S. 0. 178, sec. 
 166. 
 
 59.— (1) The provisions of sees. 445 and 446 of E. S. 
 0. 223, apply to awards made under this section: 
 Ee •Cornwall, 30 0. E. 18; see now E. S. 0. 1914, 
 ch. 192, sees. 328, 329. There was no power of 
 expropriation conferred under the Conmee Act: 
 (see 3 Edw. VII., ch. 19, sec. 566) ; Sarnia Gas Co. 
 v. Sarnia, 22 0. W. E. 558, 3 0. W. N. 1455. (See 
 same case, 5 0. W. N. 532). 
 
 59.— (2) By agreement between the city of Kingston and 
 the company, the city was to have the option of ac- 
 quiring " the works, plant, appliances and property 
 
1144 CHAPTER 205. 
 
 of the company." The arbitrators rightly did not 
 include anything for earning power or franchise. 
 Also there being an agreement and not an expro- 
 priation the 10 per cent, clause had no application: 
 Ee Kingston, 3 0. L. E. 637. Omission to serve 
 notice on the mortgagees of arbitration proceed- 
 ings and in which the award was less than their 
 claim, does not' entitle the company to have the 
 award referred back and the mortgagees made 
 parties. In such an arbitration the arbitrators 
 simply are to value the existing property of the 
 company at the sum it would cost to erect the works 
 and purchase the property, allowing for wear and 
 tear and perhaps for necessary experimental outlay. 
 They are not to make any allowance for future 
 profits or for taking away the right to supply water 
 at a profit. Interest is allowable on the outlay 
 during construction but not after completion while 
 the revenue is less than the expenditure: Ee 
 Cornwall, 29 0. E. 350; see also (S. C.) 27 A. E. 48. 
 
 59. — (4) Upon the making of the award and passing the 
 by-law for raising the amount of it, the corporation 
 are entitled to possession. The 6 months referred 
 to in sub-sec. (6) must have elapsed before action 
 can be brought to'recover possession by the com- 
 pany: Ee Cornwall, 29 0. E. 605, and see (S. C.) 
 27 A. E. 48. 
 
 CHAPTEE 205. 
 
 The Municipal, Electric Contracts Act. 
 
 2. See E. S. 0. 1914, ch. 192, sec. 260, et seq. Contract 
 for supply of electric light : Hogan v. Brantf ord, 1 
 0. W. N. 226, 14 0. W. E. 1117. Assent of electors: 
 see Smith v. Hamilton, 13 0. W. E. 66. 
 
CHAPTERS 206, 207. -Q45 
 
 CHAPTEE 206. 
 The Highway Travel Act. 
 
 2. See also E. S. 0. 1914, chs. 207, 212 and notes. 
 
 3. Not allowing free passage for overtaking vehicle: 
 
 Nuttall v. Pickering, 1913, 1 K. B. 14. Obstruction 
 of highway by automobile: Mclntyre v. Coate, 13 
 O. W. E. 1101, 19 O. L. E. 9. 
 
 5. See the provisions of the Traction Engines Act, E. S. 
 0. 1914, ch. 212. 
 
 7. See Criminal Code, sec. 285. 
 
 14. Mattei v. Gillies, 16 0. L. E. 588, 11 0. W. E. 1083. 
 
 CHAPTEE 207. 
 
 The Motoe Vehicles Act.' 
 
 Eefer to Babbit on Motor Cars; Huddy on Auto- 
 mobiles ; Law relating to Automobiles : see article 41, 
 Can. Law Journal, p. 820 ; ' ' Eecent Motor Car De- 
 cisions " (Law Times): see 45 Can. Law Journal, 
 p. 427. 
 
 1. See E. S. 0. 1914, chs. 206, 212 and notes. 
 
 6. Section considered: Marshall v. (rowans, 24 0. L. 
 E. 522. What amounts to violation of this pro- 
 vision: Wynne v. Dalby, 4 0. W. N. 1330, 5 0. 
 W. N. 487, 29 0. L. E. 62. Violation by driver of 
 this section; liability of owners: Bernstein v. 
 Lynch, 4 0. W. N. 1005, 28.0. L. E. 435. Failure 
 to give statutory warning: Maitland v. Mackenzie, 
 4 O. W. K 1059. The rule that persons lawfully 
 using a highway are entitled to rely on the warnings 
 required by statute (as, e.g., from railway engines) 
 
1146 CHAPTER 207. 
 
 is applicable where the statute requires from motor 
 vehicles warning by light or by sound: T. G. T. 
 Corporation v. Dunn, 15 W. L. E. 314, 
 
 7. Onus : Mitchell v. Heintzman, 4 0. W. N. 636, 23 0. 
 
 W. E. 763. 
 
 8. Using motor without . light or number : Printz v. 
 
 Sewell, 1912, 2 K. B. 511. 
 
 10. Speed limit: Fisher v. Murphy, 3 0. W. N. 150, 
 20 0. W. E. 201; Verrall v. Dom. Automobile Co., 
 20 0. W. E. 178. 3 0. W. N. 108, 24 L. E. 551. 
 
 11. Driving at excessive speed; evidence of identity: 
 Beresford v. St. Albans, 22 T. L. E. 1. Opinion as 
 to speed; stop watch: Plancq v. Marks, 22 T. L. 
 E. 432. Eeckless driving of motor car: Tronghton 
 v. Manning, 20 Cox C. C. 861, 21 T. L. E. 408. 
 Speed limit in park; sufficient notice: Musgrave 
 v. Rennison, 20 Cox C. C. 874, 21 T. L. E. 600. 
 Evidence as to traffic usually on the road: Elwes 
 v. Hopkins, 1906, 2 K. B. 1. 
 
 15. Evidence to go to jury as to violation of this section : 
 Wynne v. Dalby, 29 O. L. E. 62, 4 0. W. N. 1330, 
 5 O. W. N. 487. 
 
 16. It is manifest from this section that the legislature 
 
 consider an automobile while in motion likely to 
 frighten horses: Mclntyre v. Coote, 13 0. W. E. 
 1098, 19 0. L. E. 9. Injury to traveller on high- 
 way; frightening horse; failure to reduce speed: 
 Smith v. Brenner, 12 0. W. E. 9, 1197. Injury to 
 bicyclist by motor car: Haverstick v. Emory, 8 
 O. W. E. 528. 
 
 19. Liability of " owner " where unpaid vendor retains 
 legal title and purchaser in possession and control: 
 Wynne v. Dalby, 29 0. L. E. 62, 4 0. W. N. 1330, 
 5 0. W. N. 487. The meaning of the statute is 
 that the owner of .a motor vehicle is liable -in dam- 
 ages for any damage done by his vehicle in viola- 
 tion of the Act or regulation of the Lieutenant 
 Governor in Council: Lowery v. Thompson, 5 0. 
 W. N. 240; see also Verrall v. Dom. Auto. Co., 24 
 
CHAPTER 208. 
 
 1147 
 
 0. L. E. 551. Chauffeur making unauthorized 
 detour; master's responsibility for violation of 
 Act: Smith v. Brenner, 12 0. W. E. 9, 1197. The 
 owner of a motor for which a permit is % issued is 
 responsible, not only in regard to fines and penalties 
 imposed by the Act, but for damages for violation 
 of the Act or any regulation provided by Order in 
 Council: Mattei v. Gillies, 11 0. W- E. 1083, 16 0. 
 L. E. 558. The chauffeur is regarded as the alter 
 ego of the owner, and the latter is liable for his 
 negligence in all cases when the use of the vehicle 
 is with permission, though he may be out on an 
 errand of his own: Mattei v. Gillies, 16 0. L. E. 
 558. Liability of owner for chauffeur's acts: 
 Bernstein v. Lynch, 4 0. W. N. 1005, 28 0. L. E. 435. 
 , rEesponsibility attaching to use of automobiles con- 
 sidered: Campbell v. Pugsley, 7 D. L. E. 177, 180. 
 Comment on Campbell v. Pugsley, 7 D. L. E. 177, see 
 49 C. L. J. 34. Owner refusing to give information 
 as to driver of car by whom offence committed : Ex 
 p. Beecham, 1913, 3 K. B. 45. 
 
 23. " By reason of a motor vehicle." Construction of 
 section as amended and consideration of statutory 
 presumption, and respective functions of Judge and 
 jury: Maitland v. Mackenzie, 4 0. W. N. 1059, 
 28 O. L. E. 506. Onus — section considered : Marsh- 
 all v. Gowans, 24 0, L. E. 522; Verral v. Dom- 
 inion Auto. Co., 24 0. L. E. 551; Ashick v. Hale, 
 3 Q. W. N. 372, 20 0. W. E. 606 ; Fisher v. Murphy, 
 20 0. W. E. 201, 3 0. W. N. 150; Mattei v. Gillies, 
 11 0. W. E. 1083, 16 0. L. E. 558 ; Mclntyre v. Coate, 
 13 0. W. E. 1098, 19 0. L. E- 9. Bearing of sec. 
 23 on sec. 19: see Lowry v. Thompson, 5 0. W. N. 
 240. Pleading; particulars: Lum Yet v. Hugill, 
 20 0. W. E. 877, 3 0. W. N. 521. 
 
 CHAPTEE 208. 
 The Snow Eoads Act. 
 
1148 CHAPTERS 209, 210. 
 
 CHAPTEE 209. 
 The Tolls Exemption Act. 
 
 CHAPTEE 210. 
 
 The Toll Eoads Act. 
 
 19. A township might have title to a portion of road 
 beyond its territorial limits so as to enable their 
 lessee to collect tolls: Township of Ancaster v. 
 Durrand, 32 C. P. 563. But see as to transfer by 
 a township of road beyond its limits: Smith v. 
 Ancaster, 27 0. E. 276, 23 A. E. 596. 
 
 21. History of section; duties and obligations passing 
 to purchaser: S. Dumfries v. Clark, 14 0. W. E. 
 158. Under sec. 26 of 16 Vic, ch. 190, a municipal 
 corporation to which under 12 Vic, ch. 5, sec. 12, 
 a toll road has been transferred by the Governor 
 in Council, has power to sell the road to an indi- 
 vidual who may exact tolls for the use thereof. 
 The right to purchase is not limited to toll road 
 companies. Tolls can be increased not to exceed 
 the statutory maximum, and the transferee can 
 exact the increased rate and is not limited to suffi- 
 cient to keep the road in repair : Payne v. Caughell, 
 24 A. E. 556. Duty of an individual acquiring 
 a company's road: S. Dumfries v. Clark, 14 G. W. 
 E. 158. 
 
 31. Abandonment of road; right to abandon: Ottawa 
 and Gloucester Eoad Co. v. Ottawa, 4 O. W. N. 
 1015, 24 O. W. E. 344, 984, 5 0. W. N. 57. Devolu- 
 tion of liability for bridge where road abandoned: 
 Ottawa, etc., Eoad Co. v. Ottawa, 5 0. W. N. 57, 24 
 0. W. N. 984. 
 
 35. This section applies not only to toll roads owned or 
 held by private companies or municipal councils, 
 
CHAPTER 210. 1149 
 
 but also to toll roads purchased from the late 
 Province of Canada, and where such roads inter- 
 sect, a mandamus will be granted to compel the 
 issue of tickets referred to: Smith v. Wentworth, 
 26 O. E. 209. 
 
 38. Toll was charged at a check gate and a ticket given 
 for the principal gate through which the traveller 
 intended to pass. This was held proper: Vander- 
 lip v. Smyth, 32 C. P. 60. 
 
 42. A road company constructed a culvert across their 
 
 road which by this section they were required to 
 keep in repair. The culvert was constructed so 
 improperly that the plaintiff was injured; The 
 construction of the culvert was a thing " done in 
 pursuance of the Act and that therefore the time 
 for bringing the action was six months after the 
 fact committed:" (see sec. 66 post) ; "Webb v. 
 Barton, 26 0. E. 343. Eoad acquired by an indivi- 
 dual: S. Dumfries v. Clark, 14 0. W. E. 158. 
 Eesponsibility for maintenance and repair discussed 
 in action for damages : Pow v. West Oxford, 11 0. 
 W. E. 115 at 118. 
 
 43. History and analysis of legislation affecting the 
 
 forfeiture of toll roads: S. Dumfries v. Clark: 
 14 0. W. E. 158, pp. 166, et seq. 
 
 H. The Court cannot substitute its opinion for the 
 report of the proper public officer. Section con- 
 sidered and construed: S. Dumfries v. Clark, 14 
 0. W. E. 158, at p. 162. History of section, lb. 
 
 47. Provisions as to tolls apply to a road company 
 incorporated under special Act so far as to prevent 
 the company from demanding tolls after engineer 
 appointed under statute in that behalf has reported 
 the road out of repair, until he further reports that 
 the road has been put in good and efficient repair, 
 and an action will lie at the suit of the Attorney- 
 General to restrain such collection : Atty. Gen. v. 
 Vaughan Eoad, 21 0. E. 507, 19 A. E. 234, 21 S. C. 
 E. 631. 
 
 49. History and analysis of legislation affecting the 
 forfeiture of toll roads: S. Dumfries v. Clark, 14 
 
1250 CHAPTER 211. 
 
 0. W. E. 158, pp. 166, et seq. Toll road running 
 through two counties aud several minor municipal- 
 ities; procedure: S. Dumfries v. Clark,. 14 O. W. 
 E. 158. Duty to maintain as a public highway: 
 lb. History of sections, lb. 
 
 57. Although a statutory remedy is provided for pass- 
 ing through gates without paying toll, the Court 
 granted an injunction pending the trial on con- 
 sideration of balance of convenience in favour of 
 the road company: Hamilton v. Easpberry, 13 0. 
 E. 466. Demand and refusal of toll at the gate 
 must be pleaded : Enrick v. Yarmouth, 9 0. E. 162. 
 
 66. See Webb v. Barton, 26 0. E. 343, note to sec. 42 
 ante. 
 
 75. — (1) Eoad owned by an individual: Expropriation: 
 South Dumfries v. Clark, 14 O. "W. E. 158. 
 
 76. Consideration of these sections and method of ex- 
 propriation provided. Costs of and parties to ar- 
 bitration incident to expropriation of toll road: 
 Brockville, etc., Eoad Co. v. Leeds and Grenville, 
 5 0. W. N. 362. 
 
 79. Action to recover costs incurred in arbitration under 
 Toll Eoad Expropriation Act (1901) : Northumber- 
 land v. Hamilton, 10 0. L. E. 680. Costs of expro- 
 priation : see Brockville, etc., Eoad Co. v. Leeds and 
 Grenville, 5 0. W. N. 362. 
 
 CHAPTEE 211. 
 
 The Snow Fences Act. 
 
 2. Where an owner, pursuant to a township by-law 
 designed to prevent drifts, removed his existing 
 fence and substituted wire, which under the by- 
 law was to be paid for by the municipality, it was 
 held that the by-law was a conditional offer* and 
 that the owner had fulfilled the required conditions. 
 
CHAPTER 212. Ufa 
 
 The owner was not precluded from suing by sec. 2 
 which only applies where the parties are unable 
 to agree — but here the council repudiated all 
 liability: Brohm v. Somerville, 11 0. L. R. 588. 
 The provisions of this Act shew the mind of the 
 legislature to be favourable to the maintenance of 
 open highways in a condition to be readily and 
 safely travelled upon in the winter. Municipalities 
 cannot neglect the measures they are thus entitled 
 to take and ask to be excused from liability for 
 damages sustained by reason of their default: per 
 Moss, C.J.O., Hogg v. Brooke, 7 0. L. R. 273, at 
 pp. 281-2, see also p. 285. 
 
 CHAPTER 212. 
 The Tbaction Engines Act. 
 
 4. See R. S. 0. 1914, ch. 192, sec. 400 (49) as to powers 
 
 of cities and towns to prohibit the use of traction 
 engines on certain streets. See R. S. O. 1914, ch. 
 206, sec. 5, (The Highway Travel Act), as to portable 
 and traction engines meeting or overtaking vehicles. 
 
 5. An engine used for the purpose of operating a 
 
 thresher or grain separator was not a " traction 
 engine," and a municipality was bound to keep its 
 bridges in such a condition that they would bear the 
 weight of such an engine : Pattison v. Wainfleet, 22 
 Occ. N. 364, 1 0. W. R. 407; (but see sub-sees. (3) (4), 
 amendments of 1903-4). The effect of the whole leg- 
 islation is that traction engines, including now those 
 used for threshing purposes, if over 8 (now 10) tons 
 weight, can only use the highway subject to the 
 conditions of this Act; but, if less than 8 (now 10) 
 tons weight, a threshing engine may use the high- 
 way free from the obligations of the Act, but sub- 
 ject to thfr new obligation of laying planks ; while 
 other traction engines, even of less than 8 (10) tons 
 weight, are subject to the provisions of sees. 10 
 (1) and (2) of the original Act: Goodison v. Mc- 
 Nab, 12 O. W. R. 775, 14 O. W. R. 25, 19 0. L. R. 
 
1152 CHAPTERS 213, 214. 
 
 188. The duty imposed on a municipality by E. S. 
 0. 1914, ch. 192, sec 460, is subject to the require- 
 ments of this section as amended in 1903 and 1904: 
 Goodison Thresher Co. v. McNabb, 19 0. L. E. 188, 
 44 S. C. E. 187. Consideration and construction of 
 section, lb. 
 
 CHAPTEE 213. 
 
 Tree Planting Act. 
 
 2. Apart from statute, an owner has no title to trees 
 growing in the street sufficient to enable him to 
 complain of the cutting of them: Hodgins v. 
 Toronto, 19 A. E. 537; see E. S. 0. 1914, ch. 
 192, sec. 487. The proceedings under sec. 487 
 must be by by-law, not by resolution: Ee Allen 
 and Napanee, 4 0. L. E. 582. The statute gives 
 such a special property in trees as to enable an 
 owner to maintain an action against a wrongdoer, 
 to recover damages for cutting down or destroying 
 the trees. The Act covers both planted trees and 
 those of natural growth : Douglas v. Fox, 31 C P. 
 140; see O'Connor v. Nova Scotia Telephone Co., 
 22 S. C. E. 276; see also for construction of Act: 
 Connor v. Middagh, 16 A. E. 356. When branches 
 of trees growing in private grounds overhang the 
 street and are not a nuisance: see Hodgins v. 
 Toronto, 19 A. E. 537. As to right of Park Com- 
 missioner to lop overhanging branches : see E. S. 
 0. 1914, ch. 192, sec. 487, sub-sec. 4. 
 
 CHAPTEE 214. 
 The Travelling Shows Act. 
 
CHAPTER 215. i -j go 
 
 CHAPTER 215. 
 
 The Liqtjob License Act. 
 
 Refer to Saint-Cyr, Liquor License Law (Can.) ; 
 Sinclair. Liquor License Act ; Jelf , Ontario Liqnor 
 License Act.' 
 
 2,—(h) R. v. Lamphier, 12 O. W. R. 685, 17 0. L. R. 
 244. 
 
 2— (*') Liquors; medicines: Rex v. Ing Kon, 10 0. W. 
 / R. 544. Action to recover damages for breach of 
 warranty that ale was non-intoxicating: Stephen- 
 son v. Sahataris Ltd., 5 0. W. N. 483. 
 
 2.—(n) The Magistrate has jurisdiction to determine 
 as a matter of fact whether liquor has been sold in 
 less .quantity than three half pints, and if certiorari 
 were granted, the Court would have no power on 
 a motion to quash the conviction, to review the 
 Magistrate's decision: Regina v. Cnnertv, 26 0. 
 R. 51. 
 
 ?- — (p) 'What amounts to two sales: R. v. Trainor, 2 
 O. W. N. 398, 18 0. W. R. 474. Sale of a quart at 
 a time to fill a three gallon keg, amounts to a sale 
 of three gallons: R. v. Lamphier and Orr, 17 0. 
 L. R. 244. 
 
 5. A Board of License Commissioners is not a body 
 against whom a writ of prohibition will be granted 
 prohibiting them from issuing licenses: Re M. A. 
 Thomas, 26 0. R. 448. The License Commissioners 
 have a wide discretion but it must be exercised judi- 
 cially, and the Court has no power to compel them so 
 to exercise it. Where a board passed a resolution 
 granting a license and afterwards rescinded it in 
 order to grant the license to a subsequent applicant, 
 they were not acting judicially : Haslem v. Schnarr, 
 30 0. R. 89. Action for mandamus and damages: 
 lb. 
 
 S.A.— 73 
 
1154 CHAPTER 215. 
 
 6. — (1) The License Commissioners have no power to 
 pass a resolution restricting the right to sell liquors 
 by providing that none shall be sold to persons who 
 have the habit of drinking to excess, and providing 
 for the suspension of licenses for breach of the re- 
 solution : Eoberts v. Climie, 46 IT. C. E. 264. A re- 
 solution ; of License, Commissioners fixing hours of 
 sale of liquor was upheld. Queere, whether there is 
 power on notice of motion to quash a resolution of 
 this kind : McGill v. License Commissioners of Brant- 
 ford, 21 0. E- 665. A regulation of commissioners 
 requiring the lower half of bar-room windows to be 
 left uncovered during prohibited hours is valid and 
 reasonable : Eegina v. Martin, 21 A. E. 145. A resolu- 
 tion of commissioners prohibiting games of chance 
 on licensed premises is within their powers. Under 
 such a resolution, a hotelkeeper was fined where 
 persons had played euchre on the premises for 
 amusement, the cards being the property of one 
 player : Eex v. Laird, 6 0. L. E. 180. 
 
 6. — (4) Constitutionality of regulations of police and 
 local character for the good government of taverns ; 
 power to enact regulations, thereby to create of- 
 fences and attach penalties : see Hodge v. the Queen, 
 9 App. Cas. 117. Where a Board of License Com- 
 missioners by resolution prohibited gambling or any 
 game of chance on licensed premises, it was held 
 that the provisions of this section should be read 
 into their resolution: E. v. Laird, 6 0. L. E. 180. 
 Where an information charged that the defendant 
 had his bar room open after 10 p.m., contrary to a 
 resolution of the Board of License Commissioners, 
 the defendant signed an admission that the resolu- 
 tion was read over to him and he desired to plead 
 guilty and was convicted, this did not preclude him 
 from objecting to the power of the Commissioners 
 to pass the resolution, but following McGill v. 
 License Commissioners of Brantford, 21 0. E. 655, 
 the objection was overruled: E. v. Farrell, 23 0. R- 
 422. By the conviction, a fine and costs were im- 
 posed, and in default of payment, distress, and in, 
 default of sufficient distress, imprisonmenjt. Held 
 under the combined effect of this Act and the Muni- 
 cipal Act, costs arid imprisonment could be properly 
 imposed: E. v. Farrell, 23 0. E. 422; see E. S. 0. 
 1914, ch. 90, sec. 7. 
 
CHAPTER 215. ^55 
 
 9. See Ee Hassard and Toronto, 11 0. W. B. 684, 1088, 
 12 O. W. E, 49, 16 0. L. E. 500. 
 
 11. The province of Ontario extends to the middle line 
 of the G-reat Lakes, as defined by the treaties of 
 Paris and Ghent. The B. N. A. Act recognizes the 
 territorial divisions of the province into counties 
 and townships. Those bordering on the lakes ex- 
 tend to the boundary of the province. Within their 
 territorial limitations, the provinces have plenary 
 jurisdiction in regard to the traffic in intoxicating 
 liquor and therefore the province had authority to 
 enact this section: Bex. v. Miekleham, 11 0. L. B. 
 366. 
 
 11. — (2) Master of vessel as " occupant:" E. v. Miekle- 
 ham, 11 0. L. E. 366. 
 
 12. — (7) A petition against the granting of " any 
 license " within the polling subdivision for reasons 
 specified in this section (not otherwise specifying 
 any grounds) is insufficient. The petition must be 
 against the granting of a particular license, and 
 some one or more of the reasons given in sub-sec. 
 7 or all of them, must be specifically alleged: Pizer 
 v. Fraser, 17 0. E. 635. 
 
 12.— (12) "Where a license has been granted but not is- 
 sued by a retiring Board of Commissioners, a man- 
 damus will not be issued to compel their successors 
 in office to issue the license where they have re- 
 voked their predecessors' decision: Leeson v. 
 License Commissioners of Dufferin, 19 0. E. 67. 
 
 12.— (13) It is imperative that the petition which is to 
 be filed with the inspector be accompanied by a 
 properly signed certificate of the majority of the 
 electors. The Act does not authorize the granting 
 of such a license contrary to the provisions of the 
 section: Ee Hunter, 24 0. E. 522; see East v. O'Con- 
 nor, 2 O. L. E. 355 ; Bannerman v. Lawyer, 2 0. L. 
 E 355. Signature of certificate: Bannerman v. 
 Lawyer, 2 0. L. E. 355, 45 C. L. J. 484; Be Keeling 
 and Brant, 25 0. L. E. 181. 
 
 13 —(1) License Board under English Acts has no power 
 to renew licenses with a condition: E. v. Dodds, 
 (1905) 2 K. B. 40. 
 
1156 CHAPTER 215. 
 
 13. — (5) "Want of bona fides in amount fixed as license 
 fee, in effect amounting to total prohibition: Ee 
 Eowland and Collingwood, 11 0. W. E. 804, 16 0. L. 
 E. 272. 
 
 14. The granting of a license to one who has no interest 
 
 in the business and is not an occupant' of the pre- 
 mises on which it is carried on, in trust for the true 
 owner and occupant is not a thing permissible un- 
 der the Act : Boucher v. Capital Brewing Co., 9 0. 
 L. E. 266 ; see notes to sees. 21, 48, infra. The per- 
 son receiving a 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 agent for another, who was the 
 real owner of the business: Auffman v. Walter- 
 house, 19 0. E. 186. 
 
 15. See Ee L'Abbe and Blind Eiver, 7 0. L. B. 230. 
 
 17. — (2) An application for an additional tavern license 
 in a locality largely resorted to by summer visitors 
 may be made at any time so long as the license does 
 not extend beyond the prescribed period of six 
 months from the first of May.: Ee M. A. Thomas, 26 
 O. E. 448. 
 
 21. The right to sell liquor at a particular place under 
 license, is not assignable by the holder except under 
 the conditions mentioned in this section. A license 
 cannot be seized under fi. fa. goods: Walsh v. 
 Walper, 3 0. L. E. 158. A covenant in a lease of 
 an hotel that the lessee will apply for licenses, and 
 at the expiry of his term, assign to the lessor the 
 license held by him is not a covenant binding on the 
 assignee of the term: Walsh v. Walper, 3 0. L. E. 
 158. Where the holder of a license enters into part- 
 nership and assigns an interest in his tavern to his 
 partner, this is not an assignment of his business 
 within the meaning of this section and does not re- 
 quire a transfer of license: Westbrook v. Wheeler, 
 25 0. E. 559. The duly licensed tenant of a public 
 house gave up possession. For the next nine days 
 no Sessions sat at which application could be made 
 for a temporary transfer of license and the incom- 
 ing tenant carried on business. This was held to be 
 
CHAPTER 215. 
 
 1157 
 
 a serious offence and not one of a trifling nature: 
 Barnard v. Barton, 75 L. J. K. B. 326, 1906, 1 K. B. 
 357. License Commissioners have no power to say 
 to an applicant for a transfer of a license that if he 
 will put certain premises in a suitable state of re- 
 pair for compliance with the law in the future, they 
 will transfer a license to such premises. They are 
 entitled to act only on the existing facts and not to 
 make promises as to the future: East v. O'Connor, 
 2 0. L. R. 355; Banherman v. Lawyer, 2 0. L. B. 
 355 (note). 
 
 27. Meaning of '' any municipality:" Be Mc&'acken 
 and Sherborne, 23 0. L. R. 81. 
 
 28. Omission of local limits of operation not fatal de- 
 fect. The fact that the by-law was passed by the 
 Council of a city shewed that it must, by reasonable 
 intendment be held operative there. Such a by-law 
 is not unreasonable nor in restraint of trade, since it 
 is passed pursuant to power expressly given by the 
 Legislature: Be Boylan and Toronto, 15 O. R. 13. 
 The by-law need not state the number of inhabi- 
 tants so as to shew on its face that the number of 
 licenses fixed is within the statutory limit. Provi- 
 sions that the by-law should remain in force until 
 altered or repealed, and that every person receiving 
 a shop license should confine the business of his shop 
 exclusively to the selling of liquor are unobjection- ' 
 able. The by-law need not shew on its face that it 
 was passed pursuant to Provincial Legislative 
 authority. It will be judicially regarded as eman- 
 ating from the power which would authorize its 
 passage: Re Croome, 6 0. R. 188. A member of a 
 Municipal Council is disqualified from voting in the 
 Council upon any subject in which he has a per- 
 sonal or pecuniary interest distinct from that which 
 he has as a ratepayer in common with otber rate- 
 payers, e.g., where a member was a mortgagee of a 
 property likely to be affected by a by-law reducing 
 
 -> licenses: Re L'Abbe v. Blind River, 7 0. L. R. 230. 
 The statute provides no form for the by-law. Omit- 
 ting the words " beginning on the first day of May " 
 after the words " ensuing license year " is not a 
 
 "" fatal defect; scope of section considered: Re Cald- 
 well and Gait, 10 0. L. R. 618. The words " in any 
 
H58 CHAPTER 215. 
 
 year " mean " calendar year," not " license year." 
 The by-law must be passed in the months of Janu- 
 ary or February: Re Golden and Ottawa, 28 0. E. 
 387. " Any future license year:" Bourgon v. Cum- 
 berland, 1 O. W. N. 1012, 2 0. W. N. 244, 16 0. W. 
 R. 582, 17 O. W. E. 438, 22 0. L. E. 256. Powers of 
 Council under this section; meaning of " license 
 year:" Ee Hassard and Toronto, 11 0. W. E. 684, 
 1088, 12 O. W. R. 49, 16 0- L. E. 500. Effect of by- 
 law limiting number of licenses where town an- 
 nexed to city: Ee Brewer and Toronto, 13 0. W. E. 
 954, 1087, 19 0. L. E. 411. Impropriety of Council 
 pulling through license reduction by-law when their 
 election is attacked: Martin v. St. Catharines, 13 0. 
 W. E. 559. Although passed in good faith, a by-law 
 limiting the number of licenses in a municipality to 
 one is bad: McCracken v. Sherborne, 16 0. W. E. 
 732, 18 0. W. R. 24, 1 0. W. N. 1091, 2 0. W. N. 601, 
 23 0. L. E. 81. 
 
 30. The provisions as to time of presenting petition 
 certificate, etc., are peremptory: Ee Hunter, 24 0. 
 R. 153, 522. 
 
 33. "Premises to be made suitable:" see East v. 
 
 'Connor, 2 0. L. R. 355 ; Bannerman v. Lawyer, 2 
 0. L. R. 355 (note), see note to sec. 21, ante. 
 
 34. Saloon licenses: see Re Hassard and Toronto, 16 0. 
 L. R. 500. 
 
 40. — (2) See (under former provisions) R. v. Howard, 
 45 U. C. R. 346; R. v. Campbell, 8 P. R. 55. 
 
 42. Resolutions fixing hours of sale valid: McGill v. 
 License Commissioners of Brantford, 21 0. R. 665. 
 Shop licenses : Bourgon v. Cumberland, 1 0. W. N. 
 1012, 2 0. W. N. 244, 16 0. W. R. 582, 17 0. W. R. 
 438, 22 0. L. R. 256. Re Croome, 6 0. R. 188, and 
 notes to sec. 28, ante. 
 
 43. A grocer carried on business at two places, at one 
 
 of which only he was licensed to sell liquor by retail. 
 At the unlicensed premises he solicited business 
 which he executed at the other premises. He was 
 held rightly convicted: Elias v. Dunlop, 1906, 1 K- 
 B. 266, 75 L. J. K. B. 168. 
 
CHAPTER 215. 1159 
 
 44. " Club:" E. v. Cahoon, 17 0. W. B. 467. As to sale 
 of liquor by unincorporated societies : see E. v. Aus- 
 tin, 17 0. E. 743. 
 
 45. The steward of a club, incorporated but having no 
 license, supplied at his own discretion intoxicating 
 liquors to members and" others in exchange for tickets 
 purchaseable by members from the club secretary. 
 The liquors belonged to the club whose charter ex- 
 pressly forbade it to sell liquor. Conviction held 
 good : E. v. Hughes, 29 0. E. 179. The section was 
 held not to justify the conviction of the manager 
 of an incorporated club who has charge or control 
 of the liquor merely in the capacity of manager, 
 the act of keeping being that of the club : E. v. Slat- 
 tery, 26 Q. E. 148. "Where a club was incorporated 
 and authorized to maintain a club house for social 
 purposes, the charter not authorizing the com- 
 pany to have a club house at any other place than 
 that named in the charter, the club secretary, 
 found in possession of and selling liquor at another 
 place, although claimed to be a club constituted un- 
 der the charter, was rightfully convicted: E. v. 
 Charles, 24 0. E. 432. 
 
 48. " Authorizing " him to sell, means to sell in the par- 
 ticular manner and quantities in which he has sold : 
 E. v. Lamphier, 12 0. W. E. 685. Sale under cover 
 of agency: Bowie v. Gilmour, 24 A. E. 254. Holding 
 license as trustee: Boucher v. Capital Brewing Co., 
 9 0. H E. 266 ; see also E. v. Miekleham, 11 0. L. E. 
 366. 
 
 49. Owner not being " occupant," "permit," mens rea: 
 
 E. v. Irish, 13 0. W. E. 769, 18 0. L. E. 351. 
 
 50. Treating or giving liquor to friends by a landlord 
 in a private room in his licensed premises on a Sun- 
 day is an offence, and is covered by the words 
 " other disposal:" Eeg. v. Walsh, 29 0. E. 36. These 
 sections do not authorize the sale of liquor to a 
 lodger in the licensee's house during prohibited 
 hours. The most that can be said is that the sale 
 does not make him an offender : Eeg. v. Southwick, 
 21 0. E.. 670. Only the holder of the license could 
 under E. S. O. 1877, ch. 181, be prosecuted for sell- 
 ing on prohibited days : Eeg. v. Duquette, 9 P, E. 29. 
 
1160 CHAPTER 215. 
 
 For a conviction for selling liquor on Sunday under 
 this section it must have been shewn that the de- 
 fendant had a license or that the place was one where 
 liquors might be sold by wholesale or retail: Eeg. 
 v. Eodwell, 5 0. E. 186. Commissioners' resolutions 
 regulating hours of sale: see McGrill v. Commis- 
 sioners of Brantford, 21 0. B. 665. What amounts 
 to a sufficient appropriation on Saturday of beer to 
 be delivered on Sunday under English Acts : Noblett 
 y. Hopkinson, 1905, 2 K. B. 211. " Disposal " of 
 intoxicating liquor on Sunday : R. v. Clark, 4 G. W. 
 N. 529, 27 0. L. E. 525. " Disposal " of liquor: E. 
 v. Montgomery, 14 0. W. E. 625, 1 0. W. N. 30. Sale 
 of liquor under English Acts to bona fide traveller: 
 Jones V. Jones, 1910, 2 K. B. 262. Necessity for 
 negativing the exception as to medical purposes, and 
 when proceedings can be amended in that regard: 
 E. v. Boomer, 10 0. W. E. 978, 15 0. L. E. 321; E. v. 
 White, 21 C. P. 354; but see Form 6, Nos. 5, 6, and 
 E. S. O. 1914, ch. 90, sec. 5. 
 
 52. "Keeping open " within the meaning of the English 
 Licensing ' Acts : see Metropolitan Police Commis- 
 sioner v. Eoberts, 1904, 1 K. B. 369. 
 
 55. Eeg. V. Southwick, 21 0. E. 670 ; see ante, note to sec. 
 50. 
 
 59. Where a brewing company obtained possession of a 
 liquor business, took a lease of the premises 
 where it was carried on and sold the same to A., 
 taking the license in the name of their manager as 
 security for the purchase money, it was held a con- 
 travention of this section : Boucher v. Capital Brew- 
 ing Co., 9 0. L. E. 266. What constitutes reason for 
 belief that purchaser is not buying to re-sell: E. v. 
 Calcutt Brewing Co., 12 0. W. E. 1045, 17 0. W. E. 
 , 363. 
 
 65. Keeping for sale; Chinese wines: E. v. Sam Lee 
 Hing, 1 0. W. N. 806. Sale of liquor without a 
 license; executory contract: E. v. Lawless, 3 0. W. 
 N. 669, 21 0. W. E. 247. Sale in unlicensed place; 
 sale by servant; scope of employment: see Boyle v. 
 Smith, 75 L. J. K. B. 282, 1906, 1 K. B. 432. A mes- 
 senger for the person who buys liquor is not ' ' sell- 
 ing " liquor: E. v. Davis, 4 0. W. N. 358, 23 0. W. 
 
GHAPTER 215. HQl 
 
 E< 412. Sale by subterfuge: E. v. Eichardson, 20 
 O. E. 514; E. v. Young, 8 0. E. 476. Evidence on 
 charge of keeping liquor for sale without a license : 
 ' E. v. Eeedy, 13 0. W. E. 265, and see sec. 100, infra. 
 Effect on second conviction of change in penalty 
 for the first conviction: E. v. Teasdale, 15 ; . 
 W. E. 242, 397, 1 0. W. N. 398, 486, 20 0. L. 
 E. 382. Proof of prior conviction: see provisions 
 of sec. 88-9 ; see E. v. Farrell, 10 0. W. E. 790. Con- 
 viction; distress; imprisonment: E. v. Degan, 12 0. 
 W. E. 1029, 17 0. L. E. 366. The omission to ascer- 
 tain the costs and insert the amount in the convic- 
 tion is only an irregularity and may be afterwards 
 - rectified: E. v. Irwin> E. v. Pettit, 11 0. "W. E. 728, 
 730, 16 0. L. E. 454. The Court has no power on 
 the return of habeas corpus to amend a conviction 
 for second offence by substituting the maximum 
 penalty prescribed by this section for a first of- 
 fence: E. v. Simmons, 12 0. W. E. 776, 17 0. L. E. 
 239. Application of section 739 of the Criminal 
 Code, E. S- C, 1906, ch. 146, as to award of distress; 
 cases before and since 1892 considered: E. v. Eeid, 
 12 0. W. E. 819, 14 0. W. E. 71; see also E. S. 0. 
 1914, ch. 90. Imprisonment Under several warrants 
 and running of terms of imprisonment : E. v. Degan, 
 17 0. L, E. 366; and see sec; 80, post. 
 
 70. Permitting drunkenness on licensed premises; the 
 
 hour of closing has nothing to do with this offence : 
 
 Lawson v. Edminson, 1908, 2 K. B. 952. Permitting 
 
 drunkenness on the premises : Thompson v. McKen- 
 
 zie, 1908;, 1 K. B. 905. A conviction for delivering 
 
 ' liquor to a person while intoxicated directed im- 
 
 • , prisonment without provision for distress. The 
 
 ' Court On certiorari amended the conviction under 
 
 the provisions of the Summary Convictions Act: 
 
 Eegina v. Flynn, 20 0. E. 638. Covenant to " keep 
 
 and conduct" public house in a proper manner; 
 
 lessee liable for act of under-lessee permitting 
 
 drunkenness and thereby forfeiting the license: 
 
 Palethorpe v. Home Brewery, 1906, 2 K. B. 5. 
 
 72. Proof of age of minor: E. v. Farrell, 1 0. W. N. 
 1045, 16 0. W. E. 630, 21 0. L. E. 540. See also Eex. 
 v. Smith, 11 0. L. E. 279. Power of magistrates to 
 amend information by describing persons to whom 
 
1162 CHAPTER 21&. 
 
 liquor furnished as apparently or to the knowledge 
 of the defendant under age specified. Effect of 
 sections 92, 84: E. v. Ayer, 12 0. W. E. 1223, 17 0. 
 L. E. 509. 
 
 74. Premises covered by license: E. v. Palmer, 46 TJ. C. 
 E. 262. 
 
 75. The powers of a Board of License Commissioners 
 
 to pass resolutions forbidding gambling, etc., on 
 licensed premises under section 6 are not restricted 
 by this section : Eex. v. Laird, 6 0. L. E. 180. 
 
 77. This provision is constitutional under B. N. A. Act, 
 sec. 92, sub-sees. 9, 16 and 15, and is not opposed 
 to sec. 91, sub-sec. 27 : E. Boardman, 30 TJ. C. E. 553. 
 
 79. " Thirty days," one month: E. v. Eudolph, 1 0- W. 
 N. 1057, 16 0. W. N. 723. A conviction for a first 
 offence properly awards imprisonment in default 
 of payment of fine and not in default of sufficient 
 distress: Eeg. v. Hazen, 20 O. E. 633. Imprison- 
 ment in B. N. A. Act, sec. 92, sub-sec. 15, means with 
 or without hard labour : Hodge v. The Queen, 9 App. 
 Cas. 117, 3 Cart. 144; see also E. v. Frawley, 7 A. 
 E. 246, 2 Cart. 576; E. v. Allbright, 9 P. E. 25. 
 Costs : see E. S. 0. 1914, ch. 90, sec. 7, notes. 
 
 80. See E. v. Degan, 17 0. L. E. 366. 
 
 81. Jurisdiction of the County Judge: Ee Hunter, 24 
 
 0. E. 153, 522. The provisions of the section are 
 penal and to be construed strictly. The section ex- 
 tends to a " license issued " contrary to the pro- 
 visions of the Act but not to a license so transferred, 
 and to the licensee and not to the transferee: Ee 
 Dunlop, 22 0. E. 22. 
 
 82.— (2) "Any person:" E. v. Dunkley, 16 0. W. E. 
 263, 1 0. W. N. 861. 
 
 84. This must be read with sec. 92: E. v. O'Connor, 3 
 0. W- N- 840, 21 0. W. E. 691. Adjournments made 
 by Justice before whom information laid prior to 
 trial before Police Magistrate: E. v. Miller, 19 0. 
 L. E. 125. Where information laid within the 30 
 
CHAPTER 215. H63 
 
 days and summons not issued for some months, 
 effect of the words ( ' this day ' ' in the form of sum- 
 mons in the schedule : R. v. Hudgins, 14 0. L. R. 139. 
 
 85. At a trial, a License Commissioner sat at the coun- 
 
 sel's table and afterwards in the constable's chair, 
 a few feet distant from the Magistrate. The evidence 
 did not shew that he interfered improperly with 
 the trial. The provisions of the section were not 
 thereby contravened: R. v. Southwick, 21 0. R. 670. 
 
 86. The reeves of municipalities in unorganized districts 
 
 are ex officio Justices of the Peace in their respec- 
 tive municipalities with power to try alone and con- 
 vict for offences under the Act : R. v. McGowan, 22 
 O. R. 497. The defendant was charged with a 
 breach of the Act in the township of Barton, Went- 
 worth County, and was tried and convicted before 
 the Police Magistrate at Hamilton in the same 
 county. The Police Magistrates' Act gives juris- 
 diction for this : R. v. Gully, 21 0. R. 219. Jurisdic- 
 tion of Police Magistrate over offences in another 
 town: see R. v. Holmes, 14 O. L. R. 124, 9 0, W. R. 
 750; R. v. Farrell, 10 0, W. R. 790; see R. S. 0. 
 1914, chs. 87 and 88, and cases there cited; see also 
 R. v. Irwin; R. v. Pettit, 11 0. W. R. 728, 730, 16 u. 
 L. R. 454. 
 
 87. The license inspector who lays the information is a 
 
 competent witness. An objection that it was not 
 shewn that the evidence was read over to the wit- 
 ness overruled, the maxim omnia presumuntur rite 
 esse acta applying: R. v. Excell, 20 0. R. 633; R. v. 
 Scott, 26 O. R. 646. The direction as to witnesses 
 signing their evidence is not imperative but direc- 
 tory merely: R. v. Scott, 26 0. R. 646. Where there 
 were three informations against one defendant for 
 selling liquor to different persons the evidence must 
 be taken separately: R. v. Lapointe, 3 0. W. N. 1469. 
 No writing necessary where defendant personally 
 admits his guilt- in Court: R. v. Dagenais, 2 0. W. 
 N. 1091 19 0. "W. R. 252, 23 0. L. R. 667. Deposi- 
 tions taken in shorthand and not read over or 
 signed; consent of counsel; cases reviewed: R. v. 
 Leach, 12 0. W. R. 1016; R. v. Fogarty, 12 0. W. R. 
 1026; R. v. Warilow, 12 0. W. R. 789, 17 0. L. R^ 
 
1164 CHAPTER 215. 
 
 643. Power of counsel to accept shorthand repor- 
 ter's notes as final: E. v. Degan, 12 0. W. E. 1047, 
 17 0. L. E. 366. Where the depositions returned 
 failed to shew any proof of a previous conviction, 
 the Magistrate's affidavit that such proof had been 
 duly given could not be received : E. v. Farrell, 15 
 0. L. E. 100. Taking down evidence is for the pro- 
 tection of the Magistrate and as a record of the 
 material on which the conviction is founded, the 
 Court being bound by sueh evidence and without 
 power to remit the case back to the Magistrates 
 to take further evidence: E. v. Brisbois, 10 0. 
 W. E. 869, 15.0. L. E. 264. See also E. v. Ir- 
 win, 11 0. W. E. 728, 
 
 87._(l) Compare E. S. 0. 1914, ch. 90 and Criminal 
 Code sections which apply. 
 
 88.— (1) The effect of the amendment of 1909 striking 
 out the words " and not before " is to make the 
 provision directory: E. v. Graves, 21 0. L. E. 329, 
 16 0. W. E. 372, 1 0. W. N. 787. " And not before." 
 Effect of striking these words out : E. v. Coote, 22 
 0. L. E. 269. There is nothing to forbid the Magis- 
 trates who heard and convicted on the first charge 
 to try the second : E. v. Eeid, 12 0. W. E. 819, 17 0. 
 L. E. 578; E. v. Willman, 12 0. W. E. 822, 17 0. L. 
 E. 583. A conviction of the defendant for a third 
 offence was quashed on the ground that the con- 
 victing Magistrate had improperly admitted evi- 
 dence of previous convictions before the determin- 
 ation of the defendant's guilt on the charge against 
 him of the third offence. The jurisdiction of the 
 Magistrate was gone when he admitted the impro- 
 per evidence and his competence not restored by its 
 deletion: Eex. V. Nurse, 7 0. L. E. 418; see also E. 
 v. Edgar, 15 0. E. 142. In a conviction for a second 
 offence the prior conviction was referred to as if 
 being then adjudicated on instead of being stated 
 as a fact found on enquiry after the finding on the 
 charge then before the Magistrates, but which fact 
 (as the evidence shewed) had been So found, the 
 Court refused to interfere, intimating that, if neces- 
 sary the conviction could be amended: E. v. White- 
 sides, 8 0. L. E. 622. Application to department in 
 
CHAPTER 215. 
 
 1165 
 
 mitigation of penalty where suggestion of prior con- 
 viction: E. v. Gilmour, 5 0. W. N. 14. Section con- 
 strued : E. v. Coote, 22 0. L. E. 269. "Where a pre- 
 vious offence is charged, the Magistrate exceeds his 
 powers in taking evidence of any offence but the 
 subsequent offence before he finds the defendant 
 guilty of the subsequent offence: E. v. Vanzyl, 13 
 0. W. E. 485, Jurisdiction of Magistrate to 
 convict in absence of defendant: E. v. Coote, 
 16 0. W, E. 903, 2 0. W. N. 6, 17 0. W. E. 
 470, 2 0. W. N. 229, 22 O. L. E. 269. Where 
 change in penalty for first offence; effect on 
 second offence: E. v. Teasdale, 20 0. L. E. 382, 
 15i 0, W. E. 242, 397, 1 0. W. N. 398, 486. Neces- 
 sity for reciting prior conviction in warrant of com- 
 mitment: E. v. Nelson, 18 0. L. B. 484. Procedure 
 in inquiring as to previous conviction not followed: 
 E. v. Teasdale, 20 0. L. E. 382. 
 
 88. — (2) It is not necessary that the proof of the prior 
 conviction should be>by production of the formal 
 conviction or a certificate thereof, other satisfactory 
 evidence being by the Statute declared sufficient: 
 E. v. McOarry, 31 0. E. 486. Eight of Court 
 to examine proceedings anterior to conviction 
 valid on its face; discussion of procedure on 
 second; conviction; certainty of previous convic- 
 tion and sufficiency of endorsement : E. v. Sim- 
 mons, 12 0. W. E. 776, 17 0. L. E. 239. Proof 
 of prior conviction : see E. v. Farrell, 10 0. W. E. 
 790, 15 0. L. E. 100. Proof of previous conviction; 
 certificate of Magistrate; identity of defendant with 
 person previously convicted : E. v. Leach, 12 0- W. 
 E. 1016. Evidence of previous conviction; certifi- 
 cate put in in absence of accused : E. v. "Warilow, 12 
 0. W. E. 1026. 
 
 88— (3) Two offences on same day: E. v. Dunkley, 16 
 0. W. E. 263, 1 0. W. N. 861. 
 
 88^(4) Where previous conviction not set aside: see 
 E. v. Graves, 21 0. L. E. 329, 16 0. W. E. 372, 1 0. 
 W, N. 787. 
 
 88.— (5) The subsequent offence and the previous offence 
 shall each be an offence in contravention of one of 
 
HQQ CHAPTER 215. 
 
 the sections mentioned: E. v. Simmons, 17 0. L. E. 
 239. 
 
 92. This must be read with sec. 84: E. v. O'Connor, 21 
 
 0. W. E. 691, 3 0. W. N. 840. Power of amend- 
 ment to bring information within wording of sec. 
 72; effect of section 84: E. v. Ayer, 12 0. W. E. 
 1223, 17 0. L. E. 484. Amendment: E. v. Eudolph, 
 16 0. W. E. 723, 1 0. W. N. 1057. Amending in- 
 formation so as to negative the exception as to medi- 
 cal purposes in sec. 50: E. v. Boomer, 15 0. Li. E. 
 321. And see note to E. S. 0. 1914, ch. 90, sec. 5. 
 
 93. Costs ; distress ; commitment in default : E. v. Graves, 
 
 16 0. W. E. 372, 1 0. W. N. 787, 21 O. L. E. 329. 
 This section makes more clear the power to issue 
 distress on non-payment of penalty: E. v. Eeid, 14 
 0. W. E. 153 ; see E. S. 0. 1914, ch. 90, sees. 4 and 7, 
 and notes. 
 
 94. — (1) Application of section 739 of the Criminal 
 Code; award of distress on non-payment of fine. 
 Cases before and after the enactment of this clause 
 of the code (1892) considered: E. v. Eeid, 14 0. W. 
 E. 71. Power to amend information by describing 
 persons to whom liquor furnished as apparently or 
 to the knowledge of the defendant under the age 
 specified; effect of sees. 72, 84 and 92: E. v. Ayer, 
 12 0. W. E. 1223, 17 0. L. E. 509. " Unlawfully " 
 omitted in warrant of commitment: E. v. Graves, 
 16 0. W. E. 372, 1 0. W. N. 787, 21 0. L, E. 329. 
 Amendment of conviction: E. v. Ackers, 16 0. W. 
 E. 105, 1 0. W. N. 780, 21 0. L. E. 187. Warrant of 
 commitment for third offence failing to recite prior 
 conviction cannot be cured under the Criminal Code, 
 sec. 1124, nor under this section: E. v. Nelson, 12 
 0. W. E. 1063, 18 0. L. E. 484. Amendment after 
 . motion launched to quash: E. v. Leonard, 1 0. W. 
 N. 415. Form and amendment of information, and 
 procedure under code sections: see E. v. Hazen, 20 
 0. E. 633; E. v. Alward, 25 A. E. 519. Where the 
 minute of conviction not in accordance with the 
 formal conviction: see E. v. Hartley, 20 0. E. 481; 
 E. v. Eichardson, 20 0. E. 514; Eegina v. South- 
 wick, 21 0. E. 670. It is not a valid objection that 
 the conviction does not state the amount of costs 
 
CHAPTER 215. 
 
 1167 
 
 imposed: Regina v. Clark, 20 O. R. 642; Reg. v. 
 Flynn, 20 0. R. 638. The omission to ascertain the 
 costs and insert the amount in the conviction is 
 only an irregularity and may be afterwards recti- 
 fied : R. v. Irwin, R. v. Pettit, 11 0. W- R. 728, 730, 
 
 16 O. L. R. 454; see R. S. 0. 1914, ch. 90, sec. 7. 
 Power to amend conviction by striking out refer- 
 ence to costs of conveying to prison: R. v. Degan, 
 
 17 0. L. R. 366, and see R. S. 0. 1914, ch. 90, sec. 7 
 (3). As to code provisions applicable: see R. S. 0. 
 1914, ch. 90, sec. 4, and see R. v. Graves, 16 0. W. 
 R. 372, at p. 382, 21 0. L. R. 329. 
 
 94. — (2) The Court has no power on the return of habeas 
 corpus, to amend a conviction for a second offence 
 by substituting the maximum penalty prescribed for 
 a first offence under sec. 65: R. v. Simmons, 12 0. 
 W. R. 776, 17 0. L. R. 239. In order to quash a con- 
 viction there must be no legal evidence of an of- 
 fence. It is not sufficient that the weight of evidence 
 is against the conviction: R. v. McElroy, 5 0. W. 
 N. 284, 25 0. W. R. 279. A conviction for deliver- 
 ing liquor to a person while intoxicated directed 
 imprisonment without provision for distress. The 
 Court amended the conviction: R. v. Flynn, 20 0. 
 R. 638. Though a conviction be good on its face, 
 yet where there is no appeal, the Court will not re- 
 fuse to go into the evidence on a motion to quash: 
 Regina v. Hughes, 29 0. R. 179. Application to 
 quash: see R. S. 0. 1914, ch. 56, sec. 63 and notes. 
 Compare this section as enacted by 6 Edw., ch. 47, 
 sec. 30, with R. S. 0. 1897, ch. 92, sec. 13. Powers of 
 review: R. v. Cook, 12 0. W. R. 829. 
 
 94. — (3) Only applies where evidence has been rejected: 
 R. v. Graves, 16 0. W. R. 372, 1 0. W. N. 787, 21 0. 
 L. R. 329. 
 
 102.— (1) Simulating a licensed house: R. v. Bevan, 4 
 W. N. 400. Effect of plea of guilty: R. v. Dorr, 
 4 0. W. N. 419, 23 0. W. R. 663. 
 
 102.— -(2) This enactment does not relate to liquor which 
 is on the premises, but to liquor which the person 
 has on the premises: R. v. Borin, 5 0. W. N. 412. 
 
1168 CHAPTER 215. 
 
 103. Question, whether this section is limited to of- 
 fences connected with barter, sale and traffic, or if 
 it extends to the refusal of a servant to admit an 
 officer claiming right of search under section 130 ; E. 
 v. Potter, 20 0. E. 516. " Oceupant " now extends to 
 owner, master, captain or other person in charge 
 of a vessel : see E. v. Miekleham, 11 0. L. E. 366, 
 ante, note to sec. 11. Illegal sale by club servant : 
 see B. v. Hodgins, 24 O. E. 433, note ; see also E. v. 
 Slattery, 26 O. E. 148. The defendant was a married 
 woman and the sale of liquor took place in the pre- 
 sence of her husband, but the evidence shewed that 
 she was the more active party and she was the oc- 
 cupant of the premises on which the sale took place. 
 It was held, having regard to this section, that even 
 if the presumption that the sale was made under 
 compulsion had not been removed by the Criminal 
 Code, it would have been rebutted by the circum- 
 stances: E. v. McGregor, 26 0. E. 115. Conviotions 
 of two persons for same offence: see E. v. Boomer, 
 15 O- L. E. 321. Analysis of this section as amended 
 in 1907 and 1908 : E. v. Bradley, 13 0. W. E. 39. 
 " Principal offender:" Eex, v. Pfister, 20 0. W. E. 
 778, 3 0. W, N. 440. " Conclusively guilty:" E. v. 
 Bradley, 20 0. W. E. 33, 3 0. W. N. 58. 
 
 106. Eight to analysis: E. v. Stephenson, 4 0. W. N. 
 272, 23 0. W. E. 269. 
 
 107. The " refusal " to answer any question touching 
 the case means any question which may be law- 
 fully put and which the witness is bound to answer. 
 Any other witness except the defendant, his wife 
 or husband (as the case may be), can avail himself 
 of the protection afforded by E. S. 0. 1914, ch. 76, 
 sec. 6, and if the answer to the question would tend 
 to subject the witness to criminal proceedings or 
 to prosecution for a penalty, he can decline to 
 answer: E. v. Nurse, 2 Can. Cr. Cas., 57; Ee Ask- 
 with, 31 0. E. 150; E. v. Fee, 13 0. E. 590. 
 
 109. Where a sum is allowed the inspector under this 
 section as costs, if wrong in amount, it is severable 
 and cannot affect the conviction: Eex. v. Laird, 6 
 O. L. E. 180. 
 
CHAPTER 215. 
 
 1169 
 
 110. When right to move under Judicature Act, sec. 63, 
 B. S. 0. 1914, ch. 56, and when defendant is de- 
 prived of this right or right of certiorari under 
 former practice : E. v. Cook, 12 0. W. E. 829, 18 0. 
 L. E. 415. Eemedy hy appeal: see as to summary 
 motions and certiorari taken away under new pro- 
 cedure: E. v. Major, 1 0. W. N. 223. 
 
 110.— (6) Formerly an appeal lay only from a dismissal 
 by a Justice or Justices: E. v. Smith, 11 0. L. E. 
 279. 
 
 110. — (8) An appeal under this section is in effect a 
 trial on the merits; the burden of proof is not on 
 the appellant: E. v. Farrell, 21 0. L. E. 540, 1 0. W. 
 N. 1045. 
 
 110.— (9) See E. S. 0. 1914, ch. 90, sees-. 4 and 10. 
 
 112. See Judicature Act, E. S. 0. 1914, ch. 56, sec. 12, 
 26 (2#). 
 
 113. The Attorney-General having refused a certificate 
 quaere, whether an appeal lay: E. v. Miller, 19 O. 
 L. E. 125. Appeal; certificate: E. v. Leach, 21 0. 
 W. E. 919. Eight of appeal to Divisional Court: 
 E. v. Teasdale, 20 0. L. E. 382, 15 0. W. E. 397, 1 
 0. W. N. 398, 486; E. v. Graves, 21 0. L. E. 329. 
 "When appeal given under this section: E. v. Ing 
 Kon, 12 0. W. E. 544. A special right of appeal 
 is given by the plain words of this section: E. v. 
 Eeid, 12 0. W. E. 819, 17 0. L. E. 578. Does this 
 section or E. S. 0. 1914, ch. 84, sec. 8, prevail so 
 as to give an absolute right of appeal : E. v. Bobin- 
 son, 10 0. W. E. 338. 
 
 114. The provision is remedial and should receive a 
 liberal construction : Trice v. Eobinson, 16 0. E. 
 433. Where a person comes to his death while in- 
 toxicated, and the intoxicating liquor has been sup- 
 plied at two taverns so that an action might have 
 been brought successfully against either tavern 
 keeper, they cannot be sued jointly : Crane v. Hunt, 
 26 O, E. 641. What is an accident caused by intoxi- 
 cation: see Bobier v. Clay, 27 XL C. E. 438. Where 
 
 S.A.— 74 
 
1170 CHAPTER 215. 
 
 felony has been committed : see McCurdy v. Swift, 
 17 C. P. 126. Liability of hotelkeeper for sale by 
 bartender: De Struve v. McGuire, 20 0. W. B. 
 347, 21 0. W. E. 138, 3 0. W. N. 251, 685, 25 0. 
 L. B. 87, 491. " Caused by such intoxication:" De 
 Struve v. McGuire, 25 0. L. E. 87, 491. 
 
 116. When the defendant's manager had the license 
 issued to himself to secure payment of the purchase 
 price of the licensed -premises sold to the plaintiff, 
 the arrangement was illegal and the plaintiff held 
 entitled to recover moneys paid by him to the de- 
 fendant for liquor supplied as furnished in con- 
 travention of the Act : Boucher v. Capital Brewing 
 Co., 9 0. L. E. 266. Sale under subterfuge of 
 agency : Bowie v. Gilmour, 24 A. E. 254. 
 
 117. Judgment obtained by default for liquor drunk in 
 an ale house is null and void. An execution sale 
 of lands to satisfy the judgment is void, the deed' 
 and mortgage of no effect and the registration of 
 them should be vacated: Drew v. Eexford, 14 0. 
 W. E. 505. 
 
 118. What amounts to an " order forbidding," under 
 this section. If a proper order were made, and 
 brought to the knowledge of the defendant, there 
 would, it seems, be a violation of the law in mak- 
 ing a sale to an inebriate though the liquor was 
 given to and actually drunk by other persons on 
 the licensed premises: E. v. Mount, 30 0. E. 303. 
 
 119. Action for damages by a married woman for sup- 
 plying liquor to her husband after notice: see 
 Northcote v. Bunker, 14 A. E. 364. Where the de- 
 fendant's barkeeper served the plaintiff's husband- 
 after notice contrary to the defendant's instruc- 
 tions, the defendant was liable : Austin v. Davis, 7 
 A. E. 478. Form of notice considered: Thornley 
 v. Eeilly, 17 A. E. 204. See also Austin v. Davis, 
 7 A. E. 478; Gleason v. Williams, 27 C. P. 93. No 
 proof of actual damage necessary : Gleason v. Wil- 
 liams, 27 C. P. 93. Notice not to sell liquor to 
 "brother-in-law:" Piggott v. French, 1 0. W. N. 
 715, 15 O. W. E. 852, 21 0. L. E. 87. The effect of 
 an unauthorized notice is to promulgate a libel : 
 
CHAPTER 215. -y 71 
 
 E ig £ 0t T \ F ™ noh > 1 °- W " N - 715 > 15 0- W. E. 852, 
 ^1 U. Jj. K. 87. 
 
 120.— (d) In line 8, before " upon," insert " in addi- 
 tion:" 4 Geo. V. ch. 2, sched. (35). 
 
 130. This section only applies to the persons named 
 therein. Where an inspector proceeding under it 
 without a warrant, took a person other than those 
 named, his act was illegal and the defendant was 
 justified m resisting it: E. v. Ireland, 31 0. E. 267 
 Is an hotel-keeper liable for the act of his servant 
 in refusing to admit an officer claiming right of 
 search under this section: E. v. Potter, 20 A. E. 
 516. The right of search may be exercised without 
 any preliminary statement of the purpose for which 
 the search is to be made. A formal demand of 
 admittance is sufficient: E. v. Sloan, 18 A. E. 482. 
 " Person in charge:" Pacaud v. Perkins, 20 O W 
 E. 893. 
 
 131. It is only by proceeding under this section and 
 procuring a warrant that an inspector is enabled 
 to take with him a person other than those named 
 in sec. 130: E. y. Ireland, 31 O. E. 267. Where 
 peace officers acting on a search warrant hereunder 
 are obstructed, as the section provides no punish- 
 ment, the proceedings against the defendant must 
 be by indictment for a misdemeanour under the 
 Criminal Code : E. v. Hodge, 23 O. E. 450. Suffici- 
 ency of definition of place to be searched: E. v. 
 McGarry, 24 O. E. 52. 
 
 132. Declaration of forfeiture and order for destruction ; 
 verbal direction; proprietary medicines: Ing Kon 
 v. Archibald, 12 0. W. E. 592, 17 0. L. E. 484. 
 
 137. — (1) The Act of the Provincial Legislature allow- 
 ing under certain conditions municipalities to pass 
 by-laws for prohibiting the sale of spirituous 
 liquors is intra vires, but the prohibition can only 
 extend to a sale by retail: Ee Local Option Act, 
 18 A. E. 572; Huson v. South Norwich, 24 S. C. 
 E. 145; but see Ee Provincial Jurisdiction, 24 S. 
 C. E. 170. As to Dominion and Provincial Legis- 
 lation: see Atty. Gen. for Ont. v. Atty. Gen. for 
 
2172 CHAPTER 215. 
 
 Can., 1896, A. C. 348, which also decides that local 
 liquor prohibitions are within the powers of the 
 Provincial Legislature, but inoperative in any 
 locality which adopts the provisions of the Dom- 
 inion of Canada Temperance Act, of 1886. The 
 by-law may be for shops and taverns or for shops 
 only or for taverns only: Ee Frawley and Orillia, 
 14 0. L. R. 99; Re Bickey and Orillia, 12 0. W. 
 R. 433. House of public entertainment : Re Duncan 
 and Midland, 10 0. W. R. 345, 551, 16 0. L. R. 132. 
 Creation of village after passing of L. O. by-law 
 of township of which village formed part: Re 
 Denison and Wright, 13 0. W. R. 1056; see Re 
 Swan River Local Option By-law, 3 W. L. R. 546. 
 Local option by-laws in Ontario: 44 Can. Law 
 Journal, 753. 
 
 137. — (2) As to the preparation of list of voters, its 
 revision and what is the proper list: see R. S. 0. 
 1914, ch. 192, sees. 265 to 269, also sees. 51 and 
 91, and notes; see also notes to R. S. 0. 1914, 
 ch. 6, sec. 24. Who are the persons entitled to vote?: 
 see Re Croft and Peterboro, 17 A. R. 1; Re Sin- 
 clair and Owen Sound, 12 O. L. R. 488, 13 0. L. R. 
 447, 39 S. C. R. 239; Re McGrath and Durham, 12 
 0. W. R. 149. The proper voters' list in local 
 option contest: Carr v. North Bay, 28 0. L. R. 
 623; R. ex rel. Black v. Campbell, 18 0. L. R. 269; 
 and see notes to R. S. 0. 1914, ch. 192, sec. 265. 
 Effect of the present provision on Re Saltfleet, 16 
 0. L. R. 293, and on Re West Lome, 26 O. L. R. 
 339: see Re Aurora Scrutiny, 4 0. W. N. 1069, 28 
 0. L. R. 475. Multiple voting: see R. S. 0. 1914, 
 ch. 192, sec. 269, and notes, also sees. 99 and 138 (g). 
 As to the propriety of the clerk voting in local 
 option contests : see R. S. 0. 1914, ch. 192, sec 270, 
 and notes. Poll Clerks : see ch. 192, sec. 100. Deputy 
 Returning Officers: see ch. 192, sees. 274, 100 and 
 notes : Re Armour and Onondaga, 14 O. L. R. 606 ; Re 
 Saltfleet, 16 0. L. R. 293 ; Re Joyce and Pittsburg, 
 16 0. L. R. 380. As to powers of Judge on a scru- 
 tiny to enquire into legality of votes cast: see R. 
 S. 0. 1914, ch. 192, sec. 279, and notes. 
 
 137. — (3) Method of taking the votes of the electors is 
 fixed by the Municipal Act, 1914, ch. 192, Part X., 
 
CHAPTER 215. 
 
 1173 
 
 sec. 260, et seq. By sec. 274, Part III., of the Muni- 
 cipal Act also applies (sees 56 et seq). Mode of 
 . voting: see Duncan v. Midland, 16 0. L. B. 132. 
 The day fixed for taking the votes of the electors: 
 see B. S. 0. 1914, ch. 192, sees. 71, 73, 74. As to 
 fixing polling places, appointing D. E. O.'s: see 
 E. S. O. 1914, ch. 192, sec. 263 (1), and notes. 
 Appointment of persons to attend at polls and 
 at summing up : see E. S. 0. 1914, ch. 192, sec. 264, 
 and notes. Proceedings for publication of by-law: 
 see B. S. 0. 1914, ch. 192, sec. 263 (5), and notes. 
 Fixing time and place for summing up: see E. S. 
 0. 1914, ch. 192, sec. 263 (4), and notes. Eeview of 
 objections to by-law: see Be Sturmer and Beaver- 
 ton, 24 0. L. E. 65. As to irregularities which are 
 or are not covered by E. S. 0. 1914, ch. 192, sec. 
 150, see notes to that section. 
 
 137. — (4) Where a petition praying for submission to 
 the electorate of a local option by-law is filed in due 
 time and accepted by the council, it operates as a 
 statutory command to council whose ordinary dis- 
 cretion is suspended: Ee Williams and Brampton, 
 12 O. W. E. 1235, 17 0. L. E. 398, 408; Carr v. 
 North Bay, 4 0. W. N. 1284, 28 0. L. E. 623. Insuf- 
 ficiency of petition : Ee Carter and Clapp, 12 0. W. 
 E. 1275. Eight of petitioners to withdraw their 
 names: Ee Keeling and Brant, 20 0. L. E. 551, 
 25 0. L. E. 181; Casson v. Stratford, 20 0. W. E. 
 766, 3 0. W. N. 443. 
 
 137.— (5) Scrutiny: see E. S. 0. 1914, ch. 192, sec 
 279 (1). Proceedings on scrutiny and ascertain- 
 ment of three-fifths majority: see sec. 279 (3), 
 and notes. Eeview of decisions as to scrutiny in 
 
 ■■ local option contests and deduction of votes dis- 
 allowed : Ee West Lome Scrutiny, 26 0. L. E. 339, 
 47 S. C. E. 451; Ee Aurora Scrutiny, 28 0- L. E. 
 475 ; and see Ee McGrath and Durham, 17 0. L. E. 
 514; Ee Duncan and Midland, 16 0. L. E. 132; 
 Ee Weston Local Option, 9 0. W. E. 250; Ee 
 Swan Eiver L. 0., 3 W. L. E. 546; Ee L. 0. in 
 Saltfieet, 16 0. L. E. 293; Ee Orangeville L. 0., 20 
 0. L. E. 476; Ee Strathroy L. 0., 1 0. W. N. 465; 
 Ee Mitchell and Campbellford, 11 0. W. N. 941. Sum- 
 ming up result of contest : see E. S. 0. 1914, ch. 192, 
 
1174 CHAPTER 215. 
 
 sees. 275 and 279 (3), and notes. Computing three- 
 fifths majority: see Be Cleary and Nepean, 9 0. W. 
 E. 406, 14 0. L. E. 393 ; Ee Stunner and Beaverton, 
 2 0. W. N. 1116, 19 0. W. E. 255; Ee Ellis and 
 Eenfrew, 15 0. W. E. 880, 1 0. W. N. 710; Ee 
 Prangley and Strathroy, 15 0. W. E. 890, 1 0. W. 
 E. 706; Ee Begg and Dunwich, 21 0. L. E. 94, 
 15 0. W. E. 908; Ee Weston, 9 0. W. E. 250; 
 Ee Brown and E. Flamborough, 2 0. W. N. 1000, 
 19 0. W. E. 35, 23 0. L. E. 533. Ballots rejected on 
 a scrutiny must be deducted from the total number 
 of votes cast in favour of the by-law: Ee West 
 Lome Scrutiny, 23 0. L. E. 598, 25 0. L. E. 267, 
 26 0. L. E. 339, 47 S. C. E. 451. 
 
 Passing the by-law : see E. S. 0. 1914, ch. 192, sec. 
 280, and notes. Where a by-law was attacked on 
 the ground that no formal motion for its second 
 reading was made, motion refused: Ee Kelly and 
 Toronto Junction, 8 0. L. E. 162. Formerly the 
 provision for passing after approval of electors 
 was not compulsory : Ee Dewar and East Williams, 
 10 0. L. E. 463. The plain duty of the council is 
 to pass the by-law: Ee Schumacher and Chesley, 
 1 0. W. N. 1041. Third reading : Ee Copeman and 
 Dundalk, 1 0. W. N. 805. The duty of the council 
 is purely ministerial if three-fifths of the electors 
 approve: Ee Duncan and Midland, 10 0. W. E. 
 345, 551, 16 0. L. E. 132. 
 
 137. — (6) What constitutes a majority against a local 
 option by-law; basis of Judge's certificate: Ee 
 Aurora Scrutiny, 28 0. L. E. 475. Eeductlon of 
 majority below statutory minimum : Ee Dillon and 
 Cardinal, 10 0. L. E. 371 ; Be Cleary and Nepean, 
 14 0. L. E. 392; Ee Saltfleet, 16 0. L. E. 293; Ee 
 Mitchell and Campbellford, 16 0. L. E. 578; Ee 
 McGrath and Durhan, 17 0. L. E. 514; Ee Orange- 
 vine, 20 0. L. E. 476; Ee Ellis and Eenfrew, 21 
 0. L. E. 74, 23 0. L. E. 427; Ee Schumacher and 
 Chesley, 21 0. L. E. 522. " Submission to electors:" 
 Stoddart v. Owen Sound, 4 0. W. N. 83, 27 0. L. E. 
 221. 
 
 137. — (7) Application of this section where ineffective 
 proceedings taken in respect of repealing by-law: 
 
CHAPTER 215. 
 
 1175 
 
 Ee Vandyke and Grimsby, 14 0. W. E. 538, 19 0. 
 L. E. 402. Local option contest — repealing by-law: 
 Stoddart v. Owen Sound, 27 0. L. E. 221. 
 
 137.— (11) Misleading form of ballot paper: Ee Milne 
 and Thorold, 19 0. W. E. 29, 461, 20 0. W. E. 
 983, 3 0. W. N. 536, 25 0. L. E. 420. Prescribed 
 form of ballot not followed; defect cured: Ee 
 Giles and Almonte, 1 O. W. N. 920, 16 0. W. E. 
 530, 21 0. L. E. 362. Form of ballot: Ward v. 
 Owen Sound, 1 0. W. N. 512. 
 
 138. " No tavern or sbop license," these words are 
 read distributively : Ee Frawley and Orillia, 9 0. 
 W. E. 365. " Penalty " and " punishment," dis- 
 tinguished and defined: E. v. Leach, 12 0. W. E. 
 1016, 17 0. L. E. 643. Where an offence is com- 
 mitted in territory subject to local option, the 
 offence is under the Liquor License Act and not under 
 the By-law: E. v. Leach, 21 0. W. E. 919. 
 
 139. Meaning and effect "of this legislation; case stated: 
 Ee Liquor License Act, 5 0. W. N. 225. Effect of 
 section; declaration of clerk: Ee Ellis and Een- 
 frew, 15 0: W. E. 880, 16 0. W. E. 952, 18 0. W. 
 E. 703, 1 0. W. N. 710, 2 0. W. N. 27, 837, 21 0. 
 L. E. 74, 23 0. L. E. 427. Order of minister that no 
 license issue; needless appeal: Ee Hickey and 
 Orillia, 12 0. W. E. 650. Where the consent of the 
 Provincial Secretary is necessary to the issue of 
 a license, until such consent is obtained there is 
 a " prohibition of the sale of intoxicating liquors " 
 within the meaning of a covenant in a lease calling 
 for a reduction in rent in such event: Hessey v. 
 Quinn, 18 0. L. E. 487, 13 0. W. E. 907. 
 
 151. The defendants were constructing the C. P. E. near 
 a collection of houses known as Michipicoten Eiyer 
 and had their headquarters there. The plaintiffs 
 brought to the village in a sailing vessel a quan- 
 \ tity of intoxicating liquor. The defendants, who 
 were J.P.'s for Algoma, assumed to act under the 
 provisions of the statute then in force respecting 
 the sale of liquor near public works, and caused the 
 liquor to be destroyed. Held that this was a village 
 under the Act E. S. 0. 1877, ch. 32, sec. 1, and that 
 
2176 CHAPTER 215. 
 
 the Justices had no jurisdiction: Bond v. Conmee, 
 
 15 0. E. 716, 16 A. E. 398, Cas. Dig. 511. Destruc- 
 tion of liquor pursuant to order under E. S. 0. 
 1897, ch. 39: Ing Kon v. Archibald, 17 0. L. E. 
 484. One who sold liquor without license in the 
 area where E. S. 0. 1897, ch. 39 was in force was 
 liable to be punished in two ways, either under that 
 Act or under the Liquor License Act for selling 
 liquor illegally, with the proviso that the offender 
 should not be punished twice for the same illegal 
 sale: E. v. Irwin, E. v. Petit, 11 0. W. E. 728, 730, 
 
 16 0. L. E. 454. 
 
 152. Eegina v. Guittard, 30 0. E. 283. 
 
 153. The Ontario Act requiring every brewer and dis- 
 tiller to obtain a license thereunder to sell whole- 
 sale within the province is intra vires as being 
 direct taxation within B. N. A. Act, sec. 92, sub- 
 sec. 2, and as comprised within the term " other 
 licenses " in sub-sec. 9 of the same section. Severn 
 v. The Queen, 2 S. C. E. 70, is in effect overruled: 
 Eeg. v. Halliday, 21 A. E. 42; Brewers, etc., 
 Association v. Atty. G-en. for Ontario, 1897, A. C. 
 231. 
 
 155. — (1) A brewery company gave orders to draymen 
 not to deliver beer unless an order for it had been 
 received at the company's office. The beer was 
 sold C. 0. D. and the draymen authorized to re- 
 ceive payment and to bring back all beer undeli- 
 vered. There was no appropriation of the bottles or 
 crates of beer on the waggons to any particular 
 customer. Held that sales made by a drayman on 
 his rounds, of beer to persons on the streets were 
 not within the scope of the drayman's employment 
 and the company were not guilty of having sold 
 liquor at an unauthorized place: Boyne v. Smith, 
 75 L. J. K. B. 282, 1906, 1 K. B. 432. The defendants, 
 duly licensed brewers, became possessed of the 
 goodwill, etc., of a liquor business and put the 
 plaintiff in charge, the license being taken out in 
 the name of the defendant's manager to be con- 
 trolled by him for the purpose of securing the pur- 
 chase money. Liquors sold under this arrange- 
 ment were illegally sold. Granting a license in trust 
 
CHAPTER 215. ]yil 
 
 for another is not permissible : Boucher v. Capital 
 Brewing Co., 9 0. L. B. 266. See also as to whole- 
 sale licenses: Regina v. Guittard, 30 0. B. 283; 
 Molson v. Lambe, 15 S. C. B. 253. Sale by whole- 
 saler under cover of agency: Bowie v. Gilmour, 24 
 A. B. 254. 
 
 155. — (2) Purview of amendment of 1909; sale in local 
 option district : B. v. Montgomery, 14 0. W. B. 625, 
 1 0. W. N. 30. 
 
 168. The expressions " license by wholesale," " whole- 
 sale license," " license to sell by wholesale," may 
 be treated as interchangeable expressions: Beg. v. 
 Guittard, 30 0. B. 283; see ante sees. 152-155, and 
 notes. 
 
 171. A cellar in a brewery where beer is stored is a 
 " warehouse " within the section: Beg. v. Halliday, 
 21 A. B. 42. 
 
 175. It is an offence for a chemist or druggist to allow 
 liquor sold by him or in his possession to be con- 
 sumed within his shop by the purchaser. It is not 
 essential that the druggist should be registered: 
 
 ' Beg. v. McKay, 23 0. B. 442. Offence of not record- 
 ing sales: Beg v. Elborne, 21 0. B. 504, 19 A. B. 
 439. 
 
 175. — (5) Form of conviction considered: Beg. v. 
 Scott, 20 0. B. 646; Beg. v. Villeneuve, 17 C L. T. 
 Occ. N. 374, and see now Form 6 No. 12. 
 
 E. S. 0. 1914, VOL. II., P. 2962. 
 
 Public Morals; The Lord's Day Act. 
 
 This statute, formerly B. S. 0. 1897, ch. 246, is 
 omitted from the present revision but is printed at 
 p. 2962. The Act was formerly C. S. IT. C. ch. 104. 
 See Atty. Gen. Ont. v. Hamilton St. By,, 1903, 
 A C. 524, the effect of which decision appears to 
 be to leave the old C. S. U. C. ch. 104 still in force, 
 
1178 CHAPTER 215. 
 
 the Ontario amendments to it being ultra vires. 
 The Act treated as a whole is ultra vires the 
 Ontario legislature, and an infraction of the Act is 
 an offence against criminal law : See DominionLord's 
 . Day Act, E. S. C. 1906, ch. 27. Differences from 
 English Act, 29 Car. II., ch. 7, considered: E. v. 
 Wells, 24 0. L. E. 77. C. S. IT. C. ch. 104, is in force 
 in Ontario: E. v. Yaldon, 17 0. L. E. 179, 12 0. 
 "W. E. 384. Exclusive jurisdiction of Dominion 
 Parliament: E. v. Weatheral, 11 0. W. E. 946. 
 Constitutionality of E. S. 0. 1914, ch. 185, sec. 234, 
 and Dominion legislation affecting it, regarding the 
 operation of provincial railways on Sunday: 
 Kerley v. London and Lake Erie, 26 0. L. E. 588, 
 28 0. L. E. 606. Sunday law respecting provincial 
 railways: see Article 48 C. L. J. 677. 
 
 As affecting contracts, etc., where payment falls 
 due on Sunday, it must be made Saturday (except 
 as altered by statute) : Whittier v. McLennan, 13 U. 
 C. E. 638. 
 
 Tender not to be made on Sunday: Cudney v. 
 Gives, 20 0. E. 500. Pleading illegality of con- 
 tract made on Sunday: Crosson v. Bigley, :12 A. 
 E. 94. An unmeritorious defence: Vail v. Duggan, 
 7 U. C. E. 568. A note made on Sunday in 
 payment of goods, void as between the parties, 
 but good in the hands of an indorsee for value 
 without notice: Houliston v. Parsons, 9 U. C. E. 
 681; Crombie v. Overholtzer, 11 TJ. C. E. 55. 
 Sales and mortgages : Lai v. Stall, 6 TJ. C. E. 506. 
 Giving or taking security not void: Wilt v. Lai, 
 7 U. C. E. 535. Affidavits and Court process void: 
 Hall v. Brush T. T. 3 and 4 Vic. Coroner's inquest: 
 Ee Cooper, 5 P. E. 256. Contract dated on Sun- 
 day: Bailey v. Dawson, 20 0. W. E. 908, 3 0. W. 
 N. 560. 
 
 The Act does not apply to railways and therefore 
 not to their employees: E. v. Eeid, 30 0. E. 732. 
 A cab driver is not within any of the enumerated 
 classes of persons: E. v. Somers, 24 0- E. 244; 
 E. v. Budway, 8 C. L. T. Occ. N. 269. The Act does 
 not apply to persons in the public service of His 
 Majesty, e.g., a government lock tender: E. v. 
 
CHAPTER 216. 
 
 1179 
 
 Berriman, 4 0. E. 282. ' ' Ordinary calling, ' ' barber : 
 E. v. Taylor, 19 C. L. J. 362; In re Lambert, 7 
 
 B. C. E. 396. Farmer: Hespeler v. Shaw, 16 U. 
 
 C. E. 104; Hamren v. Mott, 5 Terr. L. E. 400. 
 Conveying Travellers; Steamboat: E. v. Tinning, 
 11 U. C. E. 636; E. v. Daggett, 1 0. E. 537 (and 
 see sec. 7 (1)). Taking persons on street cars from 
 point to point within a city is not " conveying 
 travellers:" Atty. Gen. v. Hamilton St. Ey., 27 
 0. E. 49, 24 A. E. 170, 1903, A. C. 524; Atty. Gen. 
 v. "Wesley Park, etc., Tramway, 18 A. E. 453. Sun- 
 day amusements: E. v. Barnes, 45 U. C. E. 276. 
 Band playing on Sunday: E. v. Powell, 19 0. "W. 
 E. 459. The words " or other persons whatsoever " 
 are to be construed ejusdem generis and do not in- 
 clude farmers: Hamren v. Mott, 5 Terr. L. E. "400. 
 Ice cream is a food and the sale of it on Sunday by 
 a restaurant keeper is not an offence under sec. 1: 
 Eeg. v. Albertie, 3 Can. Crim. Cas. 356, 20 C. L. T. 
 Occ. N. 123. See also E. v. Myers, (unrep.) where it 
 was held by, Morgan, J., that candies were a food. 
 "Where such a sale is made not by a restaurant 
 keeper but in a candy shop, there is an offence : E. 
 v. Sabine (Winchester, J.), The same rule applies 
 to a sale of oranges: Bex v. Devins, 10 O. W. E. 
 11; see also E. v. Howarth, 33 IT. C. E. 537. Sale 
 of cigars, candies and soft drinks on Sunday by 
 hotels, restaurants and druggists: E. v. "Wells, 2 
 O. "W. N. 1232, 19 O. "W. E. 452, 24 O. L. E. 77. 
 
 CHAPTEE 216. 
 The Minoks' Pkotection Act. 
 
JlgQ CHAPTER 217. 
 
 CHAPTEE 217. 
 
 The Gaming Act. 
 
 Eefef to: Coldridge and Hawksford on Gambling; 
 Schwabe and Branson on the Stock Exchange. 
 
 2. Cheque* given in payment of part of share of win- 
 nings on joint betting account: Beeston v/Beeston, 
 1 Ex. D. 13. Cheque payable in London issued in 
 a foreign country as security for a gambling debt 
 incurred abroad, not valid though the consideration 
 for the cheque was sufficient according to the law 
 of the place where it was issued: Monlis v. Owen, 
 1907, 1 K. B. 746. "What are and what are 'not 
 gaming transactions : Ex parte Philips, re Morgan, 
 3 L. T. Bep. 516; Ex parte Marnham, re Morgan, 
 3 L. T. Bep. 517. The terms on which the risk in an 
 insurance policy is undertaken: Sibbald v. Hill, 2 
 Dow. H. L. 263. Contracts uberrima fidei: Bates 
 v. Hewitt, L. E. 2, 0. B. 595. Certainty Of time 
 essential: Isaacs v. Eoyal Ins. Co., L. E. 5 Ex. 
 296. Agreement with tipster for share of winnings : 
 see Higginson v. Simpson, 2 C. P. D. 76. No pen- 
 alty can be enforced under Stamp Act for not affix- 
 ing a stamp to a note given for money lost at play, 
 for such note is utterly void: Taylor v. Goulding, 
 28 U. C- E. 198. Even in the hands of a bona fide 
 holder for value : Ee Summerf eldt v. Worts, 12 0. 
 E. 48. Immoral quasi contracts : see Paine, Canadian 
 Law of Contracts, pp. 134-5. Defence of illegal or 
 immoral contract : Pearson v. Carpenter, 35 S. C. E. 
 380. 
 
 5. Where a contract was made in Ontario and was 
 legal therein, |to advance money for speculative 
 purposes in Illinois, it is no defence that the pur- 
 pose for which the money advanced was to be used 
 was illegal by the laws of a foreign country:* Bank 
 of Toronto v. McDougall, 28 C. P. 345. Position 
 of stakeholder in case of wager: Hampden v. 
 Walsh, 1 Q. B. D. 189. Deposit of money with stake- 
 holder not illegal; no action against the winner of 
 
CHAPTER 218. 
 
 1181 
 
 the bet who has received the money from the stake- 
 holder after the decision of the event: Seeley v. 
 Dalton, 36 N. B. E. 442. A plaintiff cannot recover 
 in Ontario on a claim for the ambunt of a bet won 
 on the result of a parliamentary election in the 
 Dominion: Harris v. Elliote, 28 0. L. B. 349. 
 
 6. Cheque for money Won on bets held over at request 
 of loser; new consideration: Hyams v. Stuart 
 King, 1908, 2 K. B. 696. 
 
 CHAPTEE 218. 
 
 The Public Health Act. 
 
 Eefer to: Glen, Public Health; Lumley, Public 
 Health Act (Eng.). 
 
 2. — (/) Dismissal of officer not appointed under the 
 Act: Warren v. Whitby, 4 0. W. N. 1029, 24 0. 
 W. E. 317. 
 
 2. — (k) " Owner or his agent " in a by-law under this 
 Act was held to mean the owner as here denned, or 
 a person acting for him as trustee or in some such 
 capacity, and not including a plumber employed by 
 the owner: E. v. Watson, 16 0. E. 646. 
 
 15. Formerly the Board of Health was not a corpora- 
 tion and could only be proceeded against by man- 
 damus in the High CoUrt: Eich v. Melancthon, 3 
 0. W. N. 826, 21 0. W. E. 517. Local boards of 
 health as constituted under sees. 48 and 49 of E. S. 
 0. 1897, ch. 248, were not corporations and could 
 not be sued by any corporate name: Sellars v. 
 Dutton, 7 0. L. E. 288. But in Eoss v. London, 
 15 0. W. E. 685, 18 0. W. E. 82, 1 0. W. N. 612, 
 2 O. W. N. 583, 20 0. L. E. 578, 23 0. L. E. 74, 
 such boards were held to be " quasi corporations." 
 
 26. Impropriety of holding individual members of 
 board liable: Eoss v. London, 20 0. L. E. 578, 23 
 0. L. E. 74; and see ante sec. 15, notes. 
 
H82 CHAPTER 218. 
 
 29. Private disinfection no sufficient reason for refus- 
 ing to allow a public officer to disinfect: Bonsquet 
 v. Gagnon, Q. R. 23 S. C. 35 ; see also R. v. Playter, 
 1 0. L. R. 360, 
 
 32. Property destroyed to prevent spread of infectious 
 disease; compensation; liability of municipality: 
 see Petipas v. Pictou, 36 N. S. Rep. 460. 
 
 37. Dismissal of officer: Warren v. Whitby, 4 0. W. N. 
 
 1029, 24 0. W. R. 317. Action by physician for 
 damages for wrongful dismissal: McKay v. Cape 
 Breton, 18 S. C. R. 639. 
 
 38. A medical health officer is not a servant of the corp- 
 
 oration so as to make the corporation liable for 
 his Acts done in pursuance of his statutory duties : 
 Forsyth v. Canniff, 20 0. R. 478; see also Macfie 
 v. Hutchinson, 12 P. R. 167. 
 
 39. Remuneration of physician employed by local board 
 
 of health; mandamus: Rich v. Melancthon Board 
 of Health, 26 0. L. R. 48. Action to recover remun- 
 eration for services as physician; Medical Health 
 Officer ; mandamus ; costs : Bibby v. Davis, 1 0. W. 
 R. 189; and see post sec. 52, notes. 
 
 43. — (1) Action to restrain a municipality from using 
 land acquired under the Public Parks Act for the 
 purpose of erecting a contagious disease hospital: 
 Ottawa Board of Park Management v. Ottawa, 21 
 Occ. N. 378. See as to by-law providing for estab- 
 lishment of hospital, and resolution of council in- 
 structing board of health to purchase a site. 
 Legality of delegation and resolution: Reed v. 
 City of Ottawa, 21 Occ. N. 470. " Quia timet " 
 action to restrain the use of a building as a smallpox 
 hospital ; evidence : Atty. G-en. v. Nottingham, 1904, 
 1 Ch. 673. 
 
 43. — (6) Consent of outside municipality to erection of 
 hospital: Verner v. Toronto, 3 0. W. N. 586, 21 
 0. W. R. 170. 
 
 48. Medical' superintendent of hospital is a public officer : 
 Pye v. Toronto and Tweedie, 9 0. W. R. 632. 
 Liability of municipality for negligence of officers 
 
CHAPTER 218. •, -.go 
 
 and servants employed in Isolation Hospital: 
 Butler v. Toronto, 10 0. W. E. 876. If by the negli- 
 gence of a competent and duly qualified medical man 
 appointed by the corporation as physician to a city 
 hospital, a patient is prematurely discharged and 
 contagion is caused to other persons, the corpora- 
 tion is not liable: Evans v. Liverpool (1906), 1 K. 
 B. 160. 
 
 49. Prevention of spread of contagious disease; conver- 
 
 sion of hotel into hospital; malice: see Ward v 
 Lothian, 3 0. W. B. 362, 4 0. W. B. 502. 
 
 50. The consent of the owner or occupier is not a legal 
 answer to an action (by one who can shew special 
 damage) to restrain the corporation from erecting 
 hospital : Beed v. Ottawa, 21 Occ N. 470. 
 
 52. Application by physician for mandamus to compel 
 the board to sign an order on the treasurer of the 
 municipality: : Be Derby and South Plantaganet, 
 
 19 O. E. 51. Employment of physician to attend 
 smallpox patients ; remuneration : Boss v. London; 
 
 20 O. L. E. 578, 15 0. W. E. 685, 1 0. W. N. 612, 
 23 0. L. E. 74; and see notes to sec. 39. 
 
 56. Under this section health officers are justified in 
 detaining a person who has been exposed to infec- 
 tion from. a person suspected of having smallpox, 
 but who really had measles : Mills v. Vancouver, 
 10 B. C. E. 99. 
 
 58. The directions of this section are imperative. Where 
 instead of following them, the members of a local 
 board send a person suffering from an infectious 
 disease into an adjoining municipality, they are 
 liable to repay that municipality the moneys reason- 
 ably expended in caring for him and preventing the 
 spread of the disease: : Logan v. Hurlburt, 23 A. 
 E. 628. Action brought in Division Court claim- 
 ing payment by defendant as mother of person in- 
 fected for whom expenses had been incurred ; juris- 
 diction; interpretation of statute: Ameliasburg 
 v. Pitcher, 8 0. W. E. 915. Bemuneration of 
 physician employed to attend smallpox patients: 
 Boss v. London, 20 0. L. E. 578, 23 0. L. E. 74. 
 See as to employment of physician and nurses: 
 
;Q84 CHAPTER 218. 
 
 Cameron v. Dauphin, 24 Occ. N. 99, 14 Man. L. E. 
 573. Liability of municipality for extraordinary 
 expenses of quarantine: South. Whitton v. Giroux, 
 Q. E. 24 S. C. 361. 
 
 84. This section does not apply to a house or hospital 
 for consumptive patients. Infectious diseases and 
 hospitals are dealt with elsewhere: E. v. Playter, 
 
 1 0. L. E. 360. As to conviction and costs under 
 this section: see E. v. Eowlin, 19 0. E. 199. " Such 
 as may become offensive," construction of sentence 
 and effect of these words: E. v. Barber Asphalt 
 Co., 2 0. W. N. 819, 18 0. W. E. 778, 23 0. L. E. 
 372. 
 
 100. A meat salesman could be indicted at common law 
 for knowingly sending or exposing meat for sale as 
 fit for human food which in fact was not so : E. v. 
 Stevenson, 3 F. & F. 106; E. v. Jarvis, 3 F. & F. 
 108. What amounts to exposure for sale: Daly v. 
 Webb, Ir. E. 4 C. L. 309; Barlow v. Terrett, 1891, 
 
 2 Q. B. 107. Intent to sell : Shillito v. Thompson, 
 1 Q. B. D. 12 ; Mallinson v. Carr, 1891 1 Q. B. 48. 
 Scienter: actual personal knowledge on the part of 
 the owner not necessary to conviction: Blaker v. 
 Tillstone, 1894, 1 Q. B. 345. Evidence that meat 
 was wrongly condemned: Waye v. Thompson, 15 
 Q. B. D. 342. Where an offence is charged of sell- 
 ing meat unfit for food, and proceedings are taken 
 on the charge under- the Criminal Code, there is 
 no power to change the charge to one under the 
 Public Health Act : Eex v. Dungey, 2 0. L. E. 233. 
 
 115. See E. v. Dungey, 2 0. L. E. 223, note to sec. 100 
 ante. Unsanitary condition of rented house-. 
 Gordon v. Goodwin, 20 0. L. E. 327. 
 
 116. E. S. 0. 1914, ch. 192, sees. 71, 72. 
 
 125. Prohibition will not lie to restrain the issue and 
 enforcement of a distress warrant by a Justice of 
 the Peace upon a conviction regular on its face, 
 and which was within the jurisdiction of the Justice 
 making it: E. v. Coursey, 26 A. E. 685, 27 0. E. 
 181. Conviction for unloading a car of manure on 
 railway premises : not essential to shew that it might 
 endanger public health : E. v. Eedmond, 24 O. E. 331. 
 
CHAPTERS 219, 220, 221, 222, 223. Hg5 
 
 GHAPTEE 219. 
 The Vaccination Act.. 
 
 Befer to : Fry on Vaccination ; Shaw on Vaccination- 
 
 & Compulsory vaccination : see E. v. Eitcbie, Ex p. 
 Jack, 35. N. B. Eeps. 581. Unreasonable by-law: 
 Montreal v. Garon, Q. E. 23, S. C. 363. 
 
 CHAPTEE 220. 
 The Housing Accommodation Act. 
 
 CHAPTEE 221. 
 The Milk Act. 
 3. Sale of milk: Ee Foster & Hamilton, 31 0. E. 292. 
 
 CHAPTEE 222. 
 The Milk, Cheese and Buttek Act. 
 Eefer to: Bartley on Adulteration of Food. 
 
 5. See E. v. Wason, 17 A. E. 221; E. v, Dowling, 17 
 0. E. 698. 
 
 CHAPTEE 223. 
 The Daibt Pbodttcts Act. 
 
 s.a.— 75 
 
H$Q CHAPTERS 224, 225, 226, 227. 
 
 CHAPTEE 224. 
 The Bbead Sales Act. 
 
 3. Formerly the regulation of the sale of bread was a 
 
 matter for by-law under the Municipal Act: see 
 3 Edw. VIL, ch. 19, sec. 583 (1), (11) ; see E. v. 
 Chisholm, 9 0. W. E. 914, 14 0. L. E. 178. 
 
 4. Is this ultra vires Provincial Legislature as being a 
 
 matter of " weights and measures " or " trade and 
 commerce?:" see Ee Bread Sales Act, 23 0. L. E. 
 238. "Small bread:" E. v. Nasmith Baking Co., 
 17 0. W. E. 116, 2 0. W. N. 116; Ee Bread Sales 
 Act, 2 0. W. N. 736, 18 0. W. E. 251, 23 0. L. E. 
 238. 
 
 CHAPTEE 225. 
 
 The Fbttit Sales Act. 
 
 CHAPTEE 226. 
 
 The Entby of Hoeses at Exhibitions Act. 
 
 2. This Act intra vires; conviction affirmed: see E. 
 v. Horning, 8 0. L. E. 215. 
 
 CHAPTEE 227. 
 The Debt Collectobs' Act. 
 
CHAPTERS 228, 229. ^gj 
 
 CHAPTER 228. 
 
 The Building Trades Protection Act. 
 
 Construction and application: see Hunt v. Webb, 
 4 0. W. N. 1225, 28 O. L. R. 589. Hoist not 
 operated so as to afford reasonable safety to those 
 using it: Schofield v. Blome, 5 0. W. N. 328, 25 
 0. W. R. 282. 
 
 CHAPTER 229. 
 
 The Factory, Shop and Office Building Act. 
 
 2. — (&) It is not enough that the employer take the 
 statement of a child as to his age. The employer 
 must satisfy himself by reasonable means that the 
 applicant for work is of the requisite age, and it 
 is for the jury to say whether reasonable precau- 
 tions have been taken : Mcintosh v. Firstbrook Box 
 Co., 8 0. L. R. 419, 10 0. L. R. 526. Where employer 
 had no knowledge that child under age of 14, de- 
 fendants were liable under Employer's Liability 
 Policy although employment was contrary to the 
 Act: Morton v. Ontario Accident, 11 0. W. R. 828, 
 12 0. W. R. 269, 14 0. L. R. 1010, 1 0. W. N. 199. 
 An action for injury received in an elevator may 
 fail at common law and under R. S. 0. 1914, ch. 
 146, but the plaintiff being under 14, a prima facie 
 case is made out simply by proof of age, the em- 
 ployment, and the injury: Jones v: Morton Co., 14 
 0. L. R. 402. Children: see Roberts v. Taylor, 31 
 0. R. 10; Fahey v. Jephcott, 2 0. L. R- 449; 
 O'Brien v. Sanford, 22 0. R. 136; and see post sees, 
 10, 26, 54, and notes. 
 
 2. — ( e ) A store occupied by merchant tailors, the rear 
 part being used as a tailoring department and the 
 front as a retail sale department, 14 persons being 
 employed in the former, is a "factory:" R. ex 
 rel. Burke v. Ferguson, 13 0. L. R. 479. 
 
llgg CHAPTER 229. 
 
 2. — (k) " Owner " means the owner of the building 
 who may or may not be the employer: E. ex rel. 
 Ferguson v. Burke, 13 0. L. B. 479, 8 0. W. E. 957; 
 see Toller v. Spiers and Pond, 19 T. L. E. 119. 
 
 2. — (q) The employer has to exercise more than ordin- 
 ary precautions for the well being and safe guard- 
 ing of minors who have been put into factory work 
 contrary to the prohibition of the legislature: 
 O'Brien v. Sanford, 22 O. E. 136. As to young 
 persons and duty to caution: Lawson v. Packard 
 Electric, 10 0. W. E. 525, 11 0. W. E. 72; see also 
 Cribbs v. Kynoch, 1907, 2 K. B. 548; Smith v. 
 ( Baker, 1891, A. C. 354. 
 
 9. No cause of action is given to an infant plaintiff who 
 
 was injured when trespassing, the machine not be- 
 ing operated in dangerous proximity to the high- 
 way nor situated so as to allure children: Smith 
 v. Hayes, 29 0. E. 283. 
 
 10. See Jones v. Morton Co., 14 0. L. E. 402, note to 
 sec. 2 (b) ; see also Prior v. Slaithwaite Spinning 
 Co., 1898, 1 Q. B. 881; and see notes to sees. 32, 54 
 post. 
 
 S2. Where a young person does work in a factory dur- 
 ing meal times, the occupier of the factory is liable 
 to conviction though he may not have employed the 
 young person to do the work : Prior v. Slaithwaite 
 Spinning Co., 1898, 1 Q. B. 881. 
 
 43. — (3) In proceedings where owners of a factory are 
 called upon to use a fan or other mechanical means 
 to prevent the inhalation of dust generated to a 
 dangerous extent, it is unnecessary to prove by 
 evidence that any worker has sustained actual 
 injury. It is enough to shew that dust was gen- 
 erated to such an extent that its tendency was 
 necessarily to injure workers in course of time: 
 Hoare v. Eitchie, 1901, K. B. 434. 
 
 54. It was held that the employment of a child under 
 14 in a factory, at work other' than that specified 
 as proper, although it subjects the employer to a 
 penalty, does not give rise to an action for damages 
 
CHAPTER 229. 1189 
 
 unless there is evidence to connect the violation of 
 , the Act with the accident: (Roberts v. Taylor, 31 
 , O. E. 10) ; but in a later case it was held that em- 
 ploying a girl under 14 to work between the fixed 
 and traversing parts of a machine in breach of the 
 provisions of this section, is in itself sufficient to 
 render the master 'prima facie liable in damages 
 for an accident which happens in the course of 
 such employment, and negligence on his part 
 directly conducting to the accident need not be 
 shewn: Fahey v. Jephcott, 1 0. L. E. 18, 2 0. L. 
 E. 449, (overruling Eoberts v. Taylor, 31 O. E. 
 10) ; see also Jones v. Morton Co., 9 0. W. E. 500 
 and notes to sec. 2 (b) ante. Child cleaning machine 
 in motion: Taylor v. Dawson, 1911, IK, B. 145. 
 
 55. The doctrine of common employment affords no 
 defence where injury has been caused to a servant 
 by a breach of a statutory duty imposed on the 
 . master : David v. Britannic Merthyr Coal Co., 1909, 
 2KB. 146; and see 26 T. L. E. 164. The maxim 
 volenti non fit injuria does not apply where the 
 accident is caused by a breach of statutory duty : 
 Baddeley v. Earl Granville, 19 Q. B. D. 423; Mc- 
 r Clemont v. Kilgour Mfg. Co., 27 O. L. E. 305. 
 Failure to obey the directions of the Factories Act 
 as to guarding dangerous machinery, which results 
 in. injury being caused an employee, gives a cause 
 of action: Groves v. Lord Wimborne, 1898, .2 Q. 
 B. 402; Billing v. Semmens, 7 0. L. E. 340, 8 0. 
 L. E. 540; Meyers v. Sault Ste. Marie Pulp Co., 3 
 0. L. E. 600, 33 S. C. E. 23; Pomfret v, Lanca- 
 shire and Yorkshire By., 1903, 2 K. B. 718; Blen- 
 : Mnsopp v. Ogden, 1898, 1 Q. B. 783; Godwin v. New- 
 combe, 1 0. L. B. 525; Carnahan v. Eobert Simp- 
 son Co., 32 0. E. 328; Moore v. Moore, 4 0. L. 
 E. 167; Mcintosh v. Firstbrook, • 8 0. L. E. 419, 
 10 0. L. E. 526 ; McBain v. Waterloo Mfg. Co., 8 
 0. L. E. 333. See E. S. 0. 1914, ch. 146, sec. 3 (a), 
 notes, especially notes on common law and statutory 
 liability, defective system, defects in the ways, etc., 
 and common employment; also sec. 3 (b), notes. 
 
 It was held that the onus was on the plaintiff to 
 shew that the mechanical device has not been 
 approved. If it has neither been approved or dis- 
 approved, the question still is whether the device 
 
H90 CHAPTER 229. 
 
 used is of a character and make as to render the 
 use of it unreasonable: Black v. Ontario "Wheel 
 Co., 19 0. R. 578. But in a more recent case it was 
 held that the onus was on the defendants, but that 
 it was not necessary for them to shew that the de- 
 vice in concrete form as applied to the elevator had 
 been approved, but only that the kind of device used 
 had been approved: Carnahan v. Robert Simpson 
 Co., 32 0. R. 328. There is no cause of action where 
 the circumstances make it impossible reasonably to 
 draw the inference that the negligence or omission 
 with which the defendants are charged was the 
 cause of the injury complained of: Corcoran v. 
 Montreal Rolling Mills, 26 S. C. R. 595; Kerwin v. 
 Canadian Coloured Cotton Mills, 29 S. C. R. 478; 
 Wakeline v. London S. W. Ry., 12 App. Cas. 41, 
 1896, 1 Q. B. 196; Bergeron v. Tooke, 27 S. C. R. 
 567. The defendants may be liable where there is 
 a breach of the Act and no direct evidence of how 
 the deceased was injured: Wilson v. Lincoln Paper 
 Mills, 9 O. L. R. 119. The guarding is for the pro- 
 tection not only of those operating the machinery, 
 but also of those whose business brings them in prox- 
 imity to such machinery : Moore v. Moore, 4 0. L. R. 
 167 ; see also Lawson v. Packard Electric, 16 0. L. 
 R. 1. Guarding machinery may be impracticable: 
 Allard v. Cleveland Saw (Mills, 12 O. W. R. 
 729. Dangerous machinery not securely guarded: 
 Doherty v. Macdonell, 15 O. W. R. 176, 1 0. W. N. 
 368; Gower v. Glen Woolen Mills, 4 0. W. N. 467, 
 23 0. W. R. 553, 28 0. L. R. 193; McClemont v. 
 Kilgour, 20 0. W. R. 770, 21 O. W. R. 856, 3 0. W. 
 N. 446, 999, 4 0. W. N. 313, 27 0. L. R. 305; Billing 
 v. Semmens, 7 0. L. R. 340, 8 0. L. R. 540; Birt- 
 wistle v. Hindle, 1897, 1 Q. B. 192; Godwin v. 
 Newcombe, 1 0. L. R. 525 ; Choate v. Ontario Roll- 
 ing Mill, 27 A. R. 155; O'Connor v. Hamilton 
 Bridge Co., 25 0. R. 12, 21 A. R. 596, 24 S. C. R. 
 598; Rodgers v. Hamilton Cotton Co, 23 0. R. 425; 
 Moore v. The J. D. Moore Co., 4 0. L. R. 167; 
 Wilson v. Lincoln Paper Mills, 9 0. L. R. 119; 
 Lawson v. Packard Electric Co., 10 0. W. R. 525, 
 11 0. W. R. 72 ; Deeley v. Canadian Westinghouse, 
 9 0. W. R. 736 ; Race v. Harrison, 10 T. L. R. 92 ; 
 Blamires v. Lancashire & Yorkshire Ry., L. R. 8 Ex. 
 283 ; Sharp v. Pathhead Spinning Co., 12 Rettie 574. 
 
CHAPTER 229. HQl 
 
 Hamilton v. Groesbeck, 19 0. R. 76, 18 A. E. 437, is 
 no longer law, having been decided under a former 
 wording of the Act: Wilson v. Owen Sound Port- 
 land Cement, 27 A. R. 328. And see also as to en- 
 forcement of the Act by penalty only: Finlay v. 
 Miscampbell, 20 0. R. 29. Employer's liability for 
 breach of statutory liability; assumption of risk: 
 see Annotation, 5 D. L. R. 328. See R. S. 0. 1914, 
 ch. 146, notes to sec. 3 (a), especially notes on de- 
 fective system, dangerous machines and evidence of 
 cause of death. 
 
 58. Where an elevator was not part of the employer's 
 premises but was used as an adjunct, it was suffi- 
 cient actual occupation for the plaintiff's purposes 
 in a damage action : Jones v. Morton Co., 9 0. W. 
 R. 500 ; see Bacon v. Dawes, 3 T. L. R. 557. 
 
 63. Right of tenant to recover from landlord of factory 
 premises, expenses for structural alterations to 
 which the tenant was put by reason of refusal of 
 authorities to certify the demised premises as suit- 
 able for a bakehouse: Stukey v. Hooke, 1906, 2 K. 
 B. 20. 
 
 81. Penalty: see Finlay v. Miscampbell, 20 O. R. 29. 
 
 -32. See R. S. 0. 1914, ch. 90. The present procedure 
 under that Act and under the Code is apparently in- 
 tended to obviate the difficulty raised in R. v. Simp- 
 son, 28 O. R. 231 : see R. v. Ferguson, 8 0. W. R. 306. 
 
 84. Application to quash early closing by-law affecting 
 grocers in Ottawa : see Re Halliday and Ottawa, 10 
 0. W. R. 46, 14 0. L. R. 458, -and see 15 0. L. R. 65. 
 On such an application it may be shewn that persons 
 who signed the by-law as presumedly of the trade 
 or business whose shops the by-law was designed 
 to close, were not, in fact, of such trade or business. 
 The time specified for the final passing of the by- 
 law, viz., one month after presentation of the peti- 
 tion, is directory. Petitioners have the right of 
 withdrawal before the final passing of the by-law : 
 lb., 10 O. W. R. 46, 14 0. L. R. 458. The council 
 cannot delegate to the clerk the duty of ascertaining 
 whether the petition for the by-law is properly 
 
1192 CHAPTERS 230, 231. 
 
 signed: Ee Halliday and Ottawa, 15 0. L. E. 65. 
 As to right of withdrawal of name from petition: 
 see also Gibson v. North Easthope, 21 A. E. 504, 24 
 S. C. E. 707; Keeling v. Brant, 20 O. W. E. 551. A 
 by-law provided that all shops should be closed at 
 7 p.m., but that it should not be considered an in- 
 fraction of the by-law for any shopkeeper to supply 
 articles after 7 p.m. to mariners, etc., from vessels 
 calling at the port of the town. Held bad as dis- 
 criminating between classes of buyers and classes 
 of tradesmen: E. v. Flory, 17 O. E. 715. Councils 
 can pass early closing by-laws without petition: 
 Simpson v. Caledonia, 20 0. W. E. 874, 3 0. W. N. 
 503. Method of computing number of barbers in 
 city: wording of statute: validity: McCoubrey v. 
 Toronto, 4 0. W. N. 573, 23 0. W. E. 653, 24 0. W. E. 
 904. Where a motion to quash is refused by the 
 Judge who hears it, see as to application for leave 
 for a further appeal: Ee Eeddock and Toronto, 19 
 P. E. 247. 
 
 84.— (4) For " 2 " in last line, read " 3:" 4 Geo. V. 
 ch. 2, sched. (36). 
 
 CHAPTEE 230. 
 The Maternity Boarding House Act. 
 
 CHAPTEE 231. 
 The Children's Protection Act. 
 
 1. Cf . Imperial Act of 1871, 34 Vic. ch. 3. 
 
 2. Section considered : Ee Maher, 28 0. L. E. 419. Power 
 
 given to two Justices does not introduce provisions 
 of E. S. 0. 1914, ch. 90: Ee Grainger, 28 0. E. 255. 
 
 9. See Ee Faulds, 12 0. L. E. 245. 
 
CHAPTERS. 232, 233. ^^93 
 
 11. Appeal: see Ee Grainger, 28 0. B. 255. 
 
 27. Effect of this Statute on the jurisdiction of the 
 
 Supreme' Court as inheritor of the powers of the 
 Court of Chancery ; sections considered : Ee Maher, 
 28 0. L. E. 419. A writ of habeas corpus is a proper 
 method of obtaining production of the child; prac- 
 tice considered : Ee Kenna, 5 0. W. N. 393. Power of 
 Supreme Court to deal with custody of infant whose 
 case has been dealt with by Commissioner: Ee 
 Maher, 4 0. W. N. 1009, 28 0. L. E. 419. Leaving 
 a child with those who had contracted to take proper 
 care of it is not abandonment or desertion. Giving 
 up all claim on child is not abandonment. These 
 words involve such disregard of the welfare of the 
 child as would shew the parent to be unfit to again 
 receive it in his charge : Ee Davis, 13 0. W. E. 939, 
 18 0. L. E. 384. Abandonment or abdication of 
 parental right; when Act applies: Ee Faulds, 12 0. 
 L. E. 245. Abandonment of right of parent: Ee 
 Longaker, 14 0. W. E. 321. The putative father of 
 an illegitimate child has no rights in respect of its 
 custody: Ee Maher, 28 0. L. E. 419. When the 
 legal guardian's custody may be displaced in favour 
 of the parent: Ee Kenna, "4 0. W. N. 1395, 5 0. W. 
 N. 393. 
 
 28. Construction and application of section and power 
 of Court. Eight of father to insist on his religion 
 for child: Ee Kenna, 4 0. W. N. 1395, 24 0. W. E. 
 690.; 5 0. W. N. 393. 
 
 CHAPTEE 232. 
 The Female Patients' and Prisoners' Protection Act. 
 
 CHAPTEE 233. 
 
 The Juvenile Courts Act. 
 
1194 CHAPTEES 234, 235, 236, 237, 238. 
 
 CHAPTER 234. 
 The Minors' Tobacco Sales Act. 
 
 CHAPTER 235. 
 
 The Egbess from Public Buildings Act. 
 
 CHAPTER 236. 
 
 The Theatbes and Cinematographs Act. 
 
 10. Age of children: R. v. Bruce Paton, 20 0. W. R. 533. 
 
 CHAPTER 237. 
 
 The Pbevention of Accddents by Fires in Hotels. 
 
 6. Neglect to provide fire escape in bedroom: Eagle v. 
 Laplante, 20 0. L. R. 339, 15 0. W. R. 289, 1 0. W. 
 N. 413. 
 
 9. Cause of action arising by breach of statutory duty 
 to provide fire escape not taken away by this pro- 
 vision: Hagle v. Laplante, 20 0. L. R. 339, 15 0. W. 
 R. 289, 1 0. W. N. 413. 
 
 CHAPTER 238. 
 The Threshing Machines Act. 
 
CHAPTERS 239, 240, 241, 242, 243, 244, 245. H95 
 
 CHAPTER 239. 
 The Offensive Weapons Act. 
 
 CHAPTEE 240. 
 The Counties Reforestation Act. 
 
 CHAPTER 241. 
 The Forest Fires Prevention Act. 
 
 CHAPTER 242. 
 The Fire Guardians Act. 
 
 CHAPTER 243. 
 
 The Fires Extinguishment Act. 
 
 CHAPTER 244. 
 
 The Beach Protection Act. 
 
 CHAPTER 245. 
 The Beaches and River Beds Act. 
 
2196 CHAPTER 246. 
 
 CHAPTER 246. 
 The Dog Tax and Sheep Protection Act. 
 
 11. Apprehended danger to sheep: McNair v. Collins, 3 
 
 0. W. N. 1639, 22 0. W. E. 891, 27 0. L. R. 44. 
 
 12. The offence under this section is having in posses- 
 
 sion a dog which, wherever the act is done, has wor- 
 ried, killed or injured sheep. Therefore the offence 
 is committed where the defendant lives and this 
 bears on the magistrate's jurisdiction: R. v. Duer- 
 ing, 2 0. L. R. 593. 
 
 14. The right of action given to the owner of sheep 
 killed by dogs is to be prosecuted with the usual 
 procedure Of the appropriate forum, and. the usual 
 rules as to juries and the apportionment of dam- 
 ages by them apply: Fox v. Williamson, 20 A. R. 
 610. The owner of sheep killed or injured by a 
 dog can recover damages under this Act without 
 proving that the dog had a propensity to kill or in- 
 jure sheep, and the Act applies to a case where the 
 dog has been set on the sheep : R. v. Perrin, 16 0. R. 
 446. The Act applies to towns which have with- 
 drawn from the county municipalities : Williams v. 
 Port Hope, 27 C. P. 548. A proceeding under this 
 section is independent of the proceeding under sec. 
 12 and the magistrate has no power to award dam- 
 ages for the injury to the sheep without a separate 
 complaint: R. v. Duering, 2 0. L. R. 593. Damage 
 by animals: see Underhill on Torts, art. 90. 
 
 17. See R. S. 0. 1914, ch. 192, sec. 398 (29). and notes. 
 
 18. Discretion of Council in respect of amount paid: 
 
 Craig v. Malahide, 13 0. W. R. 686. 
 
CHAPTER 247 H97 
 
 CHAPTER 247. 
 The Pounds Act. 
 
 2. A by-law enacting that certain animals shall not run 
 
 at large does not impliedly allow other animals not 
 named to do so contrary to common law : Jack v. 
 Ontario S. & H. By., 14 U. C. R. 328. 
 
 3. By the common law, it is trespass if cattle are found 
 
 depasturing on a highway (Dovaston v. Payne, 2 H. 
 Black 527; Stevens v. "Whistler, 11 East 51), but by 
 the law of Ontario such a use of the highway may 
 be legalized by the municipal authorities, in whom 
 the highway is vested : see R. S. 0. 1914, ch. 192, 
 sees. 399 (52)-(55), 434. This involves the right 
 to let cattle graze and make a charge therefor: 
 Ross v. East Nissouri, 1 0. L. R. 353. The effect of 
 this Act is to give a right to impound cattle tres- 
 passing and doing damage, but with a condition that 
 if it be found that the fence broken is not a lawful 
 fence, then no damages can be obtained by the im- 
 pounding, whatever may be done in an action of tres- 
 pass. Cattle feeding in the owner's enclosure or 
 shut up in his stable cannot be held to be running 
 at large when they happen to escape from such 
 stable or enclosure into the neighbouring grounds: 
 McSloy v. Smith, 26 0. R. 509. Running at large: 
 see Ibottson v. Henry, 8 0. R. 625. Cattle running 
 at large going on Crown lands and thence on rail- 
 way: see Fensom v. C. P. R., 7 0. L. R. 254, and 
 see R. S. 0. 1914, ch. 185, sec. 281, et seq., and notes. 
 
 4. Cattle running at large on Crown lands: by-laws: 
 
 power of townships in unorganized districts to pre- 
 vent cattle running at large : Fensom v. C. P. R. 7 
 0. L. R. 254. 
 
 7. A pound-keeper is a public officer and is not Kable for 
 detaining a distress unless he has done some act 
 beyond his duty, whereby the owner has suffered 
 particular damage not recoverable against the party 
 impounding, or unless he makes himself a party to 
 
1198 CHAPTERS 248, 249, 250, 251. 
 
 an illegal act of the distrainor: Waddell v. Chis- 
 holm, 9 C. P. 125 ; see also Denison v. Cunningham, 
 35 U. C. E. 383; Davis v. Williams, 13 C P. 365. A 
 pound-keeper cannot detain and sell an animal seized 
 by him for damage done to his own close, hut only 
 such as shall be brought to him by some other per- 
 son : Brown v. Williams, 6 0. S. 656. 
 
 10. Selling after security given : see Sargeant v. Allen, 
 29 U. C. E. 384. Wrongful detention: Barber v. 
 Armstrong, 5 P. E. 153. 
 
 19. See McSloy v. Smith, 26 0. E. 509, note to sec. 3, 
 ante. As to setting aside award of fence viewers: 
 see Ee Cameron, 25 IT. C E. 533. Award conclu- 
 sive as to legality of fence : Short v. Palmer, 24 U. 
 C. E. 633; Stedman v. Wasley, E. T. 4 Vic. 
 
 CHAPTEE 248. 
 The Injured Animals Act. 
 
 CHAPTEE 249. 
 The Ontario Stallion Act. 
 
 CHAPTEE 250. 
 The Natural Gas and Oil Wells Act. 
 
 CHAPTEE 251. 
 The Steam Threshing Engines Act. 
 
CHAPTERS 252, 253. -, ■, gg 
 
 CHAPTER 252. 
 Thk Steam Boiler Act. 
 
 CHAPTER 253. 
 
 The Noxious Weeds Act. 
 
 3. An occupier of land is at common law under no obli- 
 gation to cut thistles naturally growing on his land 
 so as to prevent them seeding. If he neglects to 
 cut them and they seed and blow on his neighbour's 
 land and do damage, he is not liable : Giles v. Walker. 
 24 Q. B. D. 656; see also Ponting v. Noakes, 1894, 
 2 Q. B. 281. Municipal corporations are not 
 " owners " or " occupants " of highways in their 
 municipalities under this Act, nor does the word 
 "land" therein include street or highway: Os- 
 borne v. Kingston, 23 0. R. 382. The statute does 
 not change the character of the inaction imputed 
 as waste. A tenant for life is not thereby made 
 liable to the remainderman though there may be a 
 direct remedy against the occupant or owner under 
 the statute: Patterson v. Central Canada Loan, 29 
 O. L. R. 134. For a railway company to permit 
 grass and weeds to grow on a side track is not such 
 negligence as to make it liable to compensate an 
 employee who is injured in consequence, in the 
 course of his employment: Wood v. C. P. R., 6 B. 
 C. R. 561, 30 S. C. R. 110. (See R. S. C. 1906, ch. 
 37, sec. 296.) 
 
 6. The appointment of an inspector is discretionary with 
 the council unless petitioned as provided. The 
 appointment of an overseer is quite discretionary. 
 In the absence of such appointments no duty is cast 
 on the council to cut down noxious weeds growing 
 in the streets : Osborne v. Kingston, 23 0. R. 382. 
 
1200 CHAPTERS 254, 255, 256,. 257, 258. 
 
 CHAPTEE 254. 
 The Fruit Pest Act. 
 
 CHAPTEE 255. 
 The Barberry Shrub Act. 
 
 CHAPTEE 256. 
 The Ginseng Act. 
 
 CHAPTEE 257. 
 The Bee Protection Act. 
 
 CHAPTEE 258. 
 
 The Foul Brood Act. 
 
 6. Liability for contravention of the statute. Considera- 
 tion of application of statute passed for the benefit 
 . of a class : McKay v. Davey, 28 0. L. E. 322. 
 
CHAPTER 259. 1201 
 
 CHAPTER 259. 
 
 The Line Fences Act. 
 
 3. A boundary fence should be so placed that when com- 
 pleted the vertical centre of the board wall will coin- 
 cide with the limit between the lands of the parties, 
 each owner being bound to support it by appliances 
 placed on his own land : Cook v. Tate, 26 0. R. 403. 
 Adjoining landowners made an agreement to build 
 a line fence less than 5 feet high between their lots, 
 each assuming to build and repair a definite portion. 
 The defendant allowed his portion to fall into dis- 
 repair and his cattle got on the plaintiff's land and 
 did damage. A township by-law provided that no 
 fence should be less than 5 feet high. The defendant 
 was held liable and such liability was not displaced 
 by the by-law: Barber v. Cleave, 2 O. L. R. 213. 
 Consideration of these sections and proceedings of 
 fence viewers: Delamatter v. Brown, 13 0. W. R. 
 58, 862. 
 
 7. Duties of fence-viewers in making award: Miller v. 
 
 [Mackenzie, 14 0. W. R. 542. It is manifest that the 
 fence-viewers call in a surveyor merely to aid them 
 to do what they have authority to do without him: 
 Delamatter v. Brown, 13 0. W. R. 862. As to 
 awards, see R. S. 0. 1914, ch. 67, and notes. 
 
 8. As to reception of copy of fence-viewers' award as 
 
 evidence : see Warren v. Deslippes, 33 U. C. R. 59. 
 
 12. Right of appeal : see Re McDonald and Cattenach, 5 
 P. R. 288, 30 TJ. C. R. 432. See Bicknell and Seager, 
 p. 253. The provisions of this Act apply to the 
 Snow Fences Act: see R. S. 0. 1914, ch. 211, sec. 
 3 (6). 
 
 s.A. — 7(5 
 
1202 
 
 CHAPTER 260. 
 
 CHAPTER 260. 
 
 The Ditches and Watebcoubses Act. 
 
 2. See E. S. 0. 1914, ch. 42 and ch. 198, and notes. 
 
 3. — (^) if the initiating party is not really an owner, the 
 .filing of a declaration of ownership under the Act 
 will not give jurisdiction: Logan v. McKillop, 25 A. 
 E. 498, 29 S. C. E. 702. Prior to amendment of 62 
 Vic. see as to " owner:" Logan, v. McKillop, 25 A. 
 E. 498, 29 S. C. E. 702 ; McLellan v. Chinguacousy, 
 27 A. E. 355 ; York v. Osgoode, 24 O. E. 12, 21 A. E. . 
 168, 24 S. C. E. 282. 
 
 5. A municipal council could not appoint B. engineer, 
 
 pursuant to the former wording of this section, when 
 they had already appointed A. under a previous by- 
 law without notice to A. or revoking his appoint- 
 ment : Turtle v. Euphemia, 31 O. E. 404. See Cud- 
 dahee v. Mara, 12 O. L. E. 522, noted post. 
 
 6. Sufficient outlet: cf. E. S. 0. 1914, ch. 198, sees. 2 (m), 
 
 and 63 notes. " A sufficient outlet " is one that 
 enables the water to be discharged without injuri- 
 ously affecting the lands of another, and if the out- 
 let chosen by the engineer is not a proper outlet, his 
 award is no protection to those acting under it as 
 against one not a party to it : McGillivray v. Lochiel, 
 8 0. L. E. 446. As to damages and proportion at- 
 tributable to each: lb. 
 
 8. Municipality : see McLellan v. Chinguacousy, 27 A. E. 
 355. Initiating party not owner: see Logan v. Mc- 
 Killop, 25 A. E. 498, 29 S. C. E. 702. Initiating 
 party not owner; are the proceedings valid if there 
 is a majority without him: York v. Osgoode, 24 0. 
 E. 12, 21 A. E. 168, 24 S. C E. 282. The provisions 
 of this section, the filing of the declaration and the 
 calling of the meeting are directory provisions only 
 and are not essential to the jurisdiction of the en- 
 gineer and may be cured by sec. 23 : Maisonneuve v. 
 Eoxborough, 30 0. E. 127. See also Mandley v. 
 Monck, 14 0. "W. E. 65. 
 
CHAPTER 260. 1203 
 
 9. A township municipality within the limits of which a 
 ditch is constructed under this Act, in accordance 
 with the engineer's award made in assumed com- 
 pliance with a requisition of ratepayers, is not liable 
 for damages caused by the construction though the 
 requisition be in fact defective: Seymour v. Maid- 
 stone, 24 A. E. 370. * 
 
 16. Mandamus will not lie against municipality to com- 
 pel their engineer to act : Dagenais v. Trenton, 24 O. 
 E. 343. 
 
 19. Award by engineer invalidly appointed: Turtle v. 
 Euphemia, 31 0. E. 404. No action lies to recover 
 damages because of a failure to comply with 
 an award made under this Act. The remedy, 
 if any, is under the Act itself: Dalton v. Ash- 
 field, 26 A. E. 363. The purchaser of land 
 from an owner who was a party to proceed- 
 ings under the Act in respect of that land is 
 entitled to enforce the award: lb. The only 
 remedy for non-completion of the work is that pro- 
 vided by the Act itself: Hepburn v. Orford, 19 O. E. 
 585; see sec. 28, post. Where a municipality has, 
 pursuant to an award in proceedings initiated by it, 
 constructed without negligence a drain from a high- 
 way to a river through an adjoining owner's land, 
 it is not liable to make compensation under the 
 Municipal Act to that adjoining owner in case his 
 land has been injuriously affected by the drain : Ee 
 McLellan and Chinguacousy, 27 A. E. 355; see E. 
 S. O. 1914, ch. 192, sec. 325. 
 
 21.— (1) Application of Act to railways: see Miller v. 
 G-. T. E., 45 IT. C. E. 222 ; McCrimmon v. Yarmouth, 
 27 A. B. 636. 
 
 21— (8) The provisions of this section are directory 
 merely: Ee McFarlane and Miller, 26 O. E. 516. 
 Appeal : see Ee McDonald and Cattenach, 30 U. C. 
 E. 432. 
 
 23 The validating power of this section will not coyer 
 an award or proceedings where the party initiating 
 is not an owner: Logan v. McKillop, 25 A E.J98, 
 29 S. C. E. 702. Nor when there is a fundamental 
 
1204 
 
 CHAPTER 260. 
 
 invalidity in the appointment of the engineer: Tur- 
 tle v. Euphemia, 31 0. E. 404. It will cover non- 
 compliance with the exact terms of sec. 8: Maison- 
 neuve v. Eoxborough, 30 O. B. 127. 
 
 25. Appeals and procedure : see Bicknell and Seager, pp. 
 
 253, 278, 559, 56l! 
 
 26. Moneys paid by a municipality under this Act for 
 the construction of a ditch when placed on the col- 
 lector's roll become a charge on the lands traversed 
 by the ditch in the hands of the respective owners 
 for the time being: Wicke v. Ellice, 11 0. L. E. 422. 
 Authorization of reeve for amounts being placed 
 on collector's roll: Bose v. Morrisburg, 28 0. B. 245. 
 
 28. See Hepburn v. Orf ord, 19 0. B. 585 ; Dalton v. Ash- 
 field, 26 A. B. 363; also Kelly v. O'Grady, 34 TJ. C. 
 B. 562, note to sec. 19, ante; see also Kelly v. 
 O'Grady, 34 U. C E. 562. Time for engineer to 
 take action: see Bose v. Morrisburg, 28 0. B. 245. 
 Duty of engineer to inspect: 'Byrne v. Campbell, 
 15 0. B. 339. "Work under an award not performed 
 as contracted for may be relet: Cuddahee v. Mara, 
 12 0. L. B. 522. 
 
 29. Where a council fixed the engineer's charges at 
 $5.00 per day, his certificate to the clerk under this 
 section that he was entitled to $45, constitutes a 
 prima facie valid claim for that amount: Cuddahee 
 v. Mara, 12 O. L. E. 522. 
 
 33 Where a drain is out of repair and lands are injured 
 by water overflowing from it, the municipality bound 
 to keep it in repair, cannot escape liability on the 
 ground that the injury was caused by an extraor- 
 dinary rainfall, unless it is shewn that even if the 
 drain had been in repair the same injury would 
 have resulted: Mackenzie v. West Flamborough, 26 
 A. E. 198. Damages; remedy: Mandley v. Monck, 
 14 0. W. E. 65, 1 O. W. N. 271. See E. S. 0. 1912, 
 ch. 198, sees. 80, 98, notes. 
 
 35. The township engineer, on the reconsideration of an 
 award, may make any award which might have been 
 
CHAPTERS 261, 262. ^205 
 
 made in the first instance : Cuddahee v. Mara, 12 0. 
 L. E. 522. 
 
 37. Mandatory injunction requiring townships to open 
 up and maintain culvert: Vanderberg v. Markham, 
 15 O. W. E. 321, 1 0. W. N. 441. 
 
 CHAPTEE 261. 
 
 The Cembteey Act. 
 
 2. Interment of the dead. As to cremation, see Gilbert 
 v. Buzzard and Boyer, 2 Hag. Consist. Eep. 333; 
 E. v. Stephenson, 13 Q. B. D. 331. To burn a dead 
 body is not in itself a misdemeanour: E. v. Price, 
 12 Q. B. D. 247. 
 
 25. Common law right to burial : E. v. Coleridge, 2 B. & 
 Aid. 806; Andrews v. Cawthorne, Willes 536; E. v. 
 Taylor, Willes 538, n. 
 
 29. As to manner of burial required by law: Gilbert v. 
 Buzzard and Boyer, 2 Hag. Consist. Eep. 333. 
 Vaults : see Bryan v. Whistler, 8 B. & C. 293 ; Booker 
 v. Vicar of Northfleet, 3 Add. 14. 
 
 44. Eights of plot-owners and trustees: Serson v. Will- 
 son, 13 0. W. E. 180. 
 
 CHAPTEE 262. 
 
 The Ohtabio Game and Fishebies Act. 
 
 8. Ownership of wild animals : Ee Long Point and An- 
 derson, 19 0. E. 487, 18 A. E. 401. 
 
 13. Deer hounds at large: E. v. Crandall, 27 0. E. 63. 
 
2206 CHAPTERS 263, 264, 265. 
 
 23 Trespass in pursuit of game: E. v. Lansing, 14 0. 
 W. E. 1007, 1 0. W. N. 186. Bona fide assertion of 
 right; jurisdiction of Justice of the Peace: E. v. 
 Harran, 3 0. W. N. 1107, 21 0. W. E. 951. As to 
 ownership of game followed on to the lands of 
 another, see Deane v. Clayton, 7 Taunt. 489 ; Church- 
 yard v. Studdy, 14 East 249. Game started and 
 killed wrongfully on the lands of another becomes 
 the property of the owner of the land: Blades v. 
 Higgs, 11 H. L. Cas. 621. 
 
 CHAPTEE 263. 
 The Protection op Birds Act. 
 
 CHAPTEE 264. 
 The Wolf Bounty Act. 
 
 CHAPTEE 265. 
 The Department of Education. 
 
 4. Contribution to County Model School by a town in a 
 
 county and municipality separated from it : Toronto 
 Junction P. S. Board v. York, 3 0. L. E. 416. 
 
 5. Eegulation as to hours of study: Shaver v. Cam- 
 
 bridge, 18 0. W. E. 501, 2 0. W. N. 686. 
 
CHAPTER 266. -£207 
 
 CHAPTEE 266. 
 
 The Public Schools Act. 
 
 Refer to McMurrich and Roberts, School Law of On- 
 tario ; Maclean, Law Concerning Secondary and Pre- 
 paratory Schools (Eng.). 
 
 2.— (i) " Ratepayer :" see McFarlan v. Greenock School 
 Trustees, 8 0. W. R. 672, 9 0. W. R. 183, 13 0. L. R. 
 220. 
 
 8. Religions instruction : Shaver v. Cambridge, 18 W 
 R. 501, 2 0. W. N. 686. 
 
 11.— (1) Meeting of " ratepayers;" cf. see 2 (i), 59, 54 
 (4). When the word " ratepayers " in the Act is 
 used in relation to those who have a right to vote, 
 it includes farmers' sons: McFarlan v. Greenock 
 School Trustees, 8 0. W. R. 672, 13 0. L. R. 220, 9 
 0. W. R. 183. Sufficient consent of meeting: see 
 Re McCormack and Colchester, 46 U. C. R. 65. What 
 is a sufficient meeting : see Re Taber and Scarboro ", 
 20 U. C. R. 549. The school trustees cannot, with- 
 out reference to the ratepayers, select and purchase 
 the school site: Orr v. Ranney, 12 TJ. C R. 377. 
 Dissent of school trustees from a decision of rate- 
 payers as to school site must be intimated promptly : 
 Coupland v. School Trustees of Nottawasaga, 15 
 Gr. 339. Site selected at one meeting changed at a 
 subsequent meeting: see Wallace v. School Trustees 
 of Lobo, 11 0. R. 648. The vital matter to be voted 
 on must be laid before the meeting so that a fair 
 vote can be had unequivocally indicating the mind 
 of the majority on the particular point: McGugan 
 v. School Trustees of Southwold, 17 0. R. 428. The 
 words " selection of a site for a new school house " 
 refer to a selection of a site in a newly established 
 school section, and probably also to the selection 
 of a site for an additional school house, while the 
 words " change of site for an existing school 
 house " refer to the case where a site has been 
 chosen and a school house provided, but which it is 
 deemed desirable to abandon and to choose a new 
 
1208 CHAPTER 266. 
 
 site. The section does not apply to the case of a 
 new school house to be built on an existing site: Be 
 P. S. Trustees of Cartwright, 4 0. L. E. 272, 5 0. 
 L. E. 699. As to purchase of school sites : see E. S. 
 0. 1914, ch. 277. 
 
 11. — (2) It is only in case of a difference between the 
 trustees on the one hand and a majority of the 
 meeting of ratepayers on the other as to a school 
 site selected by the trustees that an arbitration is 
 to be had. Where the majority voted at the meeting 
 in favour of a change of site without any selection 
 of site having been made by the trustees, there was 
 no foundation for an arbitration and an award was 
 absolutely void: Ee P. S. Trustees of Cartwright, 
 4 0. L. E. 272, 5 0. L. E. 699. Before arbitration pro- 
 ceedings can be taken and an award made the trus- 
 tees must first come to a decision, which the rate- 
 payers decline to approve of on the matter being 
 submitted to them. An award made without such 
 pre-requisites is nugatory, and the fact that it is 
 valid on its face is no answer to an application for 
 a mandamus to compel a township municipality to 
 pass a by-law to raise the amount required for the 
 purchase of a site and the erection of a school house 
 where it appears to have been made without juris- 
 diction : Ee. P. S. Trustees of Cartwright, 4 0. L. 
 E. 272, 5 0. L. E. 699. Difference of opinion author- 
 izing an arbitration: Township of Toronto v. Mc- 
 Bride, 29 U. C. E. 13. Appointment of arbitrator 
 at subsequent meeting: Malcolm v. Malcolm, 15 Gr. 
 13. Sufficiency of reference and award: Vance v. 
 King, 21 U. C. E. 187; Eyland v. King, 12 C. P. 
 198. Under the law as it stood prior to 1904, the 
 arbitrators appointed in pursuance of this section 
 could determine only whether or not the site selected 
 by the trustees was a suitable one. They had no 
 power to select another site: Ee Sombra P. S., Sec. 
 No. 26, 6 0. L. E. 585. As to effect of amendments 
 of 1904 : see Ee McLeod and Tay, 10 0. W. E. 649, 
 
 11. — (3) Eeconsideration : Williams v. Plympton, 7 C. P. 
 559. 
 
 15.< — (1) In by-laws altering existing school sections or 
 adding territory to them, the lots and parts of lots 
 
CHAPTER 266. 1209 
 
 dealt with must be accurately and exactly described : 
 Ee Sydenham School Sections, 6 0. L. B. 417, 7 0. 
 L. E. 49. Indefiniteness in description of bound- 
 aries: Ee Simmons and Chatham, 21 U. C. E. 75. 
 Uncertainty: Haake v. Markham, 17 U. C. E. 562. 
 Sufficiency of description; map as evidence: Ee 
 Shorey and Thrasher, 30 U. C. E. 504. A motion to 
 quash a by-law of a municipality altering the 
 boundaries of a school section on the ground that it 
 is invalid, must since 1906, be made to the Judge of 
 the county or district in which the section is situate 
 and not to the Supreme Court, which has jurisdiction 
 only on an appeal: Ee Almonte Board of Educa- 
 tion and Eamsay, 12 O. L. E. 486. By-law informal 
 but not substantially defective : Ee Leddingham and 
 Bentinck, 29 U. C. E. 206. Necessity for notice: 
 Griffiths v. Grantham, 6 C. P. 274; Ee Shaw and 
 Manvers, 19 U. C. E. 288; Ee Isaac and Euphrasia, 
 17 U. C. E. 205. Proof of notice: Ee Taylor and 
 West Williams, 30 U. C. E. 337. Sufficiency of 
 notice; "parties affected:" Ee Patterson and Hope, 
 30 TJ. C. E- 484. If sufficient notice given, township 
 Council not bound to await any request before pass- 
 ing by-law: Ee Ley and Clarke, 13 TJ. C. E. 433. The 
 by-law establishing a township board may be at- 
 tacked with a view to its repeal again and again 
 so long as the agitation against it subsists: Ee 
 Tuekersmith P. S. Board, 16 O. E. 604. Union of 
 sections in different townships: see sec 21, infra. 
 
 15— (2) Time of taking effect: Cotter v. Darlington, 11 
 C P 265; Ee Mclntyre and Elderslie, 27 C. P. 58; 
 Ee Patterson and Hope,' 31 U. C. E. 360; Ee Isaac 
 and Euphrasia, 17 U. C. E. 205; Ee McAlpine and 
 Euphemia, 45 U. C. E. 199. Five years' limit: see 
 Be Amaranth and Dufferin, 30 O. E. 43. Where a 
 by-law has been regularly passed creating a new 
 rural school section from parts of existing school 
 sections, it is ultra vires a township council to repeal 
 or alter the by-law until the expiration of five years, 
 even where the repealing by-law is passed before 
 that creating the new section is to take effect. lne 
 only remedy is to appeal to the County Council un- 
 der sec 17: Ee Powers and Chatham, 29 O. K. 571, 
 26 A E 483 " Year " means calendar year com- 
 mencing 1st 'January and ending 31st December: 
 Ee Asphodel and Humphries, 24 O. E. o8J. 
 
1210 CHAPTER 266. 
 
 15. — (4) Incorporation into city: see Carleton v. Ottawa 
 P. S. Board, 25 C. P. 137. 
 
 17. — (1) Appeal: see Ee Powers and Chatham, 29 0. E. 
 571, 26 A. E. 483, see note to sec. 15 (2), ante. There 
 is no appeal from the refusal of a township council 
 to " divide " a school section: Ee Hamilton School 
 Section, 29 0. E. 390. A county council has no 
 jurisdiction to entertain appeal or appoint arbitra- 
 tors unless a notice of appeal has been duly given: 
 Ee Martin and Simcoe, 25 0. E. 411. Appeal against 
 by-law uniting school sections: see Ee Proper and 
 Oakland, 34 TJ. C. E. 266. Parties to action to set 
 aside by-law as invalid: Holt v. Medonte, 22 0. E. 
 302. 
 
 17. — (3) There is no right to appoint arbitrators unless 
 notice of appeal is duly given under sub-sec. 1 or 
 satisfactory evidence of waiver of objection by all 
 persons interested: Ee Martin and Simcoe, 25 0. 
 E. 411. Provision for appointment of arbitrators 
 is permissive and not imperative: Ee Wooliver and 
 Kent, 31 0. E. 606. Arbitrators have no power to 
 unite two school sections on an appeal against a 
 refusal to comply with an application to alter boun- 
 daries: Ee Southwold School Sections, 3 0. L. E. 
 81. There is power to remit the matters or any of 
 them for reconsideration by the arbitrators : see E. 
 S. 0. 1914, ch. 65, sec. 12; Ee Churchill and Hul- 
 lett, 11 0. L. E. 284. The arbitrators appointed on 
 appeal from a refusal of the township council to 
 alter school sections have power only to grant or 
 refuse what is asked for in the petition: Ee Syden- 
 ham School Sections, 6^0. L. E. 417, 7 O. L. E. 49. 
 But there is no reason for limiting the arbitrators' 
 jurisdiction to an exact conformity with the prayer 
 of the ratepayer's petition or a rejection of their 
 request : Ee Churchill and Hallett, 11 0. L. E. 284. 
 The arbitrators appointed under sec. 17 have much 
 less extensive powers than those appointed under 
 sees. 21 and 22: Ee Mersea, 12 0. W. E. 88, 16 0. 
 L. E. 617. Procedure on appeal from school award : 
 Ee Mersea, 12 0. W. E. 417, 16 0. L. E. 617. 
 
 19. See sec. 28 note. As to purchase of school sites, see 
 E. S. 0. 1914, ch. 277. 
 
CHAPTER 266. 1211 
 
 20. — (1) Existence de facto: see Nichol School Trustees 
 v. Maitland, 26 A. B. 506. 
 
 20. — (3) A motion to quash a by-law of a municipality 
 altering the boundaries of a school section on the 
 ground that the by-law is invalid must since 1906 
 (6 Edw. VII. ch. 53, sec. 29 (4) be made to the 
 Judge of the County Court of the county in which 
 the section is situate and not to the High Court: 
 Ee Almonte and Bamsay, 12 0. L. E. 486, 8 O. W. E. 
 147. Appeal to the High Court by leave : Ee Mersea, 
 12 O. W. E. 88, 16 O. L. E. 617. 
 
 21. — (1) Eight to question in action validity of forma- 
 tion of union school section : Askew v. Manning, 38 
 U. C. E. 345. Union of sections in different town- 
 ships: see Halpin v. Calder, 26 C. P. 501; Ee Ley 
 and Clarke, 13 U. C. E. 433; Ee Hart and Vespra, 
 16 U. C. E. 32; Ee Petition of Minister of Educa- 
 tion, 28 C. P. 325; Boyd v. Bobcaygeon P. S. Board, 
 43 TJ. C. E. 35 ; Askew v. Manning, 38 U. C. E. 345. 
 " Bequest:" see Ee Ness and Saltfieet, 13 U. C. E. 
 408. 
 
 21._(2) See Ee Wawanosh and Hullett v. Lockhart, 27 
 O. E. 345. 
 
 21_(9) Power of arbitrators to dissolve union; not 
 justified in taking a portion of territory outside vil- 
 lage municipality and attaching it to the village : Ee 
 Chesterville P. S. Board, 29 O. E. 321. Power of 
 arbitrators : see Ee Sydenham School Sections, 6 0. 
 L. E. 417, 7 0. L. E. 49; Ee Churchill and Hallett, 
 11 0. L. E. 284; Southwold School Sections, 3 0. L- 
 E. 81. For distinction regarding powers of arbi- 
 trators under sections 21 and 22 and under sec. 17 ; 
 see Ee Mersea, 12 0. W. E. 88, 16 0. L. E. 617. As 
 to procedure on appeal : see Ee Mersea, 12 O. W . E. 
 417, 16 0. L. E. 617; see note to sec. 17, ante. 
 
 21 —(17) As to whether an award of arbitrators is con- 
 clusive for five years, though the award be that no 
 change be made in the boundaries: see Ee Wawa- 
 nosh 26 0. E. 463; Ee Wawanosh and Hullett v. 
 Locknart, 26 0. E. 662, 27 0. E 345 ^years' 
 limit: see also Ee Amaranth and Duffenn, 30 0. E. 
 43, and notes to sec. 35 (2), ante. 
 
1212 CHAPTER 266. 
 
 22. As to powers of arbitrators : see notes to sees. 17 (3) 
 and 21 (9). 
 
 27. See Ee Eockland P. S. Board and Rockland H. S. 
 Board, 10 0. W. R. 1002. 
 
 28. School board making title on sale of lands: Re 
 Hamilton B. of E. and McNichol, 12 0. W. R. 1015. 
 
 30 Necessity for notice: see Re Martin and Simcoe, 25 
 O. R. 411, note to sec. 17 (3) ; see also notes to 
 sec. 15 ante. 
 
 31. Two schools in one section. The trustees may do 
 what the minister has power to compel them to do 
 • under this section: Re Medora S. S., 18 O. W. R. 
 279, 992, 2 0. W. N. 594, 985, 23 0. L. R. 523. 
 
 39. An Act of the legislature providing for the valida- 
 tion of a by-law giving a manufacturing company 
 exemption from taxation, must be construed as 
 limited to such taxes as the municipality had the 
 power of exemption, and so not extending to exemp- 
 tion from school taxes: Pringle v. Stratford, 14 
 0. W. R. 437, 15 O. W. R. 38, 20 0. L. R. 246; see 
 also Whyte Packing Co. v. Stratford, 42 S. C R. 
 691. As to bonus by-laws by way of tax exemption, 
 see R. S. 0. 1914, ch. 192, sees. 395 (f), 396 (e), and 
 notes. 
 
 43. — (1) " Application " to the council; validity of loan 
 by-law: Re McGrloghlon and Dresden,, 14 0. W. 
 R. 734, 1 0. W. N. 74. Employment of architect: 
 see Erb v. Dresden P. S. Board, 12 0. W. R. 864, 
 13 0. W. R. 503, 18 0. L. R. 295; note to sec. 73 (e). 
 Public school trustees should not undertake for 
 building purposes, an outlay in excess of the funds 
 provided by the council: Smith v. Fort William 
 P. S. Board, 24 0. R. 366. They are not however 
 restricted to the debentures voted by the council, 
 but may also use other moneys of which they have 
 control: Forbes v. Grimsby P. S. Board, 6 0. L. 
 R. 539. Duty of Council in regard to money to be 
 raised: Toronto P. S. Board v. Toronto, 2 0. L. R. 
 727, 4 0. L. R. 468; and see post, sees. 47, 73 (d), 
 (o), and notes. See also R. S. 0. 1914, ch. 268, sec. 
 24 (h), notes. 
 
CHAPTER 266. 2213 
 
 43. — (3) Assent of electors: see Ee McOormick and 
 Colchester, 46 U. C. E. 65. For form of affidavit on 
 application to the Ontario Bailway and Municipal 
 Board to confirm By-law under this section, see E. 
 S. 0. 1914, ch. 192, sec. 295, notes. 
 
 44. See remarks as to duty of municipal council in regard 
 to money to be raised under this section : Ee Toronto 
 P. S. Board v. Toronto, 2 0. L. E. 727, 4 0. L. E. 468 ; 
 Ee McLeod and Tay, 10 0. W. E. 649. Submission 
 to general meeting and sanction: see Ee Mc- 
 Cormack and Colchester, 46 U. C. E. 65. Payment 
 of money to secretary-treasurer who absconds: 
 Hamilton School Trustees v. Neil, 28 Gr. 408. By- 
 law authorizing school trustees to sign instead of 
 the reeve, held fatally defective although the reeve 
 actually signed the debentures: Ee Mclntyre and 
 Elderslie, 27 C. P. 58. Eequisites of by-law : Hart 
 v. Vespra, 16 IT. C. E. 32. For form of affidavit on 
 application to the Ontario Eailway and Municipal 
 Board to confirm by-law under this section, see E. S. 
 0. 1914, ch. 192, sec. 295, notes. 
 
 45. See Toronto P. S. Board v. Toronto, 2 0. L. E. 727, 
 4 0. L. E. 468. 
 
 47. General policy to govern trustees in preparing 
 requisition and municipality in scrutinizing it: see 
 Toronto P. S. Board v. Toronto, 2 0. L. E. 727, 4 
 0. L. E. 468; London Board of Education v. 
 London, 1 0. L. E. 284 (see p. 287); and other 
 cases noted at sec. 73. School rates; collection; 
 distress : Coleman v. Kerr, 27 U. C. E. 5 ; Harl- 
 ing v. Mayville, 21 C. P. 499; Spry v. McKenzie, 
 18 U. C. E. 161. Collector's warrant: Gillies v. 
 "Woods, 13 TJ. C. E. 357. Excessive amount col- 
 lected:' Nottawasaga School Trustees v. Nottawa- 
 saga, 15 A. E. 310, and see Dig. Ont. Case Law, cols. 
 6264-6266. Imposition of rates; building school- 
 house : Ee Taber and Scarborough, 20 IT. C. E. 549. 
 Costs : Ee Turnan and Nepean, 15 U. C. B. 87 ; 
 Ee Johnson and Harwich, 30 U. C. E. 264; Scott 
 v. Burgess, 21 C. P. 398. Travelling expenses: 
 Stark v. Montague, 14 U. C. E 473. Salary of 
 Teacher: Stark v. Montague, 14 U. C. -K. 4(d; 
 Munson v. Collingwood, 9 C. P. 497; and see Dig. 
 
1214 
 
 CHAPTER 266. 
 
 Ont. Case Law, cols. 6266-6267. How imposition 
 of rates effected: by-law: De la Haye v. Grore of 
 Toronto, 2 C. P. 317, 3 C P. 23; Ee Dunlop and 
 Druro, 18 U. C. E. 227. Eesolution of trustees: 
 Coleman v. Kerr, 27 U. C. E. 5. Inequality: Ee 
 Scott and Ottawa, 13 U. C. E. 346; Harling v. 
 Mayville, 21 C. P. 499. Voluntary subscription: 
 McMillan v. Eankin, 19 U. C. E. 356; Craig v. 
 Eankin, 10 C. P. 186; (and see Dig. Ont. Case Law, 
 cols. 6267-6270). Mandamus to municipal corpora- 
 tions to levy rates: Kennedy v. Sandwich, 9 TJ. 
 C. E. 326; (Dig. Ont. Case Law, cols. 6270-6273). 
 Mandamus to school trustees to levy rates: Ee 
 Johnson and Harwich, 30 U. C E. 264; Scott v. 
 Burgess, 21 C. P. 398; (Dig. Ont. Case Law, cols. 
 6273-6274. As to submission of " estimates " by 
 board of education: see infra sec. 73 (n), note. 
 The municipal council has the right, and it is its 
 duty to take some care that it is not made the in- 
 strument by which any excess of the powers of the 
 board of education is given effect to by levying for 
 them any sum which the law does - not authorize 
 them to exact: London Board of Education v. 
 London, 1 0. L. E. 284. 
 
 48. — (3) Under this section it would seem that public 
 schools are for children between the ages of 5 and 
 21 years. Only those between 8 and 14 years are 
 subject to the Truancy Act, E. S. O. 1914, ch. 274, 
 sec. 3. Only those under 17 and actually attending 
 school are entitled, under the Eailway Act, E. S. 
 0. 1914, ch. 185, sec. 210 (16), to the benefit of 
 reduced fares : Ee Sandwich East and the "W. and 
 T. Electric Ey., 12 O. W. E. 370, 16 O. L. E. 641. 
 
 48. — (4) Presumption of regularity of map: see Bur- 
 ford School Trustees v. Burford, 18 O. E. 546; 
 Ee Shorey and Thrasher, 30 U. C. E. 504; Nichol 
 School Trustees v. Maitland, 26 A. E. 506; (see 
 history of section at pp. 510, 511). 
 
 49. — (1) Liability of school board in contract; corporate 
 seal : Quin v. Seymour School Trustees, 7 U. C. E. 
 130; see note to sec. 87 (1). Purchase of land: Smith 
 v. Belleville School Trustees, 16 Gr. 130. Liability 
 of trustees on contract : see Anderson v. Van Sittart, 
 
CHAPTER 266. 1215 
 
 5 U. C. E. 335 ; Sheriff v. Patterson, 5 IT. C. E. 620. 
 Promissory note: see Township of Toronto v. Mc- 
 Bride, 29 U. C. E. 13. School trustee sued for acts 
 done in his corporate capacity : see Spry v. Mumby, 
 11 C. P. 285. A school board has an action for 
 money had and received against their secretary- 
 treasurer for money in his hands not expended or 
 accounted for : Stephen School Trustees v. Mitchell, 
 29 U. C. E. 382. It is the school board and not the 
 schoolmaster who can sue for trespass to the' school- 
 house : Monaghan v. Ferguson, 3 U. C. E. 484. 
 
 49.— (3) " Eesidents," what amounts to qualification 
 within this term: see E. ex rel. Horan v. Evans, 
 31 0. E. 448. 
 
 54. — (10) Validity of election; acquiescence of board in 
 proceedings looking to new election: Foster v. 
 Stokes, 2 0. E. 590. 
 
 54. — (11) The provision for investigation as to the 
 election by the inspector, does not prevent the issue 
 of quo warranto: E. ex rel. Horan v. Evans, 31 
 0. E. 448. 
 
 55.— (1) Powers usually possessed by corporations; 
 authority for expenditure of money: Ee Toronto 
 School Board and Toronto, 2 0. L. E. 727, 4 0. L. 
 E. 468. 
 
 55_(2) "Eesident;" Quo warranto: see E. ex rel. 
 Horan v. Evans, 31 0. E. 448. 
 
 59. Eatepayer: see McFarlan v. Greenock School 
 Trustees, 8 0. W. E. 672. See further as to quali- 
 fied electors: E. ex rel. McNamara v. Christie, 9 
 U. C. E: 682. 
 
 64. Election; acquiescence of trustees elect in pro- 
 ceedings for new election: Foster v. btokes, l 
 O E 590. This section presupposes an elec- 
 tion Where there is a tie, there is no election 
 until the proper officer gives his casting vote, and 
 the County Court Judge has no jurisdiction to hear 
 the complaint: Ee Ireland, 22 Occ. N. 151. 
 
1216 
 
 CHAPTER 266. 
 
 73. — ( c ) << Improvements:" see London Board of 
 Education v. London, 1 0. L. B. 284, at p. 287. 
 
 73. — (d) Majority of trustees signing contract under 
 seal for building school, held sufficient: Forbes v. 
 Plympton School Trustees, 8 C. P. 74. Selection 
 of site: see Ee Sombra P. S. Section No. 26, 6 0. 
 L. E. 585. No authority is given to expend money 
 for a teachers' residence, common room for studied, 
 dormitory, parlor, kitchen or garden: Grattan 
 v. Ottawa, 8 0. L. E. 135. Adequate accommodation ; 
 under what circumstances mandamus granted: see 
 Dunn v. Windsor, 6 O. E. 125. Adequate accommoda- 
 tion ; rent of school rooms for children taken care of 
 by charitable institution : see Toronto P. S. Board v. 
 Toronto, 2 0. L. E. 727, 4 0. L. E. 468; see also 
 Ee Hutchinson and St Catharines School Trustees, 
 31 U. C. E. 274. " Eesident:" see Hall v. Stisted 
 School Trustees, 28 0. E. 127, 24 A. E.476. The 
 Court should not lightly obstruct the united action 
 of the council and .the school board in proceeding 
 to establish a new school suitable for the needs of 
 the municipality: Forbes v. Grimsby P. S. Board, 
 6 0. L. E. 539. Duty of Board of Education to 
 expend money for repairs, and particulars required 
 in estimate: see London Board of Education v. 
 London, 1 0. L. E. 284. A school trustee cannot 
 even with the consent of his co-trustees, be a con- 
 tractor for the building of a school house: Lamont 
 v. Aldborough Trustees, 5 C. L. J. 93. Acquisition 
 of school sites : see E. S. 0. 1914, ch. 277. Sale of 
 lands: see sec. 19 ante. 
 
 73. — (e)~.It is within the power of trustees to employ 
 an architect for hire to prepare plans for a pro- 
 posed schoolhouse: Erb v. Dresden P. S. Board, 
 12 0. W. E. 864, 13 0. W. E. 503, 18 0. L. E. 295. 
 Negligence of school board: Shaw v. Board of 
 Education of St. Thomas, 2 0. W. N. 510, 1467, 3 
 0. W. N. 32, 18 0. W. E. 165, 19 0. W. E. 846, 957. 
 
 73.— (g) " The number of schools:" Ee Medora, 2 
 0. W. N. 594, 985, 18 0. "W. E. 279, 992, 23 O. L. 
 E. 523. 
 
 73. — (o) A school board in preparing their estimates 
 may include everything that in their judgment is 
 
CHAPTER 266. -.017 
 
 needed to meet legitimate expenditure. They must 
 disclose generally the several objects of expendi- 
 ture and what is required for each. The duty of 
 the municipal council is to scrutinize each item 
 to ascertain if it is intra vires. When an item is 
 intra vires the municipal council cannot reduce or 
 moderate it: Toronto P. S. Board v. Toronto, 2 
 0. L. E. 727, 4 0. L. E. 468; Nottawasaga P. S. 
 Trustees v. Nottawasaga, 15 A. E. 310. The annual 
 estimate should be of the same character as the 
 estimates of municipal councils for striking rates 
 and contain the like details and not merely state a 
 certain sum as required: London Board of Educa- 
 tion v. London, 1 0. L. E. 284. 
 
 73. — (r) " Acquired for public school purposes " in- 
 cludes acquisition by a board of education of a city 
 of school property in a district annexed : Ee Hamil- 
 ton B. of E. and McNichol, 12 0. W. E. 1015. 
 
 74. Bent of school rooms to be used for children taken 
 care of by charitable organizations : see Ee Toronto 
 P. S. Board and Toronto, 2 0. L. E. 727, 4 0. L. E. 
 468; and see ante, sec. 73 (d), notes. 
 
 77. Secretary-treasurer; appointment: Hamilton School 
 Trustees v. Neil, 28 Gr. 408. Sureties: Water- 
 ford School Trustees v. Clarkson, 23 A. E. 213; 
 see cases collected Dig. Ont. Oase Law, col. 6255. 
 
 84. — (i) Action against trustees and teacher. What 
 amounts to suspension and to expulsion; when 
 malice must be shewn; whether remedy by action 
 or mandamus: see Mclntyre v. Blanchard School 
 Trustees, 11 0. E. 439. Court will not lightly inter- 
 fere with the discretion of the master and trustees 
 in the exercise of disciplinary powers: Ee MoCal- 
 lum and Brant Trustees, 17 0. E. 451. 
 
 87. — (1) Contracts for more than one year: see Grattan 
 v. Ottawa Separate School Trustees, 8 0. L. E. 135. 
 Where trustees enter into an agreement with a 
 teacher and direct the officer having the custody of 
 the seal to affix it, and both parties act on the 
 agreement for two years, it seems that the fact 
 
 8.A.— 77 
 
1218 
 
 CHAPTER 266. 
 
 that the seal has not been actually affixed will not 
 invalidate the agreement: McPherson v. Usborne 
 School Trustees, 1 O. L. E. 261; see also Acheson- 
 v. Bastard School Trustees, 2 0. W. E. 451. Seal 
 and signature: see Lambiere v. South Cayuga 
 School Trustees, 7 A. E. 506; Quin v. Seymour 
 School Trustees, 7 IT. C. E. 130. Absence of writ- 
 ing and seal in engagement of teacher: McMurray 
 v.. East Nissouri P. S. B., 21 0. L. E. 46. Eight 
 of dismissal for good cause necessarily exists as a 
 result of the relation of the parties: Eaymond v. 
 Cardinal School Trustees, 14 A. Bi 562. Proper 
 exercise of option to terminate agreement: Green- 
 less y. Picton P. S. Board, 2 0. L. E. 387. Verbal 
 contract with teacher no basis for action of wrong- 
 ful dismissal: McMurray v. East Nissouri S. S., 15 
 0. W. E. 806. Where an agreement is entered into 
 between teacher and trustees with the intention that 
 it shall supersede a prior agreement between them, 
 and is acted on for several years, and is valid on 
 its face, the onus of shewing its invalidity by rea- 
 son of the requirements of this section rests on the 
 trustees: McPherson v. Usborne School Trustees, 
 1 0. L. E. 261. The trustees have no power to 
 make an agreement for providing the teacher with 
 board and lodging: Quin v. Seymour School Trus- 
 tees, 7 IT. C. E. 130. 
 
 87. — (2) A teacher not legally qualified cannot recover 
 either on agreement under seal or upon the common 
 count for work and labour: "Wright v. Stephen 
 School Trustees, 32 IT. C. E. 541. 
 
 87. — (3) " Three months or over " in former corres- 
 ponding provision : Grliddon v. Yarmouth P. S. Trus- 
 tees, 12 0. W. E. 1001, 17 0. L. E. 343. 
 
 87. — (5) Expiration of agreement — by notice or resig- 
 nation: G-liddon v. Yarmouth P. S. Trustees, 12 Q.» 
 W. E. 1001, 17 0. L. E. 343. 
 
 87. — (6) A teacher cannot maintain an action against a 
 municipality for refusal to levy a rate for his salary 
 upon an estimate furnished by the Trustees : Smith 
 v. Collingwood, 19 IT. C. E. 259. Nor upon an order 
 
CHAPTER 266. lOIQ 
 
 made upon and accepted by the Municipal Trea- 
 surer: Smith v. Collingwood, 19 U. C. E. 259; Mun- 
 son v. Collingwood, 9 C. P. 497. Action against 
 Trustees: Anderson v. Vansittant, 5 U. C. E 335- 
 <3uin v. Seymour, 7 U. C. E. 130. The teachers' 
 might be entitled against the Trustees to a man- 
 damus: Wright v. Stephen School Trustees, 32 U. 
 C. E. 541 ; Quin v. Seymour School Trustees, 7 U. C- 
 E. 130; Welsh v. Leahey, 18 C. P. 48. Arbitration: 
 Tiernan v. Nepean School Trustees, 14 II. C. E. 
 15; Ee Milne and Sylvester, 18 U. C. E. 538. 
 There is no right to arbitrate unless the agree- 
 ment is made by the Trustees under seal. With- 
 out this, the person discharging the duties of 
 teacher has no legal status as such: Birmingham 
 v. Hungerford, 19 C. P. 411. See also for 
 decisions under former arbitration clauses be- 
 tween teacher and Trustees; cases collected: Dig. 
 Ont. Case Law, col. 6296. The Master and Servant 
 Act does not apply to the relation of Trustees and 
 teacher: Ee Joice, 19 U. C. E. 197. Jurisdiction of 
 Division Court : see G-reenlees v. Picton P. S. Board, 
 2 0. L. E. 387. The action is authorized to be 
 brought in the Division Court and the ordinary 
 right of appeal is the appeal authorized by the 
 Division Courts Act: Norton v. Bertie P. S. Trus- 
 tees, 12 0. W. E. 1249, 17 0. L. E. 413. See the 
 special provisions of sec. 105, post. 
 
 88. Christian Brothers as such are not entitled to teach 
 in Separate schools in Ontario: see E. S. 0. 1914, 
 eh. 270, sec. 50 note; Grrattan v. Ottawa Separate 
 School Trustees, 8 0. L. E. 135, 9 0. L. E. 433, (1907) 
 A. C. 69. 
 
 105. Eight of appeal: see Norton v. Bertie P. S. Trus- 
 tees, 12 0. W. E. 1249, 17 0. L. E. 413; note to sec. 
 87 (6), ante. 
 
 116. Eef using to exercise corporate powers : see Eanney 
 v. Macklem, 9 C. P. 192 ; Van Buren v. Bull, 19 U. C. 
 E. 633; Graham v. Hungerford, 29 U. C. E. 239. Ap- 
 peal from conviction under this section: see R. v. 
 Tucker, 10 0. L. E. 56, and see E. S. 0. 1914, ch. 90, 
 sec. 10. 
 
1220 CHAPTER 267. 
 
 119. Disqualification of Trustees : see Lee v. Toronto P. 
 S. Board, 32 C. P. 78; E. ex rel. Stewart v. Stan- 
 dish, 6 0. E. 408; Chaplin v. Woodstock, 16 0. E. 
 728; Lamont v. Aldborough School Trustees, 5 U. 
 C. L. J. 93; and generally see cases noted E. S. 0. 
 1914, ch. 192, sec. 53. 
 
 121. See Ee Medora, S. S. 4, 18 O. W. E. 279, 992, 2 0. 
 W. N. 594, 985, 23 0. L. E. 523. 
 
 123. See E. S. 0. 1914, ch. 192, sec. 302. 
 
 124. Withholding books and money: Ferris v. Chester- 
 field, 10 C. P. 272, 6 U. C. L. J. 163. 
 
 CHAPTEE 267. 
 
 The Continuation Schools Act. 
 
 3. Establishment of continuation schools: see Ee West 
 Nissouri, 3 0. W. N. 478, 726, 1623, 20 0. W. E. 841, 
 21 0. W. E. 533, 22 0. W. E. 842, 25 0. L. E. 550. 
 Continuation school: Henderson v. West Nissouri, 
 17 0. W. E. 210, 18 0. W. E. 1, 19 0. W. E. 292, 20 
 0. W. E. 50, 2 0. W. N. 152, 529, 1131, 23 0. L. E. 
 21, 24 0. L. E. 517, 46 S. C. E. 627. Guarantee of 
 debts of School Board in connection with continua- 
 tion school litigation illegal: McFarlane v. Fitzger- 
 ald, 4 0. W. N. 869, 24 0. W. E. 230. 
 
 6. See Henderson v. West Nissouri, 23 0. L. E. 21, 24 
 0. L. E. 517, 46 S. C. E. 627. 
 
CHAPTER 268. 1221 
 
 CHAPTER 268. 
 The High Schools Act. 
 
 4. Position of the Board as regards continuation schools 
 
 and application to quash by-law establishing same: 
 Re Henderson and West Nissouri, 23 0- L. R. 21, 24 
 0. L. R. 517, 46 S. C. R. 627; and see R. S. 0. 1914, 
 ch. 267 and notes. 
 
 5. Alteration of districts : Re Wilson and Elgin, 21 A. R. 
 
 585, 24 S. C. R. 706; Re Tyrell and York, 35 U. C. 
 R. 247. Repeal of by-law: Re Chamberlain and 
 Stormont, 45 U. C. R. 26 ; Re Morrisburg and Win- 
 chester, 8 A. R. 169. 
 
 13. Although honorary trustees of the property held for 
 public education, the relation of the Trustees to the 
 staff of teachers is in no sense fiduciary: Dunn v. 
 B. of E. for Toronto, 7 0. L. R. 451. 
 
 14. — (1) Appointment of High School Boards and Trus- 
 tees : Dawson v. Sault Ste. Marie, 18 0. R. 556 ; 
 Port Arthur v. Fort William, 25 A. R. 522. Ap- 
 pointment to fill vacancy : R. ex rel. Moore v. Nagle, 
 26 0. R. 249. 
 
 14.— (2) Re Rockland P. S. Board and Rockland H. S. 
 Board, 10 0. W. R. 1002. 
 
 16. Propriety, of High School teacher being member of 
 Council: R. ex rel. O'Shea v. Letherby, 11 0. W. R. 
 929, at 933. 
 
 21. Appointment to fill vacancy: Reg. ex rel. Moore v. 
 Nagle, 26 0. R. 249. 
 
 24. — (h) A mandamus may be granted requiring a town- 
 ship corporation to levy and collect its proportion 
 of the amount required by a High School Board f o)r 
 maintenance of the High School pursuant to a re- 
 quisition, including a deficit from the last school 
 year, there being no Suspicion of mala fides: Re 
 Athens High School Board and Tonge and Escott, 
 
^222 CHAPTER 268. 
 
 5 0. W. N. 100, 29 0. L. E. 360. See also Ee Tor- 
 onto P. S. Board and Toronto, 2 O. L. E. 727, 4 0. 
 L. E. 468; A. Q. v. Lichfield, 17 L. J. Ch. 472; Jones 
 v. Johnson, 5 Ex. 862 ; Haynes v. Copeland, 18 C. P. 
 150. The Municipal Council has the right and duty 
 to see that the annual estimate is not made the in- 
 strument by which any excess of the powers of a 
 board are given effect to by levying for them any 
 sum which the law does not authorize them to exact : 
 B. of E. of London v. London, 1 O. L. E. 284. The 
 application must be the corporate act of the board : 
 Ee Oakwood and Mariposa, 16 A. E. 87 ; B. of E. of 
 London v. London, 1 0. L. E. 284, See note to E. 
 S. 0. 1914, ch. 266, sees. 43, 44, 47, 73 (o). Applica- 
 tions to Municipal Council for funds: see notes to 
 sec. 33, infra. 
 
 24. — (j) Members of the board are the sole judges of 
 what they may deem expedient in each particular 
 case in the matter of the removal or dismissal of a 
 teacher on the grounds of unsuitability for the 
 position: Dunn v. B. of E. for Toronto, 7 0. L. E. 
 451. 
 
 33. Applications to Municipal Council for funds: Ee 
 
 Morrisburg B. of E. and Winchester, 8 A. E. 169; 
 Ee Perth B. of E. and Perth, 39 TJ. C. E. 34; Ee 
 Port Eowan S. S. Trustees and Walsingham, 23 C. 
 P. 11, and see supra, sec. 24 (h) and notes. The 
 school must be really in existence and not merely 
 in contemplation : Sharp v. Peel, 40 U. C. E. 71. 
 
 34. Proportion of liability : Ee Port Arthur and Fort 
 William, 25 A. E. 522. The agreement, sub^sec. (3), 
 deals merely with the settlement of the amount 
 Limits of jurisdiction considered: see B. of E. for 
 Windsor v. Essex, 10 0. L. E. 60. 
 
 37. Mandamus to compel money to be raised to carry 
 on continuation schools : Ee West Nissouri, 3 0. W. 
 N. 478, 726, 1623, 25 0. L. E. 550 (and see E. S. 0. 
 1914, ch. 267, notes). Sufficiency of demand and re- 
 fusal: lb. Forcing contribution to cost of erection 
 as Well as maintenance: Ee Niagara H. S. Board 
 and Niagara, 1 A. E. 288. See also B. of E. of Lon- 
 don v. London, 1 0. L. E. 284, note to sec. 24 (h), 
 ante. 
 
CHAPTERS 269, 270. -,993 
 
 38. The application must be the corporate act of the 
 board: Ee Oakwood and Mariposa, 16 A. K. 87 
 Buildings : Ee Morrisburg B. of E. and Winchesterj 
 8 A. E. 169. Eight of Council to review action of 
 School Board: Ee West Nissouri Continuation 
 School, 3 0. W. N. 478, 726, 1623, 25 0. L. E. 550 
 
 CHAPTEE 269. 
 
 The Boards op- Education Act. 
 
 13. Joint board; powers; buildings: see Ee Morrisburg 
 Board of Education and Township of Winchester, 8 
 A. E. 169. Purchase of new site : Moffatt v. Carle- 
 ton Place Board of Education, 5 A. E. 197. 
 
 21. Powers of Boards of Education: Ee B. of E. and 
 Corporation of Perth, 39 U. C. E. 34; B. of E. of 
 London v. London, 1 0. L. E. 184. 
 
 CHAPTEE 270. 
 
 The Separate Schools Act. 
 
 Eesidents of a section in which a Separate School has 
 been established for the class to which they belong 
 are not entitled to send their children to the general 
 common school of such section : Ee Hill and Camden 
 and Zone, 11 U. C. E. 573. The erection of a Sep- 
 arate School does not annul the rights of those for 
 whom it was established in common schools when 
 the Separate School is no longer kept up these rights 
 revive : Ee Stewart and Sandwich East, 23 U. C. E. 
 634. 
 
 A mandamus to admit a child to a common school may- 
 be refused on the ground of want of accommodation 
 but not on the ground, e.g., of the child's colour, 
 where no Separate School for his class was legally 
 established: Ee Hutchison and St. Catharines. 
 
1224 CHAPTER 270. 
 
 7. See Free v. McHugh, 24 C. P. 13. 
 
 10. Effect of appointment of a Protestant public school 
 teacher before December 25th is to enable the muni- 
 cipality to repeal the by-law but does not of itself 
 put an end to the Separate School : Free v. McHugh, 
 24 C. P. 13. The boundary of a Protestant Separate 
 School Section cannot be extended into or over an 
 adjoining public school section where the teacher 
 in the latter is not a Eoman Catholic: Banks v. 
 Anderdon, 20 0. E. 296. 
 
 11. See Free v. McHugh, 24 C. P. 13. Correction of roll: 
 Be Eidsdale and Brush, 22 U. C. E. 122. 
 
 12. See Free v. McHugh, 24 C. P. 13; Harling v. May- 
 ville, 21 C. P. 499. 
 
 16. See Free v. McHugh, 24 C. P. 13. 
 
 19. No valid incorporation of the Trustees takes place 
 unless the formalities are complied with, e.g. as to 
 the number of resident heads of families present: 
 Arthur E. C. Separate School Trustees v. Arthur, 
 21 0. E. 60. 
 
 45. — (d) School children: see Be Sandwich East and W. 
 & T. Electric By., 16 O. L. E. 641, 12 0. W. E. 370. 
 
 50. " Persons qualified by law as teachers " means those 
 individuals so qualified at Confederation: Brothers 
 of the Christian Schools v. Minister of Education 
 for Ontario, 1907, A. C. 69. See same case sub nom : 
 Grattan v. Ottawa, 8 O. L. E. 135, 9 O. L. E, 433. 
 
 55. Property which was owned by a Separate School 
 supporter and so assessed for rates under by-laws 
 passed before the time of the withdrawal of his sup- 
 port, does not remain liable for such rates in the 
 future unless the property is still owned by him at 
 the time of each asssessment and he resides in the 
 section. But a ratepayer who was such when a loan 
 was effected remains liable for future assessments 
 to the extent of the rateable property he possesses 
 so long as he is resident within the school district: 
 Be Separate Schools Act, 1 0. L. E. 584. Supporters 
 
CHAPTER 270. 
 
 1225 
 
 of a Separate School resident in a town, may by 
 proper notice become supporters of the nearest Sep- 
 arate School in an adjoining rural municipality 
 within three miles distance ; and the High Court has 
 power in an action brought by the Trustees of the 
 rural public school section against the town corpor- 
 ation to adjudge that taxes levied and collected from 
 ratepayers of the defendant municipality, being 
 Boman Catholics, who gave the required notice, 
 shall be paid over to the plaintiffs: Sandwich East 
 
 B. C. Separate School Section v. "Walkerville, 10 0. 
 L. E. 214. A rate having been imposed to build a 
 new school house, certain Protestants signed a 
 notice to the clerk, he being one of them, that as E. 
 
 C. Separate School supporters, they claimed ex- 
 emption, and the clerk thereupon omitted the names. 
 Held that the clerk having been notified that it 
 would be illegal to exempt these persons, could be 
 punished, but the Court could not in the following 
 year interfere by mandamus to compel him to cor- 
 rect the roll : Ee Eisdale and Brush, 22 U. C. E. 122. 
 Landlord being a Separate School supporter leased 
 to tenant who, being a public school supporter and 
 having agreed to pay taxes, paid public school taxes. 
 The landlord was held liable for the Separate School 
 taxes. The action should be brought in the name 
 of the Trustees as a corporation: Healey v. Carey, 
 13 C- L. J. 91. Consideration of sub-sec. (5), in view 
 of sec. 188 of the Assessment Act, 4 Edw., ch. 23, 
 E. S. 0. 1914, ch. 195, see. 195; Ee Therriault and 
 Cochrane, 5 0. W. N. 26, 24 0. W. E. 964. 
 
 56. See Sandwich East E. C. Separate School Section v. 
 Walkerville, 10 0. L. E. 214. 
 
 61. See Ee Separate Schools Act, 1 0. L. E. 584, and 
 notes to sec. 55, ante. 
 
 62. Duty of assessor in regard to statements made by 
 ratepayer that he is a Eoman Catholic; proceeding 
 with and without notice; jurisdiction of Court of 
 Eevision. Duty of assessor when he is made aware 
 or ascertains that ratepayer not a Eoman Catholic 
 or has not given notice; omission to give_ notice 
 through inadvertence : see Ee Eoman Catholic Sep- 
 arate Schools, 18 0. E. 606. 
 
1226 CHAPTERS 271, 272, 273, 274, 275. 
 
 i 
 
 75.— (6) In line 6, for " void," read " valid:" 4 Geo. 
 V. ch. 2, sched. (37). 
 
 76. What a Separate School is entitled to share in: see 
 Belleville E. C. School Trustees v. Belleville, 10 U. 
 C. B. 469. 
 
 CHAPTEE 271. 
 
 The Indttsteial Schools Act. 
 
 26. Bond to secure the cost of maintaining a boy at an 
 industrial school : see St. Thomas v. Yearsley, 22 A. 
 E. 340. 
 
 CHAPTEE 272. 
 The Special, Classes Act, 
 
 CHAPTEE 273. 
 The Schools foe the Deaf and Blind Act. 
 
 CHAPTEE 274. 
 
 The Tbtjancy Act. 
 
 3. " School children:" see Ee Sandwich East and W. 
 T. Electric By., 16 0. L. E. 641, 12 0. W. E. 370. 
 
 CHAPTEE 275. 
 The Adolescent School Attendance Act. 
 
CHAPTERS 276, 277, 278. -^27 
 
 CHAPTER 276. 
 The Industrial Education Act. 
 
 CHAPTER 277. 
 The School Sites Act. 
 
 5. Purchase of school site; contract: see Smith v. School 
 
 Trustees of Belleville, 16 Gr. 130. As to authority 
 to purchase site : see R. S. 0. 1914, eh. 266, sec. 11, 
 notes. 
 
 6. Lands of infants can be expropriated for school pur- 
 
 poses : McDonald v. Ottawa P. S. Board, 12 0. W. 
 R. 572. An agreement for purchase and possession 
 of a new site made by a School Board is one that 
 controls the remainderman : Forbes v. Grimsby P. 
 S. Board, 6 0. L. R. 539. 
 
 8. Expropriation: see Johnson v. Howard School Trus- 
 tees, 26 Gr. 204. 
 
 16. Land conveyed to school trustees cannot be sold 
 under execution against them for money due for 
 building the school-house : Scott v. Burgess, 19 TJ. C. 
 R. 28. 
 
 20. Section considered: Sandwich L. I. Co. v. Windsor 
 Board of Education, 3 0. W. N. 1150, 4 0. W. N. 112, 
 23 0. W. R. 142. 
 
 CHAPTER 278. 
 The School Trust Conveyances Act. 
 
1228 CHAPTERS 279, 280, 281, 282, 283. 
 
 CHAPTER 279. 
 
 The University Act. 
 
 i 
 13. Principle upon which price to be paid by landowner 
 for access to highway is to be fixed : Ee Toronto Con- 
 servatory of Music and University of Toronto, 14 
 0. W. R. 408. 
 
 18. The Governors of the University of Toronto are a 
 corporate body and liable to be sued as such: Scott 
 v. Governors of University of Toronto, 4 0. W. N. 
 994, 24 0. W. R. 325. 
 
 CHAPTER 280. 
 The Upper Canada College Act. 
 
 CHAPTER 281. 
 The Agricultural College Act. 
 
 CHAPTER 282. 
 The Veterinary College Act. 
 
 CHAPTER 283. 
 The Mining Schools Act. 
 
CHAPTERS 284, 285, 286. ^og 
 
 CHAPTEE 284. 
 The College op Abt Act. 
 
 CHAPTEE 285. 
 The Eoyal Ontabio Museum Act. 
 
 CHAPTEE 286. 
 
 The Eeligious Institutions Act. 
 
 Where land is conveyed to persons in trust for a re- 
 gious body, the trustees and their successors must 
 be treated as being trustees for the true body who 
 are entitled to enforce the trust and have posses- 
 sion of the church: Brewster v. Hendershot, 27 A. 
 E. 232. Trustees under this Act should sue in their 
 corporate capacity: Trustees of Ainleyville v. 
 Grewer, 23 C. P. 533; Humphreys v. Hunter, 20 C. 
 P. 456; Trustees of Berkeley Street Church v. 
 Stevens, 37 TJ. C. E. 9; Trustees of Franklin Church . 
 v. Maguire, 23 Gr. 102. Variance from corporate 
 name: Eintz v. E. C. Episcopal Corporation of 
 Sandwich, 30 U. C. E. 269. The Salvation Army is 
 an unincorporated religious body and an action 
 cannot be maintained against it for torts committed 
 by its officers. There is grave doubt whether they 
 are within the meaning of this Act : Kingston v. The 
 Salvation Army, 5 0. L. E. 585, 6 0. L. E. 406. 
 Change in church government : A. G. v. Christie, 13 
 Gr. 495; Doe d. Methodist Episcopal Trustees v. 
 Brass, 6 O. S. 437. Change in doctrine : Dorland v. 
 Jones, 12 A. E. 543, 14 S. C. E. 39; Itter v. Howe, 
 23 A. E. 256. Congregation ceasing to exist: A G. 
 v. Jeffrey. 10 Gr. 273 ;-Ee Wansley and Brown, 21 O. 
 E. 34. Change in tenets; dispute as to ownership 
 
J230 CHAPTER 286. 
 
 of land and building: Zacklynski v. Kerchinski, 1 
 W. L. E. 32. 
 
 8. The duly appointed trustees of a religious congrega- 
 tion, to whom by that description the site of a church 
 has been conveyed, and who by that description give 
 a mortgage to secure a balance of purchase money 
 with the ordinary covenant, are a corporation and 
 are not personally liable on the mortgage though it 
 is signed by them individually: Beaty v. Gregory, 
 28 0. E. 60, 24 A. E. 325. 
 
 11. The trustees are a corporation, and even where the 
 congregation has dispersed and ceased to exist, con- 
 tinue to hold the fee and can sell: Ee "Wansley and 
 Brown, 21 0. E. 34. A contract for the sale of church 
 lands held by trustees, made in compliance with a 
 resolution of the congregation, by a member of a 
 committee appointed for the purpose, is invalid: Ir- 
 ving v. McLachlan, 5 Gr. 625, Power to sell un- 
 necessary land: Huegli v. Pauli, 3 0. W. N. 915, 26 
 0. L. E. 94. An advertisement on the same day of 
 the week in four successive issues of a daily paper 
 is not a sufficient compliance with a direction to 
 publish in a weekly paper: Ee East Presbyterian 
 Church and McKay, 16 0. E. 30. (The present 
 wording is "daily or weekly paper.") The statu- 
 tory requirements must be complied with. The 
 public notice must state the terms of the intended 
 sale: Ee Second Congregational Church, 1 Ch. Ch. 
 349; Ee Baptist Church of Stratford, 2 Ch. Ch. 288. 
 For cases on advertisement under somewhat simi- 
 lar provision of Municipal Act: see R. S. 0. 1914, 
 ch. 192, sec. 263 (5) and notes. 
 
 15. The sanction of the sale and the approval of the deed 
 by the County Judge is sufficient in lieu of the provi- 
 sions of sub-sections (1) and (2) : Re Wansley and 
 Brown, 21 0. E. 34. Change of site ; resolution of con- 
 gregation: Kopman v. Simonsky, 2 0. W. E. 617. 
 Eesolution^ authorizing new building: Heine v. 
 Schaffer, 2 W. L. E. 310. 
 
 16. Vesting of property in successors to trustees: see 
 Hambly v. Fuller, 22 C P. 141. Eemoval of trustee; 
 
CHAPTER 287. J231 
 
 expulsion from church; appointment of new trus- 
 tees: Smallwood v. Abbott, 18 U. C. R. 564. Re- 
 moval of trustees: see also Lage v. Mackenson, 40 
 U. C. R. 388. 
 
 20. Power to sell unnecessary land; special trusts: 
 Huegli v. Pauli, 3 0. W. N. 915, 21 0. W. R. 776, 26 0. 
 L. R. 94. 
 
 Former section, R. S. 0. 307, sec. 24, is omitted 
 from this revision : see Article 48 C. L. J. 406. That 
 section, R. S. 0. 1897, ch. 307, sec. 24, enabled trus- 
 tees to take a devise for land for a minister's resi- 
 dence, if actually used as such, although the land 
 could not be held for rental purposes merely. An 
 intention not to use was not presumed from a short 
 period of non-user. In any event the trustees could 
 sell within seven years: Sills v. "Warner, 27 0. R. 
 266. The seven years during which land might be 
 held after its " acquisition " did not commence to 
 run, in the case of a devise of a remainder dependent 
 upon a life estate, until the expiry of the life estate : 
 Re Naylor, 5 0. L. R. 153. Where a testator directed 
 land to be sold and out of the proceeds and -some 
 personalty directed $2,000 to be paid to A. for the 
 use of a church to be applied in A.'s discretion and 
 A. assigned the whole fund to the trustees of the 
 church, this was held a valid exercise of the discre- 
 tion given him by the will: Re Johnson Chambers 
 v. Johnson, 5 0. L. R. 459. See similar power in 
 missionary societies to receive gifts : 50 Vic. ch. 91, 
 and see Re Barrett, 10 0. L. R. 337 > The six 
 months' limitation in former sec. 24 and m 50 Vic 
 ch 91, must be regarded as having been repealed by 
 the later Mortmain and Charitable Uses Act: R. S. 
 O 112 (14 Ap. 1892) : Re Barrett, 10 0. L. R. 337. 
 See also Madlll v. McConnell, U 10 . L . B 314 17 
 0. L. R. 209, and the provisions of R. fc>. U. ±yi4, cf 
 103 and notes. 
 
 CHAPTER 287. 
 The Ontario Reformatory Act. 
 
1232 CHAPTERS 288, 289, 290, 291, 292. 
 
 CHAPTER 288. 
 The Andrew Mercer Reformatory Act. 
 
 CHAPTEE 289. 
 The Female Refuges Act. 
 
 CHAPTER 290. 
 
 The Houses op Refuge Act. 
 
 2- Purchase of land for an industrial farm; attempted 
 rescission: see McCartney v. Haldimand,.10 0. L. R. 
 668. Joint action of municipalities: see Re Lister 
 and Belle River, 13 0. W. R. 778. 
 
 12. Moneys of intestate inmate of County House of Re- 
 fuge: Re Garrison, 12 0. W. R. 282. 
 
 CHAPTER 291. 
 The District Houses of Refuge Act. 
 
 CHAPTER 292. 
 
 The Industrial Farms Act. 
 
 2. Purchase of land for an industrial farm : see McCart- 
 ney v. Haldimand, 10 0. L. R. 668. 
 
 4. Joint action of municipalities: see Re Lister and 
 Belle River, 13 0. W. R. 778. 
 
CHAPTERS 293, 294, 295. 
 
 CHAPTER 293. 
 The Gaols Act. 
 
 1238 
 
 CHAPTER 294. 
 The District Court Houses Act. 
 
 CHAPTER 295, 
 
 The Hospitals for the Insane Act. 
 
 2.— (e) See R. S. 0. 1914, eh. 68, sec, 2 (e), (/). 
 
 8. Where the discharge of a person, detained in a lun- 
 atic asylum as a lunatic, was moved for under a 
 writ of habeas corpus hy reason of alleged inform- 
 alties in the certificates, and it appeared that it 
 would be dangerous to allow him to be at large, the 
 Court directed a trial of an issue as to his sanity, 
 and the application was directed to stand over 
 pending the result of the issue : Re Gibson, 15 O. L. 
 R. 245, 10 0. W. R. 542. 
 
 13. The enquiry before the Justice is a judicial proceed- 
 ing, and in an action for malicious prosecution it is 
 essential that the plaintiff show that the proceed- 
 ings terminated in his favour, and this although the 
 Statute did not provide for setting aside the adjudi- 
 ' cation of the Justice by appeal or otherwise: Bush 
 v. Park, 12 0. L. R. 180. A husband twice pro- 
 cured the release of his wife from an asylum where 
 he had obtained her admission, and she having 
 grown worse, and being refused admission again, 
 took proceedings under this section, and had her 
 committed. The wife later on the application of her 
 
 S.A.— 78 
 
J234 CHAPTER 295. 
 
 relatives was released. It was held that she was not 
 entitled to alimony: Hill v. Hill, 2 0. L. E. 289, 541, 
 3 0. L. R. 202. 
 
 35. Property of lunatic: Inspector of Prisons v. Mac- 
 
 donald, 2 0. W. N. 289, 17 0. W. E. 630. 
 
 36. The provisions allowing the inspector to take pos- 
 
 session of the property of a lunatic to pay for main- 
 tenance do not apply to money in Court : see sec. 48; 
 infra : Ee McKenzie, 14 P. E. 421 ; see also Mein v. 
 Mein, 3 Ch. Ch. 62. Moneys belonging to a lunatic 
 on deposit in a bank were attached by a creditor. 
 On application of the committee the moneys were 
 ordered paid into Court for maintenance of the lun- 
 atic in priority to the creditor's claim: Ee Vernon, 
 20 C. L. T. Occ. N. 309. As to practice under the 
 Eegistry Act regarding conveyances by the Inspec- 
 tor, see E. S. 0. 1914, ch. 124, sec. 42, notes. 
 
 40. Jurisdiction of Court over lunatics not so found: Ee 
 Montgomery, 4 0. W. N. 308, 23 0. W. E. 342. As 
 to discharges of mortgage by the inspector, it is not 
 necessary for him to file any document shewing his 
 right to execute the discharge under the Eegistry 
 Act.: Guthrie Eeport, 1899, p. 28. See Con. Eules 
 157, 220, as to service of process ; H. & L. notes, pp. 
 290, 411, and see 1913 Eule 21. As to suits by and 
 against insane persons : see Con. Eule 217 ; H. & L. 
 notes, pp. 406-408, 1913 Eules 94, 97. Appearance 
 in such cases : Con. Eule 218 ; H. & L. notes, pp. 408- 
 409, 1913 Eule 95. When added parties after judg- 
 ment: Con. Eule 219, 1913 Eule 96. 
 
 43. Where a lunatic not so found recovers during a suit 
 instituted on his behalf, all further proceedings in 
 the suit are irregular : McCabe v. Boyle, 2 O. W. N. 
 695, 18 O. W. E. 551. 
 
 48. Where the property of a lunatic is money in Court, 
 the inspector is not to proceed under section 36, but 
 under this section, and must shew clearly that the 
 person to whom the fund belongs is a lunatic and 
 that the object for which the money is sought is to 
 pay maintenance in a public lunatic asylum, but it 
 is not necessary that the person shall have been or 
 
 M 
 
CHAPTERS 296, 297, 298, 299, 300. ^235 
 
 shall be declared a lunatic: Ee McKenzie, 14 P. E. 
 421; Ee Hinds, 11 P. E. 5; Mein v. Mein, 3 Ch. Ch. 
 62; Ee Thompson, 19 P. E. 304. 
 
 CHAPTEE 296. 
 
 The Pbivate Sanitarium Act. 
 
 59. Formerly this section contained a special provision 
 as to venue: see Eule 529, H. & L. notes, p. 735, 
 1913, Eule 245. 
 
 CHAPTEE 297. 
 
 The Hospital fob Epileptics Act. 
 
 4. In line 1, for " Asylums for the Insane," read 
 ' ' Prisons and Public Charities : " 4 Geo. V. ch. 2, 
 sched. (38). 
 
 CHAPTEE 298. 
 The Sanatoria fob Consumptives Act. 
 
 CHAPTEE 299. 
 The Tobonto Genebal Hospital Act. 
 
 CHAPTEE 300. 
 The Hospitals and Chabitable Institutions Act. 
 
1236 CHAPTER 301. 
 
 CHAPTEE 301. 
 
 The Pbisons and Public Chabities Inspection Act. 
 
 6. As to practice under the Eegistry Act regarding con- 
 veyances by the Inspector : see B. S. 0. 1914, ch. 124, 
 sec. 42, notes. 
 
 10. Where a rule was made at a gaol that " no fine will 
 be received or bail allowed after 5 p.m.," it was held 
 that there was no authority to pass regulations pre- 
 venting a prisoner transacting business through his 
 solicitor or agent, at any reasonable time, with any- 
 one, nor was there any such power at common law: 
 Eex. v. Colahan, 9 0. W. E. 661. 
 
 21~ This section formerly contained a special provision 
 as to venue : E. S. 0. 1897, ch. 321, sec. 28 ; see Eule 
 529, H. & L. notes, p. 735, 1913, Eule 245.