fr3 /J 1ST*" KEN123.A3i n 876 n ' Ver8,,yL,brary N IlKlffi mmmSStlP cases :bel "S a sele 3 1924 018 090 310 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/cu31924018090310 New Brunswick Equity Cases BEING A SELECTION OF HITHERTO UNREPORTED CASES DETERMINED BY The Supreme Court in Equity OF NEW BRUNSWICK 1876 TO 1893 %/V , V" COLLECTED, EDITED, AND ANNOTATED BY WALTER HJTR^TEMAN, LL.B., Barmsteb-at-Law REPORTER TO THE COURT. TORONTO : The Caksweli Co., Limited, 22-30 Adelaide St. East 1898. JML Entered according to the Act of the Parliament of Canada, in the year one- ( i<^ thoustfad eight hundred and ninety-eight, by Thk Carswbll Company rr rf^mtaED), in the Office of the Minister of Agriculture. TO THE HONORABLE Anbreto ft. JBIair, %<£., ff.B., JH.JJ., MINISTER OF RAILWAYS AND CANALS AND FOE MANY YEARS ATTORNEY-GENERAL FOE THE PROVINCE OP NEW BRUNSWICK, THIS VOLUME is MOST RESPECTFULLY DEDICATED WITH SENTIMENTS OF PROFOUND REGARD. PREFACE T)RIOR to the creation in 1894 of the office of Reporter of the decisions of the Supreme Court in Equity by Act of the General Assembly of that year, the decisions of the Court were never published except occasionally in the public prints in cases of general interest. The result was that the decisions of the Court at a formative period of its history relating to its practice, and oftentimes founded upon the construction of Statutes peculiar in many of their features to the Province of New Brunswick, as well as decisions upon general principles of equity jurisprudence applied under circumstances special and local in their character, were inaccessible to the profession. They obtained at best a fugitive and futile existence in the memory of a few practitioners, and their currency event- ually depended upon tradition in its most fragmentary and precarious form. Such a condition of affairs could not fail to be attended with grave inconveniences, opposed to the regularity of the practice of the Court, and produc- tive of confusion and surprise. It thus also often fell out that the same question was the subject of frequent litiga- tion with the same result, in ignorance of its previous determination. To rescue as many of such decisions from the partial or complete oblivion that had passed upon them as it was possible to -reclaim seemed to me a simple duty upon my appointment to the position of Reporter of the Court immediately after the passing of the Act creating the office. I assumed the task would be well nigh a monumental one, as I confidently expected the judgments would be on file in the Clerk's office, and that their VI PREFACE. number would be legion. A search abundantly verified the assurance of the Clerk that the practice of the Judges of filing their decisions in equity with him had been far from uniform. I was rewarded, however, with a fair number, and was able to supplement them by the kindness of members of the Bar who had either the original judgments or copies, by reason of being interested in the cases in which they were delivered. A few, I regret to say, I had to take from newspaper files. In all, they made a collection sufficient, both in variety of subject-matter and in their essential worth, to deserve preservation. The wisdom of annotating them did not commend itself to me until after they had gone to press, and consequently the notes were prepared under a pressure not favorable to the best results or the highest kind of workmanship. This circumstance, I hope, will be accepted in part explanation at least of their many imperfections, particularly in form and arrangement, and which further reflection might have avoided. WALTER H. TRUEMAN. St. John, N.B., June 1st, 1898. .A. T-A-IBXjE OE THE NAMES OF THE CASES REPORTED IN THIS VOLUME. A. PAGE Akerley et al. v. Wood et al 305 Alward et al. v. Killam 360 American Bobbin Spool and Shuttle Co. et al. v. Burpee et al 484 Anderson et al. v. Ogden 395 Appleby v. Robertson 509 Arbuthnot v. Coldbrook Rolling Mills Company 51 Armstrong v. Raynes et al 144 Armstrong v. Robertson et al 249 Attorney-General of New Brunswick and the Right Rev. John Sweeny, Roman Catholic Bishop of St. John v. Corporation of the Brothers of the Christian Schools 103 Attorney-General for the Province of New Brunswick v. Honorable John Henry Pope, Acting Minister of Railways and Canals, the Minister of Justice for Canada, and Jabez B. Snowball 272 B. Babang v. Bank of Montreal 524 Baird v. Nicholson 195 Banfil v. Humphrey et al 243 Bank of Montreal et al. v. Busby 62 Bank of Montreal et al. v. Robertson 541 Bank of Nova Scotia v. Duncan 513 Barclay v. Mc A.vity 468 Bateman, Re Petition of William G. Chute v. Gratten. 538 Berryman et al. v. Young 110 Berton v. Mayor, etc., of the City of St. John 150 Bliss v. Rector, Church Wardens and "Vestry of Christ Church, in the Parish of Fredericton 314 Boyd v. Bank of New Brunswick 546 Briggs v. Chase (No. 1) 53 Briggs v. Chase (No. 2) 80 Brooks' Estate, Re Isabella 269 Bulley v. Bulley 450 Burpee et al. v. The American Bobbin Spool and Shuttle Co. et al 484 Busby v. Bank of Montreal et al 62 C. Carritte v. Mcintosh 406 Case et al. v. Kennedy 242 viii TABLE OF CASES REPORTED. PAGE Cassidy v. Cassidy 480 Chase v. Briggs (No. 1) 53 Chase v. Briggs (No. 2) 80 Chesley et al. v. Merritt 32 * Chute v. Gratten : In re Petition of William G. Bateman 538 Close v. Close et al 414 Coldbrook Rolling Mills Company v. Arbuthnot 51 Corporation of the Brothers of the Christian Schools v. Attorney- General of New Brunswick and the Right Rev. John Sweeny, Roman Catholic Bishop of St. John 103 Crawford et al. v. Domville 122 D. Domville v. Crawford et al 122 Dowd v. Dowd 388 Driscoll v. Fisher 89 Duffus et al. v. Gilbert 423 Duncan v. The Bank of Nova Scotia 513 F. Fisher v. Driscoll 89 Franke et al. v. McGrath 97 G. Ganong et al. v. Mayor, Aldermen and Commonalty of the City of St. John 17 Gaskin v. Peck et al 40 Gilbert v. Duffus et al 423 Gilbert v. Union Mutual Life Insurance Company 266 Girvan et al. v. Lloyd 164 Goods of Price, In re The 429 Gratten v. Chute : In re Petition of William G. Bateman 538 H. Harris v. Sayre 94 Harris et al. v. Stewart 143 Home Circle et al. v. Loasby . . . , 533 Honorable John Henry Pope, Acting Minister of Railways and Canals, The Minister of Justice for Canada, and Jabez B. Snowball v. Attorney-General for the Province of New Brunswick 272 Horn et al. v. Kennedy et al 311 Howe et al. v. Lawton; 191 Humphrey et al. v. Banfil 243 J. Jack v. Nealis 426 Jardine v. Simon 1 Johnson v. Scribner et al 363 K. Kelly v. New Brunswick Railway Company and Brown (No. 1) 442 Kelly v. New Brunswick Railway Company and Brown (No. 2) 442 Kennedy v. Case et al 242 TABLE OF CASES REPORTED. IX PACE Kennedy et al. v. Horn et al 311 Kenny v. Kenny et al 301 Killam v. Alward et al 360 L. Lawton v. Howe et al 191 Lewin v. Wilson et al 167 Light, Re Harriet 392 Lloyd v. Girvan et al 164 Loasby v. Home Circle et al 533 Logan v. Trustees of Calvin Church 221 M. Maclellan et al. v. Marsters 372 Manchester et al. v. White et al 59 Marsters v. Maclellan et al 372 Mayor, etc. , of the City of St. John v. Berton 150 Mayor, Aldermen and Commonalty of the City of St. John v. Ganong et al ' 17 MacRae v. Macdonald et al. (No. 1) 498 MacRae v. Macdonald et al. (No. 2) 531 May v. Sievewright 499 Mayor, Aldermen and Commonalty of the City of St. John v. Yeats ... 25 McAfee, In re Margaret 438 McAvity v. Barclay 468 McCormick v. McCoskery 332 McGrath v. Franke et al 97 Mcintosh v. Carritte 406 McLeod, Assignee of the Petitcodiac Lumber Company v. "Vroom et al. 131 McManus v. Walsh 86 Merritt v. Chesley et al 324 Morrow et al. v. People's Bank 257 N. Nealis v. Jack 426 New Brunswick Railway Company, Canadian Pacific Railway Company, and St. John and Maine Railway Company v. Western Union Tele- graph Company 338 New Brunswick Railway and Brown v. Kelly (No. 1) 442 New Brunswick Railway and Brown v. Kelly (No. 2) 442 Nicholson v. Baird 195 0. Ogden v. Anderson et al 395 Oliver v. Vernon 179 P. Parks v. Parks et al 382 Parks & Son (Ltd.) et al. ». Weldon et al. (No. 1) 418 Parks & Son (Ltd.) et al. v. Weldon et al. (No. 2) 433 Peck et al. v. Gaskin 40 People's Bank v. Morrow et al 257 Price, Re Goods of 429 X . TABLE OF CASES REPORTED. R. PAGE Raynes et al. v. Armstrong 144 Re Goods of Price 429 Rector, Church Wardens and Vestry of Christ Church, in the Parish of Fredericton, v. Bliss 314 Re Harriet Light 392 Re Isabella Brooks' Estate 269 Re Margaret McAfee 438 Re Petition of William 6. Bateman : Chute v. Gratten 538 Robertson et al. v. Armstrong 249 Robertson v. Appleby 509 Robertson v. Bank of Montreal et al 541 Robertson v. The St. John City Railway and John B. Zebley (No. 1). . . 462 Robertson v. The St. John City Railway and John B . Zebley (No. 2) . . . 476 Robertson v. Thorpe et al 541 S. Sayre v. Harris 94 Scribner et al. v. Johnson 363 Sears v. Mayor, Aldermen aDd Commonalty of the City of Saint John. . 555 Sievewright v. May 499 Simon v. Jardine '. 1 Stewart v. Harris et al 143 St. John City Railway and John B. Zebley v. Robertson (No. 1) 462 St. John City Railway and John B. Zebley v. Robertson (No. 2) 476 T. Thorpe et al. v. Robertson 541 Trustees of Calvin Church v. Logan 221 U. Union Mutual Life Insurance Company v. Gilbert 266 V. Vernon v. Oliver j-o, Vroom et al. v. McLeod, Assignee of the Petitcodiac Lumber Company. 131 W. Walsh t. McManus og Weldon et al. v. William Parks & Son (Ltd.) et al. (No. 1) 418 Weldon et al. v. William Parks & Son (Ltd.) et al. (No. 2) \ 433 Western Union Telegraph Company v. New Brunswick Railway Com- pany, Canadian Pacific Railway Company, and St. John and Maine Railway Company „o 8 White et al. v. Manchester et al -q Wilson et al. v. Lewin ' " , „_ Wood et al. v. Akerley et al ,„■ Wright v. Wright ... Y. Yeats v. Mayor, Aldermen and Commonalty of the City of St. John 25 Young v. Berryman et al '" ..... TABLE OF CASES CITED. A. PAGE Abbinett v. North-Western Mutual Life Ins. Co., 21 N. B. 216 537 Abley v. Dale, 20 L. J. (C. P.) 235 171 Ackroyd v. Smith. 10 C. B. 1G4 355 Adair v. Young-, 11 Ch. D. 136 102 v. Shaw, 1 Soh. & L. 262 387 Adams v. City of Toronto, 12 0. R. 243 39 Addison v. Walker, 4 Y. & C. (Ex.) 442 75 Agar v. Fairfax, 17 Ves. 533 482 Aguilar v. Aguilar, 5 Madd. 414 45 Allen v. Flood, [1898] A. C. 1 527 Alsop v. Lord Oxford, 1 Myl. & K. 564 85 Alvanley v. Kinnaird, 8 Jur. 114 420 Anon., 18 Ves. 258 47 , 2 Anst. 407 88 , 1 Dowl. 97 .' 185 , 2 Ves. 287 448 Anderson v. Qusbec Fire Ins. Co., 15 P. R. 132 87 Anglo-American Co. v. Rowlin, 10 P. R. 391 88 Appleton v. Chapel Town Paper Co., 45 L. J. Ch. 276 247 Archer v. Hudson, 8 Beav. 321 101 Archbold v. Scully, 9 H. L. C. 360 408 Armani v. Castrique, 14 L. J. Ex. (N.S.) 36 208 Armstrong v. Church Society, 13 Gr. 552 79, 331 Arnold v. Arnold, 14 Ch. D. 270 ; 42 L. T, 705.; 28 W. R. 635 24 Ashbee v. Appleby, W. N. (1878) 20 101 Ashworth v. Ryal, 1 B. & Ad. 19 185 Attorney-General v. Aspinall, 2 My. &, Cr. 613 163, 329 v. Bouwens, 4 M. & W. 172 536 v. Cambridge Consumers' Gas Co., L. R. 4 Ch. 71 , 286 v. Cockermouth Local Board, L. R. 18 Eq. 172 329 v. Compton, 1 Y. & C. C. C. 416 329 v. Cooper, 9 Sim. 329 ; 2 Jur. 917 61 v. Corporation of Birmingham, L. R. 3 Eq. 552 329 v. Corporation of Poole, 4 My. & Cr. 17 308 v. Cowper, 3 My. & C. 258 512 v. Draper's Co., L. R. 9 Eq. 69 85 v. Ely. Haddenham and Sutton Ry. Co., L. R. 6 Eq. 106 ; L. R. 4 Ch. 19 286, 290 v. Earl of Lonsdale, L. R. 7 Eq. 377 13 v. Emerson, 24 Q. B. D. 56 102 v. Forbes, 2 My. & Cr. 123 286 v. Great Eastern Ry. Co., L. R. 6 Ch. 577 13 v. Kohler, 9 H. L. C. 654 .' 388 Xll TABLE OF CASES CITED. PAGB Attorney-General v. Lichfield, 13 Sim. 547 329 v. Lord Carrington, 6 Beav. 454 °° v. Mayor of Dublin, 1 Bli. N. R, 312 329, 331 v. Mayor of Liverpool, 1 My. & Cr. 201 16 3 > 329 v. Mayor of Newcastle-upon-Tyne, 23 Q. B. D. 493 163, 329 v. Mayor of Wigan, 5 DeG. M. & G. 52 329 v. Mayor of Norwich, 2 My. & Cr. 406 163 v. Norwich, 16 Sim. 225 329 v. Sheffield Gas Consumers' Co., 3 DeG. M. & G. 304 290 v. Terry, L. R. 9 Ch. 423 . . 16 y. Wilson, 9 Sim. 30 • 329 Attorney-General of Ontario y. Attorney-General for the Dominion of Canada [1894] A. C. 189 ■ •■ • ■ 142 Attorney-General for Ontario v. Attorney-General for the Dominion [1896] A. C. 348 199 Attorney-General of the Straits Settlement v. Wemyss, 13 App. Cas. 197 299 Attwood v. Small, 6 CI. & F. 353 92 v. Small, 2 Y. & J. 72 476 Auster v. Haines, L. R. 4 Ch. 445 513 Australian Steamship Co. v. Fleming, 4K, & J. 407 88 Aylett v. Ashton, 1 My. & Cr. 105 46 Aylward v. Lewis, [1891] 2 Ch. 81 304 B. B. v. W., 31 Beav. 346 475 Backhouse v. Paddon, 13 L. T. N. S. 625 405 Bagshaw v. Eastern Union Ry. Co., 7 Hare, 114 419 Bainbrigge v. Baddeley, 10 Beav. 35 101 Ball v. Kemp-Welch, 14 Ch. D. 512 482 Bank of England v. Moffat, 3 Bro. C. C. 260 551 v. Parsons, 5 Ves . 665 551 Bank of Montreal v . Bethune, Rob. & Jos. Dig. 783 351 Banks v. Carter, 12 Jur. 366 191 Baring v. Nash, 1 V. & B. 554 482 Barker v. Lavery, 14 Q. B. D. 769 .' 102 Barkworth v. Young, 4 Drew. 1 371 Barnaby v. Munroe, 1 N. B. Eq. 94 304 Barned's Banking Co. v. Reynolds, 3 A. R. 371 353 Barnes v. Addy, L. R. 9 Ch. 244 92 Barnsley Canal Co. v. Twibell, 7 Beav. 31 332 Bartley v. Hodges, 30 L. J. (Q.B.) 352 216 Baskett v. Cafe, 4 DeG. & S. 388 371 Bateson v . Gosling, L. R. 7 C. P. 9 504 Baver v. Mitford, 9 W. R. 135 102 Beardmore v. Gregory, 2 H. & M. 491 362, 513 Beattie v. Lord Ebury, 28 L. T. N. 3. 458 101 Beatson v. Nicholson, 6 Jur. 620 364 Beaty v. Samuel, 29 Gr. 105: 508 Beavan v. Burgess, 10 Jur. 63 167 Beckett v. Corporation of Leeds, L. R. 7 Ch. 421 14 Beckett v. Midland Ry. Co., L. R. 3 C. P. 82 ; 37 L. J. (C. P.) 11 39 Belcher v. Williams, 45 Ch. D. 510 482 TABLE OF CASES CITED: Xlll PAGE Bell v. Moffat, 2 P. & B. 406 85 Bemis v. Call, 10 Allen, 512 304 Bentley v. Manchester, etc., Ry. Co., [1891] 3 Ch. 222 40 Benton v. Allen, 2 Fed. Rep. 448 91 Berridge v. Ward, 10 C. B. (N.S.) 400 6, 15 Bickerton v. Walker, 31 Ch . D. 151 194 Bickett v. Morris, L. R. 1 H. L. So. 47 10, 16 Bidder v. Bridges, 29 Ch. D. 29 ; 54 L. J. Ch. 798 57 Bigg v. Corporation of London, L. R. 15 Eq. 376 33 Biscoe v. Great Eastern Ry. Co., L. R. 16 Eq. 636 40 Bissell v. Axtell, 2Tern. 47 387 Blackburn v. McKinley. 3 Chy. Ch. 65 362 Blagden v. Bradbear, 12 Ves. 466 371 Blakeney v. Dufaur, 2 DeG. M. & G. 771 87 Blanchard v. Hill, 2 Atk. 484 335 Blount v. Layard, [1891] 2 Ch. 681 14 Blundell v. Catterall, 5 B. & Aid. 304 13 Boice v. O'Loane, 7 P. R. 359 88 Bolding v. Lane, 1 DeG. J. & S. 122 175 Bolton v. Bolton, L. R. 7 Eq. 298 403 v. Ferro, 14 Ch. D. 171 508 v. London School Board, 7 Ch. D. 766 79, 164 Boston v. Robbins, 126 Mass. 384 265 Botsford v. Crane, 1 P. & B. 154 474 Boulton v. Crowther, 2 B. & C. 703 33 Bowker v. Burdekin, 11 M. & W. 128 197 Boyfield v. Porter, 13 East, 208 39 Boyle v. Mulholland, 10 Ir. Com. Law Rep. 150 6 Bradford v. Young, 28 Ch. D. 21 101, 437 Bradshaw v. Callaghan, 5 Johns. 80 ; 8 Johns. 558 309 Branley v. South-Eastern Ry. Co., 12 C. B. (N. S.) 70 353 BrickwooA v. Miller, 3 Mer. 279 216 Bridgewater v. DeWinton, 9 Jur. N. S. 1272 475 Brine v. Great Western Ry. Co., 31 L. J. (Q. B.) 101 39 Broadbent v. Imperial Gaslight Co., 26 L. J. (Ch. ) 276 39 v. Imperial Gaslight Co., 7 DeG. M. & G. 436 290 Broder v. Saillard, 2 Ch. D. 692 246 Brogdin v. Bank of Upper Canada, 13 Gr. 544 331 Bromley v. Smith, 1 Sim. 8 330 Bronson v. La Crosse and Milwaukee Ry. Co., 2 Wall. 283 419 Brown v. Keating, 2 Beav. 58 494 t. Reed, 2 Pug. 206 21 Browne v. Hammond, Johns. 210 426 Brownlow v. Metropolitan Board, 16 C. B, (N.S.) 546 ; 33 L. J. (C.P.) 233 40 Budgett v. Budgett, [1895] 1 Ch. 202 85 Buffington v. Harvey, 95 U. S. 99 91 Bunny v. Hart, 11 Moo. P. C. 189 216 Burdick v. Garrick, L. R. 5 Ch. 452 102 Burke v. Smith, unreported , 403 Burnett v. Lynch, 5 B. & C. 601 376 Burstall v. Beyfus, 26 Ch. D. 40 92 Butler v. Cumpston, L. R. 7 Eq. 20 43, 456 Buttler v. Mathews, 19 Beav. 549 167 xiv TABLE OF CASES CITED. C. PAGE Calder v. Webster, 1 Jur. 577 477 Caldwell v. Craigg, 32 N. B. 145 « 8 Caledonian Ry. Co. v. Walker's Trustees, 7 App. Cas. 293 38 Callender v. Colonial Secretary of Lagos, [1891] A. C. 460 219 Callender v. Marsh, 1 Pick. 417 33 Calmady v. Calmady, 2 Ves. 569 482 Camac v. Grant, 1 Sim. 348 88 Cambottie v. Inngate, 1 W. R. 533 8 ? Campbell v. Beaufoy, Johns. 320 , 387 ■ v. Mackay, 1 My. & Cr. 603 308 v. National Life Ass. Co., 34 U. C. Q. B. 35 537 Cann v. Cann, 1 P. Wms. 723 519 Cannon v. Johnson, L. R. 11 Eq. 90 432 Capewell v. Lawrence, 8 L. T. N. S. 603 483 Carroll v. Provincial Natural Gas Co., 16 P. R. 518 164 Carter v. Cropley, 8 DeG. M. & G. 680 322 v. Murcot, 4 Burr. 2164 13 v. Stubbs, 6 Q. B. D. 116 449 v. Palmer, 8 CI. & F. 668 475 Cartwright v. Pultney, 2 Atk. 380 405 Cass v. Ottawa Agricultural Ins. Co., 22 Gr. 512 78 Cassey v. Cassey, 15 Gr. 399 415 Castelli v. Cook, 7 Hare, 89 129 Castellan v. Hobson, L. R. 10 Eq. 46 377 Castrique v. Imrie, L. R. 4 H. L. 414 216 Catton v. Banks, [1893] 2 Ch. 221 482 Chamberlain v. West End of London, etc., Ry. Co. , 2 B. & S. 605 ; 32 L. J. (Q.B.) 173 39 Chichester v. Marquis of Donegal, L. R. 4 Ch. 416 268 Child v. Starr, 4 Hill, 369 14 Chinnery v. Evans, 11 H. L. C. 115 177 Chisholm v. McDonald, 2 Thorn. (N.S.) 367 265 Cbolmondeley v. Clinton, 2 Mer. 171 ; 2 J. & W. 1 439 Christie v. Cameron, 2 Jur. N. S. 635 243 Christophersen v. Lotinga, 33 L. J. (C.P.) 123 171 City of Berne v. Bank of England, 9 Ves. 347 352 City of New Westminster v. Brighouse, 20 Can. S. U. R. 520 40 City of Glasgow Union Ry. Co. v. Hunter, L. R. 2 Se. App. 7S 40 City of Quebec v. The Queen, 24 Can. S. C. R. 420 300 Clay v. Oxford, L. R. 2 Ex. 54 185 Clark v. Cort, 1 Cr. & Ph. 154 303 v. Schofield, 29 N. B. 403 85 Clarke v. Barker, 6 Times Law Rep. 256 87 v. Mullick, 3 Moo. P. C. 252 204, 214 Cleaver v. Mutual Reserve Fund Life Abs., [1892] 1 Q. B. 147 537 Cliffe v. Wilkinson, 4 Sim. 122 88 Clifton v. Robinson, 16 Beav. 355 130 Clothier v. Webster, 12 C. B. (N.S.) 790 ; 31 L. J. (C.P.) 316 40 Clowes v. Staffordshire Potteries Waterworks Co . , L. R. 8 Ch. 125 ; 42 L. J. (Ch.) 107 39 Cochrane v. Fearon, 18 Jur. 568 87 TABLE OF CASES CITED. XV PAGE Cooks v. Nash, 9 Bing. 341 504 Cohen v. Wilkinson, 12 Beav. 125 419 Coleman v. Eastern Counties Ry Co., 10 Beav. 1 419 Coles v. Coles, 15 Johns. 321 309 Collins v. Carmiohael, Stev. Dig. (3rd ed.) 640 243 Collinson v. Collinson, Seton, 572 482 Colyer v. Colyer, 10 W. R. 748 101 Commercial Bank of Canada v. Cooke, 9 Gr. 524 93 Commissioners of Sewers v. Glasse, L. R. 15 Eq. 302 56 Company of Feltmakers v. Davis, 1 B. & P. 100 67 Comstoek v. Crawford, 3 Wall. 396 265 Copeland v. Wheeler, 4 Bro. C. C. 256 56 Cook v. Whellock, 24 Q. B. D. 658 88 Cooper v. Cooper, 2 Ch. D. 492 102 v. Earl Powis, 3 DeG. & S. 688 79 v. Macdonald, 7 Ch. D. 288 313 v. Molsons Bank, 26 Can. S.C.R. 611 ; 26 O.R. 575 ; 23 A. R. 146. 508 v. Purton, 1 N. R. 468 88 Cornish v. Gest, 2 Cox, 27 405 Corry v. Curlewis, 8 Beav. 606 60 Couldery v. Bartrum, 19 Ch. D. 394 508 Cousens v. Cousens, L. R. 7 Ch. 48 85 Cowdin v. Perry, 11 Pick. 503 389 Cowell v. Taylor, 31 Ch. D. 34 88 Cowper v. Green, 7 M. & W. 633 506 Cox v. Bennett, [1891] 1 Ch, 623 362 v. Cox, 3 K. & J. 554 483 Coy v. Coy, 1 Han. 177 265 Cracknellv. Mayor, etc., of Thetford, L.R, 4 C.P. 629 ; 38 L. J.C. P. 353. 39 Cragoe v. Jones, L. R. 8 Ex. 80 504 Cram v. Ryan, 25 O. R. 524 15 Crawford v. Willox, 1 All. 634 264 Crook v. Corporation of Seafprd, L. R. 6 Ch. 551 355 Crossley v. City of Glasgow Life Ass. Co. , 4 Ch. D. 421 537 v. Lightowler, L. R. 2 Ch. 486 9 v. Lightowler, L. R. 3 Eq. 279 13 v. Stewart, 2 N. R. 57 475 Crozat v. Brogden, [1894] 2 Q. B. 30 87 Crump v. Lambert, L. B. 3 Eq. 409 413 Cudlip v. Rector, etc., of St. Martin's, 2 Pug. 8 85 Curtin v. Jellicoe, 13 Ir. Ch. Rep. 180 538 Curtius v. Caledonian Fire and Life Ins. Co. , 19 Ch. D. 534 338 Cushing v. Dupuy, 5 App. Cas. 409 141 D. Dale v. Hamilton, 5 Hare, 381 365 Dalglish v. Jarvie, 2 MacN. & G. 238 130 Dally v. Worham, 32 Beav. 69 475 Davenport v. Manners, 2 Sim. 514 61 XVI TABLE OF CASES CITED. PAGE Davis v. Corporation of Leicester, [1894] 2 Ch. 208 163 - v. Davis, 9 C. L. T. 259 389 v. Galmoye, 39 Ch. D. 322 498 v. Prout, 7 Beav. 288 362 v. Turvey, 9 Jur. N. S. 954 483 Daw v. Eley, 2 H. & M. 725 58 Dawkins v. Lord Penrhyn, 4 App. Cas. 51 178 Dawson v. Jay, 3 DeG. M. & G. 764 535 Day v. Newman, 2 Cox, 77 303 v. Snee, 3 V. & B. 170 448 Deacon v. Driffil, 4 A. R. 335 508 Dean v. Dean, 3 Mass. 258 263 DeBussche v. Alt, 8 Ch. D. 286 409 D'Hormusgee v. Grey, 10 Q. B. D. 13 87 Delaney v. Doolan, Fl. & K. 182 61 v. MacLellan, 13 P. R. 63 88 Delap v. Charlebois, 15 P. R. 45 88 v. , 15 P. R. 325 143 Den v. Jersey Co., 15 How. 426 14 Despard v. Wallbridge, 15 N..Y. 374 571 De St. Martins v. Davis, W. N. (1884) 86 87 Dewson v. St. Clair, 14 U. C. Q. B. 97 572 Dibb v. Walker, [1893] 2 Ch. 429 178 Dingle v. Rowe, Wightw. 99 519 Dixon v. Parks, 1 Ves. 402 444 Dodd v. Lydall, 1 Hare, 333 303 Doe d. Bowen v. Robertson, 5 All. 134 260 Fox v. Wright, 6 All. 241 173 ■ Hare v. McCall, Chip. MS. 90 259 Leeds v. Connolly, 3 All. 337 522 —- St. George's Church v. Mayes, 2 Han. 96 318 Sullivan v. Currey, 1 Pug. 175 265 Doer v. Rand, 10 P. R. 165 88 Dowden v. Hook, 8 Beav. 399 88, 512 Drever v. Maudesley, 5 Russ. 11 87 Drinkwater v. Drinkwater, 4 Mass. 354 264 Duffy v. Donovan, 14 P. R. 159 88 v. Orr, 1 CI. & F. 253 507 Duke of Brunswick v. Duke of Cambridge, 12 Beav. 279 494 Duke of Devonshire v. Pattinson, 20 Q. B. D. 263 14 Dulwich College v. Johnson, 2 Vern. 49 387 Duncan v. Findlater, 6 CI. & F. 894 39 Dundas v. Hamilton & Milton Road Co. , 19 Gr. 455 438 Dwyer v. Rich, Ir. Rep. 6 C. L. 144 15 E. Eade v. Jacobs, 3 Ex. D. 535 ; 47 L. J. Ex. 74 58 Eames v. Hacon, W. N. (1881) 4 ' 101 Earl Nelson v. Lord Bridport, 10 Beav. 306 121 Earl of Shrewsbury v. Trappes, 2 DeG. F. & J. 172 102 Earl Poulett v. Hood, L. R. 5 Eq. 116 271 TABLE OF CASES CITED. XV11 PAGE Earp v. Lloyd, 4 K. & J. 58 475 East India Co. v. Nuthumbadoo, 7 Moo. P. C. 482 370 Eastman v. Bank of Montreal, 10 O. R. 79 508 Ebbs v. Boulnois, L. R. 10 Ch. 488 216 Ebrard v. Gassier, 28 Ch. D, 232 87 Eoroyd v. Coulthard, [1897] 2 Ch. 554 14 Eddlestone v. Collins, 17 Jur. 331 475 Edmunds v. Aoland, 5 Madd. 31 420 v. Attorney-General, 47 L. J. (Ch.) 345 531 Edwards v. Burke, 9 L. T. N. S. 406 87 v. Ronald, 1 Knapp, 259 216 Elliot v. Davenport, 1 P. Wins. 83 430 Ellis v. Earl Grey, 6 Sim. 214 298 v. MoHenry, L. R. 6 C. P. 228 204 Elton v. Elton, 27 Beav. 632 482 Elves v. Crofts, 10 C. B. 241 347 Engerson v. Smith, 9 Gr. 16 194 England v. Downs, 1 Beav. 96 362 English v. Murray, 49 L. T. 35 32 Ewing v. Orr Ewing, 9 App. Cas. 34 217 Evan v. Corporation of Avon, 29 Beav. 144 328 Ex parte Abrams, 50 L. T. 184 164 Allen, 15 Mass. 57 264 Blain, 12 Ch. D. 522 197 Birch, 3 Swan. 98 394 Brandon, 25 Ch. D. 500 87 Crispin, L. R. 8 Ch. 374 204 Dikes, 8 Ves. SO 394 Foley, 11 Beav. 456 87 Gallagher, 26 N. B. 73 ; 327 Gliddun : In re The Maritime Bank v. Carvill, 24 N. B. 250 216 Irvine, 2 All. 516 498 Latta, 3 DeG. & S. 186 87 Lynott, 26 N. B. 126 531 Pascal, 1 Ch. D. 509 216 Philps, L. R. 19 Eq. 256 216 Rogers, 16 Ch. D. 665 208 Seidler, 12 Sim. 106 87 • — — Smith, 5 Ves. 556 394 Whitbread, 19 Ves. 212 371 Wright, 32 N. B. 54 497 Evans v. Bagshaw, L. R. 8 Eq. 469 405 v. Woods, L. R. 5 Eq. 9 378 Eyre v. Cox, 24 W. R. 317 190 F. Earnell v. Bowman, 12 App. Cas. 649 299 Farquharson v. Pitcher, 3 Russ. 383 448 Feather v. The Queen, 6 B. & S. 258. . . , 299 Eelkin v. Lord Herbert, 30 L. J. Ch. 604 ; 9 W. R. 496 298 Fellows v. Barrett, 1 Keen, 119 88 Fellowes v. Deere, 3 Beav. 353 512 eq. cas. — B XV111 TABLE OF CASES CITED. PAGE Fenton v. Crickett, 3 Madd. 496 85 Ferguson v. Spencer, 1 M. & G. 987 216 Ferniev. Maguire, 6 Ir. Eq. 137 _ S3» Field v. Hutchinson* L Bear. 59®, 371 -v. Soule, * Russ. 112 47 Fradlay v. Lawrance, 11 Jur. 705 61 Fitzpatrick v. Dryden, 30 N. B, 558 189, 313 v. Wilson, 12 Gr. 440 405 Fleming v. City of Toronto, 20 O. R. 547 332 v. Prior, 5 Madd. 423 420 Flower v. Lloyd, W. N. (1877) 81 437 Ford v. Ryan, 4 Ir. Ch. Rep. 342 537 Foss v. Harbottle, 2 Hare, 461 74, 422 Foster v. Village of Hintonburg, 28 O. R. 221 332 Fowler v. Mtna, Fire Ins. Co., 7 Wend. 270 24 Fox v. Blew, 5 Madd. 147 88 v. Toronto and Nipissing R. W. Co., 26 Gr. 352 437 Fram v. Fram, 12 P. R. 185 310 France v. France, L. R. 13 Eq. 173 483 Fraser v. Cooper, 21 Ch. D. 718 421 v. DeWitt, 1 P. & B. 738 512 v. Phoenix Mutual Ins. Co., 36 U. C. Q. B, 422 537 Freeston v. Claydon, 17 Jur. 435 167 Friend v. Solly, 10 Beav. 329 85- Fritz v. Hobson, 14 Ch. D. 542 ; 49 L. J. Ch. 321 40 Furness v. Mitchell, 3 A. R. 510 313 Futvoye v. Kennard, 2 Gift. 533 449" Fyson v. Pole, 3 Y. & C. Ex. 266 178 G. Gage v. Canada Publishing Co., 10 P. R. 169 88 Gamble v. Howland, 3 Gr. 281 437 Gandy v. Macaulay, 31 Ch. D. 1 604 Ganson v. Finch, 3 Chy. Ch. 296 85 Gaunt v. Finney, L. R. 8 Ch. 12 245 Gawler v. Standerwick, 2 Cox, 16 38y Geast v. Barber, 2 Bro. C.C.I 5jg. Geddis v. Proprietors of Bann Reservoir, 3 App. Cas. 455 38 Genesee Mutual Ins. Co. v. Westman, 8 U. C. Q. B. 487 351 Gerow v. Providence Washington Ins. Co., 25 N. B. 279 88 Gibbons v. Darvill, 12 P. R. 478 ' 92 v. Dawley, 2 Ch. Cas. 198 [ 387 Gibbs v. Daniel, 4 Giff. 41 n '.' 101 Giddings v. Giddings, 10 Beav. 29 ao Giffard v. Williams, L. R. 5 Ch. 546 404 Gilbert v. Lewis, 1 DeG. J. & S. 38 92 216 v. Raymond, 3 P. & B. 315 ' 204 v. Union Mutual Life Ins. Co., 25 N. B. 221 4(54 Gloucestershire Banking Co. v. Phillips, 12 Q. B. D, 533 og 2 Gleeson v. Domville, 33 N. B. 548 44a Glover v. North Staffordshire Ry. Co., 16 Q. B. 912 „. Glynn v. Locke, 5 Ir. Eq. 61 " ~„c TABLE OF CASES CITED. XIX PAGE Godard v. Gray, L. R. 6 Q. B. 139 216 Goldsmith v. Tunbridge Wells Improvement Commissioners, L. R. 1 Eq.161 13 Goodaore v. Ranney, 26 N. B. 62 328 Goslin v. Goslin, 27 N. B. 221 444 Gordon v. Armstrong, 16 P. R. 432 88 Governor and Company of the British Cast Plate Manufacturers v. Mere- dith, 4 T. R. 794 32 Graham v. Boston, Hartford and Erie Ry. Co., 113 U. S. 161 421 Grant v. Banque Franco-Egyptienne, 3 C. P. D. 202 101 Green v. Charnock, 1 Ves. J. 396 87 — v. Pulsford, 2 Beav. 70 448 Greenwood v. Churchill, 14 Beav. 160 85 v. Churchill, 1 Myl. & K. 546 402 Greville v. Browne, 7 H. L. C. 689 385 Griffin v. Archer, 2 Anst. 478 92 Grignon's Lessee v. Astor, 2 How. 338 265 Grocers' Co. v. Donne, 3 Bing. N. C. 34 85 Grumbrecht v. Parry, 32 W. R. 558 56 H. Haggard v. Pelicier Freres, [1892] A. C. 67 530 Hall v. Law, 102 U. S. 464 265 ^ v. Liardet, W. N. (1883) 175 56 v. Mayor of Bristol, L. R. 2 C. P. 322 ; 36 L. J. C. P. 110 40 Hallows v. Fernie, L. R. 3 Ch. 467 216 Hamburgher v. Poetting, 30 W. R. 769 87 Hamer v. Giles, 11 Ch. D. 942 114' Hammersmith Ry. Co. v. Brand, L. R. 4 H. L. 171 39' Hammond v. Messenger, 9 Sim. 327 544- Hannaghan v. Hannaghan, 1 N. B. Eq. 302 310, 417, 475 Hannam v. South London Waterworks Co., 2 Mer. 61 448 Hanington v. Stewart, 1 Pug. 242 531 Hansard v. Lethbrid^e, 8 Times Rep. 179 101 Harding v. Township of Cardiff, 2 O. R. 329. 40 Hargreaves v. Diddams, L. R. 10 Q. B. 582 ; 44 L. J. Q. B. 178 13 Harlock v. Ashberry, 19 Ch. D. 539 174 Harnett v. Yielding, 2 Sch. & L. 549 .' 570 Harrison v. Morehouse, 2 Kerr, 584 '. 265, 387 Hartga v. Bank of England, 3 Ves. 55 550- Hastings v. Hane, 6 Sim. 67 388 Hately v. Merchants Despatch Trans. Co., 10 P. R. 253 87 Hawes v. Bamford, 9 Sim. 653 186 Hawkins v. Maltby, L. R. 3 Ch. 188 370 Haynes v. Ball, 4 Beav. 102 532 Heanley v. Abraham, 5 Hare, 214 60 Heard v. Pilley, L. R. 4 Ch. 548 371 Heath v. Pugh, 6 Q. B. D. 345 175 Heathoote v. North Staffordshire Ry. Co., 2 MacN. & G. 100 109 Heaton v. Dearden, 16 Beav. 147 405 Heming v. Leifchild, 8 W. R. ; 9 lb 85 Hemphill v. McKenna, 3 Dr. & W. 183 130 XX TABLE OF CASES CITED. PAGE Hendricks v. Hallett, 1 Han. 170 83, 475 Hennessy v. Wright, 36 W. R. 879 56 Henshall v. Roberts, 5 East, 150 185 Heme v. Ogilvie, 11 Ves. 77 61 Herring v. Clobery, 12 Sim. 410 101 Heys v. Astley, 4 DeG. J. & S. 34 364 Higgins v. Manning, 6 P. R. 147 87 Higginson v. Blockley, 1 Jur. N. S. 1104 493 Hill v. Fulbrook, Jae. 574 482 Hillhouse v. Tyndall, 12 Ir. Eq. R. 316 61, 96 Hills v. Springett, L. R. 5 Eq. 123 513 Hilton v. Lord Granville. 4 Beav. 130 130 Hind v. Whitmore, 2 K. & J. 458 362, 511 Hirsch v. Coates, 18 0. B. 757 5is Hoare v. Peck, 6 Sim. 51 178 Hoby v. Hitchcock, 5 Ves. 699 87 Hodges v. Hodges, 25 W. R. 162 131 Hodgson v. Bntterfield, 2 S. & S. 236 494 Hoffmann v. Postill, L. R. 4 Ch. 673 56 Hogg v. Bridge^ &Taun. 200 197 Holden v. Waterlow, 15 W. R. 139 130 Holderness v. Rankin, 6 Jur. (N.S.) 903 474 Hollender v. Efoulkes, 16 P. R. 225 88, |49 Hoole v. Great Western Ry. Co., L. R. 3 Ch. 272 78 Hope v. Hope, [1892] 2 Ch. 336 313 Hopkins v. Hopkins, 9 P. R. 71 404 Hovenden v. Lord Annesley, 2 Sch. & L. 637 440 Howard v. Howard, 1 Vern. 134 387 Hubbard v. Hubbard, 2 H. & M. 33 483 Hudson v. Maddison, 12 Sim. 416 247, 332 Hudson Bay Co. v. Pugsley, 27 N. B. 15 446 Hughes v. Lewis, 6 Jur. N. S. 442 61 Huguenin v. Baseley, 15 Ves. 180 437 Humble v. Langston, 7 M. & W. 517 376 Hulme v. Tenant, 1 Bro. C. C. 15 48 Hyatt v. Griffiths, 17 Q. B. 506 565 Hynes v. Fisher, 4 O. R. 78 189 I. Ingliss v. Campbell, 2 Eq. Rep. 1130 ; 2 W. R. 396 61 v. Grant, 5 T. R. 530 197 Irvin v. Simonds, 6 All. 190 572 J. Jackson v. Duke of Newcastle, 3 DeG. J . & S. 275 246 v. Edwards, 7 Paige, 386 41g v. Ivimey, L. R. 1 Eq . 693 392 448 v. Oglander, 2 H. & M. 465 . ' 371 Jacobs v . Raven, 30 L. T. 366 53^ James v. Barraud, 49 L. T. N. S. 300 3g2 v. Johnson, 6 Johns. Ch. 417 194 v. Morey, 2 Cowen, 246 _ _ I94 TABLE OF CASES CITED. xxi PAGE Jardine v. Vaughan, 26 N. B. 244 61 Jenks v. Howland, 3 Gray, 53B 265 Jessop v. McLean, 15 Gr. 489 362 Jeudwine v. Agate, 5 Russ. 283 420 Joohumsen v. Suffolk Savings Bank, 3 Allen, 87 265 Johnson v. Gallagher, 3 DeG. P. & J. 494 43, 455 v. Johnson, 3 Hare, 157 432 v. Tucker, 15 Sim. 599 ; 11 Jur. 466 97 Jolly v. Wimbledon, etc., Ry. Co., 1 B. & S. 807 ; 31 L. J. Q. B. 96 39 Jones v. Bird, 5 B. & Aid. 844 33 — v. Calkin, 3 Pug. 356 13, 402 v. Evans, 31 Sol. Jo. 11 88 v. Fawcett, 2 Ph. 278 512 v. Fawcett, 11 Jur. 687 512 v. Harris, 9 Ves. 493 45 v. Hewett, 8 Ir. Eq. Rep. 517 60 — v. Hunter, 1 N. B. Eq. 250 8 v. Jones, 1 Jur. N. S. 8S3 96 — — v. Lees, 1 H. & N. 189 347 v. Lord Charlemont, 12 Jur. 389 166 v. Pritchard, 6 D. & L. 529 530 v. Robinson, 3 DeG. M. & G. 913 482 ■ v. Smith, 1 Hare, 43 369 Jope v. Morshead, 6 Beav. 213 405 Jopling v. Stuart, 4 Ves. 619 167 Jouett v. Lockwood, 2 Kerr, 676 204 K. Kains v. Turville, 32 U. C. Q. B. 17 15 Kennedy v. Nealis, unreported 497 Kenneway v. Tripp, 11 Beav. 588 87 Kensington v. White, 3 Price, 164 529 Kent v. Kent, 19 A. R. 352 313 Kerr v. Read, 22 Gr. 529 93. v. Steeves, 22 N. B. 124 54* Kibble v. Fairthorne, [1895] 1 Ch. 219 178i Kilkenny Ry. Co. v. Fielden, 6 Ex. 81 87 Kimball v. Cross, 136 Mass. 300 570v King v. Bryant, 6 L. J. Ch. (N.S.) 151 61 v. Davenport, 4 Q. B. D. 402 449i v. Martin, 2 Yes. 641 9S Kirchhoffer v. Stanbury, 25 Gr. 413 15 Koehler v . Black River Falls Iron Co., 2 Black. 715 421 Kramer v. Cook, 7 Gray, 550 571 L. Lafone v. Falkland Islands Co., 2 K. & J. 276 56 La Grange v. McAndrew, 4 Q. B. D. 210 88, 448, 449 Lamson v. Schutt, 4 Allen, 359 264 Landell v. Baker, L. R. 6 Eq. 268 483 La Touche v. La Touche, 34 L. J. (Ex.) 85 48 Lautour v. Holcombe, 1 Ph. 262 88, 449 XXII TABLE OF CASES CITED. PAGE Lavoie v. The Queen, 3 Ex. C. R. 101 300 Lawrence v. The Great Northern Ry. Co., 20 L. J. (Q.B.) 296 ; 16 Q. B. 643 40 Lawrance v . Norreys, 15 App . Cas . 210 530 Lea v. Wallace, 33 N. B. 492 50 Leach v. Shaw, 8 Gr. 498 439 v. Westall, 17 W. R 313 483 Leader v. Moxon, 2 W. Bl. 924 32 Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. C. 538 149 v. Lorsont, L. R. 9 Eq. 345 3*6 Lechmere v. Brasier, 2 J. & W. 287 522 Lee v. Bude, L. R. 6 C. P. 576 263 v. Head, 1 K. & J. 625 191 v. Milner, 2 Y. & C. Ex. 618 158 Leftwick v. Clinton, 26 How. P. R. 26 143 Lephrohon v. The Queen, 4 Ex. C. R. 110 299 Leslie v. Dungannon, 12 Ir. Ch. Rep. 205 482 Lewes v. Morgan, 5 Price, 471 392 Lewis v. Jones, 1 Chy . Ch. 120 97 Little v. Wright, 16 Gr. 576. 88 Lloyd v. Lander, 5 Madd.-282 91 v. Makelam, 6 Ves. 145 512 v. Solicitors' Ass. Co., 24 L. J. Ch. 704 97 v. Williams, 2 W. Bl. 722 185 Lock v. Cleveland, 1 All. 390 15 Lockhart v. Sahctnn, Stev. Dig. (3rd ed. ) 649 61 Loffus v. Maw, 3 Giff. 592 388 London Chartered Bank v . Lempriere, L . R. 4 P. C . 572 457 London v. Dorset (Corporation), 1 Ch. Ca. 228 519 London County Council v. Worley, [1894] 2 Q. B . 826 25 London & N. W. Ry. Co. v. Bradley, 3 MacN. & G. 336 38 v. Evans, [1893] 1 Ch. 28 39 London & S. W. Ry. Co. v. Gomm, 20 Ch. D. 583 357 Lonergan v. Rokeby, Dick. 79 87 Longv. Bishop of Cape Town, 1 Moo. P.C. C. 411 319 Lord v. Commissioners of Sydney, 12 Moo . P. C. 473 6 v. Colviri, 1 Dr. & Sm. 475 477 v. Copper Mineis' Co., 2 Ph. 740 422 Lowe v. Fox, 15 Q. B. D. 667 362 v. Williams, 12 Beav. 482 96 Lowndes v. Robertson, 4 Madd. 465 143 Lucas v: King, 2 Stock. Ch. 280 405 — v. Lucas, 13 Ves. 274 56 Lund v. Blanshard, 4 Hare, 290 190 Lyall v. Edwards, 6 H. & N. 337 504 Lydney, etc., Ore Co. v. Bird, 23 Ch. D. 358 88 Lyon v. Fishmongers' Co., 1 App. Cas. 662 14 M. Macdougall v. Gardiner, 1 Ch. D. 13 422 MaoLaren v. Grant,' 32 N. B. 644 ; 23 Can. S. C. R. 310 387 Maddison v. Alderson, 8 App. Cas. 467 365 TABLE OF CASES CITED. XX111 PACE Maleomson v. O'Dea, 10 H. L. C. 593 13 Mallan v. May, 11 M. & W. 653: 347 Marquis of Salisbury v. Great Northern Ry. Co., 5 C. B. N. S. 174 14 Marsaok v. Reeves, 6 Madd. 108 131 Marsh v. Attorney -General, 3 L. T. N. S. 615 272 Marshall v. South Staffordshire Tramways Co., [1895] 2 Ch. 36 191 v. Smith, 5 Gift. 37 441 Martano v. Mann, 14 Ch. 1). 419 88, 512 Marten v. Whichelo, Cr. & Ph. 257 522 Marzetti v . Comte du Jouffroy, 1 Dowl. 41 185 Mason v. Jeffry, 2 Chy . Ch. 15 88 Massey v. Allen, 12 Ch. D. 807 87 Matthewman's Case, L. R. 3 Eq. 781 455 May v. Newton, 34 Ch. D. 349 421 Mayfair Property Co. v. Jshnston, [1894] 1 Ch. 508 248 Mayor, etc., of Blackburn v. Parkinson, 1 E. & E. 71 39 Mayor, etc., of Colchester v. Lowten, 1 V. & B. 226 163 Mayor, etc., of St. John v. Brown, 1 Pug. 100 20, 129 v. Lockwood, 2 Kerr, 9 204, 214 Mazarredo v. Maitland, 3 Madd. 70 267 M' Andrew v. Bassett, 33 L. J. (Ch.) 562 335 McArthur v. Gillies, 29 Gr. 223 15 McDonald v. Georgian Bay Lumber Co., 2 Can. S. C. R. 364 216 McDonell v. Boulton, 17 IT. C. Q. B. 14 571 McDonough v. Dougherty, 10 Gr. 42 194 McGarvey v. Strathroy, 6 O. R. 138 438 McGrath v. Franke, 22 N. B. 456 256 McKenzie v. Sinton, 6 P. R. 282 87 McLaren v. Caldwell, 29 Gr. 438 ; 6 A. R. 494 437 McLean v. McKay, L. R. 5 P. C. 327 355 Mead v. Jenkins, 4 Redf. 369 263 Meddowcroft v. Campbell, 13 Beav. 184 362 Merriman v. Williams, 7 App. Cas. 511 322 Merry v. Nickalls, L. R. 8 Ch. 206 101 Mersey Docks Trustees v. Gibbs, L.B.1H. L. 112 38 Mertens v. Haigh, 1 J. & H. 231 56 Metropolitan Asylum District v. Hill, 6 App . Cas. 193 ; 50 L . J . Q . B. 353 39 Metropolitan Bank v. Pooley, 10 App. Cas. 214 530 Micklethwait v. Newlay Bridge Co., 33 Ch. D. 133 14 Midgley v. Midgley, [1893] 3 Ch. 282 264 Miller v. Huddlestone, W. N. (1881) 171 513 v. Marriott, L. R. 7 Eq. 1 482 v. Warmington, 1 J. & W. 493 310, 405 v. Weldon, 1 Han. 375 448 Mitchel v. Reynolds, 1 Sm. L. C. (8th ed.) 417 346 Mitten v. Wright, 1 N. B. Eq. 171 413 Moore v. Edwards, 4 Ves. 23 371 Mores v. Huish, 5 Ves. 692 45 Morgan v. Elford, 4 Ch, D. 352 101 Morison v. Morison, 19 Jur. 339 102 Mornington v. Keane, 2 DeG. & J. 292 136 Morris v. Timmins, 1 Beav. 411 482 XXIV TABLE OF CASES CITED. PAGE Mortimer v. Orchard, 2 Ves. 243 369 Moser v. Marsdeh, [1892] 1 Ch. 490 . . . . 420 Motteux v: Mackreth, 1 Ves. 142 512 Mozley v. Alston, 1 Ph. 790 73, 422 Mumford v. Gething, 7 C . B. (N.S.)305 347 Munday v. Knight, 3 Hare, 497 216 Murphy v. Ryan, Ir. Rep. 2 0. L. 143 .' 14 Murray v. Hay, 1 Barb. Ch. 59 247 Muskoka Mill Co. v. The Queen, 28 Gr. 563 299 Mussett v. Burch, 35 L. T. N. S. 486 13 N. Newbould v. Smith, 33 Ch. D. 127 178 New Brunswick Ry. Co. v. Kelly, 1 N. B. Eq. 156 85 Newoombe v. City of Moncton, 31 N. B. 386 87 New River Co. v. Tohnson, 2 E. & E. 435 40 Newland v. Horsman, 2 Ch. Ca. 74 519 Newton v. Dimes, 3 Jur. (N. S. ) 583 475 v. Ricketts, 11 Beav. 164 52, 61 New York Life Insurance Co. v. Smith, 2 Barb. Ch. 82 194 Norris v. Ormond, W. N. (1883) 58 164 North-Eastern Ry. Co. v. Martin, 2 Ph. 762 252 Noyes v. Crawley, 10 Ch. D. 31 178 Nudell v. Williams, 15 U. C. C; P. 348 571 Nugent v. Vetzera, L. R. 2 Eq. 704 535 O. Oakley v. Monck, 3 H. & C. 706 ; L. R. 1 Ex. 159 575 O'Hare v. Ecclesiastical Commissioners, 11 Ir. Eq. Rep. 262 404 Olney v. Bates, 3 Drew. 319 426 O'Lone v. O'Lone, 2 Gr. 125 121 O'Reilly v. Vincent, 2 Moll. 330 405 Orr Ewing v. Colquhoun, 2 App. Cas. 839 16 Osborn v. Osborn, L. R. 6 Eq. 338 483 Ottley v. Gray, 18 L. ,T. (Ch.) 512 537 Oulton v. Milner, 3 Pug. 221 448 Overton's Heirs v. Woolfolk, 6 Dana, 374 405 Owden v. Campbell, 8 Sim. 551 362 Owens v. Dickenson, Cr. & Ph. 48 ; 47 P. s* Palmer v. Hutchinson, 6 App. Cas. 019 298 Panton v. Labertouche, 1 Ph. 265 88 Parker v. Brown, 3 Chy . Ch. 354 97 v. Gerard, Ambl. 236 405 v. Great-Western Ry. Co., 7 Scott N. R. 870 , 158 Parr v. Attorney-General, 8 CI. & P. 409 75^ 339 Partington v. Reynolds, 6 W. R. 307 87^ 329 Paterson v. Bowes, 4 Gr. 170 ' 33O Pattinson v. Mayor, etc., of St. John, 2 P. & B. 636 ; Cassels Dig (ed 1893) 174 ' g7 TABLE OF CASES CITED. XXV PAGE Payne v. Little, 16 Beav. 563 512 v. Wright, [1892] 1 Q-B. 101 24 Peacock v. Peacock, 16 Ves .51 118 Pearce v. Scotcher, 9 Q. B. D. 162 13 Pendry v. O'Neil, 7 P. K. 52 88 Penn v. Bibby, L. R. 3 Eq. 308 437 Pennell v. Roy, 1 W. R. 271 102 Pennington v. Alvin, 1 S. &. S. 264 88, 511 People v. Oanal Appraisers, 33 N. Y. 461 14 Peters v. Peters, 8 Cush. 529 265 Phelps v. Green, 3 Johns. Ch. 303 105 Phene v. Gillan, 5 Hare, 1 ; 9 Jur. 1086 375 Phinney v. Clark, 27 N. S. 384 ; 25 Can . S C. R. 633 265 Phipps v. Steward, 1 Atk. 285 387 Picard v. Hine, L. R. 5 Ch. 274 43, 456 Pierce v. Canada Permanent Loan Co., 25 O. R. 671 ; 23 A. R. 516. . . . 194 — v. Presoott, 128 Mass. 140 265 Pike v. Cave, [1893] W. N. 91 ; 68 L. T. 651 362 Pinkett v . Wright, 4 Hare, 160 • 101 Piper v. Gittens, 11 Sim. 282 61 Pointon v, Pointon, L. R. 12 Eq. 547 256 Polini v. Gray, 12 Ch. D. 411 437 Porter v. Lopes, 7 Ch. D. 358 483 Potter v. Brown, 5 East, 124 216 v. Waller, 2 DeG. & S. 410 403 Powell v. Doubble, Sug. 29 24 v. Thomas, 6 Hare, 300 409 v. Wallworth, 2 Madd .183 420 Prance v. Sympson, Kay, 678 178 Prestney v. Mayor of Colchester, 21 Ch. D. Ill 330 Price v. North, 2 Y. & C. Ex. 628 420 v. Webb, 2 Hare, 515 166 Pritchard, v. Foulkes, 2 Beav. 133 186 Pyer v. Carter, 1 H. & N. 916 8 Q- Queen, The v. Martin, 20 Can. S. C. R. 240 300 v. McEarlane, 7 Can. S. C. R. 216 299 v. McLeod, 8 Can. S. C. R. 1 299 v. Robertson, 6 Can. S. C. R. 52 14 v. Tidy, [1892] 2 Q. B. 179 329 R. Raleigh v. Goschen, [1898] 1 Ch. 73 298 Randall v. Errington, 10 Ves. 428 410 Rapier v. London Tramways Co., [1893] 2 Ch. 588 413 Rawson v. Samuel, 1 Cr. & Ph. 161 304 Re Ackroyd, 1 Exch. 479 530 Re Apollinaris Co.'s Trade Marks, [1891] 1 Ch. 1 87 Re Artola Hermanos, 24 Q. B. D. 640 216 Re B., [1892] 1 Ch. 463 498 Re Barrington'a Settlement, 1 J. & H. 142 270 XXVI TABLE OF CASES CITED. PAGE Re Beaty, 6 A. R. 40 50 ® He Blithman, L. R. 2 Eq. 23 ' 216 Re Box, 11 W. R. 945 27 ° Re Box, 1 H. & M. 552 • 271 Re Breed's Will, 1 Ch. D. 226 271 Re Bunnett, 10 Jur. N. S. 1098 272 Re Caesar's Will, 13 Gr. 210 272 Re Catlin, 18 Beav. 508 ■ 8 ° Re Clark, Ex p. Beyer, [1896J 2 Q. B. 476 2l9 Re Contract and Agency Corporation, 57 L. J. (Ch.) 5 87 Re Congreve, 4 Beav. 87 85 Re Cook's Trusts, W. N. (1873) 49 271 Re Corbett, L. R. 1 Ch. 516 3iH Re Cuno, Mansfield v. Mansfield, 43 Ch. D. 12 313 Re Davidson, L. R. 15 Eq. 383 216 Re Davis' Will, 7 Jur. N. S. 118 272 Re Dennis, 5 Jur. N. S. 1388 2 7° Re DeVeber, Ex p. Bank of New Brunswick, 21 N. B. 401 142 Re Dolman, 11 Jur. 1095 87 Re Drummond & Davie's Contract, [1891] 1 Ch. 534 313, 395 Re Elmore's Will, 6 Jur. N. S. 1325 272 Re Elwes, Seton, 491 2 72 Re Evans, 30 Beav. 232 272 Re Ewin, 1 Cr. & J. 151 215 Re Foxwell's Estate, 1 N. B. Eq. 195 271 Re French's Trust, L. R. 15 Eq . 68 271 Re Erisby, 43 Ch. D. 106 : 178 Re Green's Trust, 6 Jur. N. S. 530 271 Re Hecquard, Ex p. Hecquard, 24 Q. B. D. 71 219 Re Hooper's Will, 29 Beav. 056 272 Re Hubbard, 23 Beav. 481 : S5 Re Halford, 1 Jur. 524 . . 394 Re Howe Machine Co., 61 L. T. N. S. 170 87" Re Hulkes, 33 Ch. D. 552 388 Re Isaac, 30 Ch. D. 418 88 Re Keenan, 2 Chy. Ch. 492 394 Re Kershaw's Trusts, L. R. 6 Eq. 322 271 Re Knowles' Trust, W. N. (1868) 233 271 Re Larken's Trust, W. N. (1872) 85 271 Re Lees' Trusts, W. N. (1875) 61 271 Re Leslie, 2 Ch. D. 185 272 Re London, etc., Ry. Arrangement Act, L. R. 5 Oh. 671 110 Re Lorenz's Settlement, 1 Dr. & Sm. 401 ; 7 Jur. N. S. 402 270 Re Lumley, [1894] 2 Ch. 273 497 Re Mason's Will, 34 Beav. 494 432 Re McDonough, 30 U. C. Q. B. 288 14 Re McVeagh, Seton, 491 272 Re Michel's Trust, 28 Beav. 39 '. 272 Re Miles' Will, 27 Beav. 579 272 Re Mockett's Will, Johns. 628 270 Re Muggeridge's Settlement, 29 L. J. Ch. 288 270 Re Muggeridge's Trust, Johns. 625 ; 6 Jur. N. S. 479 270 TABLE OF CASES CITED. XXVli PAGE Re Murray's Trust, W. N. (1868) 195 271 Re Norman, 11 Beav. 401 88 Re Orrell Colliery Co., 12 Ch. D. 681 449 Re Pearson, Ex p. Pearson, [1892] 2 Q. B. 263 218 Re Pitt's Will, 5 Jur. N. S. 1235 272 Re Prynne, 53 L. T. 465 362 Re Ponton, 15 Gr. 355 85 Re Rownson, 29 Ch. D. 358 264 Re Spiller, 6 Jur. N. S. 386 .' 271 Re Stone's Settlement, W. N. (1874) 4 271 Re Stables, 4 DeG. J. & S. 257 V 33L. J. Ch. (N.S.) 422 394 Re T., 15Cft. D. 7ff 272 Re Thompson, 38 Ch. D. 317 88, 512 Re Tracy, 21 A. R. 454 194 Re Tottenham, [1896] 1 Ch. 628 190 Re Tuck, W. N. (1869) 15 271 Re Vavasour, 3 MacN. & G. 275 394 Re Ware, [1892] 1 Ch. 344 394 Re Williams, 22 A. R. 196 271 Reddaway v. Banham, [1896] A. C. 199 149 Redfern v. Redfern, 63 L. T. 780 87 Redford v. Todd, 6 P. R. 154 61 Bedondo v. Chaytor, 4 Q. B. D. 453 87 Reece v. Miller, 8 Q. B. D. 626 13 Reed v. Marble, 10 Paige, 409 194 v. Gifford, Hopk. Rep. 416 247 Reg. v. Bayley, 8 Q. B. D. 411 531 v. Darlington Local Board, 5 B. & S. 515 ; 6 lb. 562 33 v. Lovibond, 24 L. T. 357 ; 19 W. R. 753 25 v. Metropolitan Board, 3 B. & S. 710; 32 L. J. Q. B. 105 40 v. Taylor, 36 U. C. Q. B. 183 , 200 v. Tithe Commissioners, L. R. 8 Q. B. 481 262 v. Vaughan, L. R. 4 Q. B. 790 40 v. Vestry of St. Luke's, L. R. 7 Q. B. 148 32 v. Wallasey Local Board, L. R. 4 Q. B. 351 39 Reid v. Miller, 24 U. C. Q. B. 610 264 Rex v. Westwood, 7 Bing. 1 ; 2 Dow. & CI. 21 67 v. Windham, Cowp. 377 422 Rhodes v. Dawson, 16 Q. B. D. 548 88 — v. Moxhay, 10 W. R. 103 508 Republic of Costa Rica v. Erlanger, 3 Ch. D. 62 87 Richards v. Bayley, 1 J. & L. 120 474 Richardson v. Bank of England, 1 Beav. 153 102 v. Peary, 39 Ch. D. 45 483 v. Hastings, 11 Beav. 17 419 Riekett v. Metropolitan Ry. Co., L. R. 2 H. L. 175 ; 36 L. J. Q. B. 205 40 Ridgway v. Wharton, 3 DeG. M. & G. 677 364 Roberts v. Read, 16 East, 215 37 v. Evans, 7Ch. D. 830 '. 362 v. Hayward, 3 C. & P. 432 577 Robertson v. Watson, 27 TJ. C. C. P. 579 15 XXV111 TABLE OF CASES CITED. PAGE Robinson v. Bland, 2 Burr. 1079 204 v. Hodge, 117 Mass. 222 . , 264 v. Kilvert, 41 Oh . D. 88 413 v. Pickering, 16 Ch. D. 660 540 v. Stanford, 2 Hare, 149 61 Rochdale Canal Co. v. King, 2 Sim. N. S. 78 408 Rogers v. Trustees of Bathuret School District, IN. B. Eq. 266 330 Roike v. McCarthy, 6 Ir. Law Rep. 29 448 Ross v. White, [1894] 3 Ch. 326 122 Rothchild v. Wilson, 19 N. Y. C. P. R. 76 143 Rousillon v. Rousillon, 14 Ch. D. 351 216 Rowbotham v. Wilson, 8 H. L. C. 348 356 Rowe v . Granite Bridge Corporation, 21 Pick . 344 14 v. Teed, 15 Ves. 375 371 v. Wood, 2 J. & W. 558 118 Royal Canadian Bank v. Mitchell, 14 Gr. 415 312 Russel v. Buchanan, 9 Sim. 167 85 Russell v. Wakefield Water Works Co., L. R. 20 Eq. 474 78 S. Sacher v. Bessler, 4 Times Law Rep. 17 87 Saltmarsh v. Barrett, 31 Beav. 349 388 Salvin v. North Brancepeth Coal Co., L. R. 9 Ch. 705 413 Schales v. Pickering, 4 Bing. 452 158 Schibsby v, Westenholz, L. R. 6 Q. B. 115 216 Sohjott v. Schjott, 19 Ch. D. 94 88, 512 Scott v. Alnutt, 2 Dow. & CI. 404 204 v. Burnham, 19 Gr. 234 93 v. Hanccck, 13 Mass. 162 264 v. Streatham Estates Co., W. N., [1891] 153 304 Seear v. Lawson, 16 Ch. D. 121 513 Selkrig v. Davies, 2 Dow. 230 215 Semple v. London and Birmingham Ry. Co., 9 Sim. 209 248 Shattock v. Shattock, L. R. 2 Eq. 182 457 Shelter v. City of London Electric Lighting Co., [1895] 1 Ch . 287 247 Shepherd v. Churchill, 25 Beav. 21 483 Shields v. Quigley, IN. B. Eq. 154 310, 482 Skinner v. Ainsworth, 24 Gr. 148 416 Sibbald v. Lowrie, 2 K. & J. 276 56 Sidaway v. Hay, 3 B. & C. 12 216 Sidgier v. Tate, 11 Ves. 202 61, 95 Sigel v. Phelps, 7 Sim. 239 362 Sill v. Worswick, 1 H. Bl. 665 205 Simpson v. Dandy, 8 C. B. N. S. 433 6 v. Denshaw, 2 Cox, 377 448. v. Ritchie, L. R. 16 Eq. 103 . . 482 v. Westminster Palace Hotel Co., 8 H. L. C. 712 78- Sims v . Ridge, 3 Mer. 458 420 Singleton v. Hopkins, 25 L. J. (Ch.) 50 483 Slade v. Barlow, L. R. 7 Eq. 296 404 Slocum v. English, 62 N. Y. 494 263 TABLE OF CASES CITED. XXIX PAGE Smith v. Andrews, [1891] 2 Ch. 678 13 v. Buller, L. R. 19 Eq. 473' 85 v. Halifax Banking Co., 33 N. B. 1 448 v. Rice, 11 Mass. 507 265 v. Silverthorne, 15 P. R. 197 87 v. Snow, 3 Madd. 10 91 v. Turner, 3 P. Wms. 413 520 Snider v. Snider, 11 P. R. 34 61 Snook v. Duncan, 5 Jur. 1078 87 Somerset Coal Canal Co. v. Hareourt, 24 Beav. 571 355 Soeiete Generale de Paris v. Geen, 8 App. Cas. 606 507 Southampton Dock Co. v . Southampton Harbour and Pier Board, L. R. 11 Eq. 254 254 South-Eastern Ry. Co. v. Brogden, 3 MacN. & G. 23 253 Southworth v. Taylor, 28 Beav. 616; 29 L. J. Ch. 868 448 Spears v. Walker, 11 Can. S. C. R. 113 24 Spencer v. London and Birmingham Ry. Co., 1 Rail. Ca. 159; 8 Sim. 193; 7L. J. Ch. (N. S.)281 247 Spooner v. Payne, 2 DeG. & S. 439 52, 60, 95 Spurrier v. Bennett, 4 Madd. 39 60 v. Fitzgerald, 6 Ves. 548 364 Squire v. Ford, 9 Hare, 47 507 Stanley v. Bond, 6 Beav. 421 532 Steadman v. Robertson, 2 P. & B. 580 14 Stent v. Wickens, 5 DeG. & S. 384 475 Stevens v. Gourley, 7 C. B. N. S. 99 24 v. Guppy, 3 Russ. 171 184 v. Thompson, 38 Ch. D. 317 362 Stewart v. Stewart, 20 Beav. 322 87 St. John v. Earl of Besborough, 1 Hogan, 88 Stock v. Mawson, 1 B. & P. 286 506 Stockport District Water Works Co. v. Mayor of Manchester, 9 Jar. N. S. 266 332 Stockton v. Dawson, 5 L. J. Ch. (N. S.) 122 85 Storey v. Lord Lennox, 1 My . & Cr. 685 437, 478 Stovel v. Coles, 3 Chy . Ch . 421 512 Suffield v. Brown, 33 L. J. Ch. 249 ; 10 Jur. N. S. Ill 8 Sutton v. Clarke, 8 Taun. 34 33 Sutton's Hospital Case, 10 Rep . 316 67 Sutton v. Montfort, 4 Sim. 559 247 Swan v. Adams, 7 P. R. 147 512 v. Swan, 8 Price, 518 405 T. Taff Vale Ry. Co. v. Nixon, 1 H. L. C. Ill 253 Talbot v. Marshfield, L. R. 1 Eq. 6 465 Tarbell v. Parker, 106 Mass. 347 264 Taylor v. Meads, 4 DeG. J. & S. 597 313 Taylor v. Milner, 11 Ves. 42 267 Tebbutt v. Holt, 1 C. & K. 280 528 Teed v. Johnson, 25 L. J. (Ex.) 110 503 Tennant v. Union Bank of Canada, [1894] A. C. 31 141 XXX TABLE OF CASES CITED. PAGE Thackeray v. Parker, 1 N. E. 567 483- Thayer v. Winchester, 133 Mass. 447 265 The Annot Lyle, 11 P. D. 114 102 Third Ave. R. R. v. New York, 54 N. Y. 159 530 Thompson v. Armstrong, 1 Ir. Jur. N. S. 335 448- v. Jones, 8 Ves. 141 243 v. Montgomery, 41 Ch. D. 35 ; [1891] A. 0. 217 147 v Sheppard, 2 Cox, 161 121 v. Thompson, 7 Beav. 350 444 Thibaudeau v. Herbert, 16 P. R. 420 . .., 88 v. Scott, (to be reported in 1 N. B. Eq. ) 88 Thomas v. Palin, 31 Ch. D. 366 497 v. Rawling, 27 Beav. 375 475 Thorby v. Yates, 1 Y. & C. C. C. 438 362 Thornton v. Curling, 8 Sim. 310 387 Thorpe v. Brumfitt, L. R. 8 Ch. 650 248 Tilbury v. Silva, 45 Ch. D. 98 15 Tobin v. The Queen, 16 C. B.N. S. 310 299 Topham v. Duke of Portland, 11 W. R. 813 102 Toronto v. Toronto Street Ry . Co., 12 P. R. 361 438 Torrens v. Currie, 22 N. B. 342 310 Trueman v. Woodworth, 1 N. B. Eq. 83 539 Trustees of Union College v. Wheeler, 61 N. Y. 88 194 Trustees of Village of Watertown v. Cowen, 4 Paige, 514 356 Tulk v. Moxhay, 2 Ph. 774 354 Tullett v. Armstrong, 4 Beav. 319 46 Turner v. Sheffield, etc., Ry. Co., 10 M. & W. 425 39 v. Turner, 14 Ch. D. 829 504 Tuttle v. State, 4 Conn. 68 24 Tyler v. Drayton, 2 S. & S. 309 465 Tyson v. Cox, 3 Madd. 278 101 U. Umf reville v. Johnson, L . R . 10 Ch . 580 247 Union Rubber Co. v. Hibbard, 6 U. C. C. P. 77 352 United States Life Ins . Co . v . Jordan, 5 Redf . 207 263 Unity Joint-Stock Mutual Banking Ass . v . King, 25 Beav . 72 369- V. Valin v. Langlois, 3 Can. S. C. R. 1 141 Vassie v. Vassie, 22 N. B. 76 181, 189, 244 Veitch v . Irving, 11 Sim . 122 gg Vipan v. Mortlock, 2 Mer. 476 332 Viscount Canterbury v . Attorney-General, 1 Ph . 306 298 Viscount Gort v. Rowney, 17 Q. B. D. 625 247 W Wagstaff v . Bryan, 1 Russ. & M . 30 492: Wake v . Parker, 2 Keen, 59 3g2 Walburn v. Ingilby, lMy. &K. 79 437 Waldo v. Caley, 16 Ves. 212 ' " ' ' 1Qa Walford v. Walford, L. R. 3 Ch. 812 ' ' ' i3T TABLE OF CASES. CfcEKDi XXXI PAGE Walker v. &rtra6y; ffVes. 612 87 v. McMillan, 21 N. B. 31 ; 6 Can. S. C. R. 241 24 Wallbridge v. Trust and Loan Co., 13 P. R. 67 88 Waller v. Pedlington, 4 Beav. 124 60 Walsh v. Gladstone, 13 Sim. 261 ; 1 Ph. 294 387 v. Lonsdale, 21 Ch. D. 9 572 v. Nugent, 1 N. B. Eq. 335 362 Walter v. Selfe, 4 DeG. k S. 315 413 Walton v. Henry, 13 P. R. 390 130 Warburton v. Loveland, 2 Dow. & CI. 489 165 Ward v. Ward, 11 Beav. 159 449 Watkins v. Great Northern Ry. Co., 16 Q. B. 968 39 Watson v. Cave, 17 Ch. D. 21 420 Watteau v. Billam, 14 Jur. 165 ; 3 DeG. & S. 516 88 Watts v. Kelson, L. R. 6 Ch. 166 9 v. Watts, Johns, 631 513 Waugh v. Middleton, 8 Exch. 356 171 Webster v. British Empire Mutual Life Ass. Co., 15 Ch. D. 169 538 Weeks v . Cole, 14 Ves. 518 87 Weise v. Wardle, L. R. 19 Eq. 171 91 Wellbeloved v. Jones, 1 S. & S. 40 322 Welsbach Gaslight Co. v. St. Leger, 16 P. R. 382 87 Weldon v. DeBathe, 14 Q. B. D. 339 362 v. Winslow, 13 Q. B. D. 784 362 West v. Trustees School District, 22 N. B. 72 544 Western v. MacDermott, L. R. 2 Ch. 72 355 Western Union Tel. Co. v. American Union Tel . Co., 38 Am. Rep. 781. 349 v. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1 348 v. St. Joseph and Western Ry. Co., 3 Fed. Rep. 430 349 Whistler v. Hancock, 3 Q. B. D. 83 449 White v. Greathead, 15 Ves. 2 87 Whitehouse v. Fellows, 10 C. B. N. S. 765; 30 L. J. C. P. 305 40 Whitelock v. Baker, 13 Ves."511 520 Whittaker v. Howe, 3 Beav. 383 348 Whitworth v. Davis, 1 V. & B. 545 91 Wiggins Ferry Co. v. Chicago and Alton R. Co., 39 Am. Rep. 523 348 Wilder v. Hopkins, 4 P. R. 350 87 Wiley v. Waite, 1 N. B. Eq. 154 475 Wilkie v. Corporation of Clinton, 18 Gr. 557 332 Wilkinson v . Joberns, L. R. 16 Eq . 14 483 v. Lewis, 3 Giff . 394 88 Willard v. Eastham, 15 Gray, 328 49 Williams v. City of Portland, 29 N.B.I; 19 Can. S. C. R. 159 38 v. Sorrell, 4 Ves. 389 193 Wilson v. Church, 12 Ch. D. 454 101, 435 v. Church, 9 Ch. D. 558 421 v. Kyle, 28 Gr. 104 194 v. Wilson, 6P. R. 152 87 Wimbledon Local Board v . Croyden Rural Sanitary Authority, 32 Ch . D. 424 79, 164 Winch v. Birkenhead Ry . Co., 16 Jur. 1035 330- Winthrop v. Royal Exchange Ass. Co., Dick. 282 87 xxxii TABLE OF CASES CITED. PAGE Windsor v. Annapolis Ry. Co. v. The Queen, 11 App. Cas. 607 299 Withingtonv. Tate, L. R. 4Ch. 288 194 Withington Local Board of Health v. Corporation of Manchester, [1893] 2 Ch . 1 9 330 Witts v. Campbell, 12 Ves. 492 512 Wood v. Midgley, 5 DeG. M. & G. 41 371 v. Riley, L. R. 3 C. P. 27 173 v. Wood, 16 Gr. 471 405 Woodhouse v. Boyd, 8 Ir. Eq. Rep. 512 61 Woods v. Sowerby, 14 W. R. 9 190 Wright v. Angle, 6 Hare, 109; 12 Jur. 34 61, 97 Wrixan v. Vize, 3 D. & W. 104 175 Wyatt v. Sadler, 5 Sim. 450 420 Y. Yeomans v. County of Wellington, 43 IX. C. Q. B. 522 39 Young v . Corporation of Ridgetown, 18 O . R. 140 332 v. Quincey, 9 Beav. 160 60 v. Spiers, 16 O. R. 672 508 v. Young, L. R. 13 Eq. 173» 483 ERRATA. Page 2, line 20 from bottom, for " adoideau " read " aboideau." 38, line 10 from top, for " land " read " laid." 49, line 5 from bottom, for " change " read " charge." 73, foot note, for " 16 L. J. Ch. (N.S.) 217, read " 1 Ph. 790." 79, line 3 from bottom, for " Winkledon" read " Wimbledon." 93, line 5 from top, for " Westling " read " Westbury." 178, line 2 from bottom, for " L. R. 10 Ch." read " 10 Ch. D." 256, foot-note, for "2 Eq." read " 12 Eq." 303, line 22 from bottom, for " Pr." read " Ph." CASES DETERMINED BY THE SUPREME COURT IN EQUITY OF NEW BRUNSWICK. JARDINE et al. v. SIMON. 11876. Grant of riparian land — Construction of grant — Bed of river ad medium November 10. filum — 'Erection in bed of river — Right of action if probability of damage. The M. creek is a tidal water emptying into the Bay of Fundy. Pre- vious to the erection of an aboideau across its mouth it overflowed its banks at high tide. The aboideau was erected in the latter part of the list century by a riparian owner, and was fitted with gates adjusted to open at ebb tide and close at half flood tide, with the result of preventing the creek overflowing its banks. A considerable quan- tity of fresh water drains into the creek in times of freshets and heavy rains. Above the aboideau is a natural pondage or basin, sufficiently large to hold any heavy drainage into the creek when the gates are closed at flood tide. The creek is navigable for small boats, but ingress or egress is barred by the aboideau. In 1837 C, a riparian proprietor, conveyed a part of the land on the westerly side of the creek adjoining the aboideau to S., and described the land as bounded by the margin or bank of the creek. Ultimately this piece of land was conveyed to the defendant. In 1874 the defendant placed sills and posts in the bed of the creek between high and low w,ater mark and erected a barn thereon. The posts were objected to by riparian owners as tending to obstruct the free course of the creek by causing the collection and deposit of floating material about their base and decreasing the area of the pondage, and eventually producing aii overflow. The bed of the creek was divested out of the Crown by the original Crown grant of the marsh lands. Held, (1) That the conveyance to the defendant's predecessor in title did not pass the soil of the creek, and that the same was reserved for the benefit of all the riparian owners. (2) That assuming the title passed in the soil ad medium filum aquae it was subject to an easement in all the riparian owners to have the creek kept open for pondage purposes. IQ. CAS.— 1 2 NEW BRUNSWICK EQUITY CASES. 1 A7A (3) That the riparian owners were entitled to have the erections removed xo '°- without proof of actual damage, if there was a probability of damage Jabdinb *t al. being done to them, and to prevent the defendant setting up a right v. to maintain the erections by acquiescence. f IMOX. The Great Marsh, situated partly in the city of St. John and partly in the town of Portland and the parish of Simonds, is traversed by a creek emptying into the Bay of Fundy. Prior to the erection of an aboideau across its mouth the creek overflowed its banks at high tide and submerged an extensive portion of the marsh. The aboideau was erected by James Simonds in the latter part of the last century, who was them the owner of a considerable portion of the marsh, and was fitted with gates adjusted to open at half ebb tide .until low water, and close at half flood tide, thereby preventing an excess of water flowing into the creek, and prevent- ing it from overflowing its banks. A number of fresh water rivulets drain through the marsh into the creek, and were it not for a large pondage or basin at the aboi- deau would produce at flood tide an overflow in times of freshets or heavy rains. The creek is navigable for small boats, but owing to the erection of the adoideau there is no means of ingress or egress. The bed of the creek was conveyed by the crown grant of the marsh lands to the original grantee, James Simonds. Hon. Ward Chipman was at one time the owner of a tract of the marsh situate near the aboideau, and on the west- erly side of the creek, and in 1837 conveyed a portion of it to the St. Jolhin Water Company. The boundary of the land was described in the deed as beginning at a post on the mointhern side oif the City road, situate three hun- dred feet distant in an easterly direction from the angle formed by the intersection of the northern line of the said road with the easterly line of the road leading to- wards land owned and occupied by Henry Gilbert; thence from the said post northerly, at right angles to the City road, until it meets the southern boundary of said Gilbert's land; thence easterly, along the same boundary, to the Marsh Creek; thence southerly along the bank or margin of the said creek, following the several courses thereof, to the public road at the Marsh NEW BRUNSWICK EQUITY CASES. g Bridge aboideau, so called; thence westerly, on the 1876. same public road and the City road, to the place of jAnraNE , t aU beginning. gD £, s In 1854 the St. John Water Company conveyed the land to William Jack by deed containing the same de- scription. In 1873 William Jack conveyed the land to the defendant by the following description : " All of that lot or parcel of land in the city of St. John, situate at or near the Marsh Bridge, commencing at the south-east corner of a lot sold by the said William Jack to one Mc- Gowan, on the north side of the City road ; thence north- erly along the line of McGowatf s lot one hundred feet; thence at right angles thereto easterly forty feet ; thence . southerly parallel to the line of McGowan's lot to the road crossing the aboideau; thence westerly along the said road and the City road to the place of beginning." This description would include a portion of the bed of the creek. In 1874 the defendant placed sills in the bed of the creek, between high and low water mark, and erected thereon bents and frame work for the support of a barn. The plaintiffs, Alexander Jardine, Charles A. Everett, and William Smith, Commissioners of Sewers for the Great Marsh, and the other plaintiffs, who are riparian' owners of land traversed by the creek, brought this suit for a mandatory injunction to compel the defendant to remove the sills and erections as being an obstruction of the drainage of the creek, calculated to fill up the pondage at the aboideau by the collection of alluvial matter, and produce an overflow of its banks. The de- fendant claimed, int&r alia: 1st. That, as riparian proprietor, he was owner of fhe bed of the stream to the middle thereof, and entitled to build upon it if no injury was done to the public, or any riparian owner. 2nd. That the amount of damage, if any, was too- small to be appreciable. 3rd. That the injury, if any, was remediable at a. very trifling expense by the Commissioners of Sewers,. and therefore no action lay. Jabdine et al, v. Simon. Duff, J. NEW BRUNSWICK EQUITY CASES. 1876. 4th. That the Commissioners were empowered to remove obstructions without proceeding in equity to compel the defendant to do so. The plaintiffs contended: 1st. That the deed from the Hon. Ward Chip- man, through which the defendant claimed, conveyed the land to the bank or margin of the creek, and passed no title to the soil beyond, and that it was the intention to reserve the stream as an open watercourse. 2nd. That no erection could be placed in the bed of the stream with the effect of injuring, or tending to in- jure, the property of the remaining riparian owners. 3rd. That the pondage being necessary to hold the drainage water during the time the gates of the aboideau were closed at high water, the right to have the pondage free from obstruction was an easement appurtenant to the lands of all the riparian owners. G. G. Gilbert, for the plaintiffs. William Jack, Q-C, for the defendant. 1876. November 10. Duff, J. :— I wish for a moment to examine some of the circum- stances of this case. Nearly a century ago James Simonds constructed a dyke and aboideau, whereby a large tract of land belonging to him, which had previous- ly been worthless, was reclaimed from the sea, and was rendered valuable for the purpose of cultivation. Its value, however, in this respect, would largely depend upon its being protected from, overflowage, whereby it might become more difficult of cultivation, and whereby the crop on it might be exposed to injury. . Then, as now, no doubt, freshets were not unusual; and on these occa- sions all the available space between the banks of the creek would be required to hold the accumulations of water, whilst the gates of the aboideau were closed by the tide. Moreover, it might become necessary to dredge the creek, or to make alterations in its bed, with a view to improving the drainage or securing additional pond- age. Would not such considerations as these be present to the minds of the original proprietors when making NEW BRUNSWICK EQUITY CASES. 5 conveyances of this land? Does not the suggestion of 1876. Mr. Justice Blackburn, in the case to which I have re- j^ msEetaL ferred, strike us as peculiarly applicable to them, under Sl £ 0K the circumstances? Was it not desirable for them to re- b^j. tain control of the stream " so as to keep it open for the benefit of the rest of the property 1 ! " Or must I presume — although the language itself of the deeds is inadequate to express such a purpose — as Mr. Jack in effect argued, that the grantors intended to convey to each purchaser on both sides of the Marsh Creek, throughout its whole length, a right to the soil under it ad medium filvm aquae; and, as incident thereto, a right to place whatever erections thereon they chose, subject only to any actions which other proprietors might bring for damage thereby occasioned to them? Carried to its logical results, that was Mr. Jack's proposition, and I certainly cannot accede to it. In my opinion there was not, in this case, that absence of motive on the part of the original owners of the marsh, for retaining the property in the soil of the creek which would warrant a presumption that they in- tended to part with it; it would not be, to adopt the language of Mr. Justiae Coleridge, " absurd to suppose," under the circumstances, " that the grantors reserved to themselves the right to the soil of the creek ad medium filum fluminis" On) the contrary, the converse of such a proposition would be true. And having discovered a motive which might induce the gran- tors to retain it, the legal presumption which would extend the boundary into the creek is re- pelled; and we must construe the deeds and plans according to the language used and the line denned. So construing them, I think that we will find a very clear intention expressed to limit the boundaries of the land conveyed to the bank of the creek. In the deed from James Simonds to Geo. G. Gilbert, in 1819, of the land directly opposite to the defendant's lot, the boundary is made to commence "at the eastern end of the aboideau across the creek;" and from thence it extends southerly and northerly, following the creek in its various courses, " as by reference to a plan annexed will more particu- larly appear." On reference to the plan, the boundary, 6 NEW BRUNSWICK EQUITY CASES. 1876. at the creek, is found designated by a red line, extending JT B TI ^ et ai. alon S the top of the bank, northerly and southerly, from Simon. Duff, J. the east end of the aboideau. In the deed made in the same year, by Ward Chipman, Esquire, as administrator of the estate of the Hon. Wm. Hazen, deceased, to Henry Gilbert, of the lands immediately adjoining those after- wards conveyed to the Water Company, the principal tract is described as bounded, on the side next the creek, " by the lank or margin of the creek," according to a map orjalan annexed. The boundaries of two other lots, included in the same conveyance, but a little further up the creek, on the same side, are even more specifically described. They are said to commence at stakes set up on the bank of tine saidi creek; and the distamtes are said to be measured " along the said creek " from these stakes', and again, as to these lots, a reference is also made to a map or plan, for a more particular description of them. On reference to this plan, the boundaries at the creek, of all the land conveyed by the deed, will be found desig- nated by a red line along the top of the bank; the stakes mentioned in the deed are shown on the plan on the top of the bank, and they are connected together by the red line already referred to. I think that the language of these conveyances is sufficient of itself to show that the grantors never intended to pass any of the soil of the creek itself. It is much more specific than that used in the deed referred to in the English authorities, where the soil of the stream was held to pass — vide Lord v. Com- missiomrs of Sidney (1); Simpsonr. Dandy (2); Berridge v. Ward (3). But a reference to the plans for a more particular description, which is found there, seems to place the matter beyond any doubt. As to the effect of plans when referred to in a deed in defining a boundary of land, vide Boyle v. Mulholland (4). In that case a conveyance from the Incumbered Estates Court granted " All that part of B., together with the kelp-shore, containing 443 acres, and described in the annexed map; together with the sea-weed cast^on (1) 12 Moo. P. C. 473. (3) 10 C. B. (N. S.) 400. (2) 8 C. B. (N. S.) 433. (4) 10 Ir. Com. Law Rep. 150. NEW BRUNSWICK EQUITY CASES. 7 the said kelp-shore, etc." The map annexed to 1876. the deed drew the boundary line along the high j 4B dine et ai. water mark upon the shore; and the description E I3 Jb s of the kelp-shore in the schedule tallied in meas- duS^j. urement with the deed, supposing the boundary line to be the high-water mark. It was held that the shore between high and low water mark did not pass by the deed; that the kelp shore was, by reference to the map, reduced to a certain specific description. And so, by reference to these plans, the red line on the top of the bank of the creek is a certain and specific description. If the language of these deeds construed in connection with the plans referred to, is not sufficient, in the absence of any legal presumption to the contrary, to show an intention on the part of the grantors to limit the bound- ary of the lands conveyed by them to the bank of the creek, I am at a loss to know what will do so. The same eminent lawyer who, in 1819, as the ad- ministrator of the Hon. Wm. Hazen, conveyed a piece of land adjoining this to Mr. Henry Gilbert, and bounded it by the tank or margin of the creek, in 1837, then being Chief Justice of this Province, conveyed in his own right, the block which includes the defendant's lot to the Water Company; and he used the same identical language as to the boundary, in the latter deed, that he had done in the former. And I have no doubt in the world that his in- tention was the same in both, cases; and when the com- pany conveyed to Mr. Jack, they described the boundary of the creek in the same language; and the latter, in my opinion, took a title with land bounded by the bank of the stream, and he could convey no title beyond that. I think that the original proprietors intended to reserve out of their conveyance the title to the soil between the banks of the creek, so as to secure the free and un- obstructed use of that space for drainage and pondage, for the benefit of the whole marsh. But assuming that the riparian proprietors, accord- ing to the strict technical construction of the conveyances, could be held to take a title to the soil of the stream, ad medium filum fluminis, it would not justify them in plac- ing erections (tfierean, such as tlhioise complained of. Even Simon. Duff, J. 8 NEW BRUNSWICK EQUITY CASES. 1876. in that case, the space between the banks being necessary jabdine^oj. for drainage and pondage, in order that the owners of land on the marsh should cultivate it to advantage, the law will imply a grant of an easement of that kind from the original proprietors; and the riparian proprietors would take their title to the soil in the bed of the stream subject to such an easement. The original owners of the marsh themselves possessed the right in question (vide 48 Geo. III. c. 4, and 25 Vict. c. 53); and when they granted the land they will be taken to have granted everything that was necessary to the full enjoyment of the thing granted: Pyer v. Carter (5).* In that case the houses of the plaintiff and the defendant adjoined each other. They had been one house; but, having been con- verted into two, one was conveyed to the defendant, and the other, at a subsequent time, to the plaintiff. At the time of the conveyances a drain or sewer ran under the plaintiff's house, and from thence under the defendant's house ; but, in the conveyance to the defendant, there was no reservation of an easement. The defendant blocked up the drain where it entered his property; and, in con- sequence, whenever it rained the plaintiff's house was flooded. The defendant was not aware of the -sewer being there, at the time of the conveyance to him; and the plaintiff for £6 might construct a drain directly from his own house to the common sewer. It was held that the plaintiff was entitled to the use of the sewer underneath the plaintiff's house. " It seems," said Watson, B., in delivering the judgment of the Court, "in accordance with reason that where the owner of two or more adjoin- ing houses sells and conveys one of them to a purchaser, that such house in his hands should be entitled to the benefit of all the drains from his house, and be subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that, without express reser- vation or grant, inasmuch as he purchases the house such as it is-" Lord Westbury, indeed, by a dictum in Suffield v. Brown (6), impugned the authority of this (5) 1H.4N. 916. * See Jones v. Hunter, 1 N. B. Eq. 250. (6) 33 L. J. Ch. 249 ; 10 Jur. (N. S.) 111. NEW BRUNSWICK EQUITY CASES. 9 case; and his observations upon it were approved of by 1876. Lord Chelmsford in Crossley v. Lightowler (7). Lord jAK1)IK13 et „i. Westbury conceded that, if the dominant tenement had Sl £ ON been conveyed first, the purchaser of the servient tene- d STj. nient would take his title subject to the easement. But, reversing the order of conveyances, he was of opinion that the first purchaser took his title, according to the contract; and that the vendor could not, by a subsequent deed, derogate from his former grant. I do not follow his Lordship's reasoning. The right in question, either way, was an implied one. And it is difficult to under- stand why, if the easement was really necessary to the enjoyment of the dominant tenement, there might not be an implied reservation as well as an implied grant; and, if there could be, it begs the question tt say that the first purchaser of the servient tenement took according to his contract; for the implied reservation would be a part of his contract; and, being a part of his contract, the subse- quent conveyance of the dominant tenement to another, with such an easement, would not derogate from the former grant. I am relieved, however, from the necessity of decid- ing between the conflicting opinions of such high legal authorities by the very late decision of the Lord Justices in Watts v. Kelson (.8). In that case Lord Justice. Mellish said: "I think that the order of the two conveyances, in point of date, is immaterial; and that Pyer v. Carter is goiod sense and good law. Moist of the common law judges have not approved of Lord. Westbury's observa- tions on it." , And Lord Justice James said : " I also am satisfied with the decision in Pyer v. Garter." And, both upon principle and authority, I am of opinion that even if the riparian proprietors of the Marsh Creek be the owners of the soil ad medium jilum, they must now take it " as it is," and as it has been for nearly a century, subject to the easement of using the creek for sewerage and pondage. Whether one of the purposes for which it has been used is called " pondage," or by any term known to the common law or not, I think is (7) Law Rep. 2 Oh. 486. (8) Law Kep. 6 Ch. .166, at p. 170. 10 NEW BRUNSWICK EQUITY CASES. 1876. unimportant, provided we understand what is meant by jABDiNEet ai. tne term, and provided it signifies a right, the enjoyment Simon. ot which equity will "secure to the plaintiffs. The varied D ^"j employments of commerce, and the changing aspects of society, are constantly giving rise to new terms unknown to the common law, many of which have already acquired a recognized place in legal nomenclature. " Slippage," " Doomage," and " stumpage," are examples of such words; and, if " pondage " be an apt word to describe the right here claimed, I know no reason why it should not be employed for that purpose. It is true that the plaintiffs have not shown that they have, as yet, sustained any actual damage by the erection in question ; nor was it necessary for them to do so. The defendant has done an act which is wrongful now, but which, if acquiesced in by the plaintiffs, would in course of time become a right. Although no actual damage has been shown, the effect of the erection com- plained of is already apparent. Earth and other sub- stances have already been noticed as collecting around the posts in the short time which has elapsed since they were placed there. Judging from the effect produced by the posts of the railway bridge, the obstruction in the course of time will be much greater. If the defendant be permitted to retain these posts where they are, and also to place others, even to the centre of the stream, the con- sequences will be even more serious. If the plaintiffs by their acquiescence in the defendant's conduct, permitted him to acquire a right, other riparian proprietors would assume that they had a similar right, and would also extend erections into the stream, until at length irreparable injury and great damage would be occasioned to the owners of -the Marsh property. For these reasons, it is proper for the plaintiffs to interpose at once, and have their rights declared and indicated by the decree of this Court. In Bickett v. Morris (9), the question was " whether the respondents were entitled to a declaration that ' the appellant had no right or title to erect any building or otherwise to encroach upon or to interfere (9) Law Rep. 1 H. L. So. 47. NEW BRUNSWICK EQUITY CASES. 11 with the solum of the river which is immediately oppo- 1876. site their property, beyond a certain line, and to a decree JiBMNE H a i. ordering him to take down and remove the building or gI ^ N other erections, in so far as these extend into or encroach q^j. upon the solum of the river beyond the said line, and in- terdicting them from erecting any building, or otherwise encroaching upom the solum of the river.' " The judgments of the Law Lords in that case so completely dispose of the question of damage, and also of the rights which Mr. Jack claimed f oir the defendant as a riparian proprietor, that I will make rather copious extracts from them. Lord Westbury said : " This will be the first decision establish- ing the important principle that an encroachment upon the alveus of a -running stream may be complained of by an adjacent or an ex adverso proprietor, without the necessity of proving, either that damage has been sustained or that it is likely to he sustained from that cause. ... I am, however, convinced that the pro- position, as it has been laid down in the Court below, and as it has received the sanction of your Lordships in your judgments, is one that is founded on good sense, and ought to be established as a matter of law. . . . It is wise to lay down the general rule," that, even though imme- diate damage canmot be described, even though the! ac- tual loss cannot be predicated, yet, if an obstruction be made to the current of the stream,- that obstruction is one which constitutes an injury which the Courts will take notice of, as an encroachment which adjacent pro- prietors have a right to have removed." And Lord Cran- worth said: "By the law of Scotland, as by the law of England, when the lands of the two conterminous pro- prieters are separated from each other by a running stream of water, each proprietor is prima facie owner of the soil of the alveus^ or bed of the river, ad medium filum aquae. The soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in severalty, so that if, from any cause, the course of the stream should be permanently diverted, the proprietors on either side of the old channel would have a right to use the soil of the alveus, each of them up to what was the medium filum aquae, m the same way as 12 NEW BRUNSWICK EQUITY CASES. 1876. they were entitled to the adjoining land. The appellant jABMNBgt ^ contended that, as a consequence of this right, every Simon. Duff, J. riparian proprietor is at liberty at his pleasure to erect buildings on his share of the alveus, so long as other pro- prietors cannot show that damage is thereby occasioned, or likely to be occasioned to them." The contention almost to the very letter of Mr. Jack in this case. " I do not think," continues Lord Cranworth, "that this is a true exposition of the law. Rivers are liable, at times, to swell enormously, from sudden floods and rain, and in these cases there is danger to those who have buildings near the edge of the bank " (or as here crops on the marsh), " and indeed to the owners of the banks generally that serious damage may be occasionied to them. It is impossible to calculate or ascertain beforehand what may be the effect of erecting any building in the stream so as to divert or obstruct its natural course, ... If the proprietor on one side cam make an erection far into the stream, what is there to prevent his opposite neighbour from doing the same? . . . " The most that can be said in favour of the appel- lant's argument is, that the question of the probabilities of damage is a question of degree, and so if the building occupies only a very small portion of the alveus the chance of damage is so little that it may be disregarded." Here again is Mr. Jack's argument to the letter. " But," continues Lord Cranworth, " this is an argument to which your Lordships cannot listen. . . The owners of the land on the banks are not bound to obtain or be guided by the opinions of engineers or other scientific persons, as to what is likely to be the consequence of any obstruc- tion set up in waters in which they all have a common interest. There is in this case and in all such cases there ever must be a conflict of evidence as to the probable result of what is done. The law does not impose on riparian proprietors the duty of scanning the accuracy or appreciating the weight of such testimony. They are allowed to say, ' We have all a common interest in the unrestricted flow of the water, and we forbid any inter- ference with it.' This is a plain, intelligible rule, easily understood and easily followed, and from which I think NEW BRUNSWICK EQUITY CASES. 13 your Lordships ought not to allow any departure." Lord 1876. Chelmsford quoted the language of Lord Benholme, j ARDINE et li. Judge of the Court of Second Division of the Court of Sn £, N Session in Scotland, to the same effect, and approved of dS7j. it, and the appeal was dismissed with costs. In Attorney-General v. End of Lonsdale (10), the principle of this case was applied to tidal rivers; and other points involved in it are illustrated hy Crossley v. Liffhtowler (11) ; Goldsmid v. Tmibridge- Wells Improve- ment Commissioners (12), and Attorney-General v. Great Eastern Railway Co- (13). „ I think then for the reasons given that the title to the land beyond the bank of the creek did not pass to Mr. Jack, and he could not convey it to the defendant; but even if it did, and if the defendant has an interest in the soil ad medium filum, he had no right to place upon it the erections complained of. As regards the other minor questions discussed, I am of opinion that the Commissioners of Sewers are rightly joined as parties to the bill. Even if they are not, the objection of misjoinder will not avail to prevent the other plaintiffs from 1 obtaining the remedy sought: Janes v. Calkin (14). And I think that the bill is properly filed by the Commissioners of Sewers and the Marsh proprietors. The injury complained! of is one done to them, and to them only. The public at large, apart from the Marsh proprietors, have not been injured, and are not likely to be by the obstructions in question. Therefore, the Attorney-General need not be a party to the bill. The bed of all navigable rivers, and of estuaries, and arms of the sea is prima facie the property of the Crown: Maleomson v. O'Dea, 10 H. L. Cas. 593; Blundell v. Oattarajil, 5 B. & Aid. 304; Carter v. Murcot, 4 Burr. 2164. In England a river is held to be navigable which is/ actually navigable, and in which the tide ebbs and flows: Smith v. Andrews, [1891] 2 Ch. 678; Har- greaves v. Diddams, L. R. 10 Q. B. 582; 44 L. J. Q. B. 178; Mussett v. Burch, 35 L. T. (N. S.) 486; Reece v. Miller, 8 Q. B. D. 626; Pearoe v. Scoteher, 9 Q B. D. 162. In Reece v. Miller, supra, (10) Law Rep. 7 Eq. 377. (12) Law Rep. 1 Eq. 1B1. (11) Law Rep. 3 Eq. 279. (13) Law Rep. 6 Ch. 577. (14) 3 Pugs. 356. 14 NEW BRUNSWICK EQUITY CASES. 1876. Gfrove, J., said: " The question what constitutes a tidal navigable river has been discussed in various cases, and in my judgment a etai a river is not rendered tidal, for this purpose, at the place in »■ question by the fact that it may be affected by the tide on the Simon. occasion of unusually high tides, when the action of the tide is Dufl, J. reinforced by a strong wind, or some such exceptional circum- stance causes the tide to rise unusually high. In order that the river may be tidal at the spot in question it may not be neces- sary that the water should be salt, but it seems to me that the spot must be one where the tide in the ordinary and regular course of things flows and reflows." See also Murphy v. Ryan, Ir. Rep. 2 C. L. 143. In the United States it has been held by some Courts that the test is not whether a river is tidal, but whether it is in fact navigable. See Rowe v. Granite Bridge Corporation, 21 Pick. 344; People v. Canal Appraisers, 33 N. Y. 461; Child v. Starr, 4 Hill, 369; Denn v. Jersey Company, 15 How. 426; Angell on Tide Waters, 38, 76; Angell on Watercourses (6th ed.) 130; Gouldl on Waters, s. 17; and per Lord Selborne, Lyon v. Fish- mongers' Co., 1 App. Cas. 662, 683. In Canada the question was considered in The Queen v. Robertson, 6 Can. S. C. R. 52. Strong, J., there said: "I do not hesitate to say that the rule which appears to have been adopted as a principle of the Com- mon Law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the Courts of most of the States, and I think that with us the sole test of the navigable and public character of such streams is their capacity for such uses." See also Steadman v. Robertson, 2 P. & R. 580. Where land is granted on a non-navigable river the grant is presumed to convey the soil of the bed ucque ad medium fllum aquae: Crossley v. Lightowler, Law Rep. 3 Bq. 279; Beckett v. Corporation of Leeds, Law Rep. 7 Ch. 421; In re McDonough, 30 U. C. Q. B. 288. The presumption may be rebutted: Marquis of Salisbury v. Great Northern Railway Co., 5 C, B. (N. S.) 174; Blount v. Layard, [1891] 2 Ch. 681, per Bowen, L.J.; Eeroyd" v. Coulthard, [1897] 2 Ch. 554. As by proof of surrounding circumstances in relation to the property in ques- tion which negative the possibility of there having been an in- tention to convey the bed of Ihe river usque ad medium filum: Duke of Devonshire v. Pattinson, 20 Q. B. D. 263. In Micklethwait v. Newlay Bridge Co., 33 Ch. D. 133, Cotton, L.J., said: " The pre- sumption may be rebutted. In my opinion, you may look at the surrounding circumstances, but only to see whether there were facts existing' at the time of the conveyance and known to both parties, which showed that it was the intention of the vendor to do something which made it necessary for him to retain the soil in the half of the road or the half of the bed of the river, which would otherwise pass to the purchaser of the piece of land abutting on the road or river. There may be facts, whether ao- nearing on the face of the conveyance or not, from which it is justly inferred that it was not the intention of the parties that the general presumption should apply, but in my opinion, it is not sufficient that circumstances which afterwards occur show it to be very injurious to the grantor that the conveyance should include half of the bed of the river or half the soil of the road. It m,a,y be that if the vendor and purchaser had thought of those circumstances they would have introduced into the con- veyance something to show that the half of the bed of the river NEW BRUNSWICK EQUITY CASES. 15 was not to pass, but the mere fact that circumstances not within 1876 the contemplation of the parties at the time afterwards arise, _ which show it to have been to the disadvantage of the vendor jamhne e« ai. that the soil of half of the river should pass, will not, in my «■ opinion, prevent the presumption from arising." I Zf_ N ' A description of land as bounded on a river or upon Duf, J. its margin passes the soil to the centre of the stream: Tilbury v. Sllva, 45 Ch. D. 98; Kirchhoffer v. Stanbury, 25 Gr. 413; Kains v. Turville. 32 U. 0. Q. B. 17; Robertson v. Watson, 27 U. C. C. P. 579; 3 Kent Com. (12 Oi ed.) 427. " In my opinion the rule of construction is now well settled, that where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side either by a river or by a public thoroughfare, then on the true construction of the instrument half the bed of the river or half of the road passes, unless there is enough in the circumstances or enough in the expressions of the instrument to show that that is not the intention of the parties," per Cotton, L.J., Micklethwait v. Newlay Bridge Co., 33 Ch. D. 133. And Lindley, L.J., there said: '"The question is whether the plaintiffs are or are not the owners of the southern half of the bed of the river. That de- pends upon the true construction of the deed of conveyance, and in order to determine what is its true construction we must look at its terms, and at those circumstances which are legitimately in evidence for the purpose of construing it, such as the position of the property .and the circumstances under which the deed was executed. There obviously is nothing on the face of the deed which shews au intention to reserve to the grantor any portion of the bed of this river. The grant is of land delineated in a plan and therein coloured pink, and described by quantity, and as abutting on the north on the River Aire. Neither the colouring on the plan nor the quantity named includes the half bed of the river. When we come to apply the ordinary and well- settled rules of law to that conveyance, we And it settled by authority which it is impossible for us to ignore or overrule, that those circumstances as to colouring and quantity do not alone prevent a moiety of the bed of the river from passing. The law upon that subject is not new. The earliest authority on the subject I have found is that referred to in Mr. Elpliin stone's very useful book on the interpretation of deeds. Rolle's Abridg- ment, 'Grant's' P., p. 6: 'Si home grant un messuage voeatum Falstolfe Place prout vndeque includitur aquis; per eeux parolh le soile del motes en que le eice est passera. P. 9, Car. B. R. Enter Stint & Morgan per curiam resolve sur mi trial at ban:' Prom that time down to this the rule has been laid down and acted upon as an ordinary rule of conveyancing, a well-settled law of real property, and it has been expressed in various ways by the Courts when necessity has arisen to discuss it, and nowhere that I know of better than in Berridge v. Ward, 10 C. B. (N. S.) 400, and Dwyer v. Rich, Ir. Rep. 6 C. L. 144." Under a conveyance of land, on a non-navigable stream, described as running to the northern side of the river, and then along its bank, Spragge, C, inclined to think that the grantee was bound by the bank of the river: McArthur v. Gillies, 29 Gr. 223. In Lock v. Cleveland, 1 All. 390, it was held that where land situated on both sides of a tidal river was bounded by the shore of the river the title of the grantee did not extend beyond high water mark. And see Cram v. Ryan, 25 O. R. 524. 16 NEW BRUNSWICK EQUITY CASES. 1 ft7fi The question whether the owner of the soil of a river may xo '°- erect on the bed of the river works which cause no obstruction Jaudine et at to the navigation, and no injury to the rights of the riparian v. owners, or whether such erections are illegal per se, has given Simon. rise to conflicting decisions; but it would now seem settled that Duff J sucl1 erections are not illegal in themselves, if they cause no ' ' actual or probable injury either to the public rights or to ad- joining riparian proprietors: Bickett v. Morris, L. R. 1 H. L. Sc. 47; Attorney-General v. Lonsdale, L. R. 7 Eq. 377; Attorney- General v. Perry, L. R. 9 Ch. 423; Kirchhoffer v. Stanbury, 25 Gr. 413; McArthur v. Gillies, 29 Gr. 223. In Orr Bwing v. Colquhoun, 2 App. Cas. 839, Lord Blackburn refers to the principal English and Scotch cases, and states the law to be as follows, at page 853: "I think and submit to your Lordships that the principle on which they were really decided was that where any unau- thorized erection is a sensible injury to the proprietary rights of an individual, there is injuria, for which he might in a Court of Law in England recover at least nominal damages. A Court of Equity in England, or the Court of Session in Scotland, in the exercise of its equitable jurisdiction, would not order the removal of the erection if convinced that the damage was only nominal, but where there is an injury to the proprietary rights in running streams, the present injury now producing no damage may hereafter produce much. And I understand the principle of Bickett v. Morris to be that where an erection is a present sen- sible injuria to the proprietary right of the owner of the other part of the alveus, or of the opposite bank of a running stream, he may have it removed on the ground that there is a present injury to the right of property, if it is impossible to predicate that it may not produce serious damage in future, though the complaining party is not yet in a position to qualify present damage. And I think the same principle will apply where the complaining party is not a proprietor, ex adverso, of the spot where the erection is made, but is a proprietor of land on the banks of the stream below the spot, but so near to it that the erection in alveo alters the natural flow of the water on the complaining party's land. But I do not think it was intended to be decided, and I do not think it is the law, that an erection in alveo of a natural stream is illegal per se, if all who have, property on the banks of the stream consent to the erection." NEW BRUNSWICK EQUITY CASES. 17 THE MAYOR, ALDERMEN AND COMMONALTY 1877. OF THE CITY OF ST. JOHN v. GANONG ET AL. Augmst 25. Prevention of conflagrations—Brick building — Brick-cased building — Act 35 Vict. c. 56. By Act 35 Vict. u. 56, intituled " An Act for the better prevention of conflagrations in the Oity of St. John," all dwelling houses, store- houses, and other buildings to be erected in the city of St. John, on the eastern side of the harbour, within certa in limits, must be made and constructed of stone, brick, iron, or other non-combustible material, with "party or firewalls" rising at least twelve inches above the roof ; and the roof must be covered on the outside with tile, slate, gravel, or other safe materials against fire. The defen- dants were erecting a building resting on stone foundation walls, and consisting of a wooden frame with brick filling four inches thick between the studding, and the whole encased with brick four inches thick. In a suit by the Corporation of the Oity of St. John for an injunction to restrain the defendants from erecting the building as being in violation of the Act : Held, (1) That the suit was properly brought in the name of the plain- tiffs and should not be by information in the name of the Attorney- General on their relation. (2) That the building was in violation of the Act and an injunction should be granted. The facts fully appear in the judgment of the Court. W. H. Tuck, Q.C., for the plaintiffs. A. L. Palmer, Q.C., for tflhfe defendant®. 1877. August 25. Weldon, J. : — This bill is filed by the Mayor, Aldermen and Com- monalty of the city of St. John against the defendants for an injunction restraining them from erecting a build- ing on the northern side of Princess Street, in the city of St. John, in violation of an Act of the Legislature made and passed in the 35th year of her present Majesty's reign, entitled " An Act for the better prevention of con- flagrations in the city of St. John " — by which said Act it was enacted that " All dwelling houses, store houses, and other buildings (except as hereinafter excepted) which, from and after the passing of this Act, shall be built, erected or set up in that part KQ. CAS.— 2. 18 NEW BRUNSWICK EQUITY CASES. 1877. Thjs Mayor, of the city of St. John on the eastern side of the harbour, within the limits hereinafter men- AI.DEBMP.N tioned and described, shall be made and constructed and common- * , altt or the f gtone, brick, iron, or other non-combustible material City of St. ' > 7 . John w jth ' party or fire walls ' rising at least twelre inches ganokg et ai. above the roof \. and the roof of every such dwelling house, weiaon.x store house, or other building, shall be covered on the outside with tile, slate, gravel or other safe materials against fire; such bounds or limits to be within a line described as follows," etc. (The limits described in said Act embrace Princess Street upon which the de- fendants are erecting the building complained of). It was also provided and excepted that the Act should not extend or be construed to extend to dwelling houses, store houses, or other buildings not exceeding, if flat- roofed, twenty-four feet in height from the highest level of that part of any street fronting on which the same may be built, or if not flat-roofed, then not exceeding thirty feet in height, from such level to the peak ridge or highest part of any such building; provided also, that all steeples, cupolas and spires of public buildings may be covered with boards or shingles. The bill sets forth that by the great fire which occurred on the 20th June last, nearly all the buildings or erections within the bounds or limits mentioned and described in the said Act, were destroyed, including the wooden house and premises situate on the north side of Princess Street, between Charlotte Street and Germain Street, in the city of St. John, and occupied before the said fire by the said defendants as a dwelling house. That the defendants have, since the 20th day of June last, begun to build upon the said lot of land 1 on the north side of Princess Street, within the prescribed district in which all buildings are to be erected and built of materials as set forth in the said Act. That the plaintiffs by Hurd Peters, the city engineer, on the eleventh day of August, instant, notified the defendant, John E. Ganong, that the build- ing in course of erection by him was in violation of the said Act, and unless such building was forthwith reduced to height allowed by the said Act, legal proceedings ALTY OF THE )YOF S JOHS V. Ganoxg ft ai. Weldon, J NEW BRUNSWICK EQUITY CASES. 19 ■would be taken against him. That such proceedings were 1877. taken on the fifteenth of August according to the pro- THE MatoBi visions of the fifth section of the said Act before the a^cSS- Police Magistrate, and a penalty imposed, but that the "^Votst! defendant persists in proceeding with the building. The plaintiffs, therefore, pray the interposition of this Court for an order of injunction, restraining and enjoin- ing the defendants from proceeding in the erection of the said building as being in violation of the Act of the Assembly for the better preventon of conflagrations in the city of St. John. The matter came to hearing before me on notice to the defendant, and Mr. Tuck, recorder of the city, was heard on behalf of .the plaintiffs, and Mr. Palmer on behalf of the defendants. An objection was taken by Mr. Palmer, that the plaintiffs have not shown by their bill any right to make this application, unless as relators to an informa- tion which should be filed by the Attorney-General. It was also contended that the plaintiffs do not show by their bill that they are injured, and that they stand to the defendants only as a private person would. It was further contended that the building is within the Act; that in the ordinary and popular sense it is a brick house and not a wooden house as no wood is ex- posed on the outside. It was pointed onitb that the Act of 1837 (7 Wm. IV., c. 11), was similar in its provisions, and that buildings were erected under it similar to the one in question, and the present Act being in substitution for it thereby recog- nized buildings of that description. The building is not a dangerous building, but, on the contrary, a safe building. The affidavit of the defendant, John E. Ganong, states the building is being made and constructed of brick, stone and iron, with party walls running at least twelve inches above the roof, that the building when finished will be constructed as follows: The foundation walls stone; the wall all around outside of brick from the foundation to the top, about eight inches in thickness; that the studding on which the inside finish of the house is to be placed is set into the brick walls so that 20 NEW BRUNSWICK EQUITY CASES. 1877. The Mayou, Aldermen and Common- alty of axE i ity op St. John v. G among et al. Weldor, .r. there will be brick on three sides of each stud; that the cornices at the projection of the eaves are to be galvan- ized iron, and the roof to be flat and gravelled, so that no wood will be exposed on the outside of the said building on any part except the window sashes, which if necessary will be made of iron. That ever since both fire laws have been in force parties in St. John have built brick buildings with a wall around them outside of only four and a half inches of brick, and they have been treated in the law as buildings built of brick and have stood without objec- tion. The defendant says, a building such as he has described is a building commonly known and understood as a brick building, and is not a dangerous building, as the whole outside of the building is of brick. The affidavits of Augustus Quick, John Frederick- son, Levi H. Waterhouse, Benjamin W. Potts, George F. Hennigar, George Wilson, George M. Bustin, Andrew Lawson, Silas H. Brown, William H. Bowman, William C. Godsoe, and Jason R. Colby concur in the opinion of the defendant, that a building constructed as he has stated will be as secure against fire as any brick or stone building in St. John, and all, with the exception of J. R. Colby, speak of such buildings being allowed to stand as brick houses ever since the fire law was established in St. John. J. R. Colby says : " I consider it will be a build- ing constructed of brick, stone and iron, and other non- combustible materials, because the whole outside of the building will be of such material except the sashes." The defendant also produced a model wall, showing how the wall is composed, as he described. The first question which I have to consider is more of a technical character than to the merits of this case — whether the plaintiffs can sustain their bill, or must they do it through the Attorney-General, as relators. In the case of the Mayor, etc-, of St. John v. Brown, which came before me in Equity to dissolve an order of injunc- tion granted by the them. Mr. Justice Allen, four grounds were taken; one was that the suit should have been in the name of the Attorney-General. I decided in favour of NEW BRUNSWICK EQUITY CASES. 21 all the objections; upon' appeal to the full Court (1), the 1877. Court sustained my judgment in dissolving the injunction The Mayoii upon one ground; the others they did not consider neces- ^"c^MMot-- sary to express an opinion upon. But in Brown v. Reed (2) *city°f™ e the Court intimated that as the charter of St. John J ° HN granted very full powers, and having been confirmed by Qanokq a ai. Legislative enactment, the aid of the Attorney-General weiaori, j. need not be evoked; and that the corporation could file a bill in their corporate capacity for an injunction to re- strain a nuisance in violation of a law within the city. I have referred to a bill filed to obtain an injunction for violating the Act of 1837, entitled " An Act for the more effectual prevention of fires in the city of St. John," in a cause wherein Frederick A. Wiggins was plaintiff, and John O'Donnelly and Michael O'Donnelly were defen- dants; the plaintiff there only set out the facts and charged that the defendants in erecting the building well knew that they were doing so contrary to the express terms and enactments of the said Act of the General As- sembly. The late Chief Justice Parker on the 6th De- cember, 1856, granted an order of injunction against the defendants from proceeding to raise their building, and on the 22nd of December, on an application to dissolve the injunction, confirmed his order and sustained the bill, holding that a citizen had a right to file a bill to restrain the violation of the Act. I think the corporation is the proper party to file this bill, if the act of the defendants contravenes an Act of Assembly made for the better pre- vention of conflagrations in the city of St. John, and that it is their bioundJen dulty as guairdi'amis of the city to take care that all laws made to preserve the property of citizens are carefully enforced. That the law of 1837 has been violated, and little or no attention paid to its provisions, I have not the least doubt, and it may be because it was so disregarded by those for whose benefit it was enacted, that the Legis- lature in 1870 repealed it. In 1873, by Act 35 Vict. (1)1 Pug. 103. (2) 2 Pug. 206. 22 NEW BRUNSWICK EQUITY CASES. 1877. c. 56, it was re-enacted with some alterations, certainly the mayob, not for the better. The third and fourth sections of the a^common'- Act 3 Vict - c - ! are enHrely omitted and the penalties c£y°fs£ e are ver y materially reduced. J ° BN I cannot agree with Mr. Palmer that the Act 35 GAsoNoe«a!. vict. c. 56 recognized the building of houses contrary to weiaor, j. the provisions of the Act of 1837. A rule of law in the construction of statutes is that. wkese an Actr has re- ceived a judicial co»stniction, and the Legislature has used the same word's irn a subsequent Act in pari materia, there is a presumption that they are used to express the meaning which had been judicially put upon them; and unless there be something to rebut that presumption the new statute is to be construed on the same principle as the old one. See Maswell on Statutes, 277. I am not aware that any case has arisen which has required the Court to give a construction to the words " stone, brick, iron, or other non-combustible materials." The Legislature, no doubt, intended this should be the walls. It would have been more correct for them to have described the thickness the walls of a building should be, so that persons who have to build under the Act might know with some degree of certainty how to prepare their walls; to take the literal construction of the words the whole building is to be stone, iron, brick or other non-combustible material. The evidence contained in the affidavits for the defen- dants goes to show that if the exterior of the building shows no wood, there is a compliance with "the Act. The first section of the Act states the roof of every dwelling- house, stone house or other building shall be covered on the outside with tile, slate, gravel or other safe ma- terials against fire. Now this shows that thinner material may cover the roof, from which it may be inferred, the walls are to be of more substantial material in regard to thickness. What then shall the walls of a building consist of; shall it be a frame with brick filling between the studding, which is part of the frame, and then four inches of brick outside of the stud — making the stud and brick outside equal to the thickness of the bricks NEW BRUNSWICK EQUITY CASES. 23 between the studding? Would a wall built in that way 1877. stand to support beams without the studding? I should THE Matoii think not. Unless it would do so, it was not such a build- ^^"JS*.. iug as contemplated in the Act. era? of st E Brick buildings and brick cased buildings are cer- J?= N tainly very different, whatever they are called in common gahomo et at parlance, every one will, I think, admit, and although Wiiaon, j. brick cased buildings may be impervious to a light fire, I cannot divest myself of the opinion, that in a pressure of heat such a building would give way. The Legislature, in my opinion, clearly intended the walls of all buildings within the fire district should be wholly and solely constructed of stone or brick or iron. Would a wooden building covered with sheet iron, with no wood exposed, be a compliance with the Act? I think not. Why should then a building cased with brick be any better? The object of the Act is that the material of the wall shall suibstamitiilally be constructed of noix3ombus- tible material. It was urged that the corporation, having allowed buildings of that kind to be erected previous to the 20th of June last, and while thle Act of 1837 was iln force, was evidence of recognition by them of their being within the provisions of the Act for defining how build- ings should be erected; and this being the case, the Court ought not to entertain the application for an injunction without the question whether it is in violation of the Act having been settled by a jury. If this application had been of a private nature, there would be great force in this objection, but it cannot be said that any private rights are invaded, upon which the Court could direct an issue to ascertain the fact. The Legislature have thought it expedient to pass an Act re- straining the erection of buildings, except with certain materials and of certain' dimensions, in 'Certain districts, to prevent if possible the extending of fires in the city of St. John when they unfortunately occur. The Act is one of prevention; and when an application is made to the Court to exercise its powers to prevent an infraction of an Act made and passed for so beneficial a purpose, it is the duty of the Court to carefully examine and carry 24 NEW BRUNSWICK EQUITY CASES. 1877. into effect the law, and prevent its violation, by allow- ing buildings to be erected contrary to the Act. I, therefore, come to the conclusion that the building ?St. John •v. GANONG.e* al. Weldon, J. ±he Mayor, Aldermen and common- A toT ops™ which the defendants are erecting, and complained of in the plaintiffs' bill, is not in accordance with the first section of the Act, and comes within' the description! of the excepted buildings, but the height violates the pre- scribed height for such buildings. The order for an injunction must go in accordance with the prayer of the bill. " A house described as ' brick built,' is understood to be brick-built in the ordinary sense of the words; not composed externally partly of brick, and partly of timber, and lath and plaster:" Dart on Vendors, 137, 155, citing Powell v. Doubble, Sug. 29; Arnold v. Arnold, 14 Ch. D. 270; 42 L. T. 705; 28 W. R. 635; English v. Murray, 49 L. T. 35; 32 W. R. 84. In Tuttle v. State, 4 Conn. 68, a wooden frame with a brick wall was held to be a wooden building. Where buildings described in a policy of insurance as ' brick buildings ' were shown to form a part of a block of houses having brick walls on the front and rear, with side walls in the basement and first story of brick, eight inches thick, and above them walls made with joists filled in with brick four inches thick and plastered, it was held to be competent to ask a builder whether they would or would not be called brick houses: Fowler v. ^Etna Fire Ins. Co., 7 Wend. (N. Y.) 270. The Metropolitan Building Act, 18 and 19 Vict. c. 122 (Imp.), enacts that " every building shall be en- closed with walls constructed of brick, stone; or other hard and incombustible substances, and the foundations shall rest upon solid ground or upon concrete, or upon other solid sub-struc- ture." In Stevens v. Gourley, 7 C. B. (N. S.) 99, Erie, C.J., said that the words were a distinct command to build the walls of incombustible materials, and a prohibition against building them of combustible materials. Section 19, s.-s. .1, of the last named Act provides that the roof of every building, shall be covered externally with " slates, tiles, metal, or other incombustible ma- terials." Where the roof of a building was covered externally with materials consisting of woven iron wire coated with an oleaginous compound which would ignite and burn away, leaving the iron work unimpaired, it was held that the roof was not covered with " incombustible materials " within the meaning of the Act: Payne v. Wright, [1892] 1 Q. B. 104. A contract for the erection of a building in contravention of the Acts 41 Vict, c. 6, and 41 Vict. c. 7, is illegal and cannot be enforced: Walker v. McMillan, 21 N. B. 31; 6 Can. S. C. R. 241; Spears v. Walker, 11 Can. S. C. R. 113; Stevens v. Gourley, 7 C. B. (N. S.) 99. By s. 9 of 41 Vict. c. 6, any dwelling house, etc., erected in con- travention of the Act is declared to be a public nuisance. Section 10 provides as follows: " In addition to any indictment which may be found, or any action which may be brought for such nuisance, the person or persons who may erect or cause to be erected, or attempt to erect or cause to be erected, any such dwelling- house, etc., shall be liable to a penalty not exceeding twenty dollars, and to the further penalty of not less than ten dollars a day for each and every day on and during which such NEW BRUNSWICK EQUITY CASES. 25 nuisance may be maintained or continued; and every such pen- alty shall and may be recovered with costs before the police magistrate of the city of St. John, on the information or com- plaint of the inspector of buildings of the said city or of any ratepayer thereof, by summary conviction, in the same manner and with like effect as other penalties are recovered and en- forced before said police magistrate; and such fines and penal- ties shall, when collected, be paid into the hands of the cham- berlain of the city of St. John, and form part of the funds of the corporation of the said city." By the Summary Convictions Act, o. 62, s. 13, C. S. N. B., " every information shall be laid within six months from the time when the matter thereof arose, unless already prorided for by law." It would seem that the information could be laid at any time during the continuance of the erection, though more than six months have elapsed since its completion: London County Council v. Worley, [1894] 2 Q. B. 826. Where a statute creating an offence provides a remedy no other remedy can be pursued: Reg. v. Lovibond, 24 L. T. 357; 19 W. R. 753, decided under 25 & 26 Vict. c. 102 (Imp.), in amendment of the Metropolis Local Management Acts. 1877. The Mayor, Aldebmen and Common- alty of THE City of St. John v. Ganong et al. Weldon, J. YEATS v. THE MAYOR, ALDERMEN AND COM- MONALTY OF THE CITY OF ST. JOHN. 1878. City of St. John — Charter — Power to alter level of street — Injury to pri- vate property— Compensation — Injunction — Delay. By the charter of the city of St. John, the corporation were given power to establish,. appoint, order and direct, the making and laying out all other streets . . . heretofore made, laid out or used, or hereafter to be made, laid out and used, but also the altering, amending and repairing all such streets heretofore made, laid out, or used, or hereafter to be made, laid out or used in and through- out the said city of St. John and the vicinity thereof. . . So always as such . . streets so to be laid out do not extend to the taking away of any person's right or property without his, her or their consent, or by some known laws of the said Province of New Brunswick, or by the law of the land. The charter is confirmed by 26 Geo. III. c. 46. By Act 41 Vict. c. 9, intituled "An Act to widen and extend certain public streets in the Cityx>f St. John," it was provided that Dock Street should be opened to a width of sixty-two feet by taking in twelve feet on its easterly side, and carrying the north-eastwardly line twelve feet to the eastward through its entire le'ngth from Market Square to Union Street, and that Mill Street should be opened to the same width from Union Street to North Street by widening its eastwardly line. The effect of widening Dock Street made it necessary either that Union Street should be lowered and graded to its level, or that Dosk Street should be graded up to its level, and that if Union Street was lowered, George Street, opening off it, should also be lowered. The corporation, in January, 1878, decided to excavate and lower Union Street to the extent of twelve or thirteen feet after hearing the report of the city surveyor and the petitions of citizens for and against the cutting down of Union Street, and immediately thereafter entered upon the work by con- tractors. The plaintiffs were owners of a lot on the corner of Union and George Streets, upon which they had erected expensive business 26 NEW BRUNSWICK EQUITY CASES. 1878. Yeats v. The Matob, Aldermen and common- alty of the City of St. John. Weldon, J. premises, and which, by the lowering of the streets, would be twelve or thirteen feet above them. When the work of cutting down Union Street was about two-thirds done, and approaching the plaintiff's premises, and after several months had elapsed from the time it was entered upon, the plaintiffs being unable to obtain compensation from the corporation, brought this suit for an injunc- tion to restrain the continuance of the work. Held, (1) That the corporation were unauthorized to cut down Union Street, and that the plaintiffs were entitled to compensation, for which they had a remedy at law ; but (2) that the injunction should be refused on the ground of delay in the application. The facts fully appear in the judgment of the Court. J. J. Em/e, Q.C., and H. H. McLean, for the plain- tiffs. $. B. Thomson, Q.C., and W. H- Tuck, Q.C., for the defendants. 1878. August 30. Weldon, J. :— This was an application for an injunction restrain- ing the defendants from cutting down Union Street, in the city of St. John, whereby the plaintiffs' buildings will become utterly valueless — unless taken down and rebuilt at an expense of not less than $8,000 or $10,000. It appeared by affidavits and papers in support of the application, and in answer thereto, that Union Street, on the north side of which the plaintiffs' buildings are erected, was laid out in the year 1816; that thfe streets on the south side thereof, in thecitiy e-f-Si, Joiui, are bounded on and by that street; that the streets in the northern part of the city also are bounded on and by the said Union Street. The plaintiffs are owners and occupiers of a lot bounded on the east corner of North Street, abutting on the said Union Street, and upon which expensive buildings have been erected. That the defendants, by the contractors, McG-ourty and McGuiggan, are excavating Union Street, and lowering the same to the extent of twelve or thirteen feet below its ordinary surface, whereby the plaintiffs are raised that number of feet above the street without any access to the same, and their property is thereby become valueless, unless these buildings are taken down and the lots are levelled to the extent of the said twelve or thirteen feet, to which Union NEW BRUNSWICK EQUITY CASES. 27 Street is cut down*. That the expense of so doing to the 1878. plaintiffs will cost a large sum of money, to the amount ^^ of eight or ten thousand dollars at the least ; that the Thb mayor corporation refuse to make any compensation for the in- A t£coMMON- jury and damage which must arise to the plaintiffs ; that ^ityoi? st* the contract by the corporation with the other two JoHN - defendants was entered into some time in January last; Weldon > J- the work has been in progress and is now approaching the plaintiffs' premises, and they ask the interposition of the Court to restrain the corporation from continuing the work. The corporation contend that this work is carried on by them under the powers vested in them by their charter; that the widening of Dock Street and Mill Street, on either side of Union Street, by the report of the city surveyor renders it necessary; that the Act does not authorize them to make compensation to persons to the eastward of Dock Street on Union Street; that the work of cutting down Union Street has been three-fourths done, and. they believe the same is necessary for the con- venience of traffic and travel in that part of the city. The application for an order of injunction' was re- sisted on two grounds: — 1st. That the corporation by their charter and Acts of the Legislature have an undoubted right and power to alter the grade of any street within the city, and this grading was in the exercise of this power, and in so doing they have not exceeded their power or acted arbitrarily, carelessly or oppressively; that they did this in discharge of a public trust conferred on them by their charter. 2nd. That the plaintiffs having delayed since January last, when the Common Council heard the petitions for cutting down the street and the petitions against it, and an order of the Common Council was made to proceed with the work— and the work having been two-thirds, at least, done — the Court will on these grounds not enter- tain the application. At the close of the able arguments, which were ad- dressed to me, and the several authorities cited, I was of opinion the delay which had taken place would not justify 28 NEW BRUNSWICK EQUITY CASES. 1878. me in retaining the injunction; and therefore to prevent y^I™ any inconvenience to the contractors and to the corpora- the matoe, tion I discharged the order; but upon the first ground I *™c!S- was rather inclined to the opinion that the plaintiffs had a cmy ot s? E rights which the Court would protect had they come in John. ,. proper time. As to the first ground, I shall take up the charter and the several Acts. By the 13th paragraph of the charter, vol. 3, Revised Statutes, page 999, " The said Mayor, Aldermen and Commonalty, and their successors, shall from time to time, and at all times hereafter, have full power, license and authority, not only to establish, appoint, order and direct the making and laying out all other streets, lanes, alleys, highways, water-courses, bridges and slips hereto- fore made, laid out, or used, or hereafter to be made, laid out and used, but also the altering, amending and repairing all such streets, lanes, alleys, highways, water- courses, bridges and slips heretofore made, laid out, or used, or hereafter to be made, laid out or used in land throughout the said city of St. John, and the vicinity thereof throughout the county of St. John, hereinafter mentioned and erected, and also beyond the limits of the said city, on either side thereof, so always as such piers or wharves so to be erected, or street so to be laid out, do not extend to the taking away of any person's right or property, without his, her or their consent, or by some known laws of the said Province of New Brunswick, or by the law of the land." This charter was fully confirmed by Act of the General Assembly, 26 Geo. III. c. 46. 58 Geo. III. c. 12, restricted the Common Council to laying out any street of less width than 50 feet. 9 Geo. IV. c. 4. The preamble recites that in con- sequence of the irregularities of the ground upon which St. John is laid out, it is expedient to level the streets and that it is necessary to vest the corporation with power to allow steps or stairways to be erected to the ex- tent of one-tenth of the street. This Act is continued to 1880. John. Weldon, J. NEW BRUNSWICK EQUITY CASES. '20 Act 3 Warn. IV. c. 13. The corporate powers are re- ] 878. stricted to the city, and provide for an assessment of y^; statute labour for repairs of streets. the matob, Act 3 Vict. c. 2, authorized the widening of Dock J£c E o«m™- Street after the fire of 1839, and provided for compensa- ZiS s?. E tioii.* Act 18 Vict. c. 10, authorized the opening of a street called Canterbury Street. Act 21 Vict. c. 43, enabled the corporation to effect certain improvements in streets. This Act authorized the corporation to borrow £5,000, and to contract for the cut- ting down, raising, levelling or improving any streets; but the powers of the Common Council are limited to contracting for the cutting down of streets to the extent of the money to be raised under the Act. Act 23 Vict. c. 59, authorized the Common Council to appoint additional city surveyors. Act 30 Vict. c. 73, authorized the borrowing of $12,000, to be applied to the cutting down, raising, levelling and improving the streets on the western side of the city of St. John. Act 30 Vict. c. 74, authorized the paving of the side- walks and footpaths on certain streets — one-half to be defrayed by the owner, and no sidewalk to be laid down until resolution of the Common Council was published four weeks before work commenced. Act 32 Vict. c. 65, relates to the extending of Dor- chester Street and compensates owners of land taken. Act 41 Vict. c. 9, authorized the widening of certain streets and extending the same and providing for com- pensation. By this Act Dock Street, which was 50 feet wide, was extended in width by taking 12 feet from off the owners on the eastwardly side thereof, from Market Square to Union Street, so that the north-eastwardly line should be distant throughout sixty-two feet from' the present south-westwandly line of said isttreet. Mill Street was to be opened to a width of 62 feet from Union Street to North Street. The north side of Union Street lying * See also 3 Vict. c. 83. 30 NEW BRUNSWICK EQUITY CASES. 1878. between Mill Street and Drury Lane (so called) was to — ^^ — be widened to the full width of that part of the north the matob, side of Union Street lying between Drury Lane and andco^on- Smyth Street; and then it was directed how Smyth A ci T TT°PS? E stree t was to be widened. The Act made provision for John. compensation to all those affected by such widening. For wei don, j. union Street as follows: The commissioners to deter- mine what benefit the public derived by such widening to be paid by the Common Council, the remainder of such estimated benefit to be paid by the parties owning or interested in lands fronting on Union Street so widened or lying within the vicinity thereof. It .may be observed by this Act that Union Street is referred to as where the widening of Dock Street on the south side ends, and where the widening of Mill Street commences on the north side. The widening of Union Street on one side is below, — nearer to the waters of the harbour. Nothing in this Act has the least refer- ence to the cutting down of Union Street to the eastward. The widening of Dock Street would approach to Union Street abruptly, unless sloped up the level of Union, but the grade of the 50 feet street before widening «would be on the same grade as the other parts of Dock Street, and be levelled up to the line of Union Street where crossed to Mill Street. There is nothing in the Act which rendered it a duty on the Common Council to cut down Union Street, which had been laid out in 1816, oir to be so altered in 1878 aisi to produce such injury and damage to the owners of pro- perty abutting on Union Street, even supposing the words " but also the altering, amending and repairing all such streets," qualified by the words " so always . . or streets so to be laid out do not extend to the taking away of any person's right or property without his, her or their consent, or by the law of the land," authorized the cor- poration to cut down the street. The Act of 1877 authorized the widening of Union Street on the north side, lying between Mill Street and Drury Lane, but is silent as regards any change in Union Street above Mill Street and Dock Street. NEW BRUNSWICK EQUITY CASES. 31 Mr. Hurd Peters, the city engineer or surveyor, 1878. states in his affidavit that it was necessary to grade ^^ Union Street to some extent, and the grade proposed by The ^ ayob the Common Council was the proper one; and the cutting ^comm™- down of George Street became necessary in consequence A %^%, s™ of the grading of Union Street. j0HS - This is what the plaintiffs more particularly com- weidon, J. plain of, and they contend the grading and cutting down of Union Street, in the manner contemplated to be done, was quite unnecessary, and not warranted or authorized by the charter or any Act of Assembly. That Union Street as laid out and used for the last 60 years was ample for the purposes required, and the cutting of Union Street, as now being done, will inivolve damages to the properties on the said street to a large sum of money; and that the expenise of relaying water and sewerage pipes, and gas pipes, and the amount to the proprietors of property and citizens canmolti be less rtjhan 150,000 to |75,000. Petitions from one hundred of the property owners and diltizemis interested in) the locality were presented to the Common Council against the pro- posed cutting; a petition of about thirty ratepayers was presented in favour 'of the cutting. It was contended by the defendants' counsel that the Common Council having exercised their discretion the Court will not interfere with it. But it must be borne in mind that the Council had exercised their discretion in laying Union Street in 1816; it had been improved, and parties owning land adjoining thereon had made im- provements and acquired rights which ought not to be interfered with without great cause; that the discretion to be exercised in making changes and alterations in such cases, where rights of parties are involved, should have a regard to those rights, and substantial reasons be given for changes. The cutting down of Union Street involves the cutting down of George Street, which places the building of Mr. Foster fifteen feet above the level of the street, and to restore his buildings in the same condi- tion as before will involve an outlay of $10,000. This shows a necessity that the discretion of the Common Council ought to be exercised with due Weldon, J. 32 NEW BRUNSWICK EQUITY CASES. 1878. regard to law and the rights of individuals, and there — YEATS ought to be a power to control such decision when so the m'ayob, exercised to the injury of property owners. But does the aldermen i aw or -tjj| e j r charter authorize suichi cutting downi on and Common- A ci T TTOFj™ E streets as has been done, of which plaintiffs complain? John. Most certainly not. In Leader v. Moxon (1), it was laid down that if " Parliament intended to demolish or render uselesssoine houses for the benefit of others, it would have given ex- press powers for that purpose, and given an equivalent for the loss that any individual might have sustained thereby." This case has been doubted by some of the Judges, but has not been overruled, and has been spoken approvingly of by the late very distinguished Judge Willes.* ! I | j | ; In The Governor, and Companvy of the British Cast Plate Manufacturers v. Meredith (2), the action was for raising a street. The defendants acted as pavers of streets,, and they raised the street in question 4 feet. An Act had been passed authorizing them to raise the street. By the 13th section of the Act, the commissioners were empowered to cause the said street to be paved, repaired, raised, sunk or altered; the 46th section authorized the commissioners " to make any allowance or pay part of the expenses incurred by the proprietors of any such house or building, in removing any of the obstructions, nuisances, or annoyances, as aforesaid, in such cases where the pro- prietors should or might) be materially injured on ac- count of the pavement being necessarily raised or low- ered, arad whereby- such! cases might be particularly en- titled to some compensation." Lord Kenyon, C. J., said : " If this action could be maintained, every turnpike Act, paving Act, and naviga- tion Act, would give rise to an infinity of actions. If the Legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer; but if there be no such power the parties are without remedy, provided the (1) 2 W. Bl. 924. (2) 4 T. E. 794. * Beg. v. Vestry of St. Luke's, Law Rep. 7 Q. B. 148. NEW BRUNSWICK EQUITY CASES. 33 commissioners do not exceed their jurisdiction. ... I ] 878. doubt the accuracy of the report of Leader v. Moxon." ^r^ Puller, J., based his decision on the section em- THP ^ AY0B powering the commissioners to give compensation, and A »£ common- that express power had been given to the commissioners 'j™*™ to raise the pavement. JoH,J - In this case express power by the Act was given the wekion, J- commissioners to raise the pavement. In such case they were only held liable in case of excess of jurisdiction' and doing the work in an unskilful manner. Boidton v. Crowther (3) ; Sutton v. Clarke (4) ; Jones v. Bird. (5), are all to the same effect. In Callender v. Marsh (6), the action -was against Ihe surveyor of the city of Boston for cutting down a street, which caused the plaintiff to sustain damage, but the Act of 1786, which gave the authority to the surveyor, was in express words, viz., " to dig down or raise a street "; the Court held that if he did it with discretion and not wantonly no action would lie. The Court further said, p. 434: " If the reducing or raising of streets which have been laid out for a number of years, and on which houses have been erected, should be made a matter of adjudication, like that of altering, widening or turning a street, and subject to the same provision for damages, the mischief would be cured. . . . Levelling a street is not anywhere found to be considered an' altera- tion of it; nor do we find that the injury it may produce • has been compensated." This case turned upon the powers of the Legislature of the State authorizing the act to be done by the sur- veyors, without compensation, as being in conflict with the constitution of the State. In Bifjg v. The Corporation of London (7), a public body had been empowered by Act of Parliament to lower and alter the level of the roadway of the Thavies Inn, so as to give access to the Holborn Viaduct, and in carrying out this work had exceeded their powers by cutting into (3) 2 B. & C. 701. (">) u B. & Aid. 844. (4) 6 Taunt. 3i. (C) 1 Pick. 417. (7) Law Rep. 15 Eq. 370. EQ. cas. — 3 34 . NEW BRUNSWICK EQUITY CASES. 1878. the plaintiffs' cellars, without any notice to treat for yeats plaintiffs' house or offer to assess compensation for it. A thb mayor, hill was filed hy the plaintiffs for the purpose of restrain- andcomm E on- ing the corporation from remaining in plaintiffs' cellars, city of st.' or other parts of plaintiffs' house, until compensation was — ' made or it had been ascertained what damage would be weiaon.j. done and paid fo ^ and that the defendants m ight be ordered to reinstate plaintiffs' cellars to the state and condition they were in previously to the commencement of the defendants' occupation. At the hearing of the cause in January, 1872, the Court being of opinion that the corporation, in carrying out the works, authorized by the Act, had exceeded their powers by cutting through the plaintiffs' cellar without taking their house, a decree was made for a perpetual injunction as prayed by the bill, with costs to be paid by the defendants, and in case the parties differed as to the damages an enquiry by the Clerk was to be made. ^ The damages were assessed- The question arose as to the sum of £150 for depression of the trade carried on by one of the plaintiffs caused by defendants' works. This sum the Court also allowed. Sir James Bacon, V.C., in referring to that sum, said: " The case I have to deal with here is that of a corpora- tion who are entitled to lower the surface of the ground in Thavies Inn. That power is given them by statute, and it cannot be questioned. In the course of doing it they inflict an injury and wrong upon the plaintiffs, and for that they are required to make compensation, and the amount of compensation for that injury is assessed and is not in dispute." His Lordship then adverted to the depression of trade carried on by one of the plaintiffs during the progress of the work, which he thought was too remote. The case very clearly shows that if the corporation has been guilty of any excess in carrying into effect the widening of Dock Street, which rendered the cutting down of Union Street injurious to the plaintiffs, they are entitled to the injunction order; but if they had no NEW BRUNSWICK EQUITY CASES. 35 authority to alter and cut down Union Street, an injunc- 1878. tion order would be' granted if applied for in proper time. ^^~ 8 The corporation are, doubtless, liable for all the damages TlIB ^ AYon sustained or that may be sustained by such act. amdCommon- In Glover v. North Staffordshire Railway Com- A ££^.°* gJP party (8), Mr. Justice Wightman says: " Suppose no Act J - 0Hif - of Parliament had passed, and that had been done which weidon, j. has been done, would not an action have been maintain- able? I think it would." i *| In The Grocers' Company v. Donne (9), the commis- sioners were bound to act upon the recommendation of the surveyor of works under the 4 Geo. IV. c. 114, and the defendants' counsel contended the Common Council were bound to act upon the report of Mr. Hurd Peters, the city engineer. I am unable to find in the char- ter or any Act of Assembly such power or im- munity given to the report or recommendation of an en- gineer; there is no officer of that nature named in the charter, only city surveyor — no effect is given to those certificates — the order of the council of November 7, 1877, is based upon the report of the engineer upon his plains, upon which the Common Council considered it necessary by the widening of Dock Street twelve feet to cut down Union Street— a slight alteration in the grade of this part would bring it to the level of Union Street, and rendered the cutting down of Union and George Streets necessary. I there- fore come to the conclusion that the act of cutting down and lowering Union Street was not authorized by the charter which gave the Common Council in the 13th paragraph, page 999, vol. 3, Rev. Stat., power of altering, amending or repairing — and the Act 9 Geo. IV. c. 4, did not extend any power beyond what is there expressed. The Act 21 Vict. c. 43, authorized " the cutting, raising, levelling or improving any street," and confined.it to the expenditure oi the £5,000 therein decided to be raised for that purpose. The Act 30 Vict. c. 73, for the " cutting down, raising, levelling, and improving the streets on the western side of the harbour," is a recognition of the (8) 16 Q. B. 912. (f ) 3 Eing. N. C. 34. 36 NEW BRUNSWICK EQUITY CASES. 1878. absence of such authority without legislation to give it. ^^ So in 30 Vict. c. 74, as to the paving of sidewalks; and it thk matoe, is very clear that the Act 41 Vict. c. 9, did not assist; on andcommIn- the contrary, it would rather lead to the conclusion that A SS™ in bringing ,up the width of 12 feet on Dock Street to John. Union Street, it was not done in a judicious manner if it woiaon, j. rendered the cutting down of the street to the extent which the surveyor reported or the Common Council au- thorized. The Legislature having authorized the widen- ing of Union Street, between Mill Street and Drury Lane, and the Act being silent in regard to any part of Union Street east of Dock Street, appears to me conclusive that no further change in Union Street was contemplated and certainly was not authorized. In a recent case in England, Req. v. Vestry of St. Luke's (10), where the owner of land was complain- ing of the injury to his property by reason' of a change of level in the street, Kelly, C.B., said : " I cannot but observe in a case like this, that, wherever it ap- pears that the case is one in which it is plain that very serious injury may have been done to the premises of the party claiming compensation, I think we must put a liberal construction upon the Acts of Parliament before us in determining the points raised. Unless it is perfectly clear that the language of the different Acts is not sufficiently ample or extensive to embrace the case in question, we ought to hold that a party whose property is injuriously affected, and to a very great extent, by the operations of a public body, shall be entitled in a Court of law to compensation." Mr. Justice Willes, in giving judgment in this case, refers with approbation to the judgment of the Court in Leader v. Moxoit- I am unable to discover from any case in the English reports in reference to the cutting down of streets, that where they are to be cut down special authority is not re- quired and given by the Acts giving the power, and great care must be taken; some of the Acts require special reports of engineers, and the Acts particularly refer to (10) L. E. 7 Q. B. 145. NEW BRUNSWICK EQUITY CASES. 37 such reports being acted upon and by so doing are 1878. justified, if no carelessness or negligence takes place; but — Yeats — there is no such efficacy given to a report of a surveyor * or engineer to the Common Council of the city of St. aldeemen' ° . , , AND COMMON- John, by their charter, and no Act of the Legislature lias altt op the -, , i j_ ii j.j.- City of St. done so; and therefore it may be shown that the cutting John. down of Union Street might be done without injury to w t ia«n, j. property own-ens. On the first ground I am of opinion that the Common Council was mot authorized to cut down Union Street, and cause damage to the plaintiffs' pro- perty without compensation, and that where they have sustained damage their remedy is at law. " See Roberts v. Read (11). As to the second point, I am of opinion the plaintiffs should have come to tins Court before the defendants had expended so much labour and money. Had the plaintiffs come earlier to this Court, before this work had been com- menced, and if the opinion I entertain of the powers of the corporation being limited and unauthorized to cut down this street is correct, steps doubtless would have been taken to test their powers in respect to cutting down Union and George Streets, as contemplated by the Com- mon Council, and compensation would doubtless have been provided) for the parties injuriously affected by the contemplated works ; but this has not been done ; the de- fendants have been allowed to .proceed with the work; the plaintiffs must take all the consequences of their pro- ceeding. I therefore refuse to continue the injunction. As regards the costs, if I could arrive at the conclusion that the widening of Dock Street twelve feet co j Id have rendered this work at all necessary, I might have granted costs, but in view oif the question arising in c.onneotilon witlh a street like Union Street, which has existed for sixty years, upon which buildings have been erected with the supposition that the street was perma- nent, and in view of the injury the plaintiffs will sus- tain, I must refuse costs to the defendants. The power of the City of St. John under its charter and amending Acts to alter the level of streets was fully recognized in the later decision of Pattison v. Mayor, etc., of St. John, (11) 10 East, 215. 88 NEW BRUNSWICK EQUITY CASES. 1£I7Q Cassels Dig. (ed.1893) 174, reversing the decision of the majority of the Court below, 2 P. & B. 636. In the Court below Dalt, J., Yeats in delivering the judgment of the minority of the Court, said: a.„„ ?; " ! tnink that the raising of a street in front of ,a person s AldeklL™' property is not such an interference with the rights of property and common- as will come within the restrictive clause in the charter. The *£?'* "J™ charter empowers the defendants: 1st, to make and lay out John streets other than those designated on the original plan of the city; 2nd, to alter, amend and repair all the streets already laid out, and also all those which shall be thereafter land out, ' so always as such streets so to be laid out do not extend to the taking away of any person's right of property, without his con- sent or by the law of the land.' The qualification of the de- fendants' authority applies only to new streets ' to be laid out.' No new street cculd be laid out and made without taking a portion of the land which had already been granted to the in- habitants; whereiore it must not be done, unless it be according to law or with the owner's consent. But every owner of land in the City of St. John, when he acquired his title to it, knew ' the irregularities of the ground upon which that city was laid out,' and the necessity of making various and extensive ' altera- tions in the levels of the streets,' which are referred to in 9 Geo. IV., c. 4; and he purchased his property subject to all the inconveniences which might result from any such alterations. In view of the character of the ground upon which the city is built, the power given by the charter to ' alter and amend ' the streets involved, necessarily, the authority to alter their levels. The authority to do so is recognized, not only by the 9 Geo. IV. c. 4, but also by 21 Vict. c. 43, s. 4, and 30 Vict. c. 34. Apart from any legislative recognition at all, the charter itself is amply sufficient for that purpose." In Williams v. City of Portland, 29 N. B. 1, and 19 Can. S. C. R. 159, r.ower to the defendants to open, lay out, regulate, repair, amend and clean streets was held to include power to alter the level of a street. The plaintiffs in Yeats v. Mayor, etc., of St. John, subsequently to the decision in the case brought an action at law for damages against the cor- poration, but, upon decision being given in Pattison v. Mayor, etc., of St. John, allowed the case to be taken down to trial by proviso when verdict was entered for the defendants. " Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction .and authority might be actionable wrongs. Now a man cannot be held to be a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words, ' no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one.' The meaning of the qualification will appear immediately. Subject thereto, ' the remedy of the party who suffers the loss is confined to recover- ing such compensation (if any) as the Legislature has thought fit to give him:' Geddis v. Proprietors of Bann Reservoir, (1878) 3 App. Cas. 455, per Lord Blackburn; Caledonian Ry. Co. v. Walker's Trustees, (1882) 7 App. Cas.- 293; Mersey Docks Trus- tees v. Gibbs, (1864-6) L. R. 1 H. L. 112. Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage:" Pollock on Torts (4th ed.) 116. And see London & N. W. Ry. Co v Bradley 3 MacN. & G. 336, 341, per Lord Truro; and Crackne'll v Mayor' NEW BRUNSWICK EQUITY CASES. 39 etc., of Thetford, L. R. 4 C. P. 629; 38 L. J. C. P. 353, " If the thing done is within the statute, it is clear that no compensation can be afforded lor any damage sustained thereby, except so far as the statute has provided it; and this is clear on the legal presumption that the act creating the damage being within the statute must be a lawful act," per Cottenham, L.C., Duncan v. Fimdlater, 6 CI. & P. 894, 908. If no compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the Legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others: Hammersmith Ry. Co. v. Brand, L. R. 4 H. L. 171; Metropolitan Asylum Dis- trict v. Hill, 6 App. Cas. 193; 50 L. J. Q. B. 353. In London & N. W. Ry. Co. v. Evans, [1893] 1 Ch. 28, Bowen, L.J., said: "The Legislature cannot fairly be supposed to intend, in the absence of clear words shewing such intention, that one man's property shall be confiscated for the benefit of others, or of ihe public, with- out any compensation being provided for him in respect of what is taken compulsorily from him. Parliament in its omnipotence can, of course, override or disregard this ordinary principle as it can override the former, if it sees fit to do so, but it is not likely that it will be tound disregarding it, without plain ex- pressions of such a purpose." Under Acts giving compensation for injuries to private property from the execution of works of a public nature it has been held that the landowner is entitled to compensation if the means of access to his house or land from the highway has been rendered less convenient from the highway being raised or lowered: Chamberlain v. West End of London, etc., Ry. Co., 2 B. & S. 605; 32 L. J. Q. B. 173; Reg. v. Vestry of St. Luke's, L. R. 6 Q. B. 572; 7 Q. B. 148; 41 L. J. Q. B. 81; Adams v. City of Toronto, 12 O. R. 243; Yeomans v. County of Wellington, 43 U. C. Q. B. 522; or if the house has been permanently depreciated in value from the highway being narrowed: Beckett v. Midland Ry. Co., L. R. 3 C. P. 82; 37 L. J. C. P. 11. Where a local Board of Health gave notice to the owner of a house abutting on a street to level and pave it, and, in default of the owner, did the work themselves, and, by the alteration so caused in the level of the street, the access to the house was rendered difficult and dangerous, it was held that the owner was entitled to compensa- tion: Reg. v. Wallasey Local Board, L. R. 4 Q. B. 351. Statutory compensation is given only for acts authorized by statute, and in respect of which the right of action is taken away: Turner v. Sheffield, etc., Ry. Co., 10 M. & W. 425; Broad- bent v. Imperial Gaslight Co., 26 L. J. Ch. 276. If damage is caused by an act which, notwithstanding the statute, is not made lawful, the remedy by action is not taken away: Brine v. Great Western Ry. Co., 31 L. J. Q. B. 101; Clowes v. Stafford- shire Potteries Waterworks Co., L. R. 8 Ch. 125; 42 L. J. Ch. 107; Cripps on Compensation, 160. If a party is aggrieved by an act done in pursuance of a statute he must follow) th"e ■ statu- tory remedy, and cannot resort to an action for damages: Wat- kins v. Great Northern Ry. Co., 16 Q. B. 968; Jolly v. Wimble- don, etc., Ry. Co., 1 B. & S. 807; 31 L. J. Q. B. 96; Chamberlain v. West End, etc., Ry. Co., 2 B. & S. 605; 32 L. J. Q. B. 173; Boyfield v. Porter, 13 East, 208; Mayor, etc., of Blackburn v. Par- kinson, 1 E. & E. 71; Adams v. City of Toronto, 12 O. R. 243. If the powers of the Act have been exceeded, or are not strictly pursued, or the thing authorized to be done has been negligently or carelessly done, and the damage is the result of negligence, 1878. Yeats v. The Ma yob, AliDERMKN and Common- alty of THE City of St. John. Yeats 40 NEW BRUNSWICK EQUITY CASES. , h7 q an action for damages must be brought, and compensation can- 18 ' b - not be claimed: Whitehouse v. Fellows 10 C . B. (N. S p ) „ 76 |.; "30 L. J. C. P. 305; Lawrence v. Great Northern Ry. Co ^0 L. J. Q. B. 296; 16 Q. B. 643; Clothier v. Webster, 12 C. B. (N. b.) the matob, 7 g . 31 l J C P 316' Brownlow v. Metropolitan Hoard, lb *t™MoV C. B. (N. S.)' 5 46; 33 L. J. C. P. 233; Brine v. Great Western Ry^ Ai/raoFTHji Co., 31 L. J. Q. B. 101 ; Reg. v. Darlington Local Board, 5 B. & City or St. s 5 i 5; 6 Ib . 562 . 33 L . x q. b . 30 5; 35 lb. 45; Biscoe v. Great J Eastern Ry. Co., L. R. 16 Eq, 636. And see City of New West- minster v. Brighouse, 20 Can. S. C. R. 520. " An owner is not injuriously affected or entitled to com- pensation unless the damage is the consequence of an aet which would have given a right of action, if the works causing such damage had not been authorized by statute:" Cripps on Compensation, 161. And see in addition to cases there cited: New River Co. v. Johnson, 2 E. & E. 435; Reg. v. Metropolitan Board, 3 B. & S. 710; 32 L. J. Q. B. 105; Hall v. Mayor of Bristol, L. R. 2 C. P. 322; 36 L. J. C. P. 110; Reg. v. Vaughan, L. R. 4 Q. B. 190; Ricket v. Metropolitan Ry Co., L. R. 2 H. L. 175; 36 L. J. Q. B. 205; City of Glasgow Union Ry. Co. v. Hunter, L. R. 2 Sc. App. 78. See, however, Fritz v. Hobson, 14 Ch. D. 542; 49 L. J. Ch. 321. Where an Act empowered the undertakers of a river to clear, scour, and deepen the river, and to lay dredgdngs taken from it on the banks or lands adjacent to the places where the same should be taken out, giving satisfaction to the owners of such lands for any damage thereby occasioned, it was held that pay- ment of compensation by the undertakers was not a condition precedent to the exercise of their powers: Bentley v. Man- chester, etc., Ry. Co., [1891] 3 Ch. 222. And see Harding v. Township of Cardiff, 2 O. R. 329. 1879. A ugust 6. GASKIN v. PECK et al. Married woman — Contracting with reference to separate estate — Chapter 72, C. S. N. B. Where it is sought to charge the separate property of a married woman with a debt contracted by her, it must be shown under chapter 7'2, C.S. N. B., that she expressly contracted with respect to her separate property. Where it is sought to charge the personal property of a married woman, her consent thereto must be given under chapter 72, C. S. M . B. , and a joint and several note signed by her and her husband in payment of the husband's debt, is not such a consent as is required by the Act. Observations that property belonging to a married woman is made her sepai-ate property by chapter 72, C. S. N. B. The facts are fully stated in the judgment of the Court. R. A. Borden, for the plaintiff. The defendants did not appear. NEW BRUNSWICK EQUITY CASES. 41 1879. August 6. Wetmore, J. : — 1879. The bill in this suit alleges that the defendant, Annie gaskin E. Teck, wife of Judson N. Peck, on or about the 9th vncKJtai. of June, 1877, purchased from the plaintiff, in her own wetmore, J. name and in her own right, and for her sole and separate use, a horse for $90, upon which she paid $40, and that she and her husband gave to the plaintiff their joint and several promissory note for the balance, dated the 12th of June, 1877, payable on the Cth of July following, and that no part of the note has been paid. The bill further alleges that the plaintiff is informed and believes that the female defendant has other separate property than the said horse, and that it should be charged with the payment of the plaintiff's claim; that the defendant Judson N. Peck has no real or personal property in his own name, and that the plaintiff is without remedy, un- less her claim is paid out of the separate property of the female defendant. Section 1 of chapter 72, Consolidated Statutes, enacts as follows : " The real and personal property belonging to a woman before, or accruing after marriage, except such as may be received from her husband while married, shall vest in her and be owned by her as her separate property, and it shall be exempt from seizure or responsibility in any way for the debts or liabilities of her husband, and it shall not be conveyed, encumbered or disposed of dur- ing the time she lives with her husband, without her con- sent,, testified, if real property, by her being -a party to the instrument conveying, encumbering or disposing of the same, duly acknowledged as provided by the laws for regulating the acknowledgments of married women j and after her abaindonment or desertion by her hus- band, or upon her being compelled to support herself, or upon her living separate and apart from; her husband, not wilfully and of her own accord, although neither deserted, nor abandoned by him, then her real and per- sonal property may be disposed of as provided for in this chapter, as if she were a feme sole, but her separate pro- perty shall be liable for her own debts contracted before marriage, and for judgments against her husband for her wrongs." Gaskin V. Peck et al. Wetmore, ,T, 42 NEW BRUNSWICK EQUITY CASES, 1879. Section 2 makes provision for a married woman suing in her own name in cases therein mentioned. Section 3 puts her in the position of a feme sole as to her property in the events occurring as therein stated, and section 4 excludes any interest in the husband in tin wife's property in the cases it mentions. In the present case the husband and wife appear to be living together. It is not suggested that the wife is compelled to, or that she in any way supports herself; nor is there any intimation that credit was given to the wife in respect to or in consequence of her separate property. Indeed the contrary is rather to be inferred, as in paragraph 4 of the bill it is alleged " that as the plaintiff is informed and verily believes she (the defend- ant) has other sole and separate property, and that such property ought to be chargeable with the payment of the amount of the said promissory note and interest due thereon, and the plaintiff ought to receive and recover the same from the said Annie E. Peck's property." Paragraph 5 is, " That the plaintiff is informed and verily believes that the said defendant, Judson N. Peck, has no property, real or personal, in his own name, and that it would be impossible to recover the amount due on said promissory note from the said Judson N. Peck." The plaintiff does not say the female defendant had any separate property when the note was given, nor does she say when or from whom she received information of her having it; nor what is the probable value of such pro- perty; nor how or from whom she received it. If received from her husband it would be liable for his debts under the first section of the Act quoted. Plaintiff stating she is informed of the fact she puts forward without saying when she was informed, induces me to think she was not aware of the existence of such separate property, and had no idea that the female defendant was contracting with respect to her separate property when the note was given. Her broad allegation that the separate property ought to be holden for the amount might have been materially fortified by a statement to the effect that it was understood and agreed that the separate property should be looked to for liquidating the amount. If there Gaskin V. Teck et al. Wetinore, J. NEW BRUNSWICK EQUITY CASES. 43 was any understanding to that effect it certainly would 1879. Lave been more satisfactory than giving the Court the benefit of her legal opinion that it is holden and charge- able with the amount. It may be the husband has ample property to pay the amount, and it is not stated he had not when tbe note was given. The 5th paragraph is that she is informed and believes that the husband has no property, real or personal, in his own name, not saying by whom or when so informed, or giving us the slightest means to judge of the correctness of her information, or wLether there is anything to justify her belief. This is most unsatisfactory; besides, focr aught appearing to the contrary, the husband may have a registered title to real estate amply sufficient to pay the amount. There is no statement of any search having been made. The informa- tion, vaguely as it is stated, only professes that he has no property in his own name; he may have property in another person's name, which would be available .under execution. See section 10, c. 47, Consolidated Statutes. To the plaintiff's somewhat reckless statement that it would be impossible to recover the amount due from the husband I give no weight. The main question as to the liability of the wife's separate estate to payment of the debt is one, no doubt, of much importance. Johnson v. Gallagher (1), is a very leading case. Lord Justice Turner's judgment, at page 508, is quoted with approval in 1'icard v. Hine (2), and in Butler v. Gumps- ton (3), by Sir R. Malins, V.-C. At page 509, Lord Justice Turner says : " It is to be observed in the first place that the separate estate against which these rights and remedies exist and are to be enforced, is the creature of Courts of Equity, and that the rights and remedies themselves therefore can exist and be enforced in those Courts only." Under our law a married woman is in no wise beholding to a Court of Equity for her separate pro : perty rights. They are absolutely given to her by statute, and, I think, this position of matters with the (1) 3 DcG P. & J. 4'Jl. (1) Law Rep. 5 Ch. (3) Law Rep. 7 Eq. 20. 4i NEW BRUNSWICK EQUITY CASES. 1879. provisions contained, in the first section of c. 72, Consoli- Gaskin dated Statutes, already quoted, to which I shall in the Fscxet ai. course of my remarks refer, most materially affects the wet^ie, J. liability of a married woman's estate. When the right depended upon the Court of Equity, that Court might very reasonably impose its views of doing equity upon the holder of the estate of its own creation, but when the right is created by statute, to my mind a marked difference arises. Lord Justice Turner proceeds: "The Courts of law recognize in married women no separate existence; no power to contract, and, except for some collateral and incidental purposes, no possession or enjoyment of property separate and apart from their hus- bands. They deny to married women both the power to contract and the power to enjoy." Our statute does recognize such separate existence; it gives large pro- tective powers and absolutely protects the married woman's property from the slightest interference or con- trol of her husband, in several specified cases, and gives her the absolute disposal of it, quite irrespective of the husband, by will, gift, grant, mortgage or deed, in the same manner as if she were a feme sole- In the instances provided for, her separate property shall be at her dis- posal, and not subject to the debts, interference or control of her husband. I do not specify the particular instances referred to in the Act. To continue the judg- ment of Lord Justice Turner: " Courts of Equity, on the other hand, have, through the medium of trusts created for married women, rights and interests in property, both real and personal, separate from and independent of their husbands. To the extent of the rights and interests thus created, whether absolute or limited, a married woman has in Courts of Equity power to alienate, to contract, and to enjoy, in fact, The 9th, 10th and 11th paragraphs of the bill are as follows: 9. " The plaintiff charges that, under the foregoing facts, the 4th day of June instant is not the proper day upon which the annual meeting of the shareholders in the said Maritime Bank of the Dominion of Canada, for the election of directors cam legally be holden. That no proper by-law was ever passed fixing the day for holding such meeting; and that if any such meeting could have been called for the present month of June at all it should have been called for the first Tuesday in June instant, and not for Friday the 4th day of June instant." 10. " The plaintiff also charges that the defendant, the said Bank of Montreal, has since the passing of said above recited Act " (42 Vict. c. 45) " now no power or authority to hold 'the said shares in the capital stock of Duff, J. NEW BRUNSWICK EQUITY CASES. 65 the said Maritime Bank of the Dominion of Canada, or 1880. at all events, no right to vote on the same, and that its BuBBT power of attorney for that purpose to the defendant, TnB B ^ NK 0P Edmunde J. Barbeau, is illegal and ultra vires of the Mo f t ™ BAI ' said Bank of Montreal." 11. " The plaintiff also charges that, by reason of the non-payment of calls, as aforesaid, the Bank of Mont- real has no right or authority to vote at such meeting, by attorney or otherwise, for the election of directors for the said Maritime Bank of the Dominion of Canada." And the bill then prays : " That the defendant, the Bank of Montreal, and the said Edmunde J. Barbeau may be restrained by order of injunction of this Honour- able Court, from voting at such meeting of sharehold- ers of the said Maritime Bank of the Dominion of Can- ada called for the fourth day of June instant; and that the defendant, the Maritime Bank of the Dominion of Canada may be restrained, by the like order of injunc- tion, from permitting the said Bank of Montreal, or the said Edmunde J. Barbeau, as its attorney, from voting in such election atfthe said meeting; and from recording any votes which, at such meeting, may be filed by the said Bank of Montreal, or by the said Edmunde J. Bar- beau, as its attorney. And that the said defendants, the Maritime Bank of the Dominion of Canada, be re- strained, by the like order of injunction, from holding the said meeting of stockholders for the purpose of electing directors, on the 4th day of June instant, and from receiving or recording, at such meeting, any votes of shareholders tfor that purpose." The bill was sworn to on the 3rd of June last; and, on that day I made an order of injunction ex parte, and in the terms of its prayer. On all ex parte applications the practice requires the strictest good faith to be observed in the statement of facts upon which they are 'made; and in the event of any material concealment or misrepresentation of facts the injunction will be dissolved without reference to thp merits. Without infringing, however, any positive rule of practice, counsel will often — unconsciously no doubt ZQ. CA3. — 5 66 NEW BRUNSWICK EQUITY CASES. 1880. —present the facts, and discuss the points of law aris- — 5^ — ing on them, solely from that point of view which ihey thbbIhkof deem most likely to secure a 'successful result to their Mo rt™ BAI ' applications. And, under such circumstances, it fre- Dn~i~j. quently becomes matter of great difficulty — in the ab- sence of any one to represent the other party — for the Judge to escape an erroneous decision. One of the ablest Judges who ever adorned, by his legal acquirements, the Bench of this Province, once told me, on the occasion of an application which I made to him for an ex parte order of injunction, that he had rarely made an order of that kind, which he had not afterwards felt himself constrained to dissolve, upon facts disclosed in new affidavits, and upon further dis- cussion of the subject. My own short experience is in accordance with that of his Honour. He has already fur- nished me with more than one illustration of the danger of granting orders of this nature; and the present case will afford me another. Motions upon affidavits were made before me, ou 15th instant, on behalf of the respective defendants, to dissolve the injunction which I had granted; and having heard the affidavits read, and the arguments of counsel, I am of opinion that it should be dissolved. I cannot accede to Mr. Thomson's proposition that, even assuming the order to have been erroneously made, still it ought not now to be dissolved inasmuch as its object has already been effected, it having prevented the election of directors from taking place on the 4th of June, and can do no more harm, and no useful purpose can now be accomplished by its dissolution. Surely the party who has succeeded in procuring the order to be made, under such circumstances, cannot be permitted to employ such an argument, and to found it upon such an assumption. I cannot assume that, whilst " the strong arm of Equity " enfolds the defendants, its grasp is either un- felt or harmless; or that it will be no relief to them to have its hold relaxed from around them. As soon as I am shown that the restraint which my order has placed upon them has been improperly imposed, that moment it becomes my duty to remove it. NEW BRUNSWICK EQUITY CASES. 67 The application for the order of injunction was 1880. made on several grounds, upon one of which, at all iubBY events, I entertained a very strong opinion. I thought TheB a NK0F that the by-law made by the directors of the Maritime ^^^ Bank, and whereby Friday, the 4th day of June last, d ^57j. was appointed as the day for holding the annual meet- ing of the shareholders for the election of directors was ultra vires, and void. In my opinion the authority to pass a by-law was in the general body of the sharehold- ers, and not in the directors, and I still retain that opin- ion, the arguments which I have heard on this motion to the contrary notwithstanding. It is said that corporations are the creatures of the statute or grant whereby they are created; and so they are to the extent of the provisions therein made. But the moment that a corporation is called into existence, independently of any express provisions contained in its charter, the common law invests it with a variety of powers and attributes necessary to enable it to effect the object of its creation. " The common law of every state or country annexes to this local or artificial person, when created, certain incidents and attributes, and both by the laws of England and the United: States, there are several powers and capacities which tacitly and without any express provisions, are considered inseparable from any corporation." Amongst these is "the power to make by-laws, which are considered as private statutes for the government of the corporate body " : Angell and Ames on Corporations, section 110. And that power, in the absence and independent of any provisions in the charter, vesting its exercise in a select body of men, such as the directors, is vested in the general body of the shareholders at large: Avqell on Corporations, section 327; Sutton's Hospital Case(l); Company of Felt- makers v. Davis (2); Rex v. Westwood (3). The defendants, " The Maritime Bank of the Do- • minion of Canada," are incorporated by 35 Vict. c. 58, of the Statutes of Canada; and that Act is entirely (1) 10 Rep. 31 b. (2) 1 B. & P. 100. (3) 7 Bing. 1; 2 Dow. & CI. 21. et al. Duff, J. 68 NEW BRUNSWICK EQUITY CASES. 1880. silent on the subject of by-laws. But by section 6 it — ^^ — incorporates the provisions of 34 Vict. c. 5, being an Act m »■ intituled " An Act relating to Banks and Banking " ; Thh Bank op „ _ montbbal an( j tne 28th, 30th and 33rd sections of the latter con- tain provisions relating to the making of by-laws, to which I will refer. The 33rd section enacts " That the directors . . . shall have power to make such by- laws and regulations (not repugnant to the provisions of this Act or the laws of the Dominion of Canada) as to them shall appear needful and proper, touch- ing the management and disposition of the stock, property, estate and effects of the bank, and touching the duties and conduct of the officers, clerks and servants employed therein, and all such matters as appertain to the, business of a bank. . . . Provided also, that all by-laws of the bank law- fully made before the passing of this Act, as to any matter respecting which the directors can make by-laws under this section, . . . shall remain in full force until repealed or altered under this Act." From this provision, it is evident that the authority of the directors to make by-laws was intended to be a limited one; and the enacting portion of the section enumerates the subjects to which its exercise is re- stricted. And it is also evident that the Legislature used the word " bank " in 1 the provision, as distinguishable from its directors. And, when we turn to the 30th sec- tion, which makes provision for the calling of the annual meeting, we find that it is the " bank " and not the " di- rectors," to whom power is given to make the by-law in relation to it. By the latter section it is enacted that the directors shall be " elected on such day in each year as may be or may have been appointed by the charter, or by any by-law of the bank; and at such time of the day and at such place where the head office of the bank is situate, as a majority of the directors for the time being shall appoint." It is the "bank" which must make the by-law appointing the day for holding the annual election; but the " directors for the time being " shall name the hour and place, in each year, where and when it shall be held. Duff, J. NEW BRUNSWICK EQUITY CASES. 69 So far as regards the by-law appointing the general 1880. annual meeting for the election of directors, there is Bn8BT — nothing in the 30th section, or in the Banking Act, or The b »- ni of in the Act itself, inconsistent with the exercise, by the M ™™f AL shareholders, of the power to make it which was vested in them by the common law. On the contrary, a fair construction of the language of that section shows the intention of the Legislature to have been to leave the authority to do so just where the common law placed it, viz., in the general body of the shareholders, who, as distinguishable from the directors, of necessity consti- tute "the bank." Quoad that by-law, therefore, the authority to make it remains in the bank. See Rex v. Westwood, supra. The counsel for the Maritime Bank directed my attention to the 28th section of the Banking Act (34 Vict. c. 5), whereby it is enacted, " The shareholders in the bank shall have power to regulate by by-law the following matters incident to the management and ad- ministration of the affairs of the bank, viz., the quali- fication and number of the directors, . . the method of filling up vacancies in the board of directors when- ever the same may occur during each year; and the time and proceedings for the election of directors, in case of a, failure of any election on the day appointed for it." And he argued that this was the only authority which the shareholders possessed to make by-laws. It would be strange, indeed, if the Legislature should have taken so much care to give the shareholders the power to make by-laws providing for an accidental omission or failure to elect directors at the regular annual meet- ing, and for a possible vacancy occurring in the board during the year; and yet, by the same Act, should have deprived the shareholders of the authority which they already possessed of passing a by-law providing for the holding of the annual meeting, and for the election of the whole board. If the common law had not placed the power of making by-laws in the shareholders; if the authority to make them was required, in every instance, to be specially given by the charter, and if, in this instance, 70 • NEW BRUNSWICK EQUITY CASES. 1880. the language of the 33rd and 30th sections afforded us — i^; — no guide at all to the intention of the Legislature upon thebInkoi? the subject', then there might possibly be something in Mo e«™f AI ' such an argument. But, under the circumstances, I do d^Tj. not think it entitled to any weight at all. I have no doubt that the by-law made by the direc- tors of the Maritime Bank on the 26th April last, where- by the annual meeting for the election of directors was appointed to be held on the first Friday in June in each year, was ultra vires and void, at all events until con- firmed by the general body of shareholders; and that no meeting could legally have been held for the election of directors on the 4th June last. The affidavit read in support of this motion on be- half of the Maritime Bank furnishes me with no satis- factory ground for dissolving the injunction. I cannot but regard that affidavit as very untrustworthy. In saying this, however, I entirely exonerate the gentleman who made it from any intentional misstatement, and from any blame, beyond what everyone is subject to who signs an affidavit, which may be prepared for his signa- ture beforehand, without a very careful perusal of its contents. When an affidavit is read over rapidly to a layman he is very apt to overlook expressions contained in it which may have been carefully prepared, and which convey a great deal more than he intends to say. For this reason Mr. Ohitty, in his General Practice, lays it down that " Every affidavit should be in the genuine natural language of the deponent ; and, where there are several deponents, each should swear in his own peculiar terms." I will quote the 4th, 5th and 6th paragraphs of this affidavit: 4th— "That the shareholders of the said Maritime Bank of the Dominion of Canada never themselves made or attempted to make any by-law on the subject of fixing the day for holding the annual meeting, but at the annual meeting held on the first Tuesday in June, in the year of our Lord 1879, it was mentioned by a number of shareholders that it was de- sirable that the annual meeting, as fixed by a by-law made by the directors (as is hereinafter stated) should be altered, and another day fixed, and that it was decided Duff, J NEW BRUNSWICK EQUITY CASES. 71 that the shareholders could not do so, and that the direc- 1880. tors were the proper persons to doi it, and they were ac- BusBy — cordingly requested to do so." 5th—" That on the 14th THE B 1 ^ NK 0F day of February, A.D. 1873, the following by-law was "^T" passed by the directors, viz., that the annual general meeting of the stockholders of this bank shall be held on the first Tuesday in June in each and every year, and that every election of directors was therefore held under that by-law, until another by-law was passed on the 26th day of April, A.D. 1880, by the directors of the said 'the Maritime Bank of the Dominion of Canada,' in pursu- ance of the said request of the said shareholders at the last annual meeting as hereinbefore stated, which said by-law is as follows: 'That the next annual general meeting of the stockholders of this bank for the election of directors shall be held on the first Friday in June next, and on the first Friday in June in each and every year hereafter.' " 6th — " That a notice of the holding of such annual meeting was duly published in the usual way, and such notice was, on the 13th day of April last past, published in the usual form in the Daily Sun, a newspaper published daily in the city of St. John, and its publication continued therein." These sections have more the appearance of the language of crafty counsel than the " genuine natural language" of the deponent. The bill alleges that in the years 1875 and 1876, respectively, the annual meet- ings were held on the first Wednesday in June and not on the first Tuesday. This is an important statement, which the plaintiff has made under oath; and if it were not true, one would have expected an unequivocal denial of it. The statement in the fifth paragraph may pos- sibly amount to an argumentative or colourable contra- diction of it, but it is not a distinct denial. I am not aware that Mr. Ray's attention was ever called to the allegation in the bill; nor can I say whether, if it had been, he would have distinctly denied its truth. What number of shareholders, at the annual meeting in June, 1879, spoke of the desirableness of having the day of the annual meeting changed from the first Tuesday in June? Who decided that the shareholders could not Duff, J. 72 NEW BRUNSWICK EQUITY CASES. 1880. make a by-law for that purpose, and in what manner BugBT were the directors requested to make such a by-law? the bank of ^ e on ^ m °de in which the stockholders could legally Mo ^™ EAL make such a request would be by passing a resolution to that effect. Was such a resolution ever passed? No affidavit was necessary to show that the shareholders had not made any by-law appointing the day for holding the annual meeting. That fact is stated by the plaintiff himself in the third section of the bill; and it consti- tutes the very groundwork of his objection to the by- law appointing the first Friday in June as the day for holding it. The whole of the fourth section seems to have been artfully prepared by the person who drew the affidavit, not with the object of furnishing evidence of the substantial facts stated in it, but with a view to a subsequent reference to it in connection with the by- law of 25th April last. Having got Mr. Eay to swear that at the meeting in June, 1879, some of the share- holders spoke about fixing a day for the annual meet- ing without telling us how many mentioned it, or what they said about it, further than that it was desirable to change it from the day already fixed; having also got him to state that it was decided that the shareholders had no authority to change it, but that the directors must do so, without condescending to inform us who had pronounced a decision upon the question; and having made Mr. Ray swear that " they (the directors) were accordingly requested to do so," without showing either by whom or in what manner they were requested thus to assume the exercise of an authority which they did not possess, the affidavit proceeds to state that on the 26th April last the directors " in pursuance of the request of the said shareholders at the last annual meet- ing, as hereinbefore stated," made the by-law appoint- ing the first Friday in June as the day of the annual meeting. The request, "as hereinbefore stated," may have been the request of two or three shareholders, or may have been the request of 200, but it amounts to nothing, as stated. In the next paragraph Mr. Ray swears that the notice of holding such annual meeting— the meeting of Friday, 4th June— under the by-law of NEW BRUNSWICK EQUITY CASES. 73 the 26th of April, was published in the Daily Sun on the 1880. 13th day of April, and that its publication therein was busby continued until the day of meeting, that is to say, notice the bank op of the meeting under the by-law of the 26th April was ot uai. published thirteen days before the by-law itself was d^Tj. passed. What am I to understand by this? Was the notice published first and then a by-law made to fit it, or is this simply a mistake? In short, the whole affi- davit, as drawn, is of such a character as not deserving the weight which it would deserve if it spoke only Mr. Ray's " genuine natural language." I am of opinion, however, that the order of injunc- tion which I granted in 1 this case must, nevertheless, be dissolved. Several of the grounds taken by Mr. Weldon impressed me as very strong; but without expressing any opinion upon the others, two of these grounds espe- cially I think are fatal to the order. These are: First — That the bill does not show any equity in the plaintiff, individually, or any special injury to him, as resulting from the facts alleged, other than such as might be common to the shareholders of the Maritime Bank generally. In Mozley v. Alston (4), it was held that an individual shareholder could not sustain a bill in his own name alone respecting a matter common to all; but that where there was a common object and the interests of all were identical, a bill might be sustained by individual shareholders of the company on behalf of themselves and all other shareholders. In that case to a bill by four shareholders in a railway company against the directors, and against the company, alleging that twelve out of eighteen directors ought, at a certain time prescribed by the Act of Parliament to have balloted out one-third of their number, and to have elected new directors in their stead ; and alleging that by their re- fusal or failure so to do, the twelve recusant directors were all rendered incompetent to act and ceased to be directors de facto; and praying for an injunction to re- strain them from voting or acting any longer as direc- tors, and for a transfer of the corporate seal and funds (4) 16 L. J. Oh. (N. S.) 217. et al. Duff, J. 74 NEW BRUNSWICK EQUITY CASES. 1880. to the six lawful directors, a general demurrer for want — 5^^ — of equity was allowed by the Lord Chancellor, reversing the bank o» tne decision of the Vice-Chancellor of England. And M0 e«™ BAL see also Foss v. Harbottle (5), Second — That the bill is multifarious. And the order having been granted on the sworn bill alone, the vice of multifariousness affects the evidence as well as the pleading. " By multifariousness in a bill is meant the improperly joining in one bill distinct and indepen- dent matters, and thereby confounding them; as, for example, the uniting in one bill of several matters per- fectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and inde- pendent nature, against several defendants in the same bill." Story Eq. PL s. 271. I think that the claim or ground of complaint in this bill against the Maritime Bank is entirely separate and distinct from that against the Bank of Montreal and Mr. Barbeau. The ground of complaint, as against the Maritime Bank, is set forth in the 1st, 2nd, 3rd and 9th sections of the bill. It is that a general meeting of the shareholders of that bank was about to be held on the 4th June, under a by-'law made in April previous, ap- pointing that day for the purpose, which by-law, the bill charges, was not properly made; wherefore, it is alleged, that was not the proper day for holding such meeting. And the following portion of the prayer is exclusively applicable to this part of the bill, viz., " that the defendants, the Maritime Bank of the Dominion of Canada, be restrained by the like order of injunction from holding the said meeting of shareholders for the purpose of electing directors on the said 4th day of June instant." The complaint against the Bank of Montreal and Mr. Barbeau is contained in the 4th, 5th, 6th, 7th and 8th paragraphs of the bill. It is that E. C. Jones, the manager of the banl^ some time in the year 1879, and after the passing of the Act of the Parliament of Canada on the 15th day of May of that year, intituled " An Act (5) 2 Hare, 461. NEW BRUNSWICK EQUITY CASES. 75 to amend the Act relating to Banks and Banking," and 1880. " the Acts amending the same," conveyed to the Bank BnBBT of Montreal 1,070 shares of the capital stock of the the bank op Maritime Bank, which for some time previously he had M ™™ KAL held in trust. And these shares now stand on the books duSTj. of the Maritime Bank in the name of the Bank of Mont- real, which latter bank is now the absolute owner of them. And although there are unpaid calls upon this stock, the Bank of Montreal has given the defendant, Barbeau, a power of attorney to attend the meeting of 4th June, and to represent and vote for them on the stock in election of directors; and the latter has come from his place of residence in Montreal to St. John, where he now is, prepared to do so. This ground of complaint is entirely distinct from that against the Maritime Bank. The legality of the meeting called for the 4th June depends upon the vali- dity of the by-law made by the directors, and it derives no support from, neither is its legality impugned by, any allegation in the bill in relation to the Bank of Montreal or to Mr. Barbeau. On the other hand, the legality or illegality of the meeting of June 4th does not affect the question as between the plaintiff and the Bank of Montreal. The right of the Bank of Montreal to vote on the stock which they hold in the Maritime Bank is sought to be impugned, not because the meeting of June 4th was illegal, but upon two grounds: 1st. Because there are unpaid calls upon it (see Banking Act, s. 30). 2nd. Because, as it is alleged, the 42nd Vict. c. 45, s. 2, prevents one bank now from holding stqck in an- other bank. And, as regards Mr. Barbeau, the ground taken was that, even if the Bank of Montreal could themselves vote, they must exercise their right to do so by their own officers and not by attorney. Mr. Thomson cited Addison, v. Walker (6), and Parr v. The Attorney-General (7), and contended all the parties had an interest in the suit, and that the Bank (6) 4 Y. & C. 442. (7) 8 CI. & P. 409. ct al. Duff, J. 76 NEW BRUNSWICK EQUITY CASES. 1880. of Montreal and Mr. Barbeau were sufficiently connected — BpsBY with the other defendants to prevent the bill from being thk too, multifarious. Wo S"S EAI ' ! think that Addison v. Walker is very distinguish- able from this one. The facts of that case were shortly these : Abraham Walker, on the marriage of his daughter with W. T. Addison, covenanted to settle £2,000 upon her, for her separate use during her life, and after her death to pay the interest to her husband during his life; and, upon the death of the survivor, to divide the principal amongst the children of the mar- riage, with a proviso that in the meantime the £2,000 should remain in Abraham Walker's hands. The trus- tees of the settlement were Eichard and Ralph Addison, W. Oourtois (since deceased) and Edmund Walker. Abraham Walker died without having paid the £2,000, having made a will and appointed executors thereof, of whom the said Edmund Walker was one. All the ex- ■ ecutors renounced except the testator's widow. Mrs. W. T. Addison died in 1838, leaving her hus- band and five children surviving her. The bill was filed by W. T. Addison, his five children, and Richard and Ralph Addison, two of the trustees of the marriage settlement, against Edmund Walker, the other trustee, and also against the executor of Abraham Walker; it alleged non-payment of the £2,000, and that the executor re- fused to pay that sum, on the ground that Edmund Walker was a mortgagee and judgment creditor of the estate of Abraham Walker to an amount exceeding the whole value of his estate. It charged that the alleged mortgage and judgment against the estate were fraudu- lent and void as against the plaintiff, having been taken by Edmund Walker after the execution of the marriage settlement, and with notice thereof. The bill, amongst other things, prayed for an account. The bill wasi de- murred to for multifariousness, and the demurrer was overruled. " There are several matters," said Alderson, B., " and I apprehend that in all of them he (Edmund Walker) has some concern. He is concerned in the account, because he is a trustee; for which reason he is very properly made a party." NEW BRUNSWICK EQUITY CASES. 77 In a bill for an account of the trust estate, all the 1880. trustees of the marriage settlement were necessary BxjSBY parties either as plaintiffs or defendants; and no decree, the bank of for an account would be made, unless they were all '"aoH"' parties to the suit. And the language of Lord Cotten- dSTj ham in Parr v. The Attorney-General, at page 435, so far from sustaining Mr. Thomson's argument, is against him in this case. " If this matter were split into two cases, which, according to the argument of Mr. Parr's counsel, would be necessary, it would be one informa- tion complaining of the bond, and another information complaining of the rate; the case as against the corpora- tion, as to both, being identically the same; the same facts, the same circumstances, all the allegations would be the same." The case here, as against the Maritime Bank, in- stead of being the same as that against the Bank of Montreal and Mr. Barbeau is certainly different; in- volving different allegations, and presenting different points. If the introduction into the bill of a separate and distinct ground or cause of complaint against the Bank of Montreal and Mr. Barbeau has rendered the bill mul- tifarious, the Court can, sua sponte, take advantage of the defect, although the defendant can only do so by demurrer. And I think that I ought to take the objection here myself. Because, on the motion for the injunction, when I called Mr. Thomson's attention to the delay which had occurred, and intimated my doubts of its being a case for an order ex parte, he referred to the fact that Mr. Barbeau bad only recently arrived from Montreal. to attend the meeting on 10th June (see sec- tions 7 and 8 of bill), and said that until his arrival here and the production of his power of attorney from the Bank of Montreal, the plaintiff was not aware of the intention of that bank to vote upon the stock which they held in the Maritime Bank. My attention had not been called to the length of time that the notice of that meet- ing had been published; but the bill itself haying alleged that notice of the meeting had been published according 78 NEW BRUNSWICK EQUITY CASES. 1880. Busby v. The Bamk of montreal ei. al. Duff, J. to the statute (see 34 Vict. c. 5, ss. 30 and 69), I should have referred to the statute and ascertained how long it was required to be published, had I not regarded the delay as sufficiently accounted for by the suggestion with reference to Mr. Barbeau's recent arrival, and the plaintiff's ignorance of the bank's intention to vote, until he came. In fact, there is no doubt I was largely in- fluenced in granting the order by the ingenious way in which the facts of which I am now satisfied are two dis- tinct cases are blended in the bill. On these two grounds, without discussing the others taken by Mr. Weldon, I am of opinion that the injunc- tion must be dissolved. I will speak of the costs again, on some Chamber day. By the Bank Act, 53 Vict. c. 31, s. 18 (D.), the shareholders of a bank may regulate, by by-law, the day upon which the annual general meeting of the shareholders for the election of directors shall be held. By section 3 the provisions of the Act apply to certain banks enumerated in Schedule " A " to the Act, and to every bank incorporated after the 1st of January, 1890. Section 18 does not apply to the Bank of British North America, or to the Bank of British Columbia. It applies to the Merchants' Bank of P. E. Island. See Maclaren, Banks and Banking, 19. Where directors of a company are seeking to do am act which is ultra vires, and illegal, and incapable of ratification by the shareholders, an individual shareholder may maintain an action in his own name, without suing on behalf of other persons as well as himself to restrain the directors from doing the act. In Hoole v. Great Western Railway Co., L. B. 3 Ch. 272, Lord Cairns, L.J., said: "I have a very strong opinion tnat any corporator or member of a company may maintain a bill against the corpora- tion, and the executive to restrain them from doing an act which is ultra vires, and therefore illegal." And Sir John Rolt, L.J., said: " If the act complained of is illegal, I do not at present see why any single shareholder should not be at liberty to file a bill to restrain the company from exceeding their powers." In Russell v. Wakefield Water Works Co. L. R. 20 Eq. 474, Jessel, M.R., said: "We are all familiar with one large class of cases. They are cases in which an individual corporator sues the corporation to prevent the corporation either commencing or continuing the doing of something which is beyond the powers of the corporation. Such a bill, indeed, may be maintained by a single corporator, not suing on behalf of himself and of others, as was settled in the House of Lords in a case of Simp- son v. Westminster Palace Hotel Co., 8 H. L. C. 712." The question was very fully considered in Cass v. Ottawa Agricul- tural Ins. Co., 22 Gr. 512. The defendant company was incor- porated by statute, which provided that it should not commence business until at least $50,000 of its capital stock should be paid up. The company borrowed this sum and deposited it with the Minister of Finance, and obtained a license to commence business. The plaintiff, one of the stockholders, thereupon filed a bill in his own name to restrain the company from carrying NEW BRUNSWICK EQUITY CASES. 79 on business until the $50,000 should be actually paid up. On 1880 demurrer by the company it was held that the bill was properly '__ filed by the shareholder alone, and that it need not be on behalf busby of himself and others. Proudfoot, V.C., said: " The .acts com- v. plained of bejng in my opinion ultra vires, has an individual T montbeal F shareholder a right to sue without suing on behalf of himself tt al. and the other shareholders except the defendants ? There is no doubt that it is competent for one shareholder to institute a suit on behalf of himself and co-shareholders, for the purpose of obtaining relief in respect of illegal acts done or contemplated by directors. And most of the cases have been framed in that form. In Armstrong v. The Church Society, 13 Gr. 562, Mowat, V.C., is said to have gone a step further, and held that the plaintiff must sue in that way. The acts complained of were such as might entitle the corporation to relief againstl its officers, but did not absolutely, and of necessity, fall under the descrip- tion of void transactions. The corporation might elect to adopt them, and hold the officers bound by them. In other words, the transactions admitted of confirmation at the option of the cor- poration. The corporation itself, in ordinary circumstances, might have been the plaintiffs. And in Cooper v. Earl Powis, 3 De G. & S. 688, the bill was to restrain the company from applying to Parliament for an alteration of their charter, a matter which was clearly capable of confirmation by the com- pany. In Mozley v. Alston, 1 Ph. 790, so often cited in ques- tions of this nature, the bill was filed by two shareholders, not on behalf, etc., against a company and the directors, charging improper conduct on the part of the directors in refusing to affix the seal of the company to a resolution of the shareholders to oppose a bill in Parliament for the union of the company with another company; and complaining of irregular conduct in the election of the directors, alleging that twelve out of eighteen directors were illegally in possession of the office. Upon the latter ground the Chancellor held that the Court had no juris- diction. Upon the former complaint he held that it was an injury to the corporation itself, and the corporation should have been plaintiffs, quoting with approval the decision in Foss v. Harbottle, 2 Hare, 461. It was a matter capable of confirmation by the whole body of shareholders, and the bill alleged that a large majority of them approved of the objects of the bill, so that there was no difficulty in the way of setting the corporation in motion. The marginal note is calculated to mislead. It is true, as there stated, that the plaintiffs could not impeach the illegal transaction there attacked, but it was not because they were mere shareholders, but that the Court had no jurisdiction on the subject complained of. There is nothing in the case to show that to attack an illegal transaction, the plaintiffs must represent all the shareholders except those implicated in it. These cases do not seem to me to establish the proposition that where the acts are void as not authorized by the Act of incor- poration, and admit of no confirmation, that an individual cor- porator cannot sue." A motion to discharge an ex parte injunction on the ground of its having been obtained by misrepresentation is proper, though the injunction would expire on the day the motion was made: Winkledon Local Board v. Croyden Rural Sanitary Authority, 32 Ch. D. 424, per North, X. distinguishing Bolton v. London School Board, 7 Ch. D. 766, 771. 80 NEW BRUNSWICK EQUITY CASES. 1880. CHASE v. BRIGGS. August 16. (No. 2. Ante, p. 53.) Practice — Costs of order to set aside order to set cause doiviifor hearing — At- tendance on Clerk — Brief— Abbreviating affidavits — Chapter 119, C, S. N.B. An order nisi to set aside with costs an order setting a cause down for hearing was made absolute. The order absolute was drawn up by the clerk at the instance of defendant's solicitor with an appoint- ment to settle the minutes. At the taxation of the defendant's costs the clerk allowed $1.31 for attendance on taking out the order nisi and $1.34 for attendance on the order absolute. By the table of fees (c. 119, C. S.), solicitor attending clerk on every decretal order is allowed $1.34, and for all other services not provided for in the table the like fees as are allowed to attorneys on the common law side of the Supreme Court. On the common law side a fee of twenty cents is allowed for every attendance on the clerk. Held, that the order absolute was neither a decree nor a decretal order, but a special order, and that each attendance should be taxed at twenty cents. The clerk on the taxation of the above costs allowed five dollars for brief, this being the fee allowed in the table of fees to attorneys on the common law side of the Supreme Court (o. 119, C. S. N. B.), and a service for which no provision being made under the table of fees of the equity side of the Court, the same fees are to be allowed as on the common law side. The table of fees of the equity side provides a fee of twenty cents per folio for drawing bill, answer, plea, demurrer, or other writing, not otherwise provided for, and ten cents per folio for copy. Held, that brief should be taxed per folio as a writing not otherwise provided for. Costs allowed of abbreviating affidavits used on the application for the above order, and of making copies of abbreviations. The facts appear in the judgment of the Court. /. J. Kaye, Q.C., for the plaintiff. D. S. Kerr, Q.C., for the defendant. 1880. August 16. Palmer, J. :— In this case Mr. Kerr, on behalf of the defendant, at the sittings of the Court in Fredericton in March last, obtained on affidavits an order nisi to set aside an order that I had made at the instance of the plaintiff, to set the case down for hearing on viva voce testimony, and all subsequent proceedings with costs. At a sub- sequent sittings Mr. Kaye, on behalf of the plaintiff, showed cause, and Mr. T. C. Allen supported the rule on affidavits. NEW BRUNSWICK EQUITY CASES. 81 I, at a subsequent sitting, made the order absolute 1880. and ordered the plaintiff to pay the costs. This order 3^; the Clerk drew up at the instance of Mr. Kerr, the de- B ^aos. fendant's solicitor, with an appointment to settle the £ Pa] ~ % j. minutes for the 14th of June last, calling that day "Wednesday" instead of "Monday," and sent copies by mail to the solicitors on both sides. He settled the minutes on Monday, the 14th, Mr. Thomson, the plain- tiff's solicitor, not attending, as he thought it was to be settled on Wednesday, not Monday. This is of no con- sequence now, as he only intended to attend to protest against the right to settle at all, and there is no pre- tence that the order is drawn up wrongly. The counsel before me very properly agreed to waive any question that might Tirise in consequence of what I have stated, in consideration that the whole question should be dis- posed of on this application to review the taxation. The costs were taxed by the Clerk, both parties attending, when the plaintiff's agent objected to all the costs con- nected with the settling of the minutes on the ground that the order made was neither a decree nor a decretal order, and the practice did not authorize or require the minutes to be settled, and even if the practice did so require, still the fee of fl.34 allowed by the Clerk for attendance on him on settling was not authorized by the table of fees, and therefore should be disallowed. By the Act 17 Vict. c. 18, s. 2, the practice of the Court of Chancery in England prior to the 23rd March, 1839, together with the then practice of the Court of Chancery in this Province, was made the practice of this Court, and this was continued by the 49th chapter, sec- tion 2 of the Consolidated Statutes, and as there are iiO rule;? or orders of the old Court of Chancery or of this Court affecting the matter I must look at the prae lice of the Court of Chancery in England to guide me, and according to that I think the order in question is neither a decree nor a decretal order, but is what is called a special order. Grant in his Practice, vol. I., page .1 33 v says on the subject of orders as follows: "Under this head are not intended the general and standing BQ. CAS.— 6 82 NEW BRUNSWICK EQUITY CASES. 1880. Chase v. Beigqs. •Palmer, J. orders of the Court; nor such orders as form part of decrees made on the hearing, termed decretal orders; but, orders on further directions (which are also con- sidered as decretal orders); and interlocutory or other orders, either antecedent to the decree, or subsequent to it, including special orders on motion or petition gener- ally. The orders, therefore, here intended are either orders of course, otherwise common orders or special orders; the former, for the ordinary purposes which the common motion, on petition, seeks, such as for time to answer, and the other various unopposed occasions for forwarding the suit generally; the latter obtained for particular purposes on special application." From this it will be seen that the order absolute in this case was a special order and neither a decree nor a decretal order; but Grant, on page 135, lays it down that the proceedings to settle the minutes of a special order are the same as settling the minutes of a decree, that is, the solicitor attends the Clerk and leaves with him the brief and other papers necessary, and bespeaks a copy of the minutes, and gets the Clerk to name a day to settle the terms of the order. This is notified to the solicitors of all the parties to the suit, and all such as choose attend at the time appointed, when the Clerk settles the terms of the order, which is called settling the minutes. If all are not satisfied with the terms as settled, anyone may intimate his intention to apply to the Court to rectify them, which may afterwards be done. The proceedings thus necessitate the attendance of the solicitor having charge of the order twice before the Clerk. So it will be seen that the defendant's soli- citor attended the Clerk in this case once on the order nisi, which is, in my opinion, a common order, and re- quired no settling at all, and twice on the first special order. For these services the Clerk has allowed $1.34 for attendance on each order, $2.68 in all. In this I think he was in error. The item in the table of fees, chapter 119 of the Consolidated Statutes, under which the Clerk allowed them, is as follows: " Solicitor attend- ing Clerk on every decretal order, $1.34." Then, as I have decided, this is not a decretal order, although there NEW BRUNSWICK EQUITY CASES. 83 were the attendances on the Clerk, as has been mention- ed, yet it was not attending on a decretal order. There is a fee on the common law side of twenty cents for every attendance on the Clerk, and the equity fee table says, " That for all other service the like fees shall be allowed as on the common law side," and I think the fees al- lowed for these attendances are governed by this, and the Clerk should only have allowed twenty cents for each attendance, sixty cents in all, instead of $2.68, and this should be reduced by $2.08. The Clerk has also allowed |3.10 for abbreviating affidavits used on the application, and has disallowed $1.20 for making copies of such abbreviations. The plaintiff now contends that the law does not allow any fee for abbreviating affidavits, and therefore this should be wholly disallowed. The defendant contends that he is entitled not only to the abbreviations but to making a fair copy of them under the item of making copy of any writing not otherwise provided for, 10 cents per folio. On the first point I think I am precluded by the judgment of the Court in the case of Hendricks v. Hal- lett (1), which was an application by Mr. Thomson him- self to have the abbreviating of affidavits added to his bill, which the Clerk had struck off, and they were added by, the Court, as appears by the judgment of the Chief Justice, and so plain was the point considered to be that it appears to have been admitted by the counsel on both sides that they should have been allowed. This decision was on the table of fees in 17th Vict. c. 18, the words of which are identical with the Consolidated Statute now in force, and are as follows: " Abbreviating bill, answer or other proceedings." But if the matter were res integra I would have no doubt, for this application and order were wholly founded on affidavits, and surely they were part of the "proceedings," and within the plain words of the statute; I, therefore, think this item was properly allowed, and as it has always been con- sidered necessary for the solicitors to engross, that is, make a fair copy of the draft of all writings, I think 1880. Chase v. ISliTGGS. Palmer, J. (1) 1 Han. 170. 84 NEW BRUNSWICK EQUITY CASES. 1880. the Clerk should have allowed for such fair copy of the 5^^ abbreviations, and that $1.20 must be added for this briggs. item. Paimei, j. T ^ e nve dollars for the brief was objected to and allowed. Although I think this right in any view of the case, as it would come to that sum no matter on what principle it was taxed, yet as I understand the Olerk allowed it under the item of $5 allowed on the com- mon law side, and as I am of opinion he was wrong in this, I think it right to say so. There never was any specific fee allowed for a brief in this Court, but it was always taxed at 20 cents per folio, for drawing 10 cents, and the like sum for each copy required. Under the item in the table of fees, " Drawing bill, etc.," is 20 cents per folio, and 10 cents per folio for each copy, because a brief was a writing, and it was not otherwise provided for ; and, in my opin- ion, this is the proper mode to tax for it, and it does not come under the item " other services," for which the same fees are given as on the common law side. Then there is a charge of $11 made for Clerk's fees ob- jected to. But it appears by the" Clerk's own signature that the defendant had to pay him this amount, and neither counsel can show by the materials brought be fore me either that the charge is right or wrong, nor can I ascertain from such materials. Mr. Thomson's contention is that Mr. Kerr ought not to have paid a bill without the Clerk giving him the item of his fees, and that they should appear in the bill of costs. And while I agree that it would be more correct for the Clerk to give the items of his bill, yet I cannot see how Mr. Kerr is to blame because he. has not done so. It would be quite as easy for the plaintiff's counsel, on taxation, to ask thle Clerk for the items as for Mr. Kerr to do so. At all events, I do not think 1 can deal with tMs question without calling the Clerk before me to answer for himself, and in fairness to him I think Mr. Thomson should have asked the Clerk for the items before he brought the matter before me, if he intended to dispute his bill. I suppose Mr. Thomson's main objection to the Clerk's bill was made because he NEW BRUNSWICK EQUITY CASES. 85 thought there was no necessity for settling the minutes of the order, but I think otherwise, and don't see that the " Clerk's fees are affected otherwise than as $1 is allowed on decrees which is not allowed on orders. The result of the whole is, that $2.08 is to be deducted and $1.20 to be added to the costs as taxed, thus reducing the amount as taxed by the Olerk 88 cents, and making the costs taxed on the order $84.12, for which the defendant will be entitled to issue a fieri facias unless paid in ten days from this date. As both parties were partially wrong, I allow no costs of this application to either party. The Clerk's taxation of costs may be reviewed by the Court: Hendricks v. Hallett, 1 Han. 170; New Brunswick Ry. Co. v. Kelly, 1 N. B. Eq. 156, unless there has been an appeal, when the taxa- tion is reviewable before the Supreme Court: Cudlip v. Rector, etc., of St. Martins, 2 Pug. 8; Clark v. Schofleld, 29 N. B. 403. The application may be made on motion and affidavit, specifically pointing out the items objected to: Hendricks v. Hallett, supra; Cudlip v. Rector, etc., of St. Martins, supra; in re Ponton, 15 Gr. 355. The taxation may be reviewed where the clerk has acted upon a wrong principle, but not where the question is one of mere quantum: Hendricks v. Hallett, supra; Clark v. Schofield, supra; Cousens v. Cousens, L. R. 7 Ch. 48; Attorney-General v. Drapers' Co., L. R. 9 Eq. 69; Alsop v. Lord Oxford, 1 M. & K. 564; Russel v. Buchanan, 9 Sim. 167; Re Hubbard, 23 Beav. 481; Re Catlin, 18 Beav. 508; Friend v. Solly, 10 Beav. 329; Attorney-General v. Lord Carrington, 6 Beav. 454; In re Congreve, 4 Beav. 87; Fen ton v. Crickett, 3 Madd. 496; Stockton v. Dawson, 5 L. J. (N. S.) Ch. 122; or where the objectionable items are very small: Bell v. Moffat, 2 P. & B. 406; Clark v. Schofield, supra. Where, however, there has been irregularity before the Taxing Master, Fenton v. Crickett, supra; or where costs had been wrongly omitted from taxation. Greenwood v. Churchill, 14 Beav. 180; Budgett v. Bud- gett, [1895] 1 Ch. 202; or where he refused to allow costs in re- spect of a particular proceeding, Heming v. Leifchild, 8 W. R.; 9 lb., or where the charges were exorbitant, Smith v. Buller, L. R. 19 Eq. 473, the taxation was ordered to be reviewed. 1880 Chase v. Beig-gs. Falmer, J. 86 NEW BRUNSWICK EQUITY CASES. 1880 WALSH v. McMANUS. October 1; Security for costs —Bond — Obligee — Amount. The boud for security for costs in the Equity Court is to the Clerk of the Court, and in the sum of $500. This application was made by the defendant to set aside the bond put in by the plaintiff as security for costs, on the ground that the obligee should be the de- fendant, and not the Clerk of the Court. Argument was heard September 29th, 1880. W. B. Wallace, for the defendant. L. R. Harrison, for the plaintiff. 1880. October 1. Palmer, J.:— The question in this cause is whether the bond given as security for costs in this suit was properly given to the Clerk of the Court. It was contended on behalf of the defendant that he should have been the obligee. In this matter I think I am to be governed by the practice of the Court of Chancery in England prior to 1839. By the practice of that Court the bond was required to be given to one of the clerks in Court. By Order 40, r. 6, made April 3rd, 1828, the amount of the security which the plaintiff was required to give was fixed at £100 ster- ling. The reason why the bond is not given to the defen- dant is plain, when it is considered that the interests of the parties whom it is the object of the Court to protect are not always the same, and it may be that they are adverse, and a plaintiff may become liable fo pay costs to one or more defendants without being liable to all. In many cases the interests of all could not be protected unless various bonds were given, if the practice required that the defendant or defendants should be the obligees. I therefore think that the proper practice is to give the bond to the Clerk; that the plaintiff should only be re- quired to give one bond, and that the amount of such NEW BRUNSWICK EQUITY CASES. 87 bond should not exceed |500. (For form of condition of 1880. bond, see 1 Grant's Chan. Prac. 438.) The proceedings WALSH on the bond are by scire facias: Smith's Chan. Prac, McM a NUS . vol. 1, pages 560 and 646. Palmer, j. Where the sole plaintiff or all the plaintiffs reside abroad security for costs will be ordered: Dan. Ch. Pr. (4th Am. ed.), 27; Republic of Costa Rica v. Erlanger, 3 Ch. D. 62; Crozat v. Brog- den, [1894] 2 Q. B. 30. But not if there are co-plaintiffs resident within the jurisdiction: Winthorp v. Royal Exchange Assurance Co., Dick. 282; Walker v. Easterby, 6 Ves. 612; D'Hormusgee v. Grey, 10 Q. B. D. 13; Smith v. Silverthorne, 15 P. R. 197. If the plaintiff goes out of the jurisdiction permanently after institution of the suit security may be ordered: Lonergan v. Rokeby, Dick. 79; Green v. Gharnock, 1 Ves. Jr. 396; Hoby v. Hitchcock, 5 Ves. 699; Weeks v. Cole, 14 Ves. 518; White v. Greathead, 15 Ves. 2; Blakeney v. Dufaur, 2 De G. M. & G. 771; Edwards v. Burke, 9 L. T. (N. S.) 406; Massey v. Allen, 12 Ch. D. 807; Hately v. Mer- chants Despatch Transportation Co., 10 P. R. 253. Security was required from a plaintiff who had given up his house in England since the filing of the bill, and had gone to reside abroad, as he stated, for a temporary abode, but who left it uncertain whether and when he intended to return: Kennaway v. Tripp, 11 Beav. 588; and see Stewart v. Stewart, 20 Beav. 322; Snook v. Duncan, 5 Jur. 1078; Wilson v. Wilson, 6 P. R. 152. Security will not be ordered if the plaintiff is residing within the jurisdiction at the time of the application: Newcombe v. City of Moncton, 31 N. B. 386; though he intends to go abroad after judgment: Cambottie v. Inngate, 1 W. R. 533; Redondo v. Chaytor, 4 Q. B. D. 453; Ebrard v. Gassier, 28 Ch. D. 232; Wilder v. Hopkins, 4 P. R. 350; Ander- son v. Quebec Fire Ins. Co., 15 P. R. 132. As to what constitutes residence abroad, see Ex p. Brandon, 25 Ch. D. 500. Security may be, required from a petitioner under the same circumstances as from a plaintiff: Ex p. Foley, 11 Beav. 456; In re Norman, 11 Beav. 401; Ex p. Latta, 3 De G. & S. 186; Ex p. Ssidler, 12 Sim. 106; In re Dolman, 11 Jur. 1095; except where the petition is presented in a, cause to which the petitioner is a party: Coch- rane v. Fearon, 18 Jur. 568; secus if he is not a party to the suit: Drever v. Maudesley, 5 Russ. 11; Partington v. Reynolds, 6 W. R. 307. If the plaintiff has substantial property, either real or per- sonal, within the jurisdiction, security will not be ordered: Redondo v. Chaytor, 4 Q. B. D. 453, 457; Hamburgher v. Poetting, 30 W. R. 769; Clarke v. Barker, 6 Times Rep. 256; Redfern v. Redfern, 63 L. T. 780. The rule applies to a foreign company: Re Apollinaris Co.'s Trade-Marks, [1891] 1 Ch. 1. In Ebrard v. Gas- sier, supra, Bo wen, L.J., observed that the property must be of a fixed and permanent nature, available for costs; and see Re Howe Machine Co., 61 L. T. (N. S.) 170; Kilkenny Ry. Co. v. Fielden, 6 Ex. 81; Higgins v. Manning, 6 P. R. 147; McKenzie v. Sin ton, lb. 282; Wilson v. Wilson, lb. 152; Welshach Gaslight Co. v. St. Leger, 16 P. R. 382. Lord Halsbury, L.C., in In re Apollinaris Co.'s Trade- Marks, supra, said that the property might consist of goods and chattels sufficient to answer the possible claim of the other litigant, and available to execution. The plaintiff must prove the nature and location of his property in order to show that it is available to execution: Sacher v. Bessler, 4 Times Rep. 17. If defendant admits his liability, or has funds in his hands belonging to the plaintiff, he is not entitled to security for costs: De St. Martins v. Davis, W. N. (1884) 86; Re Contract & Agency 88 NEW BRUNSWICK EQUITY CASES. loon Corporation, 57 L. J. Ch. 5; Crozat v. Brogden, [1894] 2 Q. B. 30; xoov/ ^ Doer v. Rand, 10 P. R. 165; Anglo-American Co. v. Rowlin, lb. 391; Walsh Duffy v. Donovan, 14 P. R. 159; Thibaudeau v. Herbert, 16 P. R. ». 420. In Thibaudeau v. Scott, to be reported in 1 N. B. Eq., Barker McManus. j ^ ordered security for costs to be put in for the benefit of the grantor as well as the grantees of a bill of sale in a suit to set it aside as a fraudulent preference, though the plaintiff had obtained a judgment in the Supreme Court for a large amount against the grantor. Security Cor costs cannot be required from a person who is compelled to litigate, e.g., by filing a bill to restrain an action at law: Watteeu v. Billam, 14 Jur. 165; 3 De G. & Sm. 516; though the bill also seeks other relief: Wilkinson v. Lewis, 3 Giff. 394. The insolvency or poverty of a plaintiff is no ground for requiring him to give security for costs: Anon, 2 Anst. 407; Cowell v. Taylor, 31 Ch. D. 34; Rhodes v. Dawson, 16 Q. B. D. 548; Cook v. Whellock, 24 Q. B. D. 658; Dan. Ch. Pr. (4th Am. ed.), 37. The next friend of an infant cannot on the ground of poverty be compelled to give security for costs: St. John v. Earl of Bes- borough, 1 Hogan; Dan. Ch. Pr., supra, note; Fellows v. Barrett, 1 Keen, 119; Jones v. Evans, 31 Sol. Jo. 11. It is otherwise in the case of the next friend of a married woman: Pennington v. Alvin 1 S. & S. 264, overruling Dowden v. Hook, 8 Beav. 399; and see Morgan & D:avey on. Costs, 7; Martano v. Mann, 14 Ch. D. 419'; Schjott v. Schjott, 19 Ch. D. 94; Re Thompson, 38 Ch. D. 317. A married woman suing alone cannot be required to give security for costs, although she has no separate estate and no property available to execution: Re Isaac, 30 Ch. D. 418; Re Thompson, 38 Ch. D. 317. Where an insolvent brings the suit as nominal plaintiff for the benefit of a third party, security may be ordered: Gerow v. Pro- vidence Washington Ins. Co., 25 N. B. 279; Cowell v. Taylor, 31 Ch. D. 38; Mason v. Jeffrey, 2 Chy. Ch. 15; Little v. Wright, 16 Gr. 576; Pendry v. O'Neil, 7 P. R. 52; Boioe v. O'Loane, 7 P. R. 359; Delaney v. MacLellan, 13 P. R. 63; Wallbridge v. Trust & Loan Co., lb. 67; Delap v. Charlebois, 15 P. R. 45; Gordon v. Armstrong, 16 P. R. 432. If the defendant takes any step in the suit after becoming aware that he is entitled to security for costs, he will, in general, be held to have waived his right to such security: Morgan & Davey on Costs, 13; Dan. Ch. Pr. (4th Am. ed.), 30; Martano v. Mann, 14 Ch. D. 419; Lydney, etc., Ore Co. v. Bird, 23 Ch. D. 358. As to proceedings to obtain order, see Dan. Ch. Pr. (4th Am. ed.), 33; Leggo's Ch. Forms, 309; and for form of order, Seton (4th ed.), 1643; Morgan & Davey on Costs, 16. The order is that all proceedings be stayed until the plaintiff gives security: Fox v. Blew, 5 Madd. 147. If the plaintiff make default in giving security he may be ordered to give security within a limited time, and in default the suit may be dismissed: Camac v. Grant, 1 Sim. 348; Giddings v. Giddings, 10 Beav. 29; Cooper v. Purton, 1 N. R. 468; La Grange v. McAndrew, 4 Q. B. D. 210; Hollender v. Ffoulkes, 16 P. R. 225. The proposed sureties must be solvent: Cliffe v. Wilkinson, 4 Sim. 122; and if the security becomes altered by the death or insolvency of a surety, fresh security may be required: Lautour v. Holcombe, 1 Ph. 262; Veitch v. Irving, 11 Sim. 122; Gage v. Canada Publishing Co., 10 P. R. 169. The plaintiff's soli- citor cannot be surety : Panton v. Labertouche, 1 ph. 265 ; Re Nor- man, 11 Beav. 401. The plaintiff may, instead of giving security, pay $500, together with $100 to cover the expense of paying it in and gettingi it out: Cliffe v. Wilkinson, 4 Sim. 122; Australian Steamship Co. v. Fleming, 4 K. & J, 407; Ganson v. Finch 3 Chy. NEW BRUNSWICK EQUITY CASES. 89 DEISGOLL v. FISHER. 1880. Practice — Parties — Fraudulent conveyance — Setting aside— Suit by assignee —Insolvency Act, 1375 (38 Vict. u. 16.) An insolvent and wife should not be joined in a suit brought by the insolvent's assignee under the Insolvency Act, 1875 (38 Vict. ,.> tne evell t of the appeal succeeding, or otherwise will stay pro- ***"** etal - ceedings as to costs. By order 58, r. 16, "an appeal shall not operate as a stay of execution or of proceednigs under the deci- sion appealed from, except so tar as the Court appealed from, or any Judge thereof, or the Court of Appeal, may order." Lord Esher, M.R., said: "The first question is, whether or not there has arisen a practice, which has become invariable, that the Court will in every case, whether there are particular circumstances in the case or not, make an order to stay proceedings pending an appeal unless the respondent's solicitor gives the undertaking. Cases have been cited in which the order has been made, and ex- pressions used which, it is said, shew that the Courts have laid down as a rule to guide them this practice, which so has become an established practice. Now, expressions used in cases decided before rule 16 was drawn up, are, to my mind, quite immaterial; as soon as the rule was made the Court could not look beyond it. . . . The real question is, what is the construction of this rule? ... In all the rules the word ' may ' has been held to mean ' may or may not.' It has been held to give a discre- tion, which is called a judicial discretion, but is still a discretion. If the practice contended for be established, in my mind, it alters the effect of the rule. It takes away the discretion to refuse a stay of execution, by imposing a particular term as a condition of the refusal in all cases. The Courts have no power to alter the effect of the rule; no authority to establish any practice in con- flict with the rule, and no power to say that it shall be binding upon the Courts. I decline to take any other view than that, the Court has a discretion in each case." Lindley and Lopes, L.JJ., delivered judgments to the same effect. An application for a stay of execution for costs pending, an appeal is not to be granted as a matter of course; and there must be evidence to shew that the respondent would be unable to repay the costs in the event of the appellant succeeding: Barker v. Lavery, 14 Q. B. D. 769; The Annot Lyle, 11 P. D. 114. The costs of an application to stay proceedings must in general be paid by the applicant whether successful or not: Bauer v. Mitford, 9 W. R. 135; Topham v. Duke of Portland, 11 W. R. 813; Waldo v. Caley, 16 Ves. 212; Merry v. Nickalls, L. R. 8 Ch. 205; Cooper v. Cooper, 2 Ch. D. 492; Morgan v. Elford, 4 Ch. D. 352; Wilson v. Church, 12 Ch. D. 454. But in Earl of Shrewsbury v. Trappes, 2 De G. F. & J. 172, L. J. Knight Bruce said that the rule was not an inflexible one. In Burdicfc v. Garrich, L. R. 5 Ch. 453, the proper rule was said to be that the costs should ordinarily abide the result of the appeal. This rule was followed in Adair v. Young, 11 Ch. D. 136. In Morison v. Morison, 19 Jur. 339, although the application was refused no costs were granted. If the decree or order appealed from is reversed before the applica- tion is heard, there being no longer any presumption of the correctness of the decision of the lower Court, the costs of the application will be costs in the cause: Richardson v. Bank of England, 1 Beav. 153, or no costs will be given, Pennell v. Roy, 1 W. R. 271. As to the other terms upon which proceedings will be stayed, see vol. 5, Chitty's Eq. Index (4th ed.), 5334. NEW BRUNSWICK EQUITY CASES. 103 THE CORPORATION OF THE BROTHERS OF THE 1881. CHRISTIAN SCHOOLS v. THE ATTORNEY-GEN- Jprils . ERAL OF NEW BRUNSWICK, AND THE RIGHT" REVEREND JOHN SWEENY, ROMAN CATHOLIC BISHOP OF ST. JOHN. Injunction —Restraining application to Parliament Jor Private Act — Jurisdiction. Circumstances considered under which a Court of Equity will in- terfere by injunction in the exercise of its jurisdiction in per- sonam to restrain an application to Parliament for a private Act. 1881. April 8. Palmek, J. :— This is an application for an ex parte injunction to restrain the defendant, the Roman Catholic Bishop of St. John, from promoting before the Legislature of the Province of New Brunswick, a bill affecting the rights of property of the plaintiffs in the bequest con- tained in the will of the late James Dunphy, mentioned in the Act 37 Vict. c. 118, as created by the said will, and the said Act, and also the Act 40 Vict. c. 39, incor- porating the plaintiffs. As to the rights of the plaintiffs, if any appear by public Acts of Parliament, I think I am bound to take judicial notice of them without proof, as far as may be necessary to enable me to decide the question before me. The bequest, as far as it relates to this matter, is as follows: The testator devised the residue of his estate to his executors in tr.ust to invest, and out of the income to pay the sum of £100 yearly towards the support of a school to be conducted by " our Christian Brothers in the city of St. John, New Brunswick, a society of pious persons professing the Roman Catholic religion estab- lished, or to be established, in connection with the Roman Catholic Church in the city of St. John afore- said." In order to determine who are entitled to this charity, if the matter had remained as the will intended, 104 NEW. BRUNSWICK EQUITY- CASES. 1881. it would be necessary, I think, to find out what the tes- thb cobpoba- tator meant by " our Christian Brothers," etc. bbothL™f The facts relating to this, as far as they have ap- ™ e s£hools IAN Peared before me, are: That there was at the time of the theX'ttor- bequest, and still is, a society in connection with the o#N^B?wNi Catholic Church called the Christian Brothers, whose W Ero' H T N E's™ E headquarters are in Paris. That the main object of this boman S catho' society is the teaching of schools for the instruction of m %T John ° v * ne masses in secular education and the tenets of the Pa] — j Roman Catholic religion, and it has no power to estab- lish schools except in connection with said Church, and in order to establish or continue them the permission of the bishop of the Church having jurisdiction in the place must be obtained. Under the bequest made under the circumstances so appearing, it is difficult to see how the society of the Christian Brothers could have had any beneficiary in- terest in such bequest. It appears to me that it was a charitable bequest for the benefit of all the public of St. John who wished their children taught secular education with the tenets of the Boman Catholic faith to be taught by members of the order of Christian Brothers. As well might all the schoolmasters in the country claim to be interested in a bequest for schools. If the Legislature had not interfered, I think it would have been the duty of the executor to have obtained the consent of the Bishop and induced some of the Christian Brothers to establish a school in the city of St. John, and .to have expended the £100 a year for that purpose, and if they failed in their duty in that regard, the only person that had sufficient interest in the matter to compel them to do their duty would be the Attorney-General, who could, on behalf of the inhabitants of St. John interested in having the school, demand the interference of this Court to compel the executors to do their duty. Then comes the Act 37 Vict. c. 118, which in effect fixed the fund out of which this £100 a year was to come at $8,000, and directed it to be invested in Dominion Government bonds, and the Act contains a provision that these bonds were to be held by them (the executors) NEW BRUNSWICK EQUITY CASES! 105 in perpetuity in trust as follows: " For the said society 1881. of Christian Brothers in the city of St. John." After ~ E CoRPOEA . this, notwithstanding what I have said with reference brothem ot to the effect of the will, I think it clear that these Chris- THE s °j"^ IAN tian Brothers, whoever they were, were the cestui que THE £ TT0R . trustent of this f 8,000, and that such right was vested in n f e new E bbu^- them by legislative authority. w ri?ht N r E v BE It was alleged by the bill that a school was at the k°ma N S ca?ho: time of the passing of that Act taught in the city of "^o^. "' St. John by members of the Christian Brothers, in con- PaJ — x nection with the Roman Catholic Church, but it is not alleged who the members of that order who so taught were, or whether they always remained, the same, or what, if any, separate existence they had as Chris- tian Brothers of St, John, as distinguished from the whole brotherhood, and consequently it would remain a question whether there was any body in existence which could legally claim as beneficiaries under the name of the Christian Brothers of St. John. In this state of the case the Legislature passed 40th Vict, c- 39, which incorporated the Christian Brothers who were then teaching school at St. John, by the name of the plaintiffs in this suit, and thus removed the diffi- culty that I have pointed out. This Act, by section 3, enacts that all property in this Province then held by or conveyed to any person or persons in trust for or to the use of tbe Brothers of the Christian School, or to the Christian Brothers, is vested in the corporation thereby created (the plaintiffs). If the Act had stopped here, the right of the plaintiffs to this bequest would have been undoubted, but the section proceeds as fol- lows: "Provided that nothing in this Act contained shall be construed to divert or interfere with the bequest contained in the will of the late Rev. James Dunphy towards the support of a school conducted by Christian Brothers in the city of St. John. There was no attempt made to repeal that part of 37 Vict. c. 118, which declared that this money should be held in trust for the society oif the Christian Brothers, and which I think was itself a clear diversion and inter- ference with Mr. Dunphy's bequest, by which, as I have 106 NEW BRUNSWICK EQUITY CASES. 1881. before pointed out, the inhabitants of St. John, and not the Christian Brothers, were the beneficiaries. Under The Cobpoba- bSothsksot tnese circumstances it is a little difficult to say who is the so™Jls IAN entitled to receive the £100, but I am inclined to think TmsATroK- tnat if this state of tne law remain,s it would be the otne^bSSns- plaintiffs'. I say nothing as to what they would have w k C is'ht N bev SE been compelled to do in consequence of the receipt of John Sweeny, fl 1s ,4- mrmpv Eoman Catho- tnal money. LI s? john. ot This being the state of the matter the plaintiffs com- Pair^, j. plain that this money is withheld from them, although they were willing to continue the school, although the defendant, the Bishop of St. John, refused them per. mission to do so, and consequently they were obliged to leave, and no school could be taught, as contemplated by the said will. They further allege they were induced, by the said Bishop, to come to St. John and establish the said school, by which they expended large sums of money, which were wholly lost in consequence of their being forced to remove. But there is no proof of these facts before me, except the belief of the plaintiffs' counsel. The bill then alleges that in this state of the case the said Bishop is promoting a bill before the Legislature of New Brunswick to deprive the plaintiffs of this £100 a year and prays an ex parte injunction to restrain him from doing, so. The matter has been ably argued before me by Mr. O'Sullivan of the Ontario Bar, and I am forced to give it hasty judgment, though in- volving principles of great public interest, and for which reason I should have liked time to write a more consid- ered judgment, although I am clear that it is my duty to refuse the application. It will be seen that this is an ap- plication to prevent a person from applying to Parlia- ment. This Court, if it interferes in the way asked, does not attempt to restrain Parliament, but simply acts in personam to prevent the defendant from exercising a legal right, that is the right to go to Parliament, which right he can undoubtedly exercise unless he has parted with it or so acted with reference to it that the exercise of it would be a fraud on the plaintiffs. Therefore, in a proper case I would not hesitate to exercise the un- doubted jurisdiction of this Court to restrain a person NEW BRUNSWICK EQUITY CASES. 107 by injunction touching proceedings in Parliament for a 1881. private bill, or a bill respecting property. The doing T he cobpoba- that is I think, in one sense analogous to preventing a bbothebs of ' ' , . , , ,, , , v„„„ the Christian party exercising any other legal right that he may nave, schools such as proceeding in a Court of Law, and wbich this thea'ttos- Court constantly restrains, when it can be shown tnat it ofnewBbuns- , j, 1*14- ^f 1CK, AND THE would be inequitable to allow the exercise ot sucli rignt. kkmeet. 1 ,. , .,.„ . , , » John cjWiest, But the case of going to Parliament diners widely irom human catho- that of going into a Court of Common Law. llie pro- g T . j 0H n. vince of the latter is to enforce legal rights, and the Pa ]mer, j. object of the injunction is to prevent an inequitable use of such legal right; the ordinary object of Parlia- ment is to abrogate existing rights and create new ones. What would.be a proper case for preventing a person from going to Parliament and asking to have existing rights altered is difficult to define or even to conceive. But the authorities show that to deprive a person of the right to ask for any legislation he must have agreed not set to ask, or he must have represented that he would not do so, and induced the party complaining so to act on such representation as to alter his position, so that such legislation would be a fraud upon him. To show that I am obliged to deny this applica- tion, it is enough to say that there can be no pretence that there is in this case any proof of all the facts neces- sary to make out such a state of things. Whether enough is alleged in the bill or not I am not called upon to decide. I therefore deny the motion, but the plaintiff b can have the liberty to proceed, and I will make it a condition of refusing the application that the defendant appear by his solicitor at once so that the plaintiffs may proceed speedily with the case if they wish. The proposition contended for by Mr. O'Sullivan was that a person not having rights that could be en- forced in a Court should not be permitted to obtain from the Legislature such rights to the injury of the rights of property of third persons ; at all events without com- pensation, and that if this was attempted this Court should restrain him. I am free to admit that the act of spoliation that would be involved in legislating the rights of one man to another without compensation is so 108 NEW-MtlNSVVrCK EQUJTY, CASES, 1881. abhorrent to that sense of justice that subsists in every tbe cobpoba - community where the right of property is recognized, -B T BOTnBB3OT tnat if s,uch a thin S were P ro P osed before any tribunal ™ e schools IAN there could be no doubt as to its duty to do whatever the attob- was necessary to preserve such right; but if such duty 5 G S was wholly disregarded, I do not think that would w bisht N ebt HE authorize this Court to assume a jurisdiction that does b°man S cvtho' not b e l on g to it- As I have said, if such a case came LIO g Bl ™°£ 0F properly within my jurisdiction sitting in this Court, Pa] — j there can be no doubt that it would be my duty to decide upon it; but a moment's consideration will show that for this Court to attempt to interfere with the Legislature in this case is to assume that they would do an injustice or decide a matter properly, within their jurisdiction wrongly and against justice. Even if I thought they would, my answer is, I am not their judge. The constitution has placed the power of deciding and legislating on these subjects in their hands, not in mine, and for the purpose of protecting the private rights of all by that natural sense of justice of those who form part of such Legislature and which exists in the con- science of all men; besides, by the instructions to the Governor, he is prevented from assenting to any bill un- less he has the advice of the Attorney-General that it does not injuriously affect private rights. This advice the Attorney-General is bound to give in a quasi-judicial character. Why should I assume that he would decide this wrongly ? There is no appeal from his decision to this Court, but even if he should fail in his duty in this, respect, the party injured is not without remedy, I think; for, as I understand our constitution, he could bring the matter before the Governor-General; and the Minister of Justice would have to examine into the matter, and if it were discovered that private rights had been destroyed without compensation and unjustly, it would, I think, be the duty of the Governor-General in Council to disallow the bill. Except when a person may have deprived himself of the right .to go to Parliament either by agreement or fraud, for this or any other Court to attempt to prevent the exercise of the constitutional ■NEW BRUNSWICK EQUITY; CASES. 109 'tight "of going to Parliament to have any law altered or 1881. made would result that in all such causes the matter would the cobpora- have to be first discussed in this Court on an injunction b«ot™wot bill, and if it survived the injunction bill, then and not TH schools"" till then, it would come before Parliament, it's proper theattoe- -tribunal, and in my opinion the only constitutional fnbw bruns- i i i i -I 1* J WICK, AND THE forum as to whether the law should be made or altered, bight eev. , , ,, , n j.t._ John Sweeny, I for one am not prepared to open the doors ol tms Roman cathc- _, , 1 _ LIC Bibhop of €ourt for such litigation. There is not any person who BT . John may fear that he will be injured by any proposed legis- pah^Tr, j. lation who may not apply in person before that tribunal, and by himself, his counsel and witnesses, oppose the passing, of. any law affecting his private rights ; and is not that the old, regular and constitutional mode, and is not an application to this Court a new and irregular mode of proceeding? And if he does show that he has private rights wrongly affected without compensation, then, as I have pointed out, he has an appeal to the Attorney-General, and Lieutenant-Governor in Council, and failing in that, he still has redress by appealing to the Governor-General to disallow the Act —so sacred does our constitution guard the rights of property in all tribunals, whether it be in the Courts of law or the High Court of Parliament. Lord Chelms- ford in Heathcote v. North Staffordshire Railway Co- (1), says : "What difference can it make whether such pre- existing right exist by the tenure of property or by virtue of contracts? In both cases Parliament has the same power of destroying, altering or affecting such pre- existing rights, providing, as it always does or intends to do, compensation to the party affected; and in neither has this Court a right to interfere by injunction to de- prive the subject of the right of applying to Parliament for a special law to supersede the rules of property by which he finds himself bound." The above are my views on the plaintiff's case and the facts presented by them; but it must be remembered (1) 2 Mac. & G. 100. 110 NEW BRUNSWICK EQUITY CASES. 1881. This Cjbfoha- TION or THK BUOXHEKS OF THBl'HHIgTIAN Schools v. The Attor- ney-General of New Bruns- wick, .and the "Bight He v. •John Swekny, Roman Catho- lic Bishop of St.- John. Palmer, J. that I have no right to consider anything alleged, or even proved, before me, behind the defendant's back, to be true so far as to finally determine the case as against him, and who has had no opportunity to answer, and who may deny the whole case. As illustrating the prin- ciples above referred to, I beg to refer to In re Lon- don, Chatham, ami Dovtr Railiua// Arrangement Act (2), and 2 Dan. Ch. Prac. (4th Am. ed.) 1620. (2) L. E. 5 Ch. 671. See eases cited 6 Chitty's Eq. Index (4th ed.) 5392. 1881. February 1. YOUXG v. BEBRYMAN et al. Partnership — Dissolution — Account — Costs — Remuneration to negligent managing partner. In May, 1870, plaintiff and O. B. formed a partnership for manu- facturing purposes, under a verbal agreement by which they were to contribute equally to the capital stock, and share equally in the profit and loss. No amount was agreed upon as the capital, or when ench wadit e together with one D. J. McLaughlin, owned the greater Lum pZ^ om - part of the shares of the company, of which R. S. De- YBoou'etai. Veber was president, L. H. DeVeber & Sons furnishing Pal ~ j j the only capital used in carrying on the company's busi- ness by advancing the same to McLaughlin and charging the amount so advanced to him. On the 3rd day of October, 1879, the company was not indebted to DeVebers unless the advances to Mc- Laughlin can be considered an indebtedness, and the company then and ever afterwards were unable to pay its debts out of its own means, and were dependent upon De- Veber's ability and willingness to make McLaughlin the advances to enable the company either to continue its operations or to meet its engagements. DeVeber, want- ing funds, drew a bill of exchange on Singleton, Dunn & Co., of Glasgow, for £1,000 stg., and Boies De- Veber indorsed it in the name of the firm and sold it to the Bank of New Brunswick on> the 3rd day of October aforesaid, and when so selling told Lewin, the president, as was the fact, that Singleton, Dunn & Co. were the company's agents for delivery of the spools and collect- ing the pay. Mr. Lewin was examined as a witness be- fore me, and testified that the above was all that took place at the time he purchased the bill. This bill was presented, dishonoured, and notice of dishonour sent the bank by cable on the 17th of October. Afterwards DeVeber told Lewin " that there had been a delay in shipping the spools, in consequence of the vessel not arriving to take them, but the bank should have security on them as the bill had been drawn against them." On the 27th day of October, R. S. DeVeber took the defendant, Vroom, to Petitcodiac, where the company carried on its business, and as president of the company executed an absolute bill of sale to Vroom & Arnold of the whole of the spool wood and spools the company bad in or about the factory then, without any authority or direction of the directors, and gave him symbolical delivery thereof, leaving the property in possession of NEW BRUNSWICK EQUITY CASES. 133 the company, who continued to manufacture it, and as manufactured sent it to St. John to Mclntyre, DeVeber's clerk. Mclntyre received it in the month of DecemDer, and handed it over to the defendants Vroom & Arnold, who shipped it, both DeVebers and McLaughlin having in the meantime failed and assigned in insolvency. DeVebers, at the time of all these transactions, were, as it afterwards appeared, hopelessly insolvent, and they stopped payment on the 3rd of November, a few days after the execution of the. bill of sale. The company must also have stopped at the same time, as their ability to continue depended upon DeVebers supplying the funds; but funds were obtained to con- tinue the manufacture of these spools by McLeod, the official assignee for the city and county of St. John, at the instance of DeVebers on their agreement that such advances should be a part charge upon the estate of the company if it went into insolvency, and he afterwards paid such advances, in all amounting to $900, out of the company's assets. On the 3rd of December Vroom & Arnold executed a declaration of trust, declaring that they would sell the spools and apply the proceeds first to pay the bill to the bank and the balance to the company. They did sell in the spring following, and the whole proceeds were paid to the defendants the Bank of New Bruns- wick. Neither the bill of sale nor declaration of trust was ever registered under the Bills of Sale Act. The company assigned in insolvency on the 26th of December; the plaintiff was appointed assignee and demanded the proceeds, both from the bank and the other defendants. They denied the plaintiff's right and refused to account to him, whereupon this suit was brought. The only facts in dispute between the counsel material to the case in my view of it are: — Whether at the time DeVeber sold the bill to the bank the company were really indebted to the DeVebers, and although I think the case does not turn on this, yet 1 have thought it right to say that I have come to the con- clusion that the company were not so indebted. In other words, I think if all the evidence given in this case 1881. MoIjkod, Assignee of the Petitcodiac Lumber Com- pany v. Vroom et al. Palmer, J. 134 NEW BRUNSWICK EQUITY CASES. 1881. were put before me, and I was asked to find that the • mcluod, DeVebers had a cause of action against the company for A fSii h ' a delt >t, I would have to find against them. The only i " m P anif om ' claim they pretended to have was for money they had VRooMetai. advanced to McLaughlin for the business of the com- PataiJ, j. P an y> an( l which they charged to McLaughlin who, to their knowledge, had charged and claimed it against the company, and who had paid off a considerable part of the amount out of his own means. This, I think, would and did enable McLaughlin to claim it against the company, and I know of no way that the assignee can get rid of such a claim. Such evidence seems to me to be almost conclusive that this debt was due by the company to Mc- Laughlin and not to DeVebers. Further evidence on this point was offered by the plaintiff of DeVebers' de- position on their making up their statement previous to assigning in insolvency, in which they swore that they had this claim against McLaughlin and not against the company. I rejected the evidence, and in this, I think, I was right, and I formed my opinion irrespective of it. The only evidence against the above to prove the debt is the statement of J. S. Boies DeVeber, on oath before me, that the company owed them a large amount. On cross-examination, he explained that he meant by this that they owed the amount so charged to McLaugh- lin, and the transaction was as I have above stated. It did not appear that the company ever presumed to pay DeVeber, or admitted that these transactions were other than appeared on their face. It follows, 1 think, that DeVeber's statement can amount to no more than that in his opinion, in point of law, such transac- tion created a debt due from the company to their firm, but I think he is mistaken in this, and there is no such legal indebtedness. The other matter is whether the company were in- solvent at the time of the assignment of those spools, and was such assignment made in contemplation of in- solvency. I am satisfied; that the company were hope- lessly insolvent at the time, and also that the assign- ment was made in contemplation of that insolvency. NEW BRUNSWICK EQUITY CASES. 135 I do not think it necessary to discuss these points 1881. further, as in my view the plaintiff would be entitled to MoLeoI)) these funds, even if I were wrong in these conclusions. A *$£%j£^ Mr. Vroom was on the stand and gave his evidence in Lm ^ l ^ omr such a clear and fair manner as left me in no doubt as Y room etai. to what this transaction really was, as far as Vroom & Pal ^..j. Arnold were concerned. He frankly stated that he took and claimed the property and received the proceeds under and by virtue of the bill of sale and the declara- tion of trust, and in no other way, and he acted through- out according to and under and by virtue of these alone. That being so, the first question I have to decide is : What are the rights of the parties under these docu- ments, they not having been registered and the company having assigned in insolvency? This must depend upon the construction of the Bills of Sale Act, cap. 75, Con. Stats., the first section of which enacts : " That every bill of sale of personal chattels, etc., shall be filed with the Registrar of Deeds, etc., otherwise such bill of sale as against subsequent purchasers, the assignee of the grantor under any law relating to insolvency, or insolvent, absconding or absent debtor, or an assignee for the general benefit of the creditors of the maker or as against the execution creditors of the maker, etc., shall only take effect from the time of filing there- of." If that Statute is in force, I cannot use more apt language to show the rights of the parties than the Statute itself. This bill of sale was not filed, and I think I must say in the very words of the Statute that it had not any effect when the company assigned in December, nor has it yet against the plaintiff, who is the assignee of the grantors under a law relating to insolvency. Then, if this is so, what is the position of Vroom & Arnold under such a bill of sale? It was perfectly good against the company until some one of the contingencies mentioned in the Act occurred. Then it had no effect. The position of the parties was, in my opinion, just the same as if there had been no Bills of Sale Act in force, and a condition was in the bill of sale itself that in case the grantor assigned in insolvency and an assignee was 136 NEW BRUNSWICK EQUITY CASES. 1881. appointed, it should have no effect against such as- MoLEOD, S1 S nee - A pXtZd(at e Tnen what would have been Vroom & Arnold's duty Lum pZiy° m ~ un der such an instrument? Surely to account to the YaooMetai grantors if their estate remained in them, or if it went Pa] ~ j over to the assignee to account to him. The property was put into their hands by the com- pany, they undertaking to account for it, and unless the bill of sale has taken effect and transferred some bene- ficial interest to the bank, there can be no pretence but that they must account to the company or the assignee. They have no right to it themselves, and how is it pos- sible for me to say that any of it belongs to the bank by virtue of that bill of sale, unless I am prepared to dis- regard the Statute and say the bill of sale has some ef- fect against the plaintiff? An attempt was made on the part of the bank to claim an interest in the property by virtue of what took place between Boies DeVeber and the president at the time the bill was sold to the bank, as creating an equit- able lien on the property. But the slightest considera- tion will show that none could have been created in this case. To do this there must have been an agreement capable of specific performance with reference to specific and ascertained property. The law is thus laid down in Mornington v. Kecme (1). In order to create a charge on this property there must have been a contract by the company charging some specific property. So far from that being the case here, this transaction was not between the bank and the company at all, but between DeVeber and the bank, and I am at a loss to see how Boies DeVeber could make a contract binding on the company, and even if he could, I do not see how I can construe what took place between him and Lewin, as a contract between the company and the bank creating a charge on any specified property. All that Boies DeVeber said was that the bill was drawn against a cargo of spools from the company, and (1) 2 DeG. & J. 292. NEW BRUNSWICK EQUITY CASES. 137 that Singleton, Dunn & Co. were the agents of the com- 1881. pany for collecting and paying. Here was no promise MoLeoi> — from the company to the bank. The most that could be *"$££$£* suggested is, that DeVeber expected, or the company Lum i"Jj om ' had promised, to furnish them with the cargo of spools, V nooM«tai or with the proceeds, out of which they, the DeVebers, Pal ~ j expected to pay the bank; and if the contract had been with the company there was no specific property named. Any cargo of spools would have answered it. But even if there had been a cargo of spools shipped, to which such contract could apply, I do not think I ought to construe what took place into such a contract, or any intention to create a charge, for such would be a direct violation of the Bank Act. I do not wish to be understood to decide that if a contract creating such charge was clearly made that it would be void, or rather that a party getting a benefit under it could avoid it, merely because it was contrary to the Act; but I think I am not at liberty to find either that any such contract was made, or even that any such was intended, as would be a violation of that Act, if I can give any other fair construction to what took place. I think it would be very unfair to Mr. Lewin, the president of the bank, and Mr. Boies De- Veber, one of the bank directors, to find that they had entered into a contract to give the bank security on per- sonal chattels for money loaned to DeVeber in direct violation of the law of the land, under which they alone were allowed to do business, or that they intended to do so. The 40th section of the Banking Act (34 Vict. c. 5), (D.), enacts, inter alia, that a bank shall not lend money or make advances upon the security, mortgage or hypothecation of any goods, wares or merchandise, except as authorized by the Act, and it is clear that this case would not come within such exception. The ques- tion is: Did the bank loan this money to DeVebers on the security of these goods? The bank, by their counsel, say they did, and if so, it is impossible to deny that they have done so in defiance of the law. The plaintiff, on the other hand, contends that they did not, and that neither Lewin nor Boies DeVeber intended anything of the kind at the time, but the bank's counsel has set it up since 138 NEW BRUNSWICK EQUITY CASES. 1881. in order, if possible, to save the money for the bank, Mcleod, which would be otherwise lost. It certainly presents an As fSo e odia^ extraordinary issue for the counsel of the bank to ask hwmh pmy 0m ~ me to nnd that such security was intended to be given Veoom etai. an d in consequent violation oi£ the law by their own Palmer, j. clients; but I think I am bound to decide this as a ques- tion of fact, and I am happy to say I have no difficulty in finding that neither Mr. Lewin nor Mr. Boies De- Veber ever intended to take or give such security, and, consequently, I can clear them from any violation of the Act. Supposing this was a suit by a stockholder assert- ing that the bank, through Mr. Lewin, had taken secur- ity on these goods and complaining of his illegal con- duct in so doing, or a proceeding to forfeit the bank's charter by reason of the bank's taking security on per- sonal chattels for money loaned, in violation of the Bank Act, and this was denied by the bank, Mr. Lewin, the president, and'Mr. Boies DeVeber, one of the direc- tors, and the same evidence was given as in this case, what would there be to prove that such security had been given? Only this, that when Lewin discounted. the bill and loaned the money to DeVebers, Boies DeVeber told him that thei bill was drawn against a cargo of spools from the company, and that the drawees were the agents of the company for the delivery of the spools, and to receive the pay. Might mot the bank fairly say this shows no intention to give security on the spools? That this was said by DeVeber to show the bank that he had a fair expectation that the drawees would accept the bill, and that he would likely be able to control funds out of a cargo of spools shipped or to be shipped by the company to meet the bill when it came due. That the bank did not and never intended to make any con- tract with the company whatever, much less to enter into an agreement with them that Lewin had no right or authority to make for the bank, but which is prohibited by law. The bank, I think, might fairly say that any agreement to have the effect to give the bank a charge upon the property must refer to some specified property. That no particular property was specified by DeVeber, NEW BRUNSWICK EQUITY CASES, 139 and if he meant a cargo of spools to be shipped, any 1881. spools that the company might get or cause to be ~ moleod — shipped would fulfil such a contract, and so such a con- As pf t 2 t Zdlt he tract could not be applied to specific property. True, lumber amr any property afterwards acquired by the company with V nooMe«a; the intention to perform the agreement might create the Pal ~ j charge, but nothing of the Mud took place afterwards, except the giving of the bill of sale which the law, as I have before pointed out, makes of no effect against the plaintiff. The absurdity of the bank claiming a charge on this property by reason of what took place between Lewin and DeVeber when the bill was taken is very apparent if we consider the case as standing on what then took place alone. The case then would be this: The bank loaned the money to DeVebers, taking their bill, Boies DeVeber representing to the bank that it was drawn against a cargo of spools shipped by the com- pany, and that the drawees were the company's agents. Spools were afterwards manufactured by the com- pany, shipped in two cargoes and were on their way to per- sons to whom they had agreed to deliver them when the company assigned in insolvency. The spools were after- wards delivered to the purchasers and the proceeds paid to the company's agents. If this were all, can there be a doubt that the money would belong to the company's assignee? I confess myself unable to see what claim either at Law or in Equity the bank could have to it superior to that of any other creditor of the company, nor how such a transaction could create a debt due by the company to the bank, much less the charge for the payment of such a debt. Then, so far from what took place afterwards with reference to the bill of sale creat- ing such a claim, I am inclined to think if there had been such an agreement between the bank and the company, that the company should give security on those spools, and they chose to take in fulfilment of that agreement a bill of sale which was perfectly good against the com- pany themselves, but not against their assignee, they could not have claimed 'the money. Whether a parol agreement could have been made to charge personal pro- perty as security for a debt which would prevent the 140 NEW BRUNSWICK EQUITY CASES. ' 1881. necessity of registering such security I am not called moleod, upon to decide. I have purposely refrained from recit? 4 pe a monopoly in the use of the. word in every possible sense. In the House of Lords Lord Morris said: "The respondents have not the trade-mark ' Stone Ales,' and I cannot see how they can have acquired the right to the exclusive use of the words ' Stone Ale ' against the world, and thus appropriate the name of a large town and of the commonest of drinks. It appears to me that every person has a right to the honest use of the words ' Stcne Ale'; otherwise the respondents would derive the advantage of a trade-mark, though not entitled to it. When the respondents are safeguarded against any deception of their goods, they ap- pear to me to be entitled to no more. I, therefore, doubt whether the appellant should be debarred from the use of the words ' Stone Ale ' in any collocation or combination with other words. If he used the words in a fraudulent combination, so as to con- found his goods with the respondents', and thus palm them off on the public, they would be met without the deprivation of the right to use the words at all. If circumstances give a good name to ales brewed at Stone, other brewers ought not to be deprived of the right so to describe them, taking care to distinguish the^i from the respondents'." And Lord Hannen said: "The appeal to this House is based on the contention that the word ' Stone ' in connection with ale or beer is merely used by the appellant in a geographical sense, as indicating that the ale or beer n manufactured at that place, and that any one is entitled to use it in that sense, provided he does not use it so as to induce the belief that his goods are the goods of manufacturers previously established at Stone. The principle contended for by the ap- pellant may be admitted as correct." With respect to the par- ticular facts of the case, it was the view of each Court that the defendant intended to make use of the words in question in con- nection with ale of his own manufacture in order to create the belief that it was the ale manufactured by the plaintiffs. Chitty, J., said: "The plaintiffs say they have sold their ale as 'Stone Ale'; that the term 'Stone Ale' has become well known in the market, and is now accepted in the market in a secondary sense; and that it no longer denotes, as unquestionably originally it did, ale brewed at Stone, but it denotes ale of the plaintiffs' brewing so that the meaning of that term is the plaintiffs' ale. Consequently they say . . . that if the defendant sells his ale as ' Stone Ale,' he will necessarily lead people to believe that the defendant's ale is the plaintiffs' ale, and take away tbe benefit of the reputation which in the process of a hundred years or so has been acquired by the mode in which the plaintiffs and their predecessors in title have conducted their brewing business. . . . As the matter stands, I am satisfied that the intention of the defendant, was by tricks and devices to obtain the benefit of the reputation which the plaintiffs had acquired. ... He is clearly entitled to set up his brewery at Stone, and he is clearly entitled to brew beer and ale at Stone, and to sell them in such a manner as is not calculated to> deceive^ He may men- tion on any ale that he makes that the ale is brewed at Stone; but that is not the question. Can he honestly use the term ' Stone Ale,' having regard to what the plaintiffs have shewn to be the present market meaning of that term? ... . I am unable to see how the term could be used by another brewer NEW BRUNSWICK EQUITY CASES. 149 without invading the plaintiffs' rights." The most recent au- i qoq thoritative and exhaustive exposition of the principles applicable ""' 10 cases of this kind is to be found in Reddaway v. Banham, abmbtrong L1896] A. C. 199. The plaintiff had for some years made belting, i>. and sold it as " Camel Hair Belting," a name which had come Ea ™es et al. to mean in the trade the plaintiff's belting, as distinguished from belting made by other manufacturers. The defendant be- gan the manufacture and sale of belting made of camel's hair, and stamped it " Camel Hair Belting," so as to be likely to mis- lead purchasers into the belief that it was the plaintiff's belting. It was held that the plaintiff was entitled to an injunction re- straining the defendant from using the words " Camel Hair " as descriptive of or in connection with belting made and sold by him without clearly distinguishing it from the plaintiff's belting. Lord Herschell in the course of his judgment, after referring: to the rule laid down by Lord Kingsdown in Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. C. 538, that one man has no right to put off his goodsi as the goods of a rival trader by the use of names, marks, letters, or other indicia, as a fundamental rule, continued as follows: "The word 'pro- perty ' has been sometimes applied to what has been termed a trade-mark at common law. I doubt myself whether it is accurate to speak of there being a property in such a trade-mark, though, no doubt some of the rights which are incident to property may attach to it. Where the trade-mark is a word or device, never in use before, and meaningless, except as indicating by whom the goods in connection with which it is used were made, there could be no conceivable legitimate use of it by another person. His only object in employing it in con- nection with goods of his manufacture must be to deceive. In circuimstances such as these the mere proof that the trade-mark cf one manufacturer had been thus appropriated by another would be enough to bring the case within the rule as laid down ty Lord Kingsdown, and to entitle the person aggrieved to an injunction to restrain its use. In the case of a trade-mark thus identified with a particular manufactory, the rights of a person whose trade-mark it was, would not, it may be, differ substan- tially from those which would exist if it were, strictly speaking, his property. But there are other cases which equally come within the rule that a man may not pass off his goods as those of his rival which are not of this simple character — cases: where the mere use of the particular mark or device which had been employed by another manufacturer would not of itself neces- sarily indicate that the person who employed it was thereby inducing purchasers to believe that the goods he was selling were the goods of another manufacturer. The name of a per- son), or words forming part of the common stock of language, may become so far associated with the goods of a particular maker that it is capable of proof that the use of them by them- selves* without explanation or qualification by another manu- facturer would deceive a purchaser into the belief that he was getting the goods of A., when he was really getting the goods of P. In a case of this description, the mere proof by the plain- tiff that the defendant was using a name, word, or device which he had adopted to distinguish his goods, would not entitle him to aDy relief. He could only obtain it by proving further that the defendant was using it under such circumstances, or in such a manner, as to put off his goods as the goods of the plaintiff." In the principal case the learned Judge concluded that the term " Greenhead Lime " had acquired in the trade a secondary sig- nification as distinguished from its primary sense, and had come 150 NEW BRUNSWICK EQUITY CASES. -toon to mean lime manufactured by the plaintiffs, rather than lime ______ manufactured at Greenhead. The statement by the defendants Akmbtkong that their lime was manufactured at Greenhead does not repre- v. pent or convey to an intending purchaser that the lime is the RAYNEsrffflZ. plaintiff's lime. Unless defendants were permitted to use the combination of words in question, it is difficult to see what expression could be devised in which they could safely state that their lime was manufactured at Greenhead. That they would have a right to make such a statement is clearly recog- nized by the English cases. The judgment in the principal case apparently prohibits the use of the word " Greenhead " by the defendants in any conceivable collocation, except under circum- stances of exaggerated care to distinguish the lime from the plaintiff's. 1882. BERTON v. THE MAYOR, ETC., OF THE CITY OF September 26. ST. JOHN. City of St. John — Transfer of harbour — Consent of Common Council — Constitu- tion of Harbour Board — Meaning of expression " Two-thirds of members of Common Council"— Acts, S8 Vict.c. 95 {N. B.) and 45 Vict, c.51 (_.)— Prac- tice — Form of Injunction order — C. 49, Form E, C. S. N. B. The charter of the City of St. John grants the harbour of St. John within certain boundaries to the Mayor, Aldermen and Commonalty of the City, but any previous grant of the Crown in any part of the same is reserved and excepted. In addition to the wharves and water-lots owned by the city there are within the limits of the har- bour wharves owned as private properties under grants from the Crown and reserved by the charter, and also wharves on lands leased from the city. By Act 38 Vict. c. 95 (N. B.). it was provided, inter alia, that the Mayor, Aldermen and Commonalty of the city might contract and agree for the transfer to commissioners, to be duly appointed to constitute and form a Board of Harbour Commis- sioners for the port and harbour of St. John, of all the right, title and interest of the Mayor, Aldermen and Commonalty of, in, and to the harbour of St. John, and of, in and to the land, water and the land covered with water, wharves, tenements and hereditaments within certain bounds of the harbour, provided that at least two- thirds of the members of the Common Council concurred in and agreed thereto. At a meeting of the Common Council held after the passing of the Act a report from the general committee of the Coun- cil was submitted recommending that application be made to the Dominion Parliament for legislation placing the harbour of St. John in commission in accordance, inter alia, with the terms of the said Act, and that the Board of Harbour Commissioners be composed of five members, three of whom should be appointed by the Governor- General in Council, and two by the Common Council. The report was adopted by the Council on a vote of twelve to four, the Mayor, who was present, abstaining from voting, though he was in favour of tte report, and had signed it as one of the general committee. The Common Council was composed of nineteen members, including the Mayor. The Dominion Parliament in accordance with the terms of a request from a committee of the Common Council by Act NEW BRUNSWICK EQUITY CASES. 151 45 Vict. o. 51, created a Board or Corporation of Harbour Commis- 1882 sioners, to consist of five members, three to be appointed by the "^ Governor in Council, one by the Common Council, and one by the berton St. John Board of Trade. The Act gave the board large powers re- v. lating to the management and control of the harbour, including the The Maym(, mooring and placing of ships at wharves transferred to the board, or citt of St at private wharves, in their discretion, and the fixing and regulating John. of tolls and dues payable by ships at private wharves and slips. On an application to dissolve an ex parte injunction restraining the de- a mer ' fendants from transferring the harbour and wharf property to the board : Held, that the Act, 38 Vict. c. 95, should be strictly construed, and that the membership of the harbour board not having been constituted under Act 45 Vict. c. 51, in accordance with the terms consented to by the Common Council, the injunction was properly granted. Quaere, whether the consent required by the Act, 38 Vict. c. 95, was the consent of two- thirds of all the members of the Common Council, or of two-thirds of the members present at a meeting. 3'BTOJ An ex parte Injunction order absolute in its terms, by omitting to state that it was to continue until further order, as provided in form E of chapter 49, C. S., was ordered to be varied in this respect with costs of application. The facts are sufficiently stated in the judgment of the Court. Argument was heard September 1st, 1882. a. G. Gilbert, Q.C., for the plaintiff. IV. H. Tuck, Q.C., for the defendants. 1882. September 26. Palmer, J. :— This is an application to dissolve an ex parte in- junction order made by Mr. Justice Weldon, by which he restrained the defendants from transferring to the Har- bour Commissioners of St. John, or any other person or body of persons the harbour and wharf property and privileges owned by the city of St. John. The material facts of the case, as they now appear, are that by the charter of the said city the property in question, that is, all the wharf property in the harbour of St. John, all the land covered by water in the harbour of St. John, and over which the tide ebbs and flows, subject to the covenants that bind the city relating thereto, except some small pieces of land and also the fisheries, are vested in the inhabitants of the said city. Such charter creates such inhabitants, together with the mayor, recorder, aldermen and assistants, 152 NEW BRUNSWICK EQUITY CASES. 1882. a body corporate by the name of the Mayor, Alder- — ili™ — men anrt Commonalty of the city of St. John, the match an d declares such corporation capable to have, get, etc., of the receive and enioy lands, franchises, hereditaments, etc., johv. an( j to do, etc., all things, etc., they shall think neces- paimer, j. sar y ; ^, or good f or the benefit and advantage of the city and the inhabitants thereof. That they are also made conservators of the harbour of St. John, with full power of amending and improving it, and also to build wharves, etc., for landing goods, etc., and to receive anchorage and wharfage dues; the fisheries and common lands on the East side to be and remain for the benefit of the in- habitants of the East side, and those on the West for the inhabitants of the West side. That besides the lauds, wharves and property belonging to the city there are within its bounds a number of other wharves and wharf properties, some held under grants from the Crown, and others leased from the city, the city giving the lessees the dock dues and wharfage, the amount of which is fixed and secured by several Acts of Assembly passed before Confederation, and the leases contain covenants of the corporation running with the land. The pro- perty remaining in the city was by several Acts of Assembly . charged with the payment of several deben- ture debts due by the corporation. _ This, I think, shows that such property, franchises and privileges as are pro- posed to be transferred to the Harbour Commission as hereinafter stated, are held in trust for the benefit of the citizens, and that consequently all the inhabitants are in- terested in them, and this is important to be borne in mind in determining the questions which have been dis- cussed before me. In 1875 the Legislature of this Pro- vince, by 38 Vict. c. 95, acting on the recommendation of the Common Council of St. John, recited in the Act, authorized the Mayor, Aldermen and Commonalty to contract and agree for the transfer of such property to a Board of Harbour Commissioners. The material parts of that Act are the first and second sections, which are as follows: " 1. Notwithstanding anything contained in an Act of the General Assembly of this Province, passed in the John. Palmer, J, NEW BRUNSWICK EQUITY CASES. 15£ ninth year of tlie veign of Her present Majesty, intituled 1882. 'An Act relating to the public debt of the corporation BEKT0N of the City of St. John,' and notwithstanding anything Thb m AT0Ei contained in an Act of the General Assembly of this e c T it>°o F /s H t! Province, passed in the sixteenth! year of the reign of Her present Majesty, intituled ' An Act relating to the public debt of the City of St. John,' or in the trust deed referred to and mentioned in the eighth section of said last mentioned Act; and notwithstanding anything con- tained in any other Act or Acts existing and in force relating to the public debt of the said city, the Mayor, Aldermen and Commonalty of the City of St. John may contract and agree for the transfer to commissioners, to be duly appointed to constitute and form a Board of Harbour Commissioners for the port and harbour of St. John, of all such property and privileges as the said Mayor, Aldermen and Commonalty of the City of St. John in Common Council may hereafter agree to trans- fer to such Harbour Commissioners, provided that at least two-thirds of the members of the Common Council do concur in and agree thereto. " 2. It shall and may be lawful for the Mayor, Alder- men and Commonalty of the City of St. John, and they are hereby authorized and empowered by deed under their common corporate seal, for the consideration to be expressed in the said deed, and to be paid and secured as they may agree, to grant, bargain, sell, convey, and assure to the Board of Commissioners to be duly ap- pointed as the Corporation of the Harbour Commissioners of St. John, or by such corporate name as such Harbour Commission may be created, all the right, title and in- terest of the said Mayor, Aldermen and Commonalty of the City of St. John, as well by the charter of the city of St. John as by any Act and Acts of Assembly relating thereto and otherwise howsoever, of, in, and to the har- bour of St. John within the city of St. John, and of, in and to the land, water, and the land covered with water, wharves, tenements and hereditaments, within the bounds to be particularly set forth by apt description and boundaries in the said deed ; and upon the due execu- tion and delivery of any and every such deed, all the John. Palmer, J 154 NEW BRUNSWICK EQUITY CASES. 1882. real estate, rights, powers and privileges and heredita- behton nients, corporeal and incorporeal, expressed to be eon- themayok, veyed thereby, shall absolutely vest in the Corporation E ciTY°oF T tST? of the Harbour Commissioners of St. John by such cor- porate name as the said Harbour Commissioners may be created, and they shall thereupon have, hold and enjoy the same and every part thereof absolutely, freed from any and every charge relating to the public debt of the city of St. John, and from the provisions of the said trust deed in the last section mentioned, and from all existing charges on the said property, premises and privileges, except as may be expressed and preserved in the said deed and deeds." There are nineteen eligible members of the Common Council, nine aldermen, nine councillors and the mayor, or in his absence the recorder, so that it would require thirteen to make two-thirds of fhe whole. The Com- mon Council had a meeting on the 6th of April last, the proceedings of which are stated in the bill as follows: " ' The general committee of the whole board report- ed that tbe committee to whom was referred the re-port of the harbour committee, presented at the then last meeting of council on the subject of the harbour com- mission, have considered the subject submitted, and ap- prove of the recommendations of the harbour committee that efforts be renewed at the then present, meeting of the Dominion Parliament with a view to placing the harbour of St. John in commission upon the basis of re- ceiving for the property and privileges to be transferred the full sum of $500,000, to be divided between the East and West sides of the said city as therein mentioned. " ' That after making reference to the reservations to be made on the Eastern and Western sides of the harbour the said committee recommended that the city memorialize the Dominion Government asking that legis- lation be secured at the then present session of Parlia- ment for placing the harbour of St. John in commission under the Act of the Provincial Legislature of 1875 re- lating thereto, upon the terms and reservations stated therein and as altered in that report, the commission to be constituted with five members, three of whom to John. Palmer, J. NEW BRUNSWICK EQUITY CASES. 155 toe chosen by the Governor-General in Council, and two 1882. by the Common Council of the said city. bebton " ' The committee further recommended that the said THIS Sah»«, Common Council consent and agree to the conveyance to oiSyot s? E a Harbour Commission upon the said terms, under the provisions of the said Act of 1875, before referred to, and that the conveyance be perfected upon the basis above set forth, and that a committee be appointed with full authority to complete all arrangements necessary for placing the harbour in commission, as contemplated by the Act of 1875, and as altered in the said report, and to Anally conclude the whole matter at as early a. day as possible, and to affix the common seal to all documents necessary to perfect the transfer, as the committee in their discretion may determine.' " " That the said report was adopted on the following division, twelve of the members of the said Common Council voting for it, and four of the members voting against it." The mayor had signed the report of the general com- mittee and presented it to the Common Council, and Mas chairman of the board when the resolution passed, and was, as he has stated in his affidavit, in favour of the resolution, intended to concur and agree thereto, but did" not vote, as he thought it was unnecessary to do so, being chairman, and there being a majority without him. Afterwards, at the solicitation of a committee of the Common Council appointed by such resolution, the Do- minion Parliament passed the Act 45 Vict. c. 51, which created a corporation of Harbour Commissioners of St. John and made it consist of five members — three to be appointed by the Governor iii Council, one by the Common Council of the city, and one by the Board of Trade of St. John, a private corporation created by Act of General As- sembly of New Brunswick. By this Act the Dominion Parliament authorized such Harbour Commissioners to receive the conveyances of the wharf property, as pro- vided by the local Act above referred to (38 Vict. c. 95), and enacted that upon registering the deed all rights, rents, powers and privileges of the Mayor, Aldermen and Commonalty, etc., in or relating to the harbour of St. 156 NEW BRUNSWICK EQUITY CASES. 1882. BEBTON V. The Matoe, etc, of the ClTFOF ST. John. Palmer J. John, except only as reserved in the deed, should vest in such Harbour Commissioners, to be held by them in trust for the purposes for which the corporation was created. The Act further provides that the Governor in Council may from time to time authorize the commissioners to acquire any part of the remaining wharf and beach pro- perty in the city until the whole is acquired, but it does not compel them to do so, and by the 11th section it is declared that the rights of riparian or other proprietors of wharf or other property should not be altered or diminished, except by the purchase, etc. Then comes what to my mind are the most important provisionJs of the Act, that is, empowering the Commis- sioners to make by-laws and, inter alia, to prescribe where all vessels entering the port shall from time to time be moored and placed, to alter and fix the tolls and dues payable to owners of wharves and slips in the city; thus, without the consent of the owners of the wharf property, and without giving them any compensation, seriously affecting, altering and interfering with their rights by putting it in the power of this corporation to injure or destroy their property when they choose. I say " serious- ly affecting,'' because I think property so held would not be of the same value as if the owner held it at his own will only, and at all events it is an alteration of the owner's rights, and that of itself is a deprivation of his rights. This Act not only authorizes the Harbour Com- missioners to alter the wharfage dues now payable to the owners, but instead to collect from all vessels enter- ing the port, dues in lieu of wharfage, without regard to what wharves they may lie at, and this, I think, well might, and probably would, render wharf property not held by them valueless; and they are also authorized to direct all vessels to moor and discharge at their own wharves, and not allow any to be loaded or unloaded at the wharf of any person as they may will. I do not wish for one moment to be understood to state, or even insinuate that this would likely take place, or that these commissioners would be guilty of such injustice. All I mean is that by the law, as it stood before the passing of the Act, persons did not so hold NEW BRUNSWICK EQUITY CASES. 157 their property, and by the law no person holds his right of any kind by the will of any person, power or author- ity in the land, except Parliament, and when so held, that is, at the will of any person except the owner, it ceases to be right or property at all. It is said that the corporation of St. John has the same power over such property at present. To deter- mine whether this is so or not would require much more material than is before me, for it would depend upon agreements, leases, covenants, etc., made by the corpo- ration, and also a variety of Acts of Assembly, and the right of one man might be very different from that of another. But I do not consider it necessary to go into this, as in my opinion it would make no difference if this were so, for the owners might well be willing to rely for justice upon the will of the people of St. John and not upon the will of the Harbour Commissioners, and therefore changing it from one to the other without their consent or compensation would be just as much interfering and destroying their rights as if they were taken from them altogether. The difference is not in principle but in degree. I have discussed this question, not because I con- sider it part of my duty to interfere with the action of the Legislature when acting within it® powers, and much less to find 1 fault with anything Parliament in its wisdom may have done within such powers. Parliament is the sole judge of what it ought to do. My duty is a> humbler one — to obey and administer all laws that Parliament has properly made — but I am bound to ascertain from the language of its Acts what it has done, and whether the law authorizes it to do it, and for this purpose to construe the words of the statute® which it- has passed. The rules of construction are different accord- ing to the different objects in view, for while the constitution gives Parliament, acting within its powers, the right to take away any person's property and rights without compensation, yet such legislation is so abhorrent to the sense of justice of all persons adminis- tering the law that they will not think that Parliament 1882. Berton V. The Mayor, ETC., OF THE City of S j'. John. Palmer, J, 158 NEW BRUNSWICK EQUITY CASES. 1882. Bkrton v. The Mayob, etc., of the (Jity op St. John. Palmer, J. so intended, if by possibility the words used can have ~ any other meaning. With reference to Acts of this description, Alderson, B., in Lee v. Milner (1), remarks as follows: " These Acts have been called parliamentary bargains. Perhaps, more correctly, they ought to be treated as conditional powers given by Parliament to take the land of the different pro- prietors. . . . Each landholder therefore has a right to have the powers strictly and literally carried into effect as regards his own land, and has a right also to require that no variation shall be made to his prejudice in the carrying into effect the bargain between the un- dertakers and anyone else." If the words of the statute be ambiguous, every presumption, said Best, C.J., in Schales v. Pickering (2), is made against the company and in favour of private property; for if such a construc- tion were not adopted, Acts would be framed ambiguous- ly in order to lull parties into security; and in Parker v. Great Western Railway Co. (3), it is said that the language of these Acts of Parliament are to be treated as the language of the promoters of them. Therefore Acts passed under such circumstances should be con- strued strictly against the parties obtaining them, but liberally in favour of the public. Bearing these rules in mind let us look at what the rights of the parties are and what the plaintiff has obtained in this suit, of which the defendants complain. It is an injunction order restraining the defendants from conveying the harbour property, under the local Act above referred to, to the Harbour Commissioners created by the Act of the Dominion Parliament, and the defend- ants claim that they have >the right to so transfer it, not- withstanding only one of the commissioners is appointed by the Common Council instead of two as named in their resolution, and without any further consent of two- thirds of the members of the Common Council than is contained in the report which they adopted as before re- ferred to, and they admit that they intend so to transfer, (1) 2 Y. & C. 618. (3) 7 Scott, N. R 870. (2) 4 Bing. 452. ETC., OF THE FY OF £ John. Palmer, 3. NEW BRUNSWICK EQUITY CASES. 159 if allowed to do so, without any further concurrence of 1882. two-thirds of such members. And here I may mention berton that one of the aldermen who voted for that resolution, TaE ^tob, Mr. Grant, has made affidavit that he would not have ^"opT^ concurred in it at all, if it had not been a part of it that two of the commissioners were to be named by the Com- mon Council. The plaintiff's first contention before me was that the mayor was a member of the Common Coun- cil, and that there were nine aldermen and nine council- lors, making in all nineteen members capable of sitting. This was not seriously contested by Dr. Tuck, and I think is plainly right. It depends upon the clause in the charter, which will be found on page 994, Vol. 3, Local and Private Statutes. The words are "that the mayor or recorder with, etc., aldermen and assistants, be and shall be forever hereafter called the Common Coun- cil." The plaintiff's next contention was that the mem- bers could only concur and agree by vote in Common Council, which must appear by a written resolution in the minutes, and as only twelve so voted for it there was no concurrence of two-thirds of the members. This was answered by Dr. Tuck in two propositions : — 1st, that the mayor did concur by signing, bringing in and submitting the report, and only refrained from voting because it was not called for, and it was shown by his affidavit that he did in his mind concur, which was shown at the time by what he did, and he would have voted if any question had been raised that the resolution had not been properly carried; 2nd, that as the Act 38 Vict. c. 95, provided that the agreement to transfer could only be made by the mayor, etc., in Common Council, the words " provided that two-thirds of the members of said Council should concur," could only mean two-thirds of the members of that particular council when the agree- ment was made, and not the whole members eligible to sit, and there is, I think, great force in the defendants' contention, although in the view I take of the case I do not think it necessary to decide these questions. The defendants also contended that the plaintiff, having delayed so long after the resolutions were passed, before applying for an injunction to restrain action on 160 NEW BRUNSWICK EQUITY CASES. 1882. B EETON V. •The Matoh, .etc., of the ■ City of St. John. IPalmer, J- them, must be taken to hare acquiesced. I think there " is great force in saying that he ought to be precluded from now objecting that such a resolution was not pass- ed by the requisite number of the members, for it is quite apparent that had such objection been made at any time before it was acted on, the mayor would have voted for it and thus supplied the defect (if any), and I think if the case rested here I would have dissolved the injunc- tion order. The next ground taken by the plaintiff was that, admitting the resolution in question to have been pro- perly passed and in full force, the defendants have not in the words of the Act made a contract, or agreement, for the transfer to the commissioners to be duly ap- pointed to constitute and form a Board of Harbour Com- missioners for the port and harbour of St. John, in and to which two-thirds of the members have concurred and agreed; or at all events they have not agreed to the transfer to a Corporation composed as the Canadian Act has constituted them, and I think the plaintiff is right in this. This must depend upon the resolutions themselves; and first, would a resolution merely, supposing it to con- lain words of an offer to agree withsuch corporation, be an agreement until it was accepted by the other side? In -the words of the Act, have the Common Council contract- ed or agreed with the Harbour Commissioners merely because they have offered and expressed a wish to do so? I am inclined to think that no such agreement, whether «xecutory or amounting to the transfer itself, would be binding on the corporation until the common seal was afiixed, and it was agreed to on the other side, or at all events a distinct offer was made on the one side and accepted on the other, binding on both parties, and that act on the part of the defendants would require the con- currence and agreement of at least two-thirds of the Common Council. But if this were not so and the Com- mon Council by a two-third vote had their common seal affixed to an agreement in the terms of the resolution and this had been assented to by the Harbour Commissioners so that the agreement was complete between them, I think this could only be carried out in its entirety, that NEW BRUNSWICK EQUITY CASES. 161 JjHN. Palmer, J. is, by the property being conveyed to tliem when the com- 1882. mission was composed' of two nominees of the Common BebT0 n Council; for two-thirds never agreed to have it conveyed Thb m'atob. to any other body, and by the plain words of the Act it *cotof£? ought not to be so conveyed without the agreement of at least two-thirds of such body. And it might well be, and we have a right to suppose it was, one of the guards that the Local Legislature intended the citizens of St. John and other persons whose rights were to be affected by the transfer should have and that such lights should be pro- tected by anything that two-thirds of the Common Coun- cil might think advisable to throw around them. And it also might well be that the Common Council might think that a proper protection was that two out of five of the Commissioners should hold their office at the will of the city, whose rights were to be so seriously affected, rather than at the will of any other body, and consequently might not agree to anything else. In my view, as well as in many others, it might be that a nominee of the Board of Trade would be quite as good a protection, but with that the Judge has nothing to do. It is the Legislature and not I that is the judge of that. All I can say is that the Legislature has required the consent of two-thirds of the Common Council to the transfer, and left it in their power to give or withhold such consent — in other wordSj two-thirds of the Common Council are the parties 10 make the agreement on the one side and the commis- sioners on the other. Without such two-thirds making the agreement for the transfer, I do not think the de- fendants can or ought to make the transfer, nor do 1 think because two-thirds have agreed to transfer to a Harbour Commission composed of three nominees of the Government and two of the Council, that they have agreed to transfer it to a commission composed of only one nominee of the Council and one of the Board of Trade. It is elementary law that unless a party to a proposed agreement consents to its whole terms, he has consented and agreed to nothing. In other words, no one clause of an entire agreement can be enforced unless the whole is enforced. It follows if it be true as stated a per- EQ. CAS. — 11 162 NEW BRUNSWICK EQUITY CASES. 1882. Beeton v. The Mayor, tstc, of the City oh St. John. Palmer, J. son who has rights affected by virtue of an Act of Parlia- ment has the right to hare all the powers in it strictly and literally carried into effect, as regards his own pro- perty, which is to be prejudiced in the carrying into effect of the bargain between the undertakers and anyone else, that this must be done in this case, and, there- fore, that the defendants be required before they make any transfer under the Act, to get two-thirds of the Common Council to agree to such transfer. But it is said that the resolution agrees to the transfer as a separate thing from the terms on which the transfer was to be made, and that those parts that agree upon the terms of only transferring to a commission composed as they wished, was only a recommendation, and I was much impressed by this view on the argument, owing to the form of the bill, but looking at the whole of the re- solutions as set out in the sections of the bill above re- ferred to, it will be seen that the word " recommend " occurs in the report of the committee of the Common Council and precedes every clause of the report, and as much qualifies the clause that is relied on as an agree- ment to transfer as it does that which provides what sort of a commission they were willing to transfer to, and what two-thirds of the Common Council did was to adopt the whole of that report and thus adopt and agree (if agreement it was) to all that was in it qualified as such report qualified it, so I can see no pretence for say- ing that they made any agreement unless such agreement contained the whole that such report contained and in either view there has been no agreement by two-thirds of the members as required! by the Act. It follows that in my opinion the defendants have no right to make any transfer to the Harbour Commissioners without first obtaining the concurrence and agreement of two-thirds of the Common, Council, and as they have avowed their vat- tention so to transfer, and the plaintiff's rights would be affected thereby, I think he was entitled to have an in- junction order to restrain the defendants from so trans- ferring without such consent. In my opinion the order as obtained from Mr. Justice Weldon is wrong in two particulars: first, John. Palmer, J. NEW. BRUNSWICK EQUITY CASES. 163 in absolutely restraining any transfer; second, it 1882. does not follow the form provided for such order bebton in Hie 49th chapter of the Consolidated Statutes. The THE M "; Y0Bi restraint according to the form shall only be " until "fe ot st" further order;" particularly in an ex parte order, and consequently the defendants had a perfect right to take the proceedings they have to have it set aside or varied. I can see no objection to the defendants conveying the property to the Harbour Commission as created by the Dominion Act referred to, whenever they get the con- sent and agreement of two-thirds of the members of the Common Council thereto, but until then I do not think they should do so, and it does not appear that such con- sent has been gotten yet. My order, therefore, will be that the injunction order be varied as indicated in this judg- ment, if the plaintiff pay the defendants their costs of this application within ten days after taxation. If these costs are not paid within that time, then I will order the injunction order to be dissolved. I give the defendants their costs of this application, because I do not think the plaintiff ought to have taken, without notice to the other side, an absolute order restraining the defendants from- transferring the property unconditionally, that not being iheir right, as I have shown. As indicated in the principal case, property granted by the charter of the city of St. John to the Mayor, Aldermen and Commonalty of the City is trust property. As such the Cor- poration are fettered in their use and disposition of it. See Mayor of Colchester v. Lowten, 1 V. & B. 226; and Davis v. Cor- poration of Leicester, [1894] 2 Ch. 208, 227. "It is clearly settled that a corporation will be restrained by injunction from misapplying its corporate property; and that a municipal corporation will be restrained from applying its borough fund to purposes not authorized by the Municipal Cor- porations Act, or by some other Act of Parliament: Attorney- General v. Aspinall, 2 My. & Cr. 613; Attorney-General v. Mayor of Norwich, 2 My. & Cr. 406," per Lindley, L.J., Attorney-Gen- eral v. Mayor, etc., of Newcastle-Upon-Tyne, 23 Q. B. D. 493, 497. In Attorney-General v. Mayor of Liverpool, 1 My. & Cr. 201, Lord Langdale, M.R., said: "Cases were cited to show (what cases were not required to prove) that the Court has no jurisdiction over a corporation which has control over its own property. But, although a body having a corporate existence is capable of acquiring and possessing property, and therefore also of disposing 1 of it;- if property is held by a corporation as a trustee, if the corporation holds it clothed with public duties, the Court has always asserted its right to interfere." 164 1882. Bekton V. The Mayor, IfJTC, OF THJ City op St. John. NEW BRUNSWICK EQUITY CASES. Under the English practice an ex parte injunction order is generally granted for a limited time, and an application to con- tinue it is therefore necessary. See Ex parte Abrams, 50 L. T. 184; and Norris v. Ormond, [1883] W. N. 58. And this practice has been followed in New Brunswick in some instances by Mr. Justice Barker. See form of order, Selon (4th ed.) 173. Where an interim injunction is granted to extend over a certain day or until further order, it may be dissolved at an earlier date than the day named, but it cannot continue beyond such date: Bolton v. London School Board, 7 Ch. D. 766. See Carroll v. Provincial Natural Gas Co., 16 P. R. 518. A motion to dis- charge an injunction order on the day to which it is limited will be refused: Bolton v. London School Board, supra, unless the injunction was obtained by misrepresentation: Wimbledon Local Board v. Croyden Rural Sanitary Authority, 32 Ch. D. 421. 1882. October 7. LLOYD v. GIRVAN et al. Practice — Motion to take hill pro confesso — Answer after notice- tiflcate— Section 28, v. 49, C. S. N. B. ■Clerk's cer- Where plaintiff gave notice of motion under section 28 of c. 49, C. S. N. B., to take the bill pro confesso for want of a plea, answer, or demurrer, and at the motion did not produce a certificate of the clerk that an answer had* not been filed, though it appeared from a. certificate produced by the defendant that an answer had not been filed until after the notice, the motion was refused. This was a motion to take the bill in this suit pro confesso against the defendant, James Broad, for want of a plea, answer or demurrer. The facts appear in the judgment of the Court. C H. Luqrin, for the plaintiff. Geo. F- Gregory, for the defendant. 1882. October 7. Palmer, J. :— This is an application to take the bill pro confesso against the defendant, James Broad, for want of a de- murrer, plea or answer in time under the 28th section of chapter 49, C. S. The ball was filed, and a copy was served, with a copy of interrogatories, more than thirty days before the notice was given, but the answer was filed before the motion was made, and also before the Clerk had given any certificate that the answer was not NEW BRUNSWICK EQUITY CASES. 165 on file. Mr. Gregory produced on the motion a certificate 1882. of the Clerk showing when the answer was filed, and £^^ that none was filed before, and the point of practice to GlRVA s rtat he decided in this case is whether the bill can be taken Pal ~ j pro confesso under these circumstances. I hare already decided that when a notice of this nature has been properly prepared and given, it cannot be defeated, as of course, by merely filing the answer before the motion comes on. That if the plaintiff waits the thirty days after filing his bill and interrogatories, and after serving copies thereof, and obtains the certifi- cate of the Clerk mentioned in the 28th section of chapter 49, and them makes the proper affidavit, he is in a posi- tion to give the notice. The words of the Statute are that " if no demurrer, plea or answer be filed, and a copy thereof served on the plaintiff's solicitor within one month after such service, any Judge at any monthly sitting may, on affidavit of the facts and on production of the Clerk's certificate of the filing of the bill and in- terrogatories, and that no plea, answer or demurrer has been filed by such defendant, be moved that the said bill be taken pro confesso against such defendant," and the same may be ordered. The first thing I need notice under this Statute is that by its plain words there must- be produced on the motion the Clerk's certificate that no plea, demurrer or answer is on file ; and it is useless for me to think that such provision was entirely unneces- sary, and that what is required by it to be done need not be done. I am not at liberty to disregard the Sta- tute. I must obey it if the meaning of the words used is plain. My duty in this respect is well laid down by the Judges in ~Warburton v. Loveland (1), as follows : "Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the conse- quences." It follows, if the Statute is to be obeyed, that the party moving must produce a certificate that no answer, plea or demurrer is on file, and it is equally apparent that no such certificate can be got after the answer is on file. It follows that the plaintiff can never (1) 2 Dow. & CI. 489. 166 NEW BRUNSWICK EQUITY CASES. 1882. be safe to give a notice to move until he obtains that certificate from the Clerk, and I am not prepared to say that the fact that no certificate has been applied for Lloyd v. Gievan et al. rataiTr, j. might not be a good reason why the plaintiff should be compelled to give time to answer. The reason why I have held that a party could not file an answer as of right after a notice had been properly given was that I considered the notice the inception of the motion, and the motion when made relates back to the time of the notice, and when the Statute says that the plaintiff must have a certificate that no demurrer, plea or answer is on file, such certificate, if gotten after it should have been filed, certifying that no such paper is on file, is a literal compliance with the Statute, and I do not think I ought to require more, particularly if I did it would have the effect of doing wrong to the plaintiff by putting him to the expense of giving a notice which the laches of the defendant had rendered necessary. But it is a different thing when I am asked, as in this case, to allow the plaintiff to dispense with this pro- vision of the Statute altogether. In England a party has a right to amend his bill at any time before answer under the General Orders by an ex parte order, but if such order is obtained, or even served, after notice of motion to dismiss, which is also allowed upon the plain- tiff not filing his replication in time, such order is a .nullity, and no answer to the motion to dismiss, which relates back to the time of the notice, if given as author- ized by law. See Price v. Webb (2), and Jones v. Lord Charlemont (3). Just so here. If the plaintiff was in position to move this motion, and he had afterwards given the notice as directed by the 28th section, 1 would not allow the defendant, who was in default, to file his answer without submitting to such terms as would be right, but I regret that I am obliged to refuse this ap- plication on the technical ground that the plaintiff has mot been able to produce the certificate of the Clerk re- quired by the section. (2) 2 Hare, 515. (3) 12 Jur. 389. NEW BRUNSWICK EQUITY CASES. 167 In all proceedings to take a bill pro confesso, the greatest igaa care must be taken to comply with the requirements of the Act; and all formalities must be strictly observed. See Buttler v. llotd Mathews, 19 Beav. 549. Therefore on a motion to take a bill v. pro confesso for want of an answer, the plaintiff must produce the Ghwan etai. record and writ clerk's certificate that the defendant has not put in an answer: Dan. Chan. Pr. (4th Am. ed.) 521. Where motion was made to dismiss the bill in a cause for want of pro- secution, Vice-Chancellor Wood refused to allow it without the production of the Registrar's certificate of the filing of the answer: Preeston v. Clayton, 17 Jur. 435. The certificate of the Clerk of Records and Writs is conclusive as to the date of the filing of a pleading: Beavan v. Burgess, 10 Jur. 63. And see Dan. Chan. Pr. (4th Am. ed.) 1309. For the present practice in moving to take a bill pro confesso, either for want of an appearance, or a plea, answer or demurrer, see sections 32, 33, 38 and 39 of 53 Vict. c. 4. Where the bill is amended after answer, if the amended bill is not answered, the bill may be taken pro confess') generally: Jopling v. Stuart, 4 Ves. 619. LEWIN v. WILSON et al. 1882. Statute of Limitations — Mortgage— Principal and surety — Chap.84, C. S. N. B., Xovemter 12. ss. 29 and SO — Payment of interest by co-obligor of bond. On September 27th, 1850, H. and W. gave their joint and several bond to C. to secure the payment of £1,000 on September 27th, 1855, with interest thereon quarterly id the meantime. As between H. and W. the latter was surety, though they were both principal debtors by the bond. On the same day H. and W. executed to C. separate mortgages on separate pieces of property owned by each to secure the payment on September 27th, 1855, of the amount of the bond, neither party executing or being a party to the mortgage of the other. The mortgage from W. was upon the condition that if he and H., or either of them, their or either of their heirs, etc., paid to C. £1,000 and interest, according to the condition of the bond by H. and' W., it should be void. The mortgage given by H. contained a similar provision. The interest on the debt was paid regularly by H. up to the 27th March, 1879, after which his payments ceased. W. and his successors in title were never out of possession of the land mortgaged by him from the date of the mortgage, and never made any payment or gave any acknowledgment. On January 20th, 1881, C.'s representatives commenced this suit for foreclosure and sale of both mortgaged premises. Held, that the mortgage given by W. was extinguished under the Statute of Limitations, c. 84, C. S. X. B., ss. 29 and 30. On the 27th of September, 1850, John Howe and James White gave their joint and several bond to Mar- garet Cunningham to secure the payment of £1,000 to her on the 27th of September, 1855, with interest par- able quarterly until payment of the principal. As be- tween Howe and White, the latter was a surety, but 168 NEW BRUNSWICK EQUITY CASES. 1882. they were both principal debtors by the bond to the Lewin obligee. On the same day Howe and White each mort- wilbon«*«/. gaged property of his own to the obligee to secure the Pai^Tr.j. bond debt. White's mortgage was made upon the ex- press condition that if he and Howe or either of them, their or either of their heirs, executors or administrators should pay to Miss Cunningham, or her representatives, the sum of £1,000 on the 27th of September, 1855, with interest in the meantime according to the conditions of the bond of even date, given by Howe and White to Miss Cunningham, the mortgage would be void, otherwise to remain in full force and virtue. The mortgage from Howe and Mary E. Howe, his wife, was made upon the express condition that if Howe and his wife or White, or either of them, or their or either of their heirs, ex- ecutors or administrators, should pay to Misis Cunning- ham, or her representatives, the sum of £1,000 on the 27th of September, 1855, with interest in the meantime according to the conditions of the bond of even date given by Howe and White to Miss Cunningham, the mortgage would be void, otherwise to remain in full force, virtue and effect. The bond and mortgages were assigned to the plaintiffs in 1870. James White died in 1858, leaving a will appointing Howe the executor thereof, and devising all his residuary real estate, in- cluding the lands and premises included in the mort- gage to Miss Cunningham, to his daughter Georgina Wilson, the defendant, and his daughter, the above Mary E. Howe. In 1880 a partition was made between the defend- ant and Mary E. Howe and her husband, by which Mary E. Howe and her husband released to the defendant their interest in the said land and premises. Howe concealed from the defendant that the property had been mort- gaged, and that the mortgage was then in existence, and she took the property at full value. White, at the time of his death, was in possession of the mortgaged pre- mises, and since his death the defendant, Georgina Wil- son, has been in possession, except of a portion conveyed by her to William A. Lawton. Lawton and his assignee have always been in possession of the portion conveyed NEW BRUNSWICK EQUITY CASES. 1G9 -to them. Neither White nor his successors in title ever 1882. paid interest on the bond or either of the mortgages or LEWIN gave any acknowledgment. The interest on the debt of WlM0 ".; et ai. the bond was regularly paid by Howe up to the 27th of 1 > a ^ i j. March, 1879, after which no further payment was made by him. On the 20th of January, 1881, the present suit was brought for foreclosure and sale of both mortgaged premises. Argument was heard August 29-th, 1882. C. W Weldon, Q.C., and G. 8. Smith, for the plaintiffs. T. Millidge, for the defendant, Georgina Wilson. W. B. Wallace, for the defendant, Benjamin Lawton. C. A. Palmer, for the defendant, James Harris. 1882. November 12. Palmer, J. : — The material facts of this case that affect the only question involved, that was not disposed of on the argu- ment, are as follows: That on the 27th of September, 1850, John Howe borrowed of Margaret Cunningham $4,000, and he and his father-in-law, James White, gave her their joint bond, conditioned that one or other of them would re- pay the principal money on September 27th, 1855, and the interest thereon quarterly in the meantime. To secure the payment of this bond, Howe and his wife gave Miss Cunningham a mortgage on some pro- perty of his own, and White and his wife gave a sepa- rate mortgage on some property of his for the same purpose. This bond and these mortgages were assigned to the plaintiffs in 1 the year 1870. No part of the prin- cipal money was ever paid, but Howe paid the interest up to 1879. White died in 1858, and devised this mort- gaged property, with other property, to his children, one of whom was Howe's wife; another was the defend- ant, Georgina Wilson. The devisees made a partition of the property. The part in dispute in this cause was 170 NEW BRUNSWICK EQUITV CASES. 1882. allotted to the defendant, Georgina Wilson, at its full Lewin value, she having no knowledge that it was encumbered, Wilson et ai an 'd sne &n & ner tenants have had exclusive possession Paimw j. °' it eYer since, and neither White nor his personal re- presentatives, heirs o>r devisees, nor any persons inter- ested in his estate, have paid any principal or interest on the mortgage debt, or authorized any one to do. so on their behalf. Under these circumstances the plaintiffs have brought this suit for the foreclosure and sale of the properties included in the Howe and White mortgages, and claim that they are entitled to an order for the sale of the defendant Wilson's land included in the White mortgage to pay what is due on the bond debt. Mrs. Wilson contends that such claim is barred against her land by the Statute of Limitations, and that her property should not have been included in the suit, and that she and her tenants should be dismissed out of this Court with costs. And thus, for the first time in this Province, that I am aware of, has arisen a question of construction of the 29th and 30th sections of chapter 84 of the Consoli- dated Statutes, the most difficult that I have ever had . before me. The solution of it must depend on what con- struction is given to these sections, and to do this it will be necessary to compare them with all the rest of the Con- solidated Statutes that are in pari materia. The words of these sections are as follows: Section 29. "Iso action, or suit, or other proceed- ings, shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or other- wise charged upon or payable out of any land, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have ac- crued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or' his agent; and in such case no such action, or suit, or proceeding, shall be NEW BRUNSWICK EQUITY CASES. 171 brought but within twenty years after such, payment or 1882. acknowledgment, or the last of such payment or ac- LEWIN knowledgments, if more than one were given." Wilson a ai. Section 30. "It shall and may be lawful for any p^^j. person entitled to or claiming under any mortgage of land, to make an entry or bring an action at law, or suit in equity, to recover such land' at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, suclh payment being made, within twenty years after the right of entry first accrued, although more than twenty years may have elapsed since the time at which the right to make such entry or bring such action or suit in equity shall have first accrued, any- thing in this chapter to the contrary notwithstanding." In considering what effect I am to give to this lan- guage it is important to bear in mind the language of other parts of the Consolidated Statutes; for, although they are divided into different chapters and placed under different heads, yet they were all passed at the same time, and it is the duty of a Judge attempting to construe any part of them to look at the whole, and if possible to give such a construction as will make the whole harmonize. The rule is well laid down by Jervis, C.J., in Able)/ v. Dale (1), that words may be modified or varied when their import is doubtful or obscure; and if a too literal adherence to the words of an enactment appears to pro- duce an absurdity (i.e., repugnancy) it will be the duty of the Court of 'construction to consider the state of the law at the time the Act was passed, with a view to ascertaining whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put upon the language used a secondary meaning, or perhaps adopt a construction not quite strictly grammatical. Mr. Justice Willes, in Christoplicrsen v. Lotinga (2), r results": Marshall v. South Staffordshire Tramways Co„ [1895] 2 Ch. 3<3. LAWTON v. HOWE et al. 1883 Mortgage— Assignment— Payment of mortgage debt to original mortgagee— '_ Absence of notice of assignment— Registry Act, c. 74, G. S. JV. B. July 1-i. A. gave B. a mortgage on land to secure payment of A.'s bond held by B. Subsequently A. sold the equity of redemption to C. , and B. assigned the bond and mortgage to the plaintiff by a regis- tered transfer. Afterwards C. obtained an advance of money from D. by a mortgage of the equity of redemption, the money being applied by D. to paying B. the amount of the original mort- gage, and B. discharged the mortgage on the records. Neither C. nor D. had notice of the assignment of the bond and mort- gage to the plaintiff. In a suit by the plaintiff for the fore- closure and sale of the mortgaged premises : Held, that payment by A. or his assigns to B. of the indebtedness owing upon the bond without notice of the assignment of the bond and mortgage to the plaintiff entitled A. or his assigns to a reconveyance of the mortgaged premises, and that the registration of the assi«>n- ment of the mortgage did not affect A. or his assigns with notice. The facts are sufficiently stated in the judgment of the Court. 192 1883. Lawton V. Howe et al Palmer, J. NEW BRUNSWICK EQUITY CASES. Argument was heard June 7th, 18S3. /. Allen Jack, for the plaintiff. G. W. Weldon, Q.C., and A. H. DeMill, for the de- fendants. 1883. July 14. Palmer, J. : — Thomas Maher gave a bond to the defendant Howe, and as security gave a mortgage on land in St. John; afterwards Thomas Maher conveyed his equity of re- demption in the mortgaged premises to> Daniel Maher. Howe afterwards assigned the bond and mortgage to the plaintiff, which assignment was duly registered; after- wards Daniel Maher mortgaged the equity of redemp- tion to the Building Society to pay off the Howe mortgage, and the Society paid the money to Howe, neither party having any actual notice of the assign- ment to the plaintiff. Howe discharged the mort- gage om the records, and afterwards the mortgaged premises were conveyed to the defendant Nelson, and this bill was filed for foreclosure and sale of the pre- mises. The first question is whether a mortgagor \s> obliged to pay the mortgage to the assignee, the plaintiff. It is clear law that what the mortgagor agreed to do was to pay the bond debt, and this, and this alone, is his legal obligation and this he has strictly performed, and nothing is clearer than that such payment would be a good discharge in law. When, however, the debt was assigned, if he had had notice of it, equity would compel him to pay the assignee; and consequently, any payment afterwards to the mortgagee would not be good. The effect of a mortgage or conveyance of real es- tate as security for the payment of money is to vest in the mortgagee such estate until the debt is paid, and in equity as soon as the debt is discharged, the estate must be reconveyed. These considerations show that the debt is the principal thing in a mortgage. There can be no pretence that the mortgagor had the requisite notice NEW BRUNSWICK EQUITY CASES. 193-- to make his payment to the mortgagee's assignee, un- less the registry of the assignment was such notice. The ~ case is reduced to the question whether such registry is any notice of the assignment of the mortgage debt to the assignee. I think it is not. In order to make it so, it would, I think, require a statutory enactment to that effect. The whole policy, as well as the provisions of the Regis- try Act, c. 74, C. S. N. B., is confined to the interest in the real estate itself; no doubt the registry of any interest is notice to all parties, so far as it affects any estate in any real estate; and there- fore any person acquiring any interest in any real estate, which was affected by an instrument re- gistered, may properly be said to have notice of it; but it is of no consequence to a mortgagor what the mort- gagee may have done with the interest in the land con- veyed by the mortgage; for no matter who has it, as soon as the mortgage debt is paid he is entitled to get it back; it is the bond that he has to pay, and he is bound to pay that to have it discharged at law ; and so in equity, until be has notice that it has been assigned. If a Court of Equity laid down the rule that the debtor is a trustee of the assignee of the debt, without having any notice of the assignment, it would be impossible for a debtor safely to pay his creditor. At law the payment to the assignor discharges the debt, and if sued for it must be sued in the assignor's name ; and how can this be done if he has been paid ? This point was decided in Williams v. Sorrell (1) ; which decision, I think, is right and in no way affected by the subsequent decisions. It was argued that inasmuch as Daniel Maher, the assignee of the equity of redemption, mortgaged his es- tate to the Building Society to pay off the mortgage, and they paid the mortgagee instead of the assignee of the mortgage, the registry was notice to them; and, there- fore, their payment would not avail ; but I think that the Building Society had nothing to do with the matter. 1883. LaWTON V. HowM et al. Palmer, J. EQ. CAS. — 13 (1) 4 Yes. 389. 194 NEW BRUNSWICK EQUITY CASES. 1883. IiAWTON V. Howe et al. Palmer, J. They paid this money to Howe for Daniel Maher, and whether they had his authority or not, he ratified this act by repaying them, and I think it must be treated as though Daniel Maher paid it himself, and there is no pre- tence that he had any notice of the assignment other than the registry, or that it affected the title in the land when he acquired the equity himself. The bill, therefore, I think, must be dismiissed as against all but Howe, and with the usual result of costs. Payments by the mortgagor to tie original mortgagee after the assignment of the mortgage, but without notice of it, are binding on the assignee: Coote (4th ed.), 658, citing Williams v. Sorrell, 4 Ves. 389. In Fisher (3rd ed.), 541, it is laid down that it is not necessary in order to complete the title of an as- signee of a mortgage, or of a sub-mortgagee, to give notice to the mortgagor of the assignment of the mortgage debt; because the debt is incident to the property which forms the security, and which cannot be taken from the assignee without payment. In a foot note the learned author adds that so long as the mort- gagor has no notice, bis payments om account of the debt to the original mortgagee will discharge him. See also Engerson v. Smith, 9 Gr. 16; McDonough v. Dougherty, 10 Gr. 42; Wilson v. Kyle, 28 Gr. 104. The recording of the assignment is not no- tice to the mortgagor: Williams v. Sorrell, supra; Reed v. Marble, 10 Paige (N. Y.) 409; James v. Johnson, 6 Johns. Ch. (N. Y.) 417; James v. Morey, 2 Cow. (N.Y.) 246; New York Life In- surance Co. v. Smith, 2 Barb. Ch. (N.Y.) 82; Trustees of Union College v. Wheeler, 61 N. Y. 88. And see Pierce v. Canada Per- manent Loan Co., 25 O. R. 671; 23 A. R. 516. The onus of show- ing that a solicitor who is in possession of a mortgage and col- lects the interest has authority also to collect the principal, is upon the mortgagor, and unless this onus is clearly discharged, the mortgagor must bear the loss arising from the solicitor's misappropriation of the funds. In re Tracy, 21 A. R. 454. And see Withington v. Tate, L. R. 4 Ch. 288. The duty of an as- signee of a mortgage to ascertain the state of accounts between the mortgagor and mortgagee is described in Bickerton v. Walker, 31 Ch. D. 151. Fry, L.J., there says: " It is said, and said truly, that in the ordinary course of business a prudent assignee of a mortgage, before paying his money, requires either the concurrence of the mortgagor in the assignment, or some information from him as to the state of accounts between mort- gagor and mortgagee. The reason of this course of conduct is to be found in the fact that an assignee of a mortgage is af- fected by all transactions which may have taken place between mortgagor and mortgagee subsequently to the mortgage, and the assignee is bound to give credit for all moneys received by his assignor before he has given notice of the assignment to the mortgagor " NEW BRUNSWICK EQUITY CASES. 195 NICHOLSON v. BAIRD. 1884. English Bankruptcy Act, 1869 {32 and S3 Vict. v. 71)— Person residing and January 15. domiciled in Canada member of English firm — Title of trustee under Act to real estate situate in Canada and personalty of such a person — Jurisdic- tion of English Bankruptcy Court. In 1873 Gilbert, James, Gorham, and Walter Steeves carried on business as partners under the firm name of Steeves Bros, at St. John, New Brunswick. Each of them was born, and had always resided in New Brunswick. In or about 1874 Gilbert Steeves removed to Liverpool, G. B., and commenced a shipping business under the name of Steeves Bros. & Co., the firm being composed of the same members as the St. John house. Prior to 1882 Walter retired from both firms. Gorham and James never resided in England, or ceased to retain their New Brunswick domicile- In 1882 the firm at Liverpool became insolvent, and Gorham and James cabled from St. John to Gilbert to file a bankruptcy petition of the firm under the English Bankruptcy Act, 1869. The petition was filed July 4th, 1882, and the partners were ad- judged bankrupts, and the plaintiff was appointed trustee. On June 27th, 1882, James and Gorham executed at St. John an assignment of all their property, both real and personal, in New Brunswick to the defendant for the benefit of their New Bruns- wick creditors. This assignment not being recorded, a new assignment was executed and recorded on July 15th. On August 15th the plaintiff recorded in the registry office at St. John a certificate of his appointment. In a suit by the plaintiff for a declaration of histitle to the real and personal property in New Brunswick of James and Gorham Steeves : Held (1), that the English Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), does not apply to Canada so as to vest in a trustee appointed by the English Bankruptcy Court either the real estate situate in Canada or the personal property of a person residing and domiciled in Canada, though he is a member of an EDglish firm which has traded and contracted debts in England, and has author- ized that he be joined in a bankruptcy petition to the Court with the other members of the firm. (2) That the English Bankruptcy Court has no jurisdiction under the Act to make an adjudication of bankruptcy against such a person. The facts of the case are fully stated in the judg- ment of the Court. Argument was heard September 13th and 15th, 1883. J. J. Kaye, Q.C., and F. E- Barker, Q.C., for the plaintiff. TF. B. Chandler, and G. W. Allen, for the defendant". 1884. January 15. Palmer, J. : — The material facts of this case are as follows: In 1873 Gilbert, James, Gorham, and Walter Steeves car- 196 NEW BRUNSWICK EQUITY CASES. 1884. Nicholson v. BAIRIi. Palmer, J. ried on a general mercantile business in St. John under " the name of Steeves Brothers. They were all born and had always resided in New Brunswick. In 1874 or 1875 Gilbert removed to Liverpool, and carried on a shipping business there under the name of Steeves Bros. & Co., in which Gorham and Walter were partners, but whe- ther James became a partner in that firm is disputed. The business was continued in St. John. This Liverpool house became insolvent in 1882, before which time Wal- ter had retired from both firms; and although this was disputed, I think the effect of what took place is that both Gorham and James by cable authorized Gilbert to file a petition under the English Bankruptcy Act of 1869 for liquidation by arrangement. This petition was filed on the 4th day of July, 1882, and an order was made adjudg- ing them bankrupts; neither James nor Gorham going to England, nor being there at the time that any liability was incurred on their behalf, they both being continuous- ly in Canada from 1880 down to the present time. The St. John firm of Steeves Brothers were indebted to a num- ber of creditors in St. John, and on the 27th day of June, 1882, James and Gorham executed an assignment of their property, real and personal, in New Brunswick, to the defendant, as trustee, for such creditors, which was not recorded, and on the 15th day of July they executed another to the same effect, only describing the property more particularly, and this the defendant recorded on the same day. The plaintiff on the 15th day of August recorded in the registry office, St. John, a certifi- cate of his appointment as trustee under the 8th sub- section of section 83 of the English Bankruptcy Act, 1869. The plaintiff claims the property in Canada, both real and personal, so attempted to be assigned, and asks me to make a declaration of his right thereto. The de- fendant denies the plaintiff's right, and asks for a de- claration that he is enttitled to the property under the assignment. Among the great number of points taken and discussed before me, is the following most important one, and for the first time, as far as I know, raised in Canada: That the adjudication in bankruptcy in England, as NEW BRUNSWICK EQUITY CASES. 197 against Gorham and James, is of no force in Canada, and file Bankruptcy Court in England had no jurisdiction - over them, and therefore the plaintiff's title fails, and that the only right he would have in Canada would he the share of Gilbert Steeves in the property of the St. John firm, after the payment of its debts. So at the threshold this question is presented : Can a Canadian who was born and has always been domiciled in Canada, and is in- debted and has property there, on becoming indebted in England by an agent, without himself being .present in England, file a petition in liquidation under the English Bankruptcy Act of 1869 and thereby withdraw out of Canada and have his property in Canada transferred to a person in England, and sent there to be administered? This is what is claimed in this case. If James and Gor- ham authorized the filing of the petition, as the plaintiff contends; and if the plaintiff can succeed, it is open for any Canadian born and who has done business here all his life and has all his property here, and owing debts to any extent here, to incur a debt through an agent in England and then authorise such agent to file a petition in liquidation, and in this way withdraw the whole of his assets from Canada, and compel his creditors to seek their rights in foreign Courts three thousand miles away. These considerations, while they may not determine the question, show at all events its great importance to Canadians ; for if the law is so all Canadians will agree that some effort ought to be made to have it altered. Be- fore discussing the question itself, it will be convenient to state some well-settled principles of law that may help in the discussion. The first is, that an act of bank- ruptcy must be a personal act or default on the part of the person who is to be made a bankrupt, and a firm as such cannot commit an act of bankruptcy or be made bank- rupts; and a partner being adjudicated a bankrupt has the effect of dissolving the partnership, and transferring the rights of the bankrupt partner to the trustee. See Hogg v. Bridges (1); Bowker v. BurdeMn(2); Ingliss v. Grant (3); Ex parte B1ain(i). It follows that on the (1) 8 Taun. 200. (3) 5 T. E. 530. (4) 12 Ch. D. 522. 1884. Nicholson v. Baird. Palmer, J. (2) 11 M. & W. 128. 198 NEW BRUNSWICK EQUITY CASES. 1884. Nicholson v. Baied. Palmer, J. question whether James and Gorham Steeves were bankrupts it is of no importance whether they were part- ners in the business carried on in England by Gilbert, and that Gilbert was properly adjudicated a bankrupt. They are each legally in the same position as if they had not been in partnership, and had carried on business in England and had incurred debts there and had never been there themselves. The act of bankruptcy of Gil- bert cannot affect the question. Second. The act of bankruptcy to render any person liable to be adjudged a bankrupt, unless otherwise provided by the statute, must have occurred in England or Wales. See Ingliss v. Gmnt (5). Third. That bankruptcy is in the nature of an execution, and that issued by a Court in England ought not by its own force affect property in Canada. The proper course in such a case is to have ancillary pro- ceedings taken in Canada where the assets are, and to have them dealt with by the laws of Canada. If this is not done, and the assignee under an English Bankruptcy Act can have 1 the same rights in Canada as in England, it will lead to am unfair race, stimulated by official greed, as to which country shall dispossess the other. Fourth. The procedure being in its nature criminal ought to have no extra-territorial effect. Fifth. That in England the pro- cess and proceedings in bankruptcy are not limited by the fact of domicile, but are applicable to foreigners, both alien and colonial, casually doing business in England. See Ex parte Blain (6). It is, I think, unreasonable that a bankruptcy decree in England, in such a case, should transfer property out of England where the process of the Court does not run, and consequently where neither the property nor the person of the bankrupt can be made amenable to the jurisdiction of the Court. It was admitted on the argument that the Act could only have the effect contended for by the plaintiff by giving it infra-territorial force in Canada. In my opin- ion, if this were so we would have the Imperial Parlia- ment legislating in relation to bankruptcy and insol- vency, and civil rights, in Canada by a,n Act passed two (5) 5 T. R. 530. (6) 12 Oh. D. 522. NEW BRUNSWICK EQUITY CASES. 199 years after the B. N. A. Act, and violating our constitu- tion, as expressed in that Act. For it, after reciting that the provinces were desirous of confederating, and that the union would conduce to the welfare of the provinces and promote the interests of the British Empire, and that it was expedient to provide for them a constitution, by section 91 enacts that, notwithstanding anything in the Act, the exclusive authority of the Parliament of Canada should extend to all matters coming within the class of subjects thereinafter next enumerated; of which bankruptcy is one; and the 92nd section enacts that the Legislature of each Province may exclusively make laws in relation to property and civil rights in Canada; and the question is, Can Great Britain, after the grant of this constitution to Canada, herself make laws having force in Canada on the same subject in relation to which the exclusive power to legislate is given to the parlia- ments in Canada?* This, I think, must be determined by the question what the Parliament of Great Britain meant thereby. What is said in the Act referred to is, that in reference to those matters the Canadian Parliaments created by the Act shall alone make those laws when they relate to the peace, order and good government of Canada, and do not relate to any general Imperial interest, such as might be considered excepted. In considering this question it is important to bear in mind that before the passing of the Act, by the constitu- tion of the provinces their local affairs were to be regulated according to the well-understood wishes of the people thereof, as expressed by their representatives in the legislatures ; and that the people were unwilling that laws should be passed affecting their rights only in a Parliament in which they were not represented. What more natural under those circumstances, when they were * It is submitted that the language of the B. N. A. Act here referred to was in no sense intended to derogate from the powers of the Imperial Parliament ; and that its only object was to define, with what precision it affords, the sphere of legislation allotted to each of the legislatures in Canada. See Attorney-General for Ontario v. Attorney-General for the. Dominion, [1896] A. C. 348. The view, however, presented by the learned Judge was urged by the late Sir John S. D. Thompson, upon the Imperial Government, in support of the competency of the Canadian Parliament to pass the Copyright Act, 52 Yict. c. 29. 1884. Nicholson v. Bated. Palmer, J. 200 NEW BRUNSWICK EQUITY CASES. 1884. Nicholson v. Baird. Palmei-j J. asked by the British Government, as well for the inter- est of the whole empire as their own, to confederate, to insist upon such terms as would secure to them as far as the Parliament of Great Britain could do so, that tbey alone should thereafter make laws on these subjects to be enforced in Canada, and that the Imperial Parlia- ment should not thereafter do so except as aforesaid; and when the Act granting these powers says that they are to exercise them exclusively, I think the proper grammatical construction is that it was intended that no other power should make laws on those subjects to be in force in Canada. If this was not secured, look at the consequences. There might be laws on the same subject entirely different and contradictory, «and all emanating primarily from the same source, the Imperial Parliament; for as long as the B. N. A. Act is in force the Parliament of Canada derives its powers to make laws on the subject of bankruptcy in Canada for all time from the Imperial Parliament; aud in fact, Canada has a bankruptcy Act which is still in force for some purposes. I therefore think that after the B. N. A. Act was passed it would be a violation of the constitution granted to us by it if the Imperial Parliament passed laws on the sub- ject either of bankruptcy, insolvency, or civil rights to be in force in Canada. The late Chief Justice Draper, in delivering judgment in the Court of Queen's Bench in Ontario in Regina v. Taylor (7), says (8) : " For greater certainty it is declared that (notwithstanding this Act), the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of enumerated subjects thereinafter set forth. Exclusive of what? Surely not of the subordinate Provincial Legislatures, whose powers are yet to be conferred, and who would have no absolute powers until they were in some form denned and granted. Would not this de- claration seem rather intended as a more extended or definite renunciation on the part of the Parliament of Great Britain of its powers pver the internal affairs of (7) 36 U. 0. Q. B. 183. (8) At p. 220. NEW BRUNSWICK EQUITY CASES. 201 the new Dominion than was contained in the Imperial Statute 18 Geo. III. cap. 12, and the 28-29 Vict. cap. 63, - ss. 3, 4, 5?" And I am not aware of any authority to the contrary; but, although this is my view, it must not be supposed that I deny to the Imperial Parliament the power to pass an Act in violation of our 'constitution; on the contrary, I think they have the legal power to do so; and if they have done so, we would be bound by such law. It would be no more than a repeal pro tanto of the conflicting exclusive powers granted to Canada by the B. N. A. Act, the abstract power to do which it was not competent for the Imperial Parliament to part with, however much they might pledge the nation that they would not exercise such powers. All I say is that such a law would be unconstitutional — that is, a law opposed to the rights of the people of Canada, granted to them by the B. N. A. Act, which gave us our constitution. All that will follow from these considerations is that no Cana- dian Court, and I trust no British Court, that is called upon to construe an Act' of the Imperial Parliament for which it is claimed that it was intended to have the effect of such violation, will conclude that it has done so if it is possible to put any other construction upon the words used in it; for surely no Court ought to be called upon to believe that the Imperial Parliament intended to vio- late our constitution and repeal any part of the B. N. A. Act, if the words used are capable of any other construction. It follows that we have a rule for the con- struction of the English Bankruptcy Act of 1809, in its relation to Canada, that is very important. There is another rule for the construction of Imperial Acts in re- lation to their extension to colonies. It is, that they do not so extend unless the colonies are mentioned in the Act by special or general description, or the Act in its 1881. Nicholson v. Baird. Palmer, -T. ""'The curious idea suggested by Draper, C.J., that the words ' exclusive legislative authority,' which occur in the British North America Act, s. 91, exclude the legislative power of the Imperial Parlia- ment, could never have obtained the currency which it certainly has acquired if even learned lawyers had not occasionally failed to realize that the Parliament at Westminster is a sovereign legislature," per A. V. Dicey, in Vol. XIV., Law Quarterly Review, at p. 199. 202 NEW BRUNSWICK EQUITY CASES'. 1884. NlCHQTSOB V. Baied. Palmer, J. nature is such as is clearly intended to affect all the " British possessions.* Bearing these rules in mind, the question is, what is the proper construction to be put upon the Bankruptcy Act of 1869 in relation to its effect on persons resident and domiciled in Canada, and their property there situate? Is it intended to affect these things, and if so, to what extent? To begin with, it is clear beyond all controversy that any adjudication in bankruptcy in England must be treated in Canada as a foreign judgment; and consequently before it can have any force given to it by the Courts in Canada, all the facts must be proven that are necessary to give the Court power to pronounce upon, it — in other words, that the Court had jurisdiction. We have a right to suppose that the people of Canada, or the Terri- tory of Canada, is no more intended to be in- cluded in an Imperial statute by any general words than any foreign or British subject in a foreign state. Then, looking at the Act itself, it will be seen that some sections of it apply territorially outside of Great Britain, and these, of course, would include Canada as well as other British Colonies. I refer to sections 76 and 77, which enact that Courts in any of Her Majesty's domin- ions shall have certain jurisdiction to issue warrants in aid, and it may be also of the 74th section, as that pro- fesses to give jurisdiction to any British Court having jurisdiction in bankruptcy on an order of the Court seek- ing aid, together with a request, although I am inclined to think that this section does not apply to Canada, for it is confined to British Courts, and although Canadian Courts are British in one sense, the word is more appro- priately applied to Courts that are the creation of the British Parliament, and, when the Act intended to in- clude Courts in all the dominions, as in the 76th section, it does not use the word British at all, but Courts else- where in Her Majesty's dominions, and there is the rule against the Imperial Parliament extending its provisions to Canada that I have alluded to. Besides it is a well- known canon of construction of Acts of Parliament that * See Colonial Laws Validity Act, 28 & 29 Vict c. 63. _ NEW BRUNSWICK EQUITY CASES. 208 jurisdiction cannot be given by doubtful words; statutes giving new jurisdictions are to be construed strictly. ~ Besides this there is sub-section 8 of section 83, which provides for the registration of the certificate of the appointment of the trustee. These, and possibly some others, I think, it is pretty clear might have some force in Canada, and if they have I don't think it can be said that this would be an interference with our constitution, or its legislation on the subject of bank- ruptcy, or civil rights, in Canada. The 8th sub-section, if it is intended by that that the movable property and real estate in Canada should be passed in the way there- in mentioned, wiould be such interference, but it does not say that it shall pass, and it can have a construction even extending it to the colonies, Canada included, without giving it that effect. It does not profess to pass or affect property in its terms. The only words in the Act that do that are general words which I will discuss here- after, and I think they only pass movable property in Canada when the owner is domiciled in England, and has been properly adjudicated a bankrupt there, and even then, it is to conform with the local law requiring, regis- tration in order that the title may pass, as in the case of our Bills of Sale Act. This section provides a mode of registration which otherwise would defeat the opera- tion of the law of domicile upon movable property. In Burge's Commentaries on Colonial and Foreign Laws, Vol. III. (9), it is said: "There is an entire con- currence amongst jurists in considering that the title to movables is not governed by the laws of their actual situs." This, which may be regarded as a general rule, is subject to this qualification, that the law of the country in which the movables may be actually situated has not prescribed some particular mode by which alone Ihe movables may be transferred; thus property in the public funds, or stocks, shares in companies, joint stocks, etc., is a species of personal property, which as it is created, so it is regulated by the laws of the country in 1884. Nicholson v. Baihd. Palmer, J. (9) Part 2, page 751. 204 NEW BRUNSWICK EQUITY CASES, 1884. Nicholson BAirtr. Palmer, J. which it exists. See Story's Conflict of Laws (10) ; Robin- son v. Bland (11); Scott v. Ahnitt (12). There are other portions of the Act which, beyond controversy, have no territorial force in Canada, such as the administrative parts of it, with reference to which the word British possession is not used, and that relate to pleading, pro- cedure, the orders on officers of the law, such as sheriffs, etc. See Gilbert v. Raymond (13); Clark v. Mullick (14); Mayor, etc-, of St. John v. Lochwood (15) ; Ex parte Cris- pin (16). According to the case of Jouett v. Lockicood (1-7), that part of Act 5 & 6 Vict. c. 122, that related to the discharge of the bankrupt as well as the part that related to the transfer of his property, was decided to be in force in New Brunswick; but this was decided on the ground that that statute expressly named the bankrupt's pro- perty in the colonies, and it must be remembered that the B. N. A. Act was not then in force; and in Ellis v. McIIenry (18), it was decided that a discharge under the English ' Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), was a discharge in Canada. But looking at that statute, it will be seen that it contains very differ- ent words from the Act of 1869, and it does not appear by the report whether or not such bankrupt was domi- ciled in England, but I am satisfied he was; so, whether the same rule will apply to a discharge under the Act of 1869, it is not necessary to decide, for it may well be that if a person resides and is domiciled in Eng- land, and so properly subject ito the laws of Engand, he should be adjudged a bankrupt there and all his property taken from him, and that it would not be legislating on bankruptcy in Canada to discharge him everywhere in the British dominions; but, I think, a different construc- tion should.be put on the Act of 1869, for the words that were principally relied on to extend their operation into (10) 8th ed. 511. (14) 3 Moo. P. C. 252. (11) 2 Burr. 1079. (15) 2 Kerr, 9. (12) 2 Dow & Clark, 404. (16) 8 L. E. Ch. 374. (13) 3 P. & B. 315. (17) 2 Kerr, 676. (18) Law Bep. 6 C. P. 228. NEW BRUNSWICK EQUITY CASES. 205 the colonies in the former Acts are left out of this, and 1881. instead, general words are used, and there is no reason NlcH0LS0N why the Imperial Legislature should not make such laws Bu ° m if they are only made applicable to their own people, Pa i^7 r j. for it is a clear rule of international law that movable property is governed by the law of the domicile of its owner. Wharton, in his work on private interna- tional laiw, section 32, says : " In several important rela- tions, as is well shown by Savigny, domicile determines the particular territorial jurisprudence to which every individual is subject," and if we keep in mind the rule of construction that the words of an English Act of Parlia- ment have force only within the territory of Great Britain unless the contrary is plainly expressed, and the rule of international law referred to, that the title to the movable property passes everywhere if it passes by the law of such domicile, if an English Act of Parliament declared that the movable property should pass- the meaning would be that it would so pass in England; and inasmuch as the movable property of all persons domiciled in England is supposed to be with the person, it would pass, no matter where it was, and would be so adjudged by the law of its situs. Such law would equally apply to a foreign country as to a colony; so that in either case, if such property was brought into England, the assignee could recover it there; yet there would be still this dis- tinction, that inasmuch as such a law would have no force in the territory of a foreign country except by comity, in a British colony it would be the law by force of the Act itself. It is clearly on this principle that the case of Sill v. WorswicJc (19) was decided. Lord Loughborough, in delivering the judgment, says : " It is a clear proposition, not only of the law of England, but of every country in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal pro- perty has no visible locality, but that it is subject to that (19) 1 H. Bl. 665. 206 NEW BRUNSWICK EQUITY CASES. 1881. Niobolsok v. Baird. Palmer, J. law which governs the person of the owner. With respect "* to the disposition of it, with respect to the transmission of it, either by suclcession or the act of the party, it follows the law of the person. . . . Personal property, then, being governed by the law which governs the person of the owner, the condition of a bankrupt by the law of this country is, that the law, upon the act of bankruptcy being committed, vests his property . . in his assignee." In stating the case his Lord- ship says : " The defendant resident in England and a creditor of the bankrupt in England has received money which was due to the bankrupt in St. Chris- topher;" and in commenting on the case of Waring v. Knight, he says (20), " Whether the person was resi- dent at Gibraltar prior to the bankruptcy, whether the debt was contracted at Gibraltar . . . none of these circumstances are stated. But the decision would un- doubtedly be very materially varied by those circum- stances;" and that this was the reason for the construc- tion is made still more plain by his Lordship adjudging that personal property out of England passed when the bankrupt was domiciled in England, while real estate did not under general words, and for this there can be no other reason than the one I have suggested. I am not now discussing any Bankruptcy Act which expressly enacted that real estate in the colonies should vest in the assignee, but only such as used general words applicable to property, both real and personal, without mentioning such as is outside the territory of England, and which is the case with the Act of 1869. All this shows that even if an Act of Parliament declared that all the pro- perty wheresoever situated of a person domiciled in Eng- land should pass to another, what would pass would be the movable property everywhere, and the real estate in England, and if such an Act declared the same thing of a person not so domiciled the most that would pass would be such a person's movable property in England as well as his real estate there; for such an Act would have no extra-territorial force in either case, but in the one case (JO) At p. 693. Nicholson v. Baibd. NEW BRUNSWICK EQUITY CASES. 207 the movable property would be constructively within the 1884. territory of England, and the other not. And admitting that it was intended "that persons not domiciled in Eng- land, aliens as well as colonials, should be adjudicated Pal ~ 3 bankrupt in England, which the authorities clearly show was intended, for if a foreigner, whether Canadian or alien, goes to England and contracts debts and commits an act of bankruptcy there, he thereby gives the Court of Bankruptcy there jurisdiction over him, but this docs not make a domiciled Englishman of him, so that the law would constructively carry his movables to England within the jurisdiction of laws in force there, and it would follow that his movable property not in England, as well as his real not there, would not be affected. On no other principle can, I think, the cases be reconciled, and it appears to me that some such principle must follow from allowing foreigners and non-residents to become bankrupts. Take the case of a Canadian and an Englishman; they may be both made bankrupts both in Canada and in England. The rule of administration on this principle would be plain. The real estate in each country would be administered by the Court of the country of its situs, and the movables in the Courts of the country of the domicile of the bankrupt — at all events, with reference to property not within the jurisdiction of the other Court. But allow a contrary rule and you at once enable a Canadian bankrupt to transfer the administra- tion of his whole estate to England, simply by commit- ting an act of bankruptcy there, or if this would not be the effect I confess myself entirely unable to solve the conflicting claims of the two Courts. This is an entirely different question from the ef- fect of the discharge under the English Bankruptcy Act and which I do not propose to discuss. So construing the Act, it is no violation of our constitution; for, except so far as the colonies are named, it does not extend to Can- ada at all, and while persons domiciled in Canada as well as in foreign territories can, if they commit an act of bankruptcy in England, properly become subject to the 208 NEW BRUNSWICK EQUITY CASES. 1884. Nicholson v. Baird. Palmer, J. English Bankruptcy Act, yet when they do so their pro- - perty not in England is not affected thereby, but remains subject to the law of its situs, if real, of their domicile, if movable. I say nothing as to how far the law of the situs would recognize the right of the assignee by comity, where no rights of third parties intervene. That in- quiry would be interesting; but the questions I must decide are broad enough to absorb all the time at my. disposal to' solve them without introducing others. Let me examine some of the decisions to see if they are con- sistent with this view. Pollock, C.B., in Armani v. Cas- trique (21), says : " Inasmuch as the goods of a bankrupt all over the world are vested in his assignees, he is dis- charged by his certificate." It is evident he is here speak- ing of a bankrupt domiciled in England; for unless that were the case, it is clear that his goods in foreign countries would not be vested in his assignee. He is speaking of its vesting not by amy extra-territorial force of the Eng- lish Bankruptcy Act, but by the law of nations which would recognize the English transfer of the goods of any person domiciled in England, and that that is the way, and the only way property of any kind out of Eng- land passes under the Bankruptcy Act of 1869 is proven by what is said by Jessel, M.K., in Ex parte Rogers (22), than whom there never was* any higher authority on such a question. When the counsel in argument said the Bankruptcy Act is an Imperial statute and is binding in the colonies, His Lordship said it only passed im- movable property in the colonies according to the law of the colonies. How is it possible for this to be said, if the word property, which is the only word used in the Act and includes unquestionably both real and personal, means property in the colonies. Let us look at the words of the Act themselves; they are to be found in the 17th section, and they are simply, that the property of the bankrupt shall vest in the trustee; and it is perfectly clear the word property would include both real and personal, and that both would be (21) 14 L.J. (N. P.} Ex. 36. (!2) 13 Oh. D. 665. NEW BRUNSWICK EQUITY CASES. 209 vested in the trustee if within the territory over which the Act has; force; and therefore if the Act is to hlave intra-territorial force in Canada, it could not be denied but that both real and personal property here would so vest; but if it is to have the construction that the par- liament in passing it only intended to deal with what was the proper subject of English legislation, then it would only apply to real estate in England and the mov- able property everywhere of persons domiciled in Eng- land. I say, as was said by Lord Justice James in ~Ex parte Blain (23), it tb a proper thing for an English Legis- lature to make laws with reference to persons resident or domiciled in England; but it is impossible to imagine that they intended to legislate in reference to the pro- perty of persons domiciled in Canada. If they did, the words and reason of the Act would equally apply to real and movable property. That the Act never was intended to apply to any property, but such as could be considered constructively to be within the territory of England by reason of the owner being domiciled there, is apparent by reading sub-section 8 of section 83, which is as fol- lows: " The certificate of appointment of a trustee shall, for all purposes of any law in force in any part of the British dominions requiring registration, enrol- ment or recording of conveyances or assignments of pro- perty, be deemed a conveyance or assignment of property, and may be registered, enrolled and recorded according- ly." Now, in this Province there happen to be laws re- quiring the registration of the conveyances of real pro* perty, and also of bills of sale of personal chattels against certain persons. Now, if the local law in both these re- spects is not to govern, and the property of the bankrupt out of England was intended to pass by force of the word property, this enactment would be entirely useless, be- cause the Imperial statute would override the local law ; but if it only passed the personal property in Canada of domiciled Englishmen, as being constructively in Eng- land, this, as I have shown, would be subject to the local 1884. Nicholson v. Baibd. Palmer, J. (23) 12 Ch. D. 522. EQ. CAP.— 14 ■210 NEW BRUNSWICK EQUITY CASES. 1884. NlOHOLSOS V. BaiKd. Palmer, J. laws affecting it and render such a provision necessary to. effectuate such transfer. The result is that, in my opinion, the true construction of the English Bankruptcy Act of 1869 is, that when a person domiciled in England is declared a bankrupt there, his trustee is entitled to all his real property in England and his movable pro- perty everywhere, subject, of course, to any local laws of its situs affecting it. In the British colonies, by virtue of the Act itself, as I think, such property is fairly within the words used, and in foreign countries by the law of nations, subject to such rights as have attached to it by the law of its actual situs. With reference to the movable property of a bank- rupt not domiciled in England, but properly so adjudged there, whether alien or Canadian, I think his trustee is entitled to his real estate in England, and also his mov- ables there, except so far as the rights of persons ac- quired in the country of his domicile may be recognised by the English courts. It follows that even if James and G-orham Steeves were properly adjudicated bankrupts, the plaintiff would have no right to the property in dis- pute in this case. The only other question I propose to discuss is whether they, not being in England and not domiciled there, could by an agent file a petition of liqui- dation under the Act, and thus give the English Court jurisdiction to adjudicate them bankrupts. This ques- tion is not so important to Canadians, if I am right that no matter what is done in England, it only affects pro- perty of persons that may properly be considered the subject of English legislation. If I should be wrong, it would then become a question of paramount importance, in the view I have taken that the English parliament has not only given power, but exclusive power, to legisla- tures in Canada to make laws in relation to Canada on these subjects; and that as was said by Lord Justice James in E,r parte Blain, the broad, general and universal principle is that English legislation!, until the contrary is expressly established, is only applicable to English sub- jects or to foreigners who going into England have made themselves subject to English jurisdiction. Mark, he says, English subjects, and a Canadian is not in any NEW BRUNSWICK EQUITY CASES. 211 sense an English subject — th!at is, subject to the laws of England; nobody is that unless he is domiciled in Eng- land. That this is what he means is perfectly clear, because he afterwards says he has to consider a matter not of British but peculiarly of English legislation, because the Bankruptcy Act is confined to England and is not In force in Scotland or Ireland; but if that were not so, I •think that after the British Parliament had given exclusive power to legislate on this subject to Canada, the broad, general, and universal principle of construction must be that English legislation on that subject is not applicable to Canada unless the contrary is expressly established. The 6th section of the Act says that the persons liable to be adjudged bankrupts are debtors. It is apparent that if one person is in debt to another he is a debtor, no matter where he is or to what country he belongs ; there- fore a person in Canada or any foreign country, although he never was in England, and even although his creditor has never been in England, would come literally within the words of the statute; yet it is clear that this is not intended, and there must be some limitation to this meaning. The Act says that if a debtor allows his goods to be taken in execution it is an act of bankruptcy, and when he is adjudged a bankrupt the title of his trustee relates back to the act of bankruptcy, if not more than a year before the adjudication. Is all this to relate to Canada, and enable a Canadian, who never was in Eng- land, and without even going there, to file a petition in liquidation and thus defeat transfers of his property for a year before? It is perfectly clear that precisely the same debtor that can file a petition for liquidation can commit any other act of bankruptcy, that person being simply a debtor in both cases, whatever that may mean. See the 125th section. As Cotton, 'L. J., in Ex parte Blain, says, I say, in effect; unleSiS I put some limit on the word debtor, it will come to this, that 'a Canadian', subject to the laws of Canada, who has never been in England, and although not an alien, yet subject to foreign law, for the law of Canada is foreign as regards England, can be made a bankrupt in England because he 'has dome a certain act 1884. Nicholson v. BAIItD. Palmer, J. 212 NEW BRUNSWICK EQUITY CASES. 1884. in Canada, if the word debtor includes a domiciled Can- nicholson adian, who was not present in England when the debt bai^d. was incurred. Then the Act is clear that the act of Pal ~ i j. bankruptcy can be done in Canada, for the statute ex- pressly says that any assignment in England or else- where shall be an act of bankruptcy. The authorities are clear that such is not the case. This shows the mean- ing of the word debtor must be limited, as I have stated. I think I am authorized in saying, as was substantially said by that learned Judge; I am not dealing with a question that might arise, if an English Act of Parlia- ment had expressly said as against a Canadian, the Court should, on certain facts being proved, entertain a petition and make an adjudication. In such a case it might be my duty, acting in the execution of an Eng- lish Act of Parliament, whatever the consequences might be, and however Canadians might complain of the viola- tion of their constitution, to say, this is an Imperial sta- tute, and the question which you Canadians raise, I am bound to disregard ; but this is mot so>. All I have to do is to interpret an Act of the Imperial Parliament which has used a general 'word, debtor; and I have to say how that word is to be limited, when of necessity there must be some limitation. I think the limitation is this, that all Acts of such Parliament must be territorial in this sense, that they apply to, and bind only subjects of the Crown that come within the fair interpretation of them, and also aliens that come to the British Isles. If they be British subjects/not residents in the British Isles, it may be a question of the construction of the Act, and whether though if they had been resident in England they would have been brought within the Act, would the Act have that effect when they were not so resident; and even admitting that prima facie it might apply to tfie colonies, yet when another Act of the same Parliament remains in force granting exclusive powers to legislate on such a subject to another body, and by consequence declaring the Imperial Parliament would not legislate on that sub- ject, I think I would be doing violation to every principle of construction if I did not limit the meaning of this word so as to say that it was not intended to apply to persons JS"ICHOL=ON V. Baiud. Palm- r. J. NEW BRUNSWICK EQUITY CASES. 213 domiciled and being in Canada, and who never were in 188 J. England. Thus limited it will preserve the rights of the - people of Canada, and the good faith of the Parliament of England. It appears to me that the reasonong of L. J. Hellish in Ex parte Crispin (24), applies with equal force to this case as to that. He says: " It is obvious that some limita- tion must be put on the ' general words ' creditor ' and * debtor,' " and I think it is the usual one applied to general words in Acts of Parliament that they only apply to such matters as are the proper subject for the legislation of the body that passed the Act; in other words, properly subject to the laws of that country, and they are only understood to apply to anything else when the contrary is expressly stated, or plainly implied, and that this is so with refer- ence to the Bankruptcy Act. Therefore the word debtor in it must be construed to mean, debtor properly subject to the laws of England, and I therefore think that the Imperial Parliament did uot thereby intend that if a debtor domiciled in Canada and who has not been in England, and consequently whose status, governed by the laws of Canada ana not by the laws of England, did something that might be perfectly lawful in Canada, the effect should be that his property should be vested in a trustee in England. Yet this would be the clear effect if the word debtor is made to apply to such a domiciled Canadian who has never been in England. The moment you concede that, you must concede that the act of bank- ruptcy may be committed in Canada also, for the very first sub-section of section 6 enacts that if the debtor has in England or elsewhere made a conveyance or assign- ment of his property to a trustee or trustees for the benefit of his creditors generally, he may be adjudged a bankrupt. It follows that if this word debtor does mean a domiciled Canadian who never was in England, and who may have in Canada assigned his property for the benefit of his creditors, it would authorize any persora in England to whom he might be indebted to have him (24) L. B. 8 Cb. 374. 214 NEW BRUNSWICK EQUITY CASES. 1884. Nicholson v. Baud. Palmer, J. adjudged a bankrupt; indeed I do not see how we can stop here, for if'the word debtor means a domiciled Can- adian, then the corresponding word creditor should have the same meaning, and it would follow that a Canadian who had never been in England and had no transactions there, could be by another Canadian, his creditor, made a bankrupt in England merely because he had made an assignment in Canada for the benefit of his creditors; and the result of that is, as was contended by the "plain- tiff, that his whole property, real and personal, is im- mediately transferred to the trustee in England, and must go there to be administered, a result which to me I confess appears startling. I, for one, give my voice against such a construction. I think on principle that the English Bankruptcy Act, like any other English sta- tute, in its ' general words has no force whatever out of Great Britain, except what is accorded to it by the law of nations as resulting from the alteration of the status of persons domiciled in England, or where the matter may be fairly included as being a proper subject of English- legislation, or where it is otherwise expressly stated in plain words; and I think this is the general result of all the cases, although it is difficult to reconcile some of them with any principle; and consequently the whole of the English Bankruptcy Act of 1869, that relate to evi- dence, pleading, procedure, and applications for the bank- rupt's assets, directions to the sheriffs on seizures, have no force outside the territory of England except where otherwise expressly stated. See the Mayor, etc-, of St. John v. Lockwood(25); Clark v. MulUck(26). And any right of trustees under the English Bankruptcy Act in Canada must be enforced according to the ordinary mode of legal procedure in the Canadian Courts. And that when the Act says that the property of the bankrupt shall vest in the trustee, it means the same as if such a word was used in any other English statute relating to property; property subject to such legislation — that is, property in England or movable property elsewhere of a (25) 2 Kerr, 9. (26) 3 Moo. P. C. 252. NEW BRUNSWICK EQUITY CASES. 215 person domiciled in England : Story Con. of Laws (8th ed.) 537; In re Ewin (27), and does not extend to property of a bankrupt not domiciled in England, either real or personal, situate in Canada. The real estate so situate is governed by Canadian law. See per Jessel, M.R., in Ex parte Rogers (28), that the general words used in the. Act, debtor and property, mean such property and such debtors as are properly the subject for the English Par- liament to legislate upon, and ought not to be. applied to foreign debtors who are not present in England, whe- ther Canadian or alien, nor to property that is neither actually nor constructively in the territory of England. See Ex parte Crispin (29); Ex parte Blain (30); Selk- rig v. Davies (31) ; Wharton on Private International Law, 388 and 799. It follows that as the domicile of both James and Gorham Steeves and of the firm of Steeves Bro- thers was in Canada, and they were not in England when their petition was presented to the Bankruptcy Court, such Court had no jurisdiction to entertain' it, and its adjudication is null, and, therefore, the plaintiff's title fails; and even if I am 'wrong in .this and they were pro- perly adjudged bankrupts in England, as their domicile was in Canada and they were not in England, their pro- perty in Canada would not pass by virtue of the Bank- ruptcy Act to their trustee in England; such property could only be affected and administered by the law of its situs with reference to the title of the real estate, as the right to that unquestionably is governed by the laws of New Brunswick. I cannot see the slightest claim the plaintiff can have to it; it is true that he did in August register the certificate of his appointment, and the 8th sub-section of section 83 declares that such shall be an assignment of the property, but this I do not think ap- plies to real estate in the: colonies at all, but if it did the defendant's assignment was recorded before it. The result is that I will declare that the defendant is entitled to all the property mentioned in the trust deed, for the benefit of the cestuis que trustent therein 1884. Nicholson v. Baird. Palmer, J. (27) 1 Cr. & J. 151. (28) 16 Ch. I). 665. (29) Law Bep. 8 Ch. (30) 12 Ch. D. 422. (31) 2 Dow. 230. 374. 216 NEW BRUNSWICK EQUITY CASES. 1884. NlCHOMON V. 13AIE1). Palmer, J. mentioned ; and as this bill appears to have been properly filed, for it would not have been safe for the defendant to have distributed this property without some such declaration, and no unnecessary cost has been incurred, I think it right the costs of ail parties should be paid by the defendant out of the funds benefited by the suit. Al- though I have expended a great deal of thought and re- search in this case, and I am quite convinced that the conclusion I have come to is correct, yet the questions involved are of so much importance, I wish the plaintiff would appeal to the Supreme Court of Canada from my decision, so that these questions should be authorita- tively settled. Beside the authorities I have referred to I have in connection with the matter looked at the following au- thorities : Story's Conflict of Laws, sees. 405, 409 and 327 ; Bunny v. Hart (32) ; Oodard v. Gray (33); Schibsby v. Wes- tenholz (34); Castrique v. Imri (35); Bousillon v. Bousil- lon (36); Gilbert v. Lewis (37); Hallows v. Fernie (38); Munday v. Knight (39) ; Wharton, sees. 793 to 806 ; Pot- ter v. Brown (40); Sidaway v. Hay (41); McDonald v. Georgian Bay Lumber Co. (42) ; In re Davidson (44) ; In re Blithman (44) ; Ferguson v. Spencer (45) ; Ex parte Pascal (46) ; Bartley v. Hodges (47) ; Edwards v. Ronald (48); Brickwood v. Miller (49); Ex parte Philps (50); Ebbs v. Boulnois (51). The question as to whether the English Bankruptcy Act, 1869, applied to New Brunswick aiose in Ex parte Uliddon: In re The Maritime Bank v. Carvill, 24 N. B. 250, but was left un- determined. The difficulties of concurrent and conflicting bankruptcies were discussed in In re Artola Hermanos, 24 Q. B. D. 640, and (32) 11 Moo. P. C. 189. (33) L. E. 6 Q. B. 139. (34) L. B. 6 Q. B. 155. (35) L. K. 4 H. L. 414. (36) 14 Ch. D. 351. (37) 1 DeG. J. & S. 38. (38) Law Bep. 3 Ch. 467. (39) 3 Hare, 497. (40) 5 East, 124. (41) 3 B. & C. 12. (42) 2 Can. S. C. B. 364. (43) L. E. 15 Eq. 383. (44) L. B. 2 Eq. 23. (45) 1 M. & G. 987. (46) 1 Ch. D. 509. (47) 30 L. J. (Q. B.) 352. (48) 1 Knapp, 259. (49) 3 Mer. 279. (50) L. E. 19 Eq. 256. (51) 10 Ch. 488, NEW BRUNSWICK EQUITY CASES. 217 the rule was approved of by Coleridge, C.J., and Fry, L.J., that 188J. the movable assets of a bankrupt wherever situate should be L_ administered by the forum of the bankrupt's domicil. Fry, L.J., Nicholson said: " Turning to the second portion of the application, namely, B ,"a D that all proceedings im the English bankruptcy may be stayed, J ' I will confess the difficulty which this class of case appears to me to create. Three views with regard to what was the proper procedure of the Court seem to me to have come out during the course of the discussion of the cases. One of those views is this, that where there are concurrent bankruptcies each forum is to administer the assets locally situated within its jurisdiction, each forum of course allowing all the creditors, wherever resident, to prove, but applying the doctrine of hotchpot so as to produce, so far as may be, equality between the proofs of the various creditors. Now, no doubt, in that mode of proce- dure there are several inconveniences, especially the possibility of double or triple proofs, but it may be that those inconveni- ences are less than the inconveniences of any other course. It certainly seems to me that the decision of the House of Lords in the case of Ewing v. Orr-Ewing, 9 App. Cas. 34, tends to establish a similar principle with regard to the assets to be ad- ministered in administration actions, because in that case they asserted, if I understand the decision rightly, the jurisdiction of the forum in which the assets might be locally situate to administer those assets, although it may be that the law of the domicil may govern the mode of distribution. An- other rule which has been suggested is this, that every other forum shall yield to the forum of the domicil, that the forum of every foreign country, every country not of the domicil, shall act only as accessory aiid in aid of the forum of the domicil. That, it is said, is the forum concursus, to which all persons who are interested in the administration of the estate are bound to have recourse. No doubt there is a great deal in point of law and principle to be said in favour of that view, and there are certainly some conveniences in it. Then there is a third view, and it is this, that the forum of the country in which the debtor has assets and which first adjudicates him bankrupt, although it be not the forum of the domicil, is entitled to claim the assets from the tribunals of other countries in which he has assets. That doctrine appears to me to he an entirely unreasonable one. There is this broad difference between yielding to the forum of the domicil and yielding to the forum of the first country which happens to pronounce a man bankrupt — personal property is said to follow the person, and from that it follows that the forum of domicil has, by what lias been sometimes called a fiction of law, a right by judgment against a bankrupt to divest him of all personal property and vest it in his assignees, and by the fiction to which I hiave reference that judgment, uro- nounced by the forum of the domicil, is said to have universal validity, and to be capable of transferring personal property locally situate beyond the jurisdiction of that forum. The forum, not of the domicil, but of the country in which the debtor may have assets, has no such right to claim universal obedience to its judgment; it has no right to pronounce a judgment which will extend beyond the personal assets locally situate within its jurisdiction." " By the English Bankruptcy Act, 1883 (46 & 47 Vict. c. 52). s. 4, s.-s. 1, "A debtor commits an act of bankruptcy in each of the following cases: (a) If in England or elsewhere he makes a ronveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally; (b) If in England or 218 NEW BRUNSWICK EQUITY CASES. 1884 elsewhere lie makes a fraudulent conveyance, gift, delivery, or , transfer of his property, or of any part thereof; (c) If in England Nicholson or elsewhere he makes any conveyance or transfer of his pro- * perty or any part thereof, or creates any charge thereon which lD would under this, or any other Act, be void 7 as a fraudulent pre- ference if he were adjudged bankrupt; (g) If a creditor has obtained a final judgment against him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or com- pound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set-off or cross demand, which equals or exceeds the .amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained." By s. 6, s.-s. 1, " A creditor shall not be entitled to 1 present a bankruptcy peti- tion against a debtor unless: (d) The debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England." Upon the construction of these sections it was held in In re Pearson, Ex parte Pearson, [1892] 2 Q. B. 263, following Ex parte Blain, 12 Ch. D. 552, cited by Mr. Justice Palmer in the principal case, that the Court had no jurisdiction to allow the service abroad of a bankruptcy notice upon an American citizen residing out of the jurisdiction. Pry, L.J., in the course of his judgment in this case said: " The question turns primarily on the construction of s.-s. 1 (g) of s. 4 of the Bankruptcy Act, 1883, which provides that certain specified acts com- mitted by a ' debtor ' shall be ' acts of bankruptcy.' The argument for the appellant is that ' a debtor ' there does not mean a debtor all the world over, but that .it means only a debtor who is subject to the law of England, and that you must find such a debtor before an act of bankruptcy can be committed. In my opinion the argument is well founded, and I agree that the point was decided in Ex parte Blain, because that decision was based not on the particular words of the bankruptcy statute then In force, but upon general principles applicable to the construction of all statutes. James, L.J., said (at p. 526) : ' It appears to me that the whole question is governed by the broad, general, uni- versal principle, that English legislation, unless the contrary is expressly enacted, or so plainly implied as to make it the duty of an English Court to give effect to an English statute, is applicable only to English subjects, or to foreigners who by coming into this country, whether for a long or short time, have made themselves during that time subject to English jurisdiction.' On that general principle I can entertain no doubt that section 4 of the Act of 1883 relates only "to debtors who are subject, either by birth and] natural allegiance or by temporary residence, to the English law. Is there anything in the Act which raises a necessary implication of an intention on the part of the legis- lature to extend their legislation to the subjects of foreign coun- tries, to persons who owe no allegiance to the law of England, either temporarily or permanently? Our attention has been pro- perly called to those words in sub-section 1 (g), which have, no doubt, been introduced into this statute for the first time, and which provide for the service of a bankruptcy notice upon a NEW BRUNSWICK EQUITY CASES. 219 debtor ' in England, or by leave of the Court elsewhere.' But 1884. these words really create no difficulty, because a debtor who is ^_ permanently a subject of the English Crown, and who owes Nicholson allegiance to all its Courts of law, may be out of England, and " «■ in such a case the service of a bankruptcy notice upon him abroad could only be made by leave of the Court." A domiciled Frenchman went to England for the purposes of an action which he had commenced in the English Courts, and took furnished rooms in London. He occupied the rooms exclu- sively for three months, from March to June, living in them with his wife and servants. During the three months he paid frequent visits to France, and at the end of the three months returned there, In September of the same year a bankruptcy petition was presented .against him in the London Bankruptcy Court. It was lield -that he had had a dwelling house in Engand " within a year before the -date «f the presentation of the petition," within the meaning of the Act, and that the petition was property pre- sented against him: In re Hecquard, Ex parte Hecquard, 24 Q. B. D. 71. In In re Clark, Ex parte Beyer, Peacock & Co., [1896] 2 Q. B. 476, a bankruptcy notice was issued under the Bankruptcy Act, 1883, s. 4, s.-s. 1 (g), against a foreigner who had not ordinarily resided or had a dwelling house or place of business in England, within the preceding year, and was then abroad. The debtor subsequently going to England temporarily, he was served with the bankruptcy notice there. It was held that the issue and service of the notice were valid. By the Bankruptcy Act, 1883, s. 168, " ' Property ' includes money, goods, things in action, land, and every description of property, whether real or personal, and whether situate in Eng- land or elsewhere." Referring to this section, Rattigan, Private International Law, says, p. 93 : " An English bankruptcy would appear to carry all the real or immovable (as well as the personal or movable) property of the bankrupt in any part, at least, of the British dominions": Westlake. s. 137. In Callender v. Colonial Secretary of Lagos, [1891] A. C. 460, it was held by the Judicial Committee of the Privy Council, on appeal from! the Supreme Court of Lagos, that the English Bankruptcy Act of 1869 applies to all Her Majesty's dominions, and that an adjudication under that Act operated to vest in the trustee in bankruptcy the bank- rupt's title to real estate situated in Lagos, subject to any require- ments prescribed by local law as to the conditions necessary to effect a transfer of real estate there situated. Lord Hobhouse, in delivering the judgment of the Judicial Committee, said: " Section 4 of [the Bankruptcy Act, 1869] defines property in very general terms — ' land, and every description of property, whether real or personal.' This is the subject matter which by section, 14 is divisible among the bankrupt's creditors; by section 15 the divisible property is again described as 'all such property as may belong to, or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him during its continuance; by section 17 it is made to vest in the registrar first, and, when a trustee is appointed in the trustee; by section 19 the bankrupt is to aid in its realization to the utmost of his power; and by section 48, if he makes de- fault in giving it up, his discharge may be withheld. There are other sections in the Act, such as 73, 74, and 76, which show that it is to have operation in the whole of the British Empire But the sections relating to property do not in express terms specify property in the colonies, and those which expressly ex- tend beyond England do not in express terms specify land 220 NEW BRUNSWICK EQUITY CASES. 1 eaA " The Su P reme Court lay down the principle that an Imperial 1004. Act does not a ppiy to a colony unless it be expressly so stated Nicholson or necessarily implied ; they point out that there is no case decid- d. ing that land in a colony passes under section 17; and they dwell Baihb. on the inconvenience which would arise from conflicts of law if an English statute were to transfer land beyond the limits of the United Kingdom. On these grounds, they hold that under the word ' property ' land in Lagos does not pass. Upon this reasoning their Lordships first have to remark that there is no Question here of any conflict between English and foreign law. Lagos was not in the year 1869, and is not, a foreign country. How far the Imperial Parliament should pass laws framed to operate directly in the colonies is a question of policy, more or less delicate, according to circumstances. No doubt has been suggested that if such laws are passed they must be held valid in Colonial Courts of Law. It is true that the laws of every country must prevail with respect to the land situated there. If the laws of a colony are such as would not admit of a transfer of land by mere vesting order, or mere appointment of a trustee, questions may arise which must be settled according to the cir- cumstances of each case. Such questions are specially likely to arise in those colonies to which the Imperial Legislature has delegated the power of making laws for themselves, and in which laws have been made with reference to bankruptcy. The contrivance of statutory transfer has grown out of the older plans of conveyance by or on behalf of the bankrupt; and probably none of the Bankruptcy Acts would be held to pass land more completely than the bankrupt himself could pass it by conveyance. But the general law of Lagos is English law, and it does not appear that in 1877 there had been, or indeed that there ever had been, any local legislation which would prevent land being transferred in Lagos as freely as it may be in Eng- land. The only question that has been argued in this case with respect to the transfer of title is the question whether the Act of 1869 is calculated to transfer title to colonial land; and with that question conflicts between British and foreign law have nothing to do. Nor do' the learned Judges take notice that, if there is any difficulty in effecting a, transfer of land not in Eng- land, it must arise and be dealt with under those Bankruptcy Acts which indisputably purport to transfer land elsewhere. If a consideration of the scope and object of a statute leads to the conclusion that the legislature intended to affect a colony and the words used are calculated to have that effect, they should be so construed. It has been pointed out above that some sections of the statute clearly bind the colonies, in words which do not necessarily, but which may, . apply, to land-- But the policy of the legislature" is clearly shown by reference to other statutes. By the Bankruptcy Act of 1849 (12 & 13 Vict. c. 106), s. 142, all lands of the bankrupt ' in England, Scotland, Ireland, or in any of the dominions, plantations, or colonies belonging to Her Majesty, are to vest in his assignees.' By the BanVrnwv Act of 1883 (46 & 47 Vict. c. 52), s. 168, the property which is passed to the trustee includes ' land, whether situate in England or elsewhere.' The Scotch Act of Bankruptcy, passed in 1856 (19 & 20 Vict. c. 72), s. 102, vests in the trustee the bankrupt's ' real estate situate in England, Ireland, or in any of Her Majesty's dominions.' The Irish Act of Bankruptcy, passed in 1857 (20 & 21 Vict. c. 60), s. 268, vests in the bankrupt's assignees all his land ' wheresoever situate.' No- reason can be assigned why the English Act of 1869 should be governed by a different policy from that which was directly expressed in the Scotch and Irish Acts, and in the English Acts immediately preceding and immediately NEW BRUNSWICK EQUITY CASES. 221 succeeding. It is a much more reasonable conclusion that the framers of the Act considered that in using general terms they . were applying their law wherever the Imperial Parliament had power to apply it; and their Lordships hold that there is no good reason why the literal construction of the words should be cut down so as to make them inapplicable to a colony. " It is true that no judicial decision to this effect can be found. But it has been the prevailing opinion among lawyers. This may be illustrated by a dictum of Sir George Je3sel in the case of Ex parte Rogers, 16 Ch. D. 666. It was pointed out that the law of Ceylon required registration to pass land, and the learned Judge observed, speaking of the Act of 1869, ' It only passes immovable property in the colonies, according to the law of the colonies.' This is not a decision, but it shows the impres- sion of ,a very learned and accurate lawyer, that the Act of 1869 did affect land in the colonies. The same opinion is given in Mr. Justice Vaughan Williams's Treatise on Bankruptcy. Ini the last edition (5th), p. 181, it is said: ' The Act of 1869 contained no express provision asi to [the locality of] real property, but did not seem to be intended to alter the law.' No opinion to the contrary has been brought to their Lordships' attention except the decision under appeal." 1884. KlCHOLSON V, Baiud. TRUSTEES OF CALVIN CHURCH v. LOGAN. Act of incorporation — Construction — Compliance with requirements of Act — Suit in corporate name — Failure to prove incorporation. By Act 22 Vict. c. 6, entitled, An Act for incorporating the Synod of the Church known as the Presbyterian Church of New Bj-umwick and the several congregations connected therewith, it ia recited that the Pres- byterian Church of New Brunswick, constituted of several congre- gations of Christians holding the Westminster Confession of Paitb, ,is under the ecclesiastical control of a governing body composed of ministers and elders of the church, and known as the Synod of the Presbyterian Church of New Brunswick, and that the said church desire an Act of Incorporation to enable the said Synod to hold and manage lands and property for ecclesiastical purposes, and also to enable the respective congregations in connection with the said church to hold lands for grave yards, the erection of churches, and other congregational purposes. Section 1 enacts the incorporation of the Synod, and s. 2 enacts that the first meeting of the Synod shall be held at a certain date, when it shall be deemed organized as a cor- poration. Section 3 enacts that the trustees of the several and respect- ive congregations so in connection with the Faid Synod, and their suc- cessors, shall be for ever a body politic and corporate in deed and name, and shall have succession for ever, by the name of the said several respective churches ; and by that name shall be entitled to sue and be sued, implead and be impleaded, answer and be answered unto, in all courts, and shall have full power and capacity to pur- chase, receive, take, hold and enjoy goods and chattels, lands, tene- ments and hereditaments, and improve, sell, assign, and dispose thereof, and to have a common seal, with power to break, alter or renew the same at pleasure. By s. 4 it is directed that on the first Wednesday in July in each year a meeting of the congregation 1884. June 8. 222 NEW BRUNSWICK EQUITY CASES. 1 qqa shall be held in each of the churches for the purpose of electing ' ' J J trustees. Section 5 enacts that when any congregation in connection Trustees of with the Synod shall elect trustees under the provisions of the Act Calvin the trustees as a corporation shall be known and recognized by the Church name of the trustees of such named church owned by said congrega- Logan. *i° n ' au ^ tnat tne name by which the church is known, and by — ' which the corporation is recognized, shall be enrolled in a book in Allen, C.J. which the proceedings of the congregation and of the trustees shall be recorded ; and that the trustees of the respective churches, when so named and enrolled, shall, when elected, chosen and appointed in manner and form as in the Act directed, be bodies politic and cor- porate in deed and name, and shall have succession for ever, by the name of the trustees of the so named church by which they are respectively elected. The Synod held a meeting in pursuance of s. 2, at which and subsequent meetings the minister and elder of Calvin church, in the city of St. John, were present, but no meeting of the congregation of Calvin church under ss. 4 and 5, and complying with their provisions, was held. In a suit by the trustees of Calvin church they alleged their incorporation under the above Act. Held, that s. 3 was to be read with ss. 4 and 5, and that the plaintiffs were not incorporated in the absence of compliance with the require- ments of ss. 4 and 5, and that the suit should be dismissed. The facts fully appear in the judgment of the Court. •J. Travis, for the plaintiffs. C N. Skinner, Q.O., for the defendants. 1SSL June 6. Allen, O.J.:— The bill in this case was filed for the purpose of de- claring void two deeds. The first, a deed of conveyance in trust from the defendants Logan and Bowes to the other defendants Stewart, Finley, Tufts, and McLaugh- lin, dated the 1st August, 1873 ; and the other, a deed of mortgage of the same date from the defendants Stewart, Finley, Tufts, and McLaughlin to the defendant Logan, to secure the payment of $6,000 with interest in five years from date. Also, for an injunction to restrain the defen- dant Logan from proceeding to a suit brought to fore- close the said mortgage. The bill states that previous to April, 1871, the defendants had in hands a sum of money belonging to a congregation of Christians in St. John called Calvin Church, and on the 25th April in that year they purchased, by direction of the said congregation, a lot of land in St. John to build a church upon for the sum of $4,000, and paid for it out of money in their hands belonging to the con- gregation; that the conveyance of the land was made NEW BRUNSWICK EQUITY CASES. 223 -to the defendants Logan and Bowes, and that they held it as trustees for the said congregation, and not other- wise. That they built a church thereon, which was completed in the year 1873, and has since been occu- pied by the congregation as a place of worship. That the congregation borrowed the sum of $4,000 from one James Taylor, the payment of which was secured by a mortgage on the land given by the defendants Logan and Bowes, dated the 1st January, 1873, and payable with interest in five years; and that afterwards, the con- gregation being indebted to one Wm. Causey in the sum of $2,976, the defendants Logan and Bowes on the 1st May, 1873, gave him a mortgage upon the same land to secure the payment of that sum in three years from that date. That in or about the month of April, 1871, before the purchase of the lot of land before mentioned, and after the burning of a church belonging to the congrega- tion which had stood upon another lot of land, at a meet- ing of the congregation held to consider the rebuilding of the church, the defendants opposed the building of it on the site where the church had been burnt, and in order to induce the congregation to build a church on another lot of land which was proposed to be purchased, the de- fendants represented that the church would not cost more than $ 15,000, and when completed would not be in debt more than the old church was, viz., about $4,400, and by these representations and pledges induced the congrega- tion to consent to build the church on the new site. That the defendants, as the building committee for the con- gregation, proceeded to build the church on the land so purchased, with the money in their hands belonging to the congregation, and with money subscribed by the members of the congregation and others; and when the church was completed, in 1873, the defendants claimed that they had expended in building it considerably more than they had received for the purpose, and more than the sum of $15,000.. That on the 1st August, 1873, the defendants Logan and Bowes conveyed to the other defendants, Stewart, Fin ley, Tufts and McLaughlin, the land on which the 1884. TliUSTEBS OP Calvin Church v. Logan. Allen, C.J 224 NEW BRUNSWICK EQUITY CASES. 1884. Trustees op Calvin Church v. Logan. Allen, C.J. church was built, to hold on certain trusts, the deed reciting that Logan, Stewart, Finley, Tuifts and Mc- Laughlin were the building committee for the erection of the church, and that they had expended of their own funds $6,000 over and above the amount they had re- ceived, which sum it had been agreed should be secured to them upon the land on which the church was built; that Calvin Church had elected the defendants Stewart, Finley, Tufts and ' McLaughlin to be trustees of the church for the purpose of executing and delivering to the defendant Logan a mortgage of the said land for his own benefit, and for the benefit of other persons who had advanced money towards building the church, to secure the payment of $6,000 and interest in seven years from the date ; and on payment of that sum, to hold the property, subject to the previous mortgages to Taylor and Causey, for the use and benefit of Calvin Church. That the defendants Stewart, Finley, Tufts and Mc- Laughlin immediately reconveyed the property to the defendant Logan, by way of mortgage, to secure the pay- ment of the sum of f 6,000 and interest in seven years from that date. That Logan had commenced a suit against the other defendants Stewart, Finley, Tufts and McLaughlin, to foreclose the said mortgage. That the parties to that suit were all acting together with a de- sign to have the property sold, and to deprive the plain- tiffs, as trustees of Calvin Church, of all interest therein. That the conveyance by the defendants Logan and Bowes to the other defendants was in violation of the rights of the congregation of Calvin Church, and without their knowledge and consent ; that the statement in such deed that Calvin Church had elected the defendants Stewart, Finley, etc., to be the trustees of the church for the purposes therein set forth was wholly untrue; that the said parties were not authorized by Calvin Church or the congregation to expend any of their pri- vate funds, unless it was given as a donation; that seve- ral of the defendants subscribed sums of money and pro- mised to give the same towards building the church, which was part of the amount of the $6,000 stated in the NEW BRUNSWICK EQUITY CASES. 220 deed to have been expended thereon; and that the execu- tion of the said deed was a gross violation of trust by the defendants Logan and Bowes. Also, that the deed of mortgage by the .defendants Stewart, Pinley, Tufts and McLaughlin to Logan was a breach of trust by the parties thereto, and in violation of the rights of Calvin church and the members thereof. That in June, 1875, the defendants issued a circular in which they claimed that the church had cost $30,000, and when finished was in debt $15,000, which was reduced by subsequent sub- scriptions of between $6,000 and $8,000, including a sub- scription by the defendant Logan of $2,000, of Stewart $1,000, of Tufts $500, of Finley $100, and of McLaughlin $100, which said sums subscribed were wholly unpaid. That the congregation of Calvin Church organized itself into a church, and became incorporated under the Act 22 Vict. c. 6, " An Act for incorporating the Synod of the Church known as the Presbyterian Church of New Brunswick, and the several congregations con- nected therewith " ; and that after the passing of the Act 38 Vict. c. 99, respecting the union of certain Presby- terian Churches, the congregation of Calvin Church elected trustees from the said church pursuant to the provisions of the said Act, and that the plaintiffs were duly elected such trustees. The bill prayed that the deed from the defendants Logan and Bowes to the other defendants dated the 1st August, 1872, and the mortgage from 1 the defendants Stewart and others to the defendant Logan of the same date, should be declared fraudulent and void, and the rights of all parties be declared; and that the defendant Logan should be restrained by injunction from proceed- ing with the suit brought by him against the other de- fendants to foreclose the said mortgage. The bill was taken pro confesso against the defen- dant Bowes; the answer of the other defendants denied, inter alia, that previous to April, 1871, they bad in their hands any money belonging to Calvin Church, ex- cept about $50 ; that previous to that time the congrega- tion erected a church on a lot of land on Hazen street, EQ. CAS.— 15 1884. Trustms of Calvin Church v. Lugax. Allen, C J 226 NEW BRUNSWICK EQUITY CASES. 1884. in St. John, which church was burnt on the 2nd April ' teustkes of * n * nat y ear ! that it was insured to the amount of f 4,400 CHtmcH for the benefit of one John Taylor, who held a mortgage logan. on the property for the amount; that the insurance was jyieuTc.j. paid to Taylor in satisfaction of his mortgage, and that he afterwards gave it over to the finance committee of the congregation for the purpose of being used in the erection of a new church for the congregation, or to pro- cure a site therefor — the amount to be secured to him (Taylor) by a new mortgage on the property; and that this money was expended by the defendants Logan and Bowes in purchasing the lot of land on Wellington Row, on which the new church was built, and the repayment thereof secured to Taylor by a mortgage dated 1st Janu- ary, 1873, as stated in the plaintiff's bill; that they did not, or any of them, in order to induce the members of the congregation to assent to building the church on the new site, make any such representation as was alleged about the cost of the new church, or that it would not, when completed, be more in debt than the old church; that the deeds from the defendants Logan and Bowes to the other defendants, dated the 1st Au- gust, 1873, and the mortgage from the defendant Stew- art and others to Logan, were not given without the consent of the congregation of Calvin Church, or were a breach of trust, and in violation of the rights of the congregation, alleging that such deeds were given solely for the purpose of obtaining money to complete the church, and in carrying out the defendants' duties as trustees of the church and congregation; and that the borrowing of the sum of f 6,000 for the completion of the church was approved of by the congregation; that they had not issued the circular in June, 1875, in which it was stated that the church had cost $30,000 (as alleged in the 14th paragraph of the bill), but admitted that such circular was signed by Dr. Maclise, the pastor of the church at the time, and by the defendant Logan as an elder of the church. They also stated that the several amounts stated to have been subscribed by them were promised on the understanding that a sufficient sum should be subscribed to pay off tb<* <»utire debt of the NEW BRUNSWICK EQUITY CASES. 227 church. That Calvin Church was organized on the 24th 1884. September, 1855, and that after that trustees, or a fin- Trdstkes ot ance committee, were elected by the congregation from church time to time. That before the passing of the Act 22 Lo ^ N Vict. c. 6, the governing body of the Presbyterian Church Alle ^j j in New Brunswick was composed of the ministers and elders of the several Presbyterian churches, and that such governing body was known as the Synod of the Presbyterian Church of New Brunswick, and that such synod was organized as a corporation in June, 1859, under the said Act 22 Vict. c. 6; and that Calvin Church was one of the churches or congregations of Christians mentioned in that Act as not being in connection with the Presbyterian bodies in Great Britain and Ireland ; and that it sent representatives from time to time to the synod, and was one of the churches or congrega- tions holding the Westminster Confession of Faith which formed the Presbyterian Church in New Brunswick. That before and since the passing of that Act, when the said synod held its session, it was usually attended by the minister and one of the elders of Calvin Church, and that since the passing of the Act Calvin Church had been represented at the synod by its successive ministers and elders, down to the last session of the synod; that Calvin Church, or its congregation, was not one of the churches and congregations which was organized into a church under the jurisdiction of the Presbyterian Church of New Brunswick, or that it became incor- porated under the name of the Trustees of Calvin Church under the Act 22 Vict c. 6, or under the Act 38 'Viet. c. 99, or otherwise; and they claimed and alleged that the plaintiffs were not a corporation and had no right to bring this suit. The plaintiffs having filed a replication, a large amount of evidence was taken before a barrister, ex- tending over a period of eighteen months, in which the conduct of the defendants, the correctness of their ac- counts, and their statements as to the amount of the debt due on the church, were impugned. I have care- fully examined this evidence, but I do not consider it 228 NEW BRUNSWICK EQUITY CASES. 1884. Trustees op Calvin Chubch v. Logan. Allen, C.J. necessary to refer to it particularly for the decision of the questions on which, 1 think, this suit must depend. One of the questions argued before me was, whe- ther Calvin Church was incorporated under the Act 22 Vict. c. 6, or the Act 38 Vict. c. 99. The first of these Acts recites that, " Whereas seve- ral congregation® of Christians in New Brunswick, hold- ing the Westminster Confession of Faith as their rule of doctrine, ais the same was sanctioned by the General Assembly of the Church of Scotland in 1647, . . . which said congregations are not in connection with the Presbyterian bodies in Great Britain and Ireland, or elsewhere, have united together and organized them- selves into a church, under the designiaitiioni of ' The Pres- byterian Church of New Brunswick,' under the ecclesi- astical control of a governing body composed of min- isters and elders of the said church, and known as the Synod of the Presbyterian) Church of New Brunswick; and it is the desire of the said church to 1 obtain an Act of incorporation to enable the said synod to hold and manage lands and property for ecclesiastical and educa- tional purposes, and also to enable the respective con- gregations, in connection with the said church, to hold land for graveyards, the erection of churches, and other congregational purposes," enacts that a number of per- sons named, then constituting the synod of the church known as the Presbyterian Church of New Brunswick, their associates and successors, should by that name be a body politic and corporate, and have succession for- ever, with all the general powers incident to corpora- tions by the laws of this Province. The second section fixes the time for holding the first meeting of the synod, and declares that the synod shall then be deemed organized as a corporation. The third section declares that " the trustees of the several and respective congregations so in connection with the synod aforesaid, and their successors to be chosen and appointed in manner hereinafter mentioned, shall be forever a body politic and corporate in deed and name, and shall have succession forever, by the name of the said several respective churches to be specially NEW BRUNSWICK EQUITY CASES. 229 named as hereafter directed." It then gives such cor- porations the usual powers to sue and be sued, to hold and sell property, real and personal, with various other powers not material in the present case. I will refer to the fourth and fifth sections presently. The object of the Act 22 Vict. c. 6 wais twofold : First, to incorporate the. Synod of the Presbyterian Church; and, second, to enable the congregations of the several churches in connection with the synod to become incor- porated, in order that each of the said churches might hold and manage the property belonging to them respec- tively. The incorporation of the synod under the second section of the Act would not in any way operate as an incorporation of any of the congregations in connection with the synod, under the subsequent sections of the Act. If the congregation of Calvin Church was incor- porated under the Act, it must have been so ipso facto by virtue of the third section: If that was the only sec- tion bearing on the question, I would probably conclude that the trustees of the church in connection with the synod at the time the Act passed might exercise the corporate powers stated in the section, before any elec- tion of successors, if it was shown that they had ac- cepted the charter; but I think the fourth and fifth sections of the Act show that the Legislature did not intend to incorporate any of the congregations men- tioned in section 3 until they had elected trustees, and complied with the other directions of the Act. The Act was passed on the 21st March, 1859, and directed in section 2 that the first meeting for the pur- pose of organizing the synod as a corporation should be held on the third Wednesday in June, then next. This meeting was held, and the synod thereby became incor- porated. But the incorporation of the several congrega- tions in connection with the synod was to be a distinct proceeding, independent of the incorporation of the synod; and for the purpose of incorporating these several congregations, the fourth section of the Act directed that an annual meeting should be held on the first Wed- nesday in July for the purpose of electing trustees (i.e., 1884. Trustees op Calvin Ohuuch v. Logan. Allen, C'.J. 230 NEW BRUNSWICK EQUITY CASES. 1884. Trustees of Calvin Church v. Logan. Allen, C.J. the " successors " of the trustees mentioned in the be- ginning of section 3), who, as well as the electors, were to be possessed of certain specified qualifications. The fifth section enacts, inter alia, that when any congregation in connection with the synod shall elect trustees under the provisions of the Act (i.e., in the manner directed by section '4), the trustees, as a cor- poration, shall be known and recognized by the name of the trustees of such named church owned by such con gregation; and that the name by which the church is known, and by which the corporation is recognized, shall be enrolled in a book in which the proceedings of the congregation and of the trustees shall be recorded; and that the trustees of the churches, when so named, and properly enrolled as directed, " shall, when elected, chosen, and appointed in manner and form as in this Act directed, be bodies politic and corporate in deed and name as aforesaid respectively, and shall have succession forever by the name of the trustees of the ^o named church by which tihey are respectively elected." It will be observed that this section does not contaiD the usual words used in Acts of incorporation, viz. : that the corporation shall have a common seal, and be enabled to sue and be sued, and to purchase and hold property, etc. ; but the reason for this, I think, is obvious, the third section had already given those powers to the corpora- tion when it was created " in the manner thereinafter mentioned." Looking at all the sections of the Act, I think it was not the intention of the Legislature to incorporate any of the congregations in connection with the Presbyte- rian Church in this Province, unless they complied with the directions in the fourth and fifth sections of the Act. The words of the latter section are very distinct, that when trustees are elected and appointed in the manner and form directed by the Act, they shall be corporate bodies; in other words, that those formalities were necessary to show that the congregations of any of the churches mentioned'in the preamble of the Act intended to accept the charter. NEW BRUNSWICK EQUITY CASES. 231 The mere grant of a charter is not sufficient to create a corporation ; it is necessary that it should be accepted in order to give it full force and effect; for persons can- not be incorporated without their consent. See Angell and Ames' Corp. 67. Now, there is no evidence that any meeting of the qualified members of the congregation of Calvin Church was ever held for the purposes declared in the fourth section of the Act, or that any enrolment of the cor- porate name was made in a book as directed by the fifth section, or that the congregation ever met to consult and deliberate together on the question of incorporation. No doubt Calvin Church formed part of the Presby- tery of St. John, and was represented at the meetings of the synod both before and after the incorporation of the synod ; but that does not prove that the congregation of the church itself was incorporated under the Act. Neither do I see that the Act 38 Vict. c. 99, respecting the union of certain Presbyterian Churches, shows that Calvin Church was incorporated under the Act 22 Vict. c. 6, by the name of the plaintiffis in this suit; and even if there was anything in the Act 38 Vict. c. 99, which would admit of such a construction, there is no evidence of the union of the churches under that Act, such as the eighth section requires. In addition to these difficulties in the way of hold- ing that the church was incorporated, the Act 35 Vict. c. 70, passed in April, 1872, authorizing Eobert Finley, Thomas Kankine and Alexander Stewart, the surviving grantees of the lot of land on Hazen street, on which the first Calvin Church stood, to sell the same and pay the proceeds to the trustees for the time being of the pre- sent church, shows that the congregation of the church at that time did not consider that they had been incor- porated under the 22 Vict. c. 6, 'for if they had been so in- corporated, the title to the Hazen street lot would have been vested in the corporation by the express words of the fifth section of the 22nd Vict. c. 6, which declares that " all lands, etc., owned by, or which may hereafter be conveyed to and for the benefit of any of the said several congregations, shall be and they are hereby declared to 1884. Trustees of Calvin Chuuch v. Logan. Allen, C.J. 232 NEW BRUNSWICK EQUITY CASES. 1884. Trustees or Calvin Chuech v. Logan. Allen, C.J. be vested fully and absolutely for the uses and purposes of such congregations aforesaid, in their said 1 several and respective congregations." It appears by the recital of the Hazen street lot, as stated in the preamble of the Act 35 Vict. c. 70, that the grantees in that deed held the lot in trust for the benefit of Calvin Church', so that if the congregation of that church had become incorporated under the Act '22 Vict, c 6,i the title to that land would have vested in such corpora- tion, and they would have had the right, in their cor- porate capacity, to sell it, under the powers given by the third section of the 22nd Vict. c. 6, and the Act 35 Vict. c. 70, would have been unnecessary. For these reasons, I have come to the conclusion that there is nothing to show that the congregation of Calvin Church was in- corporated under the Act 22 Vict. c. 6, or otherwise. It was contended, however, that even if the church was not incorporated, the defendants were not entitled to avail themselves of the objection on the hearing of this case ; and that the plaintiffs are, at all events, trus- tees de facto- As to the first of these objections, it seems to me that as the bill alleges that the congregation of Calvin Church was incorporated by the name used as the plaintiffs in this suit, and defendants have been in- terrogated as to such incorporation, and have denied it by their answer, there is a distinct issue on that point, the affirmative of which is in the plaintiffs, and unless they prove it, the action cannot be sustained. As to the second objection, that the plaintiffs are at all events trustees de facto, I do not see how that principle is ap- plicable where a suit is brought in the name of a cor- poration, which either does, or does not, exist. If the suit was brought in the names of several persons, claim- ing to be the trustees of the church, the principle of de facto trustees might apply. My view is, therefore, adverse to the right to maintain this suit. But whether there is such a corporation as " The Trustees of Calvin Church " or not, if the defendants, acting as trustees for the congregation, have misapplied the funds which came into their hands, and are attempt- ing by means of conveyances wrongfully to alienate or NEW BRUNSWICK EQUITY CASES. 233 encumber the property belonging to the congregation, any member of that congregation complaining of the defendants' conduct in that respect would have a right, on behalf of themselves and others, to institute a suit for the protection of the property, and to have the trusts declared. This suit, however, is not so brought, and probably it ought to stand or fall by the title of the plaintiffs. It would be a misfortune, however, after all the expense that has been incurred in this suit, that it should turn on such a point as that, and leave the sub- stantial matter in dispute undetermined, and I think it is for the interest of all parties that it should not do so. The substantial question in dispute is the right of defendants Stewart, Finley, Tufts and McLaughlin, to convey the church and the land on which it stands to the other defendant Logan, to secure a debt of $6,000 due William Logan for money lent by him to the defen- dants from time to time, and expended in building the church, as is alleged; and in this is involved several other questions upon which a great deal of evidence was given before the barristers, namely, 1st. Whether the defendants wilfully misrepresented the cost of building the new church, and thereby induced the other members of the congregation to agree to the site on Wellington Eow. 2nd. Whether the defendants had collected money for the purposes of the church, which they had not ac- counted for. 3rd. Whether they had made false en- tries in the books of receipts and payments of account of the church. 4th. Whether the amounts promised to be paid by the defendants respectively at the meeting on the 31st July, 1874, were made conditionally on the amount subscribed being sufficient to pay off the whole debt of the church. As to the first of these questions. There certainly is evidence that, at a meeting of the congregation held soon after the church on Hazen street was burnt, when the question of changing the" site was discussed, some of the defendants stated that whatever the difference of cost would be between building on the old and on the new site, the finance committee of the church (of which the defendants were members) would undertake to raise 1884. Trustees of Cai/viN Chdkch V. Logan. AllenTc.J. 234 NEW BRUNSWICK EQUITY CASES. 1884. outside of the congregation. The estimated cost of the tbubtbbs of church was said to have been stated to be $14,000 or ootboh $15,000. One witness stated that the defendant Tufts logIn. sa id at the meeting, that if the congregation would raise AiienTc.j. $6,000, the finance committee would undertake to raise the balance necessary to build the church; but another witness says> that what was said by Tufts was that if the congregation would raise a certain amount (the witness 1 could not recollect how much) he (Tufts) would try to raise the balance outside of the con- gregation. These statements are denied by several of the defendants, some of whom say that no represen- tation as to what the church would cost was made in their hearing, and that no such inducements as the wit- nesses stated were held out by them in favour of the change of site. It appeared that at a meeting of the congregation held on the 17th April, 1871, to reconsider a resolution passed on the 6th of the month selecting the site on Wellington Row, the secretary laid before the meeting a comparative estimate of actual difference in cost of constructing the church on the old and the new site, by which it appeared that to build on the latter would require $1,650 more than to build on the former; and this difference, he was instructed by the finance committee to say, would not be collected from the con- gregation, as they (the finance committee) would devise means outside the church for its liquidation. This was probably the foundation of the alleged representation by the defendants as to the relative cost of building on the different sites. The statements were made more than eight years before the witnesses gave their evi- dence, and they may easily have been mistaken, or have forgotten what was said by the defendants. It does not appear that there was much difference of opinion among the members of the congregation whe- ther the new church should be of wood or brick; it was determined the day after the fire that it should be of brick; and the principal discussion was whether they should rebuild on the old site, or purchase a lot else- where for the purpose, and the decision was that the NEW BRUNSWICK EQUITY CASES. 235 site should be changed; and on the 17th April, the con- 1884. gregation, by a large majority, affirmed that decision. trustees of Previous to the meeting on the 17th April, a com- ^uncn mittee had been appointed to procure estimates of the logan. probable cost of building the church on the site selected, A „~ c .j. and they reported several estimates varying from $8,450 (which, however, did not include the whole cost) to $18,- 000. These estimates were evidently somewhat vague and were unreliable, for one of them stated the probable cost to be from $12,000 to $18,000— a reasonably wide margin. If, therefore, any of the defendants stated at the meeting that the church would not cost over $15,000, it must have been a mere matter of opinion — scarcely more than guess work — because, at that time, they had no such reliable estimate of the cost as would justify them in limiting the amount to $15,000; and, at all events, their statements were too vague and indefinite to be binding on anybody, and were incapable of being enforced, and could not properly amount to what some of the witnesses called a guarantee that the church should not cost over $15,000. I do not think the evidence shows that the defen- dants, or any of them, wilfully misrepresented the cost of building the church; but I think they were to blame in not calling a meeting of the congregation when they received the tenders for the building, and submitting them, with a statement of the finances of the church for the consideration of the congregation before entering into the contract. It probably would have saved trouble if they had done so. Though I cannot suppose that the members of the congregation were ignorant of the price for which the committee had agreed, many of them, doubtless, were ignorant of the state of the finances at the time, and what the prospect was of raising money by subscription. With respect to the statement made by the secre- tary at the meeting of the 17th April, that it would cost $1,650 more to build the church on the new site than on the old one, this difference was probably caused by the fact that the new site being a corner lot, the church would require more expensive work and ornamentation 236 NEW BRUNSWICK EQUITY CASES. 1884. Trustees of Calvin Chuhoh v. Logan. Allen, C.J. than a church on the old site, where only the end would be seen from the street. But whatever may have been the reason for the increased cost, I think the evidence shows that the committee did raise outside of the con- gregation funds sufficient to meet the estimated increas- ed expense of $1,650. I do not think it necessary for the purpose of de- ciding as to the validity of the mortgage to the defend- ant Logan, that I should go into an examination of the evidence of the amount of money received by the defen- dants, or the state of their books. Some of the evidence on these matters does not appear to be very satisfactory, and it may at a future time be necessary to examine it. I will, therefore, pass on to the other question, viz., whether the amounts which the defendants respectively promised at the meeting in July, 1874, to give towards paying off the debt on the church, were promised on con- dition that a sufficient amount should be subscribed to extinguish the debt on the church. Whatever the defendants, or any of them, may have intended, there is no evidence that at the time they re- spectively stated, in answer to the question what amount they would give, they attached any condition whatever to their promises, or that anything of the kind was said during the meeting. If they intended their promises to be conditional, I think it was due to the other persons pre- sent who offered to contribute, and many (perhaps most) of whom were called upon by some of the defendants to pay, and did pay their contributions in full, that they should have been told the conditions on which the de- fendants had promised to contribute, so that those per- sons might also exercise their judgment as to whether tbey would pay or not, when the defendants had objected to pay their subscriptions. Many of the persons present were doubtless influenced in the amounts of their sub- scriptions by the liberal sums promised by the defend- ants ; but if the promises of the latter are to be treated as conditional only, while those of the former were to be absolute, it is evident that they would not be fairly dealt with in the matter. The cards which were circu- lated among the people at the meeting for their signa : NEW BRUNSWICK EQUITY CASES. 237 Calvin Chueoh Logan. Allen, C.J. tures, in order to create binding obligations to pay the 1884. amount, as was, no doubt, expected, show that it was Tkdstees not intended to be generally known that any of the sub- scriptions were to be conditional only, and not to be binding unless the whole amount of the debt was sub- scribed. They are in the form of promissory notes, thus, " St. John, N.B., 1st August, 1874. " months after date I promise to pay to the order of the treasurer of Calvin Church dollars towards the liquidation 1 of its debt." It does not appear that either of the defendants signed one of these notes; but if they did not, it seems to me they did not act quite fairly towards those who did sign them, when they intended to hold them bound to pay the amounts stated in their notes, while they themselves claimed the right to refuse payment of the amounts which they had promised, because a sufficient sum was not subscribed to pay the whole debt. No doubt there is no legal obligation to pay money subscribed under the circumstances referred to; but there is a moral obligation on those whose conduct may have induced others to subscribe and pay their money, that they should not avail themselves of any secret re- servation, and thereby put themselves in a more advan- tageous position with regard to their payments than other persons; and it may be advisable for them to con- sider whether they should still claim that right. I will now consider the question directly involved in this suit, viz., Whether the defendants, John Logan and Archibald G. Bowes had a right to convey the land on which the church stands to the other defendants, Alexander Stewart, James Tufts, William Finley and Robert McLaughlin, by the deed dated 1st August, 1873, and whether the said Stewart, Tufts, Pinley and Mc- Laughlin had a right to re-convey the same property by way of mortgage to the defendant Logan to secure the payment to him of $6,000? Both deeds are in reality one transaction — a mortgage of the trust property. 238 NEW BRUNSWICK EQUITY CASES. 1884. Trustees of Caltin Church v. LORiN. Allen, C.J. Though the deed from Mrs. Smith to the defendants Logan and Bowes, dated 25th April, 1871, of the land on which the church stands, does not state that they held it in trust for the church, they did so in fact, and it is so expressly stated in their deed to the defendants Stewart and others, dated the 1st August, 1873. This last mentioned deed also recites, inter alia, that the de- fendants (except Bowes), with others, were the building committee of Calvin Church, and had expended of their private funds in building the church the sum of $6,000, over and above the moneys supplied to them on account of the church, which sum, it had been agreed, should be secured to them upon this property; that Calvin Church had elected the defendants Stewart, Tufts, Finley and McLaughlin to be trustees of the church for the purpose of executing and delivering to the defendant Logan a mortgage of the church and land for his own benefit, and for the benefit of other persons who had advanced money towards building the chui-ch, to secure the pay- ment of $6,000, with interest, in seven years from the date of the deed. Now, there is not a particle of evidence that the members of the congregation of Calvin Church — the real owners of the property — ever agreed that any such security should be given to the defendants, or that they were ever elected to be trustees for the congregation for any such purpose ; or that the congregation ever author- ized the defendants to borrow any money to be .used in the erection of the church. The congregation appointed a building committee on the 6th April, 1871, of which the defendants were members, and a committee to solicit subscriptions to- wards the erection of the new church ; but, with the ex- ception of the meeting on the 17th April, when the site for the church was decided on, the congregation does not appear to have been consulted about anything. The building committee seem to have thought that they had unlimited power to manage everything as they thought fit; and it was not until the 28th May, 1873, up- wards of nine months after the church was dedicated, that any other meeting of the congregation was held, so Allen, C.J. NEW BRUNSWICK EQUITY CASES. 239 far as the minutes show. That meeting was called to 1884. rescind the report of the building committee, who re- TBUSTEE8 0J? ported the total cost of the church and land; the mort- ^™ H gages to Taylor and Causey; that $6,000 had been Lo ^ N borrowed from William Logan, for which the finance committee had given their note; that about $1,000 had been borrowed from the defendant McLaughlin, and that there were a few other outstanding debts, amounting probably to |1,000. The building committee was then discharged and their report ordered to be filed. No ac- tion was taken upon it, and no intimation given of any intention to mortgage the property to pay off this $6,000, nor any request that the congregation should authorize such a security to be given. The recital in the deed that Calvin Church had elected the defendants Stewart, Fin- ley, Tufts and McLaughlin to be trustees for the pur- pose of executing the mortgage to the defendant Logan to secure the payment of the $6,000 is, therefore, entirely untrue. The effect of the two deeds of August, 1873, is to convey the trust property to the defendant Logan to pay a debt for which he and the other defendants were per- sonally liable, and which they had contracted without any authority from the congregation of the church for whose use the defendants Logan and Bowes held the property in trust — a mode of dealing with trust property which ought not to be sanctioned. It was not disputed that the defendants had expend- ed the $6,000 in building the church; but it was con- tended that if they had paid the amounts which they respectively promised to pay, and had faithfully ac- counted for all the moneys which they had received on account of the church, they would have had sufficient funds without borrowing that amount. But, admitting that it was necessary for the defendants to borrow the money, the question still remains, What right had they to mortgage the trust property without the consent of the members of the congregation for whom they held it? It is quite probable that if they had not borrowed the money, the church would not have been finished as soon as it was. But, I think, when the subscriptions fell 240 NEW BRUNSWICK EQUITY CASES. Calvin Church Logan. Allen, C.J. 1884. short, their duty was to have called a meeting of the "trustees of congregation of the church, and placed a true statement of the finances before them, and let them decide how the deficiency was to be made up, and its payment pro- vided for. The mistake which, I think, the defendants made from the time of their appointment, in April, 1871, until their discharge in May, 1873, was in supposing that they had absolute and uncontrolled power over the pro- perty, and in not informing the congregation from time to time of the state of the funds. It was contended on behalf of the defendants that the congregation recognized their right to mortgage the property; and that as the congregation took the church knowing that this debt was upon it, they were bound in equity to pay it. The mere fact of them taking posses- sion of the church — their own property — ought not to prejudice the congregation, even though they knew it had not been entirely paid for. But there is no evidence that at the time the church was dedicated, and the. con- gregation may be said to have taken possession of it— (the first Sunday in August, 1872) — they knew that there was any debt against it. The first knowledge they ap- pear to have had of the $6,000 debt was on the 28th May, 1873, when the building committee reported that amount as part of the cost of the church, and as loaned to the finance committee by Wm. Logan. The other point, that the congregation had recognized the right of the defendants to mortgage the property, has more weight in it; for they certainly knew by the report of the building committee in May, 1873, above referred to, that the defendants had given the mortgages on the pro- perty to Taylor and Causey, without, so far as it ap- pears, any more authority to do so than they had for giving the mortgage to the defendant Logan ; and at a meeting of the congregation held on the 29th January, 1878, a report of the auditors appointed to examine the finance committee's accounts was read, in which this mortgage of $6,000 is stated as one of the debts against the church. The congregation then, at all events, had notice of the mortgage, and there may, perhaps, be some NEW BRUNSWICK EQUITY CASES. 241 ground for saying that they have lost their right to ob- 1864. ject to it by acquiescing for more than a year after they TKUSTEFS op had notice of it — this suit having been commenced in c^dJch March or April, 1879. Logan. I have some doubt on this point ; but considering the ah^Tc. j. unsatisfactory manner in which the defendants' accounts have been kept (see audit committee's report, 29th Janu- ary, 1878) ; and the contradictory statements made from time to time about the cost of the church; the entire absence of any express authority to mortgage the pro- perty; and other matters which have been referred to, I have come to the conclusion that the transaction which resulted in the deeds of the 1st August, 1873, was a breach of duty on the part of the defendants, and that those deeds ought to be set aside, and the suit to fore- close the mortgage stayed. But, though I feel bound to come to this conclusion, I think it right to add, that if the defendants honestly expended all the church funds which came to their hands, and necessarily borrowed money to complete the church, and executed the mortgage in good faith, be- lieving that they had a right to do so, the other members of the congregation ought to do what is equitable and just in the matter, without regard to their strict legal rights, bearing in mind that unless the defendants had borrowed the money, and made themselves personally liable for the payment of it, the church would probably not have been completed at the time it was, and the con- gregation would not have had the benefit of it. The setting aside the deeds, and restraining the defendant Logan from proceeding to recover the $6,000, will not tend to heal the unfortunate divisions in the church, and may result in serious loss to persons who innocently lent their money to the defendants. I would, therefore, urge upon all parties, that they should meet in a Christian spirit, with feelings of brotherly kindness, and in that spirit of charity which thinketh no evil, and endeavour amicably to settle this unhappy, and, per- EO. CAS. — 16 242 1884. Trustees of Calvin Chubch v. Logan. Allen, C.J. NEW BRUNSWICK EQUITY CASES. haps, to some of the parties, almost ruinously expensive dispute. I will not suppose that the members of this con- gregation, at whose instance this suit was brought, would willingly do a wrong to any of the defendants if they were satisfied that the f 6,000, or any part of it, was an honest debt, for which, in justice, the defendants ought to be made whole, though they might have no legal right to recover it. In order to afford an opportunity for an amicable settlement of this matter, if possible, I shall make no decree in the case at present. I have stated my opinion on the several questions raised, so far as it was neces- sary to do so. If, after a reasonable time, the parties are unable to agree upon a settlement, I will then pro- nounce judgment in the case. KENNEDY v. CASE et al. Practice — Infant defendant — Order for appearance — C. 49, C. S. N. B.,s.H9. An order for appearance of infant defendant will be-granted at expiration of time for appearance mentioned in the summons where the bill is on file, though it has not been on file for the time referred to in section 29, c. 49, C. S. This was a motion for an order for the appearance of Francis H. Dickie, an infant defendant, who had been served with the summons in the cause. The time men- tioned in the summons for appearance had expired and the bill was on file. The only question was whether the application could be made before the expiration of one month after the filing of the bill. By section 29 of c. 49, C. S., a defendant has one month in which to ap- pear after the bill has been filed before it can be taken pro confesso against him. R. 0. Skinner, in support of motion. Per Palmer, J.: — Order granted. NEW BRUNSWICK EQUITY CASES. For the present practice see The Supreme Court in Equity- Act, 1890 (53 Vict. c. 4) s. 33. An infant defendant ought to he personally served with summons. See Dan. Ch. Pr. (4th Am. ed.) 444, n. Where a suit was revived against infant heirs, a copy of the order to revive was directed to be served on each of them and on their father: Collins v. Carmichael, Stev. Dig. (3rd ed.) 646. In Christie v. Cameron, 2Jur. (N. S.), 635, service of a copy of the bill, and notice of an application to appoint a guardian ad litem to an infant defendant, upon the principal of the college at which the infant was an undergraduate was held sufficient, the plaintiff being unable to discover the residence of the .infant's parents. And see eases cited Chitty's Eq. Index (4th ed.) Vol. 5, p. 5304, where service of subpoena, corresponding with summons under our practice, was held to be good where made upon infant's father or mother. In Thompson v. Jones, 8 Ves. 141, service of subpoena upon the father-in-law of an infant was allowed. 243 1884. Kennedy v. Case et al. HUMPHREY et al. v. BANFIL. Injunction — Injury to reversion — Devise to Executors — Title of suit — Joinder of reversioner and tenant. Quaere, as to whether executors who are seised in fee under a devise of land and building to them in trust can bring a suit in their character as executors to restrain an injury to the reversion, or whether the suit should not be brought in their character as devisees and legal owners of the property. Quaere, as to whether a tenant and landlord can be joined in it suit to restrain an act amounting to a. nuisance to the tenant and causing injury to the reversioner. The facts sufficiently appear in the judgment of the Court. 1884. March 31. G. G. Gilbert, Q. O., for the plaintiffs. A- A- Wilson, for the defendant. 1884. March 31. Palmer, J.:— The bill in this case was filed by, three of the plain- tiffs as executors of Otis Small, and also by one of them in his own right. It appears that the plaintiffs, the executors, are seized in fee of a building on Dock street by virtue of a devise to them in Small's will, and they are by that will appointed executors; 'that they let a part of such building to the defendant, who carries on what is called a machine shop therein, thiat is, manufacturing 244 NEW BRUNSWICK EQUITY CASES. 1884. Humphrey et at. v. Banfil. Palmer, J. and repairing machinery. The executors have let rooms in other parts of the building to different tenants, and the plaintiff, Humphrey, occupies one room partly as an office to do the business of the estate and partly to do his own business. The bill alleges that the defendant from time to time creates a nuisance in the office so occupied, and also to the tenants by the escape of gas and making noises by running the machinery in the machine shop, and that the machinery shakes the building so as to, permanently injure it. The suit is, therefore, an attempt "to join in one suit the claim of the tenants with reference to the property leased to them and the plaintiff, Humphrey's, claim to the office in his own right as tenant, and of the executors as de- visees and occupiers, for injuries by the gas and the noise, and to the executors as owners of the reversion in the demised premises'. It is very doubtful how far executors, as such, have any claim at all. It would appear that such a claim, if it existed, would not be in their character as executors, but as devisees. and legal owners of the property. It is clear that they cannot complain of occasional noises to their tenants. It is equally clear that they cannot complain as landlord, ex- cept for injury to the reversion, and while they would have, in my opinion, as owners or occupiers of the office' or any property they had that was not demised, a right to complain of any injury, and Mr. Humphrey would have a right to the same thing, as he has a present right in the office, if a nuisance has been created there, it is difficult to see how these claims can all be joined in one suit, or what claim the executors have as such. My views on this will be found in Vernon v. Oliver (1); and Vassie v. Vassie (2) ; but I do not think I am called upon to decide any of these questions now, as I think I ought not, on the iaffid'avits before me, grant any injunction order until the hearing. As to the permanent injury ; that, I think, was, as I said on the hearing, sufficiently answered as to make it (1) Ante, p. 179. (2) '.2 y. B. 7d. NEW BRUNSWICK EQUITY CASES. -245 so do.abtful.that I would not be justified in acting until the case was established by viva voce evidence, or found " by a jury. As to the gas and noise; while the law on this sub- ject is pretty clear, yet when a Judge attempts to apply evidence furnished on affidavits to find out whether the law has been infringed, he finds the task a most difficult one; as regards the noise, it was admitted on both sides that the parties knew when the premises were leased that the defendant intended to occupy them as a ma- chine shop; although one of the plaintiffs, Mr. Hum- phrey, swears that the defendant promised him there should be no injurious noise made; yet, I gather from the affidavits on both sides, and my own knowledge has taught me, that to carry on such an establishment tbere must be more or less noise; to that state of things the language of Lord Selborne in Gaunt v. Ff/nnei/ (3), ap- pears most appropriate. He says : " A nuisance by noise (supposing malice to be out of the question) is em- phatically a question of degree. If my neighbour builds a 'house against a party-wall, next to my own, and I hear through the wall more than 1 is agreeable to me of the sounds from his nursery, or his music-room., it does not follow (even if I am nervously sensitive, o>r in infirm health) . that I can bring an action to obtain an injunc- tion. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable. I am far from saying that there may not be a case in which the owner of a house very near a mill in a manufacturing town may be entitled to protection against noises re- sulting from the introduction into the mill of new ma- chinery or of new modes and processes of working. But in every case of this kind it ought to be clearly made out that the mill-owner has exceeded his rights." All I say at present in this case is that I have care- fully read over all the affidavits, and considering how unsatisfactory the mode of trial by ex parte affidavits is, I do not think it safe to make an order that might do 1884. Humphrey ■ et al. ' v. Fanfit. Palmer, J. ; (3)L. K. 3 CI). 12. 246 NEW BRUNSWICK EQUITY CASES. 1884. Humphrey et ail. Banfil. Palmer, J. almost irreparable damage to the defendant, until the " parties have an opportunity of having a more satisfac- tory trial. With reference to the nuisance of gas the same observation will apply. The rule laid down by Mr. Joyce in his work on the Principles of Injunctions, page 102, is: "Where a manufactory is lawful in itself, but requires the greatest caution to prevent the escape therefrom of injurious gases, the Court will not restrain a defendant from carrying on his manufactory because occasionally, through the occurrence of accidents in the manufactory, the plaintiff is injured, and the Court will only interfere where the injury is grave or frequent.'-' In this case, it appears that a gas engine was put in to run the machinery at the request of the plaintiff, Humphrey, and it would require the greatest caution to prevent the escape of gas therefrom ; and gas is liable to escape at any time by accident; and whether more than this occurred in this case I think is so doubtful that I do not think I ought to decide it on the materials I have, but it sho,uld be decided in a more formal man ner. At the same time, I wish the parties to understand that the plaintiffs' right to have their property protected from injury cannot be affected by the fact that the run- ning of the engine used is a process of great delicacy. The defendant has no right to make noises or create, gases, and let them escape into> the plaintiffs' premises so as to interfere with their occupying their property with comfort, according to the ordinary habit of such occupation in the part of St. John in which it is situated, and if it is shown at the hearing that they have been so interfered with, they will undoubtedly, in my opinion, be entitled to the injunction order asked for if their bill is sufficient, although I do not see my way clear to grant it now. The result is that I must decline to make the order now, and will reserve the question of costs until the hearing. In Kerr on Injunctions (3rd ed.), 171, it is laid down that though an action in restraint of a nuisance to a tenement is usually brought by the occupier or by the lessee in possession, the ownef may sue on the ground of injury to his property, either alone or conjointly with the occupier, citing JacKson v. Duke of Newcastle, 3 DeG. J. & S. 275; Broder v. Saillard, 2 Cn. D. 692. In the first case the propriety of the frame of the suit NEW BRUNSWICK EQUITY CASES. 247 was not questioned. The second case, decided since the Judica- ture Act, is a clear authority for the proposition. In Shelter v. City of London Electric Lighting Co.; Meux's Brewery Co. v. Same, [1895] 1 Ch. 287, the' lessee and reversioner brought sepa- rate actions, but Lindley, L.J., observed that they could have joined in one action. In Hudson v. Maddison, 12 Sim. 416, a bill was filed by five persons occupying separate houses to re- strain a nuisance common to all of them. Upon an objection of misjoinder being taken, • Shadwell, V.C.^ held the objection fatal. " As each has a separate nuisance to complain of, that which is an answer to one, may not be an answer to the other; and) if a decree were to be pronounced, it must be a decree which would provide for five different cases; and I do not think that such a decree could be made." In Appleton v. Chapel Town Paper Co., 45 L. J. Ch. 276, where two owners of distinct pro- perties joined as plaintiffs in a suit to restrain a nuisance, it was held a misjoinder; but by consent the Court heard the suit as if separate bills had been filed. Vice-Chancellor Bacon, how- ever, in Umfreville v. Johnson, Law Rep. 10 Ch. 580, overruled an objection of misjoinder under similar circumstances. In Murray v. Hay,~l Barb. Ch. 59, decided in 1845, the question was quite fully considered by Chancellor Walworth. The learned Chancellor said: "The particular question which arises in this suit, whether two or more persons having separate and distinct tenements which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a pri- vate nuisance which is a common injury to the respective tene- ments of each of the complainaots, may join in a suit to restrain such nuisance, does not appear to have been raised in England until recently; and then in a single case only, which was not very fully considered. In the case of Spencer v. London & Bir- mingham Railway Co., 1 Rail Ca. 159 (8 Sim. 193; 7 L. J. N. S. Ch. 281), which came before the Vice-Chancellor of England in 1836, the bill was 1 filed by the landlord and his tenant, for a nuisance which was supposed to be an injury to the interests of each in the property; and an injunction was granted without raising the question of misjoinder of parties. The same thing occurred in the case of Sutton and others v. Montfort, 4 Sim. 559, which came before the same Equity Judge five years pre- vious; where two tenants of different buildings, having no joint interest, joined with the landlord of both in filing the bill to restrain the nuisance. But in the more recent case of Hudson v. Maddison, 12 Sim. 416, which came before him in December, 1841, where five different owners of separate houses had joined in a bill to restrain a nuisance which was a common injury to all their houses, he seems to have taken it for granted that the objection of misjoinder of complainants would be fatal at the hearing; and he discharged the injunction upon that ground alone. Even if that case may be considered as finally settling the question in England, which I presume it does not, as it does not appear to have received the sanction of the Lord Chan- cellor, upon appeal or otherwise, I do not consider myself at liberty to follow that decision here; as the question was settled by this Court directly the other way: Reed v. Gifford, Hopk. Rep. 416." In Viscount Gort and others v. Rowney, 17 Q. B. D. 625, Gort was the owner, and the co-plaintiff Neuff was the tenant of a dwelling-house, and the defendant was the occupier of ad- joining premises. The defendant in consideration of being al- lowed! to pull down and rebuild his premises agreed to shore up the neighbouring property and to indemnify Neuff from a'l damage. Gort and Neuff claimed that these agreements were 1884. HUMPHBEY et at. BanfiI/. 248 NEW BRUNSWICK EQUITY CASES. 1884. Humphrey 'et al. Bakfil. broken and joined their separate causes of .action in one suit. By Order XVI.; r. 1, of Rules 1883, " all persons may be joined as plaintiffs in -whom the right to any relief claimed is ailegeu io exist, whether jointly, severally, or in the alternative." The case was referred to an arbitrator, with power to enter judgment, and he found in favour of the plaintiff Neuff, and against the plaintiff Gort. A question having arisen as to the apportion- ment of costs, the case came before Lord Coleridge, C.J., and Fry, L.J., sitting as a Divisional Court, and from their decision was appealed to the Court of Appeal. In the course of his judg- ment Lord Coleridge, C.J., said: "The statement of claim is remarkable inasmuch as it contains no statement of any joint or alternative claim by the plaintiffs, but alleges certain claims of Lord Gort against the defendants, and certain other and sepa- rate and independent claims of the plaintiff Neuff against the same defendants. In short, the statement of claim relies on separate causes of .action of the two plaintiffs against the de- fendants, the only common elements being that the claims arise in part out of the same transactions, and that the defendants are alleged to be alike liable to both plaintiffs. Whether such a union of separate causes of action was contemplated by the Judicature Acts, and whether it was convenient that they should be so united, are questions which we are not called upon to de- cide." On appeal counsel for the plaintiffs stated that before the Judicature Acts the plaintiffs could not have been joined, and Lord Esher, M.R., and Bowen, L.J., intimated that it was dis- putable whether the joinder of the plaintiffs was authorized by the Rule. The authorities are quite clear that in a suit by a tenant his landlord need hot be made a party: Semple v. London & Birmingham Rail. Co., 9 Sim. 209; Thorpe v. Brumfitt, 8 Ch. 650! A reversioner may enjoin a nuisance or bring an actioD for damages, or in a suit for an injunction obtain damages in addition to or in substitution for such injunction (53 Vict. c. 4, s. 25), where the injury occasioned by the nuisance is of a per- manent character affecting the reversion: Mayfair Property Co. v. Johnston, [1894] 1 Ch. 508; Shelter v. City of London Elec- tric Lighting Co., [1895] 1 Ch. 287. NEW BRUNSWICK EQUITY CASES. 249 ARMSTRONG v. ROBERTSON et al. 18q4 Account — Jurisdiction of Court of Equity. October 4.. A Court of Equity has jurisdiction in accounts where there are various interests involved, and accounts between different parties to be taken, so that the matter cannot be completely dealt with by a. Court of Law in one action. The facts sufficiently appear in the judgment of the ■Court. Argument was heard August 2nd, 1884.. W B. Chandler, and C. A. Palmer, for the plaintiff. G. W. Weldon, Q.C., for the defendants, Guy and Bevan. C. N. Skinner, Q.C., for the defendant Robertson. 1884. October 4. Palmer, J. :— The first thing to be determined in this case is: What is the legal effect of the two agreements set out in the bill, and how far they are binding on the defen- dant Bevan. The first was made by the plaintiff with the defen- dant Robertson, alien, by which the plaintiff was to cut for Robertson two million of logs before 1st January, 1881; two million before 1st March, 1881, and three mil- lion before 1st June, 1881, and to be surveyed by a surveyor mutually agreed upon. In case of dispute, the defendants, Guy and Bevan, were to appoint a quali- fied surveyor, whose decision should be final. Each was to pay equally the costs of clearing the river and building two driving dams. Robertson was to pay as fast as the same were delivered on the beach at St. Martin's Head, and he was to allow sufficient sup- plies to enable plaintiff to carry out the contract, not to exceed 80 per cent., which were to be allowed at the settlement of account, which was to be on the right delivery of two million feet, four million feet, and, fin- ally, on the delivery of the whole, the advances to be deducted from the price of "the logs. 250 NEW BRUNSWICK EQUITY CASES. 1884. The second agreement, which was between all the abmstrong parties to this suit, was as follows : — BOBEKTSON Palmer, J. " St. John, N.B., 11th Sept., 1880. " With reference to a memorandum of agreement made on the third day of September, in the year of our Lord one thousand eight hundred and eighty, between John Armstrong and Hugh R. Robertson, whereby the said John Armstrong agreed to procure logs for the said Hugh R. Robertson off certain lands at St. Martin's Head, N.B. It is this day further agreed that the sup- plies shall be invoiced to John Armstrong at the follow- ing prices: — American pork, per bbl. (19.25), nineteen dollars and twenty -five cents; P. E. I. pork (18.25), .eighteen dollars and twenty-five cents; Mess beef (11.50), eleven dollars and fifty cents; Flour (5.90), five dollars and ninety cents; Cornmeal (3.00), three dollars; Codfish, per quintal (3.60), three dollars and sixty cents; Pollock (2.20), two dollars and twenty cents; Tea, per lb. (33 cents), thirty -three cents; Beans, per bush. (1.75), one dollar and seventy-five cents; Butter, per lb. (17 cents), seventeen cents; and other supplies as may be from time to time agreed upon. And to all the above prices shall be added as agreed to in the aforesaid memorandum to cover cost of de- livery fifty per cent, less twenty per cent. (50$ less 20$. It is also agreed that a settlement of accounts shall be made monthly by draft upon Guy, Bevan & Co. in favour of John Armstrong, for any balance due to him on account of the quantity of lumber surveyed by the said Guy, Bevan & Co.'s surveyor, which the said Guy, Bevan & Co. hereby agree to pay; and in the event of the said H. R. Robertson not making settlements as Lerein stated, Messrs. Guy, Bevan & Co. agree to pay to the said John Armstrong the balance due to him on NEW BRUNSWICK EQUITY CASES. 251 account of all such lumber as may be surveyed to that 1884 time. (Signed) H. R. Robertson, John Armstrong, Guy, Bevan & Co." Armstrong ROBERTSON et al. Palmer, J". It is difficult to say precisely what the defendants, Guy and Bevan, have bound themselves to do by the second agreement. I agree with their counsel that Eobertson alone agreed to make the monthly settle- ments with plaintiff, and give him the drafts on Guy, Bevan & Co. for the balance due the plaintiff on ac- count of the lumber surveyed by Guy, Bevan & Co.'s surveyor; but I think Guy, Bevan & Co. bound them- selves to furnish the surveyor to survey the logs, and in case that Robertson did not settle and give the drafts, as before stated, to pay to the plaintiff the balance due him on account of all lumber surveyed to that time, i.e., month by month. If this be correct, it will be observed that what they are to pay is not for the lumber sur- veyed, as was contended before me by their counsel, but only the balance due by Robertson on it. The next question is, how is that balance to be ar- rived at? I think the balance due by Robertson on the lumber must mean the balance due on a settlement of their whole accounts under both agreements. On the one side the plaintiff would be entitled to charge one- half of what he properly expended in clearing the river and building the driving dams, and the price of all logs surveyed, and perhaps all that were got out and should have been surveyed. On the other side, he would have to be charged with half of what Robertson expended or paid in clearing the river or building the dams, and also any advances or other payments that Robertson had made under the agreements; so that before the balance could be recovered in any Court, it would have to be as- certained what, if anything, was due to either party, on what was a joint work of clearing the river and building dams, as well as the state of accounts, including sup- plies and payments by Robertson on this transaction; 252 NEW BRUNSWICK EQUITY CASES. 1884. Armstrong Robertson et al. Palmer, J. and, if it be true, as stated in the bill, that the plain- tiff got over eight million of logs, this at contract price of three dollars per thousand, would amount to $24,000; and if he expended, besides $3,000 on the river and dams, and there is only due him, as he claims, §6,780, Robertson must have advanced him upwards of $18,000; and this would have to be shown, if tried at law, without Robertson being a party, and consequently not bound by the proceedings, before any recovery could be had against Guy and Bevan ; for it is clear that if .any action could be brought at law against Guy and Bevan for this, Robertson could not be joined, for these pro- mises in the agreement made by Guy and Bevan are not joint with Robertson. Plaintiff complains in his bill that he got out the seven million; seven hundred thousand of deal saw- logs, and .357,538 batten saw-logs, and expended $3,000 in clearing the stream and building the dams. That the defendant, Robertson, with McKean .and Rfurray, prevented the plaintiff from delivering the logs on the beach or to drive them, by procuring his right in the land to be sold. That the logs have been all surveyed by Guy, Bevan & Go's, surveyor. That the plaintiff claims that there is due him a balance of $6,780. That Robertson has refused to make the settle- ments or give the drafts, of which Guy and Bevan had notice, yet they refused to pay, and he asks for the ac- counts to be taken, and the balaoice ascertained and the amount paid. And the question is whether this Court will enter- tain this suit for such a purpose or leave the parties to take their remedy at law. if they have any. In deciding this question, it will be convenient to have as clear a view as possible of the rules Courts of Equity act on in suits involving accounts. Lord Chancellor Cottenham, in the North-Eastern Raihcay Co. v. Martin {1), says: "The jurisdiction in (1) 2 Phi I. 7G2. NEW BRUNSWICK EQUITY CASES. 253 matters of account is concurrent with that of Courts of law, and is adopted because, in certain cases, it has bet- ter means of ascertaining the rights of parties. It is, therefore, impossible with precision to lay down rules or establish definitions as to the cases in which it may be proper for this Court to exercise its jurisdiction. The infinitely varied transactions of mankind would be found continually to baffle such rules, and to escape such defi- nitions. It is, therefore, necessary for this Court to re- serve to itself a large discretion, in the exercise of which due regard must be bad, not only to the nature of the case, but to the conduct of the parties." There are a great many cases in which applications have been made to Courts of Equity to restrain proceed- ings at law where accounts had to be settled, and I do not think I am called upon to decide whether this is such a case or not. I say as Lord Truro sa'id in the case of the South-Eastern Railway Co- v. Brogden (2) : " There are many cases in which it seems to me, looking through the whole of the decisions, that this Court would pro- perly entertain jurisdiction on the matter where, if the party making the claim proceeded at law, the Court would not, as a consequence because it would itself ex- ercise jurisdiction: if appealed to, withdraw it from the jurisdiction of a Court of Law." In the case of the Tuff Vale Railway Co. v. Xlx- on (3), which involved settlement of accounts, a bill was filed for an account. The House of Lords decided thai, although the matters in dispute were cognizable at law, yet as the suit involved the settlement of accounts with other parties, a Court of Equity was more competent to take them thanl Courts of Law; and the concurrent jurisdiction of Courts of Equity with Courts of Common Law in cases involving costs of motion to other parties was finally established. It follows that whether this Court is to exercise its jurisdiction is a matter of discretion, and although it is, I think, a difficult question to decide under what cir- cumstances a Court of Equity ought to exercise its coti- 1884. ABMSTBONG V. ROBEBTSON et al. Palmer, J. (2) 3 McN. & G. 23. (3) 1 H. L. C. 111. 254 NEW BRUNSWICK EQUITY CASES. 1884 ABM6TR0NG V. EOBEBTSON et al. Palmer } J. current jurisdiction where, before a plaintiff can obtain redress, an account between other parties has to. be taken; vet, as I think a consideration of the end sought by all litigation is, if possible, to take that mode that will make only one investigation necessary and to have the decision, if possible, uniform and binding on all par- ties to be affected, and that in this case, if the plaintiff had brought his action at law, before he could have re- covered he would have to have shown how the accounts stood between himself and Robertson, I have decided to entertain the suit. With reference to the clearing the river and building the dam®, if such right to construct them is given by the agreement, and even if not, at all events with reference to the logs and supplies, the ascer- taining of this would not be binding on Robertson, who might litigate all these matters both with Guy and Bevan, and with the plaintiff over again. In this Court all parties can be made to disclose, before the hearing, what they know oral the subject, and the account is tajken once for all and is binding on all and an end is put to all disputes. I think I ought not to refuse to entertain the suit. Defendants' counsel argued before me that as the plaintiff in his bill had alleged an amount due, no ac- count was necessary; but this is a misapprehension. I. think the mere allegation of a party that a certain sum is due him is not a statement that the amount is settled; but merely that when it is taken so much will be found to be due ; and so far from it having the mean- ing attributed to it, the bill alleges that Robertson had not and would not settle the accounts; and the plaintiff cannot, I think, make out his case until he proves how the account stands between him and Robertson. The case of the Southampton t)ock Go- v. Southamp- ton Harbour and Pier Board (4), ha.® several elements that this case has. If I am right in the construction' I have given to this agreement, the amount to be paid depended upon what was the balance due after taking accounts, and I think that in this case both parties (4) L. E. 11 Eq. 254. NEW BRUNSWICK EQUITY CASES. 255 ought to have kept accounts of what they expended in clearing the river and building the dams, and each is entitled to a discovery as to that, and an enquiry whe- ther what each has charged, as such expense, was fairly incurred; and if it be true, as alleged, that the plaintiff was prevented by Eobertson from performing any of the terms of bis contract, it may be a fair matter of en- quiry whether that should stand in the way of the plaintiff having the settlement he is entitled to by the agreement; and in any view, as I think, before Guy and Bevan should be compelled to pay, or the plaintiff have an adjudication as to what the balance due him is, it ought to be done in such a way as would bind all par- ties to the agreement, and it is manifest that only a Court of Equity can do so. Suppose a Court of Law Las jurisdiction and could try the plaintiff's case and give him his remedy, as I presume it could. See what it has to do. The plaintiff would have to give particulars of his claim; that would be a statement of all his claims against Robertson, and all Robertson's supplies to him; then all the expenses of clearing the river and building the dams, both by himself and Robertson, and then show the balance due by Robertson, as this is what the suit would be for; then, at the trial, these same accounts would have to be proved and determined; for, without this, it could not be ascertained what the balance was, and involved in that would be the fact that Robertson had prevented the plaintiff from performing some part of his agreement, and what allowance, if any, was to be made for that; also, whether both parties had fairly and properly incurred all the expenses of clearing the river and building the dams; and, when an end was reached, if the plaintiff could not get his money from Guy and Bevan, whom he should sue alone, he would have to bring another action and try the whole thing over again in an action against Robertson; or if Guy and Bevan paid, when they came to charge the same against Rob- ertson, as paid him, they would have to try it all over again with him. Knowing that this Court can avoid all this, and can protect all parties, and has machinery not only to com- 1884. Armstrong ROBE RTSOX et al. Palmer, J. 256 NEW BRUNSWICK EQUITY CASES. Armstrong Kobehtson et al. Palmer, J. 1884. pel discovery, but also to better try such matters, I think T would be doing wrong to all parties if I refused to entertain the suit in the exercise of the discretion vested in me, and told the plaintiff that he had shown a wrong which this Court has undoubted jurisdiction to redress, but that he must go to another Court. The defendants also objected that the bill was multifarious; but on this point I have no doubt; this point I determined in Mc- Grath v. Franke (5), on the authority of Sir John Wick- ens, Vice-Chancellor, in Pointon v. Pointon (6). Under the agreements set out in the bill in this v,dse, Giuy and Bevan have agreed to pay the balance due by Robert- son, and it is manifest that before any Court can adjudi- cate what they are to pay, it must be ascertained what that balance is, and that can only be done by taking the accounts of the transaction between the plaintiff and Robertson. It is quite clear if these accounts were to be taken in a separate suit between the plaintiff and Robertson, the decision of this suit would have to await the decision of that, and in which suit the accounts be- tween them would have to be taken 1 ; and which, when taken, I do not think would be binding on Guy and Bevan. At all events, I am unable to discover why they should not be taken in this suit. (5) 22 N. B. 456. (6) L. E. 2 Eq. 547. NEW BRUNSWICK EQUITY CASES.' 257 THE PEOPLE'S BANK v. MORROW et al. 1884. Administration suit — Insufficiency of personalty to pay debts of intestate — September 12. Hale of real estate — Within what time sale may be ordered — Parties to suit—C. 49, ». 38, and c. 52, ss. 36, 39, C. 8. N. B. The Court of Equity will not under s. 58, chap. 49, C. S., direct a sale of the real estate of an intestate for the payment of his debts, if the personal estate that the deceased died possessed of was sufficient for the purpose, had it not been wasted or misap- plied by the administrator. Semble, that an application under s. 58, chap. 49, C. S., for the sale of real estate to pay the debts of an intestate, on account of the insufficiency of the personal estate must be made within ten years from the grant of letters of administration. Semble, that in an administration suit for the sale of real estate of an intestate for the payment of his debts the purchaser of the real estate from the heir is a necessary party to the suit. The facts sufficiently appear in the judgment of the Court. Argument was heard September 4th, 1884. E. L. Wetmore, Q.C., for the plaintiff. II. B. Rainsford, A. 0- Earle, and James Van Wart, for the defendants. 1884. September 12. Palmer, J. : — In this case the first question to be considered is, whether an unsatisfied creditor of an intestate has a right to maintain a suit in this Court for the payment of his debt, or to have the estate administered here in default of payment. I think this question must be answered in the affirmative. In Haynes' Outlines of Equity, page 117, it is said that it is not easy to trace when the right of the creditor to the bill in Equity was first clearly established. At a later time, though when, it is difficult exactly to determine, the right of the creditor to file his bill in Equity (even though the assets to be administered might be legal assets only, and the right to sue at law clear), became firmly established, and so remains at the present day. That the Court of Chan- cery, at an early date, would entertain a suit against an 258 NEW BRUNSWICK EQUITY CASES. 1 88 i. executor for discovering assets, is shown in Comyn's Dig. Chan. 2, G. 3, and 3B.1 and 2. And I think in such a The People's Bake suit, the only necessary parties are'the creditor and the morrow etai. personal representative. The next question is, if the Palmer, j. personal estate of an intestate is sufficient to pay all his debts at the time it came into the hands of his adminis- trator, who wasted it, so that, when a creditor obtains judgment against him, there is no personal estate, and the heirs have sold and conveyed the real estate, and such creditor files a bill to administer the estate, and for a decree and sale of the real estate so sold, is the person to whom the heir has so sold a necessary party? Without deciding whether this Court would entertain such a suit — if it would, I think it is abundantly clear that such person would be a necessary party. It is ob- vious that the object of such a suit would be to displace such person's title to such real estate. The fundamental principle laid down by Lord Redesdale in his work on Equity Pleading is, that all persons interested in the matter of the suit should be parties. Courts of Equity adopted two leading principles in determining the proper parties to a suit: 1. That the right of no man shall be decided in a Court of justice unless he is present. 2. That Courts of Equity will provide for the rights of all persons whose interests are immediately connected with the object of the suit. For this purpose all persons materially interested in such object ought generally to be parties'. Calvert states the rule thus: " All persons having an interest in both the subject and object of the suit, and all persons against whom relief must be ob- tained in order to accomplish the object of the suit, should be made parties." It is obvious, that if a suit could be maintained to sell the land conveyed by the heirs to a purchaser, the object of such suit would be to transfer the purchaser's right, and he would be directly interested in the question whether that ought to be done or not, and, before any Court could reach such a decision he would have^a right to be heard. I wish to guard myself against expressing any opinion as to the proper frame of a bill for such a purpose. All I say is that no such suit could be maintained without the person NEW BRUNSWICK EQUITY CASES. 259 having the legal title being a party. The next question 1884. is, whether, under the state of facts above stated, this TsE PeopIjE 's Court in a suit, brought more than ten years after the BA „ NK grant of letters of administration, and after the heirs mobbow <*<»*. had within that time conveyed the real estate to a bona Palmer - J - fide purchaser for value, will order it to be sold for the payment of the intestate's debts, under the 58th section of chapter 49 of the Consolidated Statutes. I think it would not, and that there are two sufficient answers to such a claim : First, because the real estate of an intes- tate cannot be sold for the payment of his debts unless the personal estate that came into the hands of the ad- ministrator was not sufficient for that purpose; and, secondly, if it could, the law only authorizes application to be made by the administrator, or the creditors, for such sale, within ten years after the grant of the letters of administration. The right of this Court to order a sale by the section referred to, or the Probate Court to license such a sale on the application either of the ad- ministrator or the creditor, under sections 36 and 39 of chapter 52, Consolidated Statutes, is made to depend upon whether or not the personal estate of the deceased was sufficient to pay his debts. If .sufficient, there is no power of sale given by any of these sections. Chief Jus- tice Saunders, in Doe d. Hare v. McCall (2), says that the mode pointed out by the statute is the only possible way of proceeding. Both of the sections of the Probate Act referred to make it a condition to the power of the Court to grant a license that there should be a deficiency of the personal estate to pay the debts. If the meaning of the words " personal estate " is such as the intestate died possessed of, then there is no deficiency!; and, I am clear that this is the proper grammatical meaning of the words as used in this statute, for no person can have any estate or property after his death. Therefore, when you speak of a dead person's estate or property you mean what he had before and at the time of his death. This statute provides that an inventory shall be made show- ing the amount of the real and personal estate and it (2) Chip. 90. 260 NEW BRUNSWICK EQUITY CASES. 1884. would be absurd if it should not include all the property the people's th at canie into the hands of the administrator, merely be- bank cause he had made away with some of it, and it would be mobbow et ai. equally absurd 1 for such administrator to be allowed to Palmer, j. obtain a license to sell the real estate to pay the debts, but because he had not so applied it, and it would be against all rule to give one meaning to the phrase " de- ficiency of personal estate," as used in the 36th section of chapter 52, and another to similar words when used in the 39th of the same chapter, or the 58th section of chapter 49. Again, the proper order in ad- ministration suits would be for the administrator to pay the debt out of the personal estate, as far as it remained unadministered. This would have to be ascertained, and it would be rather inconsistent for the Court to order the administrator to pay because he had sufficient personal estate, and, by the same decree, to order the land sold because the personal estate was not sufficient. I also think that if the personal estate had been insuffi- cient to pay the debts, the real estate could not be sold for that purpose after ten years from the granting of probate or letters of administration. This must be so, if what was said by Chief Justice Saunders in Doe ti- lt are v. McCall is true, that the only mode of proceed- ing to take the real estate of a deceased person for the payment of his debts is that provided by the statute. The case of Doe d- Boicen v. Robertson (3), decides that the sale of the real" estate by the heirs to a bona fide purchaser without notice of the debts, does not prevent such estate being taken by a sale under a license'from the Probate Court, so that during the time allowed for obtaining a license a creditor can wait without losing his claim on the real estate, but after that time such claim is gone; and I cannot see that it will serve any useful purpose to allow it to exist longer. It might make the titles of heirs and devisees uncertain longer than would be sound policy. It is in the power of credi- tors to compel personal representatives to account and pay their claims, and if necessary to invoke the aid of (3) 5 All. 134. NEW BRUNSWICK EQUITY CASES. 261 the Courts to prevent the assets being wasted, and, if 1884. they fail to do so, there does not appear to be any good - — 1H£ rEOPLE S reason to put the burden on the heirs or devisees any bank further than the terms of the statutes have done. I mobbow ..•;«;. think that at common law the real estate was not liable Palmer, j. for simple contract debts in the hands of the heirs or devisees; and, consequently, the whole remedy for such creditors are those provided by the statutes, which are the 36th and 39th sections of the Probate Act, and the 58th section of chapter 49 of the Consolidated Statutes. It was contended, on the argument, that such debts were made a charge upon the real estate in all the colonies by the Imperial Statute, 5 Geo-. II. o. 7, which enacts that lands in the colonies shall be liable for the payment of debts in like manner as in England, but it is difficult to see how the fact that lands are liable as in England can enable this Court to order them to be sold for the payment of the debts of a deceased person, unless it could be shown that this could be done by some process with regard to lands in England; but, there, a simple contract creditor had no claim on the real estate after the debtor's death, and, eveu during his lifetime, all the creditor could do was, after obtaining judgment, by elegit to take one-half the profits. The provisions of 5 Geo. II. c. 7, do not appear to apply to the estate of deceased persons; its sole object appears to have been to afford a remedy against the real estate of living persons and enable creditors, who had obtained judg- ment, to seize the real estate to the extent of one-half of the profits, and this our Provincial Statute, 26 Geo. III. c. 12, extended,' and allowed the whole lands to b|e sold. All that remains to be considered is whether the 58th section of chapter 49 gives the right to the creditors to have the real estate sold at any time. It is not necessary to decide this, as even if it did so beyond the time fixed for obtaining a> license and extended to real estate conveyed to a bona fide purchaser the condi- tions on which 1 lalone the right to exercise that power is given does not exist except upon a deficiency of the per- sonal estate; yet as I have formed an opinion on the 262 NEW BRUNSWICK EQUITY CASES. 1884. point, I think it right to state it. The words of the sta- t he pbople'b ^ u ^ e are : " Whenever a decree, etc., for the administra- bANK ^-j on f thg estate of a deceased person, etc., the Court mobbqw et ai. ma y di re ct a sale of the real estate." This provision Palmer, J was fl rg ^ enacted in this Province by 26th Vict. c. 16, and, if I am right in what I have before said, the sale of tMe lands could at that time only be made by virtue of a license from the Probate Court, which could only be obtained within ten years after probate or grant of letters of administration; and the question is whether this section was intended to alter that and instead make the real estate liable to be sold for all time, or was it merely to enable this Court, in an administration' suit, to sell the real estate without putting the suitors to the trouble and expense of obtaining a license from the Pro- bate Court without altering the rights of the parties. If the first, the rights of the parties were altered most materially. . If the latter, all that, was done was an im- proved procedure, and po rights were altered. I think the latter is all that was intended. The whole statute in which this section first appeared, dealt with procedure, and not with rights; and, I think, that if the object of the Legislature had been to take away or affect the rights of the heir or devisee it would not naturally do so in a statute dealing with procedure only, but would use words expressing such intention, or, at least impera- tive words directing such a result. The word used is may, which is sometimes construed to mean must in an Act of Parliament; and as was said by Coleridge, J., in Regina v. Tithe Commissioners (4), words direc- tory, permissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of justice. This is not the gram- matical or natural meaning of the word, and this statute does not come within the rules so laid down, and I think it must have its proper grammatical meaning. It fol- lows that the making of the order is discretionary; for as was said by the Court in Bell v. Crane (5), the use of a phrase is sometimes intended to give discretion; by (4) 14 Q. B. 459. (5) L. E. 8 Q. B. 481. NEW BRUNSWICK EQUITY CASES. 263 this I do not mean arbitrary discretion, but a discretion 1884. to be exercised, as was said by Willes, J., in Lee v. Bude THE people's Railway Co. (6), as a judicial discretion, regulated ac- BA * K cording to the known rules of law. Applied to this case, """"i!""'- independently of the statute, the respective rights of the Maimer, J - creditors and the heirs and devisees were that the land could be sold if legal proceedings were taken to effect such sale within ten years after the probate or granting of letters of administration, and not after. This Court is given discretionary powers to make such a sale with- out the rights of the parties being altered, and, I think, it would be exercising such discretion soundly by ordering the sale while the right existed and denying it when it did not exist. It follows, that while I think the defen- dant, Clowes, and the other unsatisfied creditors of Mor- row may obtain a decree in a Court of Equity for the administration of the estate, they are not entitled to claim a decree for the sale of all the real estate of the said Morrow in priority of the mortgagees and judgment creditors of his heirs, under the circumstances set out in the case. It is not necessary to decide what are the rights of the judgment creditors as distinguished from the purchasers and mortgagees. The plaintiffs' costs must be paid by the defendants, and if paid by the de- fendant Clowes, he is to be repaid out of the estate of Morrow. Under 2 N. Y. Rev. Stat. 100, s. 1, providing that a sale of lands by an administrator for the payment of an intestate's debts must be had, or the proceedings therefor commenced, within three years after the granting of letters of administration, it was held that where there was a change of administrators the time com- menced to run from the appointment of the first administrator: Slocum v. English, 62 N. Y. 494. See also United States L. Ins. Co. v. Jordan, 5 Redf. (N. Y.) 207; Mead v. Jenkins, 4 Redf. (N. Y.) 369. Where a statute of Massachusetts provided that upon the in- sufficiency of the personal estate of a deceased person to pay his debts, the Supreme Judicial Court, or the Court of Common Pleas, might license the executor or administrator to sell so much of the real estate of the deceased .as should be necessary to satisfy the debts which the deceased owed at the time of his death, it was held that the real estate could only be sold to pay debts due from an intestate at the time of his death, and could not be sold to reimburse an administrator the expenses of administration: Dean v. Dean, 3 Mass. 258. (6) L. E. 6 C. P. 576. 264 NEW BRUNSWICK EQUITY CASES. 1884. * n Massachusetts it has been repeatedly held that an executor or administrator cannot maintain a petition for license to sell The people's real estate for the payment of the debts of the deceased, if there Hank are n0 debts due from the estate which can be enforced at law; MoBBowceo; as if a11 the de;bts are toured by the statute limiting the time within which an action can be brought against the executor or administrator in his representative character: Lamson v. Schutt, 4 Allen, 359; Scott v. Hancock, 13 Mass. 162; Ex parte Allen, 15 Mass. 57; Tarbell v. Parker, 106 Mass. 347; Robinson v. Hodge, 117 Mass. 222. The right of an executor to pay a debt barred by the Statute of Limitations was considered recently in England, in Midgley v. Midgley, [1893] 3 Ch: 282. The general rule was said to be established that he might pay such a debt without being guilty of a devastavit, but not where it had been judicially de- clared by a Court of competent jurisdiction to be barred by the statute. . An executor cannot pay a creditor whose claim is un- enforceable by reaeon of the Statute of Frauds: In re Rownson, 29 Ch. D. 358. Land belonging! to the estate of a testator cannot by the law of this Province be taken ini execution under a judgment re- covered against his executor on a debt due by the testator, and the only method by which such property may be made available is under the provisions of c. 52, C. S., and amending Acts. See Doe d. Hare v. McCall, Chip. MS. 90, and notes. On an issue of plene admimstravit, real estate of an intestate is not assets in the hands of the administrator, for payment of debts owing by the intestate: Crawford v. Willox, 1 All. 634. Chipman, C.J., said: " The plaintiff claimed a right to recover his ratable proportion of the value of the real estate of the intestate included in the inventory, but which remained unsold, and could not be sold and made available to the payment of the debts without an order from the Surrogate, which order had not been obtained at the time of bringing this action, but was afterwards procured, a few days before the trial. As a general rule, we think it impossible to consider the real estate of an intestate to be assets in the hands of an administrator, to be administered, before the sale, or certainly not before he has authority to sell. We do- not say but there may possibly be cases in which, under a different issue, or different state of circumstances, an administrator might be made liable for the value of real estate which he has neglected to make available; but, under the issue and circumstances of this case, we see nothing to take it out of the general rule." The authority of an administrator to sell real estate under license cannot be defeated by any alienation of the heir, and ex- ists whether the lands are in the possession of the heir, his alienee or disseizor: Drinkwater v. Drinkwater, 4 Mass. 354; 4 Kent's Com. (12th ed.) 439. And see Doe d. Hare v. McCall, Chip. MS. 90; Doe d. Bowen v. Robertson, 5 All. 134. In Ontario it was held in the absence of legislation charging the executor with the real estate of the deceased for the payment of his debts, the heir or devisee might convey a valid title of the land of the de- ceased to a bona fide purchaser for value, at any time before execution in the hands of the sheriff upon a judgment by a creditor against the personal representatives of the de- ceased: Reid v. Miller, 24 U. C. Q. B. 610. See now R. S. 0. 1887, c. 108; and Acts 54 Vict. c. 18, and 56 Vict. c. 20. The validity of a license for the sale of land cannot be attacked in a collateral proceeding, the only remedy being by appeal. In Doe d. Bowen v. Robertson, 5 All. 134, it was held that where a petition to the Probate Court for a license to sell land for payment of debts contains NEW BRUNSWICK EQUITY CASES. 265 the statements required by the statute, and due notice has 1884. been given to the parties interested, the Court has juris- diction over the matter, and the title of a purchaser at a the people's sale by virtue of a license cannot be impugned in an action ot p ejectment by evidence that no debts were due by the estate at morrow et al. the time the license was applied for. See also Harrison v. More- house, 2 Kerr, 584; Coy v. Coy, 1 Han. 177; Chisholm v McDonald, 2 Thorn. (N. S.) 367; Phinney v. Clark, 27 N. S. 384; 25 Can. S. C. R. 633. In Doe d. Sullivan v. Currey, 1 Pugs. 175, the lessors of the plaintiff claimed as devisees under the will of H. P.; the de- fendant claimed under a deed from H. P.'s executors, under a license from the Prohate Court. The plaintiff contended that the license was void on the grounds, inter alia, that there was suffi- cient personal property to pay the debts of the deceased, and that the executor had expended large sums in costs in the Pro- bate Court in proceedings which he had no right to take. Ritchie, C.J., said: "We think the Probate Court had jurisdiction to make the order for a sale in this case. We have no power to investigate the accounts passed before the Probate Court and adjudicated on by that tribunal. If the decree then arrived at was unsatisfactory, the p,axty dissatisfied should have appealed." In Massachusetts it has been repeatedly held, though not with- out an occasional note of dissent, that if the Probate Court has acted without jurisdiction its decree is void, and may be declared to be such not merely by appeal, but in collateral proceedings: Thayer v. Winchester, 133 Maes. 447. ■ Devens, J., there said: " The executor petitioned the Probate Court for a license to sell the whole of the real estate of the testatrix for the payment of debts and charges of administration. Such a license was granted, and, acting thereunder, the executor sold the whole of the real estate. It is to be considered whether the license was not wholly void for want of jurisdiction in the Probate Court. If so, no title passed to the purchaser. The Court of Probate is one of special and limited jurisdiction. If it exceeds its powers, its decree may be avoided, not merely "by appeal, but in collateral proceedings. The erroneous exercise of a power granted, or its indiscreet use, is to be remedied by appeal, but an act, for which no power is given to do it, is simply a nullity: Smith, v. Rice, 11 Mass. 507, 512; Jenks v. Howland, 3 Gray, 536; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; Boston v. Robbins, 126 Mass. 384, 388; Pierce v. Prescott, 128 Mass. 140, 143. It is said by Chief Justice Shaw, in speaking of the Probate Court in Peters v. Peters, 8 Cush. 529, 543, ' even where it has jurisdiction over the general subject,' if it ' exceeds its powers, or acts in a man- ner prohibited by law, its decrees . . . are held entirely and absolutely void and of no effect, and may be set aside in any collateral proceeding) by plea and proof.' " This view is not in accord with the decisions of the United States Supreme Court: Grignon's Lessee v. Astor, 2 How. 338; Comstock v. Crawford, 3 Wall. 396; Hall v. Law, 102 U. S. 464. 266 NEW BRUNSWICK EQUITY CASES. 1883. GILBERT v. UNION MUTUAL LIFE INSURANCE December 2i. COMPANY. Practice —Insufficiency of answer — Exceptions. Where a defendant has answered, though he might have demurred or pleaded, he cannot excuse himself from answering fully on the ground that the bill does not disclose a case against him upon the matters interrogated upon. The facts appear in the judgment, and in the judg- ments on appeal, 25 N.B. 221. Argument was heard November 23rd, 1883. G- a. Gilbert, Q.C., and 0. A. Palmer, for the plaintiff. W. B. Chandler, for the defendants. 1883. December 24. Palmer, J. : — The case made by the bill is shortly as follows: The plaintiff's testator, was a partner in the defendants' business, which entitled him under an insurance policy to hare his executor paid $4,000 at his death, if the policy was continued so long, and to be paid yearly a share of the surplus earnings of the business during the continuance of the policy, on payment by him of certain annual premiums. The testator paid premiums for a number of years, and then agreed 1 with the company to surrender the policy, they agreeing to pay him the value; the defendants induced him to agree to continue, and agreed to accept certain payments as the premium until the time for the payment of jarcrnual premium, according to the policy, was passed ; and they then repudiated such agreement, insisting upon new terms, which the testator refused to accede to; the testator then paid no new pre- miums, the last beinig paid in 1877, and he died on the 7th February, 1882. The bill claims that the defendants should pay the plaintiff the surplus earned while the policy was in force, and the $4,000 on 1 testator's death, and failing in that the agreed value and such surpluses. NEW BRUNSWICK EQUITY CASES. 267 The defendants have refused to disclose what these 1883. surpluses are, or to give an account of their business, GlLB1! . RT and their counsel claim before me that the bill did not Vmos Jj utual disclose a case to be paid such surpluses. I think it A £™ B C ^°£ T . may be very doubtful how far the bill can be maintained Pal — r j in its present shape for some of the matters claimed, but I do not think that I am called upon to decide such a question on exceptions too the answers. The defendants have submitted to answer, and I think they must an- swer fully all matters relating to the case made. If they had wished to say that there is no- case against them on which they are interrogated, they should have demurred to the whole or such part of the bill, or if they wished to deny any of the facts stated in it on which any part of the plaintiff's case rests, or wished to state new facts which' would show that the plaintiff was not entitled to the relief he has claimed, they should have done so by pleas. If they are unable or decline to take this course, they must answer categorically every state- ment of the bill upon which they are interrogated, Which can assist the plaintiff in making out his title to the re- lief he has claimed. I think it is a mistake to suppose that this Court can, upon exceptions to answers, decide whether or not the bill is such that the defendants must answer; for, as was said by Sir Wm. Grant in Taylor v. Milner (1), it makes no difference whether the Court has determined that the bill is such that the defendant must answer, or whether the defendant has, by his own conduct (sub- mitting to answer), precluded himself from raising the question. Sir John Leach, in Mazarredo v. Maitkmd(2), says that a defendant cannot by his answer deny the plain- tiff's title, and refuse to answer as to the facts which may be useful evidence in support of that title. He can- not answer in part; if he answers he must answer the whole of the bill. This principle has nothing to do with the rule that there are certain matters that parties are protected from (1) 11 Ves. 42. (2) 3 Madd. 70. 268 NEW BRUNSWICK EQUITY CASES. 1883. disclosing at all, such as confidential communications GlLBEET between solicitor and client, or that of matters tending union mutual t0 criminate the party. ANcScoMPAHr. In the late case of Chichester v. Marquis of Done- Paii^.j. gal (3), Lord "Justice Selwym says: "Now, in a case where the defendant has neither demurred nor pleaded, the general rule universally established is, that he must answer fully unless he can bring himself within some exception to that general rule " ; as where the Court will protect parties from answering so fully as to become burthensome, such as setting out long accounts, etc. If the plaintiff's case made by the bill is good, then I think it is clear that the time whien and the ob- ject' for which the defendants were incorporated, and the amount of the surpluses that the company earned every year after the making of the policy and during the lifetime of the testator may be useful evidence to sup- port plain tiff ':s case; and consequently by the rule thus stated he is entitled to nave all questions relating there- to answered, and as there is no categorical answer to the part of the first interrogatory, which asks when and for what purpose the company was incorporated, nor whether the officers are elected, the first exception must be allowed, and for the reason I have given, the 2nd and 3rd exceptions must be allowed. The 4th exception must be allowed also, for without discussing anything else, I find nothing in the answer stating when Benn, the de- fendants' agent, communicated the matters enquired about as alleged to the company. If I am right in what I have said, the plaintiff has a right to know what pre- miums the testator has paid, as well as all the other information asked for by the 11th interrogatory, except the calculations which he can make himself, and there- fore the 5th exception must be allowed also. My order, therefore, will be that the plaintiff's ex- ceptions to the answer will be allowed with costs.* (3) L. R. 4 Ch. 416. * Affirmed on appeal, 25 N. B. 221. NEW BRUNSWICK EQUITY CASES. 269 In re ISABELLA BROOKS' ESTATE. 1885 ' January 17. Practice— Chap. 49, C. S. N. B., s. 130 — Application by executor for advice — Petition — Affidavit of truth — Hearing. On an application by an executor under section 130 of chapter 49, C. S., all of the facts upon which the advice of the Court is sought must appear in the petition itself. If the facts are not stated correctly the advice given will be no protection to the petitioner. The facts in the petition must be sworn to by an accompanying affidavit of the petitioner, or his agent having a knowledge of them. The definite question to be asked should be propounded in the peti- tion, and not a general reference made to the Court for. its opinion. The petition should be presented to the Court ex parte, when direc- tion will be given who is to be represented or have notice of the hearing. The order of the Court should recite the petition. The facts sufficiently appear in the judgment of the Court. E- L. Wetmore, Q. C, for the petitioners. 1885. January 17. Palmer, J. : — This is an application to me by petition under sec- tion 130, chapter 49, of the Consolidated Statutes, for my opinion with reference to certain matters relating to the duties of the petitioners as executors of the late Isabella Brooks. The petition does not set out all the facts on which such opinion is asked, but a statement of some of them is made in affidavits used on the application. I do not think this is a correct or even safe practice, and I will decline to give the opinion asked for until the petition is amended; and, as the profession' do not appear to understand the practice in these applications, I will now endeavour to lay down some rules by which I will hereafter be governed in this regard. 1st. The application should be made as the section directs; that is, the Judge ought not to receive any evi- dence or affidavits to prove the truth of the statements 270 NEW BRUNSWICK EQUITY CASES. 1885. contained therein, the Court looking no further than to in re Isabella tlle statements in the petition. This is in accordance EsSSL witJl tne rule laid down by Wood, V.C., in Re Mugge- Pai^.j. ridge's Settlement (1), and in Re Barrington's Settle- ment (2). The effect of this rule will be that the appli- cant states the facts correctly or the opinion obtained will be no protection. 2nd. Although the facts contained in the petition will require no proof, yet the petition should be accom- panied by an affidavit of petitioner, or his agent having knowledge of the matters, that he believes the state- ments contained in the petition to be true. The sole object of this is to> convince the Court that the case is not a fictitious one, for the Court will not give an opin- ion upon a fictitious case : Re Box, 11 W. E. 945 ; G-ode- froi on Trusts, 109. 3rd. The definite question to be asked should be propounded in the petition, and not a general reference made to tihe Court for itsi opinion. See Re Lorenz's Set- tlement (3). 4th. The order that the Court is called upon to make should recite the petition, so that all the facts pre- sented for the consideration of the Court and on which its opinion is founded 1 , are made to appear in the order. This must be so from what Wood, V.C., said in Re Muggeridge's Settlement. 5th. The petition should be presented to the Court in the first instance ex parte, when the Court will direct who is to be represented, or have notice of the hearing, in accordance with what is said in Re Muggeridge's Settlement- Section 130, chapter 49, is reproduced in section 212 of the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), and is taken from Lord St. Leonards' Act, 22 & 23 Vict. c. 35, s. 30. The ap- plication should be by petition, and not by summons: Re Den- nis, 5 Jur. N. S. 1388. No affidavits, therefore, ought to be filed, a,nd the costs of them will be disallowed: Re Muggeridge's Trust. Johns. 625; 6 Jur. N. S. 479; Re Mockett's Will, Johns. 628 ; Re Barrington's Settlement, 1 J. & H. 142. What parties are to be served is in the discretion of the Judge. In Re Mug- geridge's Trust, Johns. 625, Wood, V.-C, was of opinion that (1) 29 L. J. Gil. 288. (2) 1 J. & H. 142. (3) 1 Dr. & Sm. 401 ; 7 Jur. N. S. 402. NEW BRUNSWICK EQUITY CASES. 271 the proper course was not to serve the petition on any one in igg 5 _ the first instance, but to apply at Chambers for a direction as to the persons to 'be served; and Malins, V.-C, thought the ques- j n re Is^bklla tion of service ought to he dealt with at the hearing of the peti- bmoks tion- Re Cook's Trust, W. N. (1873) 49. V.-C. Kindersley, how- ever in Re Green's Trust, 6 Jur. N. S. 530, laid down the rule that' the petitioner should serve such persons as he thought pro- per, before bringing on the petition. He said he wished it to he understood that he would never permit a petition under Lord bt. Leonards' Act to be brought on merely for the purpose of ascer- taining who were to be served; the petitioners must serve such persons as they thought proper. Any other course was so mani- festly inconvenient that he and the other Judges had agreed to pursue the course he now spoke of. It is not in every case neces- sary to serve the persons interested: In re French's Trusts, L. R. 15 Eq. 68, where the question was as to the power of trus- tees to make certain investments. And In re Larken's Trust, W. N. (1872) 85, the Court dispensed with service on cestuis que trust to whom the trustees proposed to make an advancement, if pr< per. And see Re Tuck, W. N. (1869) 15, where it was held unnecessary to serve children absolutely entitled to the property in question. The section is intended to ena,ble the Court to advise executors and trustees in matters of discretion vested in them, and not to determine nice questions of law, or questions of con- struction: In re Foxwell's Estate, 1 N. B. Eq. 195. In In re Williams, 22 A. R. 196, Osier, J.A., quoted the following state- ment of the object of the Act from Walker & Elgood's Law of Executors (2nd ed.), 289: " 'The object of the enactment is to assist trustees in the execution of their trust as to little matters • of discretion; a petition under the Act should relate only to the management and investments of trust property. Therefore the Court will not, upon such a petition, construe an instrument, or make any order affecting the rights of parties to property. Nei- ther will the Court give an opinion upon matters of detail, which cannot be properly dealt with without the superintendence of the Court and the assistance of affidavits.' " " The object of the Act was to procure for trustees at a small expense the assistance of the Court upon points of minor importance arising in the management of the trust. Thus the Court, upon the petition of the trustees of a fund for the separate use of a married woman, a lunatic, has sanctioned the payment of the annual produce to the husband, whose income from property did not exceed £20, he undertaking to apply the same for the benefit of his wife and family: Re Spiller, 6 Jur. N. S. 386. So the Court will advise trustees as to investment of trust funds, payment of debts, or legacies, etc.: Re Lorenz's Settlement, 1 Dr. & Sm. 401; Re Knowles' Settlement Trust, W. N. (1868) 233; Re Murray's Trusts, W. N. (1868) 195; Re Tuck's Trusts, W. N. (1869) 15; and whether trustees of a remainder can with propriety concur with the owner of the particular estate in thp sale of the fee simple: Earl Pou- lett v. Hood, L. R. 5 Eq. 116; and whether trustees can pro- perly grant a lease upon certain terms: In re Lees' Trusts, W. N. (1875) 61; exercise a power of sale: In re Stone's Settlement, W. N. (1874) 4; or a power of maintenance or advancement "under the circumstances stated: Re Kershaw's Trusts, L. R. 6 Eq. 322; In re Breeds' Will, 1 Ch. D. 226; and whether calls on shares in companies should be borne by the testator's general estate or the legatees: Re Box, 1 H. & M. 552. But the Court will nnt Five an opinion upon matters of detail which cannot be properly dealt with without the superintendence of the Court and the 272 NEW BRUNSWICK EQUITY CASES., 1 qdc assistance of affidavits, such as the laying out a particular sum xag0, on improvements: Re Barrington's Settlement, 1 J. & H. 142; in re Isabella nor will the Court adjudicate upon doubtful points, the decision Brooks' of which would materially affect the rights of the parties inter-. Estate. es ted: Re Lorenz's Settlement, 1 Dr. & Sm. 401; Re Hooper's Will, 29 Beav. 656; Re Evans, 30 Reav. 232; Re Bunnett, 10 Jur. N. S. 1098:" Lewin on Trusts (7th ed.) 535. Questions as to construction and validity of bequests have been determined un- der the section: Re Michel's Trust, 28 Beav. 39; Re Green's Trusts, 6 Jur. N. S. 530; Re Elmore's Will, 6 Jur. N. S. 1325; Re Davies' Will, 7 Jur. N. S. 118; but these decisions seem to be overruled by the cases cited in the concluding paragraph from Lewin, supra. And see In re Foxwell's Estate, supra; and In re Csesar's Will, 13 Gr. 210. In Marsh v. Attorney-General, 3 L. T. N. S. the Court thinking the question raised too difficult to be decided on petition, directed a bill to be filed. The opinion of the Court is not subject to appeal, and a bill may subsequently be filed: Re Mockett's Will, Johns. 628. For a form of petition see Re Miles' Will, 27 Beav. 579; 29 L. J. Ch. 47; 5 Jur. N. S. 1236; and cf. Re Pitt's Will, 5 Jur. N. S. 1235; and Leggo's Ch. Forms, 471. For forms of order, see Seton (4th ed.), 491. " The costs of the application are in the discretion of the Judge, and will in general be directed to be paid out of the corpus of the trtist estate: Re Leslie, 2 Ch. D. 185; Re McVeagh, Seton, 491; Re Elwies, Hid; unless the application relates to the income of the property, in which case the costs may be ordered to be paid out of income: Re T.. 15 Ch. D. 78; Re Spiller, 6 Jur. N. S. 386." Dan. Chan. Pr. 2233. 1885. ATTORNEY-GENERAL FOR THE PROVINCE OF NEW BRUNSWICK v. THE HONOURABLE JOHN HENRY POPE, ACTING MINISTER OF RAILWAYS AND CANALS, THE MINISTER OF JUSTICE FOR CANADA, AND JABEZ B. SNOWBALL. Government Railways Act, a Vict. c. 25 (D.), >. 5, ss. 7 and 8, and s. 49— Construction — Public Nuisance — Injunction. The Court of Equity has jurisdiction to interfere by injunction in cases of nuisance to the public. Circumstances considered under which the Court of Equity will interfere by injunction to restrain a nuisance to the public. By section 5, sub-section 7 of The Government Railways Act, 44 Vict. c. 25 (D.), the Minister of Railways has full power and authority . . . "to make or construct in, upon, across, under or over any land, streets, hills, valleys, roads, railways or tram- roads, canals, rivers, brooks, streams, lakes or other waters, such- temporary or permanent inclined plants, embankments, cuttings, aqueducts, bridges, roads, sidings, ways, passages, conduits, drains, piers, arches or other works as he may ihink proper. And by sub- NEW BRUNSWICK EQUITY CASES. 273 section ti " To alter the course of any river, canal, brook, stream or water-course, and to divert or alter as well temporarily as permanent- ly the course of any such rivers, streams of water, roads, streets or ways, or raise or sink the level of the same, in order to carry them over or under, on the level of, or by the side of, the rail- way, as he may think proper; but before discontinuing or alter- ing any public road he shall substitute another convenient road in lieu thereof; and the land theretofore used for any road, or part of a road, so discontinued, may be transferred' by the Min- ister to, and shall thereafter become the property of the owner of the land of which it originally formed a part." Section 49 of the Act provides that " The railway shall not be carried along an existing highway, but merely cross the same iu the line of the railway, unless leave has been obtained from the proper municipal or local authority therefor; and no obstruc- tion of such highway with the works shall be made without turning the highway so as to leave an open and good passage for carriages, and on the completion of the works, replacing the highway; but in either case, the rail itself, provided it does not rise above or sin. below the surface of the road more than one inch, shall not be deemed an obstruction: Provided always, that this section shall not limit or interfere with the powers of the Minister to divert or alter any road, street or way, where another convenient road is substituted in lieu thereof, as pro- vided in the eighth sub-section of section five?' Held, that by section 5, sub-sections 7 and 8, power is given to con- struct a railroad on, along, and over a highway to the extent of occupying the whole of it, and not merely alongside of it, and that section 49 does not limit this power. 1885. Attorney- General v. Pope Fraser, J. The facts of the suit are fully stated in the judg- ment of the Court. Attorney-General for New Brunswick, in person. L- R. Harrison, for the acting Minister of Railways and Canals, and the Minister of Justice. The defendant, Jabez B. Snowball, did not appear. 1885. March 23. Fraseu, J. :— This was an information and bill of complaint by the Attorney-General of New Brunswick, praying that the defendant, Snowball, and the defendant, the acting Minister of Bailways and Canals, might be restrained by injunction from interfering with, disturbing, ob- structing or destroying the highway in the information described, being the highway of the parish of Derby, in the county of Northumberland, leading from New- castle to Frederictom, between the property occupied EQ. CAS.— 18; 274 NEW BRUNSWICK EQUITY CASES. 1.885. Attorsey- Geneeal V. Pope. Fraser, J. by J. & J. Miller & Co., as a bark extract fac- " tory, and the property of one Edward Murphy, in the information mentioned, until authority therefor be had and obtained from the Government of the Province of New Brunswick, or such other local authority as might have power in the premises, and until another highway be made, so as to allow of good and safe passage of per- sons and carriages, and from carrying the railway as a branch of the Intercolonial Railway from Derby station to Indiantown, a distance of fourteen miles, as described in the information, along the existing highway in the said parish of Derby without leave first obtained from the proper local authority, and until another convenient road should be substituted in lieu thereof. The application for this injunction was made to me, and after reading the information and affidavits then produced, although not without some hesitation', and only upon the urgency of the case as stated by the Attorney-General, I concluded to grant an interim order with leave to move for an injunction, and so informed the Attorney-General, and requested him, as I was about leaving Fredericton for a short time, to apply to Mr. Justice Wetmore, to whom I had spoken on the subject, for the interim order. The interim order was obtained from Mr. Justice Wetmore, with a direction that the hearing of the motion for the injunction should take place before me at Woodstock, as I would, at the time appointed for the making of the motion, be there on circuit. The motion for the injunction was pro forma made to me at Woodstock, and on the application of counsel for the defendants, the acting Minister of Railways and the Minister of Justice, I postponed the hearing until the 9th December last, then to take place before me at Bathurst, where I would then be on circuit. The hearing was commenced before me at Bathurst at the time appointed, and some preliminary objections being taken, the further hearing was postponed until the 16th December last, then to be had before me at Fredericton. NEW BRUNSWICK EQUITY CASES. 275 At the hearing at Fredericton, which took place on the 16th and 17th December last, the preliminary ob- " jections were first argued. The ground of complaint in the information and bill is that the defendant Snowball was the contractor, with the defendant, the acting Minister of Railways, for the building of the road bed and the laying of the sleepers and rails for the proposed line of railway to be built by the Government of Canada as a branch of the Intercolonial Railway from Derby station to Indian- town, a distance of fourteen miles, and that, as such contractor, he had interfered with the grade of the high- way road from Newcastle to Frederiotom ; in some places lowering the level or road bed of the said highway as much as three feet, and materially interfering with the use of the same as a highway and rendering the use of same inconvenient and dangerous, narrowing it in width and otherwise obstructing and rendering dangerous its use for highway purposes. The information also alleged that both the highway and the proposed railroad, be- tween the points alleged,ran along the bank of the south- west branch of the Miramichi river, and so close to the said river that there was not room for both the said highway and the said railroad to run between the river bank and the houses of the inhabitants without en- croaching upon each other, and that the defendant Snowball had declared his intention of proceeding to completion with the said railroad notwithstanding that by so doing he would encroach upon, obstruct, encumber and make dangerous, and even destroy the said highway. The information further alleged that neither the defen- dant Snowball, no.r the defendant the acting Minister of Railways and Canals, nor the Government of Canada, have sought or obtained for what has been done in the obstructing or disturbing of the said highway, any con- sent or authority from the Government of this Province, or the municipality of Northumberland, or any other local authority having power to give such consent or authority; nor have they made any other highway be- tween the points aforesaid in lieu or place of the" said 1885. Attorney- General Pope. Fraser, J. 276 NEW BRUNSWICK EQUITY CASES. 1885. attobney- Genebal V. Pope. Traser, J. highway so being encumbered and destroyed as afore- " said; nor made any provision whatever for the safe pas- sage of persons and carriages between the points afore- said, and that the defendant Snowball openly declared that he is neither bound to make any such other highway or provision for the safe passage of persons and carriages between the points aforesaid, nor had he any intention of making such highway or provision for the safe pas- sage of persons and carriages between the points afore- said. The information further alleged that the said rail- way could with equal facility, usefulness and at no in- creased cost, be built in the rear of the dwellings of the inhabitants, and the said building of it would be of much less damage and much greater convenience and advantage to the inhabitants than where it is projected and laid down to be built. Affidavits were produced in support of the informa- tion which clearly showed that the works of the defen- dant Snowball, as contractor of the Dominion Govern- ment for the construction of the railway in question, did interfere with the highway road from Newcastle to Fredericton, between the points mentioned in the in- formation, by lowering its grade in certain portions of it, and by removing in certain places portions of the highway over which the public usually travelled, and rendering it less convenient, and, in some respects, dan- gerous for public travel. The defendant Snowball, the contractor, did not appear before me at the argument by counsel, nor were any affidavits read on his behalf. The affidavits pro- duced in answer to the application were produced by counsel who appeared on behalf of the defendant the acting Minister of Eailways, and who also appeared on behalf of the defendant, the Minister of Justice, taking the objection on behalf of the latter, that he ought not to have been made a party to the information, and on behalf of both the acting Minister of Railways and the Minister of Justice that as ministers and officers of the Crown they are not subject to an injunction when per- forming the duties of their office. NEW BRUNSWICK EQUITY CASES. 277 The affidavits produced in answer to the application were produced by the counsel who appeared on behalf of the defendant, the acting Minister of Railways. These affidavits went to show that although there had been obstructions of the highway road by the de- fendant, Snowball, the obstructions had not been such as to endanger travel thereon or impair the usefulness or convenience of the highway for the purposes of public travel in the slightest possible way, and that in any place where the carriage-way had been interfered with or diverted, another way quite equal to it, or better, had been substituted in place of it. The affidavits of Peter S. Archibald, the, chief engi- neer of the Intercolonial Railway, and of Zaccheus J. Fowler, the engineer in charge of the Indiantown Branch Railway, state that in the contract between the acting Minister of Railways and Snowball, road diver- sions were provided for, and that if Snowball carried out his contract according to its terms, the highway would not be so obstructed as in any way to interfere with the public traffic thereon. The 10th paragraph of Fowler's affidavit is as fol- lows: " In answer to the 9th paragraph of the affidavit of Francis P. Henderson, I say that the statements therein contained are incorrect, and that a highway suitable for all purposes of public travel and conveni- ence can be obtained without either running it in the rear of a number of dwellings or removing any of them" ; and the 11th paragraph of the same affidavit is as fol- lows : " That, as engineer in charge of the work, I gave such orders and directions to the foreman of the defen- dant, Jabez B. Snowball, as would, if carried out, leave at all times a properly graded and constructed carriage- way of not less than twenty-five feet in width, wherever the said highway has been in any way interfered with by the said branch line; which orders and directions have been substantially complied with." The affidavits produced in reply by the Attorney- General state in effect that to construct the railway in question in its present location, would practically de- stroy the usefulness of the highway for public travel, 1885. Attoknbt- General v. Pope. Fraser, J. .278 NEW BRUNSWICK EQUITY CASES. 1885. Attobney- . General Pope. Fraser, J". and thft 10 provide the requisite highway would neces- sitate the removal of several of the buildings of the in- habitants fronting adjacent to the road; or, if such build- ings were not removed, would necessitate the construc- tion of an entirely new highway in the rear of the resi- dences of the inhabitants. Attached to one of the affidavits in reply are copies of the memorials of several of the inhabitants of North- umberland to both the Dominion- and Provincial Gov- ernments, from which it appears that the petitioners sought at the hands of the Dominion Government a change of the line of railway to a line in the rear of the houses of the inhabitants, which they called the " Fow- ler " line, a line about half a mile back from the river; and at the hands of the Provincial Government their aid to induce the Dominion Government to construct the railway on the "Fowler line," and while in these memorials it is no doubt alleged that the building of the branch road upon the line located by the Dominion Government would cause changes in and interfere with the highway and cause a great deal of expense and in- convenience, as the space between the houses of the residents was not sufficient to admit of the construction' of the railway, and the keeping of the highway in i+s present location, and that the railway could be con- structed on the " Fowler line " at much less expense to the Dominion Government, yet it is apparent that the principal object the memorialists were aiming at was procuring a change of location and the construction of this portion of the branch railway on the " Fowler line." The affidavits in reply also state that the interfer- ence with the highway, by the construction of the pro- posed branch railway, would seriously encroach upon the highway so as to impair its usefulness for the pur- pose of public travel; and the affidavits of the Chief Commissioner of Public Works, and of Mr. Beckwith, the engineer of the Public Works Department, show that at some points the railway would encroach upon and appropriate somewhere about 25 or 26 feet in width of the highway road, and these last mentioned affidavits further allege a personal inspection by both deponents NEW BRUNSWICK EQUITY CASES. 279 of tie locus in quo, and a positive denial of the state- ments in the affidavits produced on the part of the de- " fendants, — that where the carriage-way had been inter- fered with another quite equal to it, or better, had been substituted in place thereof; and Mr. Beckwith in his affi- davit further states that there was no trace of any new work or new road whatever; that there was no room for any such change of the roadway between the railway track and the fence of the highway; and that the only thing done had been to fill up the ditch of the highway on the fence side at two places for about two rods at each place, and not more; and that the filling up of the ditch at these points was a serious injury to the road, as it interfered with the drainage, and was of no ad- vantage to the public whatever. Several of the affidavits in reply, while setting forth encroachments upon the highway, and the impractica- bility of having a sufficient highway between the houses of the inhabitants and the railway, set forth that there is no difficulty whatever in finding an easy and practi- cable route for the railway in the rear on the " Fowler line." In the view I take- of this case, it is not necessary to determine the preliminary objections taken that affi- davits sworn to before the bill was sworn to could not be read in support of the application for the injunction, nor to consider any other of the objections taken to the affidavits on both sides, as well as the affidavits in reply. The injunction 1 applied for is sought by the Attor- ney-General upon the ground that the road in the infor- mation and bill mentioned, which is one of the great roads of the Province, has, in several places between Miller's bark factory and Edward Murphy's, in the par- ish of Derby (the distance between such points being about one and a quarter miles), been encroached upon, its grade level reduced, and the space for public travel lessened in width some 15 to 20 feet, and, generally, that travel upon it between these points has been rendered dangerous; and that this has been caused by the works and operations carried on in the building and construc- tion of the Indiantown branch of the Intercolonial rail- 1885. Attohney- Genkiul V. Pope. Fraser f J. 280 NEW BRUNSWICK EQUITY CASES. 1885. Attobney- General Pope. Fraser, J. way, being a branch line from Derby station, on the " Intercolonial railway, to Indiantown. It was claimed by the Attorney-General that^sections 49 and sub-sections 7 and 8 of section 5 of The Govern- ment Railways Act, 1881, Act of the Parliament of Can- ada, 44 Vict. c. 25, are ultra vires of the Parliament of Canada, and that that Parliament had no power to au- thorize the appropriation of any part of a highway for railway purposes; that if they could authorize the ap- propriation and use of a highway for railway purposes, they must first provide a new highway, and it was shown that no such new highway had been provided; that no consent of the municipal or local authority had been obtained; and even if obtained, that it would not be of any avail as the municipal or local authority in New Brunswick had mo power to give any consent to interfere with any great road in the Province. In answer to the grounds taken for the injunction, in addition to the preliminary objection, it was urged by counsel for defendants that the Minister of Justice was improperly made a defendant; that the Court had no power to grant an injunction against the Minister of Railways or the Minister of Justice, as they were officers of the Crown, .and not subject to an injunction when performing the duties of their office ; and that even if the Crown had entered wrongfully into the possession of lands, that a petition of right, and not an injunc- tion, was the proper remedy; and even admitting that the highway had been encroached upon, and to an ex- tent to amount to a nuisance; and while in some cases an injunction might be a remedy, the granting of an injunction was a matter of discretion and rested upon the balance of convenience or inconvenience, and that the facts of this case did not show that the interests of the public required an injunction, or show any sufficient reasons for granting an injunction. The Indiantown Branch Railway is a public work of Canada, and is being constructed by the Government of Canada as a branch of the Intercolonial Railway, the defendant being the contractor with the Government of Canada for the doing of a portion of the work. NEW BRUNSWICK EQUITY CASES. 281 I do not think that there is anything in the objec- tion taken by the Attorney-General that the sections to which he refers in The Government Kailways Act, 1881, are .ultra vires of the Parliament of Canada. Then what are the powers given and the rights con- ferred by these sections? By the 49th section it is en- acted that the railway shall not be carried along an existing railway, but merely cross the same in the line of the railway, unless leave has been obtained from the proper municipal or local authority therefor; and no obstruction of such highway with the works shall be made without turning the highway so as to leave an open and good passage for carriages, and on the com- pletion of the works, replacing the highway; but in either case the rail itself, provided it does not rise above or sink below the surface of the road more than one inch, shall not be deemed an obstruction; provided always that this section shall not limit or interfere with the power of the Minister to divert or alter any road, street or way where another convenient road is substi- tuted in lieu thereof, as provided in the 8th sub-section of section 5. It was urged by the Attorney-General that the words " the railway shall not be carried along an ex- isting highway," used in this section, meant and were intended to mean alongside of the highway. I cannot think that such is the meaning of the word " along." I think that word, as used in the section, means over and along the surface of the highway, and not alongside of it. Sub-section 7 of section 5 is as follows: " To make or construct in, upon, across, under or over any land, streets, hills, valleys, roads, railways or tramroads, canals, rivers, brooks, streams, lakes or other waters, such temporary or permanent inclined planes, embank- ments, cuttings, aqueducts, bridges, roads, sidings, ways, passages, conduits, drains,, piers, arches, or other works as he may think proper." And sub-section 8 of section 5 is as follows: "To alter the course of any river, canal, brook, stream or watercourse, and to divert or alter as well temporarily as permanently the course of any such rivers, streams 1885. Attorney- General Pope. Fraser, J. •282 NEW BRUNSWICK EQUITY CASES. 1885. Attorney- General -if. POPB. Fraser, J. of water, roads, streets or ways, or raise or sink the level of the same, ini order to carry them over or under, on the level of, or by the side of, the railway, as he may think proper; but before discontinuing or altering any public road he shall substitute another convenient road in lieu thereof; and the land heretofore used for any road, or part of a road, so discontinued may be trans- ferred by the Minister to, and shall thereafter become the property of the owner of the land of which it origin- ally formed a part." Reading section 49 and the sub-sections 7 and 8 of section 5 together, I think it clear that under section 49, if it is desired that the railway shall be carried on and over, that is along the surface of a highway, .which high- way it is not intended shall be thereby rendered wholly useless as a highway, but which may be used as such, notwithstanding the railway running over it in part, that then the Minister of Railways and Canals shall first obtain from the proper municipal or local authority leave to carry the railway along such highway; if, how- ever, it was necessary to d_o more than carry the road on, along or over the highway as just mentioned, then by the 7th sub-section- the Minister of Railways and Canals may absolutely make and construct such tem- porary or permanent inclined planes, embankments, cut- tings, aqueducts, bridges, roads, sidings, ways, pas- sages, conduits, drains, piers, arches or other works as he may think proper; in effect (inter alia) construct the railway over and along the surface of the highway; and by the 8th sub-section he may divert or. alter, as well temporarily as permanently, the course of any rivers, streams of water, roads in, upon, across, under, or over any land, streets, hills, valleys, roads, * * * in or- der to carry them over or under on the level of or by the side of the railway as he may think proper; but before discontinuing or altering any public road, he shall sub- stitute another convenient road in lieu thereof. I think the reasonable construction of the 49th sec- tion and the 7th and 8th sub-sections of section 5 read together to be this; the provisions of section 49 (without NEW BRUNSWICK EQUITY CASES. 283 the proviso) limit and restrict the powers given by sub- section 7 as to constructing a railway on and along and over the surface of a highway, unless leave has been obtained from the proper municipal or local authority therefor; but the proviso in this same section declares that the section shall not limit or interfere with the powers of the minister to divert or alter any road or way where another convenient road is substituted in lieu thereof, as provided in the 8th sub-section of section 5, that is, under sub-section 8, the whole highway may be taken for the railway by the Minister, and thus be diverted; but, before diverting it, the Minister shall sub- stitute another convenient road in lieu thereof. Had I to determine who, in this Province, would be the proper municipal or local authority from whom the leave mentioned in the 49th section should be obtained; or whether any municipal or local authority had the power to give such leave, I might find it difficult to do so; but, I do not, in the view I take of the case, con- sider it necessary that I should express any opinion in respect to it, nor consider what would be the construc- tion of the 49th section if there were no proper municipal or local authority from whom leave could be asked, and, consequently, by whom it could be refused, or from whom it might be obtained. It seems clear that under The Government Railways Act, 1881, the Minister of Railways, in the construction of any railway, being constructed as a public work by the Government of Canada, has the power, within the limitations I have mentioned, to appropriate f&r the ^purposes of such construction not only a part, but the whole of any highway, and what the Legislature has authorized cannot be a nuisance in law. No doubt the acts complained of by the information and bill, as done under the contract between the defen- dant Snowball, and the Minister of Railways, that is, the placing of portions of the railway upon the highway, and thus narrowing it in its width, the lowering the grade and cutting down of portions of the highway, are all acts which would, without legislative authority for them at common law, be nuisances; but where full and 1885. Attorney- Genebal V. Pope. Fraser, J. 284 NEW BRUNSWICK EQUITY CASES. 1885. Attorney- General V. Pope. Praser, J. ample powers are given by the Legislature to the Minister of Railways to use audi take highways, or any part of them, for the construction of a railway, even though the provisions of the statute authorizing it may not have been strictly followed, and the acts for that reason, per- haps, not strictly legal, the acts are to be looked at in a different light from acts which would of themselves be nuisances at common law, where the Court is called upon to exercise its discretion in the granting or refus- ing of an injunction for the doing of those acts. If the power to take and use for railway construc- tion the whole or any part of the highway, if it were found necessary to do so, is given to the Minister of Railways, and, as I have already stated, I have no doubt that such power is given to him in the terms mentioned in the Railway Act, then the contractor Snowball in going upon and taking the portions of the highway shown to have been taken for construction purposes, would only be doing an act for which there would be full legislative sanction and authority. It is, however, claimed by the Attorney-General, that if the section 49 and the sub-sections 7 and 8 of section 5 be intra vires of the Parliament of Canada, that the right of the Minister of Railways or his con- tractors to enter, is only given, and can only be exercised after another highway has been provided, and until the new highway is provided any entry is unlawful. The information and the affidavits used in its sup- port, state that no consent or authority for using the highway for railway construction had been sought for or obtained from the Government of the Province or the municipality of Northumberland county, or any other local authority having power to give such con- sent or authority, nor had the defendants made any other highway in lieu or place of the highway encum- bered and destroyed, nor made any provision whatever, for the safe passage of persons and carriages between the points described in the information. The affidavits in answer state that the highway be- tween Miller's bark extract factory and the Murphy NEW BRUNSWICK EQUITY CASES. 285 property had not in effect been seriously or perma- nently obstructed or interfered with, or obstructed or interfered with so as to endanger travel thereon, or im- pair its usefulness or convenience for the purpose of public travel in the slightest possible way, and in any place where the carriage-way had been interfered with or diverted, another road quite equal to it or better had been substituted in place thereof; in other words, that another convenient road had been substituted in lieu of the highway interfered with. The affidavits produced by the Attorney-General in reply, as I have already stated, expressly contradict these statements of the affidavits in answer, and also set forth that no new highway had been provided, but only something done in the filling up of the ditch of the highway on the fence side at two places, for about two rods at each place, and not more. The affidavits on the part of the information show that the defendant Snowball, the contractor, had stated that he would not make the necessary road diversions, and was not bound by his contract to do so ; while in the affidavits produced on the part of the defendants, it is claimed that the necessary road diversions are provided for in the contract, and are necessary work to be done by the contractor Snowball by the terms of his contract. The question then arises under these circumstances, and on this state of the case and of the facts, ought I to grant the injunction as prayed for by the information and bill, and restrain the defendants from interfering with the highway between the points named, being the Miller bark factory and Murphy property, until author- ity is obtained from the Government of the Province of New Brunswick, or other proper local authority, and until another highway and convenient road be substi- tuted in lieu of the highway interfered with. Without determining the questions raised by defen- dants' counsel, whether the Minister of Justice is pro- perly a party to the suit, and whether ministers of the Crown are or are not subject to an injunction when per- forming the duties of their office, and whether a peti- tion of right, and not an injunction, is the proper remedy 1885. Attorney- Genebal Pope. Fraser, J 286 NEW BRUNSWICK EQUITY CASES. 1885. Attorney- General Pope. Praser, J. for the alleged grievances, in regard to all which grounds I refrain from expressing any opinion, I think the application can be disposed of on other grounds. There seems to be no doubt that a Court of Equity may take jurisdiction of public nuisances by an informa- tion filed by the Attorney-General. In Attorney-General v. Forbes (1), Lord Cottenham said (2) : ' " With respect to the question of jurisdiction, it was broadly asserted that an application to this Court to prevent a nuisance to a public road was never heard of. A little research, however, would have found many such instances. Many cases might have been produced in which the Court has interfered to prevent nuisances to public rivers and to public harbours ; and the Court of Exchequer, as well as this Court, acting as a court of equity, has a well es- tablished jurisdiction, upon a proceeding by way of in- formation, to prevent nuisances to public harbours and public roads; and, in short, generally to prevent public nuisances." The cases to be found in the books in whicli appli- cations of this kind have been entertained are very numerous, but I will only mention three, as I intend hereafter to refer to these three, viz.: Attorney-General v. . Sheffield Gas Consumers' Go- (3) ; Attorney-General v. Cambridge Consumers' Gas Co- (4), and Attorney-General v. Ely, Haddenham and Sutton Railway Co- (5), and these all support the position tibJat this Court will take juris- diction of public nuisances and restrain them. It is very manifest, I think, from what is set forth in the in- formation, and from what is stated in) the affidavits and the memorials to the government's, of which copies are attached to the affidavits in reply, that the present pro- ceedings have originated from dissatisfaction with the location of the branch line of railway, that is, the running of the road between the houses of the inhabi- tants and the bank of the river, instead of at the dis- tance back of about half a mile on what is called the (1) 2 M. & C. 123. 13) 3 DeG. M. & d. 304. (2) At p. 133. (4) L. R. 4 Ch. 71. (5) L. K. 6 Eq. 106. NEW BRUNSWICK EQUITY CASES. 287 " Fowler line." The memorial to the Provincial Gov- ernment is dated the 8th October, 1884, and states that the memorial to the Dominion Government had been sent forward the same day, and mo doubt the peti- tioners, finding that their application was not likely to be acceded to, sought, by means of the present infor- mation of the Attorney-General, to secure a compliance with their wishes, for I find that the information is sworn to on the 5th November last, and in the me- morial to the Provincial Government it is stated that the contractor, Mr. Snowball, had already commenced work, and that the memorialists had made up their minds, if he began work in their section, to prohibit him from working if possible, and therefore asked if they could legally do so; at the same time adding that they had that day forwarded a petition to the Dominion Government requesting them to place this railway on a line about half a mile back, known as the Fowler line, and on which line the memorialists had already right of way. It is abundantly clear that the Government of Can- ada had the power to locate the road between the houses and the river, where it is located, even though there might not be sufficient space for both highway and rail- way between the houses and the bank of the river — in such case, if necessary, to make a convenient highway in lieu of the one appropriated; the houses might have to be moved, or a new highway might have to be made in rear of the houses. This latter alternative the me- morialists did not desire, for in their memorial to the Provincial Government, they state that to do so would place their back doors, barns and outhouses where their front doors should be, and would otherwise injure their property; and in some of the affidavits in reply it is stated that all the people in the locality were desirous, if the railway location remained as it was, that the high- way should not be carried in rear of their dwellings, as this would be to them an irreparable injury. From these statements I infer, and not unreason- ably so, that while one object of putting the Attorney- General in motion by means of the present information 1885. Attorxey- General Pope. Fraser, J. 288 NEW BRUNSWICK EQUITY CASES. 1885. Attorney- Genekai, Pope. Fraser, J. was to restrain what might be considered in law to be a public nuisance, the main and principal object of the parties who caused the Attorney-General to act, was to force the Government of Canada to change the location of the railway from the river front to the rear, that is, to the Fowler line. Although this may have been the object of the par- ties who by their representations caused the present proceedings to be instituted, what I have to determine is not that, but whether, on the facts submitted, such a case is made out as would warrant me in coming to the conclusion that the acts done amounted to a public nui- sance; and in the next place, if I did come to that con- clusion, then whether the nuisance caused such injury to the public and so seriously affected or endangered the public interest that the strong arm of the Court should be invoked and an injunction be granted. It must be determined from the facts in each par- ticular case whether what is sought to be established as a nuisance is, or is not, a nuisance, and each case must be determined by its particular circumstances. In Attorney-General v. Sheffield Gas Consumers' Go- (6), already referred to, the disturbance of a pave- ment in a town by an incorporated gas company, for the purpose of laying down gas pipes, was held not to be such a nuisance as to be. a 'sufficient ground for an injunction. Lord Cranworth, at page 313, says : '' I agree that there is no necessity for the intervention of a jury, to teach us that digging up a public highway is a public offence, ... or a public nuisance." And after referring to the dispute between the re- lators in that suit and the defendants, and to the fact that, in his opinion, such a case was not made out by the plaintiff company as to render it discreet for the Court to interfere by injunction, before the fact of pri- vate injury was established one way or the other by trial, he deals with the alleged injury to the public. In regard to that, on page 314, he says : " The grievance (6) 3 D. M. & G. 304. NEW BRUNSWICK EQUITY CASES. 289 complained of is, that in the progress of their works the defendants must do that which would constitute in point of law a nuisance. I dissent from Mr. Bolt's proposi- tion in point of law, that if it be once established that there is a public nuisance, there must be an injunction to restrain it." At p. 336 the same learned Judge says: " It appears to me that both the Lords Justices concur substantially on this point, that it is a question of degree whether the Court will interfere or not. If that be the right view of the case, then the question is, whether or not such a probability of substantial injury to the rights of the public passing along the streets of Sheffield, or the in- habitants using those streets, has been made out as to make it a reasonable exercise of jurisdiction for this Court to interfere by granting an injunction. I confess that in the course of the argument a doubt did pass through my mind whether the Lords Justices had rightly decided in August, but I have come to the conclusion, not only that that doubt was not well founded, but to a still stronger conclusion upon the hearing, that there is no case for enabling us to act otherwise than as we then acted. " Is the evil of such a nature as to justify the Court in interfering? It is said that the defendants are about to tear up the streets to 1 an extent, on one side repre- sented as 70 miles, on the other as 100 miles. Take it that 100 miles of the streets are to be torn up. It may be that before the defendants complete their works they will have taken up the pavement over 100 miles, but they will never have up above 20 yards at the same time, and they will never have even that length up, they say, for above two days. That agrees with one's experience from what one observes when similar works are going on in the metropolis. They are no sooner begun than ended. The circumstance of the works being perform- ed in this case in a vast number of places in the course of the next two or three years, or the next year, during which time the process of laying down the pipes will be going on, does not appear to me at all to vary the case. EQ. CAS. — 19 1885. Attorney- Genebal V. Pope. Fraser, J . 290 NEW BRUNSWICK EQUITY CASES. 1885. Attorney- Gen erai< V. Pope. Fraser, J. One must look at the quantum of evil at each particular " place, and at each particular moment of time, to deter- mine whether this injunction ought to be granted." This case establishes this principle in respect to in- junctions of this description, that the mere fact that the act done is a nuisance is not of itself sufficient a ground for an injunction; in short, that it is not every public nuisance that will be restrained by injunction, simply because it is a public nuisance, but the extent of the mischief must be looked at to justify the inter- ference of the Court, and in considering the judgment in the Sheffield gas case it must be borne in mind that the defendants had no legislative authority to do the acts they did, that is, to open up the streets and lay down the gas pipes. In Broadbent v. Imperial Gas Go- (7), Lord Chan- cellor Cranworth, while granting an injunction, adhered to the decision given by himself and Lord Justice Turner in Attorney-General v. Sheffield Gas Consumer^ Co., to which I have just referred, but added on page 462 : " Now, attending to the principles laid down in that case (the Sheffield! gas case), I cannot come to the con- clusion that there was anything there decided to war- rant this Court in withholding the relief of an injunction to a person seriously and constantly injured by unlaw- ful acts." Vice-Chancellor Malins, in the case of Attorney- General v. Cambridge Consumers' Gas Co. (8), disre- garded the case of Attorney-General v. Sheffield Gas Consumers' Co- (9), and, on an almost similar state of facts, granted an injunction, but his decision was re- versed on appeal and the Sheffield gas case followed (10). In Attorney-General v. Ely, Haddenham and Sutton Railway Co. (li), it was held that where a railway com- pany have diverted a road ultra vires, but with a bom fide view to the convenience of the public, a Court of Equity will not compel them to replace the road so as (7) 7 DeG. M. & G. 486. (8) L. E. 6 Bq. 282. (9) 3 D. M. & G. 304. (10) L. B, 4 Cb. 71. (11) L. E. 6 Eq. 106. NEW BRUNSWICK EQUITY CASES. 291 to maike their work intra vires, if the result will be to cause greater inconvenience to the public or the com- plaining section of the public. This was an information by the Attorney-General at the relation of ten inhabitants of Thetford owning or occupying land at Grunty Fen, praying for an injunction to restrain the' company from obstructing the public road from Thetford to Grunty Feu, and permitting it to remain obstructed, and from rendering it unfit or less convenient than it had theretofore been for the passage of foot passengers, horses, cattle, carts, and carriages, or at any rate so to restrain them until they should have made another sufficient road equally convenient, and if necessary, that they might be ordered to construct all bridges and other works necessary to prevent the road from remaining obstructed, or unfit, or less convenient than it had theretofore been. The contention on the part of the informants was that the acts of the defendants were in excess of their powers, and that they had done illegal acts by which they had obstructed the public road, and that if the defendants had done an illegal act, or illegal acts, the Attorney-General, a» parens patriae, is entitled to call upon the Court to put a stop to it, and had a right for that purpose to sue in any Court. The defendants contended that while they had obstruct- ed the road, what they had done was most convenient to the greatest number of the public who use the roads. During the course of the argument, the Master of the Kolls, Lord Eomilly, said : " Assuming that the defen- dants have unlawfully obstructed the road, I am dis- posed to think that the injury to the public and to the relators is too small to justify the interference of this Court." And in delivering his judgment in the case, after referring to the facts, he said : " It is not, in my opinion, the province of a Court of Equity to interfere to compel defendants, who have done something ultra vires, but bona fide, with the view of accommodating the public, to do something other than they, have done, which would be intra vires, and therefore legal, but would be more inconvenient to the public or the per- sons complaining than that which exists. It is said, and, 1885. Attorney- General Pope. Fraser, J . 292 NEW BRUNSWICK EQUITY CASES. 1885. Attobney- Genebal Pope. Fraser, J. as I have already said, I think it probable that another plan for a level crossing might be better, but I have no power to compel this directly, for if what is now done is ultra vires, so would the substituted level cross- ing, which would still be a diversion of the road, and it is not the province of a Court of Equity, under the threat of compelling defendants to do a very expensive work, which would be regular and according to their powers, to drive them into a compromise to meet the views of the persons who have set the Attorney-General in motion." This case is important, as establishing the principle that, although the defendants had unlawfully obstructed the road, the injury was not thought sufficient to justify the interference of the Court by way of injunction. This case was affirmed on appeal: Attorney-General v. Ely, Haddenham and Sutton Raihoay Co. (12). Applying the principles of the decision to the present case, and assum- ing which I will assume, that the Attorney-General has shown acts done on and to the highway in question which at common law would amount to a public nuis- ance, and for the purpose of my present judgment, going further and conceding that leave of the proper muni- cipal or local authority for the carrying of the railway on the highway was necessary and was not obtained, and that if the acts done were alleged to be done under the authority of the 49th section, the defendant Snow- ball had not brought himself within the provisions of that section, and that what he did had no legal justifi- cation, and would amount to a public nuisance, what is there then to distinguish the acts of the defendant Snow- ball from those in the cases of the Sheffield gas case and the Cambridge Gas Company's case? For the acts done in those cases there was no au- thority of law ; they were per se illegal aicts, and yet in both of those cases injunctions were refused upon the ground that the mischief was only of a temporary char- acter, and was not so serious and permanent as to jus- tify the interference of the Court by way of injunction. (12) L. B. 4 Ch. 194. General v. POPK. NEW BRUNSWICK EQUITY CASES. 293 It may be said that the present case is distinguishable 1885. from those cases in this particular, that while in the Attobnet . cases just referred to the streets would be only tempo- rarily interfered with for a few days at a time, and for only short distances in any street at a time, in the pre- Fras61 > J - sent case the encroachments upon the highway by lower- ing its grade and taking a portion of its width for the railway were permanent appropriations to that extent of the highway. No doubt the acts done would amount to a permanent appropriation of the highway, but the defendants say, We have a legislative right to take this highway and appropriate it permanently, and although in taking it we have not followed the provisions of the Act, yet your complaint must be based, not upon our taking it illegally, as you say, but upon this, that by our acts the public use of the highway is so interfered with and rendered so inconvenient and dangerous, and will so continue, that the further doing of the acts com- plained of should be restrained by this Court. While the portions of the highway taken and ap- propriated are taken and appropriated permanently it was claimed by the defendants that any interruption to public travel or to the public uses of the highway would be only temporary, and in the carrying on of railway works where highways or a portion of highways is taken for the railway, there must be more or less of interrup- tion to such a free and uninterrupted user of the highway as existed before such works began, and yet, while these interruptions might, in some instances, amount in law to a nuisance, this Court would not interfere to stop such a public work as a railway by granting an injunction, if it could be shown that the nuisance was only of a tem- porary character, and would not produce any lasting injury, and here what is claimed as making the interrup- tion only temporary while the occupation would be permanent is this, that due provision, as I shall here- after state, was made for the giving to the public an- other convenient road. Then, what is the evidence here as regards the character and extent of the interruptions to public travel. The affidavits on the part of the At- torney-General allege that the grade of the highway has 294 NEW BRUNSWICK EQUITY CASES. 1885. Attobnbt- General Pope. Fraser, J. been at some points lowered, and at other points the highway has been lessened in width, and that it is less convenient for the passage over it of carriages, and that it is, in fact, dangerous, and that collisions and acck dents have already occurred by reason of the railway works on the highway, and, on the other hand, the affi- davits on the part of the defendants set forth that the public travel is not interfered with, and that where por- tions of the highway have been taken, a substituted road has been provided, and the affidavits of several persons doing business in the neighbourhood, and some of them a large and extensive business, and to whom it was, as they state, of the greatest importance that the highway should be kept open, and in such a state as not to en- danger or obstruct the travel thereon, all set forth, that the highway was not obstructed or interfered with so as to endanger travel thereon, or impair its usefulness or convenience for the purposes of public travel in the slightest possible way, and the stage driver who passed daily (except Sundays) over the road, in his affidavit states, " nor has it (the road) been less safe, open and con- venient for purposes of public travel, since the construc- tion of said railway was commenced, than it was before the construction of said railway was commenced." The affidavits in reply state no new road has been provided, but that, as I have already stated, in twoi places the ditch on the side of the highway has been filled in for a short distance. I do not think the granting or refusing of an injunction depends upon whether there has or has not been some inconvenience to the public in their use of the highway by the acts done, but whether such acts have occasioned such serious and permanent, not tem- porary, injury to the public, as to justify the interposi- tion of the Court by injunction. The defendants say, while there may be some inconvenience, the inconveni- ence is only temporary, for by the contract with the Minister of Eailways made with the defendant Snowball provision was made for the making road diversions (and by road diversions I understand the making of another convenient road in lieu of the road taken and appropri- ated) where the highway or any part of it might be NEW BRUNSWICK EQUITY CASES, 295 taken for the railway. James Carter in his affidavit used! in support of the application, states that he had a conversation with the defendant Snowball, and that he informed him that he intended to go right on with the building of the branch railway, and would take up the whole highway if required, and that he would not provide another highway, as that was not part of his contract ; and 1 that he would continue the work unless he was stopped by legal measures. We have on the part of the defendants a copy of the con- tract between the Minister of Railways and the defend- ant Snowball for the construction of this branch rail- way, and also a copy of the specifications which are made a part of the contract, in which provision is made for road diversions as follows: " Diversions of the Pred- ericton Post Road shall be made at the places indicated on plan. The road must not be left less than 25 feet wide, properly graded and side-ditched, gravelled and made satisfactory to the road commissioner or super- visor"; and the affidavit of Mi'. Archibald, the chief engi- neer of the Intercolonial Railway, and of Mr. Fowler, the engineer in charge of the construction of this Indian- town branch railway, show that on the plan referred to on the specifications, due provision is made for the con*- struction by the contractor of a good, proper and con- venient highway for the public, whenever, in the con- struction of said railway, it is found necessary to divert the carriage-way. Is a contest or dispute, then, between the Minister of Railways and Snowball, the con- tractor, as to whether the making of these road diver- sions was within the terms of the contract or not, a suf- ficient ground for asking the interference of this Court by injunction? I think not, and here I may observe that there is not the slightest evidence before me that Snow- ball is not bound to make these road diversions, but the very contrary appears. All we have in regard to his not being obliged to do so is the statement in Mr. Carter's affidavit that Snowball in November last, in a conversa- tion, told him (Carter) that he would not provide another highway, as that was not part of his contract, but Mr. 1885. Attobney- Genekal V. Pope. Fraser, J 296 NEW BRUNSWICK EQUITY CASES. 1885. Attoiiney- Genebal V. Pope. Fraeer, J. Snowball has carefully abstained from making any affi- davit that it was not part of his contract, either on the original application, or when the affidavits in reply were procured, when hie could have made such an affidavit; while by the copy of the contract and specifications be- fore me, it appears that Snowball is bound to make the road diversions, and both Mr. Archibald and Mr. Fowler, in their affidavits, state that the defendant (Snowball) is bound under his contract to make these road diversions. That being so, we then have the further fact that in the contract for the construction of this branch railway it was contemplated that portions of the highway would be taken, and permanently taken, for construction pur- poses, and due provision was made for the providing of the necessary substituted convenient road. Several of the affidavits on the part of the defend- ants allege that where the highway had been in any way interfered with or diverted, another quite equal to it or better had been substituted, while the affidavits on the part of the plaintiff deny this. Can I then, or ought I, where there is assertion on the one side and denial on the other, not only on this point, but as to whether, in fact, there was any real seri- ous interference with public travel over the road in question, although there might possibly be some incon- venience, to grant the injunction as prayed for? I do not think, considering all the facts before me, that I would be justified, for the reasons urged, in stopping by in- junction a public work like the one in question — a branch of the Intercolonial Railway, and a work being constructed out of the general revenues of the Dominion, and in the interests of the general public, and not for the benefit of private advantage or gain. I am further inclined to this opinion from the conclusion I have drawn, from the memorials to the Dominion and Pro- vincial' Governments, the frame of the injunction and the affidavits, that the machinery in this case was put in motion, not because there was, or was likely to be, any serious or permanent injury to the travelling public by reason of the obstructions to which the affidavits re- fer, but for the purpose of serving the private ends of NEW BRUNSWICK EQUITY CASES. 297 a section of the public, and of driving the Government of Canada into a compromise to meet the views of ,the persons who had set the Attorney-General in motion. The result I have, therefore, reached in the case is this, that whether a convenient road has or has not been substituted where, by reason of the railway works, the highway has been interfered with (and to determine this owing to the conflicting statements in the affidavits, I might, had my decision to rest upon this ground, have found it necessary to seek further information in some of the ways open to the Court), and even, although no convenient road had been substituted, and the acts done were a public nuisance, I am not satisfied that the in- jury done thereby to the public, or likely to be done to them (in fact none is likely to be done to them if the contractor carry out the terms of his contract) is of a serious nature, and I have already intimated that the injury cannot be looked upon as of a permanent char- acter, and, therefore, in my opinion, there is not that extent of mischief that would justify the interference of the Court by injunction. The order, therefore, I make is, that the interim order granted by Mr. Justice Wetmore, and subsequent- ly from time to time extended by me, be discharged, and the injunction applied for refused. As to the costs of the application, I have not come to any conclusion, and should I think the case is one in which costs ought to be given, there would then come up the question whether I can award costs to be paid by the Attorney-General where he files an informal bill without relators. This question of costs I reserve. So far as I have been able to consider the question, I do not think that under our practice, where an injunc- tion is applied for before information 1 and bill is filed that I could direct the information to be dismissed, and I do not make any order in that respect, but reserve it with the question of costs for further order. If it be necessary, I do not say it is, and the Attor- ney-General desires it, I would direct that the refusal of the injunction be without prejudice to his taking such 1885. Attokney- GENEItAL V. Pope. Fraser, J. 298 NEW BRUNSWICK EQUITY CASES. 1835. ATTORNEY- CM ERAL V. Pope. Fraser, J. steps at law as lie may see fit, by way of indictment or otherwise, to abate any obstruction or nuisance which he may consider to exist on the highway in question. It is to be regretted that the learned Judge did not find it necessary to examine the merits of the objection taken by the Minister of Railways and Canals, that the only remedy available to the public for any grievance sustained by them from his acts was by petition of right. The question was also raised but left undecided in Felkin v. Lord Herbert, 30 L. J. Ch. 604. A local board of health filed a bill for an injunction against Lord Her- bert as Secretary of State for the War Department, to restrain him from stopping up a ditch, the War Office having nearly filled the ditch with soil. The defendant appeared under protest to argue the question of jurisdiction, and submitted that the plain- tiff should proceed by petition of right, and not by bill. Kinders- ley, V.-C, declined to decide the question, holding that it should have been raised by demurrer or otherwise after appearance. When the case came again before the Court, 9 W. R. 496, the defendant did not appear. The Vice-Chancellor, how- ever, refused the injunction on the ground that there had not been such an injury or invasion by the defendant of the public rights as to require an injunction against him. In Raleigh v. Gosclien, [1898] 1 Ch. 73, the plaintiffs com- menced an action against the Lords of the Admiralty in their official capacity for certain alleged acts of trespass and an injunc- tion to restrain further trespass. It was held that though the de- fendants could be sued individually for trespasses committed or threatened by them, they could not be sued as an official body, and that as the action was a claim against the de- fendants in their official capacity it was misconceived. In Ellis v. Earl Grey, 6 Sim. 214, the principle was accepted that the Court had no jurisdiction to interfere with the public duties of the Lords of the Treasury performed in the exercise of their discretion a,s disstinsnishad from merely min- isterial acts. In the principal case, of course, it was complained that an avoidable nuisance was being committed for which there was no statutory authority, and which was in reality in violation of the statute. From the frame and title of the suit it is not apparent whether it was against the Crown or against the minis- ters in their private capacity. If the suit was against the Crown, either by name or title, or in substance, the Court would have no' jurisdiction to entertain it: Palmer v. Hutchinson. 6 App. Cas. 619; Raleigh v. Goschen, supra. In Viscount Canterbury v. Attorney-General, 1 Ph. 306, compensation was claimed from the Crown for damage alleged to have been done in the preceding reign to property of the petitioner, whilst Speaker of the House of Commons, by the fire, which, in 1834, destroyed the Houses of Parliament; and the question was, whether, assuming that the per- sons whose negligence caused the fire were the servants of the Crown, the Sovereign was responsible for the consequences of their negligence. The Crown was held not to be responsible. "It is admitted," said Lord Lyndhurst, L.C., "that for the per- sonal negligence of the Sovereign, neither this nor any other proceedings can be maintained. Upon what ground, then, can it be supported for the acts of the agent or servant? If the master or employer is answerable upon the principle qui facit per alium, farit per se, this would not apply to the Sovereign, who cannot be required to answer for his own personal acts. If it be said NEW BRUNSWICK EQUITY CASES, 299 that the master is answerable for the negligence of his servant 1885. because it may be considered to have arisen from his own mis conduct or negligence in selecting or retaining a careless servant, attoeney- that principle cannot apply to the Sovereign, to whom uegli- Genkbal genoe or misconduct cannot he imputed, and for which, if they p pe. occur in fact, the law affords no remedy." But though the Crown could not be made liable in the principal case, the minister could he held personally responsible for his wrongful acts, and their commission could be enjoined. In Feather v. The Queen, 6 B. & S. 258, Cockburn, C.J., said, at p. 296: " Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of a Minister of the Crown is without a remedy. As the Sove- reign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown. In our opinion no authority is needed to establish that a servant of the Crown is responsible in law for a. tortious act done to a fellow-subject, though done by the authority of the Crown — a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand, and the rights and liber- ties of the subject on the other." And see Muskoka Mill Co. v. The Queen, 28 Gr. 563. At common law the remedy by petition of right was not available in respect of tortious acts of officers or servants of the Crown: Viscount Canterbury v. Attorney- General, 1 Ph. 306, 324, where Lord Lyndhurst says: " Staund- ford speaks of this procedure as applicable to the illegal seizure by the King of the lands or goods of a suibject; he does not say that it would be applicable for enforcing a claim for damage caused by the negligence of the Crown or its servants, nor does it appear that any sufficient authority, or any valid precedent in favor of such positon is forthcoming." See Tobin v. The Queen, 16 C. B. N. S. 310. In Feather v. The Queen, 6 B. & S. 294, Cock- burn, C.J., said: " The only cases in which the petition of right is open to the subject are, where the land or goods or money of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or, if restitution cannot be given, compensation in money, or where the claim arises out of a contract, as for goods supplied to the Crown, or to the public service. No case has been adduced, after all the industry and learning that have been brought to bear on the subject, both in this case and in that of Tobin v. The Queen, in which a petition of right has been brought in respect of a wrong, properly so called." In Windsor and Annapolis Railway Co. v. The Queen, 11 App. Cas. 607, their Lordships of the Judi- cial Committee of the Privy Council refer to this statement as an accurate exposition of the law. The law of Canada was not altered in this respect by the Petitions of Right Act, 39 Vict. c. 27 (D.): The Queen v. McFarlane, 7 Can. S. C. R. 216; The Queen v. McLeod, 8 Can. S. C. R. 1. However suited such a limited remedy between the subject and the Crown may be in England, it is manifest that it is inadequate in a country where the Crown is engaged in railway and other undertakings, carried on in Eng- land by private enterprise, and in connection with which it is fair the Crown should accept the responsibility attaching, to the same undertakings in the hands of individuals for the torts of themselves or servants. See Farnell v. Bowman, 12 App. Cas. 649; Attorney-General of the Straits Settlement v. Wemyss, 13 App. Cas. 197; Leprohon v. The Queen, 4 Ex. C. R. 110. To ameliorate the limitations of the remedy in accordance with this view the Dominion Parliament recognized the liability of the 300 NEW BRUNSWICK EQUITY CASES. 1885 Crown for the negligence of its officers and servants in the con- 1_ struction and maintenance of its public works by Act 33 Vict. c. Attobney- 23, and by 44 Vict. c. 25 (R. S. C. c. 38), it is said the Crown was General made liable for damages caused by the negligence of its servants Pope operating government railways. See The Queen v. Martin, 20 Can. S. C. R. 240, per Patterson, J. This view, however, is not uniformly accepted. See Lavoie v. The Queen, 3 Ex. C. R. 101. By Act 50 & 51 Vict. c. 16, the following extensive jurisdiction in suits between the subject and the Crown was conferred upon the Exchequer Court: Section "l5. " The Exchequer Court shall have exclusive original jurisdiction in all cases in which demand is made- or relief sought in respect of any matter which might, in England, be the subject of a suit or action against the Crown, and for greater certainty, but not so as to restrict the generality of the foregoing terms, it shall have exclusive original jurisdiction in all cases in which the land, goods or money of the subject are in the possession of the Crown, orjn which the claim arises out of a contract entered into by or on behalf of the Crown." Section 16 : " The Exchequer Court shall also have exclusive ori- ginal jurisdiction to hear and determine the following matters: (a) Every claim against the Crown for property taken for any public purpose; (6) Every claim against the Crown for damage to property, injuriously affected by the construction of any pub- lic work; (o) Every claim against the Crown arising out of any death or injury to the person or to property on any public work, resulting from the negligence of any officer or servant of the Crown, while acting within the scope of his duties or employ- ment; (cZ) Every claim against the Crown arising under any law of Canada or any regulation made by the Governor in Council; (e) Every' set-off, counter-claim, claim for damages, whether liquidated or unliquidated, or other demand whatsoever, on the part of the Crown against any person making claim against the Crown." Section 17: " The Exchequer Court shall have and possess concurrent original jurisdiction in Canada: (c) In all cases in which demand is made or relief sought against any offi- cer of the Crown for anything done or omitted to be done in the performance of his duty as such officer." This last clause pro- bably refers to an action against the officer personally. Several cases have already arisen as to the construction of section 16 of the last named Act, too numerous to be here reviewed. That the Act does not relate to procedure merely, but confers sub- stantive rights, was very fully discussed and laid down in The City of Quebec v. The Queen, 24 Can. S. C. R. 420. As to nui- sance committed in the performance of authorized acts, see Pol- lock on Torts (4th ed.), 115. NEW BRUNSWICK EQUITY CASES. 301 KENNY v. KENNY et al. 1885. Mortgage — Foreclosure — Assets in the hands of mortgagee — Account — Cross- bill — Representative of estate of deceased mortgagor — C. 49, C. S. N. B. s. 47. An executor de son tori cannot foreclose a mortgage given to him by the intestate if he has in his hands sufficient assets of the deceased to pay the mortgage debt. Where, in a suit by an executor de sou tort for foreclosure of a mortgage to himself by the intestate, it appeared that no administrator had been appointed, and by the answer of the heirs it was alleged that the plaintiff had assets in his hands belonging to the deceased sufficient to pay the mortgage, the Court under c. 49, C. S., s. 47, appointed a barrister of the Court to represent in the Buit the estate of the deceased, and ordered the heirs to file a cross-bill against the plaintiff for an account. The facts sufficiently appear in the judgment of the Court. Argument was heard August 24th, 1885. A. 0- Earle, for the plaintiff. W. W. Allen, for the defendants. 1885. August 29. Palmer, J. :— This is a suit for the foreclosure of a mortgage given by an intestate to the plaintiff. The defendants are the heirs of the mortgagor, of whose estate there has been no administrator appointed. One of the defendants by his answer sets up that the plaintiff, after the death of the mortgagor (who left personal estate), took possession of such estate and sold it, and that he should have ap- plied the proceeds to the payment of this mortgage debt; the plaintiff's counsel contended before me that the plaintiff was entitled to the usual decree for sale, even if it should turn out that he has assets in his hands to pay the mortgage. I have no doubt that this is not the plaintiff's right, for if he has sufficient assets in his hands it is his duty to pay off this mortgage debt, and it would be most inequitable for him to compel these de- fendants to pay it. It is a fundamental principle of equity that whenever the Court can see that it is the August 29. 302 NEW BRUNSWICK EQUITY CASES. 1885. duty of any person to do an act, as against Mm it will KENinr treat the matter as though it were done; thus if a debt kennt etai. is due a P er son, and afterwards, for any cause, it - Pa i~ j. becomes the duty of such person to pay it, if the duty is a legal one the defo't is extinguished at law; for the right to pay and to receive is in the same per- son, and therefore is merged. If such is only enforce- able in equity, a Court of Equity whenever it is brought in question will treat it as if it were done. Thus, if a per-, son dies and appoints his creditor his executor, who re- ceives sufficient assets to pay all the testator's debts, his own included, it is the duty of such executor to pay all such debts including his own, and he ought not to ask any person who was a mere surety for the testator to pay him, and it would be inequitable to allow Mm to compel a mere surety to pay what he himself should haive paid; and this result is arvoidted by treating the payment that he should have made as actually made; and if this is the rule as regards a rightful executor, it would be strange, indeed, if an executor de son tort should be in a better position. I think he is not. It follows that the plaintiff is not entitled to a decree that his mortgage should be paid out of the property of these heirs if he should have paid it himself; and whether he should have dome so or not, must I think depend upon whether he has assets of the estate in his hands which should be applied to that purpose. The plaintiff denies that he has any assets that ought to be applied to pay the mortgage debt; and in order to make a right decree it must be ascertained 1 whether this is so or not, and the doing so will involve taking the whole accounts of the estate; and in effect this involves all enquiries that would be necessary in a suit to administer the estate. Without deciding whether I would be compelled to have this inquiry in this suit as it now stands without any other personal representative of the intestate before the Court, except an executor de son tort, I am inclined to think that it is best to have some other person before the Court to represent the estate before I should make a decree against these defendants; and to that end it is desirable to appoint some person as such representative, NEW BRUNSWICK EQUITY CASES. 303 and this I will do under thle authority of c. 49 0. S., s. 1885. .47 (1). I therefore appoint Charles A. Palmer to repre- ^^ sent the estate of John 'Kenny in this suit; and as I KENN "i cf(I/ think it right to make such a decree as will protect the PaI — r> z plaintiff when he shall have accounted for all the assets in his hands, I will direct that the defendant who has answered, do file a cross-bill to compel the plaintiff to account for and administer any assets that are in his hands, within ten days from 'this date. This appears to be the proper course. See 2 Daniell Chan. Pr. (4th Am. ed.), 1550. A trustee of real estate became mortgagee of the trust estate, partly by taking an .assignment of a prior mortgage, partly by taking an assignment of a mortgage created by his co-trustee and "himself under the trust, and partly for money which he had lent to the cestui que trust. Having filed a bill for foreclosure, the cestui que trust filed a bill for an account of the trust and of the mortgages, and that the mortgage securities might stand only for the balance due on both accounts. -•It was held that the Court might make one decree in both causes, so as to give the mortgagor any set-off he might be entitled to, or make a decree of foreclosure in the former suit, and a sepa- rate decree for ,an account against the trustee personally in the latter, according to the circumstances and justice of the case: Dodd v. Lydall, 1 Hare, 333. Wigram, V.C., there said: "If the result of the account were now ascertained, and it thereby ap- peared that the estate which the plaintiff in the first suit repre- sents was debtor to the plaintiff in the second suit, I see no reason why the Court should not give the plaintiff in the second suit the benefit of the set-off which he claims: Clark v. Cort, 1 Cr. & Pr. 154; and, further, as the twoi causes have been or- dered to come on together, I do not doubt that, according to the practice of the Court, I may treat the two causes as one, if the justice of the case requires it: Day v. Newman, 2 Cox, 77. But the points which I have had to consider are, whether the practice of the Court obliges me to suspend the decree of foreclosure in the first cause until the trust accounts are taken; and, if the practice of the Court do not make this imperative upon me, whether the merits (1) S. 47. "If in any proceeding it shall appear to a Judge that any deceased person who was interested in the matters in question has no legal personal representative, he may either proceed without ap- pointing any person to represent the estate of such deceased person, or he may appoint some person to represent such estate for all the purposes of the proceeding, on such notice to such person as the Judge shall think fit, either specially or generally, by advertisement in the Royal Gazette. and the order so made by the said Judge, and any orders" consequent thereon, shall bind the estate of such deceased person in the same man- ner in every respect, as if there had been a duly constituted legal personal representative of such deceased person, and such representative had been a party to the proceeding, and had duly appeared and sub- mitted his rights and interests to the protection of the Court." 304 NEW BRUNSWICK EQUITY CASES. 1885 o£ tlie wllole case d0 not require that I should make ' separate decrees in the two causes; or impose such terms upon Kesnt the plaintiff in the second cause as will prevent any possible «■ inconvenience occurring to the plaintiff in the first cause by the Kenny et at. ,j ecree f foreclosure being suspended. Upon the mere point of form, I entertain no doubt. The order that both causes come on together is made by the Court in ignorance of the merits of either of them, and only upon a representation that the justice of the whole case requires that they should be so heard. But if, upon hearing the two causes, the Court is of opinion that sepa- rate decrees should be made, the Court may take that course. Upon the law of the case, my opinion is equally clear. The mere existence of cross-demands does not of necessity give a right of equitable set-off; and certainly the mere pendency of an account out of which a cross-demand may arise will not confer such a right. I had occasion, when at the bar, to give great attention to the question of equitable set-off in the case of Rawson v. Samuel, 1 Cr. & Ph. 161; and! the judgment of Lord Cotteh- ham in that case, on appeal, will be found fully to justify the opinion which I now express. It was there decided that, in the case of cross-demands arising out of the transactions not neces- sarily connected with each other, a Court of Equity is bound to look into all the circumstances of the case, and see whether an equity is made out for blending the two matters together at the expense of possible delay in concluding one of those matters. The only question, therefore, is, whether, upon the whole case, I ought to suspend the decree of foreclosure until the trust ac- count is taken, for the purpose of pleading the two accounts to- gether, or whether I should at once make the decree of fore- closure, and leave the plaintiff to his remedies against the estate of the deoeased trustee." In Jones on Mortgages (3rd. ed.), s. 992, it is laid down that if the mortgagee be appointed administrator of the estate of the original debtor, the mortgage is extinguished if assets come into his hand which can be applied in payment of the debt, citing Bemis v. Call, 10 All. 512. Section 47, c. 49, C. S. N. B., is reproduced in section 89 of The Supreme Court in Equity Act, 1890 (53 Vict. c. 4). The section is taken from the Equity Improvement Act, 15 and 16 Vict. c. 86, s. 44 (Imp.). A similar pro- vision is contained in Order XVI., Rule 46 of the English Su- preme Court Rules, 1883 ; and in Rule 310 of the Ontario Supreme Court Rules. For the practice and cases under the section, see Dan. Ch. Pr. (4th Am. ed.), 201; Morgan Ch. Ord. (3rd ed.) 198; Snow's Annual Pr.; and Holmestead & Langton, 304. In Bar- naby v. Munrop, ] N B. Eq. 94 ; Mr. Justice Barker held that as a general rule the administrator of a deceased mortgagor of real estate should not be made a party to a foreclosure suit. Where the defendant in an action to foreclose leasehold mortgages died insolvent before foreclosure absolute; and an order was made in Chambers appointing one of his next of kin to repre- sent his estate for the purposes of the action, the Court refused to make the foreclosure absolute in the absence of a properly constituted representative: Aylward v. Lewis, [1891] 2 Ch. 81. See also Scott v. Streatham Estates Co., W. N. [1891] 153. NEW BRUNSWICK EQUITY CASES. 305 WOOD et al. v. AKERLEY et al. 1885. Practice. — Partition suit — Ass'uj wneiit of dower — Joinder of widow. August 31. A suit may be brought for partition ox land and assignment of dower, and the dowress should be made a party to the suit. The facts sufficiently appear in the judgment of the Court. Argument was heard August 22nd, 1885. A. H. Hamngton, and A. A. Wilson, for the plaintiffs. W. B. Chandler, for the defendant Harriet Akerley. 1885. August 31. Palmer, J. : — This is a case in which a bill was filed by some of the heirs of Winthroip Akerley against the others for a partition of the real estate of which the said Akerley died seised, and to have his widow's dower assigned; and the widow is joined in i the suit. The widow has de- murred on the ground that she ought not to have been made a party; and thus for the first time in this Pro- vince, as far as I know, the question' whether the prac- tice that has hitherto prevailed in this Court of joining the widow in such a suit is correct. It will assist to decide it to have a clear understanding of the principles on which the Court acts with reference to competent and necessary parties. One is, that the Court will not proceed to determine any suit without bringing before it all parties interested, either directly or collaterally, in both the subject and object of the suit, and all persons against whom relief must be obtained to accomplish the object of the suit, in order that the decision may provide for the rights of all parties interested. There is a distinction between a necessary or proper party, and an indispensable party; a necessary or proper party is one who has an interest in the matter in controversy, and should be a party to enable the EQ.CAS. — 20 306 NEW BRUNSWICK EQUITY CASES. 1S85. Court to decide all the rights involved, and should be WoOD H al made a party if within reach of the process of the akkilv* etai Court; still, if his interest is separate from those before Paim~ j the Court, he is not an indispensable party ; an indispen sable party is one where a decree cannot be made with- out affecting his interest. Bearing these rules in mind, let us see how these plaintiffs stood when they brought this suit ; and what is the subject and object of it. They were tenants in common with the other heirs of the es- tate, in the whole of which the widow has a right of dower, and their right was to have it divided and the dower assigned. Both these rights this Court had ori- ginal jurisdiction to decree in a proper suit brought for that purpose; and one question! is, could they, without their co-heirs, assign ,isuch dower wrthbut a suit? and, if they could not, could they compel such assignment by a suit so that all the heirs should join in such assign- ment; and, if so, can this be done in a suit in which one of the objects is to partition the estate among the heirs after the dower is assigned ? As to the first question, I think this can only be done by some person having the v freehold by right or wrong. Coke upon Littleton, 35a, says : " No assignment can be made but by such as have a freehold " ; from which it follows that it can be done by one joint tenant. The same authority (35a) lays down the law as follows: " If two, or more be joint-tenants of lands, one of them may assign dower to the wife of a third part in certainty, and this shall bind his compan- ions "; and the reason appears to be that each joint ten- ant is seised of the whole freehold, that is, seised per my et per tout, and they all have one and the same freehold; but tenants in common have several freeholds, and co-partners the same, and, therefore, one cannot as- sign dower to bind their co-tenants' estate, for he has not the freehold of that: Bacon's Abr., Tit., Joint-Ten- ants and Tenants in Common. From this I think it is clear that the heirs collectively have the right, and it is their duty to assign the dower without suit; but the plaintiffs could not do this alone,, but all must join in order to make it good against all. Consequently, if any refuse, or do not join in making such assignment, it is NEW BRUNSWICK EQUITY CASES.- 307 the right of any other to compel it by a suit in this 1885. Court, and in which it is obvious the.widowi would be a Wo £ D \ t al necessary party; and it is equally clear that it is his AKEBL ^ c(a ; right to maintain a suit against his co-heirs for parti- Pal ~7 r j tion, in> which the widow would have no interest after her dower had been assigned; and the question is whe- ther she may not be made a party to a suit brought for the double object of having the dower assigned and the. estate partitioned. In Tyler's Ed. of Mitford's Pleading it is laid down, page 18, that courts of equity exercise a judicial discretion in the matter of parties to a suit, and that it is a question! of policy as well as of jurisdiction; and, if so, it appears to me that it would be a sound exer- cise of such discretion to allow the widow to be made a party to such a suit, rather than compel two suits to be brought, when her right is admitted and she has a full opportunity of being heard and showing what her claim is. She is interested in the subject-matter of the par- tition suit, and although the decree could not affect her rights, yet if the suit can be brought for the two objects the widow is a necessary party. The real ques- tion in the case is whether a suit can be main- tained for these two objects. The only objection that can be urged againist it is what is called multifari- ousness, that is, the Court will not allow a plaintiff to join in one record several matters of different natures against several defendants, with some of which some of them have no connection; but, on the other hand, it will not permit a bill to be brought for part of a matter only, but will, as far as possible, prevent the splitting of causes, and consequent multiplicity of suits. The cases on the subject are extremely difficult to reconcile; for the Court, in deciding them, appears to have considered what was convenient in each .particular case, and to have refrained from laying down any absolute rule. Story, in his work on Equity Pleading, s. 284, says that " a bill is not to be treated as multifarious, because it joins two | good causes of compMntt, growing out of the same transaction, where all the defendants are inter- ested in the same claim of right, and where the relief asked for in relation to each is of the same 308 NEW BRUNSWICK EQUITY CASES. 1885. general character"; and Lord Cottenbarm, in Camp- WooTI et aL hell v. MaeKatj (1), decided that when the plaintiffs have amulet et ai. a common interest against all the defendants in a suit PaimOT j as *° one or more °f the questions raised by the case so as to make them necessary parties for the purpose of enforcing that common interest (which is the case here with reference to the claim for the assignment of the dower), the circumstance of some of the defendants be- ing subject to liabilities in respect to different branches of the subject involved (which is the case here with re- ference to the partition), will not render the suit multi- farious ; and Lord Langdale in Attoniey-Q-eneral v. Corporation of Poole (2), decided that if a case against one is so entire as to be incapable of being pro secuted in several suits, and yet some one of the defend- ants may be a necessary party to some portion of the case stated, such other party cannot maintain an objection of multifariousness. All that is stated, and all that is prayed for in this bill arises out of one subject-mat- ter, and the position of all the parties in relation there- to, and there does not appear to be any way to settle their respective rights by a suit in any other form, and I can see no inconvenience either to the Court or any of the parties that will arise by allowing such a suit to be maintained, and for that purpose to join them all in one record; and, therefore, I think I ought to so exer- cise the discretion that; the law has given me, and over- rule the demiurror. 1 think I should give the defendant demurring twenty days to answer, and make the plain- tiffs' costs occasioned by the demurrer costs in the cause instead of allowing them to follow the result, as I have maintained the suit by an exercise of discretion, and the point is new. This decision does not accord with the views of Freeman, but, as that learned author himself indicates, the American de- cisions are not uniform. At section 432 (2nd ed.), Freeman says: " A widow entitled to dower is not regarded as a co-tenant. Where her inchoate right of dower attached anterior to the existence of the co-tenancy, it cannot, in the absence of statutory pro- visions to the contrary, be affected by proceedings in partition. (1) 1 M. & C. 603. (2) i M. & C. 31. NEW BRUNSWICK EQUITY CASES. 309 Her interest is not that of a co-tenant, nor is it in any respect 1885. dependent on the interest of a co-tenant. It is paramount to the co-tenancy, and she may have it assigned irrespective of any wood et al. voluntary or compulsory division made among the co-tenants. »■ In an early case in New York, the heirs of one Bradshaw insti- AKEIiLET " <"• tuted proceedings for partition, to which they made his widow a defendant. She was summoned to appear, but disregarded the summons, and allowed judgment to go against her by default. Afterwards, she brought an action of dower, wherein it was held that the ' proceedings under the partition act were null and void, as respects the claim of the demandant for dower. She was not" bound to appear and plead; and her not appearing can- not prejudice her present claim. The judgment in partition could only affect her rights, if any she had, as a joint-tenant, tenant in common, or in coparcenary': Bradshaw v. Callaghan, 5 Johns. 80; affirmed, 8 Johns. 558, and approved, Coles v. Coles, 15 Johns. 321. The same reason which, before the assignment of her dower, exempts a widow from the operation of the law of compulsory partition, operates with equal force after such as- signment has been made. Notwithstanding the assignment vests in her a present estate, it does not make her a co-tenant with the heirs of her husband." At section 472, the same learned author says: "Where the husband, being a tenant in severalty, dies, and his estate descends to several heirs, his widow is not a tenant in common with the heirs. She is not therefore a pro- per party defendant in a suit brought by one of the heirs for partition. Any partition which they may procure must be •(sub- ordinate to her rights as dowress. They need not — in fact, they cannot — make her a party defendant, for she does not hold with them in common and undivided. On the other hand, it has been insisted that the widow is a proper and necessary party to an action among the heirs for partition, and that it is erroneous to make a partition in her absence. Thus, in "Virginia, where a partition was granted, as prayed for, subject to the widow's right of dower, the Court of Appeals reversed the decree, say- ing: ' The widow and her husband should have been made par- ties, and her dower assigned, and partition should have been made of the residue. And it was error to have directed or con- firmed a partition until such dower had been assigned.' The case was therefore remanded, with instructions to require the applicant to make the widow a party." At section 476 he says: "When a widow is entitled to dower by virtue of her late husband having had a sole seizin in the premises, her right, as we have before stated, is generally re- garded as paramount to right of the heirs to compel a partition. This is equally true whether a division or a sale be sought. Courts have no authority, unless) it be expressly conferred by statute, to compel a widow to accept a certain sum of money in lieu of her dower. She cannot be divested of her dower except by her own act. But in some of the States the statutes in refer- ence to partition authorize the widow to be made a party de- fendant, and empower the Court,~in case a partition cannot be made, to decree a sale, and to award the widow a part of the proceeds, which she must accept in satisfaction of her dower." It will be noticed that Freeman appears to negative the juris- diction of the Court on the ground that the widow is not a co- tenant with the heirs, and apparently his contention is that the jurisdiction of the Court is confined to cases of co-ownership. Spence, Equitable Jurisdiction of the Court of Chancery, 655, after describing the origin and growth of the jurisdiction of the Court in partition speaks of it being, established 3^0 NEW BRUNSWICK EQUITY CASES. -iQQK in all cases of co-ownership. Story, section 646, uses language implying the same limitation, or that it is only ■wood ctai in cases of real estate held by joint-tenants, tenants in " v ' common, and coparceners. In Miller v. Warmington, 1 Jac. & •akeblkt et al. w. 493, Sir Thomas Plumer, M.R., says: "Partition can only be between joint- tenants, tenants "in common, or coparceners; originally it was confined to coparceners, who derived that name from being able to compel partition. By the Statute 31 H. VIII., it is extended to tenants in common and joint- tenants, but the principle is the unity and entirety of possession, that each party has an undivided interest in, and a right over the whole, and hence the plea of non tenet insimul is a" good plea to' a writ of partition, and hence also it is necessary for them to make conveyances to each other, and their portions are set out. The same rules that prevail a,t law are adopted in equity, and it is only on the same grounds that you can apply to this Court." By The Supreme Court in Equity Act, 1890 (53 Vict. c. 4), ss. 196, et seq., jurisdiction in partition appears to he only provided for in cases of coparcenary, joint-tenancy, and tenancy in com- mon. The sections of the same Act, sections 237, et seq., relating to proceedings for the admeasurement of dower do not favour the notion that the rights of a dowress were to be adjusted in ,a partition suit. A widow entitled to dower has not at common law any estate in the. lands until assignment. Her right is a mere chose in action. She is not entitled to joint possession with the heirs, and consequently is not a tenant in common: Washburn (4th ed.), 251; Torrens v. Currie, 22 N. B. 342. One would be very reluctant to impugn the decision in the principal case, without a closer examination of the authorities than is here possible, but it certainly would appear to be un- wise to regard the decision with unquestioning confidence. It is to he observed, however, that the question of the Court's juris- diction in no way depends upon the powers of the Court to ade- quately protect and adjust the interest of the widow: see Shields v. Quigley, 1 N. B. Eq. 154; Hannaghan v. Han- naghan, 1 N. B. Bq. 302; Fram v. Pram, 12 P. R. 185. Attention is called to Rule 4 E. T. 46 Vict. (N. B.). By c. 104, s. 5, R. S. 0. 1887, " All joint-tenants, tenants in common, and coparceners, all dowresses and parties entitled to dower, tenants by the cur- tesy,- mortgagees, or other creditors, having liens, and all par- ties whosoever interested in, to or out of any lands in Ontario, may be compelled to make or suffer partition or sale of the said lands, or any part or parts thereof, as hereinafter mentioned and provided, and the partition may be had whether the estate Is legal or equitable, or equitable only." NEW BRUNSWICK EQUITY CASES. 311 HORN et al. v. KENNEDY et al. 1887. July 7. Practice — Foreclosure — Parties— Judgment creditor— Disclaimer — Costs. A judgment creditor, who has registered a memorial of judg- ment, is a necessary party to a suit to foreclose a, mortgage on land belonging to the wife of the judgment debtor. A judgment creditor made a party to a foreclosure suit under the above circumstances, upon disclaiming, will not be liable nor entitled to costs, though continued in the suit after disclaimer. . The facts need not be stated. Argument was heard July 4th, 1887. /. R. Armstrong, for the plaintiffs. F. E. Barker, Q.C., for the defendants. 18.87. July 7. Palmer, J.:— There are two points involved in this case which are really of importance to the profession. First, whe- ther a judgment having been obtained against the hus- band, and a memorial of the judgment having been regisT tered, and the mortgage sought to be foreclosed being on the wife's property, is it necessary or proper to make the judgment creditor a partyto the suit? I have come to the conclusion that it is; that in reality it is not only proper, but I think I would not entertain the suit with- out he was made a party. In my opinion such judgment would create a cloud on the title for all time; for it might be that the wife would die prior to the husband, when, by the curtesy, the property would fall into the husband, and the memorial would be a charge upon the property and could be levied upon, and everybody tak- ing the property would be liable to its effects. The other question is, whether a party is entitled to costs, who, upon the records, has an efficient title, either for an unsatisfied judgment on other claim, and who has not taken the trouble to have it discharged. If it is not one's own fault that he is made a party and he 312 NEW BRUNSWICK EQUITY CASES. 1887. disclaims, then, he getsi clear of costs; but under the au- HoBN et aL thority of Buchanan v. Greenway (1), the judgment Kennedy et ai. creditor here is not entitled to any costs; and', therefore, Paim^.j. though he still remains a party to the suit, he does so without costs. By sub-section 4 of section 4 of the New Brunswick Married Women's Property Act (58 Vict. c. 24), nothing contained in the Act shall prejudice the husband's tenancy or right to tenancy by the curtesy in any real estate of the wife. The interpreta- tion of these words cannot be said to be free of difficulty, and their meaning will probably not be agreed upon in the absence of authoritative decision. The Act has made a plainly defined distinction between a woman married before and a woman mar- ried after its commencement. By section 4 (1), " Every married woman who shall have married before the commencement of this Act, shall and may, without prejudice and subject to the trusts and provisions of any settlement affecting the same, not- withstanding her coverture, have, hold, enjoy and" dispose of all her real estate, whether belonging to her before marriage or in any way acquired by her after marriage, otherwise than from her husband, free from his debts and" obligations and from his control or disposition without her consent, in as full and ample a manner as if she were sole and unmarried"; and by section 4 (2), " The real estate of any woman married after the com- mencement of this Act, whether owned by her at the time of her marriage or acquired in any manner during her coverture, and the rents, issues and profits thereof respectively shall, with- out prejudice and subject to the trusts and provisions of any settlement affecting the same, notwithstanding her coverture, be held and enjoyed by her for her separate use, free from any estate therein of her husband, during her liietime, and from his debts or obligations, and from his control or disposition with- out her consent, in as full and ample a manner as if she were sole and unmarried, and her receipts alone shall be a discharge for any rents, issues and profits of the same." In the case of a woman married before the commencement of the Act her real estate is not declared to be her separate pro- perty, or to " be held and enjoyed by her for her separate use," nor is it declared to be " free from any estate therein of her hus- band during her lifetime," as is provided in the case of a woman married after the commencement of the Act. The dissimilarity in the two clauses in these respects, supports the inference that a woman married before the commencement of the Act was not intended to have a power of disposition over her real estate to the exclusion of the curtesy of her husband. See Royal Cana- dian Eiamk v. Mitchell, 14 Gr. 415. In this view section 4, sub- section 4, is a consistent and intelligent provision. In conflict with this opinion it is to be observed that section 3 (1) enacts that, " a married woman shall be capable of acquiring, holding and disposing by will or otherwise of any real or personal pro- perty as her separate property in the same manner as if she were a feme sole, without the intervention of any trustee." The contention, however, that these words have the effect of making the real estate of a woman married before the commencement of the Act her separate property is not warranted if the dis- (1) II Beav. 5^. — See Earl ••/ Cork v. Russell, L. R 13 Eq. 210. NEW BRUNSWICK EQUITY CASES. 313 similarity between sub-sections 1 and 2 of section 4 is to be pre- 1887. served. As pointed out in In re Cuno, Mansfield v. Manauela, 43 Ch. D. 12, section 3 (1) is only a general section, and must be Hubn et al. read with and limited by the other portions of the Act. In the IiENNE £ y et aL case of a woman married after the commencement of the Act there would appear to be no question that she may dispose of her real estate either by deed or will without her husband's con- currence, and that his curtesy will be barred. The language of sub-section 2 of section 4, is too plain to be overriden by sub-sec- tion 4. It would be incredible to suppose that the Legislature intended, after clothing a married woman with the powers and impressing her real estate with the character so clearly marked out in sub-section 2, to qualify its language, and render it in a sense nugatory by the reservation contained in sub-section 4: See Furness v. Mitchell, 3 A. R. (Ont.) 510, at p. 516; In re Drum- mond & Davie's Contract, [1891] 1 Ch. 534. Such a perversion of terms involves the anomalous result that sub-section 2 would confer upon a married woman a narrower power than she en- joyed in equity with respect to property settled to her separate use, unrestrained from alienation. Her capacity in equity to dis- pose of her property as a feme sole was thus authoritatively summed up by Lord Westbury in Taylor v. Meads, 4 DeG. J. & S. 597. " When the Courts of Equity established the doctrine of the separate use of a married woman', and applied it to both real and personal estate, it became necessary to give the married woman, with respect to such separate property, an independent personal status, and to make her in equity a feme sole. It is of the essence of the separate use that the married woman shall be independent of and free from the control and interference of her husband. With respect to separate property, the feme covert is by the form of the trust released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui juris. To every estate and interest held by a person who is sui juris the common law attaches a right of alienation, and accordingly the right of a, feme covert to dispose of her separate estate was recognized and admitted from the beginning, until Lord Thurlow devised the clause against anticipation. But it would be contrary to the whole principle cf the doctrine of separate use to require the consent or con- currence of the husband in the act or instrument by which the wife's separate estate is dealt with or disposed of. That would be to make her subject to his control and interference. The whole lies between the married woman and her trustees; and the true theory of her alienation is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the estate according to "the new trust which is created by such direction. This is sufficient to convey the feme covert's equitable interest; and when the trust thus created is clothed by the trustees with the legal estate the alien- ation is complete, both at law and in equity." And see Fitzpat- rick v. Dryden, 30 N. B. 558; Kent v. Kent, 19 A. R. (Ont.), 352. In Cooper v. Macdonald, 7 Ch. D. 288, it Was held that her power of alienation being that of a single woman, her husband's curtesy only attached to her undisposed of real estate. It can hardly be successfully contended that section 4, sub-sections 2 and 4, have adopted a less liberal rule than prevailed at equity. In so far as sub-section 4 relates to sub-section 2 it seems rea- sonable to assume that its purpose was to remove the doubt contained in the English Act and settled in Hopey. Hope, [1892] 2 Ch. 336, that the husband is entitled on the death of h ; s wife To an estate by the curtesy in her undisposed of real estate. 314 NEW BRUNSWICK EQUITY CASES. July 22. 18S7 BLISS- v.- THE RECTOR, CHURCHWARDENS AND VESTRY OF CHRIST CHURCH, IN THE PARISH OF FREDERICTON. Grant— Church — Corporation — Construction. In 1810 the Crown granted to the rector, church wardens and vestry of Christ Church, in the parish of Fredericton, and their suc- cessors, a lot of land " for tiie use and benefit of the bnid church forever, and to and for none other use, interest or purpose what- ever." The church was organized on the formation of the Pro- vince of New Brunswick under authority from the parent Church of England, in England, to certain persons in New Brunswick to establish churches in New Brunswick in connection with and to be a part of the Church of England in England, and under its ecclesiastical authority. Held, that the grant was to Christ Church as it existed at the time of the grant, and while it remained in connection with the Church of England and adhered to its faith, creed, doctrines, forms of worship and discipline as then established. The facts fully appear in the judgment of the Court. C. H. Lugrin, for the plaintiff. H. B. Bainsford, for the defendants. 1887. July 22. Palmer, J. :— The bill in this case, in effect, alleges that the plain- tiff was and is a member of Christ Church, Fredericton, and a resident of the parish of Fredericton; that the church was in existence ait the time of the erection of this Province; that on the first day of December, 1810, the Crown granted to the defendants and their succes- sors a lot of land set out in the bill, in the words of the grant, " for the use and benefit of the said church for- ever and to and for none other use, interest or purpose whatever." It further alleges that the annual income from the said land is about $500; that the defendants had used the same to support the said church; that the church from its formation, and ait the time of the grant, was a church in connection with the Church of England as established by law in England, and in which the services thereof were performed and the doctrines thereof preached and taught, and so continued until some time after the present rector, George Goodrich CHtJBCH, Palmer, J. NEW BRUNSWICK EQUITY CASES. 315 Roberts, was inducted therein in 1873, and who some 1887. time afterward ceased to conduct the services or teach ^^l the doctrines of the Church of England in the said chmst parish church; and, on the contrary, performed religious services in a manner not allowed by the liturgy of the said Church of England in the following particulars, namely: He stands directly in front of the communion table, and not at the north end, when saying the Lord's prayer, with his back to the congregation, and in that position says the said prayer, first kneeling and saying a prayer privately; that he, in or about 1873, placed or caused to be placed on the communion table in said <:hurch a cross, and kept it there all the time, and the defendants have permitted it to remain there; that about the same time and from thence hitherto, he ad- •vised and procured the people of the congregation to chant or sing the responses to the Ten Commandments, when the said commandments were by him rehearsed during the communion service when the communion was ■administered; that he began about the same time and continued hitherto to officiate as priest and to stand with his back to the congregation, and his face towards the communion table, when saying the creed during the morning and evening prayer, and had procured, advised and encouraged the choir to turn their backs towards the congregation and to face the communion table; that he, instead of standing at the north end of the commu- nion table when saying the prayers for the Queen, in the communion service and the collect for the day, stands facing the front of the communion table with his back ■to the congregation; that the defendants have allowed the communion table to remain uncovered during public- worship; that the rector in conducting public worship, and when officiating as priest in the said church, wears vestments not permitted by the established usage of the Church of England, that is to say, a scarf or stole other than black; that in administering the Holy Com- munion he has used and does use what is known as la mixed chalice, that is to say. wine mixed with water. And that he preached and taught the following doctrine opposed to the doctrine of the Church of England, 316 NEW BRUNSWICK EQUITY CASES. 1887 Chhikt Chuiich. Palmer, J. namely: That there was no salvation for any outside the pale of the Church of England; that this has been done with the knowledge of the officers of the church corporation, and has been from time to time protested against by the plaintiff, and continued in spite of such protest, notwithstanding which the income from the said land has been used by the defendants in maintaining the said church in the promoting of such doctrines and per- forming the said illegal services; and the bill prays for an injunction order to restrain the defendants from ap- plying the income of said land to the use of said church, until the services therein are carried on and the doctrine taught therein is in conformity with the usages and doc- trines of the said Church of England; and the plaintiff having himself sworn to the truth of the allegations in the bill, after due notice, his counsel has asked me for an interim injunction order to restrain the use of said income other than as aforesaid until the hearing. No answer as yet has been part in, but the defen- dants' counsel has produced before me an affidavit of the rector denying that he has taught the doctrine at- tributed to him; not denying most of the practices at- tributed to him, but in effect denying they are contrary to the practice of the Church in connection with the Church of England in this Province, and that he has the sanction of the Bishop for them. Also the affidavit of the Chief Justice, one of the church wardens, that he never heard the rector preach the doctrine attributed to him, and adducing certain orders or canons of the synod, to which I will hereafter allude ; and the sole question I have to decide is, whether I ought now to grant the order asked for. To do this it will be necessary to determine whether there is a trust created by the grant, or whe- ther it was a gift to the corporation to deal with it as their own property, and if a trust was created, what were its terms? Was it to use it for the support of a. church in which the faith, doctrine and discipline of any of the Christian religions were to be observed and taught, be it Methodist, Presbyterian, Baptist, Roman Catholic, or any other except those that were then pre- scribed in the Church of England — at the discretion of NEW BRUNSWICK EQUITY CASES. 317 the grantees ? If so, it is apparent that these defendants would be acting within their right in using the funds to - support any church no matter how much its faith, doc- trines and discipline, might be opposed to that of the Church of England; but if the true intent and meaning of the said trust is that this property could only be used by Christ Church in carrying removable into any Court of Law, or restrainable by the injunction of any Court of Equity." In order to make the remedy by quo warranto applicable in the case of a non- corporate office, there must be something more than mere ac- ceptance of the office: The Queen v. Tidy, [1892] 2 Q. B. 179; it is otherwise in the case of a municipal office: Ex parte Gal- lagher, 26 N. B. 73. Though the main question decided in the principal case has given rise to many decisions in England, Canada, and the United States, not always in harmony, the weight of authority in Eng- land, where a municipal corporation, or a body with public duties, is committing .a breach of trust or exceeding the limits of its powers, and the wrong is one affecting the public gen- erally, and not any person or class of persons in particular, ia that proceedings in equity to prevent or redress the same should be in the name of the Attorney-General; and this is the uniform and settled mode of proceeding in England: Attorney-General v. Aspinall, 2 M. & C. 613 ; Attorney-General v. Mayor of Liverpool, 1 M. & C. 171; Attorney-General v. Mayor of Dublin, 1 Bli. N. R. 312; Attorney-General v. Corporation of Poole, 4 M. & C. 17; At- torney-General v. Wilson, 9 Sim. 30; Attorney-General v. Comp- ton, 1 Y. & C. C. C. 416 : Parr v. Attorney-General, 8 CI. & P. 409; Attorney-General v. Lichfield, 13 Sim. 547; Attorney-General v. Norwich, 16 Sim. 225; Attorney-General v. Mayor of Wigan, 5 DeG. M. G. 52; Attorney-General v. Corporation of Birming- ham, L. R. 3 Eq. 552; Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. 172; Attorney-General v. Mayor, etc., of Newcastle-Upon-Tyne, 23 Q. B. D. 492; Withington Local Board 330 NEW BRUNSWICK EQUITY CASES. 1888. of Health v. Corporation of Manchester, [1893] 2 Ch. 19, 27. And see Prestney v. Mayor, etc., of Colchester^ 21 Ch. D. 111. The Mebbiit decision by Mr. Justice King in the principal case has bean fol- ,, ''• . lowed in New Brunswick by Mr. Justice Barker in Rogers v. Trustees of Bathurst School District, 1 N'. B. Eq. 266. It certainly must be said that the doctrine is not recommended by consid- erations of convenience, and it is satisfactory to find that it is not acted upon in Ontario. In that Province the instructive case of Paterson v. Bowes, 4 Gr. 170, arose in 1853, initiating a clear departure from the preponderating English decisions, but based upon the authority of Bromley v. Smith, 1 Sim. 8. The suit was brought by a number of residents of the City of Toronto " on behalf of themselves and all other inhabitants of the City of Toronto," to have restored to the corporation cer- tain funds belonging to it which it was alleged had been mis- appropriated by the defendant, who was mayor of the city. On demurrer to the bill on the ground, inter alia, that the matter was only cognizable in equity on an information by the Attor- ney-General, Esten, V.-C, said: "The question is, whether the remedy should not have been sought by means of an information at the suit of the. Attorney-General. The solution of this ques- tion has been attended with much difficulty. We have consulted all the casas cited in the course of the argument, and it cannot be denied that no case can be found in which proceedings have been had against a public corporation without "the intervention of the Attorney-General; and it must equally be admitted that it would have been perfectly competent and proper for the At- torney-General to have proceeded in the present instance. The only case that has occurred which appears to afford any au- thority for the suit being in its present form is the case of Bromley v. Smith, 1 Sim. 8. This case was decided so long ago as 1826. It was, however, cited as a binding authority in the recent case of Winch v. The Birkenhead Railway Co., 16 Jur. 1035, and it was decided by a very distinguished Judge. In that case the inhabitants of St. Mary's parish in the borough of Staf- ford had had rights of common over certain waste lands within the parish. An Act of Parliament had been passed authorizing the enclosure and cultivation of these wastes, and by it the householders being parishioners within the borough, occupying houses of the yearly value of £5, or any seven of them, were empowered to make rules and regulations "for the management and cultivation of the allotments, and to impose a rate on the householders in order to carry such rales and regulations into effect. A sum of £107 or thereabouts, produced by a rate im- posed under the Act, had been applied by the treasurer to a pur- pose, which, although sanctioned by a majority of the house- holders, was not authorized by the Act, and the suit was insti- tuted by some of the householders on behalf of themselves and the others in order to reclaim this sum and to prevent the mis- application of the rates in the future. The suit was founded on precisely the same principle as the present. The money, when repaid, would be applicable to the use of the householders, and would relieve them pro tanto from future rates. Sir John Leach decided that although the Act complained of was approved by the majority their sanction could not deprive the minority of their right to complain of it, because it was contrary to the provisions of the Act of Parliament, and that consequently stme of the householders could proceed on behalf of themselves and all the others, for whose benefit the suit must be deemed to be; and that, although the Attorney-General could proceed in such a case on account of the public nature of the right, yet. his presence was NEW BRUNSWICK EQUITY CASES. 331 not absolutely necessary for that purpose unless the whole body 1888. concurred in the abuse. Alter the best consideration which I have . been able to give to this question, I have arrived at the conclu- merbitt sion that the case of Bromley v. Smith is an .authority for this „ ^ et a , suit in its present shape. The only respect in which the learned counsel for the defendant attempted to distinguish the two cases was, that in Bromley v. Smith the householders were not a corporate body. But it appears to me that the only effect of this distinction is to render it necessary for the corporate body to proceed in the present case, if it were practicable. The circum- stance of a corporation being concerned does not make the presence of the Attorney-General more necessary than it other- wise would be. The corporation could itself proceed without the Attorney-General; then why not the inhabitants when the cor- poration refuses to proceed? I think, therefore, on the authority of the case of Bromley v. Smith, though with some doubt, that the bill can be sustained in its present shape. The principle seems to be that, where a specific portion of the public as distin- guished from the whole public is concerned, the proceeding may be in this form. Where the whole public is concerned, it must be represented by the Attorney-General." Spragge, V.C., said: " Upon the question whether the remedy ought not to have been sought by information at the suit of the Attorney-General, it is not denied, I believe, that the wrong complained of is so far of a public nature that the redress might have been sought in that form. In the different cases cited, arising out of the passing of the Municipal Reform Bill in England, the wrong complained of was similar in character to that alleged here, and the suits were by information. Several of the cases cited were charity cases, which clearly could be brought in no other shape. The Crown, as parens patriae, having the peculiar care of charities, sues by the Crown prosecutor, the Attorney-General; and the Crown occupies the same character in regard to rights of a public nature, as of public corporate bodies, as is established by the case of the Attorney-General against the Corporation of Dublin, 1 Bli. N. R. 337. I think, therefore, that an information by the Attorney- General would lie in respect of the matters complained of in this suit; but the question still remains whether this bill is not sustainable. I think the case of Bromley v. Smith is an authority for the bill filed in this cause." This decision was prior to Evan v. Corporation of Avon, 29 Beav. 144, but when the question again came before the same Ontario Court, in Armstrong v. The Church Society, 13 Gr. 552, Mowat, V.-C, affirmed the views laid down in Paterson v. Bowes. He said " It was held fourteen years ago, in Paterson v. Bowes, that a suit would lie by any of the members of a municipal corporation to remedy an illegal application of the funds of the corporation. The judgment was by the two Vice- Chancellors, and I recollect that Chancellor Blake, who was absent from illness when the argument took place, was present when judgment was given, and intimated his concurrence therein. The judgment was acquiesced in by the defendant; ancl there have since been several cases of like bills, in which the decision in Paterson v. Bowes was either unquestioned at the bar, or if questioned was upheld by the Court. Its propriety was disputed before the present Chancellor in Brogdin v. The Bank of Upper Canada (13 Gr. 544), on the authority of a subsequent case of Evan v. Corporation of Avon, before the Master of the Rolls, but was maintained by the Chancellor; .and his decree was affirmed by all the Judges on a re-hearing. The suit was by a ratepayer, on behalf of himself and all other ratepayers of the municipality of Port Hope; and, independently of the cases in Canada, seems fully supported by the English case of Bromley v. 332 NEW BRUNSWICK EQUITY CASES. 1888. Smith, which was relied on by the Court in Paterson v. Bowes, but was not cited to the Master of the Rolls in Evan v. Gor- Mekiutt poration of Avon, and by the opinion of Lord Westbury, in the *• , late case of the Stockport District Water Works Co. v. Mayor, chkslky a originally used that particular mark or name. That would be fraud upon the particular person who had first used the particular mark or name where his goods were sold or his business carried on. The simplest case is where a man puts his name and address on goods which he manufactures. It would be wrong for another manufacturer to put that name and address on his goods, for to do so would be to make all the world believe they were manufactured by the person whose name and address they bore. The simple question in such a case is, has the plaintiff by the appropriation of a particular mark or name, fixed in the market where his goods are sold, or his business i uried on, a conviction that the goods so sold were manufactured by him or the business carried on under a NEW BRUNSWICK EQUITY CASES. 335 particular name was carried on by him; and if so, and 1888. if no one else has been in the habit of using that mark McCoRMICK or name, any other person has not the right to use that McCo gK ERr . mark or name, so as to commit a fraudulent act of palm- Pa] ~_ j, ing off his own goods or his business as the goods or business of the person known to have been in the habit of using it. As long ago as the time of Lord Hardwicke, in the case of Blancliard v. Hill (1), where that learned Judge refused an injunction to prevent the defendant from making use of the Great Mogul as a stamp upon his play- ing cards to the prejudice of the plaintiff, upon the sug- gestion that the plaintiff had appropriated it to himself conformably to the charter granted to the Card Makers' Co. by King Charles I., Lord Hardwicke, in giving judgment, said: " Every particular trader has some par- ticular mark or stamp; but I do not know any instance of granting an injunction to restrain one trader from using the same mark with another; and I think it would be of mischievous consequence to do it. Mr. Attorney- General has mentioned a case where an action at law was brought by a cloth-worker against another of the same trade for .using the same mark, and a judgment was "given that the action would lie (Poph. 151). But it was not the single act of making use of the mark that was sufficient to maintain the action, but doing it with a fraudulent design to put off bad cloths by this means, or to draw away customers from the other clothier." This, I think, is the true foundation of the decision of the Court in all such cases. If a man has been in the habit of using a particular mark for his goods or business for a long time, during which no one else has used a similar mark, and then another person begins to use the same mark or name for his business, then it can only be with a. fraudulent intent; and any fraud may be redressed in this Court whatever may be its nature, so long as it interferes with the lawful, rights of the person who complains. This principle is clearly affirmed in M'AntliTiv v. Bassett (2). (1) 2 Atk. 481. (2) 33 L . j Cll . 562l 336 NEW BRUNSWICK EQUITY CASES. 1888. This is the clear law with reference to trade marks, hcCormick an d I think the rule of law is the same whatever sub- mccoskebt. J ec t it may be applied to, and that a person will be pro- Paimer, j. tected in the use of a name which he has appropriated, and by his skill rendered valuable, whether the same be personal property which may be manufactured, or is an hotel where he has built up a prosperous business. It follows that the controlling question in this case is: Was the name " New Victoria " originally intended and used to designate a building, or was it intended and used to designate an hotel business carried on by the plaintiff without reference to where it was carried on, and in which of these two ways would it be understood by the public? If the first is apparent, the ,use of the name by another on the same premises would be true and not calculated to deceive; if the latter, such use by the de- fendant was untrue and calculated to deceive. The rights of the parties in this case may be stated thus: The defendant has the right to represent that his hotel is the same building that has been known as the New Victoria hotel, and he is carrying on hotel business therein himself. He has no right to represent or do any- thing whatever to make any reasonable person believe that such hotel is conducted by the plaintiff, and there- by secure customers by such deception. On the other hand, the plaintiff has a perfect right to represent that he is the same person who carried on the New Victoria hotel in the defendant's building, and that he is now carrying on the same description of business at another place, because all this is strictly true and in no way calculated to deceive any reasonable person. But he has no right to represent or do anything calculated to make a reasonable person believe that he is still carry- ing on the business in the same hotel building; for that would be calculated to deceive and improperly take away customers from that building which it would be properly entitled to have. All that is proved on either side in either of these directions is, that the defendant has, in person, used the name " New Victoria " ; at the same time stating that he is the manager of it himself, and also has continued the NEW BRUNSWICK EQUITY CASES. 33f sign " New Victoria " on the building. It appears to me 1888. that would not justify me in drawing the conclusion mcCokmick that this is so conclusively proved that this would have mcCo"skery. the effect of deceiving, as suggested, as would justify p al ^7 riJ me in applying the extreme remedy of granting an in- terim injunction order before this point can be more satisfactorily determined and decided at the hearing, when all the proof on both sides can be heard and con- sidered. Therefore, I must decline to do so. This will not prevent the plaintiff from proceeding with the case, and if he can make out a case at the hear- ing, coming up to the standard which I have endeavour- ed to lay down, it will then be the duty of this Court to afford him redress. I will also reserve the question of costs until then, because I cannot before tell who may ultimately turn out to be right. From what I have said the case will ultimately turn upon what is the effect of the .use that the defendant is making of the words objected to, and which can only be arrived at by inference deducible from the facts when they are given in evidence; and therefore both parties, I think, will see that justice will be best done by both altering the connection of the use of the words, or add- ing other words to them in such a manner as will pre- vent any of the public from mistaking the one for the other. Both parties appear to be doing a right and useful business, and both are entitled to the protection of the law to enable them to carry it on honestly, and I can see no difficulty in their so arranging it as to act honestly and fairly towards each other, without any further ex- pense or litigation, which can only result in a great deal of expense and vexation. I, therefore, 'hope that the matter may be amicably arranged. See notes to Armstrong v. Raynes, ante, p. 144. EQ. CAS.— 22 338 NEW BRUNSWICK EQUITY CASES, 1888. THE WESTERN UNION TELEGRAPH COMPANY SepUmherV> . v. THE NEW BRUNSWICK RAILWAY COMPANY, THE CANADIAN PACIFIC RAILWAY COMPANY, AND THE ST. JOHN AND MAINE RAILWAY COMPANY. Telegraph company — Exclusive right to construct line — Restraint of trade — Notice of agreement — Acquiescence — Unfair preference — 51 Vict. c. 29 a. 240 (D.) — B. N. A. Act, s. 92, s.-s. 10 (a) — Suit by foreign corporation. The E. & N. A. Ry. Co. were incorporated in 1864, under the laws of the Province of New Brunswick, and in 1869 owned a line of railroad from Fairville, N. B., to Vanceboro, on the bound- ary of the State of Maine. In that year they entered into an agreement with the plaintiffs, a company incorporated in the State of New York, giving the latter the exclusive right to erect and maintain upon the land of the railroad, lines of telegraph which should be the exclusive property of the plaintiffs. The E. & N. A. Ry. Co. agreed to transport gratis employees of the plaintiffs, and materials used by the plaintiffs in erecting and maintaining the lines, and not to transport the employees and materials of any other telegraph company at less than the usual rates. The plaintiffs were to maintain one wire for the use of the railroad, and to furnish telegraphic facilities and supplies at a number of stations on the road. The plaintiffs constructed lines of telegraph, and connected them with their system in the State of Maine. In 1878 the E. & N. A. Ry. Co.'s road was sold under a decree of the Supreme Court in Equity to the St. 3. & M. Ry. Co., by whom it was run until 1883, when it was leased to the N. B. Ry. Co. for 999 years. Both of these companies had notice of the agreement, and acted upon it. In 1888 the C. P. Ry. Co. obtained running powers from the N. B. Ry. Co. over the line, and permission to construct a. line of telegraph along the railroad. To prevent the construction of the line of telegraph, as being in breach of the agreement of the E. & N. A. Ry. Co. with them the plaintiffs obtained an ex parte injunction order, which it was now sought to dissolve. Held, (1) that the agreement of the E. & N. A. Ry. Co. with the plaintiffs was not void as an agreement in restraint of trade, or as creating a monopoly, and being contrary to public policy. (2) That the agreement in respect to the transportation of employees and materials was not invalid under section 240 of 51 Vict, c. 29 (D). (3) That the plaintiffs, though incorporated in the State of New York, could validly contract with the E. & N. A. Ry. Co., and enforce the agreement by a suit brought iu this country. (4) That the agreement was not invalid under section 92, sub-section a), of the B. N. A. Act, 1867. (5) That the N. B. Ry. Co., having leased the road with notice of the agreement, and having acquiesced in it, were bound by it.* * Affirmed on appeal by the Supreme Court of Canada, 17 S. C. R. 152. NEW BRUNSWICK EQUITY CASES. 339 The facts in this suit are fully stated in the judg- 1688. ment of the Court. Argument was heard August 31 and September 1, 1888. V\ KSTEBN Union Te±,e- gbaphCom- F. E. Barker, Q.C, for the plaintiffs. new Bruns- wick Railway H- H. McLean, for the defendants. 1888. September 12. Tuck, J. :— This is an application on behalf of the New Bruns- wick Railway Company and the Canada Pacific Eailway Company to dissolve an injunction order made by me on the 31st July last. In the bill of complaint upon which the order was granted, it is set forth that the plaintiffs were incorpo- rated by the laws of the State of New York; and the European and North American Railway Company for extension from St. John westward, were incorporated by the laws of the Province of New Brunswick in the year 1864. This company built a line of railway from Fairville to Vanceboro at the boundary line of the State of Maine, which line was opened for traffic in 1869. At this time the plaintiffs were operating different lines of telegraph from St. John to different points, and the European and North American Railway Company, finding it necessary or desirable in the construction of their line of railway, and its operation and maintenance after its construction, that there should be telegraphic communication along its line, from point to point, en- tered into an agreement for that purpose with the plain- tiffs, dated the 23rd February, 1869, whereby the rail- way company did grant, convey, and set over to the tele- graph company, their successors and assigns, the exclu- sive right to erect and maintain along their line of rail- way, and upon the lands of the railway company, one or more lines of telegraph, and to enter upon the lands from time to time, and to erect and repair, for and dur- ing the full term of ninety-nine years. That the lines, when erected, should be the exclusive property of the telegraph company, who ' covenanted to maintain one telegraph wire for the use of the railway company; to Tuck, J. 340 NEW BRUNSWICK EQUITY CASES. 1888. furnish telegraph facilities in thirteen station houses, western — anc * *° su PPty necessary message blanks and battery Union Tele- simnljpq graph Com. Supplies. pant The railway company on their part were to furnish ■wick bailwa* ^S fl t and fuel at the stations; to transmit commercial company, messages at usual rates; to give railway passes to em- Tock, j. ployees of the telegraph company free of charge; to transport free of charge all poles and wires required in repairing, erecting, or maintaining the lines; and not to transport men and materials of any other telegraph company at less than usual local rates, nor stop its trains for any such other telegraph company at other than regular stations. That the wires to be erected should be connected with those in the city of St. John, and that St. John business should be done at the costs of the telegraph company. If the plaintiffs should refuse to perform their cove- nants the indenture should cease, the railway company having given ninety days' previous notice. This agreement was registered in the counties of St. John, Kings, Queens, Sunbury, and York. The St. John and Maine Railway Company were in- corporated by an Act of the General Assembly of New Brunswick, 41 Vict. c. 92, for the purpose of purchasing this line of railway from Fairville to Vanceboro, and did purchase it on the 31st) August, 1878. The St. John and Maine entered into possession and operated this line of road until they leased it to the de- fendants, the New Brunswick Railway Company, on the 21st May, 1883. This lease is for nine hundred and ninety-nine years, and was confirmed by the Parliament of Canada by 47 Vict. c. 75. The New Brunswick Rail- way Company, incorporated by Act of Assembly, 33 Vict. c. 49, entered into possession 1 of this line of railway after the lease, and are still in possession. This com- pany built a line of railway from Gibson, in the county of York, to Edmundston, in the county of Madawaska. On the 11th August, 1875, the New Brunswick Rail- way Company made an agreement with the telegraph company similar in its provisions to the former agree- ment, to construct telegraph lines along their railway Tuck, J. NEW BRUNSWICK EQUITY CASES, 341 and its branches. This agreement is registered in the 1888. counties of York, Carleton, Victoria, and Madawaska. • WESTERN "Union TftjF' Before pie 25th June, 1884, the defendants, the New graph c'om- Brunswick Railway Company, had acquired possession P t NT of the line of railway in New Brunswick originally wick railway owned by the New Brunswick and Canada Bailway Company, intersecting the St. John and Maine at Mc- Adam, and also the line of the Fredericton Railway Company. And, previous to this date, the plaintiffs had entered into similar agreements with these railway companies, and had used the wires erected by them under the terms of such agreements. In August, 1876, when the foreclosure proceedings mentioned in the preamble of the Act incorporating the St. John and Maine railway were commenced, Egerton B. Burpee and J. Murray Kaye were appointed receivers of the railway from Fairville to Vanceboro, and oper- ated the road until it was sold and transferred to the St. John and Maine. After the sale, and until the lease to the St. John and Maine, the road was operated under J. Murray Kaye, as manager. It is alleged that Egerton B. Burpee is a corporator of the European and North American Railway and was one of its directors, and also a director of the New Brunswick Railway. Whilst operating the road all of the parties named kept and acted upon the agreement so made with the plaintiffs; and it was understood and agreed between the plaintiffs and the St. John and Maine, that the tele- graph service should be the same as under the first named agreement. On the 25th June, 1881, the plaintiffs and the New Brunswick Railway Company made another agreement which recognizes the contract with the St. John and Maine, and gives further facilities to the railway com- pany to send messages beyond their lines of road to an amount not exceeding two thousand six hundred and fifty-eight dollars a year for four hundred and forty- three miles of their road, and six dollars per annum ad- ditional for each additional mile. This agreement also provides for the transporting of poles and other telegraph materials free of charge, 342 NEW BRUNSWICK EQUITY CASES. 1888. an< i tliat the agreement of 10th August, 1875, between webtebn * ^ e telegraph company and the New Brunswick Rail- gbaph'co'm'- wa y> ail d the provisions of the agreement between the pant Telegraph Company and the New Brunswick and Canada, 3 w ^?w S .Vthe St. John and Maine, and the Fredericton Railway WICK KAIL WAY ' v company, companies shall be continued im force between the par- Tuck, .i. ties thereto respectively, during the respective terms thereof; that, among other agreements, so referred to, is that with the St. John and Maine railway, before men- tioned, which confirmed the original agreement with the European and North American Railway Company for extension from St. John westward. Since the New Brunswick Railway Company have operated the road they have enjoyed the privileges of and acted upon the, original agreement, and the plain- tiffs have performed their part of it. The defendants, the Canada Pacific Railway Com- pany, are incorporated by 35 Vict. c. 73 (D.). Under their Act they have built a railway to the Pacific, and are now constructing a line of railway, known as the Short Line, to tap the Maine Central at Mattawamkeag, and when finished they will have complete connection from St. John to Montreal. The same persons who own a controlling interest in the Canada Pacific Railway own a controlling interest in the New Brunswick Railway, and this has been so for a period prior to the 25th June, 1884; and it is alleged that the terms of the -agreement first named have for a long time been well known to the Canadian 'Pacific Rail- way Company. Sir Donald Smith is president of the New Brunswick Railway Company, and ' Sir George Stephen and E. R. Burpee are members of the board of directors. Sir George Stephen is president of the Can- ada Pacific Railway Company, and Sir Donald Smith is one of the directors. It is also alleged in the bill of complaint that it is the intention of the Canada Pacific Railway Company or the New Brunswick Railway Company, or the two acting or co-operating together, to erect telegraph poles along and on the track of the said line of railway be- tween Vanceboro and Fairville. NEW BRUNSWICK EQUITY CASES. 843 The plaintiffs allege that under the agreement they 1888. claim exclusive right to erect and maintain along the Wk6TEKN line of the railway between Fairville and Vanceboro lines ^1™ c 8 J£' of telegraph, with as many wires as they may see fit, P £ NT and that unless they are protected in the enjoyment of * K W B B A ^ their rights, and the defendants are prevented and re- ^°»^a~*- strained from interfering with their rights, they will t^j. suffer injury and damage, for which they will be with- out any adequate remedy ; and the damage will be entirely irreparable. The prayer of the bill is, that the defendants may be restrained from erecting or maintaining on the said railway property between Vanceboro and Fairville, and along the line of the railway between those points, any line or lines of telegraph or telegraph wires, either on telegraph poles now erected or otherwise; and from transporting men or materials for any other telegraph company at less than usual rates, or from stopping at other than usual stations. Affidavits of J. Percy Browne, John J. Eobinson, and Eobert T. Clinch, superintendent of the plaintiffs' company for New Brunswick and Nova Scotia, were also produced. Upon the motion to dissolve the injunction, an affi- davit made by Howard D. McLeod, a superintendent of the New Brunswick Kailway Company, was read. He says that the New Brunswick Railway Company never made any claim on the plaintiffs' company that they were entitled to enjoy all the privileges claimed under the first named agreement; that the facts were these: When the railway company took possession of the road they continued to enjoy the telegraph service of the plaintiffs' company, the same as it had been enjoyed by the St. John and Maine Company. He says, also, that the building of telegraph lines by the Canada Pacific Railway Company will not interfere with the plaintiffs' lines, except only in so far as it interferes with the ex- clusive privileges claimed by the plaintiffs, and that the Canada Pacific Railway will place their telegraph lines on the opposite side of the road; that no written agree- ment was ever, to his knowledge, made between the Tuck, J. 344 NEW BRUNSWICK EQUITY CASES. 1888. plaintiffs and the St. John and Maine Eailway Company; westbbn tiat fle was manager of the European and North Ameri- ^k'aph^comI can Eailway, and E. B. B,urpee was never a director of ^ that company. wick e B a ??wI"t A copy of the deed, dated the 31st August, 1878, ' from Ezefciel McLeod, barrister-at-law, made under a decretal order of the Supreme Court in Equity to the St. John and Maine Eailway, was also produced. An affidavit in reply, made by Eobert T. Clinch, was read. He says that the telegraph company and the St. John and Maine continued to work on the original agree- ment, which was always understood to be in force be- tween them, and adopted as the agreement between them, and was always acted on between them. From the epitome I have given of the bill of com- plaint and affidavits, it appears that there is no sub- stantial dispute as to the principal facts in the case. Mr. Howard D. McLeod, in his affidavit, denies that E. E. Burpee was ever a director of the European and North American Eailway, and says that he has no know- ledge of any written agreement between the plaintiffs and the St. John and Maine Eailway Company. He states, also, that this company never made any claim on the plaintiffs' company that they were entitled to enjoy the privileges secured by the agreement with the European and North American Ttailway Company, but that they went on and enjoyed them without making any claim. It is not necessary to remark upon this difference in . statement, because it matters not in respect to the result which statement is correct. At the argument a number of grounds were sub- mitted why the injunction order should be dissolved. The first, and perhaps the most important one," seeing that it has never before been put forward in this Court, is, that the agreement set out in the plaintiffs' bill of com- plaint, is invalid, because it is a covenant in restraint of trade, detrimental to public interest, and therefore void, on grounds of public policy. When this proposition was stated it seemed to me that the principle, that cove- nants in restraint of trade' are bad, was not applicable to NEW BRUNSWICK EQUITY CASES. 345 this case. The covenant here is, that the plaintiffs 1888. shall have the exclusive right to erect and maintain WE6TEBN their telegraph lines over the company's railway from Unio; ' '•■"• graph Com- pany Fairville to Yanceboro, a distance of eighty miles in length by about sixty-six feet in width. There is nothing ^^rail-waV in the covenant to prevent another company or another company. individual from erecting poles and placing telegraph Tuck,j. wires in the neighbourhood of the land at present owned and occupied by the Xew Brunswick Eailway Company for railway purposes. Such agreement is not in general restraint of trade, for it is partial in its operation. If a covenant gave to a company the exclusive right to erect and maintain telegraph lines throughout Canada, or even the Province of Xew Brunswick, it would be a complete monopoly, and against the policy of law. If a trader, in good faith, enter into an agreement not to exercise his trade for a limited period of time, and at particular places or premises, such an agreement is good. But if he covenant that he will not again work at his trade or business in Canada, that agreement is bad, be- cause it is in restraint of trade, and against public policy. In short, the principle is that when the restraint is gen- eral, it is bad; when it is partial, it is good. In the pre- sent case the exclusive right to erect and maintain tele- graph lines is confined to one road, over which the European and Xorth American Eailway Company had complete control. At the time this agreement was made the European and Xorth American Eailway Company had the right to construct a telegraph line over their own railway for the purposes of their road, and to the exclusion of other people. If this is correct, then they had the power to grant the exclusive privilege to another company to build telegraph lines on this railway, which was their own property. The Canada Pacific Eailway Company would not to-day have the right to erect poles and stretch telegraph wires over the railway from Fairville to Vanceboro without the leave of the New Brunswick Eailway Company. This covenant is also made for a sufficient consideration, and is a reasonable one. 846 NEW BRUNSWICK EQUITY CASES. 1888. 'Phe whole question of promises made in restraint western °^ ^ rSi ^ e * s m ost elaborately considered in Mitchel v. 'SES'hSS?-- Reynolds (1). pant i n Leather Cloth Co- v. Lorsont (2), Vice-Chancellor wSk iuiLWAY^ ames ^ nus sta '^ es * ne * aw: "Alb the cases, when company, they come to be examined, seem to establish this prin- Tuok, j. ciple, that all restraints upon trade are bad as being in violation of public policy, unless they are natural, and not unreasonable for the protection of the parties in dealing legally with some subject matter of contract. The principle is this: Public policy requires that every man shall be at liberty to work for himself, and shall ■not be at liberty to deprive himself or the State of his labour, skill, or talent by any contract that he enters into. On the other hand, public policy requires that when a man has by skill, or by any other means, obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous' way in the market; and in order to enable him to sell it advantageously in the market it' is necessary that he should be able to pre- clude himself from entering into competition with the purchaser. In such a case the same public policy that enables him 1 to do that does not restrain him from alie- nating that which he wants to alienate, and, therefore, enables him to enter into any stipulation, however re- strictive it is, provided that restriction, in the judgment of the Court, is not unreasonable, having regard to the subject matter of the contract." Now, in this case, the covenant, at the time it was made, was clearly in furtherance of public policy, and not against it. It was mutually advantageous to the contracting parties, and most beneficial to the general public. When the telegraph company placed their poles and wires along the railway track larger facilities were afforded them in the transaction of their, business, and the railway company could manage their road more ex- peditiously and economically, and with greater safety to passengers. The plaintiffs were in a position to do the necessary work, and to offer the railway company (1) 1 Sm. L. C. (8th ed.) 417. (2) L. K. 9 Eq. 345, 353. Tuck, J. NEW BRUNSWICK. EQUITY CASES. 347 just what they required. That being so, and the con- 1888. sideration being a good one, the contract which granted webtkbn to the plaintiffs the exclusive privilege to put up their ^™ £™ E ' poles and wires on the railway track was, when entered p *f T into, not an unreasonable one, since it was beneficial, ^™Kiy uot aloue to the immediate parties, but to the general p,ublic. If, then, the covenant was good at the time it was made and in the general interest, it does not neces- sarily become bad and against public policy, because the Canada Pacific Railway Company, after a period of nineteen years of uninterrupted and mutually agreeable action under the agreement, now desire, largely in their own interest, to put up telegraph wires along the line of the New Brunswick Railway Company. The contract, being good and beneficial to the public at the time it was made, is not rendered invalid by circumstances which have since occurred. No complaint has ever been made, nor is any now made, that tbe service rendered by the telegraph company is insufficient; nor does it appear that increased .means are requited for jioing telegraphic work along the line of this railway from Fairville to Vanceboro. This agreement does not give the plaintiffs a monopoly of telegraphic business between St. John and the State of Maine. Throughout the eighty miles' length of road, the railway track is in width sixty-six feet, or thereabouts, and there is nothing to prevent other com- panies acquiring the right to construct telegraph lines in the immediate neighborhood' of the New Brunswick Railway, and parallel with its track. In the case of the Canada Pacific Railway Company their special business is mot the building of telegraph lines, although incidental to it; and it looks as if that which they are now seeking is rather for their own convenience than the interest of the public. Questions arising out of promises said to be in re- straint of trade are discussed in Elves v. Crofts (3) ; Jones v. Lees (4); Mumford et ah v. G-ething (5); Ital- ian v. May (6). In this case, at p. 665, Parke, B., says : (3) 10 C. B. 241. (5) 7 C. B., N. S. 305. (4) 1 H. & N. 189. (6J 11 M. & W. 653. Union Teus. GBAPH PANT Tuck, J, 348 NEW BRUNSWICK EQUITY CASES. 1888. " It is for the Court to determine whether the contract westkrn be a fair and reasonable one or not; and'the test appears 'com-' t° be, whether it. be prejudicial or not to the public iiir terest, for it is on grounds of public policy alone that w? I find in Lindley on Partnership (vol. 2. p. 1484, company, appendix), the following: "Notwithstanding some Cana- Tuck, j. dian ,j ec i s i 011s to tne contrary, it is conceived that a for- eign corporation can sue in this country on all contracts entered into with it in this country, provided such con- tracts are warranted by the constitution of the corpora- tion, and are not illegal by English law. The Canadian decisions are based on the theory, that as no state can validly authorize a body corporate to transact business out of its own territory, no corporation can. sue in a for- eign country on a contract entered into there. ,But the true question is, not whether one state can legally grant powers of contracting, etc., in another state, but to what extent does one state recognize the acts of another? The right of a foreign corporation to sue in this country is conferred by English law, and not by the law of the state creating the corporation. The right of a corpora- tion to sue in a foreign country, 'as well as its right to contract in_a foreign country, are both based, not on the law of the state creating the body corporate, but on the extent to which the foreign country chooses to re- cognize that law." Then the writer adds : " It is curi- ous, however, that this point should never have been disputed or decided in this country." This statement of the law commends itself to my judgment, and I prefer to follow it, rather than what is stated in the Upper Canadian decisions before men- tioned. In The City of Berne v. The Bank of England (1G) the law is thus laid down : " It is thought that any as- sociation or body capable of suing and being sued in the Courts of its own country (provided the Covernment of that country be recognized by and be at peace with this country) can sue and be sued here." (15) 6TJ. C. C. P. 77. (10) 9 Ves. 347. NEW BRUNSWICK EQUITY CASES. 353 Erie, O.J., in Branley v. South Eastern Railway 1888. Oo- (17), says : " A foreign company has a locus standi WEBTEBM here; and so, no doubt, has an English company in a gbIphcotT foreign country. We make no enquiry as to the constitu- *£"* tion of a foreign company, any more than we should into w^TiuS'way the generation of an individual suing here." In the Con- Com?ANY - necticut and Passumpsic Rivers Ry. v. Gomstock, decided Tuok > J - in 1870 in Lower Canada, it is said that a foreign cor- poration, legally incorporated, may validly enter into contracts in that Province, and sue in the Courts of the Province the persons with whom they contract, to com- pel them to fulfil their obligations. And in Barned's Banking Co- v. Reynolds (18), decided in 'Upper Canada in 1878, it was said incidentally that as a matter of course the plaintiff, an' English company, had a right to sue there. If, then, this contract is legal by the laws of this country, I think it is not beyond the statutory powers of the corporation. Then, again, it is said that this agreement is invalid, as being contrary to The British North America Act, s. 92, s.-s. 10 (letter A). The argument is that the plaintiffs have no right to make a contract for the con- struction of telegraph lines to connect with similar lines in the United States. This section defines the exclusive powers of Provincial Legislatures, and letter A, sub- section 10, excepts certain local works and undertak- ings. It seems to me that no legislation was necessary to enable the plaintiffs to make this contract, and it is not affected by The British North America Act. The European and North America Railway Company had a right to build their railroad from Fairville to Vance- boro, on the boundary line of the United States, and, therefore, they were authorized to enter into contracts for the erection of telegraph lines, which, according to their view, would facilitate the working of their rail- way. The whole work had to be done on their own land, over which they had complete control, and no further legislation was necessary. (17) 12 C. B. N. S. 70. (18) 3 A. B. 371. EQ. CAS. — 23 354 NEW BRUNSWICK EQUITY CASES. 1888. Next, it is urged that this agreement is not binding "western - on * ne -^ ew Brunswick Railway Company, because it union^tkle- j g no t | n -^^ritingj as required by the Statute of Frauds, pant nor j g j£ UTl (i er the corporate seal of the company, ^ckiuilway Further, it is said that the' agreement, being with the E. company. & ^ American Railway Company, their successors and Tuck, j. assigns are not bound, as they are not named. The admitted facts show that there is an agreement in writing with the E. & N. A. Ry. Company, which is referred to in a supplementary agreement, made be- tween the plaintiffs and the New Brunswick Railway Company, covering other branches of their railway. Besides, there was a verbal agreement, between the plaintiffs and the St. John and Maine Railway Company, that the telegraph service should be and continue the same as it had been under the original agreement. It is clear from the undisputed allegations in the bill of complaint, that all of the railway companies which have managed and controlled this railway, including also the receivers, from 1869 till the present" time, have acted upon this agreement. Since the New Brunswick Railway Com- pany have gone into possession of and operated this road, they have enjoyed all the privileges of this agree- ment. They have acquiesced in and acted upon it. By their own acts, they have become a party to the con- tract, and are bound by its provisions. It is not neces- sary that the president should have signed his name or affixed his seal in order to make the company liable. A corporation is bound by acquiescence, and the New Brunswick Railway Company are estopped by their acts, and the agreement of their lessor, from saying that there is no writing under a corporate seal. In Tulk v. Mojehay (19), there was a covenant by the purchaser of a piece of land, that he would keep and maintain a piece of land named, and a garden, in its then form, and in sufficient and proper repair as a pleasure ground ; and Lord Cottenham held, " the ques- tion is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land (19) 2 Ph. 774. Tuck, J. NEW BRUNSWICK EQUITY CASES. 355 in a manner inconsistent with the contract entered into 1888. by his vendor, and with notice of which he purchased. WESTEBN Of course, the price would be affected by the covenant, qbaph com-" and nothing could be more inequitable than that the PA ^ Y original purchaser should be able to sell the property ^^baSway the next day at a greater price, in consideration of the ' assignee being allowed to escape from the liability, which he had himself undertaken." So I say here, that it would be most inequitable if the New Brunswick Kail- way Company, who took a lease of this road, with a full knowledge of this contract, should be able after having taken possession of the Tailway, and for years acquiesced in the agreement, to say successfully that it is not binding on them. In Crook v. Corporation of Seaford (20), the Court held that though the agreement was not under; seal, the corporation were bound by acquiescence, and must per- form the agreement to grant a lease. Somerset Coal Canal Co- v. Harcourt (21), may be cited as authority that, if necessary, the Court would direct a conveyance to be made by the New Brunswick Railway Company. In Western v. MacDermott (22), it was held that whether the covenants did or did not run with the land, a pur- chaser with notice of the covenants would be bound by them in Equity. And McLean v. McKay (23), follows Tulle v. Moxliay- This case differs from Ackroyd v. Smith (24). That case was cited as an authority, that it is not competent to a vendor to create rights unconnected with the use or enjoyment of the land, and that the owner of land cannot render it subject to a new species of burthen, so as to bind it in the hands of an assignee. Here, on the con- trary, the right given is connected with the use and enjoyment of the land, and is appurtenant to it. It was claimed by the plaintiffs, in the course of the argument, that this covenant is in the nature of an ease- ment. I incline to agree with this view, but think to (■20) L. E. 6 Cb. 551. (22) L. B. 2 Ch. 72. (21) 24 Beav. 571. (23) L. E. 5 P. C. 327. (24) 10 C. B. 164. 356 NEW BRUNSWICK EQUITY CASES. 1888. so hold is not necessary to a decision of this case. In western " ^ ne Trustees of tlw Village of Water town v. Cowen(25), graph T cou- Chancellor Walworth held that a covenant not to erect PA £ T a building on a common or public square owned by the w^okbSh grantor, in front of the premises, is a covenant running company. w jt n the land, and passes to a subsequent grantee of Tuck, j. the premises, without any special assignment of the covenant, and that it was a grant of a privilege or ease- ment which passed .under the conveyance. This matter is much discussed in Gale on Easements, 85-87, and Rowbotliam v. Wilson (26). A distinct ground was taken by the applicants, that the mere use by the New Brunswick Eailway Company of the telegraph facilities on the premises they pur- chased does uot show an intention to become a party to the agreement between the E. & N. A. Eailway Com- pany and the plaintiffs. I have already considered this. I am of opinion that all the facts show conclusively that the New Brunswick Railway Company not only in- fended, but actually did become a party to the agree- ment. Another contention of the applicants is, that by the agreement between the European and North American Railway Company and the plaintiffs, they do not bind their assigns. The covenant to give exclusive rights is from the railway company only, and the words succes- sors and assigns are not used. The owner of land can- not render it subject to loose species of burden, so as to bind it in the hands of assigns. That the covenant of exclusion did not pass any interest in the land, as such an interest is not necessary to plaintiffs to the full en- joyment of their rights; that the covenant does not run with the land, and no easement was created by the agreement. On the contrary, the plaintiffs contend that this is not a covenant, it is a grant; and that an abso- lute easement is created by the grant. I cannot agree with the plaintiffs' contention that this grant or cove- nant creates an absolute easement. It bears analogy to an easement, but no easement is thereby created. Whe- ther a covenant or a grant, it has imposed an equitable (25) 4 Paige 514. (26) 8 H. L. 0. 348. .NEW BRUNSWICK EQUITY CASES. 357 burden upon the land, and the New Brunswick Railway 1888. Company entered into possession of the property sub- WEaTEBN ject to this burden. In London and South Western gS^hcSS? Railway Co. v. Oomm (27), the Master of the Rolls F ^ says, referring to Tulk v. Moxhay: "Of course that ^gg™^ authority would be binding upon us, if we did not agree company. to it, but I most cordially accede to it." In this case Tuck > J- the Master of the Rolls also discusses the question now being considered. Here, however, the New Brunswick Railway Company have acquired the property subject to certain covenants ofl which they have taken advan- tage and have enjoyed. As lessees, they are bound by all the covenants of the lessors. Even if they took the property without notice, they were put upon inquiry, and were fixed with constructive notice of the cove- nants. But, in fact, the New Brunswick Railway Com- pany took possession of the property, with notice of this agreement, and for years have acquiesced in it. It is insisted by the applicants, that by the sale of the E. & North American Railway to the St. John and Maine Railway Company, by a decree of the Equity Court, the St. John and Maine Company acquired all the mortgagees' rights. The mortgage having been executed before the agreement, the purchasers are not bound to give exclusive rights. Now, the property and rights conveyed by the mort- gage were all the rights which then existed, and also the after-acquired rights, including whatever was neces- sary to continue, hold, and operate the line of railway, together with all privileges and franchises. Among these was the right to build a line of telegraph, as inci- dent to the power of operating a railway. When the right was used, and the privileges were acquired by the mortgagors under the contract, they enured to the bene- fit of the mortgagees. By the barrister's conveyance, the St. John and Maine received and took all the property mortgaged, and " all other rights and things of whatso- ever name or nature, necessary to build, continue, hold, or operate the said line of railway, and all and singular, (27) 20 Ch. D. 583. 358 NEW BRUNSWICK EQUITY CASES. 1888. the rights, liberties, privileges, easements," etc. By WESTEBN the deed and under chapter 49, s. 108, Consol. Statutes gba°ph T com- there would vest in the purchasers the right which the Fi £ Y European and North American Railway Company had m™EmwH acquired from the telegraph company, to have their company, telegraph service for the operation of the road, and Tuck, j. this would impose upon the railway company the cor- responding burden of giving to the telegraph company what they had received from the mortgagees. Even admitting that this burden was put upon the land, after the mortgage, yet when the receivers, Kaye and Burpee, took possession for the mortgagees, they did not repudi- ate the contract, but for years accepted all the privi- leges under it, and on their part discharged the liabili- ties imposed upon the railway company by the contract. They are equally bound, whether the right passed under the mortgage or the burden was adopted by them. If, under the Act of incorporation of the St. John and Maine, the right of the plaintiffs was altogether gone, it was competent for them to renew the agreement. It is not denied that a parol agreement was made and acted upon between the parties, from the 1st September, 1878, when the St. John and Maine took control, until the 1st May, 1883, when the New Brunswick Railway Company took possession under their lease. And that this parol agreement was confirmed by the New Brunswick Rail- way Company by the supplementary agreement of 1884 is not disputed. In fact, they admit, as has been stated more than- once, that they had notice, and in my opinion are bound by the terms of the agreement. Lastly, it is argued by counsel for the applicants that there are no circumstances in this suit to cause the Court to grant an injunction order. I think that if the Canada Pacific Railway Com- pany be permitted to construct and maintain their tele- graph lines on the New Brunswick Railway, as they pro- pose to do, irremediable damage would be done the plaintiffs. Besides, it would be difficult, if not impos- sible, to compute the damage. The plaintiffs' telegraph lines extend over a large part of the territory of the United States, and they have cable connections with NEW BRUNSWICK EQUITY CASES. 359 Europe. If another line was established, as proposed, 1888. I fail to see how a correct account can be kept of the western daily loss which must accrue to the plaintiffs. The tolls obaphCo^" received, for which the Canada Facific Railway Cora- PA £ T pany should account, could not be accurately deter- ^^sm^way mined. If the injunction order were dissolved, and it CoM]PASY - should .ultimately be determined that the plaintiffs are Tuck > J - right in their contention, the damage they would sustain in their business could not be estimated by the mere money loss. Admitting that the plaintiffs are right, it does seem to me that the defendants ought to be re- strained by an order o.ut of this Court. Then there ft another element which is always to be considered in cases of this kind, and that is, the dam- age would be continuous, and there is no adequate remedy at law. Trespass might be brought every day, and the plaintiffs ought not to be driven to such a rem- edy, which would be attended with immense expense, and be wholly inadequate. It may be urged, that the Canada Pacific Kailway Company will suffer great loss if the result shows that an injunction order ought not to have been granted. But looking at the matter from that standpoint, and weighing it carefully in my mind, I have come to the conclusion that upon a question of convenience and inconvenience, and of probable loss, the balance is in favour of continuing the order. For these reasons, the application to dissolve the injunction must be refused and with costs. 360 NEW BRUNSWICK EQUITY CASES. 1888. ALWARD et al. v. KILLAM. December 29. Practice — Married woman— Suit relating to separate estate — Parties- Next friend — Joinder of husband as eo-plaintiff — Demurrer. Where a husband is made a plaintiff with his wife in a suit relating to her separate estate, the objection that the suit should have been brought by the wife's next friend may be taken by de- murrer. Isabella Alward, wife of Mark Alward, was the owner in fee simple of a piece of land situate in Petit- codiac, Westmorland county. In 188i they mortgaged the property to James Aiton to secure the sum of $800. In July, 1886, they entered into an agreement with the defendant for the sale of the property to him for $1,200, part of which was to be applied by them in paying off the mortgage. Subsequently, at the request of the de- fendant they conveyed the property to John M. Brown, a relative of the defendant. It was also agreed that the defendant should discharge the mortgage and that the balance only of the purchase money should be paid to Alward and his wife. Brown, after the conveyance of the property to him, went into possession as the agent of the defendant. The defendant made default in pay- ing the balance of the purchase money to Alward and his wife, and this suit was brought by them for a decree for specific performance by the defendant of his part of the agreement. The defendant demurred to the bill on the ground, inter alia, that the subject matter of the suit was the separate property of the female plaintiff, and that the suit should have been brought by her next friend. W. B. Chandler, in support of demurrer. D- L. Hanington, Q.C., contra. 1888. December 29. Palmer, J. :— This case raises, to the profession, a principle which is most important. It is a principle which is pretty well understood among Equity lawyers in other countries; KlLLAM. Palmer, J. NEW BRUNSWICK EQUITY CASES. 361 but here it does not appear to be so well .understood. I 1888. will, therefore, try, if I can, to state the way in Iwhich ALWABD et ai . it strikes my mind, and what the principle is on which I shall act until I am ordered to do otherwise by some Court of Appeal. The action is one in which the wife's rights are more or less involved. It is brought in the name of the husband and wife. On the principles of Equity, as I understand them, such an action can be for no more than the marital rights of the husband, and it is not the way to bring an action in this Court in respect of sepa- rate rights of the wife. Whenever a claim is made out to be only as regards the separate rights of the wife, then the action must be brought by herself alone, by her next friend, and in no other way is she a party to such an action at all. There is another rule in this Court, that is, that a mere want of parties is no ground for demurrer. If a party who brings a suit has no right to relief, from be- ing a party to it without any interest, it i® a ground of demurrer; and therefore in deciding a question of this kind these two principles must be kept in mind. It is perfectly clear to my mind that this action is for a claim by the plaintiff's wife against the defen- dant, that is to say, this property cannot be conveyed to the plaintiff here. At all events, the wife ought to have her separate rights and interests preserved in it. Any lawyer can readily see that she is necessarily a party to it. Therefore it is not a question of mere want of parties, but that the plaintiff has no right- to bring the suit. He cannot bring the suit to enable the wife to acquire her own separate property. This is, therefore, not a want of parties. It is a want of equity in the plain- tiff. The plaintiff has no right to enforce the separate rights of his wife. Therefore I think the case fails on demurrer, and I will have to allow the demurrer. The result will be that the plaintiff will have to amend on the usual terms. The plaintiff may amend his bill in such way as counsel may advise on payment of costs of the demurrer. 362 NEW BRUNSWICK EQUITY CASES. 1888. Tlle proposition laid down in the principal case, that husband and wife ought not to join as co-plaintiffs in a suit relating to Alwabd et al. the wife's separate property, but that the suit must be by the *• wife's next friend, is abundantly supported by authority: Owden aillam. y Campbell) 8 Sim 551 . Sigel v phelps, J, Sim. 239; Daviswv. Prout, 7 Beav. 288; Roberts v. Evans, 7 Ch. D. 830. The husband, however, should be joined in the suit as a defendant: Wake v. Parker, 2 Keen, 59; England v. Downs, 1 Beav. 96; Thorby v. Yeats, 1 Y. & C. C. C. 438; Davis v. Prout, supra; Roberts v. Evans, supra; unless he has no adverse . interest, when he may be a co-plaintiff: Meddowcroft v. Campbell, 13 Beav. 184; Beard- more v. Gregory, 2 H. & M. 491; Davis v. Prout, supra. It is also well settled that the objection that the suit should be by the wife's next friend, and that the- husband should not be a co- plaintiff, can be taken by demurrer: Wake v. Parker, supra; Jessop v. McLean, 15 Gr. 489; Blackburn v. McKinley, 3 Chy. Ch. 65. If the objection is taken by demurrer the Court will give leave to .amend, by striking out the name of the husband as plaintiff, and making him a defendant, and by inserting the name of another person as next friend: England v. Downs, supra; Wake v. Parker, supra; Roberts v. Evans, supra. The next friend must be a person of substance: Hind v. Whitmore, 2 K. & J. 458; Stevens v. Thompson, 38 Ch. D. 317; and see further notes to Robertson v. Appleby, post, p. 509. The provisions of The Married Women's Property Act, 58 Vict. c. 24, enabling a married woman to sue in all respects as if she were a feme sole, do not affect her right to sue by her next friend: Cox v. Bennett, [1891] 1 Ch. 623; Stevens v. Thompson, supra. By this Act, s. 3, s.-s. 2, " A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding, shall be her separate property, and any damages or costs recovered against her in any such action or proceeding, shall be payable out of her separate property and not otherwise." By section 13, " Every woman married before or after commence- ment of this Act, shall have in her own name, against all persons whomsoever, including her husband, the same remedies for the protection and security of her own separate property, as if such property belonging to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the- other-fo-r-a. tort In any proceeding under this section, it shall be sufficient to allege such property to be her property." The Act is retrospec- tive as to procedure, and would therefore seem to apply to a married woman, though married before the commencement of the Act, 1st January, 1896, to enable her to sue or be sued alone after that date, whether in respect of a cause of action arising before or after that date: James v. Barfaud, 49 L. T. N. S. 300: Glou- cestershire Banking Co. v. Phillips, 12 Q. B. D. 533; Weldon v. Winslow, 13 Q. B. D. 784: Weldon v. De Bathe, 14 Q. B. D. 339; Lowe v. Fox, 15 Q. B. D. 667; and see Walsh v. Nugen\ 1 N. B. Eq. 335. The undertaking for damages of a married woman, on an explication for an interlocutory injunction, must be accept- ed, though it is illusory by reason of her not havine any separate estate: Re Prynne, 53 L. T. 465; Pike v. Cave, [1893] W. N. 91; 68 L. T. 651. NEW BRUNSWICK EQUITY CASES. 363 JOHNSON v. SCRIBNEE et al. Statute of Frauds— Pleading— liaising defence at hearing — Specific perform- ance — Agreement — Conflicting evidence— Part performance— Possession — Repairs — Lien — Costs where specific performance refused, bnt other relief granted. In a suit for specific performance of an agreement for sale and purchase of a leasehold interest in land, it is not necessary that the defendant plead the Statute of I'rauds in an answer denying the agreement in order to sel up the defence at the hearing. Where in a suit for specific performance of an alleged agreement to assign a leasehold interest in land with building thereon, in con- sideration of an indebtedness to the plaintiff by the defendant for repairs to the building, it appeared that the plaintiff went into possession, collected the rents, and made repairs, but that these acts were consistent with the evidence of the defendant that the plaintiff was given the management of the property for the purpose of paying defendant's indebtedness to him, the Court refused to grant specific performance, but decreed that the plain- tiff was entitled to a lien on the property for the amount of the debt and any money properly expended in respect of the property. Under the above circumstances neither party was allowed costs of suit. The facts fully appear in the judgment of the Court. Argument was heard May 16th, 1889. W- B. Wallace, for the plaintiff. S. Alward, and J. F. Ashe, for the defendants. 1889. June 6. King, J. :— This is a bill filed for the specific performance of an alleged agreement to assign and convey a leasehold interest in certain premises on Haymarket Square, in the city of Portland, now the city of St. John. The plaintiff alleges that in the spring of 188S he did certain repairs to the amount of $186.33 on the buildings on the premises at the request of Charles B. Scribner, the defendant, who was then the assignee of the lease; that Scribner was unable to pay him, and offered to sell the property to him for $280, and that the plaintiff accepted the offer. This was about the fifteenth of October, 1885. The lower flat was at the time occupied by Robert Nixon as a dwelling and store. The plaintiff further 1889. June 6. 364 NEW BRUNSWICK EQUITY CASES. 1889. alleges that Scribner went with him to Nixon and told j0HNS0N him about the sale, and Nixon then attorned to the scbienbr et ai. plaintiff. The plaintiff collected the rent from Nixon for BingTj- * w0 y ears - The plaintiff also let the upper flat to his brother, and, at the request of the tenants,- made certain repairs upon the building That Scribner, at the time of the sale, handed to him what papers he had in the way of title deeds, and that they were subsequently lost; that by the agreement the plaintiff's account for the repairs was to go upon the purchase money; that he was to deduct from the purchase money the amount of any back charges for taxes, rates, and rent; and that before No- vember, 1887, the plaintiff had paid the full amount of the purchase money, but had not applied for a convey- ance. ' In December, 1887, Scribner conveyed and as- signed his interest in the property to the defendant Nixon. Scribner denied the agreement, and contended that plaintiff's possession and management of the pro- perty were by virtue of an agreement that he should hold possession and collect the rents to secure the payment of the debt due him. It was contended by Mr. Wallace, for the plaintiff, that the defendants not having set up 1 the Statute of Frauds in their answer, could not rely upon it at the hearing, and he cited Heys v. Astley (1), and the language of Knight Bruce, L.J., disapproving of the contrary proposition laid down by the Lord Chan- cellor in Ridgway v. Wharton (2), but this latter was, as stated, a decision of Lord Chancellor Cranworth, and I do not think that it is to be considered as overruled by Heys v. Astley; indeed, in the latter case, L. J. Turner expressly refrains from expressing an opinion one way or the other as to Ridgway v, Wharton. Ridgway v. Wliarton is consistent with, the rule as laid down by Sir William Grant in Spurrier v. Fitzgerald (3), and by V.C. Wigram in Beatson v. Nicholson (<±). So then the Statute of Frauds may be set up. The next question is as to whether the plaintiff has shown part performance sufficient to take the case out (1) 4 DeG. J. & S. 34. (3) 6 Ves. 548. (2) 3 DeG. M. & G. 677. (4) 6 Jur. 620. NEW BRUNSWICK EQUITY CASES. 365 of the Statute. It is laid down in Maddison v. Alder- 1889. son (5), at page 479, cited at the argument by both the Johnson learned counsel, that the authorities show that all the SomB j,£ B et aL acts relied on as part performance must be unequivo- Ki ~j cally, and in their own natures, referable to some such agreement as that sought to be enforced or maintained in the action. Wigram, V.C., in Dale v. Hamilton (6), says : " It is in general of the essence of such an act that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in, if there were no contract. Of this, a common ex- ample is the delivery of possession. One man, without being amenable to the charge of trespass, is found in the possession of another man's land. Such a state of things is considered as showing unequivocally that some contract has taken place between the litigant par- ties; and it has, therefore, on that specific ground, been admitted to be an act of part-performance." Here the plaintiff is shown to be in the possession of the property for two years, from the middle of Oc- tober, 1885, .until November, 1887, leasing it, collecting rents, giving receipts in his own name to the tenants, changing the tenants, making repairs as they are re- quired, making application to the water commissioners as owner, and in fact doing all such acts as the owner would do or be likely to do, and during all that time Scribner, so far as appears to me, has entirely with- drawn from all interference with or management of the property. We are from all this reasonably to presume that the plaintiff's possession was by virtue of some contract with Scribner, the legal owner. The question then is, what was the nature of such contract? The plaintiff says that the contract was one of purchase, and if he proves a parol contract of purchase the acts that have been referred to would amount to sufficient part performance of such contract to take it out of the Sta- tute of Frauds. The plaintiff's case, as already stated, (5) 8 App. Cas. 467. (6) 5 Hare, 381. 366 NEW BRUNSWICK EQUITY CASES. 1889. is that Scribner about the 15th of October, 1885, sold Johnson fl im the property by parol agreement; that the price BoMBNKTi««ot was t° be $280, and that plaintiff's bill for repairs, Kto^j. amounting to $186.33, was to go toward the purchase money, and that the plaintiff was to pay all back charges against the place and deduct these from the purchase money, paying Scribner any balance. Scrib- ner, on the other hand, says that the contract was that the plaintiff was to go into possession and collect the rents and generally control and manage the place until he, the plaintiff, could from the rents repay himself the amount due him for repairs. He also says that such further repairs as would be required were to be made by plaintiff. On page 54 of the evidence he says: "I told Mr. Johnson he could do the repairs." Which of those accounts is to be taken as correct? The positive testimony on the plaintiff's behalf is, .first, that of him- self, and he swears to the contract as set out in the bill ; second, of Pierce, who swears that Scribner told him he had sold the property to the plaintiff ; third, of Dibblee, who swears to a conversation between Scribner and the plaintiff relating to it; fourth, of Bobert Johnson, who swears to what Scribner said when the delivery of possession took place; fifth, of Andrew Johnson, as to the terms of the bargain, as stated to have been heard by him. There is also evidence as to Nixon's admissions, which only become material when once the contract is established, and become material then for the purpose of binding Nixon. Thus, Herrington swears that Nixon said the plaintiff had bought; William Crossin's and Alexander Johnson's testimony is to the same effect. On the other hand, I have said there is the direct evi- dence of Scribner, who swears that the agreement was, as was in substance stated, that Johnson was to go into possession, collect the rents, and, out of them, pay the amount due him. Nixon gives the same statement of it, and, thirdly, there is the evidence of Mabee, who says that in 1886 the plaintiff told him that he only held the property for his claim against it. In support of the plaintiff's view of the case, and as a circumstance of corroboration, there is the fact NEW BRUNSWICK EQUITY CASES. 367 that it is admitted that the plaintiff and Scribner were 1889. negotiating for a sale, and, according to Scribner, the j0HN=0N — plaintiff was willing to give |280, the amount he says ScniBN ^ B et ar he bought it for, while Scribner wanted |20 more. Then m ~j there is the fact that afterwards the plaintiff went into possession and collected the rents as already described. This would be, of itself, consistent with either view. The fact, however, that Johnson gave receipts in his own name, without reference to Scribner, seems to lead to the conclusion that Johnson, at all events, acted as though he were the real owner; and, corroborative of that, further, would be the fact that Scribner does not appear to have been consulted in any way, or to have taken any part in the management of the property thereafter. On the other hand, there are circumstances making the other way. We are to look at Scribner's action, and it is somewhat difficult to suppose that if Scribner sold to Johnson for |280, out of which Johnson was to repay himself his bill of |186 for repairs, and out of which there was to be deducted any back charges, that Scribner should not in some way have applied for the balance, or in some way have sought to find out from Johnson what he was to get out of the property. His silence for two years is rather inexplicable with the idea that he thought that he had made a sale of the property; while, if Johnson was in for the purpose of collecting the rents, and out of it pay his own bill and all incidental repairs, it might reasonably perhaps be that Scribner's silence would be susceptible of a more rational explanation. Then it appears that after the- alleged sale, Scribner had some negotiations with Mr. Mabee respecting a sale, and we have Mr. Mabee's tes- timony that Johnson told him that he held the place for the purpose of repaying himself the charges which he had against it. It appears from Johnson's, statement that he knew of Mabee's seeking to purchase the pro- perty, and that this was after the sale which Tie says was made to him; because he says, when asked the question, " Did you have any conversation with Scribner in the presence of Fred Johnson with regard to a person by the name of Mabee, about Mabee offering to buy it?" - 368 NEW BRUNSWICK EQUITY CASES-. 1889. . he said," Yea, Scribner told me one evening, or morning, j0HNS0N he came over, sometime after I had purchased, that Ma- scbibneW ai. bee would give him $300 for it." " What did' you say to Kin&j. him?" "I asked him if he was going back on me in that way, and he said he was not." On the other hand, as regards Mabee's testimony there is this observation to be made, that if Mabee states entirely what took place, it is difficult to see why Mabee did not go on and complete the purchase, if Johnson merely told him that he had held it for the repairs he put on it, and the forty dollars he paid for getting the water put into the premises. i I feel there is great difficulty in deciding the mat- ter, and the evidence and the circumstances making one way or the other are so evenly balanced that on the whole I have come to this conclusion that, without for a moment thinking, or without stating or concluding that Johnson has stated what is false, I think that the onus being upon him, and the circumstances and testi- mony being conflicting, and the circumstances being so evenly balanced, that the plaintiff, upon whom the onus rests, has not sufficiently given preponderating testi- mony to make out the case which he seeks to set up. Then there arises a question upon the case that is set up by the defendant. It seems to me to disclose a state of facts which gives to the plaintiff an equitable interest in the possession, and I come to the conclusion that if there was not a contract of sale, there was at all events a contract that plaintiff should be allowed to have and retain possession until his debt was paid; in pursuance of this he was let into possession, and in pur- suance of this an agreement was made that he was to have such repairs made as would be necessary; and I think he is entitled, as against Scribner, to remain in possession .until he should be repaid his debt, and the amounts that are properly chargeable against the pro- perty in respect of expenses. But this the defendant did not allow, for the property was sold and the plain- tiff was dispossessed. NEW BRUNSWICK EQUITY CASES. 369 The case of The Unity Joint-Stock Mutual Banking 1889. Association v. King (7), cited by Mr. Wallace, I think JoHNaoN bears upon this view of the case. The next question was SciiIB! ^ B ^ aL whether the agreement so binding upon Scribner is bind- Ki ~j_ ing upon Nixon, and I think that it is. In the first place Nixon, by his first answer to the bill, admits that he knew of Johnson being placed in possession for the purpose of paying himself out of the rents the bill for repairs that was due him. It is also in evidence that he (Nixon) requested repairs to be made while a tenant; that he stated he would not remain in possession unless some of those repairs were made; those repairs then having been made with Nixon's knowledge, I have no doubt whatever that Nixon would be bound by any agreement that would be binding upon Scribner. In the case of Jones v. Smith (8), it was decided that where a party charged has notice that the pro- perty in dispute is incumbered, or in some way af- fected, he is deemed to have notice of the facts and instruments, to a knowledge of which he would have been led by due enquiry after the fact which he actually knew; also, where the conduct of the party charged evinces that he had a suspicion of the truth, and wilfully or fraudulently determined to avoid receiving actual notice of it, there is also constructive notice. I think here there was not only actual notice, but also constructive notice by Nixon of the real arrange- ment that was made, and that the property is liable in his hands to the carrying out of the arrangement made between Scribner and Johnson. The next question is as to whether Telief could be obtained in this action. In the case of Mortimer v. Orchard (9), the bill was for 'the specific performance of a parol agreement to renew; the only witness for the plaintiff proved an agreement different from that in the bill, the two defendants by their witnesses proved an agreement different from both,- and it was held that in (7) 25 Beav. 72. (S) 1 Hare, 43. (9) 2 Ves. 243. EQ. CAS.— 24 870 NEW BRUNSWICK EQUITY CASES. 1889. strictness the bill ought to be dismissed, but specific per- johnson formance was decreed according to the answers, with scmbnbb et ai. costs against the plaintiff. Kil^j. l n Fry on Specific Performance (10) it is said : " In a more recent case, where one contract was alleged and another proved, the bill was dismissed without prejudice to the filing of another bill," citing Hawkins v. Malthf (11). Continuing, this learned author says : " The inclina- tion of Lord Cottenham's mind seems to have been to struggle with apparently conflicting evidence, rather than to dismiss the bill, where there had been part per- formance." In one of the oases in the Privy Council (12) Turnei', L.J., observed: "There are cases in which the Court Will go to a great extent in order to do justice between the parties when possession has been taken, and there is an uncertainty about the terms of the con- tract." Oftentimes when an objection is made against giving relief different to tbat which is set up, it is al- leged, and very often, one can see, properly so, thait if such were allowed the defendant might be surprised; but that objection has no weight here, because the relief to which I think the plaintiff is entitled is a relief which is set up by the answers of the defendants, and, of course, the defendants cannot affect to be surprised by that. I, therefore, think that the defendants should be held bound to the carrying out of the agreement which has been made, and I think that it should be done — not as in Mortimer v. Orchard (13) — upon the plaintiff being subject to paying costs, which, as stated in the American note to that case, is an exception to the general rule, that ihe successful party, although he may, for special rea- sons, be deprived of costs, never pays costs to the op- posite party. My conclusion as to costs would be that the plaintiff should not receive costs, but that he should not pay costs. (10) 2nd ed. 274. (11) L. E. 3 Ch. 188. (12) East India Co. v. Nuthumbadoo, 7 Moo. P. C. 482, at p. 497. (13) 2 Yes. 243. NEW BRUNSWICK EQUITY CASES. 371 I, therefore, declare that the plaintiff is entitled to 1889. a lien and charge upon this property for the amount of Jomi „ os — Lis bill for repairs, admitted to be $186.33; and, further, ScRmi ,lnetai. any expenses that he may have properly incurred in re- K tag~j spect of the management of the property, and in respect of any sums that he may have properly paid as against the property. And I decree that he be entitled to the possession of the property, and to retain possession of the property until such sums are paid, and that it be left to a bar- rister to determine the amounts that he has paid out in respect of repairs, and for charges upon the property. I reserve power to make a further order after such en- quiry shall have been had and report made thereon. The rule in equity, deducible from authorities not always in agreement, appears to be that a defendant desirous of obtaining the benefit of the Statute of Frauds must either plead the statute: Cooth v. Jackson, 6 Ves. 375; Moore v. Edwards, 4 Ves. 23; Rowe v. Teed, 15 Ves. 375; Blagden v. Bradbear, 12 Ves. 466; Ex parte Whitbread, 19 Ves. 212; or by answer deny the agreement, which will be sufficient without pleading the statutes Ridgway v. Wharton, 3 De G. M. & G. 677; and that if the benefit of the statute is not claimed in either of these ways it cannot be had at the hearing: Baskett v. Cafe, 4 De G. & Sin. 388. If a defendant in his answer admits the agreement, and does not claim the benefit of the statute, he will be considered to have waived it, and cannot set it up at the hearing: Cooth v. Jackson, supra; Jackson v. Oglander, 2 H. & M. 465; Ridgway v. Wharton, 3 De G. M. & G. 677, 691. Where from the bill itself it does not appear whether the .agreement is in writing or not, advantage of the statute may be taken by general demurrer: Barkworth v. Young, 4 Drew. 1; Field v. Hutchinson, 1 Beav. 599; Heard v. Pilley, L. R. 4 Ch. 548; or by demurrer alleging that it is not in writing, within the statute: Wood v. Midgley, 5 De G. M. & G. 41. In Barkworth v. Young, supra, Kindersley, V.-C, said: " If the bill states an agreement in writing, it is unnecessary to add that it was signed by the party sought to be charged, because from the statement that it was in writing it is necessarily to be inferred that it was signed; because if the paper was not signed it was not an agreement. But as a mere verbal agreement is still an agreement, you cannot from a mere allegation of an agreement infer or presume that it was in writing. And as the fact that it was in writing is neither expressly alleged in the bill, nor neces- sarily to be inferred or presumed from what the bill does allege the mere allegation of an agreement amounts to nothing more than the allegation of a verbal agreement, and then the defence may be made by demurrer." 372 NEW BRUNSWICK EQUITY CASES. 1889. M1BSTEBS v. MacLELLAN et al. April 9. Mortgage of bank stock— Double liability— Indemnity of mortgagee— Con- struction of Trust Deed— Preference— Unenforceable Claim. The plaintiff deposited with the defendants, a banking firm, a sum of money at interest, and received as security 275 Shares ownea by the defendants in the M. bank, which were transferred into the plaintiff's name. The plaintiff gave to the defendants an acknowledgment, stating that he held the shares in trust and as collateral security for the due payment of moneys deposited with the defendants, on the payment of which he would re- transfer the shares to them. On a redistribution by the bank of the shares, they w-ere reduced to 99. The dividends on the shares were always paid by the bank to the defendants, who treated the shares as their own in their office books. The bank went into liquidation, and the plaintiff was obljged to pay $9,900 double liability on the shares. The defendants made an assign- ment for the benefit of their creditors, and the deed of trust contained the following clause: " In the next place in full, or so far as the proceeds of the said joint property will extend, to pay all persons, by and in whose name the stock of the bank belonging to the said M. and B. (the defendants), whether in the name of M. & Co. (the defendants), or the said M. or B., or any other person or persons, firm or corporation, before transferred to such persons, is or has been held as security for money loaned by any person or persons to the said M. and B., all claims they may have against the said M. and B. by reason of any double liability they may incur, or moneys they shall be obliged to pay for double liability on such shares under section 20 of chapter 120 of the Revised Statutes, or other statute or statutes of the Dominion of Canada, on account of the said shares, standing in the name of the said persons, or having so stood." Held, (1) that the plaintiff and defendants stood in the relation of mortgagee and mortgagor in respect of the shares, and not of trustee and cestui que trust, and that the defendants were not liable under such relation to indemnify the plaintiff. (2) That the plaintiff was a beneficiary under the trust deed, in respeot of the amount he had paid as double liability, and that his right to be such was not intended to depend upon his having an enforceable right to be indemnified. The facts fully appear in the judgment of the Court. E. McLeod, Q.C., A. H. Hanhtyton and C- A- Palmer, for the plaintiff. F. E. Barker, Q.C., »nd Q. B. Seek/, for the de- fendants. NEW BRUNSWICK EQUITY CASES. 373 1889. Ai ril 9. Tuck,- J.:— The facts of this case are, briefly, that the plaintiff had on deposit with Maclellan & Co., $50,000; that as collateral security they transferred to him 275 shares of Maritime Bank stock, which on redistribution were reduced to 99, and on which he had to pay to the liqui- dators of the Maritime Bank $9,900 ; that on Maclellan & Co. making a deed of trust, the following clause (D) was inserted therein, by reason of which it was urged that he should be repaid the $9,900 by the trustees of Maclellan & Co. : " In the next place in full, or so far as the proceeds of the said joint property will extend, to pay all persons by and in whose name the stock of the Maritime Bank of the Dominion of Canada belonging to the said Thomas Maclellan and Alfred C. Blair (whether in the name of Maclellan & Co., or the said Thomas Maclellan, or Al- fred C. Blair, or any other person' or persons, firm or corporation before transferred to such persons), is or has been held as security for money loaned by any per- son or persons to the said Thomas Maclellan and Alfred C. Blair, all claims they may have against the said Thomas Maclellan and Alfred C. Blair by reason of any double liability they may incur or moneys they shall be obliged to pay for double liability on such shares under section 20 of chapter 120 of the Bevised Statutes, or other statute or statutes of the Dominion of Canada on account of the said shares, standing in the name of the said persons or having so stood." The following is the receipt which was given by Marsters at the request of defendant Maclellan: " The 275 shares of the Maritime Bank stock which now stand in my name, I hold in trust and as collateral security for the due payment of moneys deposited with you by me. When these are repaid this stock will be retransferred to you by me or my executors." There can be no doubt from the evidence that Mac- lellan & Co. from the time the shares were trans ferred to Marsters in 1882, down to the failure of the Bank in 1887, to a certain extent treated the shares as their 1889. Maclellan et al. Tuck, J. 374 NEW BRUNSWICK EQUITY CASES. 1889. Mabstbbs MAOT.TLIiAN e( al. Tuck, J. own ; that is, there was no change in their bookkeeping as to their Maritime Bank stock, and they received the dividends as they became payable. This was an ordin- ary business transaction. Maclellan & Co. were in- debted to the plaintiff in the sum of $50,000, and the amount being large, they proposed to give him collateral security on Maritime Bank stock for the debt. When the stock had been transferred and the receipt signed, which was really the agreement between the parties, they stood to each other in the relation of mortgagor and motgagee, clothed with whatever trust that relation creates. It was Marsters' duty to so deal with the stock as to be able, when his debt should be paid, either to make a retransf er, or account in money for its fair value ; and, if he received dividends 1 or any bonus, account for tbem. So far he was a trustee, but no farther. By the contract between the parties Marsters became the legal owner of the 99 shares, subject to an equity of redemp- tion of Maclellan & Co. Marsters did not occupy the position which a trustee does to his cestui que trust, .un- less he is made to do so by the receipt of the 25th, Sep- tember, 1882, as to the 275 shares. It is argued that Marsters is made a trustee, liable to perform all the duties of that office, and get all the benefit arising from it, by reason of the words " in trust and as collateral security," in the receipt. I cannot accede to that pro- position. The words " in trust and as collateral secur- ity " in the receipt, were used by Maclellan & Co., who prepared the paper, to show that Marsters was not the absolute owner of the stock, as on the books of the Mari- time Bank he would appear to be. In my opinion the words " in trust " did not make the plaintiff a trustee in the sense in which a person is made one by a deed which conveys property to him in trust for certain purposes, or by ai will, which devises and bequeathes real and personal estate to him upon specific trusts. The meaning I intend to convey is that Marsters is no more a trustee because the words "in trust " are in the receipt, than if they were not there. It is a clear rule that the cestui que trust is bound to save the trustee harmless as to all damages relating to NEW BRUNSWICK EQUITY CASES. 375 the trust, when the trustee has acted honestly and fairly, hut I have not been able to find such rule binding on the mortgagor or mortgaged property. There are many cases which establish the proposi- tion that if the mortgage contains no covenant for re- payment, the fact of the advance being made at the request of the mortgagor raises a contract by parol, and therefore the personal estate of the borrower remains liable to pay off the mortgage, but there is none to my knowledge, for the other proposition that the mortgagor is liable to indemnify the mortgagee for all damages which may accrue to him by reason of his holding the mortgaged property. Plane v. Gillan (1) was cited and commented on by both parties. It is in some particulars very much like the present one. In that case there was a transfer by way of mortgage of shares in a banking company. The mortgagor afterwards paid off the debt, and applied for a retransfer of the shares, but the directors of the com- pany did not permit the retransfer to be made. In the meantime a creditor recovered judgment against their public officer, and threatened execution against the mort- gagee, as one of the shareholders. It was held that where the mortgage was made simply as an absolute transfer, subject to redemption, and nothing had passed binding the mortgagor to take a retransfer of the shares, the mort- gagor was not liable to indemnify the mortgagee against debts incurred after the transfer was made on the mort- gage, and before the mortgage debt was paid off. The present case differs from that one in this particular, that here the mortgage debt has not been paid; otherwise, as between Marsters and Maclellan & Co., leaving out of consideration the trust deed, it bears a close resem- blance to it. Vice-Chancellor Wigram, in delivering judgment, says in one place: " The plaintiff, by the transfer of the shares, became absolute owner thereof at law, and ac- quired all the rights, and became subject to all the lia- bilities of a shareholder, both as between himself and 1889. Mabstebs II ACT, HL AN et at. Tuck, J. (1) 5 Hare 1 ; 9 Jur. 1085. Macl <;llan et al. 876 NEW BRUNSWICK EQUITY CASES, 1SS9. the world, and himself and the other shareholders; and "liiBSTEBs in the absence of express contract, I cannot make out the principle upon which the law should imply a con- tract that the defendant, in the circumstances of this T.ek.j. cag6j sn0 . u ] or an y interest therein, or any money secured there- Jtimlik m > an< * on near i n g the parties concerned, may convey, any such lands, or assign or discharge any such mort- gage or lien as by such order may be directed." Then the 137th section says : " No absolute sale of the real estate, or any part thereof, of any such person shall be made without at lpast thirty days' notice of the time and place of such sale, by advertisement in one or more of the newspapers published in the county wherein the land is situate," etc. I think that the sections taken altogether evidently contemplated that this Court should be authorized to make an order that such real estate might be sold, but it distinctly and unequivocally prevents that being done where the sale is to be absolute — that is, the whole estate of the lunatic — unless by public auction, and, therefore, I think that I could only comply with the prayer of this petition by making the order under the provisions of the Act I have read, that the committee should sell it at public auction and in the way appointed by the Act. If that will suit the parties I will make the order in that form, otherwise I shall refuse the order. For present New Brunswick statutory provisions as to estates of lunatics, see section 218, et seq., of the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), and Trustee Act, 1850 (13 & 14 Vict. c. 60) (Imp.) in force in New Brunswick; see section 206 of 53 Vict. c. 4. In the absence of statutory authority, the Court has no power to sell or charge the estate of a lunatic: Ex parte Smith, 5 Ves. 556; Ex parte Dikes, 8 Ves. 80; Re Halford, 1 Jur. 524; Ex parte Birch, 3 Swan. 98; and the Court must, conse- quently, confine itself within the limits of the Act defining its powers: In re Corbett, L. R. 1 Ch. 516; Re Vavaso-ur, 3 Mac- & G. 275. But an enactment for the benefit of a lunatic ought to receive a wide rather than restricted construction: Per Lindley, L. J., In re Ware, [1892] 1 Ch. 344; Re Keenan, 2 Chy. Ch. 492. Where the lunatic was a married woman, it was held that the statutory powers conferred by the English Lunacy Regulation Acts, 25 & 26 Vict. c. 86, 16 & 17 Vict. c. 70, did not operate to make execution by her committee a sufficient conveyance of her legal estate in freehold property, since by the Fines and Re- coveries Act, 3 & 4 Wm. IV., c. 74, her separate examination and acknowledgment are essential to her conveyance, and are acts which cannot be performed vicariously: In re Stables, I De G J. & S. 257; 33 L,. J. Ch. (N. S.) 422. In the case of a married woman married after the 1st of January, 1896, conveying her NEW BRUNSWICK EQUITY CASES. 395 separate real estate, a separate examination and acknowledg- 1890. ment are not necessary: The Married Women's Property Act, 58 Vict. c. 24, s. 4 (2) ; Re Drummond and Davie's Contract, [1891] In re Harriet 1 Ch. 524. Quaere, as to a married woman married before the LlGHT - 1st of January, 1896. See section 4 (1) of the Act, notes to Horn a Lmam - v. Kennedy, ante, p. 311; .iul lie Urummond and Davie's Contract, supra. OGDEN v. ANDEESON et al. 1888. Partition — Legal title in dispute — Bill retained, with liberty to bring an December 13. aition ot law — Parties — Joinder of lessee — Multifariousness — Objection at hearing. Where, in a partition suit, the title at law o£ the plaintiff is bona fide in dispute, the Court will not decree partition, but will retain the bill with liberty to the plaintiff to bring an action to establish his title at law. Quaere, as to whether the lessee of a tenant in common should be made a party to a, partition suit. The objection that a bill is multifarious should be raised by demurrer or in the answer, and cannot be taken at the hearing, though the Court itself may take the objection with a view to the regularity of its proceedings. The facts of this suit are fully stated in the judg- ment of the Court. D. L. Hanington, Q.C., for the plaintiff. W. B- Chandler, for the defendants. 1888. December 13. Tuck, J. :— The bill in this case sets out that John Tingly, Agnew Tingly, jr., and Josiah Tingly were in the year 1838 seised and possessed in fee simple of a lot of wilderness land situate in the parish of Sackville. in the county of Westmorland, known as lot No. 48 in letter B divi- sion of the township of Sackville, or a. part thereof known as the gore, and being so seised on the 12th of February, 1838, by deed conveyed it to Thomas Ayer, Joseph Ayer, Jesse Ayer and William Ayer, their heirs and assigns. A description of this property is given in the bill. It is also alleged that Thomas, Joseph, and William Ayer were possessed of a saw mill 'near these lands. Tuck, J. 396 NEW BRUNSWICK EQUITY CASES. 1888. That Joseph Ayer was an uncle of the plaintiff, and ogden lived with him, and about the year 1850 gave him ver- andubson etai. bally his share in the saw mill and land known as the gore. That in the same year, 1850, the plaintiff took pos- session of the interest of Joseph Ayer in the saw mill and gore lot, and also in the Olive lot (so called), together with Thomas, Jesse and William Ayer, and is still in the sole and exclusive possession of that interest; that in the year 1850 the plaintiff and the said Thomas, Jesse and William Ayer purchased from Oliver Barnes a lot of wilderness land, situate in the parish of Sackville and known as lot No. 47 in letter B division, and also known as the Olive lot. A deed was executed to them of this lot, but not registered. It was left with William Ayer, and afterwards came to the possession of Alfred Ayer, who still has the same and refuses to register it. Lot 47 lies adjoining the gore lot. That Thomas, Jesse and William Ayer and the plaintiff took possession of both lots, and occupied them as one block as tenants in common, and no lines were run or kept up between lot 47 and the gore lot; that afterwards, and many years since, a. division or partition was made of. the said lots, forming one block, whereby Thomas and Jesse Ayer took for their share the north-easterly part, or the part lying to the north-east of a line run from the centre of the south-easterly line of lot 47, through to Sugar brook, and William Ayer and the plaintiff took as their share the portion lying next the Walker road, and to the south- westerly of the line to be run to Sugar brook. This division was recognized and acted upon by the parties, but no deeds of exchange were executed between them. That afterwards, on the 2nd January, 1859, Jesse Ayer conveyed his share in 1 the two lots to George Ander- son and John N. Ayer. That thereupon George Anderson and John N. Ayer executed to Jesse Ayer a bond in the penal sum of £600, conditioned to maintain Jesse Ayer and his wife and the survivor of them during their natural lives, and to secure the performance of the con- dition of the bond conveyed to Jesse Ayer certain lots of land described in the bill. And it is alleged that the condition of the bond and mortgage was performed by NEW BRUNSWICK EQUITY CASES. 397 Anderson and Ayer; that Jesse Ayer and his wife are 1888. long since dead, and the mortgaged lands and premises ghts arising out of matters which are properly the subject of internal regulation. It will not interfere to control a majority, unless it sees that the majority has been, or is doing or is about to do, that which is illegal even for a majority to do; and it follows from this, that the Court will not interfere in matters properly the subject of internal management until all reasonable attempts have been made to take the sense of the general body of members on the Matters 422 NEW BRUNSWICK EQUITY CASES. ISQi in question; nor even then unless it is called upon to interfere xogx- to give effect to the will of the majority against a factious weldon et a*, minority. . . . Those who complain of the managing body ■»■ should, before appealing to the Court, endeavour to bring their Fauks etal. gr i ev ances before their fellow shareholders, and ascertain what the views of the majority are. ... If the majority disap- prove the conduct complained of, they can sue in the name of the company, and so obtain redress; or if the defendants prevent that course by turning the scale of votes, an action by one shareholder on behalf of himself and others may be supported. * If, however, the majority, actingi bona fide, agree with and sanction the course adopted or proposed to be adopted by the managing body, and if that course is not illegal if approved by the majority, the Court clearly cannot interfere. But if that course will be a fraud on the minority, or illegal, although sanctioned by the majority of shareholders, then, even if it is approved by all of them except one, the Court will interfere at the suit of that single dissentient shareholder, and protect him and his interests; and in such a case it is not essential that he should appeal to tire other shareholders before applying to the Court": Lindley, Law of Companies (5th ed.), 574, et seq. In MacDougall v. Gardiner, 1 Ch. D. 13, James, L.J., said: "I think it is of the utmost importance in all these companies that the rule which is well known in this Court as the rule in Mozley v. Alston, 1 Ph. 790, and Lord v. Copper Miners' Co., 2 Ph. 740, and Foss v. Harbottle, 2 Hare, 461, should be always adhered to; that is to say, that nothing connected with internal disputes between the shareholders is to be made the subject of a bill by some one shareholder on behalf of himself and others, unless there is something illegal, oppressive, or fraudulent — unless there is something ultra vires on the part of the com- pany, Qua company, or on the part of the majority of the com- pany, so that they are not fit persons to determine it; but that every litigation must be in the name of the company, if the company really desire it. Because there may be a great many wrongs committed in a- company — there may be claims against officers, there may be claims against debtors, there may be a variety of things which a company may well be entitled to complain of, hut which, as a matter of good sense, they do not think it right to make the subject of litigation; and it is the company, ,a.s a company, which has to determine whether it will make anything that is wrong to the company a subject matter of litigation, or whether it will take steps itself to prevent the wrong from being done." Where the authorized officer refuses to affix the corporation seal to the answer of a corporation, a mandamus will lie to compel him, and in the meantime proceedings in equity will be stayed: Rex v. Windham, Cowp. 377; Dan. Ch. Pr. (4th Am. ed.), 146. NEW BRUNSWICK EQUITY CASES. 423 GILBERT v. DUFPUS et al. 1890. Trust—Construction — Grant to issue — Death of one of the issue before August 15. distribution — Share vesting in survivor. A trust deed provided that upon the death of F. the estate should be divided to and between all the daughters of the donor who should survive him, and the issue of any daughter who might have died before him leaving issue, in equal shares, but so that the issue of any daughter who might so die leaving issue should only take the share their deceased mother would have taken had she survived the donor and been living at the time of distribution, and that if any, who might survive the donor, died before the said F. leaving issue, then the issue of such deceased daughter should take and receive the share their mother would have taken had she been living at the time of distribution, and that if any daughter survived the donor, and died before the said P. without issue, then the share of the daughter so dying should go and be divided equally among her surviving sisters or sister and the issue of any deceased sister; such sister, however, to take only the share their deceased mother would have taken had she been one of the surviving sisters; that the share of each of the said daughters who might be living at the time of the distribution should be paid to them as each of them came of age, but that the share coming to the issue of any deceased daughter might be paid, notwithstanding such issue might not at the time of distribution be of age. One of the daughters died in the lifetime of F., leaving two children, one of whom predeceased F. Held, that the surviving child took the whole of his mother's share. The facts of this suit are fully stated in- the judg- ment of the Court. Argument was heard August 2nd, 1890. G- G- Gilbert, Q.C., for the plaintiff. G- Sidney Smith, for the defendants. 1890. August 15. Palmkr, J.:— This suit is for the declaration of the rights of the parties under a trust deed made by the late Francis Fer- guson, dated 9th March, 1858, which, after providing that the trust property should be held for the benefit of Ann Eliza Ferguson, his wife, during her life, contained the following declaration of trust : " And after the decease of the said Ann Eliza Fer- guson pay and divide the whole of the said principal sums to and between all the daughters of the said 4ii NEW BRUNSWICK EQUITY CASES. 1890. Gilbbut v. Duffus et al. Palmer, J. Francis Ferguson, who shall survive him, and the issue of any daughter who may have died before him leaving issue, in equal shares, but so that the issue of any daughter who may so die leaving issue shall only take the share their deceased mother would have taken had she survived the said Francis Ferguson, and been living at the time of the said distribution, and if any daughter who may survive the said Francis Ferguson, die before the said Ann Eliza Ferguson leaving issue, then the issue of such deceased daughter shall take and receive the share their mother would have taken had she been living at the time of the said distribution, and if any daughter survives the said Francis Ferguson, and die before the said Ann Eliza Ferguson without issue, then the share of the daughter so dying shall go and be divided equally among her surviving sister or sisters, and the issue of any deceased sister; such issue, however, taking only the share their deceased mother would have taken had she been one of the surviving sisters; the .share of each of the said daughters, who may be living at the time of distribution, to be paid or transferred to them respec- tively at the respective ages of twenty-one ; but nothing herein shall prevent the share on such distribution com- ing to the issue of any deceased daughter being paid to such issue, notwithstanding such issue may not at the time of distribution be of the age of twenty-one, and not- withstanding the deceased mother of such issue may have died under the age of twenty-one, if such should have been the case." There were five daughters. The first married A. S. K. Prescott, and died in the lifetime of Ann Eliza Fergu- son ; she had two children, J. F. E. Prescott and P. A. K. Prescott, the latter died in the lifetime of Ann Eliza Ferguson, the other being still alive. The second daugh- ter married John Duffus, who has since died, the widow being still alive. The third daughter, Agnes, married John T. C. Burpee, who died leaving her him surviving, and she is still alive. The fourth, Elizabeth, married Frank Hazen. He died leaving his wife surviving him, and she is still living. The fifth, Marian, married Thomas Gilbert, and both she and her husband are still alive. NEW BRUNSWICK EQUITY CASES. 425 The only question in the case is, whether Mrs. Pres- 1890. cott's share (who died after the donor and before the giujebt death of Ann Eliza Ferguson) goes to ber son, who : .s dot™™ . 8hmo (1), but it would make no difference in this case if the Statute of Limitations applies to dower, as twenty years have elapsed between the time she ceased to occupy in 1870 and the time of filing this petition. The main question to be decided in this case, and I believe it is the first time it has arisen in this Province, is whether our Provincial Statute of Limitations, C. S., c. 84, s. 3, applies to a widow's right of dower. The enactment is as follows : " No person shall make an en- try, or bring an action to recover any land, but within twenty years next after the time at which the right to make such entry, or to bring such action shall have first accrued." It cannot be disputed that if the right of the widow to bring an action for dower is an action to recover any land then at law the right would be barred at the end of twenty years. There are two arguments against it ap- plying. The first is that the statute itself is directed to and only includes actions at law, and that it does not ap- ply to suits in Equity; and if this is sufficient reason that this Court should refrain from dealing with the case at bar and give any other remedy than the legal one, then that contention might prevail. The law relating to equitable bars by length of time in proceedings in the Court of Equity was very much discussed in the case of Cholmondeley v. Clinton (2), in which Sir William Grant gave a very clearly reasoned and elaborate judgment, and came to the conclusion that a period of time extending over more than twenty years had not barred the right of the Marquis. The same case came before Sir Thomas Plumer (3), who succeeded 1891. In re Margaket Mc Vfee. Palmer, J. ,(1.) 8Gr. 498. (2) 2 Mer. 17K (3) 2J.&W. 1. 440 NEW BRUNSWICK EQUITY CASES. 1891. In re Mabgaeet McAfee. Palmer, J. Sir William Grant, and he in a most masterly judgment (4), stated what he thought of the unsoundness of the views of Sir William Grant; ever since which time nearly every Equity lawyer of note, including Lord Eldon and Lord Redesdale, has explicitly adopted Sir Thomas Plumer's views and Lord Redesdale in Hovenden v. Lord Annesley (5), states the law on the subject to be as follows : " I think the rule has been laid down that every new right of action in Equity that accrues to the party, whatever it may be, must be acted upon, at the utmost, within twenty years. * * * In every case of equit- able title (not being the case of a trustee, whose posses- sion is consistent with the title of the claimant), it must be pursued within twenty years after the title accrues." I think this rule would apply to a claim that is entirely an equitable one, and ought not to be adopted in a case in which a Court of Law and a Court of Equity have con- current jurisdiction and in which the action in the Court of Law was not barred. A claim for dower is a legal claim although enforceable in equity, and, therefore, de- lays that might deprive a suitor of the right to enforce a mere equitable claim would not affect dower so long as the legal right to it exists, for it could be enforced by an action at law. This reduces the question to whether the action at law is taken away by the section of the Statute of Limi- tations which I have referred to, and that depends upon whether such an action is an action for the recovery of any land, and is within the words of the section. " Land " by the interpretation Act, c. 118, s. 14, C.S., when used in the statute, " includes lands, houses, tenements and heredita- ments, all right thereto and incident therein." Therefore the section must be read, " No person shall bring an ac- tion to recover any lands, houses, tenements, and here- ditaments, or any right thereto, or incident therein." This reduces the question to whether dower is a right in land or incident therein. My opinion is that dower is an in- terest in land, and therefore within the meaning and the definition in the interpretation Act. Taking then the (4) See p. 138, et uq, (5) 2 Soh. & I., at p. 637. NEW BRUNSWICK EQUITY CASES. 441 word "land" to mean 1 an interest in land, do,ver is clearly an interest in land, and, therefore, in my opinion, it would not be a sound interpretation not to hold that the right of a widow which occurs upon the death of the husband to sue out a writ of dower is a right of action within the above section to recover land. If this isgood law, and the question came before me in a Court of Law I would have to have said that this was entirely within the statute, and that the widow who had not brought her action to establish her right to dower and had allowed upwards of 30 years to elapse after that right had first accrued is barred by the statute and comes too late. It appears to me that this petitioner in order to success- fully assert her right in a Court of Law must have prose- cuted it within twenty years from the death of her hus- band, and I further think that where any statute has fixed the period by which a claim, which is a purely legal claim, if made in a Court of Law would be barred, that claim is by analogy barred at the same time in a Court of Equity. It follows, this being my opinion, I must dismiss this petition, but inasmuch as this is the first time the ques- tion has arisen in this Province since the passing of the Act, of which the section in the Consolidated Statutes I have referred to is a re-enactment, and having in view that the right to dower was not within the old Statutes of Limitations of Henry and James I think I ought to say nothing about the costs; but the petition must be dis- missed. This decision, both in its reasoning and in the conclusion arrived at, is completely in .accord with Marshall v. Smith, 5 Giff. 37. By section 31 of chapter 84 C. S. N. B. "No arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit." 1891. In re Mabgahet McAfke. Palmer J» 442 NEW BRUNSWICK EQUITY CASES. 1892. NEW BRUNSWICK RAILWAY COMPANY AND ■January!!. BROWN V. KELLY. NEW BRUNSWICK RAILWAY COMPANY AND BROWN v. KELLY. (No. 2). Practice— Injunction Order — Refusal — Dismissal of bill — Summons in suit- Conditional appearance— Waiver— Appeal— Stay of proceedings. An application under section 24 of The Supreme Court in Equity Act, 1890 (53 Vict. c. 4), upon bill and affidavits lor an injunc- tion order, was refused with costs. The bill and affidavits were not filed, and a summons was not issued in the suit. The costs of the application were taxed and paid. The defendant filed an appearance, and applied to dismiss the bill for want of prosecution. Held, that there being no summons in the suit, the suit was not in Court, and that the plaintiffs could not be compelled to issue the summons and proceed with the suit, or be dismissed, and that the application should be refused. Goslin v. Goslin, 27 N. B. 221, distinguished. Quaere, whether a defendant who has appeared before summons issued 1 can apply to dismiss the suit for want of prosecution if a summons is not issued. An application in June, 1890, upon bill and affidavits for an injunc- tion order stood over until the loth of August, 1891, when it was refused. Notice of appeal was given on the 10th of October fol- lowing, and on the same day the summons in the suit was issued. On the 16th the defendants filed an appearance, and gave notice of application to dismiss the bill for want of prosecution, on the ground that the summons should have been issued immediately after the refusal of the injunction order. Held, that the plaintiffs were not in default, and also that they were not compellable to issue the summons in the suit pending the appeal, and that the application should be refused. The facts of both suits appear in the judgments of the Court. Argument was heard November 3rd, 1892. Blair, A.-G-, and J. A- VanWart, Q.C., for the plain- tiffs. G. F. Gregory, Q.C., and G. E. Duffy, for the defendants. 1892. January 11. Sir John C. Allen, C.J. : — This was an application to have the plaintiffs' bill in this case dismissed for want of prosecution. Tn December, 1889, the plaintiffs applied for an injunction to restrain the defendant from proceeding in two actions of trespass NEW BRUNSWICK EQUITY CASES. 443 Keixy. Allen, C.J. against David Brown and Alfred Tracer respectively. 1892. The application was made upon a bill and affidavits, no NbwBiiusb . summons having been issued, and the injunction was re- ^company™ fused with costs. The costs were taxed in May, 1890, and paid, and in October last the defendant gave notice of the present application. Neither the bill nor the affi- davits on which the injunction was applied for have been filed, nor have any proceedings been taken by the plain- tiffs since the injunction was refused. On October 16th last, the day on which the defendant gave notice of this application, an appearance was filed in the case. The plaintiffs' answer to the application is that there was no suit in Court, no summons having been issued and the bill not having been filed. The Equity Act, 53 Vict. c. 4, s. 16, enacts that all causes in equity shall be commenced by summons (1), or an order for appearance (2 or 3), which shall include the names of all the parties and disclose in brief form the relief for which the bill is to be filed. The summons is to be made returnable within twenty days after ser- vice, and is to be served personally or by leaving a copy at the defendant's place of residence with some adult person. The orders for appearance (2 and 3) are appli- cable to cases where the defendants do not reside within the Province. Then section 22 of the Act declares that the plaintiff shall file his bill with the Clerk of the Court within three months after the commencement of the suit, or within such further time as the Judge may allow. The following sections prescribe the practice relat- ing to injunctions, so far as is material to the present question. Section 24 declares that an order of injunction may be applied for to a Judge before or after the sum- mons is issued or bill filed, on notice to the opposite party, and the application may be heard on production of the bill before filing, or of a sworn or certified copy thereof after filing, with affidavits. Section 27 enacts that when an injunction shall be obtained before hear- ing, whether after notice or ex parte, and no summons •or order for appearing, as the case may be, shall have been issued in the suit, the same shall be forthwith is- sued, and the suit proceeded with as in ordinary cases, 444 NEW BRUNSWICK EQUITY CASES. 1892. im & that it shall be the duty of the party obtaining an ex parte injunction order to forthwith file with the Clerk New Bruns- wick eailwat the bill and affidavits on which the order was obtained. Company I think it very clear that ordinarily a suit in equity Kelly. Allen, C.J. cannot be commenced without issuing a summons or ob- taining an order for the defendant's appearance, though probably there might be cases where the defendant might waive the issuing and the service of a summons and enter an appearance and the plaintiff then file his bill and proceed with the cause. But that is not the present case, for the plaintiff here has done no act to adopt the defendant's notice of appearance, or to estop himself from objecting that there is no suit pending which he was bound to prosecute. The 27th section of the Act applies only to cases where the injunction order has been granted. In such cases if the plaintiff does not obey the directions of the Act and issue the summons (if the order was granted before summons was issued) no doubt the defendant would have a remedy. See Qoslin v. Qoslin (1). There would be a necessity for issu- ing the summons and going on with the suit in that case because the injunction order had restrained the defen- dant from doing some act. But where is the necessity of compelling a party who has made an unsuccessful ap- plication for an injunction order before any suit was commenced to issue a summons, and commence a suit against a party whom he sought to restrain, when he, the applicant, had no wish to continue the proceedings and had paid his opponent the costs incurred in resisting it? Under such circumstances a plaintiff would have a right to dismiss his bill: 1 Smith's Ch. Pr., 312; Daniell's Ch. Pr. (5th ed.), 690; Dimn v. Parks (2); Thompson v. Thompson (3). I think the clear intention of the Act is that there should be a summons served in every case which is to be prosecuted, generally before the bill is filed; but in cases where an injunction is granted before the summons, then forthwith after the granting of the injunction. As there is no direction in the Act that a summons shall is- (1) 27 N. B. 221. (2) 1 Ves. 402. (3) 7 Beav. 350. NEW BRUNSWICK EQUITY CASES. 445 sue where an application for an injunction order founded 1892. on the facts stated in the bill has been refused, I think new bbuns- the fair construction of the Act is that no summons is wic c k 0] S?Sit AY necessary unless the applicant for the injunction desires kelly. to prosecute the suit. The maxim, expressio unius est Aiien,"c.j. cxclusio alterius, will apply in this case. I cannot agree that the mere application for an injunction, as in this case, was the commencement of a suit — the injunction having been refused, though perhaps it might have been so if the injunction order had been granted; because in that case the plaintiff is bound to issue a summons and proceed with the suit. But as the 16th sec- tion of the Act says: "All causes in equity shall be commenced by summons," it is difficult to say that there is a cause in Court until a summons has issued. The granting of an injunction therefore before summons is not the commencement of a suit, but a particular juris- diction given by the Act, to be forthwith followed by the commencement of a suit and then to form part of the proceedings of the suit. If there was no suit in Court at the time the present application was made, the 91st sec- tion of the Act cited by Mr. Gregory will not apply, be- cause the plaintiff was not " required to take any step in the cause." In order to show that the plaintiffs did not consider that their suit was terminated by the refusal to grant the injunction, the defendant's solicitor relied on what took place at the taxation of costs of the applica- tion, namely, his objecting to the charge of a retainer, contending that such charge was properly costs in the cause and not of an interlocutory proceeding in the cause. There is some difference between the respective solicitors as to what was said at that time; but in the view which I take of the Act— that the plaintiffs were not required to issue a summons on the refusal of the injunction— it is not necessary to consider what may have been said about the abandonment of the suit at the tax- ation of the costs. The case differs from GosUn v. GosUn, supra, in this particular, that there an injunction order having been granted the plaintiff was required by the Act to issue a summons within a reasonable time thereafter and not 416 NEW BRUNSWICK EQUITY CASES. 1892. having done so the defendant had a right to apply for a newBruns- dismissal of the suit for want of prosecution; but here wi comp"n™ tlier e was no such obligation on the plaintiff. An objec- Kellt. t ion was taken during the argument that the defendant, Aiifl^Tbj. having filed an appearance, could not afterwards apply to dismiss the suit because the plaintiff had not issued a summons. In answer to that it was said that there was no practice in this Province authorizing a conditional ap- pearance to be entered; that a defendant could not make any motion to the Court until he had appeared, and that therefore he might appear) generally and then ap- ply to set aside the previous proceedings for irregular- ity. I am not prepared to admit the correctness of that statement, for the case of Hudson Bay Go. v. Pugs- ley (4), expressly decides the contrary. In fact it was the practice of the Court of Chancery in England long be- fore the passing of the Act 17 Vict. c. 18, sub-chap. 2, by which the practice of the Court of Chancery in Eng- land was adopted in this Province. I prefer, however, not to decide this application on any question of waiver arising out of the appearance, but rather to decide the matter on what I consider the meaning of the several sections of the Act referred to. I therefore think the application should be dismissed with costs. I come now to the next case. I cannot see any distinction in principle between this case and the preceding one, though the facts are somewhat different. An application was made in June, 1890, to restrain the defendant from proceeding in an ac- tion of trespass brought against Brown. The matter stood over, pending the decision of the Supreme Court on a motion for a new trial in the action of Kelly v. Brown.* After judgment was given in that case I refused the in- junction with costs on the 15th August last. The plain- tiffs then took out a summons, calling on the defendant to show cause why the taxation of costs on my order re- fusing the injunction should not be stayed until the plaintiffs had an opportunity of appealing from my order of August 15th, and in the meantime staying the taxa- (4) 27 N. B. 15. * 31 N. B. 643. NEW BRUNSWICK EQUITY CASES. 447 tion of costs and all proceedings in the matter by the de- 1892. fendant. Notice of appeal was served on October 10th — Ew Bbdn3 _ last, and the plaintiffs on that day issued a summons in m <&£™^ the present case and the defendant filed an appearance Ke « iy in the suit on October 16, and on the same day gave no- All ~ CM tice of an application to dismiss the plaintiffs' bill for want of prosecution. On October 21 the plaintiffs filed the bill and affidavits on which they had applied for an injunction. The defendant's contention in this case is that the summons should have been issued immediately after the refusal of the injunction; that the plaintiffs had lost the benefit of their bill by not proceeding with due diligence, and that they could not regain it by afterwards issuing the summons, and the defendant might apply to -dismiss the bill. I cannot adopt that view of the practice. The plain- tiffs certainly were not bound to issue the summons while the question of granting the injunction order was pending, nor do I think they would be bound to issue it pending the appeal from the order refusing the injunc- tion, though that question does not arise here, the point for determination being whether the plaintiffs were in default on or before October 16th. What possible bene- fit would it have been to the defendant if the plaintiffs had issued the summons in August immediately after the injunction was refused ? The object of the injunction was to restrain the defendant from exercising her legal right to the property in dispute until the plaintiffs' al- leged equitable right to it was determined. The injunc- tion order having been refused and the plaintiffs having appealed against my order refusing it, it would seem to me to be an extraordinary practice if the plaintiffs were compelled to proceed with the suit until the validity of my order was determined by the Court of Appeal. The question is now before the full Court on the appeal, and I do not think I have any right to make any order that would affect that appeal, such as an order to dismiss the suit. At all events whether the injunction was properly refused or not, as the Act gives no direction respecting the issuing of a summons in a case such as this, where 448 NEW BRUNSWICK EQUITY CASES. 1892. the injunction was refused, I am not prepared to say that hew brums- the plaintiffs have neglected to take any step in the WI coMpli«r AY cause, which by the practice of the Court they were re- kelly. quired to take; and therefore I think the application Aii^ro.J. should be dismissed with costs. In Goslin v. Goslin, 27 N. B. 221, it was held that where an injunction order is granted before summons, the summons must be issued within a reasonable time, or "the defendant, if he has not appeared, may apply to dismiss the suit for want of prosecution. By section 80 of The Supreme Court Act, 60 Vict. c. 24, a plaintiff is deemed out of Court unless he declares within one year after the writ 3f summons or capias is served or executed. Where plaintitf does not declare within a year judgment of wm pros cannot be signed against him, on the ground that the action is altogether out of Court. See Chit. Arch. (11th ed.) 1466; Miller v. Weldon, 1 Han. 375, 377; Caldwell v. Craigg, 32 N. B. 145; Rorke v. McCarthy, 6 Ir. Law Rep. 29; Thompson v. Armstrong, 1 Ir. Jur. N. S. 335. In Miller v. Weldon, supra, the defendant moved for judgment as in case of nonsuit for not proceeding to trial pursuant to a peremptory undertaking. It was discovered that the cause had never been entered, and that the only paper on file was the notice of appearance. In refusing the motion, Ritchie, C.J., is reported to have said: " Under such circum- stances it is manifestly clear that we can give no judgment as prayed, and to allow a judgment to be signed in a case not properly entered would not only be in direct defiance of a rule of Court, but . . . when a cause has not been duly entered . . . there is no cause in Court. If there is no cause in Court it is quite impossible for us to give judgment." It would seem, however, that had the defendant applied to have the case entered previous to his motion for judgment he would have succeeded. See Oulton v. Milner, 3 Pug. 221, per Wetmore, J.; and Gleeson v. Domville, 33 N. B. 548, per Van Wart, J.; and see Smith v. Halifax Banking Co., 33 N. B. 1. An injunction having been obtained, does not of itself prevent the bill being dismissed, and the injunction is ipso facto dissolved by the dis- missal of the bill: Day v. Snee, 3 V. & B. 170; Hannam v. South London Waterworks Co., 2 Mer. 61; Green v. Pulsford, 2 Beav. 70. Where a plaintiff had obtained an injunction ex parte on the usual undertaking to be answerable in damages, and after the injunction had been dissolved, the defendant moved to dismiss the bill for want of prosecution, and for an inquiry as to damages, the Court made an order to file replication, or else that the bill should be dismissed, but refused at that stage of the proceedings to direct an inquiry as to damages: "South- worth v. Taylor, 28 Beav. 616; 29 L. J. Ch. 868. A bill may be dismissed for want of prosecution although a notice of motion by the defendant to dissolve an injunction is pending: Farquharson v. Pitcher, 3 Russ. 383; or although an order has been made to give security for costs and that in the meantime proceedings be stayed: La Grange v. McAndrew, 4 Q. B. D. 210; or although interrogatories have been filed for the ex- amination of the plaintiff: Jackson v. Ivimey, 1 Eq. 693. A bill cannot be dismissed during the pendency of a demurrer: Simpson v. Densham, 2 Cox. 377; Anon, 2 Ves. 287. NEW BRUNSWICK EQUITY CASES. 449 In Futvoye v. Kennard, 2 Giff. 533, the defendants obtained 1892. against the plaintiff, who was in contempt for non-payment . of costs, an order to stay all further proceedings in the cause new Bbuns- until the plaintiff had cleared his contempt or given security, ^J?™^^* 1 and afterwards moved to dismiss the bill for want of proaecu- ° „, tion. In refusing the motion the Court said: " This applica- Kelly. tion is wholly irregular. The defendants have themselves ob- tained an order, which prevents the plaintiff from doing the very thing which they complain he has not done." By Order xxix., rule 1, of the English Supreme Court of Judicature Act Rules, " if the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action with costs, for want of prosecution," etc. Where, before state- ment of claim, an action was stayed until the plaintiff should give security for costs, and the time for delivering a statement of claim expired, and no security had been given, it was held that the action might nevertheless be dismissed: La Grange v. McAndrew, 4 Q. B. D. 210. A bill was filed against A. and B. A. obtained an order to stay proceedings until the plaintiff paid the costs of a former suit for the same object, and which had been dismissed with costs. The plaintiff, not paying the costs, was presented from proceeding against A. Held, that B. could have the bill dismissed for want of prosecution: L/autour v. Holcombe, 10 Beav. 256. Where there is more than one defendant, a defendant moving can only have the bill dismissed as against himself: Ward v. Ward, 11 Beav. 159. The dismissal of a suit, not set down to be heard, for non-prosecution is not a bar to a subsequent suit in respect of the same matter: See In re Orrell Colliery Co., 12 Ch. D. 681. If on an application to dismiss the bill for want of prose- cution the plaintiff is given time to take the next step, the order generally provides that in default of his taking the step within the time the action stands dismissed without further order. If at the end of such extended time the required step has not been taken, the suit is at" an end: Whistler v. Hancock 3 Q. B D 83- King v. Davenport, 4 Q. B. D. 402. The rule laid down by these cases is not affected by Carter v. Stubbs, 6 Q. B. D. 116, and Hollender v. Pfoulkes, 16 P. R. 225, which are quite distinguish- able. EQ. CAS. 29 450 NEW BRUNSWICK EQUITY CASES. 1892. BULLEY v. BULLEY. June 4. Married woman — Mortgage of Separate Real Estate — Parol agreement to as- sign mortgage in consideration of Us payment — Specific ■performance — Statute of Frauds — Lien. A married woman procured the plaintiff to make payments from time to time on account of the principal and interest of a mortgage on freehold property, forming part of her separate estate, by verbally undertaking to have an assignment made of the mortgage, or to convey the mortgaged premises to the . plaintiff. Held, that the agreement not being in writing could not be specific- ally enforced, but that it was binding on the separate estate of the married woman, including the realty, and that the plaintiff should be paid out of the same, with interest. The facts fully appear in the judgment of the Court. C E. Duffy, for the plaintiff. The defendants did not appear. 1-892. June 4. Fraser, J. : — It appears by the statements in the bill that the plaintiff, Edith J. Bulley, is a daughter of the defendant Arthur 0. Bulley and Harriet A. Bulley, his wife, now deceased. The said Harriett A. Bulley in her lifetime was seised in fee simple of several lots of land, situate in the parish of Burton, in the county of Sunbury. She, in her lifetime, with her husband, the said Arthur C. Bulley, gave a mortgage bearing date the 26th April, 1881, upon a certain portion of the said lands called and known as the shipyard property, to the Hon. James D. Lewin and the Hon. Charles Duff, surviving executors of the last will and testament of the Hon. John Robert- son, deceased, to secure the sum of $250 and interest, and the plaintiff, at the request of the said Harriet A. Bul- ley, and with the consent of her said husband, the said Arthur C. Bulley, did with her own money from time to time fully pay off and satisfy the said principal and in- terest money of the said mortgage, the said Harriet A. Bulley promising her, the said plaintiff, if she would pay the said principal money and interest that she, the said NEW BRUNSWICK EQUITY CASES. 451 Harriet A. Bulley, would reward her for doing so by either procuring for her an assignment of the said mort- gage or would convey to her, the said plaintiff, by deed, the said mortgaged lands and premises. It further ap- peared by the statements in the bill that after the plain- tiff had paid off the said principal and interest of the said mortgage that the said Harriet A. Bulley, in pursu- ance of her said agreement, took steps with a view to having the said mortgage assigned by the mortgagees to the said plaintiff, but afterwards changed her mind and concluded, with the consent of her husband, the said defendant Arthur O. Bulley, to convey the said shipyard property to the said plaintiff in satisfaction of the moneys she, the said plaintiff, had so paid at the instance and at the request of her said mother. It also appeared that the said Harriet . v . Bulley, in the month of November, 1890, in pursuance o». her intention to convey the said pro- perty to the said plaintiff instructed her husband, the said Arthur C. Bulley, to prepare a deed of the said ship yard property to the said plaintiff from herself and the said Arthur C. Bulley, which deed was prepared, and after the said Harriet A. Bulley knew that it had been prepared she sent a message to a justice of the peace for the said county of Sunbury to come and see to the execution of the said deed by herself and her said hus- band and take fheir acknowledgment of such execution, but being taken suddenly and seriously ill, and continu- ing prostrated by her illness until her death on the 3rd day of January, 1891, it was not decided prudent by the plaintiff or the said Arthur O. Bulley, or any of the family of the said Harriet A. Bulley, to see to the execution and acknowledgment of the said deed; hi fact in the anxiety and concern of the family as to the condition of the said Harriet A. Bul- ley they lost sight for the time being of the necessity of ber executing the said deed, and conse- quently failed to procure her execution of the same. The plaintiff hIro claimed to have paid at the instance of the said Harriet A. Bulley rates and taxes for several years upon the said lands, amounting in all to the sum of $12.73, and also at her request to have expended the sum 1892. Bullet v. Bullet. Fraser, J. 452 NEW BRUNSWICK EQUITY CASES. 1892. BOLLEY V. Bullet Fraser, J. of $25 towards repairing the buildings on the said lands. ~ It also appeared by the bill that the said Harriet A. Bulley died without having made any last will and tes- tament, and that letters of administration upon her estate were granted to the plaintiff and the defendant Ethel M. Bulley. Mary A. Currie, a judgment and execution creditor of the defendant Arthur E. Bulley, who is a son of the said Harriet A. Bulley, and James Holden, she- riff of Sunbury, who had levied upon the said Arthur E. Bulley's interest in his mother's real estate, and adver- tised the same for sale, were made defendants to the suit. It also appeared by the statements in the bill that the mortgage to Lewin and Duff, although fully paid up, had not been cancelled upon the records of the county. The prayer of the bill was that it might be deemed that the money expended by the plaintiff in payment of the mortgage debt as well as the money expended by her in the payment of rates and taxes and in repairing the buildings should be paid out of the separate estate of the said Harriet A. Bulley, with a prayer for further relief and for the giving of all proper directions and the taking of all proper accounts, and with a prayer for an injunction restraining the making of any sale by the she- riff of Sunbury under the execution against the said Arthur E. Bulley. An injunction order was granted on the 17th July, 1891, by His Honour the Chief Justice re- straining the defendants Mary A. Currie and James Hol- den from proceeding to a sale of the lands until further order. The defendant Mary A. Currie appeared to the suit, but did not put in any answer, plea or demurrer, and the bill was therefore taken pro confesso against her for want thereof, and was taken pro confesso against all the other defendants for want of an appearance. I required the plaintiff to produce viva voce testimony to support the case made by the bill, which was done. The plaintiff gave evidence of her having, at the instance and request of her mother, made payment out of her own moneys of the principal and interest of the Lewin and Duff mortgage, upon the understanding with her mother that when the payments were made the mortgage should be assigned to her, the said plaintiff. The evidence' NEW BRUNSWICK EQUITY CASES. 453 further disclosed the fact that there was another mort- 1892. gage on another property called the homestead property BDLLEY owned by Harriet A. Bulley, and that such mort- BuL l ET- gage was held by one William Currie, and that another Fr — x daughter of Mrs. Bulley, the defendant Ethel M. Bulley, was assisting out of her moneys and at the request of her mother to pay off that mortgage, with the understanding that when it was paid off she (Ethel) was to have the homestead lot. In a letter under date the 14th Febru- ary, 1889, written by Mrs. Bulley to A. Wellesley Peters, of St. John, who was the agent for Mr. Lewin, the sur- viving executor of the Robertson estate, and the surviv- ing mortgagee to whom payments on this mortgage were made, Mrs. Bulley says: " I fear I have occasioned you much trouble in not arranging about the mortgage on the old shipyard. I wish to have the mortgage trans- ferred to my two daughters Ethel Mason Bulley and Edith Jane Bulley. Will you kindly let me know what it will cost?" To this letter A. ,W. Peters must have made a reply, but what his letter contained does not appear, as it was not produced in evidence; but from Mrs. Bulley's letter to him of 20th February, 1889, it may be inferred that he had suggested to Mrs. Bulley that she had better give her daughters a deed of the pro- perty rather than have an assignment of the mortgage made to them. The plaintiff on her examination said she had seen a letter in her mother's possession from A. W. Peters to her, in which he had stated it would be better for her mother to deed the property to the daughters than assign the mortgage to them. As I have already said, this would seem to have been the case from Mrs. Bulley's letter to A. W. Peters, under date the 20th Feb- ruary, 1889, in which she says: " I am much obliged to you for all the trouble you have taken for me. I do not wish to deed the property, but as my daughters have paid the instalments 1 propose to transfer the original mortgage to them if it can be done legally. Will you add to your kindness by letting me know by post card how much 1 am to remit." • To this letter A. W. Peters, under date the 25th February, 1889, Wrote to Mrs. Bul- ley as follows: "Yours of 20th inst. received. Mr. Al- 454 NEW BRUNSWICK EQUITY CASES. 1892. BTILLEY V. Bullet. Fraser, J. Hion, the solicitor of the estate, says your daughters - having as you say, paid the instalments, the assignment of the mortgage can be made to them, you and your husband joining in it. Cost, $5.00." From these letters it would seem that Mrs. Bulley desired that the Lewin and Dull mortgage should be assigned to her two daugh- ters, the plaintiff Edith J. Bulley and the defendant Ethel M. Bulley, because, as she alleged in her letters, they had paid the instalments upon it. The evidence showed very clearly that Edith M. Bulley had never paid anything on the Lewin and Duff mortgage on the ship- yard property; what she had paid was on the Currie mortgage on the homestead property. Nothing further appears to have been done until November, 1890, when it was arranged by Mrs. Bulley with the plaintiff and with the defendant Ethel M. Bulley that she should in consid- eration of the moneys paid by the plaintiff on the Lewin and Duff mortgage on the shipyard property convey that property to the plaintiff, and in consideration of the moneys paid by the defendant Ethel M. Bulley on the Currie mortgage on the homestead property convey the homestead property to Ethel M., to carry out which ar- rangement a deed from Mrs. Bulley and her husband, the defendant Arthur C. Bulley, to the plaintiff of the ship- yard property, and a deed of the homestead property to Ethel M., were drawn up ready for execution, but were not executed in consequence of the sudden illness of Mrs. Bulley, followed by her death. When this arrangement about the two deeds was made discharges of the two mortgages were to be procured. The Currie mortgage has been discharged upon the records, but the Lewin and Duff mortgage has not yet been discharged. As part of the arrangement made in November, 1890, that the mort- gages were to be discharged, Mrs. Bulley, under date the 15th November, 1890, wrote to A. W. Peters as follows: " I do not know how to apologize for all the trouble I fear my delay has caused you. If you will send me a post card to tell me I may remit the amount to cancel the mortgage on the part of the Robertson estate I pur- chased here, I will do so by return of post, when please let me have the papers." On this letter is a memoran- NEW BRUNSWICK EQUITY CASES. 455 dura made by A. W. Peters as follows: " Sent her a post card with memorandum; $2.50 amount due." It was while the affair was in this state that Mrs. Bulley was taken ill, and this, without doubt, accounts for the fact that no further action was then' taken in the matter. The plaintiff has brought this suit to be repaid out of the separate estate of the said Harriet A. Bulley the moneys she paid on account of the Lewin and Duff mort- gage, the rates and taxes and the sum paid by her for re- pairs upon the property. I think there can be no ques- tion in this case that the engagement which Mrs. Bulley made with the plaintiff when the latter made the pay- ments she did up»n the Lewin and Duff mortgage, was an engagement contracted with reference to and upon the faith of the credit of the shipyard property, which was then the property of Mrs. Bulley, as her separate property, for although acquired by her by deed during coverture, that would not the less make it separate estate; by the Consolidated Statutes, c. 72, s. 1, it would be so, for that section enacts that " the real and personal pro- perty belonging to a woman before, or accruing after marriage, except such as may be received from her hus- band while married, shall vest in her and be owned by her as her separate property." The judgment of Turner, L.J., in the case of Johnson v. G-allagher (1), lays down most clearly the nature and extent of the rights and remedies of the creditors of married women against their separate estates. In Matthewman's Case (2) it is said by Kindersley, V.-C, when alluding to what is the law as to the extent to which a married woman may contract obligations, engagements, or debts which the party with whom she is contracting may insist shall be paid out of her separate estate, says: "That is a moot question; but I think the principle laid down by Lord Justice Turner in Johnson v. Gallagher (3), is a sound one, and that it is the principle which the Court ought to adopt. As I understand that principle, it is this: If a married woman, having separate property, enters into (1) 3 DeG. F. & J. 494. (2) Law Hep. 3 Kq. 781. (3) 3 DeG. F. & J. 491. 1892. Bullet v. Bulley. Fraser, J. 456 NEW BRUNSWICK EQUITY CASES. 1892. Bullet v. Bullet. Fraser, J. a pecuniary engagement, whether by ordering goods or otherwise, which (if she were a feme sole) would consti- tute her a debtor, and in entering into- such engagement she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obli- gation for which the person with whom she contracts has the right to make her separate estate liable ; and the question whether the obligation was contracted in the manner I have mentioned must depend upon the facts and circumstances of each particular case. It clearly is not necessary that the contract should be in writing, because it is now admitted that if a married woman en- ters into a verbal contract expressly making her separate estate liable, such contract would bind it; nor is it neces- sary that there should be any express reference made to the fact of there being such separate estate, for a bond or promissory note given by a married woman, without any mention of her separate estate, has long been held sufficient to make her separate estate liable. If the cir- cumstances are such as to lead to the conclusion that she was contracting, not for her husband, but for herself, in respect of her separate estate, that separate estate will be liable to satisfy the obligation." In Butler v. Gump- ston (4), Malins, V.-C, says, in referring to the case of Johnson v. Gallagher (5), that he was sorry to find that Lord Justice Turner and Lord Justice Knight Bruce did not quite take the same views in regard to this branch of the law, but his own judgment entirely accorded with the opinion of Lord Justice Turner, and that he thought the rules laid down by him were founded in law and good sense. This case was decided in November, 1868, and in December, 1869, was followed by the case of Picard v. Mine (6), which determined that where a married woman contracts a debt which she can only satisfy out of her separate estate, her separate estate shall in equity be made liable to the debt. Lord Hatherley, L.C., in this (4) 4 Law Rep. 7 Eq. 16. (5) 3 DeG. F. & J. 494. (6) Law Rep. 5 Ch. 274. NEW BRUNSWICK EQUITY CASES. 457 case says that the position of a married woman who con- tracts as a feme sole has been placed upon a sound foun- " dation by Lord Justice Turner in his judgment in Jolm- son v. Gallagher. And Giffard, L.J., in the same case says that as to the law of the case it is unnecessary to say anything, because in the judgment of Lord Justice Turner, in Johnson v. Gallagher, everything relating to the subject is clearly laid down. In 1873 the Judicial Committee of the Privy Council, in delivering judgment 'in the case of The London Chartered Banlc of Australia v. Lempriere (7), approved of and adopted the judgment of Lord Justice Turner in Johnson v. Gallagher as to the liability of the separate estate of a married woman for debts contracted with reference to such estate, and Lord Justice James, who delivered the judgment, says, at page 594, that it is true that in Sfuittock v. Shattock (8), the Mas- ter of the Rolls expressly overruled the judgment of Lord Justice Turner in Johnson v. Gallagher, but he adds that their Lordships of the Judicial Committee of the Privy Council are not able to concur in his view of the author- ities, and have arrived at the conclusion that Lord Justice Turner's judgment is expressed with his usual accuracy. So far, therefore, as this Court is concerned the decision of the Judicial Committee of the Privy Council is a bind- ing decision, and the case of Shattock v. Shattock must be considered as overruled. Having referred to these authorities and dealing then with the present case, I think that Mrs. Bulley, when she requested the plaintiff to pay the principal and interest of the Lewin and Duff mortgage upon the under- standing that she, the plaintiff, should be secured by having the mortgage assigned to her, intended so to con- tract with the plaintiff as to make herself, that is to say, her separate property, the debtor to the plaintiff. There neither was nor could be any pretence under the facts that the defendant Arthur C. Bulley was in any way to be considered as the debtor, so as to relieve the separate estate of the mother. How then is the matter affected by the evidence in the case, in the first place by the 1892. Bulley v. Bulley. Fraser, J. (7) Law Rep. 4 P. C. 572. (3) Law Ksp. 2 Eq. 182. 458 NEW BRUNSWICK EQUITY CASES. 1892. Bullet v. Bullet. Fraser, J. letters of the mother to A. W. Peters, in which she stated " that both of her daughters having made the payments of the instalments on the Lewin and Duff mortgage, she wished the mortgage assigned to them both, and in the next place by her change of mind in regard to having the mortgage assigned, and concluding that instead she would convey by deed to the plaintiff the shipyard pro- perty, and to the defendant Ethel M. Bulley the home- stead property on which was the Currie mortgage, to- wards the payment of which Ethel had made payments at the request of her mother? It is very clear to me from the evidence that Ethel never made any payments on the Lewin and Duff mortgage, but that all such pay- ments were made by the plaintiff. What the mother may have had in her mind in stating in her letter to A. W. Peters 1 is that both daughters had made payments, and that she wished the assignment of the mortgage to be made to both, 1 can only conjecture. It may be that she wished both mortgages assigned to both daughters ir- respective of the payments made by each, which might not be an unreasonable family arrange- ment, both mortgages having been given in the same month (April, 1881) and both for nearly the same amount, one being for $250 and the other for |200, but, however this may be, the assignment of the Lewin and Duff mortgage to the two daughters was never made but was virtually abandoned by the new proposal to give to the plaintiff a deed of the shipyard property, and to Ethel a deed of the homestead property. Had the proposal (which was unfortunately frustrated by the illness and death of Mrs. Bulley) been carried out, each daughter would have had the property in respect to which she had expended her moneys. While the bill sets forth this agreement as to the giving of a deed to each daughter, and the evidence shows that the deeds to effectuate that object were drawn out, and that Mrs. Bulley actually thereafter made arrangements to have them executed and duly acknowledged, I do not think that I could now make a decree and direct that agree- ment to be specifically performed, because I am of opin- ion that under the Statute of Frauds such an agreement, NJiVV BRUNSWICK EQUITY CASES. 459 relating to lands, to be enforced would require to be in ■writing. I think now that there can be no doubt that specific performance may be granted in respect to a con- tract made with a married woman where the consider- ation on her part is an engagement binding on her separ- ate estate. Picard v. Hine (9), above cited, decides that. In Johnson v. Gallagher (10), Turner, L.J., at page 514, qualifies the statement as to the liability by adding, " ex- cept as the statute of Frauds may interfere where the separate property is real estate," and the same qualifica- tion is to be found in some of the other cases dealing with the question. In Shattoclc v. Shattock, already referred to as overruled on the main question. Lord Romilly, on page 192, says : " The engagement need not be in writing, but if not in writing, it must be proved that it was entered into with an intention on the part of the married woman of making her separate estate liable to discharge that debt, and this intention will not be inferred from the mere circumstance of her contracting the debt. When I say that the engagement need not be in writing, of course there is this qualification, that if the separate property of the married woman consists of real estate only, the Statute of Frauds applies as in every case af- fecting land." As, therefore, the uncompleted agree- ment to convey the shipyard property to the plaintiff cannot, in my opinion, be enforced because it is not in writing, it becomes necessary to consider in what way I can give the plaintiff relief. As the letters from Mrs. Bulley to A. W. Peters showed that the then intention of the mother was that the assignment of the mortgage should be made to both daughters, Ethel M. Bulley has executed an assignment of her interest in the Lewin and Duff mortgage moneys to the plaintiff— indeed her re- lease to the plaintiff produced in evidence covers any possible claim she could have under the letters written by her mother to Peters, and gives the plaintiff the full benefit of such mortgage moneys; — therefore the plain- tiff is fully entitled to all such moneys. I have had some doubts as to the proper course to adopt in respect to the 1892. Bullet v. Bulley. Fraser, J. <9) Law Eep. 5 Cb. 274. (10) 3 DeG. F. & J. 49*. 460 NEW BRUNSWICK EQUITY CASES. 1892. BULLEY V. Bdiley. Fraser, J. relief to which the plaintiff is entitled. She might, I " think, have filed her bill asking under the facts and the evidence that Mr. Lewin, the surviving executor ol the Robertson estate, assign and transfer the mortgage on the shipyard property to her and then after obtaining the assignment as assignee have filed her bill to fore- close the mortgage. This, however, would not relieve her from filing a bill to be paid out of her mother's separate estate the sums paid by her for rates, taxes and repairs if she can claim for the moneys thus paid. All this would necessitate several suits in equity, but, hav- ing considered the whole matter very carefully, I think this circuity of proceeding can be avoided, and that, by treating the moneys paid by the plaintiff at her mother's request on the mortgage as well as the other moneys paid by her also at her mother's request, as a debt chargeable against the mother's separate estate, T can make a decree which will make the sepa- rate estate the fund to pay such debt. Of course in such case the amount might be decreed to be paid out of the personal estate of Mrs. Bulley, which was separ- ate property, and an account directed to be taken of such personal estate had it not been that the evidence disclosed the fact that Mrs. Bulley died without leaving any personal estate. I possibly would in the first place have directed an inquiry to ascertain the amount of her personal estate which was separate property, if there had been personal estate, and if that proved insufficient, then have directed that recourse should be had to her real estate by sale thereof to meet the claim of the plain- tiff. As there is no personal estate, and the plaintiff by her bill confines the payment of her claim to the separ- ate estate of her mother known as the shipyard prop- erty, therefore no enquiry need be directed as to any other real estate the separate property of the mother. It may be here stated that the defendant Arthur C. Bulley, the husband, in his evidence avowed himself cog- nizant of all his wife's transactions as stated herein and in the bill and expressed his willingness that the plaintiff should be paid her claims out of the separate estate of his late wife. From what I have said it follows that it NEW BRUNSWICK EQUITY CASES. 461 is only necessary to ascertain the amount which, the 1892. plaintiff has paid out of her own moneys at the request Bdlley of the said Harriet A. Bulley in order to make a decree bulle*. in the suit. The bill having been taken pro confesso Fr ~ ( j against all the defendants the allegations therein are substantially admitted, and therefore it appears that the plaintiff has paid out of her own moneys, at the request of the said Harriet A. Bulley, the whole amount of the principal and interest of the mortgage made and given by the said Harriet A. Bulley and the said Arthur C. Bulley, her husband, to the said Lewin and Duff, surviv- ing executors of the Robertson estate; also the sum of |12.73 for rates and taxes and $25 for repairs paid at the request of the said Harriet A. Bulley. I do not think it necessary to make any reference to ascertain the amounts due the plaintiff, as they are stated in the bill and admitted by the allowing it to be taken pro con- fesso. The plaintiff ought to have interest on such amounts as were paid on the mortgage, that is to say, she will be considered a creditor for the amount of the principal of the mortgage and interest up to this date in like manner as if she had become the assignee of the mortgage. I think she ought to be paid the amount paid by her for the rates and taxes, amounting to $12.73, and also the $25 paid by her for the repairs, but I do not see my way clear upon the principle under which interest is allowed to give her any interest on these two sums. The plaintiff's claim will therefore stand at $452.73, made up as follows: Principal of mortgage, $250; interest there- on from 26th April, 1881, to 26th May, 1892, $165; as also for rates and taxes, $12.73, and for repairs, $25. The plaintiff will also be entitled to subsequent interest on the principal of the mortgage from the 26th May instant until the sale of the separate property of the said Har- riet A. Bulley, as hereinafter directed. The decree will be that the separate property of the said Harriet A. Bul- ley is chargeable with the said several sums I have just mentioned and with the costs of this suit, and that the real estate described in the bill and known as the ship- yard property be charged with the payment of the said moneys and costs and that the said shipyard property 46-4 NEW BRUNSWICK EQUITY CASES. 1892. Bullet v. Bullet. Fraser, J. be sold at public auction under the direction of a referee in equity for the county of Sunbury, and that after pay- ment out of the proceeds of the sale to the plaintiff of the several sums to which she is entitled as aforesaid,, together with her subsequent interest on the principal of the mortgage and the taxed costs of the suit, includ- ing the costs of the reference and sale, that the surplus, be paid into Court with liberty to the heirs of the said Harriet A. Bulley, the said Mary A. Currie, or any other person interested therein, to apply to have the same paid out according to their respective interests therein. The injunction granted restraining the defendant Mary A. Currie and the defendant James Holden, sheriff of Sun- bury, from making sale under the execution against Ar- thur E. Bulley to be made perpetual. See Chute v. Gratten, post, p. 538, and on appeal, 32 N. B. 549 ; John- son v. Scribner, ante, p. 363; Cunningham v. Moore, 1 N. B. Eq. 116 ; Waters v. Waters, lb. 167. 1892. July 16. EOBERTSON v. THE ST. JOHN CITY RAILWAY AND JOHN B. ZEBLE'S. (No. 1. Post, p. 476.) Practice — Discovery — Production — Sealing vp irrelevant matter — Fureign corporation — Books abroad — Production after refusal to give information, by answer — Exceptions. The plaintiff is only entitled to discovery as to all material matters relevant to his own case as made out by the bill, and not to the defendant's case. Where defendant's books contain parts not relevant to the plaintiff'* case, and to the inspection of which the defendant objects, the defendant on the hearing of a summons for discovery should state the existence of such parts, that the order may be quali- fied by giving him liberty to seal up such parts. If defendant does not take this course, the liberty will be granted to him on application by summons taken out for the purpose. Production will be ordered against a defendant foreign corporation; and it is no answer that its books are abroad. Application may be made for production, though the information has been refused in answer to interrogatories, arid it cannot be objected that the answer should have been excepted to. NEW BRUNSWICK EQUITY CASES. -168 The facts are sufficiently stated in the judgment of 1892. the Court. no™™™* V. C. J- Coster, for the plaintiff. S k'ailwatCo! Pugsley, S.G., for the defendants. Paimer.j. 1892. July 16. Palmer, J. :— The bill in this suit is brought to enjoin the defen- dants from applying the funds of the defendant Com- pany to another object than that authorized by the charter, and for an account of the earnings of the Com- pany, and to compel an account and refund of any funds of the Company that have been misapplied. The defendants have put in an answer, but have re- fused to answer as to the entries of the receipts and ex- penditures of the Company ; upon which this application was made for the production on oath and inspection of all documents in their possession relating to the matters in question in this suit. It appeals that the Company's books and papers are kept in New. York, and it was not denied on the argu- ment that they had books containing accounts show- ing the cost of construction and equipment of the rail- way, and a statement of the receipts and disbursements in connection with the running of it, and the cost of the buildings, machinery, and other property constructed or purchased by the Company, and also with reference to the money raised by the Company on mortgage or mort- gage bonds or debentures or by any sale or hypotheca- tion of the Company's property. The matter has been before me for a considerable time, but the defendants have ultimately refused to pro- duce anything, and the plaintiff's counsel has required me to make an order, and as this is the first case in which these questions relative to procedure in connec- tion with the production of documents have arisen be- fore me I have considered it my duty to state my views as to that part of the practice of this Court which re- lates to discovery by the production and inspection of documents. Palmer, J. 464 NEW BRUNSWICK EQUITY CASES. 1892. Previous to the passing cf the Act 17 Vict. c. 18, s. 17, ' R0BKBTS0N of which the 61st section of 53 Vict. c. 4, is a re-enact- st. joni city ment > ijl order to obtain production and inspection of bailway Co. documents it was necessary to exhibit interrogatories as to the documents in possession of the defendants. By that section (which is a copy of the 18th section of the Imperial Act 15 & 16 Vict. c. 84), it is enacted that: " It shall be lawful for the Court or a Judge at any time during the pendency of any suit or proceeding, to order the production upon oath by any party thereto, of such of the documents in his possession or power relat- ing to any matter in question in such suit or proceeding, as the Court or Judge shall think right, and the oourt or Judge may deal with such documents when produced in such manner as shall appear just. The costs of such application and production to be in the discretion of the Court or Judge." As I think this section was not intended to enlarge the right of discovery but merely to give a more prompt mode of enforcing it by production and inspection in- stead of mere answers to interrogatories, the general principles on which discovery is enforced in equity must be a guide upon the question of the right to produc- tion. These rules I had occasion to lay down minutely in the case of Gilbert v- Union Mutual Life Insurance Co- (2), and they are these: That the pleadings in a case and the rules of practice in connection with the law of discovery determine, a priori, what question or questions in a case shall come on for trial, and the right of a plain- tiff to discovery is in all cases confined to the ques- tion or questions in the case which according to the rules and practice of the Court is or are about to come on for trial. Another rule' is, that it is the right of the plaintiff in equity to exact from the defendant a discovery upon oath of all matters of fact which being well pleaded in the bill are material to the plaintiff's case, and which the defendant does not by his form of pleading admit. Another rule is that the (2) 25 N. B. 221. NEW BRUNSWICK EQUITY CASES. 465 right of the plaintiff is limited to a discovery of such 1892. material facts as relate to the plaintiff's case, and does EoBEBTSON not extend to discovery of the manner in which the de- ST j^ city fendant's case is to be established or to the evidence RAIL 2^J Co> which relates exclusively to his case. In point of fact, Palmer ' J - the last proposition is contained in the section under consideration, for it enacts that the documents which _are obliged to be produced must be in the possession or power of the defendant and relate to the matter in dis- pute — that is to facts material to the case made by the bill and not admitted by the answer — and as to them the plaintiff has the right of discovery, but the plaintiff has only the right to the inspection of entries in the books in which he has an interest — by which I mean matters which are material to the plaintiff's case made by the bill. See Tyler v. Drayton (3). I have to consider whether or not I should not qualify the order for production by adding directions that defendants should be at liberty to seal up such parts of the books as shall not in any way relate to the mat- ters in question in the cause. But, if such is the case, it was the proper course for the defendants resisting this summons to state the existence of entries, to the dis- covery of which they object. See Hare on Discovery (4). This was not done, and, therefore, I have uo right to infer that any harm will be done by the general oraer. If, however, such general order is calculated to do any harm, it is open, and it is the proper course, for the de- fendants to make special application by summons for that purpose. See Talbot v. Marshfield (5). • I have some doubts as to the form of the order, but, although it is not denied that the defendants have books in which there are entries such as are required, I have no distinct admission of the number or character of such books or other writings so as to properly describe them in an order for production. What the plaintiff asks for and what he is entitled to is the production under oath (3) 2 S. & S. 309. (4) 2nd ed. 281. (5) Law Eep. 1 Bq. 6. BQ. OAS.— 30 466 NEW BRUNSWICK EQUITY CASES. 1892. °f a U documents in their possession or power relating to bobebtbon tlle mat ters m dispute; that means that they shall make John oitt oat ^ *° wna ^ they have and then produce them ; and railway Co. therefore the order I will make is to direct each of the Palmer, j. defendants generally within ten days after the service of this order upon the defendants' solicitor to file an affi- davit stating what books or other documents he or the Company have in their possession or power in which, there are entries relating to the matters in dispute (if any), showing the cost of any building, machinery or other property constructed, purchased or owned at any time by the Company, or any entry with reference to money raised by the defendant Company on mortgage, mortgage bonds or debentures, or upon any sale, hypothe- cation or pledge of the Company's property, and to leave with the Deputy Clerk of this Court such of the said documents admitted by them as he or they may not show by such affidavit are not in their or either of their possession or power, according to the form No. 2 in Seton on Decrees (4th ed.) page 133. The defendants objected to the production, because in their answer they, although interrogated, had refused to answer with reference thereto, and they argued that the plaintiff ought to have excepted to the answer and could not apply for production, but it is apparent if this was the compulsory practice of the Court it would lead to great delay. The practice is clear that instead of ex- cepting the plaintiff can apply for production. Wigram, in his valuable book on Discovery, at page 200 says: " The motion for production of documents is in the nature of an exception to the answer, and the judg- ment of the Court upon motion for production will be regulated accordingly. If the plaintiff under the old practice would have succeeded in his exceptions to the answer in not setting out the documents he will be en- titled to an order for their production, otherwise he will not be so entitled." This appears to be exactly this case, and no argu- ment has been attempted to be made to me to show that the defendants can protect themselves from answering, NEW BRUNSWICK EQUITY CASES. 4gy but if they did the decision of this Court in Gilbert v. 189 2 Union Mutual Life Insurance Go. is a complete answer. X? s\ Tap HTflON Again it has been argued that these books ought *. not to be produced because this is a foreign corporation railway oo. and the books are abroad. With reference to the first Pai^Tr, j. point I know of no rule which would put a foreign cor- poration in any different position from a domestic one, or any other person. This Court can only have jurisdic- tion over the matter because of property within its juris- diction, the right to which it is called upon to adjudicate upon, and there is no pretence that the Court has not jurisdiction to entertain the suit — the not demurring to the bill admits it — and it would be a sorry day for the suitors in this Court if parties remaining out of the juris- diction of the Court could deal with property over which no other Court has jurisdiction to adjudicate upon and refuse discovery that persons within the jurisdic- tion would be obliged to make. Then, as to the books being abroad, the rule is clear that that makes no difference. Mr. Daniell in his valu- able book on the Practice of the Court of Chancery, at page 1827 (4th Am. ed.), says, that the mere circumstance of the documents being abroad, is no answer to the appli- cation for production; but in such a case a reasonable time will be given to bring them to this country, and if the party does not comply with the order, the Court will consider it as if he had had them here in the first in- stance, and had refused to produce them. These are the principles upon which this Act of Assembly should be administered, and it is clear that it is my duty to make the order. It has been suggested that I could not enforce the order against a foreign defendant, the defendant not being within the jurisdiction of the Court. That is true so long as he keeps himself and his property out of the jurisdiction, but if the proper orders of this Court are not obeyed it is not powerless; it has the ordinary pro- cess of contempt against any property of the defendants within the jurisdiction, and if it is not obeyed it is a con- tempt of this Court, for which it would issue a seques- tration against the property. 468 NEW BRUNSWICK EQUITY CASES. 1892. I have been this particular as I thought it my duty eobbetson to let the practitioners of this Court know on what prin- st. John city ciples I feel myself bound to administer the law with reference to the production of documents relating to matters in dispute in causes pending in this Court. As this is the first application of the kind, I will not give costs against the defendants, but make them costs in the cause. Kailway Co. Palmer, J. 1892. BAECLAY v. McAVITY. August i. Practice — Answer — Setting up fraud — Exceptions — The Supreme Court in Equity Act, 1890 (53 Vict. c. 4), ». 72 — Costs of Exceptions. Where a suit is brought to enforce an agreement, an answer setting up that the agreement was made fraudulently cannot be excepted to on the ground that the defence of fraud can only be put for- ward in a cross bill to set the agreement aside. The remedy of the plaintiff is by application to the Court under section 72 of Act 53 Vict. c. 4, or to object at the hearing to evidence of fraud being given. Where exceptions are allowed in part, neither party is entitled to costs. Where some exceptions are wholly allowed, and others disallowed, the costs are set-off and the balance only is payable. Where the costs would be nearly equal no costs are given, or they are made costs in the cause. The plaintiff by his bill alleged that on the 24th of April, 1883, he obtained letters patent in Canada for an invention called " Barclay^ Improved Lubricator for Steam Engines," and that by an agreement dated the 1st of January, 1888, between himself and the defend- ants, the latter were given the sole and exclusive right to manufacture and sell the lubricator in the Provinces of New Brunswick, Quebec and Ontario to the end of the term for which the patent was granted, and any re- newal thereof. That the defendants were to make quarterly returns of the machines manufactured, to keep books showing the sales, and to pay the plaintiff a royalty of $3.75 for each lubricator made. That the de- fendants commenced and have continued the manufac- ture of the lubricator, and have sold a large number of them, but have not made full and true returns of the MoAyity. NEW BRUNSWICK EQUITY CASES. 469 number manufactured, and have refused to do so, and 1892. have alleged that lubricators manufactured and sold by BAB0LAT them are not the plaintiff's lubricator. The plaintiff MoA ^ alleged and charged that all lubricators manufactured and sold by the defendants since the date of the agree- ment were in fact, substance, and in truth his lubricator, or a colourable imitation thereof, and he prayed for an account by the defendants. Interrogatories were delivered for the examination of the defendants, which contained, inter alia, the fol- lowing : 6. " Is it not true that the said defendants did not make full and true returns of the number of the said lubricators as required by the second section of the agreement set out in the fourth paragraph of the bill of complaint ? Were not lubricators sold by said defend- ants that were not put in the returns made to said plain- tiff ? Did said defendants keep as required by the said agreement, regular books of account containing all items, charges and memoranda relating to the manufac- ture and sale of the said lubricators, or what books of account were kept by said defendants ? Set out in your answer to this interrogatory a copy of all entries con- tained in said books of account relating to said matters." 11. "Is it not true that all the lubricators for steam engines manufactured and sold by the said defendants since the date of said agreement are in fact, substance, and in truth, the said plaintiffs lubricators described in said agree- ment, or lubricators varying only colourably from said plaintiff's lubricator, or in what particulars did said lubricators sold by said defendants vary or differ from the said lubricators described in said agreement ? In your answer to this interrogatory set out in detail a de- scription of the lubricators sold by said defendants, and the number thereof, and point out the principal points of • difference between said lubricators and said plaintiff's lubricators ? Were not the said lubricators manufactured and sold for the purpose of avoiding the payment of said royalty to said plaintiff, or otherwise ? " Barclay v. McAyity. 470 NEW BRUNSWICK EQUITY CASES. 1892 ^° these interrogatories the defendants answered as follows : 6. " It is not true that the said defendants did not make full and true returns of the number of said lubri- cators as required by the second section of the agree- ment set out in the bill of complaint; and further, that no lubricators manufactured by said defendants under said agreement were sold by the defendants which were not in the returns made to the said plaintiff. And further, that the defendants did keep, as required by said agree- ment, regular books of account containing all items, charges and memoranda relating to the manufacture and sale of the said lubricators, and that the said books of account were at all times open to the inspection and ex- amination of the said plaintiff, or his legal representa- tive, and that accounts of the manufacture and sale of said lubricators were from time to time rendered by said defendants to the said plaintiff, and the said plaintiff has received full and proper accounts of the same." 11. " It is not true that all the lubricators for steam engines manufactured and sold by the said defendants since the date of said agreement are in fact, substance, and in truth, the said plaintiff's lubricators, described in said agreement, or lubricators varying only colorably therefrom. That the said defendants manufacture as many as twenty different kinds of lubricators, many of which were manufactured by the defendants for years previous to the making of said agreement, but that no record or account is kept of the number of said lubri- cators so manufactured, and that it is impossible to give any account of the number of lubricators so manufac- tured and sold, and said defendants cannot ascertain the number thereof. That the said lubricators were not manufactured and sold for the purpose of avoiding the payment of said royalty to said plaintiff, but the same were manufactured and sold in the ordinary course of the defendants' manufacturing business. And the said defendants do claim and submit that at the time of the making of the agreement between the plaintiff and the defendants, the defendants were induced to enter into said agreement by the fraud of the said plaintiff in stat- NEW BRUNSWICK EQUITY CASES. 471 ing and pretending that he was the rightful owner of 1892. the patent aforesaid, and entitled to have the said lubri- BABCLAY cator patented in Canada, whereas in truth and in fact MoA y ITr . the said lubricator was an infringement on other patents in Canada, then and now in full force, and the said patent held by said plaintiff was fraudulent and void, and said defendants claim that the same should be de- clared fraudulent and void, and be set aside." To these answers the plaintiff filed the following exceptions : 1. "That the said defendants have not in and by their knowledge, remembrance, information, and belief, answered and set forth in their answer to the sixth in- terrogatory a copy of all entries contained in said books of account relating to the matters therein interrogated upon." 2. "That the said defendants have not in and by their said answer, according to the best of their know- ledge, remembrance, information and belief, answered and set forth in their answer to the eleventh interroga- tory in what particulars the lubricators sold by said de- fendants varied or differed from the lubricators de- scribed in the agreement set out in the bill of com- plaint. And that said defendants in their answer to said interrogatory did not set out in detail a description of the lubricators sold by them, and the number thereof, or point out the principal points of difference between said lubricators and said plaintiff's lubricators.'' 3. " That the said defendants in their answer to the said eleventh interrogatory set up that said lubricator was an infringement on other patents in Canada then and now in force, and that said patent held by the plain- tiff was fraudulent and void, and defendants claimed in said answer that the same should be declared fraudu- lent and void, and be set aside; the said plaintiff con- tends that said allegation is bad and insufficient, and that said defendants are estopped from setting up in said answer the said allegations, and from trying out in this suit the validity of said patent. In all or some of which particulars the said plaintiff is advised that 472 NEW BRUNSWICK EQUITY CASES. 1892. Barclay v. MoAvitt. Palmer, J. the said answer of the defendants is evasive and insuffi- cient, and ought to be amended." Argument was heard August 1st, 1892. G. W. Weldon, Q.C., for the plaintiff. C A. Palmer, Q.O., and A. H. Hanington, for the de- fendants. 1892. August 4. Palmer, J. : — The first exception is in effect that the defendants have not set out the accounts in their books relating to t-he matters; there is some difficulty as to what is meant by the words " relating to said matters," as that is all that is stated in the interrogatory. Of course the words taken by themselves would be entirely indefinite, as it would be impossible to know what were the matters re- ferred to, and the only thing by which the defendants could tell their meaning is the matters that were men- tioned in that interrogatory — that is, the entries in the books that they were required to make by the agreement alleged in the bill as having been made between the parties, and I think that the defendants ought to have fairly understood it, and, therefore, they should have answered, and this exception must be wholly allowed, and the defendants ordered to answer by setting out, as far as they can, a copy of any entries made under that agreement relating to it. They have already sworn that they did keep the accounts as stated. The second exception covers two grounds. First, that the defendants have not answered as to their know- ledge and belief in what particulars the lubricators sold by them differed from those which they agreed to sell for the plaintiff under the plaintiff's patent, and, second- ly, that they did not set out in detail all that they sold. This exception must, I think, be allowed as to the first part, and overruled as to the second, as I think the sec- ond has been sufficiently answered. It follows that the defendants must put in an answer as to their knowledge, information and belief, as far as they can, how the other lubricators which they by their answer allege they sold NEW BRUNSWICK EQUITY CASES. 473 are different from those that they were to sell for the plaintiff. The third exception is in effect an objection to set- ting up in the answer a fraud in making the agreement to enforce which the suit is brought, on the ground that the defendants cannot set up fraud by their answer, but must do so by a cross-bill to set the agreement aside; but if this is so, it is either a ground for striking out the clause under section 72 of 53 Vict. c. 4, or an objection to giving such a defence in evidence at the hearing. It is clearly not a ground for exception to the answer, for such exceptions are, since the passing of the Act re- ferred to, confined to stating too little, and not the stat- ing too much; therefore, this exception must be wholly disallowed; so that I will have wholly allowed one ex- ception, have allowed one in part, and the other part dis- allowed, and the third have wholly disallowed, and the question now is what I should do with the costs in the matter. The rule as to costs on the hearing of exceptions to an answer before this Court is, that if the party ex- cepting is given the costs of the exceptions that are allowed, and the other party is entitled to the costs of. the exceptions which are disallowed, if some of the ex- ceptions are allowed only in part neither party is en- titled to the costs in relation to these exceptions. In such cases where some of the exceptions are wholly al- lowed, and some wholly disallowed, these are set off and only the remaining part paid, and if the costs on each side are nearly equal then the Court refuses to give costs to either party or makes an order that the costs of both parties should be costs in the cause. Here I think the costs would be as nearly equal as possible, and, therefore, I will order that the costs of these exceptions be costs in the cause. The order I will make is that the whole of the first exception and a partof the second be allowed; and unless the defendants shall, in ten days after service of this order on their solicitors, put in a good and sufficient answer, and set out on oath as to their knowledge, infor- mation and belief a copy of all entries made by them in 1892. Bakolat V. MCA.VITT. Palmer, J. 474 NEW BRUNSWICK EQUITY CASES. 1892. Barclay v. McAvitt. ' Palmer, J. the books of account, or other memorandum of the manu- ' facture or sale of lubricators which they kept under the agreement mentioned in the bill; and also put in a good and sufficient answer as to their and each of thek know- ledge, information and belief in what particulars the other lubricators sold by the defendants varied or dif- fered from the lubricators described in the agreement set out in the bill of complaint in this suit, the bill may be taken pro confesso. And it is further ordered that the rest of the ex- ceptions be disallowed. The costs of both parties to this application to be costs in the cause. The rule that fraud in an agreement can only be set up as a defence by cross bill was very fully discussed in Botsford v. Crane, 1 P. & B. 154. Ritchie, C.J., there said: " It is quite clear in this case, that defendants' entire, substantial resistance to the plaintiff's claim is founded on the alleged invalidity of the agreement, and I think, to enable defendants to avail themselves of this, the agreement should have been impeached by a cross bill. A cross bill is simply a mode of defence to the original bill, and its object is to bring) every matter in dispute completely before the Court, so that after the litigated point is properly before the Court, the Court may be enabled to make a decree, granting full relief to all parties, in reference to the matters of the original bill. In Richards v. Bayley, 1 J. & Lat. 120, it was held that a party desirous of being relieved upon equitable grounds from an executed contract, must file a bill for that purpose— that he could not rely on those equitable grounds, as a defence to a suit to have the benefit of the contract; and the words of the Lord Chancellor, at page 131, are peculiarly applicable to this case: ' If a cross bill had been filed, the question which has been discussed — whether this transaction could be maintained in a Court of Equity, would have properly come before me.' And again he says: ' Now this case does not come before me upon a cross bill to be relieved from these securities; but it is said that I may act in this manner; that as by this bill, the plaintiffs being only entitled to a security upon the life interest of the defendant in the lands, ask for something beyond that, I am at liberty to deal with this case in any way I may think equitable without a cross bill. There is no authority for such a position. The general rule of the Court requires a cross bill to be filed in a case like the present. . . . This is a contract, whether it be good or had, which is executed in the sense in which that word is used in this Court; and if executed, then it is the clear rule of the Court that the party desirous of being relieved from a contract executed must file a cross bill for that purpose. It would lead to great inconvenience if it were otherwise, and I am not inclined to relaox the practice in this respect. . . It would be to give relief against the contract of the party, where the plaintiff requires nothing but the aid of the Court to carry it formally into execution. I am not at liberty to do so.' So in Holderness v. Rankin, 6 Jur. N. S. 903, one point made was, whether a cross hill was or was not necessary to raise the ques- tion of fraud in the making of the agreement under which plain- NEW BRUNSWICK EQUITY CASES. 475 tiff claimed the property in dispute. Sir G J. Turner, L.J.. in 189 2. delivering judgment says: ' I am of opinion that a crossi Dili was necessary to raise this question.' And again: 'It is not accord- babcla* ing to the course of this Court to set aside a deed at the instance Mc ^ lTy of a defendant as such, although he is entitled to the beneht or his answer, and no decree can he made against it upon the testimony of a single witness. In such a case the defendant ought to file a cross hill.' So in Carter v. Palmer, 8 Cl._& P. 668, in the House of Lords, it was held that to enforce a defendant's equity by impeaching securities a cross bill is necessary, according to the practice in England; and therefore where the plaintiff claimed the full amount of securities, and the defendant offered to pay a part only, alleging an equity against the residue, a decree, giving the plaintiff an option to accept the offer or have his bill dismissed, was held irregular, as it did not decree whether the plaintiff was entitled to the whole sum or to a part only, and that the proper course would be to make a decree giving effect to the securities to the extent of the whole sum due on them, but without prejudice to the defendant's right to file a cross bill to assert his equity. And in Eddleston v. Collins, 17 Jur. 331, Turner, L.J., says: ' The question here is on the right to create the further charges, and not on the right to the ultimate equity of redemption, subject to the charges when created. The appellants then attempted to impeach the securities upon the evidence taken in the cause; but the appellants are defendants in this cause, and I ' feel great doubt whether it is competent for them to do so. The plaintiff's security is, I must now assume, well created by deed, and I rather apprehend such a security, if impeached at all, must be impeached by cross bill. The security is good until impeached; and to allow the defendant to impeach it by her answer, and by evidence on her part, would be to make a decree in favour of the defendant upon the application of the plaintiff. If the defendant were at liberty thus to impeach the plaintiff's title, she must equally be at liberty wholly to subvert it; and the consequence of allowing this would be, that plaintiffs coming to this Court for relief might find themselves in a posi- tion of being decreed to convey to the defendants. The objection to decreeing relief upon the answer to defendants is, perhaps, founded upon deeper reasons than may at first sight appear. It may be the medium of compelling defendants to do justice to plaintiffs by putting any legal rights they may have under the control of the Court, and of thus giving effect to the rule, that he who comes into equity must do> equity.' " Where exceptions are allowed: Newton v. Dimes, 3 Jur. N S. 583, or overruled: Stent v. Wickens, 5 De G. & Sm. 384; B. v. W., 31 Beav. 346, the costs will in general be ordered to follow the result. But they must be expressly asked for on the hearing of the exceptions: Earp v. Lloyd, 4 K. & J. 58; Crossley v. Stewart, 2 N. R. 57. Such costs are payable immediately: Hannaghan v' Hannaghan, 1 N. B. Eq. 400; Thomas v. Rawling, 27 Beav. 375 ! Where some exceptions are allowed and others overruled the costs of those allowed will be set off against those overruled- Wiley v Waite, 1 N. B. Eq. 154; Hendricks v. Hallett, 1 Han. 217; Willis v' Childe, 13 Beav. 454; Dally v. Worham, 32 Beav. 69; Bridgewater v. De Wmton, 9 Jur. N. S. 1272; and see Seton, 1256 No 8 for form of order. Where the costs on each side would be nearly equal, the usual practice is to give costs to neither party Richards v Barlow, 1 Paige, 323. Where a party submits to exceptions before argument he must pay or offer to pay the costs properly incurred by reason of such exceptions: Act 53 Vict c 4 s. 58. Where a great number of exceptions were taken to an 476 NEW BRUNSWICK EQUITY CASES. 1892 answer, and shortly before the argument the defendant submitted _ ' to answer, in consequence of which it was argued that the Barclay answer was clearly evasive, and that the ordinary costs were a™^ greatly inadequate, the Court refused to give extra costs, hut reserved the question until the hearing of the cause: Attwood v. Small, 2 Y. & J. 72. McAvity. 1892. ROBERTSON v. THE ST. JOHN CITY RAILWAY Ausustu. AND JOHN B. ZEBLEY. (No. 2. Ante, p. 462.) Practice — Production — Order for discovery — Appeal — Stay of proceedings — Security to indemnify for delay. Upon an order for discovery by the defendants, the Court made it a condition of staying proceedings pending an appeal, that the defendants put in security to indemnify the plaintiff from any loss arising from the delay; the Court having no judicial doubt as to the correctness of its order, and considering that greater injury would fall upon the plaintiff by a delay than to the de- fendants by a refusal to stay proceedings. The facts sufficiently appear in the judgment of the Court. C- J- Coster, for the plaintiff. Pugsley, S--G-, for the defendants. 1892. August 11. Palmer, J. : — This case came before me first on the 9th February last on an application for the production and inspection of documents. After a great many attempts to ascer- tain what the defendants were willing to do, I made an order for the usual affidavit for the discovery of docu- ments in each of the defendants' possession relating to the matters in dispute in the case, and the production and inspection of such as they might state they had. From this order the defendants have each appealed, and this is an r application to stay proceedings until the ap- peals are disposed of, mainly on the ground, that unless I would do so they will lose the benefit of their appeals. The other side argue that if I should stay the proceedings whenever the other side appealed NEW BRUNSWICK EQUITY CASES. 477 from my decision as to discovery it would prevent my 1892. compelling the parties producing the evidence that they BoBBBTSON might object to on the hearing until each matter was gT Joh * ClTY decided on appeal. This practice would completely de- BiIL ^J Go - stroy the energy of the Court, and therefore is not bound Palmer - to be allowed. To me it is perfectly clear that I cannot act on either of these extreme views, and I will state as best I can my views on the principles on which the Court of Equity acts on staying proceedings upon orders of this description. The first is that laid down by Daniell at page 1468, that Courts of Equity are very unwilling to suspend the execution of orders or decrees, particularly interlocutory orders. The second, that the Court will usually order a stay of proceedings where the appeal is of right, if the not doing so would deprive the party of the benefit of his appeal, and they can secure the other side from being damnified by the stay in case the appeal is decided in his favour. Thirdly, that the stay is in the discretion of the Judge, and must depend upon the circumstances of each particular case, and the fourth rule is that laid down by Lord Langdale, Master of the Rolls, in Colder v. Webster (1), that there are two things which a person is entitled to show on an application for a stay of proceedings : First, that on the evidence which is before the Court there is probable ground for supposing that the decree might turn out to have been erroneous, and, secondly, by affi- davit what the probable injury is which might result from the decree being acted upon in case the decree should be ultimately successful. Another rule is that laid down by Vice-Chancellor Kindersley im the case of Lord v. Colvin (2), in which he said: " In applications of this kind, which must be made to the Judge who pronounced the decree, he is bound to consider the nature of the question decided and the (1) 1 Jur. 577. (2) l Dr. & Sm. 475. 478 NEW BRUNSWICK EQUITY CASES. 1892. grounds of his decision, and whether the case is one of which he might judicially entertain a reasonable doubt." Robertson v. There are many cases in which the Judge cannot St John City ^ ° railway Co. feel any doubt. Here, when I consider what might be Palmer, J. the probable injury which might result from this order if acted upon in case the appeal should be ultimately successful, I asked the Solicitor-General what injury he could suggest, and he did not suggest any, except the trouble and expense of bringing the books here, and he rather said that these defendants thought that the appli- cation was not made bona fide, and they would not give it. There is certainly nothing in the case which would induce me to think that the application was not bona fide, and when I am to consider this injury, compared to the injury which might possibly result to the other side from the delay, I think there is little reason for the stay, but if the defendants had so far complied with the order as to file the affidavit of what documents they had relating to the matters in dispute, I might have seen a reason to have stayed the rest of the order, but this they have not done. Then, as to the other ground as to whether I have any judicial doubt as to the correctness of my decision. I certainly have not. I cannot even suggest an argu- ment why the plain terms of the statute should not be complied with. On the other hand, I have asked the plaintiff's counsel in the case to state what protection I should make to prevent loss to their client. They stated the point that the bill was filed for the purpose of preventing the misapplication of the funds of the com- pany, and also alleged a previous making away with the funds, and asking for an account of such funds, and that the books and documents were out of the jurisdiction of the Court, and there was great danger that delay would result in the destruction of the property. Upon the whole, I think in case I cannot secure the plaintiff from loss by reason. of the delay, that I will follow the course that Lord Cottenham pursued in Storey v. Lord John George Lennox (3). That was a motion on (3) 1M.4C. 685. NEW BRUNSWICK EQUITY CASES. 479 1 behalf of the defendant that the execution of an order 1892. for the production of documents might be stayed pend- bobebtson ing an appeal to the House of Lords', and the Lord ST Jo hn city Chancellor there said: "When it is stated that the ap- Bail ^J Co - peal will be useless if the execution of the order is not Palmer ' J - stayed, a very strong ground for staying the execution is, no doubt, laid; but I do not think that such a reason is absolutely conclusive, because there would then be an encouragement to make applications like this upon interlocutory matters, which would be very inconveni- ent to the practice of the Court. But in this case there is another circumstance, namely, that the suspension' of the order will be a delay to the demand of the defendant, who is the plaintiff at law, although an injury to the other side may possibly result from the delay. These two circumstances concurring, induce me, under the particular circumstances of the case, to stay the execu- tion of the order, pending the appeal. If Mr. Wigram's clients suggest any precaution as being necessary to pre- vent irreparable loss to them, I will make that precau- tion a condition of the order." I will not follow that decision with reference to the costs, but make the ■ plaintiff's costs of this application costs in the cause. I will stay the proceedings if the defendant Zebley gives security to the satisfaction of Philip Palmer, Esq., barrister-at-law, by recognizance entered into before him, by two sureties in the sum of 15,000 each, conditioned that the defendant Zebley will abide by and obey and perform any order or direction as to him or his representatives that may hereafter ulti- mately be made in this cause by decree or otherwise, and that the stay with reference to the other defendant be upon the same terms. If this order is not complied with within ten days then this application to be dismissed with costs. 480 NEW BRUNSWICK EQUITY CASES. 1892. GASSIDY v. CASSIDY et al. bep em er . Partition suit — Refusal of amicable partition — Costs. Where a co-tenant refused to amicably partition a piece of land, and proceeded to strip it of its timber, the costs of a partition suit were ordered to be paid by him, and made a charge upon his share of the proceeds of the sale. The facts sufficiently appear in the judgment of the Court. A. I- Trueman, for the plaintiff. The defendants did not appear. 1892. September 5. Palmer, J. : — This is a bill for partition of land of small value in Carleton county. It appears by an allegation in the bill that the plaintiff applied to the defendant Lewis P. Cassidy to have an amicable partition, and that he re- fused to do so, and went on without regard to the rights of his co-tenants in common to strip the land of valuable timber. Having failed to appear, the bill was taken pro confesso against him, which amounts to proof of the alle- gations in the bill, and consequently he should pay the costs occasioned by the suit. No doubt, where a suit is brought for the honest purpose of dividing land, and for which none of the co- tenants is to be blamed, and none of them has applied to the others to have an amicable division, the costs of all parties are to be paid out of the estate. But I advise practitioners, particularly with reference to lands of small value, to take care before they bring a suit in this Court for the purpose of partition, that in cases where the parties are sui juris they take measures to try if pos- sible to have the property either sold or divided without the costs that a suit would necessarily involve. The result of a suit for the division of a small piece of wilder- ness, or even a large piece of wilderness land, is destruc- tive of the property itself, and eats up the whole of it, or, as the common expression is, it is divided among the NEW BRUNSWICK EQUITY CASES. 481 lawyers instead of among the real claimants. That such 1892. should be the case is a scandal upon the administration cassidy of justice, and while I am sitting in this Court I shall, CIlBB -Zy et ai. as far as the law will enable me, prevent it being done, Pal ~ );r . and, therefore, while I am willing, when necessary suits are brought, to see that the gentlemen engaged in them are liberally and properly paid, I am not willing that suits should be either brought or defended for the purpose of making costs; and if not for that purpose, if persons who should know better have either gone into a defence or the suit improperly, I shall exercise my discretion when dealing with the question of costs. To persons who undertake the responsibility of a solicitor in this Court, I therefore say again, that I warn them to avoid, if possible, any proceedings that may look like those I have indicated. The order will be that it be referred to a referee to sell the property; the proceeds to be divided in the man- ner prayed for in the bill; that the defendant Lewis P. Cassidy pay the costs of the suit, and that his proportion of the proceeds of the property be first applied to pay these costs; and that in the meantime the plaintiff's costs be first paid out of the share if the defendant Lewis P. Cassidy does not otherwise pay them. The balance of the costs are to be paid pro rata out of the shares of all the other parties to the suit, both plaintiff and defendants. I reserve any other question that may be in the case, with liberty to either party to apply. By the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), s. 205, " The costs of all parties to any suit brought for the partition of lands, to he ascertained hy and taxed by the clerk, shall be shared and borne by the several parties to such suit ratably and in proportion to the value of their respective interests in the lands and premises partitioned, unless the Court otherwise orders; the said costs shall be and remain a lien upon the respective shares of the several parties in the lands partitioned, or in the proceeds of the sale thereof, for the amounts to he paid by them respectively until paid; provided always, that if the Court is of opinion that a plaintiff has needlessly commenced a suit for parti- tion of amy lands or other property, or that any party interested in a partition suit, whether a plaintiff or a defendant, has with- out what the Court may deem sufficient reason, refused either EQ. cas. — 31 Casbidt et al. 482 NEW BRUNSWICK EQUITY CASES. 1892. before or after the commencement of such suit to agree to a ' public sale on two months' notice, or a.n amicable partition of Cassidt such land or other property without sale or partition by the Court, the Court may in its discretion compel such plaintiff or party to pay the costs of suit, or deprive such plaintiff or party of his costs in any portion thereof." Where in a partition suit one of the defendants did not appear at the hearing, and his answer was unsupported by evidence, and was assumed by the Court to be unnecessary, he was held not entitled to any costs: Shields v. Quigley, 1 N. B. Eq. 154. In the English Court of Chancery, prior to the Partition Act, 18G8 (31 & 32 Vict. c. 40), the rule was that no costs in a partition suit were given to either party up to the hearing, and that the costs of issuing, executing and confirming the com- mission should be borne by the parties in proportion to their respective interests, or if the estate was sold, these costs were to be paid out of the proceeds of the sale in the first place. No costs were given of any proceedings subsequent to the com- mission: Agar v. Fairfax, 17 Ves. 533; Calmady v. Calmady, 2 Ves. 569; Baring v. Nash, 1 V. & B. 554; Jones v. Robinson, 3 DeG. M. & G. 913; Elton v. Elton, 27 Beav. 632; Belcher v. Williams, 45 Ch. D. 510, though in Elton v. Elton, supra, it seems that the costs of a hearing on further considera- tion would have been included in the costs to be borne by the parties in proportion to their shares. And see Leslie v. Dungan- non, 12 Ir. Ch. Rep. 205. Where a decree for partition was made at the hearing without a reference or commission, no costs were given on either side: Collinson v. Collinson, Seton, 572. If a defendant by his conduct rendered the suit necessary, or in- creased the expense, he might be ordered to pay so much of the costs as had been thereby occasioned, or his own costs.: Hill v. Fulbrook, Jac. 574; Morris v. Timmins, 1 Beav. 411. The practice in England is now governed by the Partition Act, 1868, section 10 of which provides that " in a suit for parti- tion the Court may make such order as it thinks just as to costs up to the time of the hearing," and under this section the Court is held to have a general discretion in the matter: Simpson v. Ritchie, L. R. 16 Eq. 103, but the practice is that the entire costs up to, as well as subsequent to the hearing, should, in the case of a sale, be paid out of the proceeds, or in the case of a partition, should be borne by the parties ratably, in proportion to their respective interests; unless there are special circumstances arising from the conduct of any of the parties which would in- duce the Court to apportion the costs otherwise: Miller v. Marriott, L. R. 7 Eq. 1; Cannon v. Johnson, L. R. 11 Bq. 90; Ball v. Kemp-Welch, 14 Ch. D. 512. In Catton v. Banks, [1893] 2 Ch. 221, 224, Kekewich, J„ said: "It is settled practice to allow the costs of what is commonly called a ' partition a.ction ' — that is, an action in which property is sold for the purpose of distri- buting the proceeds among two or more parties entitled thereto out of the entire proceeds of sale; and so long as the costs in- curred in respect of each share are roughly of about the same amount, the rule works fairly to all concerned, and each party entitled gets, in the ultimate result, a sum calculated on the basis of his paying the share of the entire costs exactly propor- tioned to his share in the property sold. The fairness of the rule would be somewhat disturbed by the costs incurred in respect of any one share largely exceeding those incurred in respect of the other shares. But it is not usually necessary or right to inquire into such matters, the broad view being that all the costs properly incurred in order to realization and division NEW BRUNSWICK EQUITY CASES. 483 are incurred on behalf of all the proprietors." Discussing the 18 g2 way the Court's discretion under the Act has been exercised, North J., in Belcher v. Williams, 45 Ch. D. 510, says: " The usual cassidy practice seems to me beyond all dispute to have been to> give «• , the costs of all parties out of the estate. That was done by Vice- ^ ASSIDy • Chancellor Malins soon after the Act was passed in Osborn v. Osborn, L. R. 6 Eq. 338; by Lord Romilly, M.R., in Miller v. Marriott, L. R. 7 Eq. 1; by Vice-Chancellor Malins in Leach v. Westall, 17 W. R. 313; by Lord Romilly, M.R., again in Cannon v. Johnson, L. R. 11 Eq. 90; by Lord Selborne in Simpson v. Ritchie, L. R. 16 Eq. 103; and by Sir George Jessel, M.R., in Ball v. Kemp-Welch, 14 Ch. D. 512. I have not attempted to trace the practice any further, and I am not sure whether I could have done so. The practice appears to have become settled, and probably the point was not brought before the Courts afterwards. In Simpson v. Ritchie, Lord Selborne, L.C., said : ' Having regard to the 10th section of the Partition Act, 1868, it cannot be said that the Court is bound by the old rule as to the costs of parti- tion suits. It is impossible to lay down a general rule- on the subject; and there may be cases in which the Court, in the exercise of its discretion, will follow the old practice; but in this case I think the costs ought to be paid out of the estate.' That, as I have said, is, I think, the general rule, though there are certain exceptions to it. In Landell v. Baker, L. R. 6 Eq. 268, Lord Romilly, M.R., required each of the parties to pay his own costs up to the hearing, thus following the old practice. That was soon after the Act was passed; hut in the late case of Miller v. Marriott, L. R. 7 Eq. 1, he preferred to follow the decision of Vice-Chancellor Malins in Osborn v. Osborn, L. R. 6 Eq. 338. In two other cases— Wilkinson v. Joberns, L. R. 16 Eq. 14, before Lord Selborne, and Porter v. Lopes, 7 Ch. D. 358, before Sir George Jessel — no costs were given up to the trial; but both those cases depended on special circumstances, and in each of them the general rule was recognized to be that which I have stated." In Richardson v. Peary, 39 Ch. D. 45, where a partition inquiry was directed, but a sale refused, the same learned Judge adhered to the old rule in Chancery by giving no costs up to the date of the inquiry and ordering the subsequent costs to> be borne rat- ably. In Belcher v. Williams, 45 Ch. D. 510, North, J., held that the rule which exists in administration, that, as regards an in- cumbered share, only one set of costs can be allowed to be shared between the mortgagor and mortgagee of the share, does not apply to a partition action; and that both mortgagor .and mortgagee should, as a rule, have their costs out of the estate. In Catton v. Banks, [1893] 2 Ch. 221, Kekewich, J., refused to follow this decision, holding that only one set of costs should be allowed out of the entire proceeds of sale in respect of each share of the property which those proceeds represented. In the case of infants and parties under disability where partition alone is ordered, their costs are charged upon their shares which may be sold for the purpose of raising the costs: Cox v. Cox, 3 K. & J. 554, following Singleton v. Hopkins, 25 L. J. Ch. 50. In Thackeray v. Parker, 1 N. R. 567, it appearing to be for the benefit of infants that a sale should take place for thejmrpose of raising the costs charged upon their shares, and the parties sui juris desiring a sale, Wood, V~C, directed the entirety to be sold before partition. In subsequent cases this practice has been followed, and the jurisdiction is established of selling the estate and dividing the purchase money without a partition: Davis v. Turvey, 9 Jur. N. S. 954; Hubbard v. Hubbard 2 H. & M. 38; Capewell v. Lawrence, 8 L. T. N. S. 603; Shepherd v. Churchill, 25 Bea.v. 21; France v. France, Young v Young L. R. 13 Eq. 173, 175 n. 484 NEW BRUNSWICK EQUITY CASES. 1892. BUEPEE et al. v. THE AMERICAN BOBBIN SPOOL September*. AND SHUTTLE COMPANY ET AL. Practice — Interrogatories — Sufficiency of answer — Exceptions. Where an interrogatory contains a number of questions, each dis- tinct and complete in itself, some of which are fully answered, an exception for insufficiency must not be to the whole answer, but must point out in what particular the interrogatory is not sufficiently answered. The plaintiffs, George E. E. Burpee and William F. Harrison, were the owners of a leasehold property in Kings county, known as the Piccadilly Spool Works, and consisting of buildings, plant, machinery and tools, and a tract of timber land. In or about the month of De- cember, 1891, they entered into negotiations with the defendants for the sale to them of the property. After some correspondence the plaintiffs offered to sell for $3,500 of stock in the defendant company and $175 in cash, half of the stock to be preferred and half common stock. This offer was accepted by letter, dated Decem- ber 30th, 1891. On the 7th of March following plaintiffs executed and delivered to the defendants conveyances and assignments of the property, and these were register- ed in the registry office of Kings county on the 23rd of March. On the 21st of March defendants mailed to the plaintiffs the defendants' cheque for $175 and the stock certificates. The cheque on being presented for pay- ment was dishonoured. On or about the 26th of March the defendants made an assignment for the benefit of their creditors. The plaintiffs by their bill charged that at the time of transferring their property to the defend- ants the defendants were aware that they were insol- vent, and that their stock was worthless, and that they concealed this information from the plaintiffs, and prayed that their conveyances to the defendants might be delivered up to be cancelled, and ordered to be can- celled on the records, and that the sale be declared void. The bill of complaint contained, inter alia, the fol- lowing paragraphs : NEW BRUNSWICK EQUITY CASES. 485 14. " Tliat on the same day, the twenty-sixth day of 1892. March (1892), the Globe and Gazette, two public news- BnBPEE et ttl papers published in the city of St. John contained notice TheA „ ebic/i , that the said defendant company had made an assignment ^i> b shuttlb for the benefit of its creditors to the defendants William Co - et aL A. French and Leverett S. Tuckerman, which notice is as follows: ' Woonsocket, E.I., March 26. — The American Bob- bin Spool and Shuttle Company syndicate, which has lately secured control of nearly all the factories in its line of business in this country, has assigned for the benefit of its creditors to Wm, A. French and L. S. Tuckerman, of Boston; George M. Endicott is president and Edwin A. Jones treasurer of the company. L. S. Tuckerman, one of the assignees of the American Bobbin Spool and Shuttle Co., says a great deal of the company's paper is held in Boston, and that it is all good. Judge Lowell said to-day that a statement of liabilities and assets of the company will be issued Monday.' " 15. " That the said cheque for one hundred and seventy-five dollars was presented for payment at the Merchants Bank of Halifax, at Newcastle, where the same was drawn, and dishonoured, and is now unpaid and in the possession of the plaintiffs." 16. " That a meeting of the said defendant company was called to be held at Portland, Maine, on the tenth day of March last past, which meeting the plaintiffs be- lieve was duly held, and the plaintiffs charge that at the time the said transfers of said property made and handed over, and said certificates of stock and cheque given, the defendant company knew that the said company would require to assign, and that tbe said stock was worthless, and concealed the said knowledge from the plaintiffs." Interrogatories were delivered for the examination of the defendants, which contained, inter alia, the fol- lowing, viz.: 14. " Is it not true, as alleged in the fourteenth para- graph of the plaintiffs' bill of complaint in this cause that on, the same day, the 26th day of said month of March, or on some other and what day, the Globe and Gazette, two public newspapers published in the city of 486 NEW BRUNSWICK EQUITY CASES. 1892. St. John, or one and which of them, contained notice buepbe et cd. that the said defendant company, the American Bobbin theAmemcan S P°°1 and Shuttle Company, had made an assignment AND B SHn?T° L °E L for the benefit of its creditors to the defendants, William co. et ai. ^ French and Leverett S. Tuckerman, or how other- wise? Is not a copy of said notice correctly set out in said fourteenth paragraph of said bill? If defendants say it is not so set out they are hereby required to set the same out correctly in their answer to this interro- gatory. Is it not true that the said defendant company did assign for the benefit of its creditors to the defend- ants, the said William A. French and Leverett S. Tucker- man 1 , or to some other and what person or persons, aud did not such assignment cover or include the said Picca- dilly Spool Works and property sold, or intended so to be, by the said plaintiffs to the said defendant company, or some and what part of it or how otherwise? Is not the said defendant company insolvent or m financial straits, or how otherwise? " 15. " Was not the said cheque for one hundred and seventy-five dollars drawn on the Merchants Bank of Halifax at Newcastle, New Brunswick, and was not the same presented for payment at said Merchants Bank of Halifax at said Newcastle and dishonoured, or how otherwise? Is not the same now unpaid and in the pos- session of the plaintiffs or how otherwise? " 16. " Is it not true, as alleged in the sixteenth para- graph of the plaintiffs' bill of complaint, that a meeting of the said defendant company was called to be held at Portland, Maine, on the tenth day of March last past, or at some other and what place and time, and was not the said meeting duly held? Is it not true that at the time the said transfers of said property were made and handed over, and said certificates of stock and cheque given, that the defendant company knew that the said company would require to assign, and that the said stock was worthless, or when did the said company first have such knowledge? Is not said stock of no market value? Did not the said defendant company conceal said know- ledge from the plaintiffs, or in what way did the said NEW BRUNSWICK EQUITY CASES. 487 defendant company give and communicate said know- 1892. ledge to the plaintiffs or any of them, and when did they bukfee «t ai. V. do SO? TheAmebican Bobbin Spool To these interrogatories the defendants answered as and shuttle ° Co. et at. follows: . i , ! i 14. " The said defendant company do not know whe- ther on the twenty-sixth day of March, or on any day, the said newspapers contained notice that the said de- fendant company had made an assignment for the benefit of its creditors, or whether such alleged notice is cor- rectly set out in the fourteenth paragraph of the plain- tiffs' bill, nor have they any information or belief in reference thereto, as they never saw the said newspapers, stated to contain such notice." 15. " The said cheque was duly drawn on the said bank for the said sum as alleged in the fifteenth para- graph of the plaintiffs' bill by the duly authorized agent of the said defendant company, and the defendant com- pany believe the said cheque was presented at the said bank and dishonoured as alleged, for some reason un- known to the defendant company, and although the said defendant company then had sufficient funds in said bank to protect and pay the said cheque. The said cheque has not been returned or tendered to the said defendant company, and they do not know where or in whose pos- session it now is." 16. " It is true that a meeting of the said defendant company was called to be held at Portland, Maine, on the tenth day of March last, and the said meeting was duly held. The defendant company deny that at the time the said transfers of the said property were made and handed over, and the said certificates of stock and cheque given that the defendant company knew that the said company would require to assign, and that the said stock was worthless. At the time the said certificates of stock and cheque were given the said defendant company did not know that the company would require to assign, and that the said stock was worthless. In consequence of matters trans- piring subsequent to said meeting the company considered 488 NEW BRUNSWICK EQUITY CASES. 1892. it was in the interest of all parties to make an assign- burpee et ai. ment, and this was the first knowledge that the company the American would require to assign. The said defendant company and B s I hutt°e L cannot express any opinion as to whether the said stock co.etai. jg Q f ni0 market value. They believe and admit that under the present circumstances the said stock could not be sold in the market, and in that sense it may be said to have no market value. The said defendant company deny that they concealed such knowledge from the plain- tiffs, as they believe the plaintiffs were fully aware of the proceedings and assignment of the defendant com- pany." To these answers the plaintiffs filed the following exceptions : 1. " That as to the fourteenth interrogatory pro- pounded by the plaintiffs in the form following, that is to say, ' Is it not true as alleged in the fourteenth para- graph of the plaintiffs' bill of complaint in this cause, that on the same day, the twenty-sixth day of said month of March, or on some other and what day the Globe and Gazette, two public newspapers published in the city of St. John, or one and which of them contained notice that the said defendant company, the American Bobbin Spool and Shuttle Company, had made an assignment for the benefit of its creditors to the defendants William A. French and Leverett S. Tuckerman, or how other- wise? Is not a copy of said notice correctly set out in said fourteenth paragraph of said bill? If defendants say it is not so set out they are hereby required to set the same out correctly in their answer to this interroga- tory. Is it not true that the said defendant company did assign for the benefit of its creditors to the defend- ants, the said William A. French and Leverett S. Tucker- man, or to some other and what person or persons, and did not such assignment cover or include the said Picca- dilly Spool Works and property sold, or intended so to be, by the said plaintiffs to the said defendant company, or some and what part of it, or how otherwise? Is not the said defendant: company insolvent or in financial straits, or how otherwise? ' and as to the matters and things in the fourteenth paragraph of the plaintiffs' bill NEW BRUNSWICK EQUITY CASES. 489 of complaint set oat, the said defendant company hath 1892. not made any answer nor stated whether or not it is true bubpee et ai. that the said defendant company did assign for the bene- Thb A i5 KI0AN fit of its creditors to the defendants, the said William A. an^shuttI"^ French and Leverett S. Tuckerman, or to some other Co - etai - and what person or persons, and whether such assign- ment did not cover or include the said Piccadilly Spool Works and property sold, or intended so to be, by the said plaintiffs to the said defendant company, or some and what part of it, or how otherwise; or whether the said defendant company is not insolvent or in financial straits, or how otherwise? The said defendants, the American Bobbin Spool and Shuttle Company as to all or any of these matters has not to the best of their knowledge, information or belief answered either in whole or in part." 2. " That as to the matters and things set forth in the fifteenth paragraph of the plaintiffs' bill in this cause, and as to the fifteenth interrogatory propounded by the said plaintiffs in the words and form following, that is to say, ' Was not the said cheque for one hundred and seventy-five dollars drawn on the Merchants Bank of Halifax at Newcastle, New Brunswick, and was not the same presented for payment at said Merchants Bank of Halifax at said Newcastle and dishonoured, or how otherwise? Is not the same now unpaid and in the pos- session of the plaintiffs, or how otherwise ? ' the said defendant company have not answered, stated and set forth whether or not it is not true as it is alleged in the fifteenth section of the said plaintiffs' bill that the said cheque is now unpaid, and that the said defendant com- pany have not sufficiently answered the said interroga- tory." 3. " That as to the matters and things set forth in the sixteenth paragraph of the said plaintiffs' said bill of complaint in this cause, and as to the sixteenth inter- rogatory propounded by the said plaintiffs in the words and form following, that is. to say: 'Is it not true as alleged in the sixteenth paragraph of the plaintiffs' bill of complaint that a meeting of the said defendant com- pany was called to be held at Portland, Maine, on the 490 NEW BRUNSWICK EQUITY CASES. 1892. tenth day of March last past, or at some other and what bdbpee et ai. place and time, and was not the said meeting duly held? the American I s it not true that at the time the said transfers of said ani?shut P tle property were made and handed over, and said certifi- Co - et "'• cates of stock and cheque given that the defendant com- Paimer.j. pany knew that the said company would require to as- sign, and that the said stock was worthless, or when did the said company first have such knowledge? Is not said stock of no market value? Did not the said defen- dant company conceal said knowledge from the plain- tiffs, or in what way did the said defendant company give and communicate said knowledge to the plaintiffs or any of them, and when did they do so? ' the said de- fendant company having denied that they knew at the time the said certificates of stock and cheque were given that the said company would require to assign, have not answered, stated or set forth when the said company did first have such knowledge; and the said defendant company having denied that they concealed such know- ledge from the plaintiffs have not answered or set forth in what way the defendant company gave and communi- cated said knowledge to the plaintiffs or any of them, and when they did so, nor hath the said defendant com- pany otherwise sufficiently answered the said sixteenth interrogatory." Argument was heard September 1st, 1892. James Straton, for the plaintiffs. H. E. McLean, for the defendants. 1892. September 9. Palmes, J. : — I will state the view I have as to the practice of the Court with regard to answering and exceptions to an- swers. The point has not been argued or taken before me; if taken I might have dealt with it in a different way, but I mention it now because it is almost impossible for me to perform the labour necessary to decide matters of this kind unless a different practice is pursued. The rule for framing a bill in this Court is this : By our sta- tute the bill must state shortly all the material facts NEW BRUNSWICK EQUITY CASES. 491 on which the plaintiff relies for the relief he asks the 1892. Court to give, and every material fact of which he means buepeec* at to offer evidence must be distinctly stated in the bill, or The American otherwise he will not be permitted to give evidence of ^shuttle such fact. A general charge or statement, however, of oo^ot the material fact is sufficient, and it is not necessary to Palmer ' J - enlarge minutely on the different matters alleged in order to let them in as proof. I make these observations because it is the very foundation of exceptions to answers. All practitioners must first understand exactly what facts make out their case and then state them, and they are only at liberty to prove under the bill generally as to the allegations, and before it can be determined whether the defendant is obliged to answer interrogatories founded on the bill the bill must be referred to, and the interrogatories must be directed _to what is alleged, because it is ap- parent that anything that is not alleged is not mate- rial to the case, and therefore need not be answered. It follows that on these allegations you frame your inter- rogatories, and the rule is that the plaintiff is entitled to have the defendant's oath upon any subject or with reference to any fact that is material to his case; in other words, that has been properly alleged in the bill, and having that in view a practitioner can tell at once what is material, and what he ought or what he ought not to answer, and when he does answer he has to answer not only what he knows, but also upon his infor- mation and belief as to the matters alleged, and having got that far the answer is put in, and if the other side wants to test its sufficiency he does so by what is called exceptions. And while any form of exceptions is not very often followed in the Court, yet formerly you had to allege in the exceptions the parts of the bill to which the interrogatory applied, as well as show particularly how it was not answered. Afterwards the Court did away with this preliminary part of the exceptions, so that a plaintiff need not now refer to the interrogatory or to the bill itself, and the best form I have seen will be found in 2 Grant's Ch. Prac. 313, as follows: 492 NEW BRUNSWICK EQUITY CASES. 1892. " For that the said' defendant hath not in and by bubpee et ai. his said answer to the best of his knowledge, remem- the American France, information and belief set forth and discovered," Bobbin Spool j. and Shuttle eLL. Co. et al. Palmer, J. Sometimes, as in this case, the interrogatories are numbered, and contain a great variety of questions in one, and in point of fact one interrogatory numbered is in reality a great many questions. Take the interroga- tory in the first exception in this case, and that would be a perfectly proper exception if the defendant company had not answered any of these matters, but on the argu- ment it was admitted by counsel, and it is perfectly obvi- ous on the face of it that the greater part of it has been answered, and the first part is an entirely satisfactory answer. Then see what is the consequence of that. The exception would be too large, and it would not point out particularly what is not answered, but seemingly professes to say that none of it is answered. What fol- lows from that? I have to look through all this matter and it involves a large amount of labour. I have had occasion to look into the matter, and the first time it came before the Court it was heard by Sir John Leach, than whom, perhaps, there never was a more able Equity lawyer, and certainly no man after Lord Hardwicke did more for putting the practice of the Court of Chancery in England on a right basis than did Sir John Leach. In Wagstaff v. Bryan (1) the marginal note is this: " Statements in an answer are impertinent if they are neither called for by the bill nor material to the defence with reference to the order or decree which may be made on the bill. Statements in an answer to a bill of revivor which merely show irregularity and misconduct in the former proceedings in the suit are impertinent." " An exception for impertinence fails if any part of the passage included in it be not impertinent." And the Master of the Bolls in that case held that each exception must be supported in toto or must fail altogether; that the exception must be overruled, if it included any one passage which was.not impertinent; and (1) 1 Kuss. & M. 30. NEW BRUNSWICK EQUITY CASES. 493 that the sixth order might he completely evaded if a 1892. different rule were adopted; because a party would then BuEPEEe(a ,, be left at liberty to file sweeping general exceptions, and TheAi £ EEI0AN take the chance of succeeding on some small portion of B °™ll v s ™£ a vast mass of matter. co.jt_ai. That was only applicable to exceptions for imperii- Palmer, j. nence, and was not thought to apply, and did not apply to exceptions as to insufficiency. The matter came before Vice-Chancellor Kindersley, in Higginson v. Bloekley (2). He had to consider the question of three exceptions, and he said he would take the third by way of illustration as his observations on that would apply to the rest. " The exception took five or six questions seriatim, though each was in fact distinct and complete in itself, and this was done probably because all the questions were included under one number in the interrogatories. It was admitted that all these ques- tions but one were fully answered; and under these cir- cumstances could the Court allow an exception in this form? It was, at all events, difficult to conceive a more inconvenient form of exception. To assert in the written exception that the defendant had not answered six ques- tions, and then at the bar to admit that five were an- swered, but one was not, was at least very improper and inconvenient in point of form. One obvious inconven- ience was, that if the defendant was willing to submit to the exceptions, and to put in a further answer, he did not really know what the plaintiff complained' of, and was unable to submit unless he went through the whole of the questions and answered them over again — a course both expensive and unnecessary. The plain- tiff asserts that the defendant has not answered A. nor B., and thus takes upon himself the onus of proving that the defendant has not answered any of the questions. This might appear somewhat technical, but it was the principle on which the Court acted in Wagstaff v. Bryan (3). It was not a case of one question involving many branches, but of actually distinct ques- tions, each complete ini itself. For these reasons he must (2) 1 Jur. N. S. 1104. (3) 1 Euss. & M. 30. 494 NEW BRUNSWICK EQUITY CASES. 1892. overrule the exceptions, as the same principle applied BuBPBEedti. to a11 of them, on which he had reserved his opinion. the albican If there had been reason to think that overruling ^nd B sotttlb the exceptions would prevent the plaintiff from ob- co.jtai. taining justice when the cause came to a hearing, his Palmer, j. Honour would modify the order by allowing leave to amend the exceptions; but for the purposes of the suit it did not signify in the smallest degree whether the ex- ceptions were allowed or disallowed." I could not more distinctly lay down the rule appli- cable to the matter. And Vice-Chancellor Sir John Leach, in Hodgson v. Butterfield (4), said : " If the plaintiff complains that a particular interrogatory of the bill is not answered he must state the interrogatory in the very terms of it, and cannot impose upon the Court the trouble of first deter- mining whether the varied expressions of the interroga- tory and the exception are to be wholly reconciled. But as this defendant has submitted to answer these excep- tions he comes too late with the objection now made and must answer fully." And Daniell (5) lays down the rule as follows : " Ac- cording to the modern practice, the tenor of the bill and substance of the answer are omitted, and the plaintiff proceeds at once to point out specifically the interroga- tories or parts of the interrogatories which are unan- swered by separate exceptions, applicable to each part. . -• . It is not necessary that the exception should fol- low the very words of the interrogatory, provided that it plainly points out the interrogatory to which it refers, and does not vary therefrom in any important par- ticular." See also Brown v. Keating (6) and Duke of Bruns- icicJc v. Duke of Cambridge (7). As to these exceptions themselves, the first one un- necessarily sets out the whole interrogatory as if it was to that, and it further states that the exception is as to matters and things in the 14th paragraph of the bill set out, and then the objection is that the company had not made an answer whether they did assign for the benefit (4) 2 S. & S. 236. (6) 2 Beav. 58. (5) 4th Am. ed., p. 763. (7) 12 Beav. 279. NEW BRUNSWICK EQUITY CASES. 495 Bobbin Spool. and Shuttle Co. et al. Palmer, J. of their creditors, nor whether said company was involv- 1892. ed or in financial straits. It is apparent that no such BnKPEE et ai allegation is made in that paragraph of the bill — all that THE A] J EBICAK is there alleged is that a notice had been published that they had assigned. I am inclined to think the exception should have been to matters and things alleged in the bill generally, or more properly, the pleader should have left out entirely both the interrogatory and any allusion to the bill, and merely complained, as he has done by bis ex- ception, that that part of the interrogatory had not been answered. I am not prepared to say that there is not quite sufficient in the bill itself to have authorized the question propounded, and the defendant would have been obliged to answer it. It follows that I must overrule the first exception. As to the second exception, the complaint is that the defendant has not answered as to the matters set out in the 15th paragraph of the bill, which distinctly alleges that the cheque referred to is now unpaid, and in the possession of plaintiff. This the interrogatory dis- tinctly asks, and it is not answered, and it might be ma- terial, and is clearly admissible in evidence in the case, and, therefore, this exception is allowed. The third exception is founded upon not discovering matters and things set forth in the lGth paragraph of the bill, which distinctly alleges that at the time of the transfer and handing over of the stock and cheque, which the bill seeks to set aside, that the defendants knew that the company would require to assign and their stock was worthless, and concealed said knowledge from the plain- tiffs. Upon such a statement as that it is material for the company to answer when they first had the know- ledge that the company would assign, and whether they had communicated it to the plaintiffs, and when and where. The interrogatory distinctly asked that, and it is not sufficiently answered; therefore, that exception must be allowed. As to the costs, the plaintiff will have to pay the costs of the first exception and the defendants the costs of the two latter. The defendant company will be al- lowed to file an amended answer in thirty days upon payment of the costs of the exceptions. 496 NEW BRUNSWICK EQUITY CASES. 1892. WEIGHT v. WEIGHT. September 15. Practice — Costs — Execution — The Supreme Court in Equity Act, 1890, (53 Vict. c. 4), ». 1U. Where no time is limited by a decree in a suit for payment of costs, a, further order for their payment must be taken out, after which an order for execution will be made ex parte. This was an application by the plaintiff under sec- tion 114 of the Supreme Court in Equity Act (53 Vict, c. 4) for an execution to issue to enforce payment of costs ordered to be paid in this cause by the defendant. By the decree in the suit it was ordered that the plain- tiff's costs be taxed by the clerk, and paid by the defen- dant. As no time was limited by the decree the question was whether execution could issue at once, or whether a further order should be made directing the defendant to pay the costs within a specified time after service of such order. The application was heard September 12th, 1892. R. LeB. Ticeedie, in support of the application. 1892. September 15. Palmer, J. : — Upon consideration I have concluded that the pro- per way for a party to proceed to collect costs, if he wishes to take out an execution, is to apply to the Court after taxation and get an order for their payment, after which an order for execution will issue on an ex parte application. This practice I will follow in the future. Section 114 of The Supreme Court in Equity Act, 1890 (53 Vict. c. 4), is repealed by 58 Vict. c. 18, s. 2, in order to get rid of the construction placed upon it, that an execution against pro- perty could not issue except upon order, and the following! section enacted in lieu thereof: " 114. For the purpose of enforcing a decree or order of the Court, execution may issue against the goods and chattels, lands and tenements, of the party liable to such decree or order, which execution may be according to form (21), and the Court shall also have power to enforce performance of its decrees and orders by execution form (20) against the body of the party liable to suoh decree or order. Executions against the body shall be executed according! to the tenor and effect thereof, and other executions in like manner and with like effect, NEW BRUNSWICK EQUITY CASES. 497 as executions issued on the common law side of the Supreme Court. The Court may at any time make an order for any _ such execution against the body, to issue on application of the party entitled to the same. The costs of such application shall be endorsed on the execution and levied thereunder." By s. 115 of 53 Vict. c. 4, " Where any person is by any decree or order directed to pay any money or deliver up or transfer any property real or personal to another, it shall not be necessary to make any demand thereof, but the person so directed shall be bound to obey such decree or order upon being duly served with the same without demand. Every order or decree requiring! any party to do an act thereby ordered, shall state the time after service of the decree or order within which the act is to be done." In Ex parte Wright, 32 N. B. 54, Praser and Hanington, JJ., held, Allen, C.J., dissenting, that the provision of section 115 requiring a decree to state the time after service within which the act thereby ordered is to be done, does not apply to the coses of a suit. Praser, J., was also of opinion, in which Hanington, J., concurred, that the practice of the Court, apart from the Act, does not require a time to be limited by the decree, and apparently it was also his view that where no time is limited costs are payable immediately upon taxation. Where a time is fixed by the decree for the payment of costs an en parte ord.r absolute will be made for an execution against the body on proof of service of the decree and non-payment of the costs: Kennedy v. Nealis, February 15, 1898, per Barker, J., and this is in accord with the former analogous Chancery practice in England. " Under the old Chancery practice payment of costs might be en- forced by a four-day order and attachment, but the more com- mon method was to issue a subpoena for costs, which directed the person to pay them immediately upon the service of that subpoena. Upon proof of service and non-payment pursuant to the terms of the subpoena an attachment issued, and then an order for sequestration": per Lindley, L.J., In re Lumley, Ex parte Cathcart, [1894] 2 Ch. 273. The attachment issued without notice: Morgan & Davey on Costs, 365. Notice was excused on the ground that the party had been advised of the time within which he had to act, and a second notice was superfluous. See per Jessel, M.R., in Thomas v. Palin, 21 Ch. D. 366. It is to be observed, however, that it is the view of some practitioners that an order for an' execution should not issue ex parte if the Act is to receive a strict interpretation, and that the fact that an applica- tion is made necessary by the Act indicates that notice should be given. Where no time is limited by the decree for the pay- ment of costs, Praser, J., apparently thought, as noticed supra, that they wire payable at once upon taxation. Quaere, as to whether an execution in such a case should be issued on an ex parte order. Where the decree does not fix a time for the payment of costs in a suit in which the defendant appeared and offered contest, a subsequent order fixing the time made ex parte is irregular', and an execution issued upon it is also irregular : Ex parte Wright, supra. The Supreme Court will not inquire into the regularity of an execution issued out of the Supreme Court in Equity on an application by habeas corpus for the discharge of a, person imprisoned under the execution: Ex parte Wright, supra. A party arrested under execution out of the Supreme Court in Equity for default in payment of costs is entitled to be dis- charged upon giving bail to the limits: Kennedy v. Nealis, Feb. 28, 1898, per Tuck, C.J. The application for an execution ap- EQ CAS.— 32 1892. Wbight V. Wbight. 498 1892. Wbioht V. Weight. NEW BRUNSWICK EQUITY CASES. parently must be made in open Court by motion. See the lan- guage of section 114, supra, and section 15 of the Equity Act '53 Vict. c. 4). " The words ' the Court ' mean the Court sitting in banc, that is a Judge or Judges- sitting in open Court, and a Judge means a Judge sitting in Chambers ": per Kay, L.J., Re B., [1892] 1 Ch. 463. And see Ex parte Irvine, 2 All. 516. This is in conformity with the practice in moving for a writ of attach- ment: Davis v. Galmoye, 39 Ch. D. 322. 1893. ■February 28. MacRAE v. MACDONALD et al. (No. 1. Post, p. 531.) Practice — Motion to take bill pro confesso — Service of Clerk's certificate. A motion to take a bill pro confesso for want of a plea, answer or demurrer, will be dismissed if the defendant has not been served six days previously with a copy of the Clerk's certificate of the filing of the bill, and that no plea, answer or demurrer has been filed. This was a motion to take the bill in this suit pro confesso for want of a plea, answer or demurrer. The facts appear in the judgment of the Court. H. Q. Fenety, for the plaintiff. A. H. Hanington, for the defendants. 1893. February 28. Palmer, J. :— This was a motion by the plaintiff in this suit to take the bill pro confesso for want of plea, answer, or demurrer. The defendants opposed the motion on the ground that they had not been served with a copy of the Clerk's certificate of the filing of the bill, and that no plea, answer, or demurrer had been filed; rely- ing upon section 94 of the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), which enacts as follows : " Every affidavit to be used in the said Court shall be expressed in the first person and divided into paragraphs, and every paragraph shall be numbered con- secutively, and, as nearly as may be, confined to a dis- tinct portion of the subject, and shall in every case be NEW BRUNSWICK EQUITY CASES. 499 filed after being used in the Court. Copies of all affida- vits (except affidavits of service of process or of service of any notice or other paper) and other writings intended to be used on any motion or petition of which notice has been given, shall be served on the opposite party six days at least before the day on which such motion is to be made or petition heard; copies of affidavits intended to be used in answer thereto shall be served at least three days before such motion, and copies of affidavits in re- ply (which shall be confined to new matter alleged in the affidavits in answer) shall be served one day before such motion, beyond which no affidavit shall be allowed." I think that by the proper construction of this sec- tion the Clerk's certificate is a writing, within the mean- ing of this section, and should be served on the opposite party six days at least before it can be used on the mo- tion. And as no copy of the Clerk's certificate has been served on the defendants or their solicitors, the motion, as there is not sufficient material without such certifi- cate upon which to make the order, must be dismissed. 1893. MacEae Macdonald et al. Palmer, J. MAY v. SIEVEWEIGHT. Debtor and Creditor — Deed of Assignment — General release — Release of Col- lateral securities — Mistake — Ignorantia legis neminem excusat — Creditor signing as trustee. — 1893. February 28. M. executed and delivered to the defendant a leasehold mortgage, and a bill of sale of personal property to secure the payment of $500 and $1,500 respectively. Subsequently M. executed and deli- vered to the defendant, as party of the second part, a deed of assignment rfor the benefit of her creditors, being parties of the third part. A condition in the deed stipulated that the parties of the second and third parts, in consideration of the sum of one dollar to each of them paid " did' severally remise, release and discharge the party of the first part of, from and against all debts, dues, claims and demands, actions, suits, damages, and causes and rlgiits of action which they then had or might thereafter have against the party of the first part, for or by reason of any other matter or thing from the beginning of the world up to that date." The defendant and other creditors executed the deed. The assignor was indebted to the defendant in no other amount than that se- cured by the mortgage and bill of sale. In a suit by the plain- tiff, a creditor of M., to have the defendant enter a discharge 500 NEW BRUNSWICK EQUITY CASES. 1 SQ^ an< ^ satisfaction upon the records of the mortgage, and. to dis- loyo. charge the bill of sale, and to have the same declared null and Mat void - v. Held, that the defendant had released the mortgage and bill of sale, Sieve-wbight. a nd that it was immaterial that he had no intention of releasing Allen - ? 1 J them, or that he was ignorant of the legal effect of his act. The facts sufficiently appear in the judgment of the Court. F. E. Barker, Q.C., and W. 0- Winslow, for the plaintiffs. G- G- Gilbert, Q.C., for the defendant. 1893. February 28. Sir John C. Allen, O.J. :— The bill in this case was filed by the plaintiffs on behalf of themselves and such other creditors of Mary E. McCullough as might become parties to the suit for the purpose of obtaining a decree directing the defend- ant to enter satisfaction and to discharge from the re- cords of the county of Gloucester a mortgage on certain leasehold property, dated the 2nd April, 1891, given to the defendant by Mary E. McCullough to secure the pay- ment of $500; and also to release and discharge a bill of sale of personal property between the same parties, given to secure the payment of f 1,500 to the defendant; and that the said mortgage and bill of sale might be de- clared to be null and void as against the plaintiffs ; and that the defendant should be directed to account for the property, and that the same should be administered un- der the direction of the Court; and that in the meantime the defendant should be restrained by injunction from assigning or transferring the mortgage and bill of sale, and from in any way disposing of the property thereby conveyed. The bill also stated that on the 18th May, 1891, Mary E. McCullough executed and delivered to the defendant a deed of assignment in trust for the benefit of her creditors of all her property, rights and credits. The parties to this deed were described as follows: "This indenture made the 18th day of May, 1891, between Mary E. McCullough, of Bathurst, etc., of the first part, and John Sievewright, of Bathurst, etc., of the second part, and the several persons and firms whose NEW BRUNSWICK EQUITY CASES. 501 names are hereunto subscribed and seals affixed, credi- 1893. tors of the said Mary E. McCullough, of the third part." ^ The deed then assigned and conveyed to the defendant S ievewbight. all the property of Mary E. McCullough, to hold the AIle ~ CJ . same in trust to convert it into money, and, after paying expenses, to apply the proceeds towards payment and satisfaction of the debts due the several persons of the third part who should execute the trust deed within two months from the date thereof by an equal dollar rate without any preference whatever. The deed also de- clared that the parties of the second and third parts, in consideration of the sum of one dollar to each of them paid, did severally " remise, release and discharge the party of the first part of, from, and against all debts, dues, claims and demands, actions, suits, damages, and causes and rights of action which they then had or might thereafter have against the party of the first part for or by reason of any other matter or thing from the beginning of the world up to that date." The defendant by his answer admitted that he took possession of the property as trustee, so assigned to him by Mrs. McCullough ; but alleged that it was subject to a prior claim for the amounts due to him on the bill of sale and mortgage given him by Mrs. McCullough which were preferential claims over the other creditors. The defendant was examined viva voce at the hearing of the case. It appeared by his evidence that on the 9th of May — nine days before the trust deed was executed — he had a correspondence with Mr. Winslow, in whose hands the plaintiffs' claim against Mrs. McCullough had been placed, and who asked for information respecting her affairs, in which he informed Mr. Winslow that her affairs were in a bad state; that her liabilities were $7,350; that she had goods on hand to the amount of $2,970, on which there was a bill of sale for $1,500; that there were probably $1,200 of good debts due to her, and that she was offering 25 cents on the dollar, payable in six and twelve months. The defendant also stated in his evidence that he had notified some of the largest creditors of his having a bill of sale before he executed the trust deed, but that the plaintiffs were not notified 502 NEW BRUNSWICK EQUITY CASES. / 1893. of it until afterwards, and then by correspondence with j^ Mr. Winslow. He also stated, subject to objection, that sievbwright. fle nad signed the trust deed as trustee but not as credi- AiienTc.j. t° r - ^ r - Winslow was also, examined as a witness 1 , and stated that he had communicated to the plaintiffs that the defendant held a mortgage and bill of sale of Mrs. McCullough's property, but that they were released by a clause in the trust deed which he had executed, and that he (Winslow) therefore advised the plaintiffs to ex- ecute the trust deed, and they did so. The substantial question in the case is whether the defendant, by executing the trust deed, has released his mortgage and bill of sale. The plaintiffs' contention is that he has done so, and I think they are right. The defendant, no doubt, did not suppose that he had released his securities by executing the trust deed; but the words of the release clause. appear to me to be beyond any doubt. There was no evidence that the de- fendant was a creditor of Mrs. McCullough for any amount except what was secured to him by his mortgage and bill of sale, and he stated in his evidence that he had signed the deed as a trustee and not as a creditor. To what then could his release apply except to his securi- ties? It would have no operation so far as he was con- cerned unless it applied to them. By the express words of the release the parties of the second and third parts to the deed released and discharged Mrs. McCullough from all debts, claims and demands, causes and rights of action which either of them had against her at the date of the deed. The defendant is the party of the sec- ond part in the deed, and the language of it is his own, for he drew it, and therefore could not have been taken by surprise as to its being a part of the deed. I think it is a matter of no importance that the plaintiffs knew when they executed the deed that the defendant claimed that his mortgage and bill of sale had priority over the claims of the other creditors. They never assented to such claim, nor did anything to induce the defendant to believe that they did. On the contrary, they executed the deed after the defendant had done so, and under advice that he had thereby released and discharged his NEW BRUNSWICK EQUITY CASES. 503 mortgage and bill of sale. It was no part of their duty 1893. to inform him that they intended to dispute his claim M ay to priority over them and other creditors. bdsvewbioht. It was contended on the part of the defendant that AUen, c.a. neither he nor the assignor of the trust deed intended that the defendant's securities should be released by his executing the deed; and that under those circumstances the Court would limit the operation of the release to the purpose for which it was intended. There is no evi- dence of what Mrs. McOullough's intentions or the de- fendant's intentions were on that subject; and even if there was evidence of it, I do not think it would affect the question. The plaintiffs would not be bound by their intentions; they clearly did not execute the deed with any intention of varying from the terms of the trust, Whatever Mrs. McCullough or the defendant may have thought about it. The case of Teed v. Johnson (1) is a strong authority in favour of the plaintiffs in this case. There the question was whether a surety was released by the terms of a composition deed with an assignment in trust for creditors, and the ground was taken that the assignee executed the deed, not as a creditor, but as a trustee, for the purpose of accepting the trusts, and not with the intention of releasing the defendant (one of the grounds relied on by the defendant in this case), and that if the deed operated to release the defendant it was executed by mistake and in ignorance that such would be its legal effect. The release in that case was sub- stantially the same as in this case, viz., that the parties of the second and third parts covenanted that they re- leased and discharged J. from all debts, claims, etc. A replication on equitable grounds stated that if the deed operated as a release of the debt it was executed in error and by mistake, and in ignorance that such would be the legal effect of it. This replication was demurred to. Alderson, B., said during the argument: "It seems to amount merely to this, that the plaintiffs did not mean to do that which they have done." That is substantially what the defendants say in this case. Martin, B., de- livering judgment said: "The deed operates by express (1) 25 L. J. Ex. no. 504 NEW BRUNSWICK EQUITY CASES. 1893. words to release every debt up to the day of the date; ^l~ and by its true construction the parties who executed it sietewbight. released every debt due from the original debtor to them Aiie^T"c j a ^ *ke time of the execution. Even, therefore, though the plaintiffs signed as trustees, the debt was barred." I cannot see any difference in principle between that case and the present one. The defendant also relied upon several other cases in support of his claim to be relieved from the effect of the release in the trust deed; but they were all cases of deeds executed under ignorance of material facts. Lyall v. Edwards (2), Turner v. Turner (3), and Gaudy v. Ma- mulay (4), depended on a different principle. In the present case there is no mistake of any fact in connection with executing the' trust deed. If there was any mistake on the part of the defendant in con- nection with it, it is that he did not know the effect his executing the release would have upon his securities, and this is a mistake of law for which the Court will not grant relief: Ignorantia juris neminem excusat; Story's Eq. Jur., ss. Ill and 138. It was also urged on behalf of the defendant that the release clause in the trust deed only amounted to a covenant not to sue the assignor, Mrs. McCullough. 1 cannot see the slightest ground to support that conten- tion. The release is absolute and unconditional, and even if there had been a parol agreement with Mrs Mc- Cullough that the release was not to operate to dis- charge her liability to the defendant it would not have had any effect. See Codes v. JSfash (o), Bateson v. Gos- ling (6), and Cragoe v. Jones (7), where the distinction between a release and a covenant not to sue is clearly pointed out. Another contention was that the evidence given at the hearing showed that neither the debtor, Mrs. McCul- lough, nor the defendant intended that the release in (2) 6 H. & N. 337. (5) 9 Bing. 341. (3) 14 Ch. Div. 829. (6) L. B. 7 C. P. 9. (4) 31 Ch. Div. 1. (7) L. B. 8 Bxch. 80. NEW BRUNSWICK EQUITY CASES. 505 the trust deed should operate as a discharge of the de- 1893. fendant's securities, but that he would thereby release ^ any debt he would have after realizing on his securities, sibvbweight. I need only say in answer to this that there was no evi- Aiie^Tc.j. dence of any such intention; and I might add that if there had been, it would not, in my opinion, hare helped the defendant's case, for the reasons which I have al- ready stated. And even if the defendant was a credi- tor beyond the amount secured to him, it is not probable that he could hold his security and claim a dividend under the trust deed. It was further contended that the validity of the securities was entirely a question between the debtor, Mrs. McCullough, and the defendant, and even if the plaintiffs were entitled to have the property conveyed to the defendant by the bill of sale and mortgage ap- plied to the payment of their debt, they have no right to have the securities set aside, particularly as there was no evidence that there would not be sufficient realized out of the estate outside of the property conveyed by the bill of sale and mortgage to pay the plaintiffs' claim. It is true that there is no such evidence, but the defend- ant in his answer states his belief that after paying the amounts secured to him by the bill of sale and mortgage, which he claims the right to, there will not be sufficient to pay the claims of the plaintiffs and the other credi- tors of Mrs. McCullough in full, but there will be suffi- cient to pay the general creditors a dividend of 25 per cent. This, of course, would depend upon the amount which is realized from the property conveyed to the de- fendant by the bill of sale or mortgage. As to the right to order the defendant to enter satisfaction of the mort- gage on the records of the county, and to release and discharge the bill of sale and to declare them null and void, I think the plaintiffs are entitled to have that done so far as their own debt is concerned; but as there 'is nothing to show that any other persons than the plain- tiffs have become parties to the suit, it might be that the amounts realized from those securities would be more than sufficient to satisfy the unsecured creditors of Mrs. McCullougb. In that case it would seem to be SlEVEWRIGHT. Allen, C.J. 506 NEW BRUNSWICK EQUITY CASES. 1893. unfair to the defendant to order him to release his mort- — gage and bill of sale; but I shall deal with that matter hereafter. As to the power of the Court to order those securities to be given up because they are released by the trust deed, I have no doubt that this is the substan- tial question in the case. See Shep. Touch. 342. I think, therefore, that the defendant has released all his claims and right of action against Mrs. McCul- lough under the mortgage and bill of sale, and that he should be directed to account for the proceeds thereof received or receivable by him under those securities, or either of them, and if not already restrained by injunc- tion, that he should be, from disposing of any of the property conveyed to him by either of the said securities, and from assigning and transferring them, or either of them, till the further order of the Court. I make no order at present respecting the discharge of the mortgage from' the records or the release of the bill of sale for the reasons previously stated; but re- serve those questions and any others that may arise in the case for further consideration, with the right of either party to apply. The principle is abundantly recognized in the authorities that if a creditor releases a debt -without a reservation of his securities the securities will become the property of the debtor: Cowper v. Green, 7 M. & W. 633, where Parke, B., quoted the following statement of the law from Sheppard's Touchstone, 342: " ' By a release of all debits, are discharged and released all debts then owing from the releasee to the releasor upon especialties or otherwise, all debts .also due upon statutes. And therefore if the conusor himself, or his land, be in execution for the debt, and he hath such a release, he must be discharged.' And Mr. Preston adds—' For, by releasing the debt, the security for the debt is released.' " And thus where a creditor, a party to a composition deed releasing the debtor received his dividend on the debt for which he held bills drawn by the debtor, and afterwards sued the acceptors, it was held that the debtor could recover the sums paid by them as money received to his use: Stock v. Mawson, 1 B. & P. 286. An express and indubitable reservation of securi- ties is not, however, necessary. It is sufficient that it clearly appears on the face of the instrument that it was intended that a creditor becoming a party to it should not lose the benefit of his securities. By a deed conveying the real and personal estate of a debtor to trustees for the benefit of his creditors, the creditors executing the deed covenanted that it should operate and inure, and might be pleaded in bar as a good and effectual release and discharge of all and all manner of actions, suits, bills, bonds, writings, obligations, debts, duties, judgments, extents, execu- tions, claims, and demands, both at law and in equity, which NEW BRUNSWICK EQUITY CASES. 507 they or any of them had or might have against the debtor or his 1393. estate or effects, for or by reason of all or any of the debts or engagements to them respectively due or owing by him, but so May that such covenant should not operate on or destroy any mort- SlEVE ^ BIGHT . gage pledge, lien, or other specific security which any creditor possessed in respect of his debt. It was held, upon the construc- tion of the entire deed, that such general words had not the effect of releasing a judgment previously obtained by one of the creditors who executed the deed, so as to affect the priority of the creditor as between himself and a judgment creditor who was not .a party to the deed, or so as to preclude the judgment creditor who executed the deed from enforcing the right which the judg- ment gave him as against the estate vested in the trustees: Squire v. Ford, 9 Hare, 47. And this reservation may be secured by an express qualification of the effect of the deed by the creditor in his mode of executing it. Thus in Duffy v. Orr, 1 CI. & F. 253, A., a creditor of a firm, held securities from one of its members for moneys advanced by him, at different times, to the firm, but claimed a balance beyond what those securities would cover. All the creditors of the firm agreed to accept a com- position " of 7s. for every 20s. due to the said creditors respective- ly." The composition was carried into effect by a deed, which witnessed that the several persons who had subscribed it, being creditors of the firm, covenanted to accept the composition in full discharge and satisfaction of the debts due from the firm or for which they were in any manner responsible, and absolutely released the partner on whose property A. held security. A. was the first to sign this deed; but added to his signature the words " without prejudice to any securities whatever that I hold." The other creditors signed in their respective order under A.'s signature. It was held that the composition, thus accepted, did not affect the rights of A. upon his previous securities, but only related to the balance beyond the sum they would cover, and that he might afterwards enforce those securities in equity. By the Assignments and Preferences Act, 58 Vict. c. 6 (N. B.), s. 19 (4), " Every creditor in his proof of claim shall state whether he holds any security for his claim, or any part thereof, and if such security is on the estate of the debtor, or on the estate of a third party for whom such debtor is only secondarily liable, he shall put a specified value thereon, and the assignee under the authority of the creditors may either consent to the right of the creditor to rank for the claim after deducting such valuations, or he may require from the creditor an assignment of the security at ,an advance of ten per cent, of the specified value to be paid out of the estate as soon as the assignee has realized such seourity, and in such case the difference between the value at which the security is retained, and the amount of the gross claim of the creditor shall be the amount for which he shall rank and vote in respect of the estate." Section 19 (5), " If a creditor holds a claim based upon negotiable instruments upon which the debtor is only indirectly or secondarily liable and which is not mature or exigible, such creditor shall be considered to hold security within the meaning of this section, and shall put a value on the liability of the party primarily liable thereon as being in security for the payment thereof, but after maturity of such liability and its non-payment he shall be entitled to amend and re-value his claim." Where a secured creditor retains his security, and it produces more than the value put upon it, the surplus, it would seem, is the property of the debtor's estate. See Societe Generale de Paris v. Geen, 8 App. Cas. 606 ; Couldery v. ■508 NEW BRUNSWICK EQUITY CASES. 1893. Bartrum, 19 Ch. D. 394; Bolton v. Ferro, 14 Ch. D. 171. Under the . Dominion Insolvent Act of 1875 a creditor holding security at the May time of the insolvency could not realize the security, and prove s^wwBir^ on the estate for the taJa-nce: In re Beaty, 6 A. R. 40; Deacon v srEvtwBi . Driffil, 4 A. R. 335. In an administration suit a creditor cannot be compelled to value any securities held by him. He is entitled to rank for the full amount of his claim, and to realize any securities as well, provided that he must not ultimately receive more than 100 cents on the dollar: Rhodes v. Moxhay, 10 W. R. 103; Cooper v. Molsons Bank, 26 Can. S. C. R. 611,' at p. 62l! And this rule also applies to the administration of assets under a common law assignment, unless otherwise provided by the deed of assignment: Bolton v. Ferro, 14 Ch. D. 171; Beaty v. Samuel, 29 Gr. 105; Eastman v. Bank of Montreal, 10 O. R. 79; Young v. Spiers, 16 O. R. 672. An instructive case in this con- nection] is Molsons Bank v. Cooper, decided by the Judicial Committee of the Privy Council, March 9th, 1898, on appeal from the Supreme Court of Canada. The respondents were boot and shoe manufacturers at Toronto, and they had an account with the Molsons Bank. Having applied to the bank for a line of credit, they received from the manager, on June 13th, 1891, a letter stating that the Board had granted them a line of credit to the amount of $150,000, to be secured by collections deposited, at a rate of interest of 6 per cent., with one-quarter commission on all cheques and collections outside the city of Toronto. To that letter there was a postscript stating that its meaning was not that the advances should be fully covered by collections, but as near as the respondents could. The respondents stopped pay- ment in August, 1893. In the interval the bank had made large cash advances to the firm in the way of discount of their pro- missory notes. The respondents from time to time handed the bank large numbers of their customers' notes and bills as colla- teral security for the advances so made. At the time of the firm's failure the bank held their promissory notes to the amount in all of $145,000, all of which had been discounted, and in addition the bank held as collateral security a large number of customers' notes. These latter they proceeded to realize upon, and at the time of the commencement of this action had received $83,000. This action was brought upon the firm's paper for the recovery of the whole indebtedness, $145,000, and the defence was set up of payment or satisfaction in whole or in part by the money received from the collateral notes. The object of the bank in not applying the money received from the collateral security was that in the distribution of the estate of the firm under the Creditors' Relief Act, they might prove for their whole debt, and so obtain a larger dividend. Mr. Justice Rose gave judgment for the bank for the full amount of the notes sued upon, holding that they were not obliged to credit the money in their hands against the notes, but were entitled to retain the fund so realized as a reserve fund, carrying the amount to the credit of a suspense account. The Divisional Court, on appeal, 26 0. R. 575, set aside this judgment, deciding that the bank were bound to apply the money in reduction of the respondents' debt, and that it ought to be applied pro tarda in payment of the notes sued upon. The bank appealed to the Court of Appeal, wnioh restored the original judgment of Mr. Justice Rose, 23 A. R. 146. though the Court was divided. The Supreme Court of Canada, on further appeal, 26 Can. S. C. R. 611, unanimously decided against the bank. NEW BRUNSWICK EQUITY CASES. 509* An appeal taken to the Judicial Committee of the Privy jggg Council was dismissed. The full text of the judgment of Lord Halsbury, L.C., who delivered the judgment of the Committee, MAT has not been received at the time of this writing. b,„™W W t His Lordship is, however, thus reported in a summary of his mevewbighi^ judgment: The suit raised the question, Were the appellants entitled to treat the sum they had received and realized of the securities as not having been received at all, or were they entitled to recover in respect of the entire amount of their indebtedness? No such right as they alleged could possibly exist. The bargain was intelligible enough— namely, that an overdraft should be allowed, and that cheques, bills, and securities should be deposit- ed to secure repayment. The intention of the parties was made still more clear by the postscript to the letter:— "The meaning of the above is not that the advances shall be fully secured by collections, but as near as you can." It was admitted that $83,000 had been received and realized by the bank on those collateral securities. As the bank received the money, or turned the securities into money when they received them, it was impossible to say that the indebtedness between them and their debtors was otherwise than diminished to the extent of the money which the bank put into their pockets. ROBERTSON v. APPLEBY et al. 1893. Practice — Parties — Assignment of cause of action after suit brought — The March 14. Supreme Court in Equity Act, 1890 (S3 Vict. u. 4), ss. 96 and 97. After the bill was filed in a. suit brought by a married woman by her next friend she died, and her executors assigned the cause of action to the next friend. Held, that under sections 96 and 97 of the Supreme Court in Equity Act, 1890 (53 Vict. c. 4), an application to continue the suit iu the name of the assignee could be made ex parte, subject to the order being varied or set aside if the defendants were pre- judiced in their security for costs. A mortgage executed by Benjamin H. Appleby and wife to The Provincial Building Society was assigned to Bosanna Eeid, wife of Joseph Beid. Bosanna Beid commenced a foreclosure suit upon the mortgage by William Robertson, her next friend, and her husband was joined in> the suit as a defendant. During the con- tinuance of the suit Bosanna Beid died, leaving a will by which she appointed her husband and Eliza Mitchell executors, and the suit was continued by them on sug- gestion' as plaintiffs. Subsequently they assigned the mortgage to William Bobertson, and obtained an ex parte order substituting Bobertson as the plaintiff in the 510 NEW BRUNSWICK EQUITY CASES. 1893. suit in the place of themselves. The defendants now eobertson a PP lied to set the order aside. Argument was heard palmer, j. q % j_ Milligan, f or the defendants. A. W. MacRae, for the plaintiffs. 1893. March 14. Palmer,' J :— This suit was brought by a married woman by her next friend. After filing the bill she died and her execu- tors assigned the cause of action to the next friend; and the plaintiff's counsel applied to me, and I granted an ex parte order under section 97 of 53 Vict. c. 4, substi- tuting the assignee as plaintiff in lieu of the original plaintiff. The defendants' counsel applied to me to dis- charge the order, and the plaintiff's counsel showed cause. The sole question argued was whether a plaintiff can voluntarily assign his interest in a suit, during its pendency in this Court, to another person, and that other person carry on the suit under the section referred to. The two sections, under which it is claimed this may be done, are 96 and 97, and which enact as follows: " 96. A suit or matter shall not become abated by reason of the marriage, death or bankruptcy of any of the parties, if the cause of action survive or continue and shall not become defective by the assignment, crea- tion or devolution of any estate or title pendente lite, but the suit shall be allowed to proceed in favour of or against the surviving party or by or against the person to or upon whom such estate or title has come or de- volved ; the Court may, if it be deemed necessary, order that the husband, personal representative, trustee or other successor in interest, if any, of such party or par- ties be made a party." " 97. An order that the proceedings shall be car- ried on between the continuing parties and such new party or parties, may be obtained ex parte on application to the Court or Judge, upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence, and unless the Court or Judge shall otherwise direct be served NEW BRUNSWICK EQUITY CASES. 511 upon the continuing party or parties or their solicitors, 1893. and also upon each such new party, unless the person RoBEBTSON making the application be himself the only new party, ^J, „ al and such order shall from the time of such service be Pa] — x binding upon such party or parties, and such new party or parties shall thenceforth become a party or parties to the suit and shall be bound to enter an appearance thereto in the office of the Clerk within the same time and in the same manner as if he or they had been served with a writ of summons, unless otherwise directed in such order; provided that it shall be open to the party or parties so served within twenty days after such ser- vice to apply to the Court by motion or petition to dis- charge or vary such order; provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party until a guardian or guardians ad litem shall have been duly appointed for such party, and until the expiration of twenty days from such appoint- ment." - At first I thought that although such proceedings did apparently come within the strict words of the Statute— that such words as " by the assignment " are equivalent to any assignment — yet in view of the proba- bility of a solvent plaintiff assigning to an insolvent, and thus working injustice to the other party, that is, there- by depriving the defendant of his security for costs, it might not be so intended. But I think the provisions of the 97th section give the Judge the right to vary the order in all cases where it is necessary and his duty to make the defendant secure for the costs. In this matter the executors of the original plaintiff substituted her next friend for the original plaintiff who was alone liable for the defendants' costs. This in no way altered the defendants' security for costs. I therefore think that my order was right and that there is no necessity to vary it or set it aside. As the defendants have not suc- ceeded they must pay the costs of this application. The next friend of a married woman must be a solvent person: Hind v. Whitmore, 2 K. & J. 458; and if not solvent an order may be made to stay proceedings till a new next friend be appointed or security for costs given: Pennington v. Alvin, 1 512 NEW BRUNSWICK EQUITY CASES. 1393 S. & S. 264, overruling Dowden v. Hook, 8 Beav. 399; and see Martano v. Mann, 14 Ch. D. 419; Schott v. Schott, 19 Ch. D. Robertson 94; Re Thompson, 38 Ch. D. 317; Stovel v. Coles, 3 Chy. Ch. 421 "•In Jones v. Fawcett, 2 Ph. 278, overruling S. C. 11 Jur. 687 the applebt Pra-tke— Recalling witness— Corroborative evidence. March 23 Where the evidence in a suit taken before a referee had been closed and counsel were engaged in summing it up before the Court an application by the defendant to recall a witness for the pur- pose of giving evidence of a corroborative nature that had al- ways been available and of such materiality that it could not have been previously overlooked, was refused. This was an application during the argument of the suit for leave to recall a witness examined on viva voce evidence before a Referee. The facts of the application are fully stated in the judgment of the Court. C. TV. Weldon. Q.C., fj. N. SMnncr, Q.C., and J. « Forbes, Q.c, for the plaintiff. BQ CAS.— 33 514 NEW BRUNSWICK EQUITY CASES. 1893. &■ &• Gilbert, Q.C., and C A. Palmer, Q.O., far the defendants. Duncan Bank of Nova r , _ _ T Scotia. 1893. March 23. Palmeu, J. : — Palmer, J. Some of the material facts in this case are, that on the third day of March, 1875, one John Risk, since de- ceased, procured a loan from the Bank of Nova Scotia, for which he pledged and left with its manager a num- ber of promissory notes, amounting in all to f 12,812.81. Among them was one drawn by the plaintiff, payable to J. D. Robertson & Co., for $1,000; one for $1,200 due May 21st, 1875, payable to- his own order and endorsed in blank, and another for $1,240 due May 25th, 1875, also drawn by himself, and payable to his own order, and endorsed in blank. The bank claims that there was another note for f 1,000, drawn by plaintiff, payable to J. D. Robertson & Co., and endorsed by them among the notes so pledged. The existence of this latter note is denied by the plain- tiff; and whether it was so held or not is one of the issues in the case. Beside these notes the plaintiff was maker of three notes endorsed by J. D. Robertson & Co., payable on the 21st of May, and which were dishonoured. There is no dispute that on the 26th of May all the bank claimed the plaintiff owed it was his indebtedness on these three latter notes and the $1,200, $1,240 and $1,000 notes, in all six notes. In order to secure them he entered into an agreement with the bank by which he assigned to it certain mortgages, and that shortly afterwards it realized enough money on them to pay the three larger notes mentioned in the agreement. On the 19th June, 1875, J. D. Robertson & Co. paid the three remaining notes for which the bank held the assignment of the mortgages, and the bank then had a surplus of $1,221.30; but if it had the right to claim from the plain- tiff another note of $1,000, then such surplus would only be $221.30; and the whole issue tried before me was whether the bank had a right to deduct either or both of these notes of $1,000 each from the money in its hands. NEW BRUNSWICK EQUITY CASES. 515 The plaintiff's contention was that the bank never 1593 had but one note for fl,000 which was given for the ac- — DuNCAN — eommodation of J. D. Robertson & Co., and that they Bank ^ Nova paid the same, or, if not, the bank, by its negligence, had bcqtia. lost tlit- note and enabled J. D. Robertson & Co. to Palmer, j. escape payment of it to the injury of the plaintiff; and that, at all events, the bank under the circumstances was not in a position to claim the payment of the note from the plaintiff without giving it up to him. The evidence proved that the transaction was be- tween Pitcaithly, who was then the manager of the bank, and Risk, and also between him and Duncan to secure the amount that the bank claimed. The bank produced in evidence no books or writings showing that any more than one $1,000 note was delivered to the bank by Risk, from which it was argued that it could not do so. Further, the bank did not call Pitcaithly, and his absence was commented upon as highly suspicious. It was also argued that it was altogether improbable that when he took security from Duncan he could have for- gotten or omitted, when the matter was fresh in his mind, so large a claim as $1,000, and that the books of the bank then showed that only one note was entered. Under such circumstances I had no difficulty in coming to the conclusion that I ought not to allow such a claim for the note. When the bank manager, who now undertakes to say that such a note existed, was called upon for an account, as late as the 25th of April, 1879, and gave a list to Mr. Duncan of the obligations for which the security was given, only one note of $1,000 was claimed. The bank were unable to produce the note. Mr. Melbourne McLeod, in his evidence, says he paid the bank as early as the year 1877 all the claims they had against J. D. Robertson' & Co., whether as makers or endorsers, in the whole amounting to about $17,000; that he had lost the memoranda in the fire; that he had no recollection of the particular items, but swears positively that he paid the bank all that it claimed, for part of which they were liable as makers and part as en- dorsers. It is clear from Robertson's evidence that this 516 NEW BRUNSWICK EQUITY CASES. 1893. $1,000 note, although drawn by Duncan, was for Rob- du7cIn~ ertson & Co.'s accommodation and they ought to have bank of Nova P aid j,t - The onlv evidence for the defendants is that of scotia. jj r Robinson, the bank's manager at St. John, who Palmer, j. gwe ars that McLeod did not pay it. Against this, how- ever, we have the accounts rendered by the bank, the figures of which it is impossible to reconcile with the idea of their claiming this note, but which Robinson says was omitted by mistake and that the account was made up in ignorance of the fact that J. D. Robertson & Co. had taken up the three notes before mentioned. It will be observed that while McLeod has not been able to specify particularly the notes and liabilities upon which he paid the $17,000, and is only able to state gen- erally that he paid everything, and has produced no memoranda or books to support his recollection, yet he lias given an excuse for this that they were all burned in the fire of 1877, and that he has done the best lie could. This was the best evidence in the possession of the plaintiff to prove the fact, and if true completely proves it. There is no pretence that the bank has lost its books, and it is clear, if it has them, that they ought to show exactly how much money McLeod paid, and for what it was paid. These, however, it does not produce, and everybody must admit that after 16 or 18 years such evidence would be much better than the mere general recollection of the manager of the bank of a merely negative character. When to this is added the fact that the bank is not able to produce the note itself and it does not pretend that it, at any time, notified the plain- tiff of its loss, I think prudence requires that the Court should not allow the claim under such circumstances. I say this without attributing any desire on the part of any of the witnesses to tell what they believed to Ik* untrue. It follows that if the case stands, as it now is, I would have to disallow the claim, and order the bank- to account to the plaintiff for the balance that it has col- lected on the securities over and above the $1,200 and $1,240 notes, which, together with interest at six per Palmer, J. NEW BRUNSWICK EQUITY CASES. 51 7 cent., would amount to |4,449.45. If there is any mis- 1893. take as to the amount, and the bank wishes it, I will duncan v. send it to a referee to ascertain it. bank op nova Scotia. This case was begun in 1880; and was set down tor hearing on the 31st of January, 1893; and was heard on evidence taken before the referee, Dr. Barker; and upon a commission issued to Philadelphia. After the case was through, and I had heard the plaintiff's argument in summing it up, and the defendants' counsel partially through, Mr. Palmer, learning of the view I took with reference to the absence of memoranda or entries in the bank's books of the notes received from Eisk, and also of the amount of money received from J. J). Robertson & Co. through McLeod, applied to me to have Mr. Rob- inson recalled and examined viva voce and the entries in the books of the bank referred to. He did not pro- duce any affidavit of the reasons why this was not done before, but stated that it had been omitted and could be supplied. Although I had no doubt that I ought not to hear such an application without an affidavit as to the circumstances, yet, before I would deny such an ap- plication on that ground I decided to give the defendant time to prepare such an affidavit to prevent injustice being done. It was most strenuously argued by Mr. Weldon, of counsel for the plaintiff, that the application ought not to be allowed, as being dangerous. I have now carefully looked into the matter, and have consid- ered what practice would best conduce to the ends of justice with reference to applications of this nature, and for the benefit of the profession will endeavor to state as well as I can the principles which ough't to govern the Court in relation to this subject. It will assist in this to state somewhat in detail the history of how such matters were proceeded with in Chancery. Previous to the practice in the Court pf Chancery of hearing causes on viva voce evidence, there was no viva voce examination of witnesses for the purpose of the hearing except evidence as to particular facts or issues directed by special order. All other examina- tions were taken before an examiner, or upon commis- SCOTJA. Palmer, J. 518 NEW BRUNSWICK EQUITY CASES. 1893. sion, and while the proof on either side was being given DuNCAN it was carefully concealed from the parties, and, when bank If nova a ^ the proof s were in, an order was made for the pub- lication of the evidence' — that is, the opening and show- ing of the depositions and the giving of copies of them to the parties, after which there could be no more ex- amination of witnesses except by special order of the Court. The policy and object of such secrecy was the supposed danger of permitting parties to make up their evidence by piecemeal and to make up its deficiencies by other evidence after they have discovered what it was necessary to prove. If previous to the publication it appeared to either party that there might be occasion for other testimony and that there was opportunity of obtaining it without delay to the other side it could be given, and the habit was to allow the publication to be enlarged upon affi- davit, but the Court would not permit it to be done to the prejudice of the other party by delaying the hearing; but there was an important difference in these matters between enlarging the publication, that is, on an appli- cation to take further testimony before the publication, and an application to take testimony after publication had passed. The order postponing publication presup- poses that publication has not passed. To do this was almost a matter of course if any reasonable cause was shown, and that the other party would not suffer any harm, as where the hearing was not put off, and some- times the order was made upon the terms of not hinder- ing the other party from setting the cause down ; and after the publication was once enlarged then upon no- tice and affidavit showing satisfactory cause and an ex- planation why he was to be allowed to give further evidence after publication passed. Lord Thurlow in GVwtf v. Burlier (1), allowed a new commission to ex- amine witnesses, but he made the party do it at his own expense, and though publication had not passed he re- quired an affidavit that neither "he nor his agent had seen or been informed of the depositions. (1) 2 Bro. C. C. 1. NEW BRUNSWICK EQUITY CASES. 519 In Dingle v. Rowe (2), which was a motion to en- 1893. large publication and to issue a new commission, the dun can new commission was granted on payment of the costs, BANK ^ NoVA in case the other party would not examine in chief but scot/a. only cross-examine; and on condition that it should be Palmer . J - returned without delay and would produce no incon- venience to the plaintiff, and on affidavit by the solicitor that the witness was a necessary and material witness, and that he believed the defendant had not been in- formed of the contents of the commission. If the pub- lication is actually passed when the application is made for leave to examine a witness, it must be upon special and satisfactory reasons assigned, both as to the pre- vious neglect and of the further examination, and the Courts always watched such an application with jealousy. The early practice of the Court (per Bacon's Ordi- nances, 1656) was that if both parties joined in a com- mission and the defendant produced no witnesses but afterwards sought a new commission it should not be granted; and that he should not be at liberty to ex- amine his witnesses except upon special order and upon showing reason for the delay; and that no witness should be examined after publication except by special order. This rule was continued by Lord Coventry and also by Lord Chancellor Clarendon. In the case of Lon- don, (Corporation) v. Dorset (3), Lord Nottingham said the rule as to examinations after publication had been strict on this point, but he admitted that special cases rested in the discretion of "the Court, and as to which the Court was the judge. In Newlmid v. Horsman~{±), he laid down the rule that a commission to examine witnesses after hearing must be upon a new state of facts raised at the Hearing by the Court. Afterwards Lord Macclesfield, in Caim v. Conn (5), said that the prudent method of the Court was, that, after publication passed and the purport of the examina- tions known, neither side should be allowed to enter into (2) Wightw. 99. (4) 2 Ch. Ca. 71. (3) 1 Ch. Ca. 22^. (5) 1 P. Wms. 723. 520 NEW BRUNSWICK EQUITY CASES. 1893. a fresh examination of the matters in question, since DtJNCAN otherwise there would be no end of things, and such a bank o"f nova proceeding would tend to perjury as well as vexation. So ™ A - Lord Talbot in Smith v. Turner (6), said that the amer ' ' examination of witnesses after publication passed, especially where it might relate to the matter in issue, was against the rule of the Court, and might be greatly inconvenient and make causes endless. The rule laid down in all the old books of practice {see Wyatt, Pr. R. 193 ; 1 Har. Pr. 505) is, that if publication is actually passed, the party who meant to enlarge publication (by which is clearly meant the giving of evidence after publication had passed) must show by affidavit some material witness to be examined and satisfactory reasons why he was not examined be- fore, and the party and his clerk and solicitor must make oath that they have not seen or been informed of the contents of the depositions, and will not until the time of publication, etc., and that it will not delay the hearing. From which, the established course of prac- tice, the parties should be warned of the necessity of taking their proofs in proper time, for publication is never passed until there is a rule to examine witnesses, and a rule nisi to pass publication, and in each of these the time is three weeks. -In the case of WhitelocJc v. BuTcer (7), that great equity lawyer, Lord Eldon, stated the principles and practice upon motions to enlarge publication. The Court will not, he observes, enlarge publication (meaning, no doubt, that they will not permit testimony to be taken after publication) without a very special case made. That the party's want of knowledge of the rules of pro- ceeding, or want of attention in his solicitor, are not sufficient. That such a motion requires an affidavit that the party, his olerk in Court, and the solicitor have not seen, or been informed of, and that they will not see, or be informed of, the contents of the depositioas until the enlarged time of publication. That no more dangerous proceeding could take place than allowing parties to (6) 3 P. Wras. 413. (7) 13 Yes. 511. NEW BRUNSWICK EQUITY CASES. 521 make out their case by piecemeal; and that if previous 1893. to publication there appears to be any occasion for d uncan further testimony, and that it can be had without injury Bank ^ NoVA to others, the rule has been to allow the publication to So °™- be enlarged upon affidavit, but that the Court will not do 1,a ' mer ' J - that to the prejudice of the other party by delaying the hearing. I have been thus particular with reference to the old practice because it will be seen from it that if the depositions have been actually seen by the parties a very strong difficulty arises. Lord Eldon, in the case I have referred to, Whitelock v. Baker, said that although the evidence might be very material he would not dare trust himself by laying down a precedent for such a case. This was the state of the law in England when there was passed what was called the Improvement in Equity Jurisdiction Act (15 and 16 Vict., cap. SC), the 30th section of which enacted that when any of the par- ties to any suit desires that the evidence should be ad- duced orally, and on giving notice to the opposite party, the same shall be taken orally. The 31st section enacted that all witnesses to be examined orally under the pro- visions of the Act should be examined by or before one of the examiners of the Court, etc. The rules which governed the old practice of not examining witnesses after publication passed could not of course be applied to evidence given viva vow- The old rule was the practice in this Province until it was altered by Act, of which 53 Vict., cap. 4, is a re-enact- ment. By sections 7G and 77, it is enacted that a cause may be heard upon evidence taken viva voce at the hear- ing, and this is the practice commonly pursued here now. This suit was not heard on viva voce evidence before me, but the evidence was taken viva voce before the referee and in the hearing of both parties. Another section in the Act, 53 Vict., cap. 4, s. 81, enacts as fol- lows : " Upon the hearing of any cause or motion de- pending in the said Court, the presiding Judge may on application of either of the parties, or at his own dis- cretion, require the production and oral examination be- fore himself or any other Judge of the said Court of any 522 NEW BRUNSWICK EQUITY CASES. 1893. party in the cause, or any witness or person who has Ddxcan made an affidavit therein," etc. Here, no doubt, the per- bank of nova son to be examined was the witness Robinson, who had Scotia. jj een before examined, and there is no doubt in a case palmer, j. w }j ere justice required it, it is not only within the power of the Judge, but it is hisi duty to allow an oral examin- ation of such a witness, instead of acting wholly upon the evidence taken before the examiner, to be had before himself, and, I think, whether a Judge should or should not make such an examination will depend upon a variety of considerations all depending upon what would best further the end's of justice. In England when a party, whether through inad- vertence or negligence, omitted to prove some particular fact which is necessary to support his case, the Court sometimes allows him to remedy it by giving him leave to prove the fact omitted. This is frequently done in the case of wills disposing of real estate. See Lechmerr v. Brasier (8). And this practice is not confined to cases of wills, for cases have been ordered to stand over in order to prove the execution of a deed or the death of a party. The cases deciding when this may be done are conflicting, and Lord Oottenham. in Marten v- Whivhdo (9), said it is impossible to reconcile the cast- s or to extract any principle upon which any fixed rule can be founded. The Court has exercised a wide dis- cretion in refusing or giving leave to call witnesses in such cases, and in the doing of which the merits of 1he case of the plaintiff ought to be taken into consideration. I think the sound rule is that adopted at nisi prius in the taking of similar evidence, for equity trials are now assimilated to trials at nisi prius.* Something de- pends upon the stage at which it is asked and the op- portunity of answering it. This would not have so much application to a proceeding in equity as it would to nisi prius, on account of the facility with which the matter could be adjourned in equity and without very consid- erable expense. But the main consideration is that (8) 2 J. & W. 287. (9) Cr. & PK 557. 'Doe d. Leeds v. Connolly, 3 All. 337— Ed. NEW BRUNSWICK EQUITY CASES. 523 pointed out by Lord Eldon, the danger of allowing a 1893. witness to be called back after a party has seen where duncan the shoe pinches, not upon a new subject that has been BiNK £, NoVA accidentally omitted, but upon a subject that must have ScoTIA - been well considered by the counsel, and in which the raJm « r . J- witness has been examined and stated all he or the coun- sel thought necessary at the time, and where the evi- dence offered is merely corroborative. To allow the practice of the Court to be so settled as to enable a per- son, as Lord Eldon says, to bring forward his proof piecemeal, and go just as far as he considered prudent and let it remain until the case is entirely through and he observes either from the argument of counsel or the bent of the mind of the Judge, that it would be better to make a further statement and give further particulars would, I fear, in the language of Eord Eldon, be a dangerous mode of proceeding. I think it is better to lay down a practice by which the parties shall be warned not only of their duty but of the necessity of their at first giving evidence of all the facts that may bear upon their case, and that they must not expect the Court to act upon inferior evidence when it can be shown that they had better in their power and did not produce it. This will be carrying out on principle the rule that Judges act on at nisi prius in exercising their discretion' in allowing evidence in re- buttal, and recalling witnesses after the case is closed; the one is that new evidence merely corroborative is not allowed in rebuttal, and that a party is not allowed to examine a witness after the whole case is closed upon> a matter in which he had been examined. I therefore feel constrained to deny the application in this particular case. The defendants must pay the costs of the suit. Affirmed on appeal, 32 N. B. 308. 524 NEW BRUNSWICK EQUITY CASES. 1893. BABANG v. THE BANK OF MONTREAL. March 17. Injunction — Splitting cause oj action — Vexatious arrest — Abuse of process. The defendant was the holder of forty-eight promissory notes indorsed by the plaintiff, and had obtained judgment in the City. Court of Moncton on thirteen of them in separate actions brought when all the notes were due. Some of the notes wore of such an amount that two of them could have been included in one ac- tion. The plaintiff was arrested twice on executions on two of the judgments and was discharged on disclosure. Immediately after his second discharge he was arrested on a third judgment, and was discharged by habeas corpus. In a suit for an injunc- tion to restrain the defendant from using the process of the City Court of Moncton for malicious or vexatious purposes. Scmble, that the injunction should go if it appeared that the defen- dant intended to further arrest the plaintiff for the malicious pur- pose of harassing and punishing him, and endangering his health, and not for the purpose of obtaining payment of the debt. This was an application for an interlocutory injunc- tion. The facts fully appear in the judgment of the Court. Argument was heard March 12th, 1893. M. CJ. Teed, for the plaintiff. G. W. Weldon, Q.C., for the defendant. 1893. March 17. Palmrii, J. :— This is an application for an interim injunction order to prevent the Bank of Montreal from using the process of the City Court of Moncton for malicious or vexatious purposes. The undisputed facts are that the bank held 48 promissory notes endorsed by the plaintiff for amounts under eighty dollars, and obtained judgment on 13 of them in the City Court of Moncton; that in some of the cases the suits were brought when the amounts were such that two of them could have been included in the one suit; that all the notes were due before any action was brought; that the bank caused execution to be is- sued upon one and lodged the plaintiff in jail, when he applied to obtain his discharge by disclosure, and that he was fully examined by the bank as to the state of his affairs. That shortly afterwards the bank issued an ex- ecution on another judgment and again arrested the NEW BRUNSWICK EQUITY CASES. 525 plaintiff and that he was discharged on a like disclosure, 1893. and that before he had time to return home the bank — :r— ~ — DABAft G had him arrested on another execution, on which arrest «,„„-„*• „„„ he was discharged on habeas corpus by Mr. Justice mostbbai. Hanington- Besides these judgments the bank had re- Maimer, j. covered a judgment in the Supreme Court for about |2,500, which remains unsatisfied. In this case the bill alleges that the plaintiff has no property, having assigned it all for the benefit of his creditors, and that the defendant, the Bank of Montreal, held the notes before mentioned and brought the suits as before stated in the City Court of Moncton, and un- necessarily split the actions upon them, and had the plaintiff lodged in jail, and that such proceedings were not for the purpose of obtaining payment of the debt, or in any expectation of collecting the same, but for the purpose of maliciously injuring the plaintiff's health and to otherwise injure and harass him. In support of his case the plaintiff has produced the affi- davit of H. C. Hanington, who swears that Mr. Beddome, the bank's manager in Moncton, at the lime he served the notice of discharge, told him that the plaintiff would have to go to jail forty times, and afterwards told him he would make the plain- tiff as weak physically as he was financially, and would wear him out. Mr. Beddome makes an affidavit in reply in which he states it is not his intention to issue execu- tion on* the judgments for the purpose of harassing the plaintiff, but only when he believes he could have them satisfied, or otherwise in the interest of the bank. He denies making the statement that the bank would put the plaintiff in jail forty times, and says his statement was that the bank would send him up again, and he en- tirely denies that he stated that he would make the plaintiff as weak physically as he was financially. If it became of importance to find out who was right, Han- ington or Beddome, as to what took place between them, I should put the question to a jury and be guided by their verdict, but I have not any doubt but that the agent of the bank has purposely divided the claims 1 of the bank so as to have as many suits as possible, for I 526 NEW BRUNSWICK EQUITY CASES. 1893. think there can be no other explanation for not includ- ing in each suit in the City Court as much of their claim *». as possible; and it is impossible for me to know reallv Thf Bank op ' ** Montreal, what he intended to do, by the statement in his affidavit : Palmer, j. " Xor is it my intention to issue execution om the said judgments already obtained, for the purpose of harassing the said Babang, but when I reasonably believe that I can have them satisfied and paid by so issuing them in the manner of the first one paid as aforesaid, or other- wise in the interest of the said bank." He does not say what the bank thinks will be necessary, or what is his view with regard to what it would be the interest of the bank to do. On the whole if I had now to decide it, I would find that the manager has used and intended to use the executions to be-issued out of the City Court of Moncton to give the plaintiff as much annoyance as possible with the object of inducing his friends to buy the bank off, and in this way to get some of the money that is justly due the bank from the plaintiff; and the question is whether he has a right to do this. No doubt no suitor has the right to use the power of the Court for any purpose except to obtain the money from the property of the defendant that the Court has ordered him to pay, or to have satisfaction by the in- carceration of the body. The rule governing the grant- ing of injunctions. by this Court to prevent the perpetra- tion of illegal acts may be stated as follows: The Court will protect a party's legal rights from what is deemed irreparable injury, or from injury for which there is no adequate remedy at law, in the case of actual or threat- ened violation of the right. By irreparable injury, I do not mean that there is no physical possibility of repairing the injury; all that I mean is that the injury would be grievous and at least a substantial one, and not adequately reparable by dam- ages; and by the term inadequacy of the remedy by damages, I mean that the remedy by damages is not such a compensation as will in effect though in specie place the party in the position in which he was. Here the plaintiff's right, if any, threatened, is, that the bank will maliciously make use of the process of the City NEW BRUNSWICK EQUITY CASES. 527 Court of Moncton for the purpose of harassing him and 1893. injuring his health, and if this is so I think that would BABANa — be inflicting irreparable injury in the sense that I have The b ^ k of indicated, and if he can make this out clearly he would Montreal. be entitled to the protection of this Court ; but, in order Primer, j. to do this, it becomes necessary to decide what is meant by tlie word " malicious." It is said that the bank has -unnecessarily split up the claims and multiplied suits and judgments, but as they have the judgments they have the right to properly enforce them. All that the splitting them up shows is the intention in the use of the judgments, but does the evidence show that they have or intend to issue executions on the judgments malici- ously or in any other illegal manner? This depends upon the meaning of the word " malicious." It means, I think, that the bank has, or intends to issue such execution, and make arrests thereunder for some other than the one purpose of collecting the money recovered by them from the defendant. If they intend to do it to punish the plaintiff or destroy his health, knowing that they cannot collect the debt, that is legal malice, and is what they have no legal right to do.* * If an act is lawful in itself it does not become unlawful by reason of an improper motive behind it. This was very fully dis- cussed in the recent case of Allen i. Flood, in the House of Lords, 11898] A. C. 1. Lord Watson, who agreed with the majority of the House, in the course of his judgment said, at p. 92: " Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose rigTit is infringed, whether the motive which prompted' it be good, bad or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong, for whch reparation is due. A wrongful act, done knowingly, and with a view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the Ian-. There is a class of cases which have sometimes been referred to as evidencing that a bad 1 motive may be an element in the com- position of civil wrong; but in these cases the wro~ng must have its root in an act which the law generally regards as illegal, but excuses its perpetration in certain exceptional circumstances from considera- tions of public policy. These are well known as cases of privilege, in which the protection which the law gives- to an individual who is within the scope of these considerations consists in this — that he may with immunity .commit an act which is u legal wrong and but 628 NEW BRUNSWICK EQUITY CASES. 1893. In th'e case of Tebbutt v. Holt Q), that great common j^^o law lawyer. Baron Parke, said: "You must not find for the bI'nk o* the plaintiff unless you are satisfied that the defendant Montreal. wag ac t ua ted by what in law is termed malice; but by Palmer, j. ^. ne term ma ]j ce; i & no t mean 1 ill-will, or revenge, or the like, but any indirect motive, such as an intention to get more costs for himself from the plaintiff, or the trying to get the debt /for his client from some of these persons besides Fraser." This language is peculiarly applicable to this case. As it has, been suggested no explana- tion can be given of the bank's conduct than that the agent intended harassing the plaintiff and endangering his health, so that his friends might be induced to pay something. At all events, it is doubtful whether or not the bank has exceeded or intended to exceed its legal rights in this case. If this is hereafter made out clearly, I think this Court ought then to exercise its discretion and restrain such wrong. What ultimately will have to be done in the case I do not think it necessary now to decide. On the one hand, if the bank should viulate (1) 1 C. & K. 280. for his privilege would affordl a good cause of action against him, all that is required in order to raise the privilege and entitle him to protection being that he shall act honestly in the discharge of some duty which the law recognizes, and shall not be prompted by a desire to injure the person who is affected by his act. Accordingly, in a suit brought by that person, it is usual for him to allege, and necessary for him, to prove an intent to injure in order to destroy the; privilege of the defendant. But none of these eases tend to establish that an act which does not amount to a legal wrong, and therefore needs no protection, can have privilege attached to it; and still less that an act in itself lawful is converted into a legal wrong, if it was done from a bad motive. Lord Bowen (at that time Bo wen, L.J.), in the case of Mogul Steamship Co. v. McGregor, laid it down that in order to constitute legal malice the act done (must, apart from bad' motive, amount to a violation of law. The learn- ed .Tudge, with his accustomed accuracy and felicity, said (23 Q. B. D. 612) : — ' We were invited by the plaintiffs' counsel to accept the position from which their argument started, that an action will lie if a man maliciously and( wrongfully conducts himself so as to injure another in that other's trade. Obscurity resides in the lan- guage used to state this proposition. The terms ' maliciously,' ' wrongfully,' and ' injure,' are words which have accurate meanings well known to the law, but which also have a popular and less precise signification, into which it is necessary to see that the argu- ment does not imperceptibly slide. An intent to ' injure ' in strict- ness means more than an intent to harm. It connotes an attempt to db wrongful harm. ' Maliciously,' in like manner, means and implies an intention to do an act which is wrongful to the detri- ment of another. The term ' wrongful ' imports in its term the in- NEW BRUNSWICK EQUITY CASES. 529 the plaintiff's right, as he apprehends, he would 1893. have to obtain another discharge by another dis- J^ang " closure, and the bank would be liable to an action at Tm5 B ^ NK oy law for damages, which it is amply able to pay. On Movri " tAI " the other hand, it is difficult for the Court to frame an Palmer, j. order that would only restrain the bank ifrom using the process of the Court improperly. I therefore think jus- tice will be served by not interfering now by interlocu- tory injunction, but leave the plaintiff at liberty to apply again if the bank attempts to violate the law or act con- trary to the statement made by Beddome in his affidavit, or it becomes apparent that the bank intends to go be- yond what I have indicated. I therefore decline to make any order at present, but give the plaintiff liberty to renew his application at any time upon presenting material with such facts added as may arise hereafter, giving the other side six days' notice. In the meantime I will reserve the question of costs. Where a defendant has brought a number of simultaneous actions at law against the plaintiff, all depending upon similar facts and circumstances, and involving the same legal questions, so that the decision of one would virtually be a decision of all the Others, a Court of Equity may interfere to restrain the pro- secution of the actions, so that the determination of all the matters at issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multi- plicity of suits thereby be avoided. Thus in Kensington v. White, 3 Price, 164, the insured had brought five separate actions at law, rringement of some right.' The words which I have quoted are in substantial agreement with the language used) by Bayley, J., in Bromage v. Prosser 4 B. & C. 25, to the effect that, ' malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.' According to the learned .Tudge, in order to constitute legal malice, the act done must be wrongful, which plainly means an illegal act subjecting the doer in responsibility for its conse- quences, and the intentional doing of that wrongful act will make it a malicious wrong in the sense of law. Whilst it is true that, no act in itself lawful requires an excuse, it is equally true that some acts in themselres illegal admit of a legal excuse, and it is to these that Bayley, .f., obviously refers. The root of the principle is that, in any legal question, malice dtepends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the art which he contemplated and committed. In my opinion it is alike consistent with reason and common sense that when the act done is. apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive. 1 ' EQ. CAS.— 34 530 •NEW BRUNSWICK EQUITY CASES. 1893. Babang •The Bank of Montreal. on five different policies of insurance, effected on different ships, but between the same parties and at the same time. The defence was substantially the same in all the actions. The insurers were held entitled to file a bill in equity to have all the matters tried in one suit, and to restrain the actions at law. In speaking of this equitable jurisdiction, Pomeroy, section 254, says it must be ad- mitted that its exercise is somewhat extraordinary, since the rights and interests involved are wholly legal, and the sub- stantial relief given by the Court is also purely legal, dt may be assumed, therefore, he says, that a Court of Equity will not exercise jurisdiction on this particular ground, unless itsMnter- ference is clearly necessary to promote the ends of justice, and to shield the plaintiff from a litigation which is evidently vexatious. It should be observed that if the pending actions at law are of such a nature, or for such a purpose, that they may all be consoli- dated into one and all tried together by an order of the Court in which they, or some of them, are pending, then a Court of Equity will not interfere; since the legal remedy of the plaintiff is complete, certain and adequate, there is no necessity for his invoking the aid of the equitable jurisdiction. In Third Avenue R. R. v. Mayor of New York, 54 N. Y. 159, cited by the learned author, the city had brought seventy-seven actions in a Justice's Court to recover penalties for violating a city ordinance concern- ing the running of cars without a license, each action for a separate penalty. All the actions depended upon similar facts, and upon the same question of law; and a decision of one would Virtually decide all. The company brought this suit in equity to restrain the prosecution of all these actions except one, offering to abide the final decision in that one. The suit was sustained, and the relief granted, because a Justice's Court had no power to consolidate the actions. The decision was placed expressly upon the power of equity to prevent a multiplicity of suits, and the impossibility of the plaintiffs being relieved in any other manner from a vexatious litigation. In In re Ackroyd, 1 Exch. 479, at p. 489, and in Jones v. Prit- •chard, 6 D. & L. 529, are to be found dicta that the English County Courts have no power to consolidate actions, similar to that possessed by a Superior Court. On the principle that where a common law Court has jurisdiction in itself to give relief against vexatious proceedings, the Court of Equity will not interfere, it would seem that since a Court of Justice has inherent general jurisdiction to prevent abuse of its' process by staying or dismiss- ing actions which it holds to be vexatious: Haggard v. Pelicier FreTes, [1892] A. C. 67; Lawrance v. Norreys, 15 App. Cas. 210; Metropolitan Bank v. Pooley, 10 App. Cas. 214; the Court of Equity will not exercise its jurisdiction in such cases. See W. & T. L. C. (4th Am. ed.), 1408, where it is said that the process of a Court, being within its own control, a Court of Equity will not generally interfere. And see ibid., at page 1389, where it is said that the rule that Courts should abstain from interfering with each other's proceedings, on points where they Tiave a common or co-ordinate jurisdiction, is sanctioned by considerations of policy and reason, and should not be disregarded, unless it is apparent that an adherence to it would result in a failure or denial of justice. It is accordingly a general, though not invariable rule, that a Court of equitable jurisdiction will not enjoin a suit in a Court of a like jurisdiction. This is not merely because the tribunal in possession of the cause can afford all the relief that may be requisite, but because both tribunals are equally armed, and each of them may treat the interposition of the other as an NEW BRUNSWICK EQUITY CASES. 531 intrusion. In Freeman on Executions, s. 32,'it is said : "Each ISgS Court has such general control of its process as enables it to act. ° for the prevention of all abuse thereof. The power of Courts babang to temporarily stay the issuing of executions is exercised in an *■ almost infinite variety of circumstances, in order that the ends T So^n™" F of justice may be accomplished. In many cases this power operates almost as a substitute for proceedings in equity, and enables the defendant to prevent any inequitable use of the judg- ment or writ." The power of staying vexatious proceedings that are an abuse of its process is probably possessed by the New Brunswick County Courts: Reg. v. Bayley, 8 Q. B. D. 411; Pitt- Lewis' County Courts, 36, though see Hanington v. Stewart, 1 Pug. 242. In the exercise of this power the Court has stayed proceed- ings in an action where the manifest purpose of the plaintiff was to annoy and vex the defendant, and not to enforce a just de- mand: Jacobs v. Raven, 30 L. T. 366; Edmunds v. Attorney-Gen- eral,^ L. J. Ch. 345; 38 L. T. N. S. 213. In the case, however, of an inferior Court unable to protect its suitors, where its process is being used for oppressive ends, the duty of interference by a Court of Equity is obvious, and free from offlciousness. Further, the rule forbidding the splitting of claims in an inferior Court does not apply to distinct causes of action: Ex parte Lynott, 26 N. B. 126, so that the remedy by prohibition: In re Ackroyd, 1 Exch. 479, does not afford protec- tion against a multiplicity of suits founded upon separate and independent causes of action. Again, an inferior Court has not power in itself to consolidate suich actions. Considerations such as these, make it clear that an applica- tion to a Court of Equity for i< s interposition in restraint of parties to vexatious proceedings in an inferior Court should be .entertained. MacRAE v. MACDONALD et al. (No. 2. Ante, p. 498). Practice — Bill— No disclosure of cause of action — Taking bill 'pro confesso — Striking out defendant's name — Dismissal of bill at hearing — Supreme Court in Equity Act, 1890 (53 Vict. v. 4), s. 38. A bill may be taken pro confesso against a defendant though it does not disclose a cause of action against him. If a bill does not disclose a cause of action against a defendant, he may apply to have his name struck off the record, or apply at the hearing to have the bill dismissed. The facts sufficiently appear in the judgment of the Court. IF. Pvgsletf, Q.O., for the plaintiff. E. McLeod, Q.C., for the defendant, Helen E. Mac- donald. 1893. April 27. 532 NEW BRUNSWICK EQUITY CASES. 1893. 1893. April 27. Palmer, J. : — macBak in this case one of the female defendants (Mrs. Mac- macdonald donald) appeared by Charles A. Macdonald, and was — called upon to answer in the ordinary way. This she did not do, and an application is now (at the hearing) made to take the bill pro confesso against her for want of plea, answer or demurrer, in accordance with the pro- visions of s. ckS of 53 Vict. c. 4. Mr. McLeod now claims that the bill on its face should show some cause of ac- tion against her. In this contention he is in error. All the taking of the bill pro confesso means is, that the party against whom it is so taken admits the allegations in the bill; and if the bill contains no cause of action it is quite competent for her to have it raised at the hear- ing. As far as this defendant is concerned the case is found against her — that is all the allegations in the bill — if there is any cause of action, and if not, I do not see how it can affect her having the bill taken pro confesso, for this only proves what is alleged, and if there is no cause alleged, then, I think (though it does not arise, and I therefore do not now decide it) an application might have been made to strike her name from the re- cord with costs. But this is not necessary, for if the bill shows no cause off action the proper thing is to dismiss it at the hearing. I therefore order the bill to be taken pro confesso against Mrs. Macdonald. Where a bill does not show that a defendant is in some way liable to the plaintiff's demand, or that be has some interest in the subject of the suit, it may be demurred to: Story Eq. PI. s. 262; Daniell Ch. Pr. (4th Am. ed.) 321. If, however, the bill states that the defendant has or claims an interest, a demurrer, which admits the bill to be true, will not, of course, hold, though the "defendant has no interest; but the objection must be taken in another form, by plea or disclaimer: Story Eq. PI. s. 570; Daniell, 299. It is no ground of demurrer by one defendant that a co-defendant appears, by the bill, to have no interest: Roberts v. Roberts, 2 Ph. 534. Where a bill is taken pro confesso the plaintiff is not en- titled to such decree as he can abide by, but to such decree only as he is entitled to on the record: Stanley v. Bond, 6 Beav. 421; Haynes v. Ball, 4 Beav. 102. NEW BRUNSWICK EQUITY CASES;. 535 GERTRUDE LOASBY, an Infant, BY HER GUAR- 1893. DIAN OLIVER BARBERIE v. THE HOME CIR- — 7^Z CLE, JAMES WALKER, AND REVEREND PETER EGAN. Infant— Foreign domicile — ippoinlment of guardian— Jurisdiction— Life insurance — Trust — Action on policy — Person to sue.- Life insurance in The Home Circle, a United States corporation, taken out by L-, whose domicile was in Nova Scotia, was pay- able .to E. in trust for L.'s infant daughter by his deceased wife. Upon L.'s death E. was appointed guardian in Nova Scotia of the person and estate of the infant. The infant, after her father's death, removed to New Brunswick for a temporary ,r purpose, and B;, her maternal grandfather, having been ap- pointed .guardian of her person and estate in this Province, brought this suit to restrain The Home Circle from paying the insurance to E., or to any other person than B., and to restrain K from receiving it, and obtained an interim injunction. ffehl, that the insurance was payable to the legal persona] representa- tive of the deceased, and that the injunction should be dissolved. Senile, though the Court of this Province has jurisdiction to ap : point a guardian of an infant residing here, but domiciled else- where, it will not supersede the guardian appointed by the Court of the infant's domicile unless necessary in the infant's interest. This was an application by the defendants to dis- solve an injunction order in this suit. The facts are, fully stated in the judgment of the Court. Argument was heard June 12th, 1893. W. Pugsley, Q.C., for the plaintiff. A- 0. Ertrk, -Q.C., and R. F. Quit/In/, for the de- fendants. 1893. July 4. Palmer, J. :— , Frederick Loasby married the daughter of Oliver Barberie, who lives at Campbellton, in this Province. The daughter died about a year after marriage, after giving birth to the plaintiff, who is now about the age of i:$ years. After the marriage Loasby moved to Spring- hUJ, in the Province of Nova Scotia, and married a sec-, ond wife, and lived there for a period of about twelve years, the plaintiff, his daughter, living with him at his 534 NEW BRUNSWICK EQUITY CASES. 1893. dwelling until his death. Some time previous to his LoABBY death he insured his life with the defendants,. The Home home cibcle. Circle^ a Massachusetts corporation, haying its head Pa ,~j office at Boston, but doing business and having members both in this Province and in Nova Scotia, as well as in the United States. The insurance was effected by certi- ficate made by some members of the corporation at Moncton in this Province; and by it the loss was made payable to the defendant Egan, who is a priest of the Koman Catholic Church, in trust for the plaintiff. After the death of the insured his widow took out administra- tion in Nova Scotia of his estate, and Egan was appoint- ed -guardian of the person and estate of the plaintiff in that Province. Oliver Barberie was appointed guardian of the person and estate *f -the jdaintiff in this Province, and began this suit, claiming to htrve ike insurance money paid to him as such guardian, and to have the de- fendant Egan prevented from receiving the same. I accordingly granted an injunction order, ex parte, to restrain the defendant Egan from collecting the money, and the defendants, The Home Circle, from paying it to any person other than the plaintiff or her guardian in this Province, and this is a motion to 'dissolve that in- junction order. What I ought to do in that regard is somewhat influenced by the principles which would govern not only the right to the money itself, but the question into whose hands the money ought to go for the 'benefit of the plaintiff. .. : It .will be seen that the bottom of the controversy here is a conflict between the power of the guardiap ap- pointed in Nova Scotia and the one appointed in this Province. I think that although it is sufficient that an infant resides within the jurisdiction of the Court where the proceedings are taken to give jurisdiction for the ap- pointment of a guardian, and that it does not depend upon the legal domicile of the infant, yet the guardian appointed by the country in which the ward is domiciled is to some extent universal; and the appointment of such guardian in other countries is to some extent an- cillary. I think next to the parents of a minor the NEW 'BRUNSWICK EQUITY CASES.- 535 country in which its father was domiciled at the time 1893. of his death, acting through its proper Courts, has the £^,y — greatest interest in such infant's welfare; it is that HoME circle- country in which her circumstances are best known, and Pa] ~ x it is there that the education and mode of living and marriage of such minor can be most wisely settled. Therefore, I think the Courts in all countries best sub- serve the interests of the infant 1 by recognizing the for- eign domiciliary guardianship in all cases wh£re it is conducive to the interests of the ward.* I think the ques- tion of the recognition of foreign domiciliary guardian- ship is one of local policy; but not based on caprice. It is. a rule of private international law that the Court in the case of a minor will, when there is no positive local law in the way, and nothing in the foreign guardian repug- nant to local institutions, support the authority of the. guardian existing under the law of the minor's domicile, and will not defeat it unless it should be abused. I think I am justified in repeating what Lord Campbell said in addressing the House of Lords in Stuart v. Bute (1), that this Court" has undoubted jurisdiction over the case con- ferred upon it by the Sovereign as parens patriae, and it is its duty to take care of all infants who require its. protection whether domiciled in this Province or not, but the benefit to the infant is the foundation of the juris, diction and must be a test of its right exercise. I think here the application for the guardianship of this infant in this Province, where she has no property, was cer- tainly made with the intention of superseding the Nova Scotia guardian, the infant being domiciled in Nova Scotia and being in New Brunswick only for a tempo- rary purpose, and having no property whatever here. The plaintiff being a foreign child in this Province, this Court had a right, without inq,uiry as to whether the previous guardian in Nova Scotia was sufficient, if it ■-* See Dawson v. Jay, 3 DeG. M & G. 764; Nugent v. Vetzera, L. K. ■2 E3> 704. The appointment of Rev. P. Egan, by the Probate Court of Cumberland Co., N. S., as the guardian of the person and estate of the plaintiff was subsequently cancelled by the same Court on the applica- tion of the plaintiff, and ':er grandfather Oliver Barbarie appointed in his stead. See Loasbij v. Kgan, 27 N. S. 349. (1) 9 H. L. C. 440, at p. 463. 536" NEW BRUNSWICK EQUITY CASES. 1893.. appeared to be for the benefit of the child, to make iirs — loasby appointment of a New Brunswick guardian, yet it does homk "circle. n °t follow from that that the foreign' guardian is to be Palmer J. entirely ignored or that such guardian, duly appointed in a foreign country, may not come into this country and claim that his ward- was stealthily or improperly car ried away from him. On the contrary, an alien fathei whose child had been carried away and carried into this. Province would undoubtedly have the child restored to him by a writ of habeas corpus, and I believe the same remedy would be afforded if a guardian standing in loco parentis applied on the ravishment of his ward. The question of the situs of a deceaseds property is much discussed in English cases under the doctrint of bona notabilia, and the decisions there are that the jurisdiction to grant administration in reference to debts due the deceased person never follows the residence of the creditor, but they are always bona notabilia where the deceased person resided. Specialties are bona notabilia where they are at the. time of the creditor's decease, and simple contract debts where the debtor resides. See the judgment of Lord Abinger, C.B., in Attorney-General v. Bowwens (2). in this view this infant had no property in this Pro vihce while she was domiciled in Nova Scotia, but all this would not be absolutely decisive of the question whether this injunction should be continued or not; such consideration would only be applicable to property actu- ally vested to the infant. This order was granted under the idea that the defendant Egan had the legal right to enforce the payment of this insurance money, and that he held such right of action in trust for the infant, and it was alleged that he would abuse his trust, but it turns out that this is not the legal right of the parties at all. The obligation of the defendants, the insurance company, to pay is an obligation to the dead man and his personal representatives and to them alone. The defendant Egan could not discharge it from that obligation, and only the personal representatives of the assured could. See (2) 4 M. & W. 172, at p. 191. NEW BRUNSWICK EQUITY CASES. 537 Cleaver v. Mutual Reserve Fund Life Association (3). 1893. Therefore, in any view of the case, such personal repre- LoASBT sentative must be .a party to any suit that would enable HoME circle this Court to Seal with the property in any way. p a ta», j. I might perhaps remedy that by amendment if I could see that there would be any -danger of injury to the plaintiff's interests if I did not interfere, but I have no right to assume that the Courts of Massachusetts or of Nova Scotia, in whichever of these places the personal representatives of the assured are, will appoint any ad- ministrator of the assured's estate without taking proper security to secure the interests of all persons who may be beneficially interested in the assets which come into the hands of such administrator. It appears to me it is there, and not here, that this plaintiff should seek the aid of the Courts to effectuate that object. I am, therefore, clear that this injunction order never should have been made, and it must be dissolved. The question of costs of this motion will be reserved, and the plaintiff will have leave to make any other ap- plication that she may be advised is necessary in order to protect her interests. The general rule that a beneficiary named In a policy of life insurance cannot maintain an action on the policy, but that it must be brought in the name of the legal personal representa- tive of the insured, was expressly followed in Abbinett v. North Western Mutual Life Ins. Co., 21 N. B. 216. It would seem that an action on a policy within the provisions of the Act 58 Vict, c. 25 (N. B.), to secure the benefit of life insurance to wives and children should be brought in the name of the beneficiary. See Campbell v. National Life Ass. Co., 34 U. C. Q. B. 35; Fraser v. Phoenix Mutual Ins. Co., 36 U. C. Q. B. 422. Where a policy is assigned either absolutely, or by way of mortgage, the assignee can give a valid discharge in equity to the insurers without the concurrence of the legal personal representative of the insured : Ottley v. Gray, 16 L. J. Ch. 512; Ford v. Ryan, 4 Ir. Ch. Rep. 342. By the Policies of Assurance Act, 1867 (30 & 31 Vict. 144), Imp., assignees of life insurance policies were enabled to sue thereon in their own names. Where an assignment was insufficient un- der the Act, the assignee having but an equitable title by deposit of the policy the insurers were held justified in refusing to pay without the concurrence of the legal personal representative of the assured: Crossley v. City of Glasgow Life Ass. Co., 4 Ch. D. 421. The Court, however, may dispense in such a case with the presence of the legal personal representative under section 44 of 15 & 16 Vict. c. 86, ibid. See corresponding section, s. 89 of 53 Vict. (3) [1892] 1 Q. B. 147. 538 NEW BRUNSWICK EQUITY CASES. 1893 c ' 4 ^" B ^' In Wet,ster v - British Empire Mutual Life Ass. Co., '__ 15 Ch. D. 169, Jessel, M.R., following his decision in the former loasby case, made a similar order; the ground of his decision being, as Homi3 cieole. po i nted out by cotton, L.J., on appeal, that though there was no legal personal representative to give a discharge to the insurers, as he had power to dispense with the presence of the legal personal representatives, his decree would be a good discharge to them. Cotton, L.Ji, doubted the regularity of this practice, and James, L.J., expressed surprise that a decree was made in the absence of the legal personal representative. However, in Curtius v. Caledonian Fire and Life Ins. Co., 19 Ch. D. 534, the jurisdic- tion of the Court to make such an order, and the propriety of its exercise, were expressly affirmed, particularly where the legal personal representative would have no interest in any of the pro- ceeds of the policy. A trustee of a policy of life insurance can give a good discharge of its payment, though under the trust he has no express power to give receipts: Fernie v. Maguire, 6 Ir. Eq. 137; Glynn v. Locke, 5 Ir. Eq. 61; Curtin v. Jellicoe, 13 Ir. Ch. Rep. 180. 1893. In re THE PETITION OF WILLIAM G. BATEMAN. Junes. CHUTE et al. v. AMELIA GEATTEN et al. Married woman — Separate estate — Agreement for mortgage — Suit by creditor — Decree — Priority. A married woman owning leasehold land as her separate estate, agreed by parol with A. that in consideration of his building a house thereon she would secure him by a mortgage" of the premises, and the house was accordingly built. Subsequently she became indebted to the plaintiffs, and they obtained a decree charging her separate estate with their debt. The decree was never registered. After the decree she gave a mortgage to A. in accordance with her agreement with him, and the mortgage was duly registered. In a petition by A. to have the mortgage declared a valid charge upon the property in priority to the plain- tiffs' decree: — Held, that the plaintiffs' decree must be postponed to the equities existing against the property in favour of A. at the time of the decree. The facts fully appear in the judgment of the Court, and on appeal, 32 N. B. 549. Argument was heard May 29th, 1893. W. W. Wells, Q.C., and W. A- Russell, for the peti- tioner. R- B- Smith, and James McQueen, for the plaintiffs. The defendants did not appear. 1893. June 5. Palmer, J.: — This was a petition filed by William Bateman. The facts are that the female defendant, a married woman, having in her own right a small piece of leasehold land, NEW BRUNSWICK EQUITY CASES. 539 in the county of Westmorland, and some furniture,, 1893. agreed with the petitioner that he should build a house j^r e and barn on the land for the cost of which she and her BATEMAN - husband were to give him a mortgage. The petitioner «. Geatten tt, dl. accordingly built the house and barn at a cost of $1,100 — • upon which she made a payment of $20. Subsequently the female defendant bought an organ from the plain- 1iffs, and having made default in its payment, they com- menced this suit for a decree charging her separate estate with the debt, and that it might be ordered to be sold if the amount was not paid, and a decree to that effect was made. The decree was served on the 20th of February, 1892. The petitioner had notice of the decree and of its service. In April following the defendants, Grat- ten and wife, executed to the petitioner a mortgage ac- cording to the terms of their agreement, and it was duly -peeawded -m ttoe offiee of "the "registrar of deeds and wills for the county of Westmorland. The decree obtained by the plaintiff was never registered in this office. The sole question now is whether the decree created a prior lien on the separate property of the female defendant. To decide this the first question that arises is whether the agreement for the mortgage could be enforced in a Court of Equity. It was clearly within the Statute of Frauds and therefore could not unless on the ground of part performance. The petitioner created the whole property by erecting the house and barn, and he never intended to part with the title in them or the materials »sed in their construction except ,upon their being •harged with a mortgage in his favour. It was argued that this alone did not amount to a part performance that would take the case out of the statute. I think the case comes within the principle that any laying out of money in improving real estate is a part per- formance. See Reddin v. JarmynO-). This disposes of the case, for if such an equity existed the lien of the plaintiffs would only charge so much of the property as would remain in Mrs. Gratten at the time it was pro 1 nounced* But, if it had been otherwise, I do not think f-i) lfi L. T. 449. « See Tnwman v. fTnotliearth, 1 N. B. Eq. 83— Ed. 540 NEW BRUNSWICK EQUITY CASES. 1893. it would have made any difference to the plaintiffs' 77^ rights where they would depend upon the effect of the batkham. decree charging a married woman's property with her *• , debts. I think the decree is the same as a judgment at GiiATTiiN et al. ,-,.,.,.» — law against a person not under disability of marriage, except that the Court has no power against a feme covert in personam. If she has personal property it has control over that, but it must proceed in rem against that property, for a feme covert is not competent to give a remedy against herself, and it has never been held, that by her contract she can create a lien on her pro- perty for the payment of her debts. Her creditor would have the right to get a decree and execution against her property. The right to deal with it after contracting debts and being sued therefor in regard to her disposi- tion of her property is exactly the same as a man's. See Robinson v. Pickering (2), It is settled law that in such cases the right of the creditor is to go against this particular fund — that is, the feme covert's sepa- rate estate. Again, if the contracting of the debt could be a charge on the separate estate then such would take effect according to the priority of the dates of the debts, and as the petitioner was first he would have to be paid first. Then as to the effect of the decree. The propositions I have discussed show, that its' effect is to bind the property the same as a judg- ment at law. If such a judgment were recorded it would bind the land from that time, and an execution issued thereon would bind the personal property within the bailiwick of the sheriff and held i;nder that execution, .and that is the extent to which the property is held, and subject to that the owner of the property would have the right to charge the property or sell it. It follows that all this Court can do is to so charge it subject to any, prior charges either in law or equity that are created against it. Therefore the effect of the judgment will be that there will be a direction to the Referee to either sell the property subject to the petitioner's mortgage, or ip case he sells it, then to pay first the amount of the {■2) 16 Cli D. C>60. ■ - NEW BRUNSWICK EQUITY CASES. ,541 petitioner's mortgage, and afterwards pay the plaintiffs. 1893. Inasmuch as the plaintiffs have made this contest and "in n " ~ failed thev must pay the costs of it, and the order will Bateman - be made accordingly.* „ »• " ' Grattisn ft al. * Affirmed on appeal, 32 N. B. 549. „ , T rr Palmer, J. EOBEETSON v. THE BANK OF MONTREAL et al. THE SAME v. THORPE et al. 1892. Garnishee — Fire Insurance — 'Assignment — Priority — Remedy in Equity— April 12. Staying proceedings under Garnishee Act. The loss payable under a policy of fire insurance was assigned by the as- sured to the plaintiff with the consent of the insurers. A loss occur- ring, the defendant, a judgment creditor of the assured, obtained an attaching order under Act 45 Vict. c. 17, against the insurers. In a suit by the plaintiff for a declaration of his title to the insurance, and to restrain the garnishee proceedings, he alleged that the defen- dant intended setting up the claim that the assignment to the plain- tiff was fraudulent, and that the plaintiff had merely an equitable title, which could not be used to defeat the defendant's rights under the garnishee process. The plaintiff also alleged that his assignor was insolvent, though he did not allege that the assignor had refused to allow an action at law on the policy in his name. Held, that the plaintiff was entitled to have his rights determined in equity, instead of under the garnishee proceedings, and that an injunc- tion should be granted. An assignee of a policy of fire insurance is entitled to sue thereon in equity where the assignor is insolvent, without a refusal by him to al- low an action at law in his name. Alfred J. Babang carried on business as a, retail and wholesale merchant at Moncton. Becoming involved in financial difficulties he applied to the plaintiff for as- sistance and undertook to secure him against any loss arising therefrom. The plaintiff made him numerous advances of money from time to time amounting on' the first of May. 1890, to $2,000. The plaintiff also endorsed a large number of promissory notes for Babang's accom- modation. Babang was the owner of a warehouse sit- uate on Duke street in which he kept stored a quantity of merchandise. The merchandise was insured with the Citizens Insurance Company of Canada against fire for the sum of $1,000, and with the British American As- surance Company for a like sum. The building was in- sured in the latter company for $800. For the purpose of securing the plaintiff Babang assigned the loss under 542 NEW BRUNSWICK EQUITY CASES. 1892. Robertson Bank of Montreal. both policies, -with the consent of the companies, to the plaintiff. A fire occurring in September, 1891, both the building and the stock were badly damaged, and each company became liable to pay |900 on the stock. The loss on the building was adjusted at $751. The Bank of Montreal recovered a judgment against Babang for a large amount, and on the first of October, 1891, took out an attaching order under the Garnishee Act, 45 Vict. c. 17, attaching any money payable by The Citizens Insur- ance Company and The British American Assurance Company to Babang. On the fifteenth of December, 1891, the Bank of Montreal took out a summons against the former company to show cause why an execution should not issue against them for the payment of the . money due Babang. The defendant, Thorpe, was a judg- ment creditor of Babang, and on the twenty-eighth of September, 1891, took out a similar attaching order against both insurance companies. The plaintiff brought suits for an injunction against the Bank of Montreal and Thorpe from proceeding against the insurance com- panies by garnishee process to enforce payment to themselves of the money assigned to the plaintiff, and for a declaration that the same was payable to the plain- tiff. The plaintiff by his bill of complaint alleged that the Bank of Montreal and Thorpe claimed that the as- signment to the plaintiff was made for a fraudulent pur- pose; and that as the policies in law were payable to Babang the plaintiff had merely, an equitable interest which could not be set up under the Garnishee Act to defeat the title of the Bank of Montreal and Thorpe. The plaintiff also stated that Babang was in insolvent circumstances. Both suits were heard together. D. L. Ilunvnyton, Q.C., for the plaintiff. H. H. Mvlx'tm, for the Bank of Montreal. \Toseph A. Harris, for the defendant Thorpe. G- C Coster, for The Citizens' Insurance Company of Canada, and The British American Assurance Com- pany. NEW BRUNSWICK EQUITY CASES. 543 1892. April 12. Fraser, J.:— I think I ought to grant the injunction asked for in these cases. Prima facie the plaintiff is in equity the" party entitled to the moneys payable by the two defen- dant companies under the policies effected with them by the defendant Babang. No doubt the defendants, the Bank of Montreal and Thorpe, being judgment creditors of Babang might very properly apply for attaching orders under the Act to provide for garnishee or trustee process, 45 Vict., c. 17, to attach any debt or debts, sum or sums of money due and owing to Babang, their judg- ment debtor, but where it is disclosed that the debt has been previously assigned to a third party, as in the pres* ent case, to the plaintiff Robertson, it may be question- able whether the judgment creditors have the right even to call upon the garnishees to show cause why they should not pay the debt to them, because in such case it is not a debt which can be attached: Hirsch v. Coates (1). The judgment creditors may have the right as against the garnishees to obtain the orders men- tioned in the 9th section as was done in this case, and the companies could no doubt set up as a defence that the debt had been assigned to the plaintiff, and that they were liable to pay it to the plaintiff. Mr. McLean con- tended that under the 11th section the plaintiff could intervene and have the full benefit of his assignment, because the section states that the judgment debtor, the garnishee and all other parties in any way interested in or to be affected by the proceeding shall be entitled to set up any defence, etc. It does not appear, however, from the section how the other parties interested are to in- tervene, nor does it provide for notice to the parties in- terested. It is true that under the 16th section a party entitled to or interested in any money or debt attached may at any time apply to the Judge of a County Court for an order to discharge such money or debt from the ilaim of the judgment creditor, but I do not see that it s compulsory upon the party entitled to the money to take such a proceeding. (1) 18 C. B. 757. 1892. Robertson v. Bank op MONTIiEAt-. Fraser, J. 541 NEW BHUNSWICK EQUITY CASES. 1892. Tbe Judge of the County Court would not I appre- robektson hend have any jurisdiction under the 18th section un- bink of ^ ess ^e claim was made by the plaintiff, and the Judge Montreal. was required by him to act under that section. Neither Fraser, J. Babang nor the defendant companies could ask the Judge to compel the plaintiff to put forward his claim with a view to its adjudication under that section — the proceedings under that section I think, as I have already stated, can only be taken at the instance of the plaintiff. "While I am not prepared to say that the plaintiff might not, if he so desired, have his claim adjudicated upon under some of the sections of the Garnishee or Trus- tee Process Act, I see nothing in the Act to compel him to do so, and besides there appear to be difficulties in his having that full right of defence, if. he is to be put upon his defence, that he ought to have. Then the plain- tiff may well say that he is the person entitled to the moneys payable by virtue of the policies and should not be prevented by a collateral proceeding between other parties from instituting his own suit to recover these moneys. Further, it seems to me from the allegations in the bills, and which allegations are not disputed by the defendants, the Bank of Montreal and Thorpe, they in- tend to contest the plaintiff's right to the moneys on the ground of fraud, and if so fraud is a proper subject for inquiry in a Court of Equity, although it might also if the plaintiff so desired be inquired into by the Judge of the County Court under the Garnishee Act. 1 see nothing, however, in the Garnishee Act to deprive the plaintiff of his right to institute a suit for the recovery of the moneys payable to him under the policies. It was urged that even if the plaintiff was the assignee of the moneys he could not proceed in Equity, but. must pro- ceed at law in the name of Babang to recover them. And in support of this proposition Hammond v. Mes- senger (2), and Kerr v. Steeres (3), as also West v. The Trustees of School District No- o, Parish of Johnston (4), were cited. The plaintiff, it is true, has not alleged that he had requested Babang to allow his name to be used (2) 9 Sim. 327. (3) 22 N. B. 124. (4) 22 N.B. 72. NEW BRUNSWICK EQUITY CASES. 545 in a suit at law to recover the money, but I think he has 1892. sufficiently brought himself within the principle laid BoBPnTSON down in the cases cited. He has, I think, stated special The k ^ nk o circumstances which show that his remedy at law might moktbkal. be obstructed by suing in the name of the assignor, Eraser, j. Babang, because he sets forth in his bill that the as- signor has become insolvent, and that of itself would, I think, be a sufficient ground for his proceeding in Equity. And then again, it seems that the companies themselves have by their indorsement on the one policy and ou the face of the other assented to the plaintiff be- coming the assignee of the policy moneys, and admitted that the plaintiff's claim is one which can be enforced in his own name, and, if so, Equity is the only Court in which he can sue in his own name. As Thorpe lias an attaching order against the com- panies granted by Judge Landry, of the Westmorland County Court, on the 28th September last, and the Bank of Montreal an attaching order granted by Judge Peters, of the St. John County Court, on the 1st day of October last, and as they are made defendants in these suits, complete justice between all parties can be done by an adjudication in these suits. The defendant companies, it was admitted, have been ready and willing to pay to the parties entitled the moneys payable as losses under the several policies, and while Mr. Geo. C. Coster, who appeared before me as counsel for the companies, stated he could not very well agree to an order being expressed to be made by con- sent of the companies for the payment into Court of the moneys payable as losses under the policies, yet if the Court thought such order should be made and did make it that the company would of course comply with it, and pay the money into Court. He further claimed that if such order was made the companies should not be made to pay any interest as they have always been ready and willing since the adjustment of the losses to pay the amount of such losses to whoever was entitled to it, and that they have hitherto fnreborne. to file a bill of inter- pleader simply because they did not want to put the parties to the expense of such a proceeding. K n °t as a shareholder in his own right, but brpsswick. as the representative of the deceased shareholder. This Palmer, j. j s f great importance, because in one case his personal estate would not be liable for the liability of the share- holder, and the assets of the estate in his hands would be, whereas if the stock had been assigned to him he would be himself personally liable and the estate would not. In the latter^ case he would become a shareholder, but in the first he may if he likes transfer the shares without becoming a shareholder at all. The statute contains a different set of directions for the transfer of shares than it does for the transmission of shares. In the light of what I have said, this plaintiff as ad- ministrator de bonis non of John Boyd not only had the legal title to the sixty-two shares, but the transmission of them was registered in his name, so that as far as they were concerned, his right to transfer them was com- plete, unless the bank was bound to take notice and see that he applied the proceeds of the shares and sales ac- cording to law, which would be, as I said before, first to pay the funeral expenses and expenses of the estate, then the debts, and afterwards to give what was left to the legatees. I have shown by decided cases that no such obliga- tion was upon the bank previous to the passing of the Bank Act, and such an obligation would be burdensome and impossible of performance by the bank, because, if you once admit that the bank would be chargeable with seeing that the executor performs his trust, it is im- possible, as is said in the cases I have referred to, to put any limit to such liability, for with notice it would be charged to the fulfilment of every trust no matter how wide, and, as I said before, no Court would be warranted in putting such an obligation upon all the banks in this country without a very clear declaration of the Legisla- ture to that effect. The only suggestion of anything of the kind in the Act is that because the probate of the will or the letters of administration are to be produced to the bank, that the object is to see in whose favour NEW BRUNSWICK EQUITY CASES.- 553 there are legacies or trusts of any kind. It appears to 1891. me that would be a very strained construction, indeed, j^, for there is another very clear object the Legislature BANK oi. KEW could have had in requiring that, and that is to furnish Bkunsw "' k - the bank with evidence of the legal title of the person Pa)mer > J - to whom the stock has been transmitted. I, therefore, am clear that the bank is under no such obligation what- ever. How can the bank tell how much money these estates or any other estates may owe to creditors? The law has entrusted the legal title to the stock to the ex- ecutor or administrator, and has guarded the rights of the different cestuis que trust, creditors, devisees and legatees. First, an executor is the choice of the man who owned the property, the testator, and where an ad- ministrator is appointed by law, he is compelled to give security. I therefore think I must decide the matter in favour of the plaintiff and order the bank to make the transfers in the ordinary way. The matter of costs I have been somewhat in doubt about. I .-am satisfied, notwithstanding the bank's mis- take, the directors honestly believed that they could not safely make the transfer without rendering themselves liable to the legatees, and they are simply trustees for the different shareholders. On the one hand they are bound to protect the whole body of shareholders, and on the other they are equally bound to see that the par- ticular shareholder's (the plaintiff's) rights are fully preserved, and the question of costs, after all, is, whether the expense of deciding this should fall upon the estate of the whole of the shareholders or upon the particular one. As the claim on behalf of the whole has turned out to be wrong, I will follow the high authority of Lord Eldon in the case of The Bank of England v. Par- sons (4), and direct the bank to pay the costs out of the general funds of the bank up to the present time, if they permit the transfer of the shares. If this is done I will direct both suits to be stayed. If it is refused there , must be a decree for the plaintiff for costs. I reserve ail questions with liberty to all parties to apply for further directions. (4) 5 Yes. 665. 554 NEW BRUNSWICK EQUITY CASES. 1891. Tne statute incorporating the Molsons Bank provides, by BoTD section 36, that the bank shall not be bound to see to the execu- „, tion of any trust -whether express, implied or constructive, to bank op New which any of its shares may be subject. A shareholder be- Bbunswick. queathed shares to trustees and executors to hold in trust for a person during his life, and then over to his issue. The trustees transferred absolutely the shares to the beneficiary having a life interest, and the bank registered the transfer. In an action by the transferee's issue against the bank, it was held by the . Judicial Committee of the Privy Council, on appeal from the * Court of Queen's Bench of Quebec, thai the bank, in the absence of actual notice of breach of trust, was not liable, having regard to the above section of its act of incorporation: Simpson v. Molsons Bank, [1895] A. C. 270. Lord Shand, delivering the judgment of the Judicial Com- mittee of the Privy Council, after quoting the above section, said: " This language is general and comprehensive. It cannot be con- strued as referring to trusts of which the bank had not notice, for it would require no legislative provision to save the bank from responsibility for not seeing to the execution of a trust, the existence of which had not in some way been brought to their knowledge. The provision seems to be directly applicable to trusts of which the bank had knowledge or notice; and in regard to these the bank, it is declared, are not to be bound to see to their execution. Apart from the provision of the statute, it may be that notice to the bank of the existence of a trust affecting the shares would have cast upon them the duty of ascertaining what were the terms of the trust; and that in any question with the beneficiaries whose rights had been defeated by the absolute transfer in favour of .Alexander Molson, the bank, whether they had inquired or not, might have been held to have constructive knowledge of all the trust provisions. Assuming, this point in favour of the appellants, their Lordships, however, see no reason to doubt that by the clause in question the bank are relieved of the duty of making inquiry, and that they cannot be held respon- sible for registering the transfer, unless it were shown that they were at the time possessed of actual knowledge, which made it improper for them to do so until at least they had taken care to give the beneficiaries an opportunity of protecting their rights." Arid see Societe Generale de Paris v. Tramways Union Co., 14 Q. B. D. 424; 11 App. Cas. 20. On the ground that the Bank of England is exonerated by the National Debt Act of 1870 from having regard to trusts of any kind it was held in Law Guarantee and Trust Society v.. Bank of England, 24 Q. B. D. 406, that The Bank could not be compelled to register a transfer of consols in the joint names of a corporation and an individual. APPENDIX. The opportunity afforded by this volume to publish the judgments delivered by the Supreme Court of Canada in Sears v. The Mayor, etc., of the City of St. John, and omitted in the report of the case in 18 S. C. R. 702, is gladly taken by the Editor in compliance with the sug- gestion of Dr. Earle, Q.C., by whose courtesy the judg- ments were placed in the Editor's hands, The judgments given are those of Sir W. J Ritchie, O.J., and Gw3'nne and Patterson, JJ. The judgments of Taschereau and Strong, JJ., who took part, are not available. The head note ac- companying the judgments is from the report of the case, 18 S. C, R. f02. SEARS, (Plaintiffs) Appellants v. THE MAYOR, ALDER- MEN AND COMMONALTY OF THE CITY OF SAINT . JOHN, (Defendants) Respondents. On appeal from the Supreme Court of New Brunswick. Lessor and Lessee — Covenant for renewal— Option of lessor — Second term — Possession by lessee after expiration of term — Effect of — Specific perfvrnCance. A lease for a term of years provided, that, when the term expired, any buildings or improvements erected by the lessees should be valued and it should be optional with the lessors either to pay for the same or to continue the lease for a further term of like duration. After the term expired the lessees remained in possession for some years when a new indenture was executed which recited the provisions of the original lease and , after a declaration that the lessors had agreed to continue and extend the same for a further term of fourteen years from the end of the term granted ihereby, at the same rent and under the like covenants, conditions and agreements as were ex- pressed and contained in the said recited indenture of lease, and that the lessees had agreed to accept the same, it proceeded to grant the further term. This last mentioned indenture contained no in- dependent covenant for renewal. After the second term expired the lessees continued in possession and paid rent for one year when they notified the lessors of their intention to abandon the premises. The lessors refused to accept the surrender and after demand of fur- ther rent, and tender for execution of an indenture granting a fur- ther term, they brought suit for specific performance of the agree- ment implied in the original lease for renewal of the second term at their option. 1889. October 24, 1890. * Present :— Sir W. J. G Wynne and Patterson, J J. Eitchie, C.J., and Strong, Taschereau., * March 10. 556 APPENDIX. 1890 Held, affirming the judgment of the Supreme Court of New Brunswick ' (28 N. B. 1.), Ritchie, C- J., and Tascliereau, J., dissenting, that the Sears lessors were not entitled to a decree for specine performance. The Mayok ^ e ^> P er Gwynne, J., that the provision in the second indenture gran- etc. of the ting a renewal under the like covenants, conditions and agreements City of St. as were contained in the original lease, did not operate to incorporate John, in said indenture the clause for renewal in said lease which should Ritchte C J. have been expressed in an independent covenant. Per Gwynne, J. Assuming that the renewal clause was incorporated in the second indenture the lessees could not be compelled to, accept a renewal at the option 'of the lessors, there being no mutual agree-, ment therefor ; if they could the clause would operate to make the lease perpetual at the will of the lessors. Per Gwynne and Patterson, JO". The option of the lessors could only be exercised in case there were buildings to be valued erected during the term granted by the instrument containing such clause ; and if the second indenture -was subject to renewal the clause had no effect, as there were no buildings erected during the second term. Per Gwynne, J. The_ renewal clause was inoperative under the Statute of Frauds which makes leases for three years and upwards not in writing, to have the effect of estates at will only, and consequently there could be no second term of fourteen years granted except by a second lease executed and signed by the lessors. Per Ritchie, C.J., and Tascliereau, 3. The occupation by the lessees after the term? expired must be held to have been under the lease and to signify an i-itention on the part of the lessees to accept a re- newal for a further term as the lease provided. The facts fully appear in the judgments of the Court. II. L. Sturdee, for the appellants. I. Allen Jack, for the respondents. Sir W. J. Ritchie, C.J.: — The facts upon which the decision in this case de- pends are as follows : — On the 24th of July, 1855, one Edward Sears, by in- denture executed by him and the respondents, leased certain premises in the city of St. John, New Brunswick, to the respondents for fourteen years, from the 1st day of May then last past, at the rental of £100, payable by even and equal half-yearly payments, on the first days of No- vember and May in each year during the term. This in- denture contained a covenant, upon the proper construc- tion of which in connection with the attendant circum- stances, the determination of this appeal depends, and which is as follows : — " And it is mutually agreed, covenanted and under- stood, by and between the parties to these presents, that in case the said The Mayor, Aldermen and Commonalty John. Ritchie, C.J. APPENDIX. 557 of the City of St. John, their successors or assigns, shall 1890. erect and put up any buildings or improvements upon the gEABB said demised premises within and during the said term, THF jj AT0Bf the same shall be valued and appraised by two different "^ °| £* E persons, one to be chosen by and on the part of the said The Mayor, Aldermen and Commonalty of the City of ►St. John, their successors or assigns, the other by and on the part of the said Edward Sears, his heirs and assigns, and which two persons, in case of disagreement, shall choose a third, the appraisement or determination of any two of whom shall be final and conclusive, and it shall be at the option and election of the said Edward Sears, his heirs and assigns, to pay or cause to be paid to the said The Mayor, Aldermen and Commonalty of the City of St. John, their successors or assigns, such appraised value of such buildings or improvements to the extent of -five hundred pounds, or to continue and extend the lease and demise of the said lot of land and premises with the said right of way unto the said The Mayor, Aldermen and Commonalty of the City of St. John, their successors or assigns, for a further term of fourteen years, at the same yearly rent, payable in like manner and under the like covenants, conditions and agreements as are expressed and contained in these presents ; and so as often as such case shall happen at the end or expiration of any lease or demise of the said premises, for any further term or terms, there shall be a like valuation and a like option as hereinbefore men- tioned." The respondents entered into and continued in pos- session of the demised premises and paid rent as the same matured, until the 1st day of May, 1877; and also, during the term granted by the said indenture, erected a building on the demised premises. On the 1st October, 1877, the assigns of the reversion in the premises, by indenture executed by them and the respondents, re- newed and continued the demise of the premises for four- teen years from the 1st day of May, 1869, at the same yearly rent, payable in the same manner, and under the like covenants, conditions and agreements as are ex- 558 APPENDIX. 1890. Sears v. The Mayor, etc., op the City of St. John. pressed and contained in the said recited indenture of lease. The renewed lease expired on the 30th April, 1883, and the respondents continued in possession and paid rent for more than a year after that. On January 28th, Ritchie, c.j. 1884, the respondents sent a notice under their corporate seal and addressed to the lessors as follows: — " Gentlemen, — You are hereby notified that the Mayor, Aldermen and Commonalty of the ' City of St. John will deliver up to you on the 1st day of May next your lot of land and premises mentioned and described in the lease thereof made to the said Mayor, etc., by Eobert Sears and others dated on or about the first day of October, A.D. 1887, as follows": (describing the lot). On April 30th, 1884, the appellant, John Sears, re ; ceived from the respondents the following letter under their corporate seal, addressed to the lessors: " Gentlemen, — The Mayor, etc., of the city of St. John having pursuant to their notice to you, dated the 28th of January last, gone out of possession of the lot formerly held by them under lease dated the first day of October, 1877, which lease has expired, enclosed you will find the key of the building on the lot sent to you on delivering up to you the possession of the lot and the buildings and improvements thereon." On May 3rd, 1884, the appellants' solicitor wrote to the respondents the following letter, addressed to the Common Clerk of the City: " Dear Sir, — I am instructed by Mr. John Sears to acknowledge the receipt by him yesterday of your com- munication of the 30th ult., addressed to Robert Sears, John Sears and George Edward Sears, and to return to the corporation of St. John the key which you enclosed. The Messrs. Sears refuse to accept possession of the premises referred to in your letter, and under the terms of the lease will look to the lessees for payment of the rent as it matures." On the same day the Common Clerk replied to this letter stating that the return of the key was not accepted, Seabs V. The Mayou, OF THE APPENDIX. 559 but that it Would remain at the Common Clerk's office at 1890. the risk of the landlords. Xo rent was paid by the re- spondents after the 1st of May, 1884, and the next rent fell due on the 1st of November and payment wa? de- "oSyofSt manded from the respondents, which was refused. In j0HM - January, 1885, the appellants tendered to the respondents Ritehie ' CJ - for execution a renewal of the said lease, which the re- spondents refused to execute. As at present advised, I think that when the pre- sent lessees continued to remain in possession and paid rent after the expiration of the term in the lease, they thereby elected to continue in possession under the terms of the lease, which provided l'or a continuance, and when the lessors, by receiving the rent, acquiesced in their so doing, it was an election on their part not to pay for im- provements, and both parties became bound by the terms of the lease, the landlords to continue the lease on the terms of the old one, and the tenants to continue their occupation on the same terms. This, in my opinion, was the natural and legal result from the continuing in possession and of the payment and receipt of rent, rather than the assumption that the lessees remained in possession wrongfully on sufferance. In other words, that the lessees continued lawfully in possession in accordance with the terms of the lease, instead of unlawfully adverse to the lessors, and subject to their election by mere implication of a new tenancy of an entirely different character. This was not a new contract or a new demise. The tenants continued in pos- session under the old contract and the old demise by vir- tue of the terms of the lease, and they were to all intents and purposes continuing tenants, and, therefore, there was no necessity for anything passing between the land- lords and the lessees as to the terms on which the oc- cupation was to continue. Both parties knew full well the terms of the lease. When the tenants continued in possession and paid rent, and the landlords accepted it. it must be assumed to have been subject to the terms under the lease, the contract beiug one and the same by which both parties held. In the absence of anything to show a different understanding the inference is, to my 560 APPENDIX. 1890. mind, irresistible, that the parties intended the occupa- seaks tion to continue under and upon the terms of the lease - the MAyon, and the very fact of the tenants remaining in possession city of St.' aild n °t asking for payment for improvements showed John. tflat t]ie tenants wished the continuance of the lease Bitcme, C..T. th€y mere]v act j ng on the i eage as the parties ha( j d(>ne r when the first term expired. The lessees continued in possession and paid rent, and such rent was accepted and the parties continued to occupy after the expiration of the first lease, which was on the 30th of April, 1869, and on the 1st of October, 1877, a new lease was executed for a further term of fourteen years, commencing from the expiration of the old lease. If the respondents continued in possession, paid their rent and the same was received by the landlords, in my opinion the rights of the parties thereby became fixed and established, and after that neither parties by their own acts could alter or interfere with them without the assent of the other. If the respondents now ealled on the ap- pellants to pay for the improvements, what would the appellants' answer be but that they (the respondents) had elected to continue in possession, and had paid their rent and it was acquiesced in and received by the landlords, and that the tenancy is still continuing on the terms of the lease, and that therefore there are no improvements for which they are now entitled to pay? The appellants in the sixth paragraph of their bill state that the buildings erected on the lands and pre- mises were damaged 1 by fire on the 20th of June, 1877, and that thereafter the building was repaired by the respondents, and that the respondents after the expira- tion of the indenture of lease and without any valuation of said buildings having been made, continued in pos- session of the said lands and premises, and paid the rent thereby reserved for the same to the said Robert Sears, John Sears, George Edward Sears and Edward Sears, Junior, up to and until the 1st of May, 1884. The respondents in their answer said: "We admit that the several allegations contained in the sixth para- graph of the said bill are true, but we allege in addition APPENDIX. 561 thereto that the building so repaired as alleged in the 1890. said sixth paragraph was built and was so repaired by j^^ us at our own cost during the continuance of the tenancy THE " lAY01l , under the indentures of lease mentioned in the said bill, ^t^of™ or of one of them, and that the said building so repaired JOHS " was standing and being on the said demised premises Gw y nne ' J - on the 1st day of May, 1884, and is now standing and being on the .said premises, and then was and now is of the value of one thousand dollars and upwards." The claim to be paid for the improvements which were put on the premises under the first lease and parti- ally destroyed by nre and repaired by the respondents during the second lease has never been released or aban- doned by the respondents, and the covenant to pay should the appellants refuse to continue the lease still exists in full force and effect. Under these circum- stances I think the appeal should be allowed. An objection! was taken that specific performance could not be adjudged in this case. I can see no objec- tion to the. defendants being compelled to execute the lease tendered to them in January, 1885, but if there were any technical difficulties in the way of decreeing specific performance, as chap. 49, sec. 53, Con. Stat. (N. B.) enacts that no suit shall be open to the objection that a merely declaratory decree or order is sought thereby, and that it shall be lawful for the Ju,dge to make a binding declaration of right without granting consequential relief, a declaratory decree of the appel- lants' right, which is prayed for by the bill, would, I pre- sume, answer all the purposes of a decree for specific performance. GrWYNNE, J.: — In my opinion this appeal should be dismissed with costs and the judgment of the Supreme Court of New Brunswick .sustained. One Edward Sears, by an indenture of lease dated the 4th of July, 1855, demised a piece of land situate in the city of St. John in the indenture of lease mentioned, unto the Mayor, Aldermen and Commonalty of the said EJ. CAS. — 36 562 APPENDIX. 1890. city, to have and to hold, to them, their successors and seaus assigns, " from the first day of May then last for the the mayor, term of fourteen years thence next ensuing-, yielding and *cityofSi' K paying therefor yearly and every year during the said John. term unto the said Edward Sears, his heirs and assigns, Gwynne, j. ^ e Tear iy re ntal or sum of one hundred pounds lawful money of the province of New Brunswick, by even equal half-yearly payments, on the first days of November and May in each and every year," and the said indenture was expressed to be executed upon the express condi- tion that if the said yearly rent thereinbefore reserved and made payable, or any part thereof, should be in arrear or unpaid by the space of thirty days next after any or either of the days in any year during the continuance of that demise whereon the same ought to be paid as afore- said, it should and might be lawful to and for the said Edward Sears, his heirs and assigns, into and upon the said lot and premises, or any part thereof in the name of the whole, to re-enter and the same to have again, re- possess and enjoy as in his and their former estate, as if these presents had not been made, and the said Mayor, Aldermen and Commonalty of the city of St. John there- out and therefrom to expel, put out and remove, the said indenture or anything therein contained to the contrary notwithstanding. The indenture then contained a grant of a right of way therein described and a covenant by the lessees to pay the rent by the lease reserved at the days and times therein appointed for that purpose. The indenture then contained the clause following: "It is hereby mutually agreed, covenanted and understood by and between the parties to these presents, that, in case the said Mayor, Aldermen and Commonalty of the city of St. John shall erect and put up any buildings or improvements upon the said demised premises within and during the said term, the same shall be valued and appraised by two indifferent persons, one to be chosen by and on the part of the said Mayor, Aldermen and Commonalty, their successors or assigns, the other by and on the part of the said Edward Sears, his heirs and assigns, which two APPENDIX. 563 persons, in case of disagreement, shall choose a third, 1890. the appraisement or determination of any two of whom — ^^ — shall be final and conclusive, and it shall be ait the option Thb ^ Ton and election of the said Edward Sears, his heirs and cStot*^ assigns, to pay or cause to be paid to the said Mayor, j 0HN - Aldermen and Commonalty such appraised value of such Gw y nne .J- bulldings or improvements, to the extent of five hundred pounds, or to extend and continue the lease unto the said Mayor, Aldermen and Commonalty for a further term of fourteen years, at the same yearly rent, payable in like manner and under like covenants, conditions and agreements as in the said indenture are expressed, and i-so as often as sueh case shall happen at the end or ex- piration of any lease or demise of the said premises for any further term or terms, there shall be a like valuation and the, like option as hereinbefore mentioned." Now this was an indenture of lease for a term of fourteen years certain. The term created thereby must and did terminate on the 1st May, 1869. The lease con- tained, it is true, a covenant by the lessor that, in the event of certain contingencies happening, he, his heirs or assigns, would execute another lease for a further term of fourteen years, to be computed from the expira- tion of the first term; but, unless the specified contin- gencies should happen, no obligation was imposed upon the lessor to give such further lease, and until such fur- ther lease should be executed the relation of landlord and tenant between the parties for such new term of fourteen years could not be created, for by the law of New Brunswick, chap. 76, sec. 7, Con. Stat., " all leases, estates, or other interests in lands, not put in writing, and signed by the parties, or their agents thereunto law- fully authorized by writing, shall have the force of leases or estates at will only, except leases not exceeding the term of three years." As the above covenant of the lessor was inserted wholly and solely for the benefit of the lessees, they could waive the benefit of it. In fact, they alone could be the actors in any proceeding for the enforcement of it. The lessor never could compel the lessees against their will to accept a new lease and so to become tenants of the 564 APPENDIX. 1890. lessor, his heirs or assigns, for a further period of four- teen years, for they entered into* no contract whatever, in writing or otherwise, to accept such a lease at the Sears v. The Mayor, KTO..OFTHB mere will of the lessor, his heirs or assigns. Now the City of St. . John. contingencies, the occurring of which imposed an obliga- Gwynne, ,t. tion upon the lessor, his heirs and assigns, under his covenant as to the execution of a new lease for a further term of fourteen years were: Firstly — That within and during the term the lessees had erected and put up some buildings and improve- ments, which remained upon the demised premises at the expiration of the term. Secondly — That the lessees should claim to be paid the value of the buildings and improvements so made and remaining on the demised premises. It was only upon these events occurring that the provision contained in the lease as to the valuation of such improvements and the payment thereof or the execution of a new lease for a further period of fourteen years by the -lessor, his heirs or assigns, came into operation. If no buildings and improvements had been erected during the term. 01- if none such remained upon the premises at the expira- tion of the term ; or if any being there, the lessees, either because of the smallness of their value, or for any odlier reason, claimed no payment whatever in respect of them, there would be no valuation under the provision as .to valuation in the lease, and the lessor, his heirs and as- signs, would be under no obligation whatever arising under his covenant either to pay anything to the lessees, or in lieu of payment to execute a new lease. What in fact occurred was this: The lessees did during the term erect certain buildings, which were upon the demised premises at. the expiraton of the term on the 1st May, I860, but there is no evidence that the lessiees made any claim to be paid for such buildings. All tliat occurred, so far as appears, and therefore all that for the purposes of the present case "must be taken to have oc- curred, was that, without anything having been said by the lessor or the lessees as to valuation of the buildings, or as to payment therefor, or as to a new lease for a term APPENDIX. 565 of fourteen years the lessees simply continued in posses- 1890. sion after the expiration of the term and paid the old — ^^ — rent until the 1st October, 1877. Upon the 3rd October, THp » iAyoK 1874, while the lessees were thus in possession, the lessor 'g^ ° ^ ™ executed an indenture whereby he granted, bargained j0HN - and sold the demised premises, together with other lands, °wynne, j. to Robert Sears, John Sejirs, George E. Sears and Wil- liam,. 31. Sears, upon certain trusts in the said indenture declared and amongst others, upon trust to demise from •year to year, or for any term or number of years, with or without a clause of renewal or provision for payment for improvements, all or any part of the real and lease- hold estate thereby conveyed. The grantees under this deed continued to receive from the present respondents until the 1st of October, 1877, without anything being said as to the nature of the respondents' tenure, rent at the same rate as the respondents had previously paid. Now, under these circumstances, what was the rela- tion existing between the respondents and the owners in fee for the time being of the premises in question from the expiration on the 1st of May, 1869, of the term cre- ated by the indenture of lease, of the 1th July, 1855, until the 1st October, 1877? And the answer must be, as it appears to me upon principle, and the authority of Hyatt v. Griffiths (1), that the respondents were tenants from year to year, subject only to such covenants in the ex- pired lease as were applicable to, or might be incident to, a tenancy from year to year; but this is a question now of little importance, for Robert Sears, John Sears, George E. Sears and William M. Sears, the grantors of the indenture of the 3rd of October, 1874, and the respon- dents, mutually agreed as to the terms upon which th;e respondents should continue in possession of the pre- mises in question, which terms were embodied in an in- denture bearing date the said 1st October, 1877, whereby after reciting the indenture of lease of the 4th July, 1855, and the indenture of the 3rd October, 1874, and fhe pro- vision therein contained, that it should be lawful for the trustees thereunder to demise from year to year, or for (1) 17 Q. B. 506. 566 APPENDIX. 1890. any term or number of years, with or without clause of — ^^ renewal or provision for payment irf improvements, all the mayor, or an y P art °* tne rea * or leasehold estate hereby con- e ci C ttot st. e ve Jed, and after reciting further that the said Tiwbert John. Sears, John Sears, George E. Sears and William M. Sears, Gwynne.j. parties to the said indenture now in recital, of the first part, had agreed to extend and continue the lease and demise of the said lot and premises comprised in the said indenture of lease (of- the 4th July, 1855), with the said right of way, unto the respondents, for a further term of fourteen years, computed from the expiration of the said first term, and that the respondents had agreed to accept such lease, the said indenture witnessed that the said parties thereto of the first part did demise and lease unto the respondents, all and singular, the lands and premises comprised in the said recited indenture of lease, to have and to hold the same unto the respondents for the term of fourteen years, from the 1st May, 1869, thence next ensuing, and fully to be complete and ended, at the same yearly rent, payable in like manner and un- der the like covenants, conditions and agreements as are expressed and contained in the said recited indenture of lease, and the said respondents did thereby accept the said extension of lease at the rent upon the terms and conditions aforesaid, and did covenant with the parties of the said indenture now in recital of the first part, that the respondents should and would yearly, and every year, during the continuance of the said extended term of four- teen years, well and truly pay the said yearly rent thereby reserved. . Now, it is obvious that it was quite competent for the respondents and the parties of the first part to the above recited indenture, to agree upon any terms and conditions they should think fit to be inserted in the new lease. It was quite competent for the respondents to waive all claim for payment of the value of any buildings or improvements they might erect or make, if they should erect or make any, within and during the second term. It may be .that they had no intention whatever to erect or make any such, and therefore they bad no object in having a clause inserted in the second lease similar to APPENDIX. 567 that which was in the first providing for payment for im- 1890. provements. They had not, under the terms of the origi- nal lease, any right to demand and insist upon the in- ». ... , . , , . , The Mayoii, sertion in any subsequent lease which might be executed ETC > any right to compensation for improvements at a valua- "cittot™ fiou^or to have a new lease granted to them for a further JoHN - term of fourteen years. Up to the day upon which they Gw y nne > J - paid rent for the half-year next ensuing the expiration Of the term by the lease granted they were merely over- holding tenants, having possession at the mere suffer- ance of the appellants, and not even claiming to have possession under any other terms. Non-payment of a half-year's rent could not have the effect of converting a tenancy at sufferance into a tenancy for a term of four- teen years, which latter term could only be created by an express demise or by an agreement in writing, ex- ecuted by the respondents expressly agreeing to become the tenants of the appellants for such a term and pos- session thereunder, nor could such a payment have the effect of creating an obligation upon the respondents to accept a lease from the appellants for a further period of fourteen years capable of being specifically enforced; for such an obligation could only be created by an agree- ment hi writing to that effect, signed by the respondent. The payment by the respondents and the acceptance by the appellants of a half-year's rent after the expiration of the term had, under the circumstances, the effect only of constituting the respondents tenants of the appel- lants, by the year, at the old rent; and that tenancy was determined by the notice of the 28th January, 1884, given for that purpose by the respondents under their com- mon seal, and by their abandonment of possession and surrender of the premises executed under their common seal on 30th April, 1884, and their sending therewith the key of the building erected by the respondents upon the premises during the first term to the appellants. The fact of the appellants having sent the key to the Common Clerk of the respondents, who declined to accept it on behalf of the respondents, as indeed he pould not do otherwise, or to suffer it tg reniain in his office otherwise than for and at the risk of 570 APPENDIX. 1890. the appellants, cannot affect the right of the re- ^eab^ spondents to treat the tenancy a® absolutely deter- the mayoe, mined by their abandonment and surrender of the pre- cwyofSt E raises to the appellants in the manner above stated, john. and ag tne res p 0n( j en t g have not entered into any agree- Gwynne, j. ment jjju^jjjg tnera t accept a lease from the appellants for a further term of fourteen years, they cannot be com- pelled to accept such a lease. In fact the appellants' contention rests wholly upon the fallacy that, as they con- tended,, the lease of July, 1855, contains an agreement of the respondents binding upon them to accept from the appellants, their heirs and assigns, perpetual renewal teases for fourteen years from time to time, so long as the appellants, their heirs and assigns, choose to insist upon the respondents doing so. The original lease is open to no such construction; but if it be a matter of doubt whether it be or not open to such! construction, Harmit v. Yielding (2), which is as sound law now as it was when judgment therein was delivered by Lord RedesdaJe, is an authority to the effect that a court of equity will not enforce specific performance of agreements, when from the circumstances it is doubtful whether the party meant to contract to the extent that he is sought to be charged. In the present case there is, in my opinion, no founda^ tion whatever for the contention that the respondents ever entered into any such agreement, either in the original lease or in that of the 1st October, 1877, which is the one to which alone since its execution there is any occasion to refer. In view of the actual facts of the case, the authorities cited and relied upon by the learned coun- sel for the appellants have in reality no application what ever. In Kimball v. Cross (3), there was a lease executed for a te^rm of one year for a rent named, " with the privilege of continuing for five years '' at an increased rent, also named. The tenant after the expiration of the first year continued in possession and paid rent for the first six months of the second year at the increased rate, and it was held that thereby the tenant had entered upon the (2) 2 Sob. & h. 549. (3) 136 Mass. 300. John. Gwyhne, J. APPENDIX. 571 second term mentioned in the lease, and that the terms 1890. of the lease were apt to create a present demise for the sbahs five years at the option of the tenant. THE mayor, Kramer v. Cook (4), is to the same effect, and is cited e cittot st? in Kimball v. Cross in support of the judgment in that c&se. In Despard v. Wallbridge (5), a tenant whose tenancy 'was about to expire was served with a written notice by his landlor3,^rfaa± if he (the tenant) should hold over after the expiration of the term, 4&.e landlord would consider the premises as taken by the tenant For -w»oiher year at an increased rent of $1,500 per annum. The tenant dM hold over, and at the expiration of six months of the second year's occupation was sued by the landlord for use and occupation at the stipulated rent of $1,500 per annum, and it was held that the continuing in occupa- tion by the tenant after the receipt by him of the above notice was evidence to go to a jury of an implied promise to pay the increased rent of $1,500 per annum. McDonell v. Boulton (6) is an authority simply to the effect that the tenant by the terms of an expired lease was entitled, if he desired it, to continue in possession for a further fixed term at a stipulated rent, and that as he continued in possession after the expiration of the first term and claimed the 1 benefit of the further term, he could not be ejected by the landlord. Nudellv.Williams(7 ) is an authority to the like effect, namely, that where a tenant remains in possession of demised premises, after the expiration of a term granted by an expired lease, claiming the benefit of a covenant therein by the landlord to pay for improvements, or in default that the tenant shall continue in possession for a fixed term at a stipulated rent, the landlord cannot treat the tenant as a trespasser, and eject him during the period within which, as stipulated in the lease, the value of the improvements should be ascertained by arbitration. These two cases proceeded upon the fact that the tenants expressly claimed the right to hold possession (4) 7 Gray, 550. 16) 17 U. C. Q. B. 14. (5) 15 N, Y. 374. (7) 15 U. C. C. P. 348. : I ' \* 572 //i*^ APPENDIX. 1890. » Id AUS y. The Mayou, etc., op the ClTT OF St. John. G "Wynne, J. under tlie terms of the expired lease, and to have an extended term, unless paid for improvements as pro- vided in the lease, and that therefore the landlords could not treat them as trespassers ; for in Deivson v. St. Clair(8), the Court of Queen's Bench for Upper Canada, the same Court as decided McDunell v. Boulton, had al- ready held that where a defendant who had been in possession of premises demised to him for five years by a lease which contained a covenant of the lessor to grant a renewal for another five years, to commence at the ex- piration of the first term at a named rent, held posses- sion after the expiration of the first term without asking for a renewal lease and without saying anything in asser- tion of a claim for such a lease under the lessor's cove- nant, he could be treated by his landlord as a tres- passer, and could be and was ejected without any notice to* quit or demand of possession. Wals% "v. Lonsdale (9) is simply an authority to the effect that since the Judicature Act a person in posses- sion of premises, claiming under a written agreement . for a lease, is now subject to the same remedies at law, and therefore to distress for non-payment of rent in pursuance of the terms of the written agreement, equally as before the Judicature Act he would have been sub- ject if the lease had been executed. In Irvin v. Simonds (10), the action was instituted by the assignee of the lessee to compel the lessor's devisee specifically to . per- form a covenant which the lessor had entered into in the lease, similar to the lessor's coyenant in the present case for a renewal of the lease for an extended term. The assignee of the lease was clearly entitled to the ful- filment of the lessor's covenant, either by payment for improvements or the grant of a renewal lease, and at the expiration of the term granted by the. expired lease he claimed the benefit of the lessor's covenant and con- tinued in possession, paying rent and claiming such (benefit. The lessor having died, devising the property to the defendant, negotiations were, entered into by. the plaintiff with the defendant for the renewal lease, and „(9) 14 IT. C. Q. B. 97. (9) 21 Ch. D. 9t (,IQ> .6 All., 190,, APPENDIX. 57g one was actually prepared for execution by the defend- 1890. nnt, who, however, afterwards refused to execute it SlCARS and executed a lease of the premises to a third person ; The3 £ ayor thereupon the plaintiff tiled his bill for specific perform- 'cityotst' 4 ance of the lessor's covenant to renew and for cancella- JoHN - tion of the lease executed to the third person; the de- Patterson, j. i'endant contended, among other things, that the covenant could be satisfied by payment for improvements, but tbe Court held that the lessor in his lifetime and his de- visee since his death having received rent from the plain- tiff, the latter was entitled to specific performance of llie lessor's covenant to renew, and decreed accordingly. That case can be no authority for the appellants in the present case, who insist upon forcing a lease upon the respondents, who have made no claim therefor, and who have never entered into any agreement with the appel- lants to accept the lease sought to be forced upon them, or which can be made the foundation of a decree for specific performance. I am of the opinion, therefore, that the appeal should be dismissed with costs. Patterson, J. : — I have not been able to see sufficient reason for dis- senting from the judgment of the Court below. The questions have been carefully discussed in able judg- ments delivered in that Court. I agree with the views on which those judgments proceed, and for the most part with those expressed in that just delivered by my brother Gtoynne. The covenant in the original lease of 1S53 is so framed as to leave room for difference of opinion upon its proper construction. For my own part I incline to the view that the intention was that the buildings to be valued at the end of any term should be those only which were erected during that term. The words are " within and during the said term,"' words which were probably unnecessary as far as the first term was concerned, be- cause no other buildings could possibly be the subject of valuation at the end of that term; but in a renewal lease made with "like covenants" the words "within and during the said term " would refer to the new term. 574 ' ' I ■ ' ^ APPENDIX. 1890. The parties may well have considered that the payments — ^^ for the buildings erected during any term, which could the mayob, uot be more an d might be less than £500', would be suffi- b cSt op T st E cie^ntly compensated by a further term of fourteen years, JoHtf - at the original rent of £100 a year, plus the right to be Patterson, j. p a j(j the value of buildings put on the place during the new term. It is only on this understanding of {he cove- nant that any provision is found for payment for build- ings erected after the first term. I do not regard the repairs during the second term of the building erected during the first term as equivalent to the erection of a building during the second term, but the repairs might come within the term " improvements," if the tenants were not bound to repair damage by fire, and they were not so bound as far as appears. I do not know that these questions were mooted in the Court below, and I believe they were not raised in the argument here. They do not properly arise, because the rights of the parties de- pend on the second lease, which was executed in 1877, demising the pTemises for a term of fourteen years from the 1st of May, 1869. That demise is stated in the in- strument itself, as set out in the pleadings, to have been " under the like covenants, conditions and agreements " as are expressed and contained in the said recited in- denture of lease, that is to say, in the original lease of 1855. Now, if this second lease had contained an inde- pendent covenant such as, in my understanding of the original document, would have been proper, in place of thus, by reference, importing the original covenant itself, it would have provided for valuation of the buildings and improvements erected and made during the second term only. But the covenant imported from the original lease relates to the buildings erected during the first term, and that is, therefore, the building that was to be valued, and which the lessor had the option to pay for^ or to grant a new term at the end of the second term, which was the 1st of May, 1883. The question is thus that which was debated in the Court below and before us, namely, the right of the lessor, who took no steps to have the building appraised, the tenants being similarly re- miss in that particular, to insist against the tenants who APPENDIX. 575 held over and paid one-half year's rent up to the 1st of jqqq November, 1883, which rent was accepted by the lessor, that" the tenants were in for another term of fourteen v. Thk Mayor years, notwithstanding that he made them no new lease. KT c, of the' ■ ' Otty OF S f F and notwithstanding that nothing passed between them John. on the subject of payment for the building or renewal of p tt tt^on,j. the term. The facts of the tenants retaining possession from the 1st of November, 1883, to the 1st of May, 1884, and then paying another half-year's rent cannot under the circum- stances have any significance. "When the payment was made the parties were at arm's length. The terms under which a tenant holds over are to be decided as a question of fact rather than of law : Oakley v. MoncJc(11). This is so, whether the contest is respect- ing a common law, a tenancy from year to year or the assertion of some agreement enforceable in equity : Walsh v. Lonsdale (12). The fact here asserted by the appellants and denied by the respondents is- that the respondents held over under an agreement that the appellants should grant and that the respondents should accept a lease for a re- hewed term of fourteen years on the terms of the original lease. This asserted agreement is based entirely on im- plication. The appellants did not have the building valued and did not intimate to the respondents that they waived such valuation, because they elected to renew rather than pay ; and they do not now show as a fact that they had so decided. They say that it should be inferred from them allowing the respondents to hold over and from them, six months afterwards, accepting rent at the former rate. The respondents took no steps to have the building valued. They were not bound to accept a renewal lease even if offered to them. At least, so I think, though it is possible to argue that, under the mutual covenant, the further relation between the parties was to depend on the option given to the lessor, who might compel the tenants to hold the premises for all time at £100 a year. The appellants' case requires it to be held that the (11) 3 H. & C. 706 ; L. B. 1 Ex. 159. (12) 21 Ch. D. 9. 576 APPENDIX. 1890. respondents should have inferred, and did fn fact infer', ^7^ from the inaction of the appellants, that the respondents Tim mayob, ua< ^ decided not to pay for the building, but to grant a cityw™ new term. The considerations most strongly relied on to .John. j ea( j |. Q j- ue conclusion are that the respondents held over Patterson, J. , m(1 pai( j re „ t The argument is that they must have held under the asserted agreement or else as wrongdoers, and that they cannot be "allowed to take the latter alternative. I am very far from being convinced by this argument. I do not recognize the necessity for admitting the pre- mises, nor do I see that the conclusion necessarily fol- lows. I shall not enter upon a discussion, which would not advance the enquiry, as to whether the respondents were in after the end of their term as tenants at will, or on sufferance, or even as wrongdoers, though the charge of holding tortiously does not seem more applicable here than in any one of the numberless cases in which, after the termination of a tenancy from year to year, has been held to have been created by holding over and paying rent. The mere fact of holding over, followed by the payment of rent, does not, in my judgment, imply 'more in this case than in the ordinary class of cases. The weak point of the appellants' argument is the ab- sence of any agreement to which the holding over can be referred. If they had decided, and so informed the respondents, that they would renew the term rather than pay anything, there might be force in the contention that the holding over was the acceptance of the offered terms. The case would have been within the class of which Roberts v. Hay ward (13) is an example. But the appel- lants asked us to go further in their favour than they are entitled to ask. An offer to renew, at the original rent, has to be implied before the acceptance comes in question, and it is going a long way to ask the Court to make the double implication. I am of opinion that, independently of the questions raised, touching the application of the Statute of Frauds, the Court below properly held against the alleged agree- ment, and that we should dismiss the appeal. (13) 3 C. & P. 432. INDEX. ABBREVIATING AFFIDAVIT-Costs of 80 See Costs. 1. ABUSE OF PROCESS 524, 530 _ See Injunction. 6. See Stay of Proceedings. ACCOUNT — Jurisdiction of Court of Equity.] A Court of Equity has jurisdic- tion in account where there are various interests involved, and accounts between different parties to be taken, so that the matter cannot be completely dealt with by a Court of Law in one action. Armstrong -t). Robertson etal 249 Set-off — Mortgage — Foreclosure — As- sets in hands of Mortgagee — Cross- bill 301 See Mortgage. 2. ACKNOWLEDGMENT— Of lunatic, a married woman, cannot be per- formed by committee 394 Not necessary under M. W. P. Act if ', woman married after 1st January, 7 1S96, 394 ; Qu. whether necessary in case of woman married before 1st January, 1896 395 ACQUIESCENCE — Notice of agree- ment 338 See Telegraph Company. Nuisance 406 ACTION— By shareholder in his own name 62, 78 See Bank. 1. Dismissal of, where frivolous and vex- atious 530 Joinder of causes of, by landlord and tenant 243, 246 See Injunction. 2. Transfer of 509 See Parties . ACTIONS— Multiplicity of, restraining, See Injunction. 6. [529 ADDING PARTIES— Representative of deceased person's estate 301, 303, 304 See Mortgage. 2. Practice as to 512 ADJUDICATION OF BANKRUPTCY — English Bankruptcy Act, 1869— Debtor resident and domiciled in colony— Jurisdiction 195 See Bankrupt.. AD MEDIUM FILUM AQJLE-Bed of river — Grant of riparian land. 1 See River. EQ. CAS.— 37 ADMINISTRATION SUIT — Insuffi- ciency of personalty to pay debts of in- testate — Sale of real estate — Within what time sale may be ordered — Parties to suit—O. 49, s. 58, and c. 52, ss. 36, 39, C. &. N. £.] The Court of Equity will not under s. 58, chap. 49, C. Si, direct a sale of the real estate of an in- testate for the payment of his debts, if the personal estate that the deceased died possessed of was sufficient for the purpose, had it not been wasted or misapplied by the administrator. ■Semble, that an application under s. 58, chap. 49, C. S., for the sale of real estate to pay the debts of an intestate, on account of the insufficiency of the personal estate must be made within ten years from the grant of letters of administration. Semble, that in an administration suit for the sale of real estate of an intestate for the payment of his debts the purchaser of the real estate from the heir is a necessary party to the suit. The People's Bank v. Morrow et al 257 Valuation of securities by creditor 508 ADMINISTRATOR— Authority to sell real -estate to pay debts of intes- tate cannot be defeated by aliena- tion of heir 264 Joinder of, in foreclosure suit 304 License to sell land to pay debts of in- testate 264 Debts must be enforceable against estate of intestate 264 Payment of debt unenforceable under Statute of Frauds 264 Payment of debt barred by Statute of Limitations 264 Real estate is not assets in hands of, for payment of debts of intes- tate ...'. 264 Real estate cannot be sold to pay un- enforceable debts owing by intes- tate, 264 ; or to reimburse admin- istrator expense of administration, 263 ; or to pay debts where per- sonalty was sufficient if not wasted by administrator 257 Validity of license to sell land for pay- ment of debts cannot be attacked in collateral proceedings 264 ADVICE OF COURT— Petition for. 269 See Trustee— Advice of Court. AFFIDAVIT— Costs of abbreviating. 80 See Costs. 1 . 578 INDEX. AGREEMENT — Illegality — Building Law — Agreement to erect building in violation of 24 Restraint of trade 338 See Telegraph Company. Married woman — Mortgage of separate real estate — Parol agreement to assign mortgage in consideration of its payment — Specific perform- ance— Statute of Frauds — Lien, 450 See Frauds, Statute ok. 2. Mortgage — Creditor's suit— Decree- Priority 5 38 See Mortgage. 4. Notice of 338 See Telegraph Company. Repairs to building — Lien 363 See Frauds, Statute op. 1. Statute of Frauds — Part perform- ance 363 See Frauds, Statute op. 1. ALIEN — Corporation — Right to contract and sue in New Brunswick . . . 338 See Telegraph Company. Infant — Appointment of guardian. 533 See Inpant. , ALTERATION OF STREET 25, 37 See Saint John, City op. 1. AMENDMENT— Bill amended must be answered, or will be taken pro confesso 167 Change of parties 509, 512 See Practice — Parties. —Title of Bill 179, 189, 513 ■ Writ of summons to describe parties in representative character, 179 etseq. ANSWER — Insufficiency of— Exceptions — BUI demurrable — Failure to demur.] Where a defendant has answered, though he might have demurred or pleaded, he cannot ex- cuse himself from answering fully on the ground that the bill does not disclose a case against him upon the matters interrogated upon. Gilbert v. Union Mutual Lipe Ins. Co 266 After notice of motion to take bill pro confesso, 59, 60, 61, 164 ; costs in such a case, 59, 60, 61 ; motion should not be brought on if costs tendered 61 Certificate of non-filing on motion to take bill pro confesso 1 64 Corporation, mandamus to officer of, to affix corporate seal to 422 Dismissal of bill where plaintiff does not answer 392 Exceptions, how taken 484 See Interrogatories. Exceptions to defendant's answer, when taken 56, 392 Exceptions to plaintiff's answer, when ' taken 392 Filed, but not served, may be ordered off file 94 Fraud, defence of, by 468 Infant's^ cannot be excepted to . . . '56 Not sworn to, may be ordered off file .' 96 Insufficiency of 56, 266 When allowed after pro confesso- decree 61 APPEAL— Stay of execution for costs pending 101, 102 See Stay of Proceedings. Stay of proceedings, pending 97, 433, 476. See .Stay op Proceedings. APPEARANCE— Infant Defendant— Or- der for appearance— C. 4®, C.S.N.B., s. 29.] An order for appearance of infant defend- ant will be granted at expiration of time for appearance mentioned in the summons where the bill is on file, though it has not been on file for the time referred to in sec- tion 29, c. 49, C. S. Kennedy v. Case et al 242 After notice to take bill pro confesso, [51 See Pro confesso — Appearance. 1. Conditional 44ft ARREST — Vexatious purpose — Injunc- tion 524 See Injunction. 6. ASSIGNEE— Fire Insurance— Remedy- Suit in equity — Garnishee — Stay- ing proceedings 541 See Garnishee. ASSIGNEE IN INSOLVENCY— Suit to- set aside fraudulent conveyance by assignor — Parties — Joinder of As- signor and wife 89- See Fraudulent Conveyance. ASSIGNMENT— Cause of action .... 509 See Parties. Cred itor's deed — Execution — Collater- al securities — Release 499 See Debtor and Creditor. Fire insurance — Assignee — Remedy in equity 541 See Garnishee. Mortgage — Absence of notice of assign- ment to mortgagor, 191, 194 ; pay- ment of mortgage debt by mort- gagor to original mortgagee, 191, 194 ; recording of assignment not notice 191, 194 See Mortgage. 1. ASSIGNMENTS AND PREFER- ENCES ACT — Valuation of securities 507 ATTACHMENT— Costs— Execution. See Costs. 2. ATTORNEY-GENERAL— Party to sui 4 against public body 324 See Municipal Corporation. ■ Party to suit by public body 17 AUTHORIZED ACTS— Damage from. 38 INDEX. 579 BANK 1. By-law fixing date of annual meeting — Power of directors — Banking Act (84 Vict. c. 5, [D.]), ss. %8, 30 and S3— Suit by shareholder in his own name — Multifari- ousness — Objection not raised by demurrer — ■ Injunction .ordei — Dissolution after object effected.] The plaintiff, a shareholder of the Maritime Bank, by his bill set out that on the 14th of February, 1873, the directors of the Maritime Bank passed a by-law fix- ing the first Tuesday in June in each year thereafter as the day of the annual meeting of the shareholders for the election of directors ; that on the 26th of April, 1880, the directors passed another by-law fixing Friday, the 4th of June next, for the then next annual meeting ; that the Bank of Montreal was the owner of 1,070 shares of the Maritime Bank, upon all of which there were unpaid calls, and had appointed the defendant B , its attorney, to attend and vote at the annual meeting of the Maritime Bank shareholders called for the 4th of June. The bill prayed for an in- junction to restrain the Bank of Montreal and its attorney from voting at such annual meeting, on the grounds : (1) that there were unpaid calls upon their shares ; (2) that by Act 42 Vict. c. 45, s. 2 (D.), one bank cannot hold stock in another bank ; (3) thatthe Bank of Montreal could only vote by its own officer and not by an attorney ; also to restrain the Maritime Bank from permitting the Bank of Mon- treal and its attorney to vote at the meet- ing ; and to restrain the Maritime Bank from holding the meeting, on the ground that the power to pass a by-law fixing a day for the annual meeting of the share- holders is vested in the shareholders. The Maritime Bank was incorporated by Act 35 Vict. c. 58 (D.) No provision is made in the Act as to by-laws. By section 6 it incorporates into its provisions the Bank and Banking Act, 34 Vict. c. 5 (D.) The 33rd section of the latter Act enacts "That directors, etc., shall have power to make such by-laws and regulations (not repug- nant to the Act or the laws of the Dominion of Canada) as to them shall appear needful and proper touching the management and disposition of the stock, property estate and effects of the bank, and touching the duties and conduct of the officers, clerks and servants employed therein, and all such matters as appertain to the business of a bank. . . . Provided always, that all by-laws of the bank lawfully made be- fore the passing of this Act as to any matter respecting which the directors can make by-laws under this section . . . shall remain in full force until repealed or altered under this Act." By the 30th sec- tion it is enacted that the directors shall be ' ' elected on such day in each year as may be or may have been appointed by the charter, or by any by-law of the bank, and at such time of the day, and at such place where the head office of the bank is situate, as a majority of the directors for the time being shall appoint. The 28th section enacts " That the shareholders in the bank shall have power to regulate by by-law the following matters, inter alia, incident to the management and administration of the affairs of the bank, viz., the qualification and number of directors . , the method of filling up vacancies in the board of directors whenever the same may occur during the year; and the time and pro- ceedings for the election of directors, in case of a failure of any election on the day appointed for it." On an application by the defendants to dissolve an ex parte in- junction obtained by the plaintiff : Held, that no power was vested in the directors to pass the by-law in question, and that it therefore was ultra vires ; but that the injunction should be dissolved on the ground : (1) That the plaintiff could not maintain a bill in his own name alone respecting an injury common to all the shareholders ; (2) That the bill was multifarious by the joinder of grounds of complaint against the Maritime Bank and the Bank of Montreal and B. that were independent and distinct. Though the objection of multifariousness in a bill has not been taken by demurrer, the objection may be taken by the Court. Where a company was restrained by ex- parte injunction from holding its annual meeting on the date fixed therefor, it is no. ground for refusing a motion to dissolve the injunction that the purpose for which it was granted has been served. Busby v. The Bank or Montreal et al 62 2. Bank Stock — Mortgage — Double lia- bility — Indemnity of mortgagee — Construc- tion of Trust Deed — Preference — Unenforce- able Claim.] The plaintiff deposited with the defendants, a banking firm, a sum of money at interest, and received as security 275 shares owned by the defendants in the M. bank, which were transferred into the plaintiff's name. The plaintiff gave to the defendants an acknowledgment, stating that he held the shares in trust and as col- lateral security for the due payment of moneys deposited with the defendants, on the payment of which he would re-transfer the shares to them. On a redistribution by the bank of the shares, they were re- duced to 99. The dividends on the shares were always paid by the bank to the defen- dants, who treated the shares as their own in their office books. The bank went into liquidation, and the plaintiff was obliged to pay $9,900 double liability on the shares. The defendants made an assignment for the benefit of their creditors, and the deed of trust contained the following clause : '■ In the next place in full, or so far as ths- proceeds of the said joint property will ex- tend, to pay all persons, by and in whose 580 INDEX. name the stock of the bank belonging to the said M. and B. (the defendants), whether in the name of M. & Co. (the defendants), or the said M. or B., or any other person or persons, firm or corpora- tion, before transferred to such persons, is or has been held as security for money loaned by any person or persons to the said M. and B., all claims they may have against the said M. and B. by reason of any double liability they may incur, or moneys they shall be obliged to pay for double liability on such shares under sec- tion 20 of chapter 120 of the Revised Statutes, or other statute or statutes of the Dominion of Canada, on account of the said shares, standing in the name of the said persons, or having so stood." Held, (1) that the plaintiff and defen- dants stood in the relation of mortgagee and mortgagor in respect of the shares, and not of trustee and cestui que trust, and that the defendants were not liable under such relation to indemnify the plaintiff. (2) That the plaintiff was a beneficiary under the trust deed, in respect of the amount he had paid as double liability, and that his right to be such was not in- tended to depend upon his having an en- forceable right to be indemnified. Mars- ters v. MacLellan et al 372 3. Shares -Legacy — Sale by executor — Transfer — Notice of Trust — The Bank Act, c. 1W, B. S. Can.'] Under "The Bank Act," chapter 120, R. S. Can., a bank can- not refuse to register a transfer to a pur- chaser by an executor of shares in the bank standing in the name of a testator, though by the testator's will the shares are speci- . fically bequeathed. Boyd v. The Bank . of New Brunswick 546 BANKRUPT— Bankruptcy Act, 1869 {3% & 33 Vict. c. 71) — Person residing and domiciled in Canada member of English firm — Title of trustee under Act to real estate situate in Canada and personalty of , such a person — Jurisdiction of EngliskBank- rwptcy Court.'] In 1873, Gilbert, James, Gor- ham, and Walter Steeves carried on busi- ness as partners, under the firm name of . Steeves Bros, at St. John, New Brunswick. . Each of them was born and had always resided in New Brunswick, In or about . 1874 Gilbert Steeves removed to Liverpool, G. B., and commenced a shipping business . under the name of Steeves Bros. & Co. , the firm being composed of the same members as the St. John house. Prior to 1882 Walter retired from both firms. Gorham and James never resided in England, or .ceased to retain their New Brunswick domicile. In 1882 the firm in Liverpool became insolvent, and Gorham and James cabled from St. John to Gilbert to file a .bankruptcy petition of the firm under the English Bankruptcy Act, 1869. The peti- tion was filed July 4th, 1882, and the partners were adjudged bankrupts, and the plaintiff was appointed trustee. On June 27th, 1882, James and Gorham executed at St. John an assignment of all their pro- perty, both real and personal, in New Brunswick to the defendant for the benefit of their New Brunswick creditors. This assignment not being recorded, a new assignment was executed and recorded on July 15th. On August 15th the plaintiff recorded in the registry office at St. John a certificate of his appointment. In a suit by the plaintiff for a declaration of his title to the real and personal property in New Brunswick of James and Gorham Steeves : Held, (1) that the English Bankruptcy Act, 1869 (32 & 33 Vict. c. 71) does not apply to Canada so as to vest in a trustee appointed by the English Bankruptcy Court either the real estate situate in Canada or the personal property of a per- son residing and domiciled in Canada, though he is a member of an English firm • which has traded and contracted debts in England, and has authorized that he be joined in a bankruptcy petition to the Court with the other members of the firm. (2) That the English Bankruptcy Court has no jurisdiction under the Act to make an adjudication of bankruptcy against such a person. Nicholson v. Baird 1-95 BANKRUPTCY— Bankruptcy notice un- der English Bankruptcy Act, 1883> service of out of jurisdiction on foreign resident. 218, 219 Concurrent bankruptcies, forum to ad- minister moveable assets 216 English bankruptcy carries all move- ables and immoveables within British dominions ; but not where debtor resides and is domiciled in colony 195 Jurisdiction of English Bankruptcy Court under Bankruptcy Act, 1869, over debtor resident and domiciled in colony 195 Title to immoveables of trustee in bankruptcy under English Bank- ruptcy Act, 1869, perfected by compliance with the lex sitAs. 219 BANKRUPTCY AND INSOLVENCY — Bills of Sale Act. c. 75, C. S. N. B., s. 1— B. N. A. Act, s. 91, s.s. 21.] That part of section 1 of the Bills of Sale Act, chapter 75, C. S. N. B., providing that a bill of sale as against the assignee of the grantor under any law relating to insolvency or in- solvent, absconding or absent debtors, or an assignee for the general benefit of the oreditors of the maker, shall only take effect from the time of filing thereof, is not ultra vires of the Legislature of New Brunswick, as legislation dealing with bankruptcy and insolvency within the meaning of the British North America Act, 1867, section 91, s.-s. 21. MoLeod, Assignee of the Petitcodiac Lumber Com- pany v. Vboom et al 131 INDEX. 581 BED OF RIVER— Right to — Riparian owner .■ . , 1 See River. BENEFICIARY— Life insusance— Party to action 533, 537 BILL — No disclosure of cause of action — Taking Bill pro confesso — Striking out de- fendant's name — Dismissal of bill at hearing —Supreme Court in Equity Act, 1890 (53 Vict. c. 4), s. 38.] A bill may be taken pro confesso against a defendant though it does not disclose a cause of action against him. If a bill does not disclose a cause of action against a defendant, he may apply to have his name struck off the record, or apply at the hearing to have the bill dismissed. MacRaev. Maodonaldetal. (No. 2.) 531 Demurrable, ground for dissolving ex parte injunction 325, 332 See Municipal Corporation. Demurrer to, where claim barred or extinguished under Statute of Limitation 178 Description of party filling character by which he sues 189 Dismissal of . See Dismissal. Interest of defendant in subject of suit must be shown in 531, 532 Multifariousness in, objection taken by Court 63, 395 See Bank. 1. See Partition. 2. Prayer— Relief 179 Title of 179, 243, 513 See Writ of Summons. BILL IN PARLIAMENT— Private Act — Injunction — Jurisdiction . . . 103 See Injunction. 4. BILLS OF SALE ACT— Validity. . . 131 See Bankruptcy and Insolvency. BOUNDARY— Grant of land described as bounded on a river — Soil of river 1, 15 See River. BOND— Security for coses 86 See Security for Costs. 1. BRICK BUILDING— What constitutes. See Building Law. [17, 24 BRIEF— Costs of 80 See Costs. 1. BUILDING LAW— Prevention of confla- grations — Brick building — Brick-cased building — Act 35 Vict. c. 56 — Mandatory injunction — Parties to suit — Public corpora- tion— Attorney-General.] By Act 35 Vict. c. 56, intituled " An Act for the better prevention of conflagrations in the City of St. John," all dwelling-houses, store- houses, and other buildings to be erected in the city of St. John, on the eastern side of the harbour, within certain limits, must be made and constructed of stone, brick, iron, or other non-combustible material, with "party or fire walls " rising at least twelve inches above the roof ; and the roof must be covered on the outside with tile, slate, gravel, or other safe materials against fire. The defendants were erecting a building resting on stone foundation walls, and con- sisting of a wooden frame with brick filling four inches thick between the studding, and the whole encased with brick four inches thick. In a suit by the Corporation of the City of St. John for an injunction to restrain the defendants from erecting the building as being in violation of the Act : Held, (1) That the suit was properly brought in the name of the plaintiffs and should not be by information in the name of the Attorney-General on their relation. (2) That the building was in violation of the Act and an injunction should be granted. The Mayor, Aldermen and Commonalty of the City of St. John v. Ganong et al 17 Contract to build contrary to Act illegal 24 Remedy for offence against Act . . 24 BY-LAW — Date of annual meeting of bank — Power of directors to fix, See Bank. 1. [62, 78 CALL — Double liability — Bank stock — Indemnity of mortgagee 372 See Bank. 2. CAUSE OF ACTION— Assignment of [509 See Parties. Disclosure of, in bill 531 See Bill. Splitting 524, 531 See Injunction. 6. CAUSE AT ISSUE 53, 56, 388 See Practice — Cause at Is- sue. 1, 2. CERTIFICATE OF CLERK — Con- clusive as to date of filing a plead- ing 167 Production of, that answer has not been filed, on motion to take bill pro confesso 164 t" — Service of, on motion to take bill pro confesso 498 See Pro Confesso. 5. CHURCH— Church of England— Grant- Corporation — Construction.] In 1810 the Crown granted to the rector, churchwar- dens and vestry of Christ Church, in the parish of Fredericton, and their successors, a lot of land "for the use and benefit of the said church forever, and to and for none other use, interest or purpose what- ever." The church was organized on the formation of the Province of New Bruns- wick under authority from the parent Church of England, in England, to certain persons in New Brunswick to establish churches in New Brunswick in connection with and to be a part of the Church of England in England, and under its eccle- siastical authority. 582 INDEX. Seld, that the grant was to Christ Church as it existed at the time of ,the grant, and while it remained in connection with the Church of England and adhered to its faith, creed, doctrines, forms of wor- ship and discipline as then established. Bliss v. The Rector, Churchwardens and Vestry of Christ Church, in the Parish of Fredericton 314 CITY OP SAINT JOHN. See Saint John, City of. CHANGE OP INTEREST 509, 512 CHARTER OP CITY OP SAINT JOHN See Saint John, City of. Property granted by, trust property 163 CLASS— Gift to— Construction of will. See Will. 2. CLASS SUIT— Conduct of 420 Description of parties to 191 CLERK— Attendance on— Costs 80 See Costs. 1. Certificate 164, 167, 498 See Certificate of Clerk. Review of taxation of costs by . . . 85 COLLATERAL SECURITY — Valua- tion of, in proof of claim 507 COMPANY. See Corporation. Debentures — Mortgage — Foreclosure suit — Application by shareholder to defend.'] A company was authorized by Act to issue debentures for the purpose of redeeming mortgages against a property it was acquir- ing. In a suit to foreclose a mortgage given by the company to secure the deben- tures, a shareholder applied to be allowed to defend the suit on the ground that the proceeds of the debentures had been ap- plied to a purpose not authorized by the Act ; that the holders of them took with notice thereof, and that the directors of the company refused to defend the suit. Held, that upon evidence of the appli- cant's 'allegations the application should be granted. Weldon bt al. v. William Parks & Son(Ltd.) et al. (No. 1) 418 Application by shareholder to defend suit against company . . . .418, 421 By-law of bank fixing date of annual meeting to be made by share- holders 62, 78 Foreign company, power to contract and sue in New Brunswick . . . 388 See Telegraph Company. Mandamus to officer of, to affix corpor- ate seal to answer 422 Suit by shareholder in his own name to restrain illegal acts of directors, See Bank. 1. [62, 78 Suit in corporate name — Failure to prove incorporation — Dismissal of bill 221 COMPENSATION — Damage from . authorized Acts 25, 38 Damage must result from act legalized by Statute, 39, 40 ; if act is illegal, action lies 39 Negligence nsver legalized 39 Only give] ivhere damages could have been claimed at common law . 40 Payment of, not condition precedent to exercise of statutory powers. 40 COMPOSITION DEED— See Bank. 2 See Debtor and Creditor. CONFLICT OF LAWS — Concurrent bankruptcies 216 CONSOLIDATION OF ACTIONS-In- ferior Court — Jurisdiction . 530,531 CONTRACT— See AeREEMENT. CONVEYANCE — Construction of — Grant of land adjoining river — Ownership of bed of river . . 14, 15 See River. CORPORATION -See Company. Act of incorporation — Construction — Compliance with requirements of Act — Suit in corporate name — Failure to prove incor- poration.] By Act 22 Vict. c. 6, entitled, An Act for incorporating the Synod of the Church known as the Presbyterian Church of New Brunswick and the several congrega- tions connected therewith, it is recited that the Presbyterian Church of New Bruns- wick, constituted of several congregations of Christians holding the Westminster Confession of Faith, is under the ecclesias- tical control of a governing body composed of ministers and elders of the church, and known as the Synod of the Presbyterian Church of New Brunswick, and that the said church desire an Act of Incorporation to enable the said Synod to hold and man- age lands and property for ecclesiastical purposes, and also to enable the respective congregations in connection with the said church to hold land for grave yards, the erection of churches, and other congrega- tional purposes. Section 1 enacts the incorporation of the Synod, and s. 2 enacts that the first meeting of the Synod shall be held at a certain date, when it shall be deemed organized as a corporation. Sec- tion 3 enacts that the trustees of the several and respective congregations so in connec- tion with the said Synod, and their suc- cessors, shall be for ever a body politic and corporate in deed and name, and shall have succession for ever, by the name of the said several respective churches ; and by that name shall be entitled to sue and be sued, implead and be impleaded, answer and be answered unto, in all courts, and shall have full power and capacity to purchase, receive, take, hold and enjoy goods and chattels, lands, tenements and heredita- ments, and improve, sell, assign, and dis- pose thereof, and to have a common seal, INDEX. 583 with power to break, alter or renew the ■same at pleasure. By s. 4 it is directed that on the first Wednesday in July in each year a meeting of the congregation shall be held in each of the churches for the purpose of electing trustees. Section 5 enacts that when any congregation in con- nection with the Synod shall elect trustees under the provisions of the Act, the trustees as a corporation shall be known and recognized by the name of the trustees of such named church owned by said con- gregation, and that the name by which the church is known, and by which the corpor- ation is recognized, shall be enrolled in a book in which the proceedings of the con- gregation and of the trustees shall be recorded ; and that the trustees of the respective churches, when so named and enrolled, shall, when elected, chosen and appointed in manner and form as in the Act directed, be bodies politic and corpor ate in deed and name, and shall have suc- cession for ever, by the name of the trustees of the so named church by which they are respectively elected. The Synod held a meeting in pursuance of s. 2, at which and subsequent meetings the minister and elder of Calvin church, in the City of St. John, were present, but no meeting of the con- gregation of Calvin church under ss. 4 and 5, and complying with their provisions, was held. In a suit by the trustees of Calvin church they alleged their incorpor- ation under the above Act. Held, that s. 3 was to be read with ss. 4 and 5, and that the plaintiffs were not incorporated in the absence of compliance with the requirements of ss. 4 and 5, and that the suit should be dismissed. Trus- tees of Calvin Church v. Logan . . . 221 Injunction against, to restrain misap- lication of property 163 Internal management, interference of Court with....... 421 COSTS 1. Costs of order to setaside order to set cause dmvn for hearing — Attendance on Clerk — Brief — Abbreviating affidavits — [Chapter 119, C. S. N. B.] An order nisi to set aside with costs an order setting a cause down for hearing was made absolute. The order absolute was drawn up by the clerk at the instance of defendant's solicitor with an appointment to settle the minutes. At the taxation of the defendant's costs the clerk allowed $1.34 for attendance on taking out the order nisi and $1.34 for attendance on the order absolute. By the table of fees (c. 119, C. S.), solicitor attending clerk on every decretal order is allowed $1.34, and for all other services not provided for in the table the likefees as are allowed to attorneys on the common law side of the Supreme Court. On the common law side a fee of twenty cents is allowed for every attend- ance on the clerk. Held, that the order absolute was neither a decree nor a decretal order, but a special order, and that eabh attendance should be taxed at twenty cents. The clerk on the taxation of the above costs allowed five dollars for brief, this being the fee allowed in the table of fees to attorneys on the common law side of the Supreme Court (c. 119, C. S. N. B.), and a service for which no provision being made under the table of fees of the equity side of the Court, the same fees are to be allowed as on the common law side. The table of fees of the equity side provides a fee of twenty cents per folio for drawing bill, answer, plea, demurrer, or other writing, not otherwise provided for, and ten cents per folio for copy. Held, that brief should be taxed per folio as a writing not otherwise provided for. Costs allowed of abbreviating affidavits used on the application for the above order, and of making copies of abbrevia- tions. Chase v. Bkiggs (No. 2) ..... . 80 2. Execution — The Supreme Court in Equity Act, 1890 (53 Vict. c. 4), »■ 1M-1 Where no time is limited by a decree in a suit for payment of costs, a further order for their payment must be taken out, after which an order for execution will be made ex parte. Wright v. Wright 496 Attachment for 496 Practice as to 496 Disclaimer 311 Dissolving injunction obtained by mis- representation 130 Exceptions 468, 475 Execution for, practice as to ..... 496 Motion intercepted by step taken by opposite party. . .51, 52, 60, 61, 94 Partition .480 et seq. Partnership action 110, 121 Recovery of 496 Relief against execution for 497 Review of taxation of 85 Security for costs 86, 143 Specific performance refused and dif- ferent relief granted 363 Stay of execution for 101 Trustee's application for advice . . 272 COUNTY COURT— Inherent jurisdic- tion 530, 531 COURT OF CONSTRUCTION.... 382 See Probate Court. COURT OP EQUITY— Accounts— Exe- cutor and Trustee — Jurisdic- tion 382, 387 See Probate Court. Account — Jurisdiction 249 COURT OF PROBATE— Jurisdiction- Accounts 382 See Probate Court. See Account . CREDITORS' DEED. See Bank. 2. See Debtor and Creditob. 584 INDEX. CREDITORS' SUIT. Conduct of ; 420 CROSS BILL— Fraud— Agreement— An- swer 468, 474 See Exceptions. -Set-off 301 . See Mortgage. 2. CROWN — Liability of, for acts of its . officers 298 Petition of right, when available remedy against 299 CURTESY— When barred by conveyance of wife 312 — —Husband's right to, under M. W. P. Act, on intestacy of wife .... 313 DAMAGES— Compensation for [25, 38 et seq. See Compensation. — —From authorized-acts ..: 38, 39 DEED OF ASSIGNMENT— Collateral securities — Release 499 See Debtor and Creditor. DECREE — Mortgage— Agreement— Pri- ority : 538 See Mortgage. 4. — '■ — Settling minutes of — Attendance on Clerk— Costs 80 See Costs. 1. DELAY — Dower — Petition for admeasure- ment 438 See Dower. Injunction— Lapse of time 25 See St. John, City of. 1. DEBTOR AND CREDITOR-Deed of Assignment — General release — Release of collateral securities — Mistake — Ignorantia legis neminem excusat — Creditor signing as trustee.] M. executed and delivered to the defendant a leasehold mortgage, and a bill of sale of personal property to secure the payment of $500- and $1,500 respectively. Subsequently M. executed and delivered to the defendant, as party of the second part, a deed of assignment for the benefit of her creditors, being parties of the third part. A condition in the deed stipulated that the parties of the second and third parts, in consideration of the sum of one dollar to each of them paid " did severally remise, release and discharge the party of the first part of, from and. against all debts, duos, claims and demands, actions, suits, damages and causes and rights of action which they then had or might thereafter have against the party of the first part, for or by reason of any other matter or thing from the beginning of the world up to that date." The defendant and other creditors executed the deed. The assignor was in- debted to the defendant in no other amount than that secured by the mortgage and bill of sale. In a suit by the plaintiff, a creditor of M., to have the defendant enter a discharge and satisfaction upon the records of the mortgage, and to discharge the bill of sale, and to have the same de- clared null and void. Held, that the defendant had released the mortgage and bill of sale, and that it was immaterial that he had no intention of releasing them, or that he was ignorant of the legal effect of his act. Mat v. Sdive- wright 499. DEMURRER— Claim barred or extin- guished under Statute of Limita- tion 178 —■ — Interest of defendant in subject matter of suit not shown in bill, ground for 532 Misjoinder of husband in suit by wife 360, 362 See Married Woman. Multifariousness ......: 63, 395 Statute of Frauds, defence of, raised by 371 Stay of proceedings pending appeal from 97 See Stay of Proceedings— Ap- peal 1. DEVASTAVIT— Debt-Statute of Frauds — Statute of Limitations 264 See Administrator. DIRECTORS— Power to pass by-law fix- ing date of annual meeting of company 62, 78 DISCLAIMER — Mortgage upon separate property of married woman — Fore- closure— Parties— Judgment cred- itor of husband — Disclaimer — Costs : 311 See Mortgage. 3. DISCOVERY — Practice — Discovery — Production — Sealing up irrelevant matter — Foreign corporation — Books abroad— Pro- duction after refusal to gixe information by answer — Exceptions.'] The plaintiff is only entitled to discovery as to all material mat- ters relevant to his own case as made out by the bill, and not to the defendant's case. Where defendant's books contain parts not relevant to the plaintiff's case, and to the inspection of which the defendant ob- jects, the defendant on the hearing of a summons for discovery should state the existence of such parts, that the order may be qualified by giving him liberty to seal up such parts. If defendant does not take this course, the liberty will be granted to him on application by summons taken out for the purpose. Production will be ordered against a de- fendant foreign corporation ; and it is no answer that its books are abroad. Application may be made for production, though the information has been refused in answer to interrogatories, and it cannot be objected that the answer should have been excepted to. Robertson v. The St. John City Railway and John B. Zebley. (No. 1.) : 462 Bankrupt charged with fraud 91 INDEX. 585 Interrogatories. See Interrogatories. Joinder of party for purpose of discov- ery. Stay of proceedings pending appeal from order for 476 DISCRETION— Appeal — Stay of pro- ceedings 100, 101, 102 DISMISSAL OF BILL— Cause of action not disclosed in bill 531 Corporation — Failure to prove incor- poration 221 Certificate of filing of answer 167 Costs intercepted motion for ... 60, 61 Delivery of interrogatories by defend- ant, motion for, after 448 Form of order where time given plain- tiff to take next step 449 Injunction dissolved by 448 Motion by one where other defend- ' ants 449 Motion for, and inquiry as to dam- ages 448 Not a bar to subsequent suit 449 Fending notice to dissolve injunction, [448 Pending order for security for costs, [448, 449 Pending stay of proceedings 449 Where plaintiff does not answer inter- rogatories 392 Writ of summons not issued after re- fusal of injunction, where, 442, 448 ; where injunction granted . 448 DOCUMENTS— Discovery of. See Discovery. DOWER — Petition — Barred by lapse of time — Statute 6f'T^wiitations—Ghap.-84 C. S. If. B., s'.' 3.] The husband of the peti- tioner gave a mortgage of a piece of land in which the petitioner did not join. The husband died in 1859, owning the equity of redemption, and the petitioner remained in possession of the mortgaged premises from then until 1870. In 1891 she brought the present petition for the admeasure- ment of her dower in the land. Held, that twenty years having elapsed since her husband's death, the petitioner's right to bring an action at law by writ of dower was extinguished by section 3 of chapter 84, C. S., and that by analogy the present petition was barred in equity. In re Margaret McAfee 438 Partition — Joinder of wife of tenant in common — Release of dower, [414, 417 See Partition. 3. Partition — Assignment of dower — Joinder of widow 305 See Partition. 1. EASEMENT — River— Obstruction— In- terference with rights of riparian '' owners 1 ■ ■ See River. EQUITABLE SET-OFF 30i, 30a See Mortgage. 2. EQUITY COURT 382 See Coubt op Equity. ERECTIONS IN RIVER — Obstruc- tion 1, 16 See River. EVIDENCE— Recalling witness 513 See Witness. EXAMINATION— Married woman [394, 395 See Acknowledgment. EXCEPTIONS— Practice— A nswer — Set- ting up fraud— Exceptions— The Supreme Court in Equity Act, 1890 (63 Vict. c. 4), s. 72 — Costs of exceptions.] Where a suit is brought to enforce an agreement, an an- swer setting up that the agreement was made fraudulently cannot be excepted to on the ground that the defence of fraud can only be put forward in a cross bill to set the agreement aside. The remedy of the plaintiff is by application to the Court under section 72 of Act 53 Vict. o. 4, or to object at the hearing to evidence of fraud being given. Where exceptions are allowed in part, neither party is entitled to costs. Where some exceptions are wholly allow- ed, and others disallow.ed, the costs are set-off and the balance only is payable. Where the costs would be nearly equal no costs are given, or they are made costs in the cause. Barclay v. McAvity 468 See Answer. See Interrogatories. Costs of 475 EXCHEQUER COURT OF CANADAt Jurisdiction of 300 EXECUTION—Recovery of costs [496 et seq. Stay of, pending appeal 101 See Stay of Proceedings. EXECUTIVE GOVERNMENT— Lia- bility of 298 See Crown. EXECUTOR. See Administrator. Accounts of, in Probate Court. 382, 387 See Probate Court. Advice to 269 See Trustee. Erroneous construction of will by, [382, 387 Sale by, of bank Stock- -Legacy- Transfer — Notice— Bank 546 See Bank. 3. Suit by — Description of representative character in writ of summons and bill 179, 243 See Writ of Summons. EXECUTOR DE SON TOR T— Mortgage — Foreclosure— Assets — Set-off — Account 301 See Mortgage. 2. 586 INDEX. PILING. Answer ^ 96 See Answer. Certificate of 164, 167 See Certificate op Clerk. Replication 97 See Replication. FIRE INSURANCE — Assignee — Pay- ment — Discharge — Assignment — Remedy— Suit in Equity — Garn- ishee — Slaying proceedings. . . 537 See Garnishee. FIRE-LAW 17 Sec Building Law. FOREIGN CORPORATION— Discovery from 462 See Discovery. Right to contract and sue in New Brunswick 338 See Telegraph Company. FORECLOSURE — Disclaimer — Judg- ment Creditor — Costs 311 See Mortgage. FOREIGNER— Security for costs ... 87 See Security for Costs. FOREIGN GUARDIAN 533 See Infant— Foreign Domicile. FRAUD Answer— Cross bill .... 468, 474 See Exceptions. FRAUDS, STATUTE OF— 1. Pleading— liaising defence at hearing — Specific per- formance — Agreement — Conflicting evidence 'r-Part 'performance — Possession — Repairs — Lien — Costs where specific performance re- fused, but other relief granted.] In a suit for specific performance of an agreement for sale and purchase of a leasehold interest in land, it is not necessary that the defen- dant plead the Statute of Frauds in an answer denying the agreement in order to set up the defence at the hearing. Where in a suit for specific performance of an- alleged agreement to assign a lease- hold interest in land with building thereon, in consideration of an indebtedness to the plaintiff by the defendant for repairs to the building, it appeared that the plaintiff went into possession, collected the rents, and made repairs, but that these acts were consistent with the evidence of the defen- dant that the plaintiff was given the management of the property for the pur- pose of paying defendant's indebtedness to him, the Court refused to grant specific performance, but decreed that the plaintiff was entitled to a lien on the property for the amount of the debt and any money properly expended in respect of the pro- perty. Under the above circumstances neither party was allowed costs of suit. Johnson v. Scribner etai 363 2. Married woman — Mortgage of separate real estate — Parol agreement to assign mort- gage in consideration of its payment — Speci- fic performance — Statute of Frauds — Lien.] A married woman procured the plaintiff to make payments from time to time on account of the principal and interest of a mortgage on freehold property, forming part of her separate estate, by verbally undertaking to have an assignment made of the mortgage, or to convey the mort- gaged premises to the plaintiff. Held, that the agreement not being in writing could not be specifically enforced, but that it was binding on the separate estate of the married woman, including the realty, and that the plaintiff should be paid out of the same, with interest. Bulley v. Bulley 450 Administrator — Payment of debt barred by 264 Pleading— Demurrer 363, 371 FRAUDULENT CONVEYANCE-^Sei- ting aside — Parties — Suit by assignee — In- solvency Act, 1875 (88 Vict. 6. 16).] An in- solvent and wife should not be joined in a suit brought by the insolvent's assignee under the Insolvency Act, 1875 (38 Vict, c. 16), to set aside a conveyance executed by the insolvent and wife prior to his in- solvency, with intent to defraud his credi- tors. Drisooll. v., Fisher. ... ., 89 GARNISHEE— Fire insurance — Assign- ment — Priority — Remedy in Equity- -Staff/- ing proceedings under- Garnishee- A ct.] The loss payable under a policy of fire insur- ance was assigned by the assured to the plaintiff with the consent of the insurers. A loss occurring, the defendant, a judge- ment creditor of the assured, obtained ail attaching order under Act 45 Vict. c. 17, against the insurers. In a suit by the plaintiff for a declaration of his title to the insurance, and to restrain the garnishee proceedings, he alleged that the defendant intended tsetting up«the=Glaim. tha>t>the- as- signment to the plaintiff was fraudulent, and that the plaintiff had merely an equit- able title, which could not be used to defeat the defendant's rights under the garnishee process. The plaintiff also alleged that his assignor was insolvent, though he did not allege that the assignor had refused to allow an action at law on the policy in his name. Held, that the plaintiff was entitled to have his rights determined in equity, in- stead of under the garnishee proceedings, and that an injunction should be granted. An assignee of a policy of fire insurance is entitled to sue thereon in equity where the assignor 1 is insolvent, without a refusal by him to allow an action at law in his name. Robertson v. The Ban_k of Mon- treal et al , 541 INDEX. 587 GRANT— Construction of — Land adjoin- ing river— Ownership of bed of river 1, 14, 15 See River. GUARDIAN — Appointment — Infant temporarily in New Brunswick- Jurisdiction of Court 533 See Infant. HEARING — Setting cause down for, [53, 388 See Practice— Cause at Issue. 1, 2. HIGHWAY— Government Railways Act, 44 Vict. c. 25 (D.), s. 5, ss. 7 and 8, and s. 49 — Construction — Public Nuisance — In- junction.] The Court of Equity has juris- diction to interfere by injunction in cases of nuisance to the public. Circumstances considered under which the Court of Equity will interfere by in- junction to restrain a nuisance to the public. By section 5, sub-section 7 of the Gov- ernment Railways Act, 44 Vict. e. 25 (D.), the Minister of Railways has full power and authority . . . " to make or con- struct in, upon, across, under or over any land, streets, hills, valleys, roads, railways or tramroads, canals, rivers, brooks, streams, lakes or other waters, such tem- porary or permanent inclined planes, em- bankments, cuttings, aqueducts, bridges, roads, sidings, ways, passages, conduits, drains, piers, arches or other works as he may think proper. " And by sub-section 8 " To alter the course of any river, canal, brook, stream or water-course, and to divert or alter as well temporarily as permanently the course of any such rivers, streams of water, roads, streets or ways, or raise or sink the level of the same, in order to carry them over or under, on the level of, or by the side of, the railway, as he may think proper ; but before discontinuing or alter- ing any public road he shall substitute another convenient road in lieu thereof ; and the land theretofore used for any road, or part of a road, so discontinued, may be transferred by the Minister to, and shall thereafter become the property of the owner of the land of which it originally formed a part." Section 49 of the Act provides that " The railway shall not be carried along an exist- ing highway, but merely cross the same in the line of the railway, unless leave has been obtained from the proper municipal or local authority therefor ; and no ob- struction of such highway with the works shall be made without turning the highway so as to leave an open and good passage for carriages, and on the completion of the works, replacing the highway ; but in either case, the rail itself, provided it does not rise, above or sink below the surface of the road more than one inch, shall not be deemed an obstruction : Provided always, that this section shall -not Jimit or inter- fere with the powers of the Minister to divert or alter any road, street or way, where another convenient road is substi- tuted in lieu thereof, as provided in the eighth sub-section of section five." Held, that by section 5, sub-sections 7 and 8, power is given to construct a rail- road on, along, and over a highway to the extent of occupying the whole of it, and not merely alongside of it, and that section 49 does not limit this power. Attorney-Genkral for the Province op New Brunswick d. The Honourable John Henry Pope, Acting Minister of Railways and Canals, The Minister of Justice for Canada, and Jabez B. Snowball 272 HUSBAND — Concurrence of, in convey- ance by wife, when necessary [312, 313 Curtesy of 312, 313 See Curtesy . Joinder of in suit by wife 3C0, 362 See Married Woman. 2. IGNORANCE OF LAW — Creditors Deed— Release of Collateral Se- curities—Mistake 499 See Debtor and Creditor. ILLEGALITY— Contract for erection of building in violation of building law 24 Contract in restraint of trade 338 See Telegraph Company. INDEMNITY — Mortgagee — Shares - • Double liability 372 See Bank. 2. INFANT— Costs in partition suit. ... 483 Foreign domicile — Appointment of guardian — Jurisdict ion — Life insurance — Trust— Action on policy — Person to sue.] Life insurance in The Home Circle, a United States corporation, taken out by L., whose domicile was in Nova Scotia, was payable to E. in trust for L.'s infant daughter by his deceased wife. Upon L.'s death E. was appointed guardian in Nova Scotia of the person and estate of the infant. The infant, after her father's death, removed to New Brunswick for a temporary purpose, and B., her maternal grandfather, having been appointed guar- dian of her person and estate in this Pro- vince, brought this suit to restrain The Home Circle from paying the insurance to E., or to any other person than B., and to restrain E. from receiving it, and obtained an interim injunction. Held, that the insurance was payable to the legal personal representative of the de- ceased, and that the injunction should be dissolved. Semble, though the Court of this Pro- vince has jurisdiction to appoint a guar- dian of an infant residing here, but domi- ciled elsewhere, it will not supersede the 588 INDEX. guardian appointed by the Court of the infant's domicile unless necessary in the infant's interest. Gertrude Loasby, an Infant, by her Guardian Oliver Bar- berie v. The Home Circle, James Walker and Reverend Peter Egan 533 Order lor appearance. See Appearance. ■ Service upon 243 INFERIOR COURT— Inherent jurisdic- tion 530, 531 INFORMATION — Attorney-General — Parties to suit 17, 324 See Attorney-General. INJUNCTION— 1. Form— 0. 49, FormE., C. S. N. B.] An ex parte injunction order absolute in its terms, by omitting to state that it was to continue until further order, as provided in form E of chapter 49, C. S., was ordered to be varied in this respect with costs of application. Berton v. The Mayor, etc., of the City op St. John. 150 2. Injury to reversion — Devise to Execu- tors — Title of suit — Parties — Joinder of re- versioner and tenant.] Quesre, as to whether executors who are seised in fee under a devise of land and building to them in trust can bring a suit in their character as executors to restrain an injury to the re- version, or whether the suit should not be brought in their character as devisees and legal owners of the property. Qucere, as to whether a tenant and land- lord can be joined in a suit to restrain an act amounting to a nuisance to the tenant and causing injury to the reversioner. Humphrey et al. v. Batwil 213 3. Interim injunction —Jury — Finding of fact upon application- —Res j'udicata — Hear- ing— -53 Vict. c. 4, s. 83.] Where on an applicatidn for an interim injunction to restrain a nuisance a jury finds upon the facts, under Act 53 Vict. c. 4, s. 83, the question upon them is res judicata for all the purposes of the suit, and cannot be re- tried at the hearing. McIntosh v. Car- ritte < 400 4. Restraining application to Parliament for Private Act — Jurisdiction.] Circum- stances considered under which a Court of Equity will interfere by injunction in the exercise of its jurisdiction in personam to restrain an application to Parliament for a private Act. The Corporation of the Brothers op the Christian Schools v. The Attorney-General op New Bruns- wick and the Right Reverend John Sweeny, Roman Catholic Bishop op St. John 103 5. Interlocutory injunction — Suppression of facts — Application to dissolve.] It is the duty of a party applying for an ex parte in- junction to state all the material facts within his knowledge, and other facts can- not be brought forward to sustain the in- junction on an application to dissolve it. Domville v. Crawford et al 122 6. Splitting cause of action — Vexatious arrest — Abuse of process.] The defendant' was the holder of forty-eight promissory notes indorsed by the plaintiff, and had ob- tained judgment in the City Court of Moncton on thirteen of them in separate actions brought when all the notes were due. Some of the notes were of such an amount that two of them could have been included in one action. The plaintiff was arrested twice on executions on two of the judgments and was discharged on dis- closure. Immediate] y after his second dis- charge he was arrested on a third judgment, and was discharged by habeas corpus. In a suit for an injunction to restrain the defendant from using the process of the City Court of Moncton for malicious or vexatious purposes. Semble, that the injunction should go if. it appeared that the defendant intended to further arrest the plaintiff for the malicious purpose of harassing and punishing him, and endangering his health, and not for the- purpose of obtaining payment of the debt. Babang v. The Bank of Montreal. . 524 Acts calculated to injure 1 Application to dissolve Bill demurrable.ground for.325,332 Costs, where dissolved on account of concealment 130 Limited injunction before day of expiration 164 Motion on day injunction ex- pires ; 79, 164, Suppression of facts 122, 130 Though purpose for which injunc- tion granted has been served . [63, 79 Corporation — Misapplication of pro- perty 163 Damages in addition to, or in substitu- tion for 248 Delay 25 See Saint John, City op. 1. Dismissal of bill ipso facto dissolves in- junction 448 Interlocutory — Dissolution. See Application to Dissolve. Form of 150, 164 See Injunction. 1. Mandatory— Nuisance 17 See Building Law. Multiplicity of actions 529 See Injunction. 6. Nuisance — Jurisdiction 272 See Highway. Parties — Landlord and tenant — Join- der of causes, of action . . .243, 246 See Injunction. 2. Staying proceedings pending appeal from 437 Undertaking for damages — Married woman 362 .INDEX. 589 INSOLVENCY— See Bankruptcy. Deed — Setting aside — Parties 89 See Fraudulent Conveyance. Valuation of securities 507, 508 INSPECTION OF DOCUMENTS. See Discovery. .INTERLOCUTORY APPEALS— Stay- ing proceedings from 433 INTERLOCUTORY INJUNCTION. See Injunction. INTERROG ATORIES- 1. Practice— In- sufficiency of answei — Exceptions.'] Where a defendant has answered, though he might have demurred or pleaded, he cannot ex- cuse himself from answering fully on the .ground that the bill does not disolose a case against him upon the matters interrogated upon. Gilbert v. Union Mutual Life •Insurance Company 266 2. Practice — Sufficiency of ansviei — Ex- ceptions. ] Where an interrogatory contains a number of questions, each distinct and complete in itself, some of which are fully answered, an exception for insufficiency must not be to the whole answer, but must point out in what particular the interroga- tory is not sufficiently answered. Burpee et al. i>. The American Bobbin Spool and Shuttle Company et al 484 By defendant 53, 56, 391 Exceptions — See Exceptions. File, time to 53, 56 Motion to dismiss bill for want of pro- secution after filing 392 Right of defendant to ask questions tending to destroy the plaintiff's claim- 56 Setting cause down for hearing — Ex- ceptions to answer 53, 388 See Practice — Cause at Is- sue. 1, 2. JOINDER OF CAUSE OF ACTION— Injunction — Landlord and Tenant — Injury to reversion 243 See Injunction. 2. JOINDER OF PARTIES-Husband— Suit by wife 360, 362 See Married Woman. 2. Mortgage — Foreclosure — Wife separ- ate property — Judgment creditor of husband 311 • Disclaimer — Costs 311 See Mortgage. 3. Injunction — Landlord and tenant — In- jury to reversion 243 See Injunction. 2. JUDGMENT CREDITOR— Joinder of, in foreclosure suit upon married woman's separate property . . . 311 See Mortgage. 3. JURISDICTION — Account — Court of Equity 249 See Account. English Bankruptcy Court — Debtor domiciled and resident in New Brunswick 195 See Bankrupt. Equity Court — Construction . of will — Passing accounts 382, 387 See Probate Court. Exchequer Court of Canada 300 Infant — Foreign Guardian — Appoint- ment of guardian in New Brans- wick : 533 See Infant. Inferior Court 530, 531 Multiplicity of actions — Splitting claims — Vexatious proceedings 524 See Injunction. 6. Nuisance — Injunction 272 See Highway. Parliament — Private Act — Injunc- tion 103 See Injunction. 4. Partition — Assignment of Dower. .305 See Partition. 1. Probate Court — Construction of will — Passing accounts 382, 387 See Probate Court. LANDLORD AND TENANT— Covenant for renewal — Option of lessor — Second term — Possession by lessee after expiration of term — Effect of — Specific performance.] A lease for a term of years provided that, when the term expired, any buildings or improvements erected by the lessees should be valued and it should be optional with the lessors either to pay for the same or to continue the lease for a further term of like duration, After the term expired the lessees remained in possession for some years when a new indenture was executed which recited the provisions of the original lease and, after a declaration that the lessors had agreed to continue and extend the same for a further term of fourteen years from the end of the term granted thereby, at the same rent and under the like covenants, conditions and agreements as were expressed and contained in the said recited indenture of lease, and that the lessees had agreed to accept the same, it proceeded to grant the further term. This last mentioned indenture contained no in- dependent covenant for renewal. After the second term expired the lessees con- tinued in possession and paid rent for Qne year when they notified the lessors of their intention to abandon the premises. The lessors refused to accept the surrender and after demand of further rent, and tender for execution of an indenture granting a further term, they brought suit for specific performance of the agreement implied in the' original lease for renewal of the second term at their option. Held, affirming the judgment of the Su- preme Court of New Brunswick (28 N. B. 1), Ritchie, C.J., and Taschereau, J., dissent- ing, that the lessors were not entitled to a decree for specific performance. 590 INDEX. Held, per Gwynne, J., that the provision in the second indenture granting a renewal under the like covenants, conditions and agreements as were contained in the original lease, did not operate to incorpor- ate in said indenture the clause for renewal in said lease which should have been expressed in an independent covenant. Per Gwynne, J. Assuming that the re- newal clause was incorporated in the second indenture the lessees could not be Compelled to accept a renewal at the option of the lessors, there being no mutual agreement therefor ; if they could the clause would operate to make the lease perpetual at the will of the lessors . Per Gwynne and Patterson, JJ. The option of the lessors could only be exercised in case there were buildings to be valued erected during the term granted by the in- strument containing such clause ; and if the second indenture was subject to renew- al the clause had no effect, as there were no buildings erected during the second term. Per Gwynne, J. The renewal clause was inoperative under the Statute of Frauds which makes leases for three years and upwards not in writing, to have the effect of estates at will only, and conse- quently there could be no second term of fourteen years granted except by a second lease executed and signed bv the lessors. Per Ritchie, C.J., and Taschereau, J. The occupation by the lessees after the terms expired must be held to have been under the lease and to signify an intention on the part of the lessees to accept a renewal for a fur- ther term as the lease provided. Sears v. The Mayor, Aldermen and Commonalty op the City op Saint John 555 Joinder of, in injunction suit— Nuis- ance — Injury to reversion. .. . 243 See Injunction. 2. LAPSE— See Will. LEASE — Covenant by landlord to renew or pay for improvements — Tenant holding over and paying rent — Whether tenant bound to accept renewal of lease 555 See Landlord and Tenant. LICENSE — Sale of land for payment of debts 257, 264 See Administrator. See Administration Suit. Validity of — Probate 'Court — Appeal- Attacking license in collateral pro- j ceedings 264 See Probate Court. LIEN — Repairs to building— Security of building — Parol agreement. .. 363 See Frauds, Statute of. 1. Married woman — Mortgage of separate real estate — Parol agreement to assign mortgage in consideration of its payment— Specific perform- ance — Statute of Frauds — Lien 450 See Frauds, Statute of. 2, LIFE INSURANCE- Assignee - Pay- ment— Discharge— Concurrence of legal personal representative. . 537 Party to action on Policy of . . 533, 537 LIMITATION OF ACTION— Summary proceedings — Building law 24 LIMITATIONS, STATUTE OF— Mort- gage — Principal and surety — Chap. 84, C. S. N. £., ss. 29 and SO — Payment of interest by co-obligcr of bond.] On September 27th, 1850, H. and W. gave their joint and several bond to C. to secure the payment of £1,000 on September 27th, 1855, with in- terest thereon quarterly in the meantime. As between H. and W. the latter was 3urety, though they were both principal debtors by the bond. On the same day H. and W. executed to C. separate mortgages on separate pieces of property owned by each to secure the payment on September 27th, 1855, of the amount of the bond, neither party executing or being a party to the mortgage of the other. The mort- gage from W. was upon the condition that if he and H., or either of them, their or either of their heirs, etc., paid to C. £1,000 and interest, according to the condition of the bond by H. and W., it should be void. The mortgage given by H. contained a similar provision. The interest on the debt was paid regularly by H. up to the 27th March, 1879, after which his pay- ments ceased. . W. and his successors in title were never out of possession of the land mortgaged by him from the date of the mortgage, and never made any pay- ment or gave any acknowledgment. On January 20th, 1881, C.'s representatives commenced this suit for foreclosure and sale of both mortgaged premises. Held, that the mortgage given by W. was extinguished under the Statute of Limitations, c. 84, C. S. N. B. , ss. 29 and 30. Lewin v. Wilson et al 167 -Debt barred by — Payment by executor — Devastavit 264 Dower, admeasurement of — Delay. 438 Pleading — Bill — Demurrer 178 See Dower. LUNATIC — Sale of land — Committee — Sections 1S7 and 138, c. 49, C. S. ST. B.J Land belonging to a lunatic cannot be sold by her committee under sections 137 and 138, c. 49, C. S., except by public auction. In re Harriet Light, a Lunatic 392 Construction of Act relating to . . . 394 Conveyance — Married woman — Ack- nowledgment 394 Estate of — New Brunswick Statutory provisions relating to 394 MANDATORY INJUNCTION — Nui- sance 17 See Buildins Law. MARRIED WOMAN - 1. Contracting with reference to separate estate— Chapter 7%, C. S. N. B.] Where it is sought to INDEX. 591 charge the separate property of a married woman with a debt contracted by her, it must be shown under chapter 72, 0. S. N. B., that she expressly contracted with respect to her separate property. Where it is sought to charge the persona] property of a married woman, her consent thereto must be given under chapter 72, C. S. N. B., and a joint and several note signed by her and her husband in payment of the husband's debt, is not such a consent as is required by the Act. Observations that property belonging to a married woman is made her separate property by chapter 72, C. S. N. B. Gas- kin v. Peck et al 40 2. Married woman — Suit relating to sepa- rate estate — Parties — Next friend — Joinder of husband as co-plaintiff — Demurrer.] Where a husband is made a plaintiff with his wife in a suit relating to her separate estate, the objection that the suit should have been brought by the wife's next friend may be taken by demurrer. Alwakd et al. v. Killam 360 Acknowledgment 394 See Acknowledgment. Curtesy of husband 312, 313 Foreclosure of mortgage upon married woman's separate estate — Parties — Judgment creditor of husband, [311 See Mortgage. 3. Injunction — Undertaking for damages [302 Joinder of husband in suit by.360, 362 Mortgage — Separate real estate — Parol agreement to assign mortgage in consideration of its payment — Specific performance — Statute of Frauds— Lien 450 Sbe Frauds, Statute of. 2. Next friend, See Next Friend. Partition — Dower — Joinder of wife of tenant in common 414, 417 See Partition. 3. Security for costs. See Security for Costs. Suit by next friend, 360, 362 ; since the M. W. P. Act 362 MARRIED WOMEN'S PROPERTY ACT — Retrospective operation of [362 MEETING OF BANK— Annual meeting —Shareholders to fix date.. 62, 78 See Bank. 1. MISJOINDER — Injunction — Injury to reversion — Joinder of reversioner and tenant 243 See Injunction. 2. Married woman — Suit relating to separate estate — Parties — Next friend— Joinder of husband as co- plaintiff— Demurrer 360 See Married Woman. 2. MISTAKE -^ Creditors' deed— Collateral securities — Release 499 See Debtor and Creditor. MORTGAGE— 1. Assignment — Payment of mortgage debt to original mortgagee — Ab- sencc of notice of assignment — Registry Act, c. 74, C. S. If. B.] A. gave B. a mortgage- on iand to secure payment of A.'s bond held by B. Subsequently A. sold the equity of redemption to C, and B. assigned the bond and mortgage to the plaintiff by a registered transfer. Afterwards C. ob- tained an advance of money from D. by a mortgage of the equity of redemption, the money being applied by D. to paying B. the amount of the original mortgage, and B. discharged the mortgage on the records. Neither C. nor D. had notice of the assign- ment of the bond and mortgage to the plaintiff. In a suit by the plaintiff for the foreclosure and sale of the mortgaged premises : Held, that payment by A. or his assigns to B, of the indebtedness owing upon the bond without notice of the assignment of the bond and mortgage to the plaintiff en- titled A. or his assigns to a reconveyance of the mortgaged premises, and that the registration of the assignment of the mort- gage did not affect A. or his assigns with notice. Lawton v. Howe et al 191 2. Set-off — Foreclosure — Assets in the hands of mortgagee — Account — Cross-bill — Representative of estate of deceased mort- gagor— G. 49, C. S. N. B. s. 47.] An exe- cutor de son tort cannot foreclose a mort- gage given to him by the intestate if he has. in his hands sufficient assets of the deceased to pay the mortgage debt. Where, in a suit by an executor de son tort for foreclosure of a mortgage to himself by the intestate, it appeared that no ad- ministrator had been appointed, and by the answer of the heirs it was alleged that the plaintiff had assets in his hands belonging to the deceased sufficient to pay the mort- gage, the Court under e. 49, C. S., s. 47, appointed a barrister of the Court to repre- sent in the suit the estate of the deceased, and ordered the heirs to file a cross-bill against the plaintiff for an account. Kenny v. Kenny et al 304 3. Foreclosure — Married woman -Separ- ate property — Parties — Judgment creditor — Disclaimer — Costs.] A judgment creditor, who has registered a memorial of judgment, is a necessary party to a suit to foreclose a mortgage on land belonging to the wife of a judgment debtor. A judgment creditor made a party to a. foreclosure suit under the above circum- stances, upon disclaiming, will not be liable nor entitled to costs, though continued in the suit after disclaimer. Horn et al. v. Kennedy et al 311 592 INDEX. 4. Married woman — Separate estate — Agreement for mortgage — Suit by creditor! — Decree — Priority.] A married woman owning leasehold land as her separate estate, agreed by parol with A. that in consideration of his building a house there- on she would secure him by a mortgage of the premises, and the house was accord- ingly built. Subsequently she became in- debted to the plaintiffs, and they obtained a decree charging her separate estate with ■their debt. The decree was never registered. After the decree she gave a mortgage to A. in accordance with her agreement with him, and the mortgage was duly registered. In a petition by A. to have the mortgage de- clared a valid charge upon the property in priority to the plaintiffs' decree : Held, that the plaintiffs' decree must be postponed to the equities existing against the property in favour of A. at the time of the decree. In ee The Petition of Wil- liam G. Bateman. Chute et al. v. Amelia Gratten et al 538 Bank stock — Double liability — In- demnity of Mortgagee 372 See Bank. 2. Statute of Limitations — Principal and surety — Payment of interest by co-obligor of bond 167 See Limitations, Statute of. MOTION— Cause— Setting down for hear- ing—Cause not at issue 53, 388 See Practice— Cause at Issue. 1, 2. Costs of intercepted motion. See Costs. Dismissal for want of prosecution. See Dismissal. Execution for costs 496 Pro confesso — Want of answer — Ans- wer after notice — Costs. 59, 60, 94 See Pro Confesso. 2, 3, 4. Want of appearance 51 See Pro Confesso. 1. MULTIFARIOUSNESS 63, 395 See Bill. MULTIPLICITY OF ACTIONS— Com- mon law — Injunction 529 MUNICIPAL CORPORATION — Suit against Mayor - Ratepayer — Information ■by Attorney-General — Ex parte injunction — Sill demurrable — Ground for dissolving injunction— C. 49, 0. S. Jf. B. s. 24.] The Incorporation Act of the Town of Port- land, 34 Vict. c. 11, s. 9, provides that no person shall be qualified to be elected to serve in the office of chairman or councillor, ■or being elected shall serve in either of the said offices, so long as he shall hold the office of police magistrate or sitting magis- trate of the said town, or any office or place of profit in the gift or disposal of the Council. By Act 45 Viot. c. 61, the name of the town of Portland was changed to "the City of Portland," and it was provid- ed that instead of a chairman, annually elected by the councillors, there should be a mayor. By Act 51 Vict. c. 52, provision was made for the appointment of a com- mission of - three persons to prepare a scheme for the union of .the city of St. John and the city of Portland. The Act provided that one of the commissioners should be appointed by the council of the city of Portland, that each commissioner should be paid a specified sum for his ser- vices, besides expenses, and that the cost of the commission should be borne by both cities. The council of the city of Portland appointed the defendant C, who was then mayor of the city, its commissioner. At a meeting of the council held shortly after, presided over by C, as mayor, certain ac- counts were ordered to be paid, and esti- mates for the year were approved, and an assessment ordered therefor. The plaintiff, a ratepayer, brought this suit on behalf of himself and all other ratepayers who should come in and contribute to the expense of the suit, to restrain C. from signing orders for the payment of the accounts ordered to be paid by the council, and the defendant W., the chamberlain of the city, from pay- ing them on orders signed by the defendant C., and for. a declaration that C. was in- capacitated from acting as mayor. Held, that the suit should be by inform- ation by the Attorney-General on the rela- tion of all or some of the ratepayers, the plaintiff net having sustained, or likely to sustain, any injury not common to all the ratepayers. Where a bill is demurrable the objection may be taken as a ground to dissolve an ex parte injunction. Merritt v. Chesley et al .j*. • 324 Injunction to restrain misapplication of property by — Jurisdiction . . 163 NAVIGABLE RIVER— What is 14 NEGLIGENCE- Not legalized by Sta- tute..: 39 From performance of authorized Acts. [39 NEXT FRIEND— Of married woman . . . [360, 362 See Married Woman. 2. /Must be solvent person, 362, 511 ; or proceedings will be stayed until security for costs be given, or a new next friend appointed . . . 511 Will not be removed where defen- dant's security for. costs would be prejudiced 512 NOTICE— Of agreement 338 See Telegraph Company. Assignment of mortgage without notice to mortgagor — Payment of mort- gage debt to original mortgagee . . [191, 194 See Mortgage. 1. Trust— Bank— Shares— Legacy — Sale . , by executor — Transfer ....... 546 See Bank. 3. INDEX. 593 NUISANCE— What amounts to— Effluvia — Acquiescence.} To constitute a private nuisance arising from offensive odours they must occasion material discomfort and annoyance for the ordinary purposes of life, according to the ordinary mode and custom of living. The doctrine of acquiescence in relation to nuisance considered. McIntosh v. Cahritte 406 -Injunction— Jurisdiction 272 See Highway. OBSTRUCTION— River— Piobability of damage i, 16 See River. OFFICER — Crown— Liability— Remedy [299 et seq. ORDER — Setting cause down for hearing — Setting aside — Decree — Decretal order — Costs 80 See Costs. 1. PARLIAMENT— Application to, for pri- vate Act — Injunction — jurisdic- tion 103 See Injunction. 4. PART PERFORMANCE 363 See Frauds, Statute of. 1. PARTIES — Practice— Assignment of cause of action after suit brought — The Supreme Court in Equity Act, 1890 \53 Vict. c. 4), ss. 96 and 97.] After the bill was filed in a suit brought by a married woman by her next friend she died, and her executors assigned the cause of action to the next friend. Held, that under sections 96 and 97 of the Supreme Court in Equity Act, 1890 (33 Vict. c. 4), an application to continue the suit in the name of the assignee could be made ex parte, subject to the order being varied or set aside if the defendants were prejudiced in their security for costs. Robertson v. Appleby et al ; 509 Administration suit — Sale of real es- tate to pay intestate's debts— Pur- chaser of real estate from heir. . 257 See Administration Suit. -Administrator of deceased mortgagor —Foreclosure suit — Joinder . . 304 -Amendment of, practice as to ... . 512 Assignor — Fraudulent conveyance — Suit to set aside— Insolvency Act, 1875 (38 Vict. c. 16) 89 See Fraudulent Conveyance. _ Assignee — Insurance policy — Action upon 537 Attorney-General 17, 324 See Attorney-General. Change of interest — Amendment — Parties 512 Class suit— Conduct of 420 Description of parties 191 Corporation— Suit by shareholder in his own name 62, 78 See Bank. 1. EQ. CAS;— 38 Description of— Bill, 179, 189, 243 ; Class suit, 191 ; Writ of summons . . .179, "189, 243 See Writ of Summons. 1. Fraudulent conveyance — Setting aside — Suit by assignee — Joinder of assignor and wife — Insolvency Act, 1875 (38 Vict. c. 16) 89 See Fraudulent Conveyance. Interest of party in subject matter of suit must be shown in bill! 1531,532 Landlord-arid tenant— Injunction— In ; jury to reversion 243, 246 ■ See Injunction; 2. Married woman — Suit by next friend — Joinder of husband in suit by, [360, 362 See Married Woman. 2. See Demurrer. - — Partition — Joinder of lessee . .395, 405 See Partition. 2. Joinder of widow — Assignment of dower 305 See Partition. 1. Joinder of wife of tenant in com- mon 414 See Partition. 3. Representative character of — Descrip- tion — Writ of summons — Title of bill 179, 189 See Writ of Summons. 1. Representative of deceased person's estate — Appointment by Court, [301, 303, 304, 537 Trustees — Petition for advice — Parties —Hearing 269 See Trustee. PARTITION— 1. Partition suit—Assign- itient of dower — Joinder of widow.] A suit may be brought for partition of land and assignment of dower, and the dowress should be made a party to the suit. Wood et al. v. Akerley et al 305 2. Legal title in dispute — Bill retained, with liberty to bring an action at law — Parties — Joinder of lessee — Multifarious- ness — Objection at hearing.] Where, in a partition suit, the title at law of the plain tiff is bona fide in dispute, the Court will not decree partition, but will retain the bill with liberty to the plaintiff to bring an action to establish his title at law. Qucere, as to whether the lessee of a tenant in common should be made a party to a partition suit. The objection that a bill is multifarious should be raised by demurrer or in the answer, and cannot be taken at the hear- ing, though the Court itself may take the objection with a view to the regularity of its proceedings. Ogden v. Anderson et al 395 3. Sale — Joinder of wife of tenant in can^mon.] Qucere, whether the inchoate right of dower of the wife of a tenant in common is barred by a sale, of the land ina 594 INDEX. partition suit to which she is made a party. Close v. Close et al 414 4. Refusal of amicable partition — Costs.'] Where a co-tenant refused to amicably par- tition a piece of land, and proceeded to strip it of its timber, the costs of a partition suit were ordered to be paid by him, and made a charge upon his share of the pro- ceeds of the sale. Cassidt v. Cassidy et al 480 : Costs in , 481 Title— Amendment of bill after acquir- ing title , 405 Of plaintiff in partition suit must appear , , 405 Equitable title sufficient 405 Must not be in dispute 395, 404, 405 PARTNERSHIP— Dissolution-Account- Costs — Remuneration to negligent managing partner.'] In May, 1870, plaintiff and OB. formed » partnership for manufacturing purposes, under a verbal agreement by which they were to contribute equally to the capital stock, and share equally in the profit and loss. No amount was agreed upon as the capital, or when each was to contribute his proportion of it, or in what manner the business was to be managed. In June following J. B. was taken into partnership, under the agreement that each partner should contribute a third of the capital stock and share equally in the pro- fit and loss. The plaintiff managed the business until August, 1871, when C. B. took over the management, and forbade the plaintiff interfering with the business. In a suit brought in October, 1872, for a dissolution of the partnership and an ac- count, it was found on a reference to take the account that the plaintiff had con- tributed $4,312.97, C. B„ 810,407, and J. B., $7,294. It appeared that under the management of C. B., the business was mis- managed and neglected ; that he did not keep the partnership accounts in the firm's books, or in books accessible to the plain- tiff ; that he repeatedly refused, from the time he assumed the management, to render an account to the plaintiff, or to have a settlement of their accounts ; that he gave the plaintiff false information of the assets and liabilities of the business, and withheld information asked for, and. that the plaintiff had no knowledge of the amount C. B. and J. B. had contributed to the capital of the firm. .. Held, (1) that plaintiff's costs of the hear- ing should be paid by C. B., and that the costs of the reference should be. paid out of the partnership assets after payment of the partnership debts, and if the assets proved insufficient, then by C. B. (2) that C. B. should reoeive no remun- eration for his services in the management of the business. ' Young v. Berryman et al 110 Costs— Partnership action. . . .110, 121 PERSONAL REPRESENTATIVE — Appointment by Court, [301, 303, 304 PETITION— Trustees— Advice of Court, See Trustees. [269 PETITION OP RIGHT-When available remedy 299 et seq. PRACTICE— 1. Cause, at issue — Setting cause down for hearing — Interrogatories by defendant— Chapter 49 C. S. N. B., ss. 31, 37.] An application to set a cause down for hearing cannot be made until fourteen days after the replication is filed, the de- fendant having that time, under sections 31 and 37, chapter 49, C. S. N. B., in which to file interrogatories. Chase v. Briggs, No. 1 53 2. Setting cause down, for hearing — Inter- rogatories — Insufficiency of plaintifs an- swer— C. 49, C. S. N. B., s. SI, and Act 45 Vict. c. 8, s.J!.] The plaintiff answered defendant's interrogatories on November 28th, and on December 12th took out a summons to set the cause down for hearing. The defendant objected that the cause was not at issue, claiming that he had two months in which to except to the answer. Held, that under section 31 of chapter 49, C. S., and Act 45 "Vict. c. 8, s. 2, the re- medy of a defendant upon an insufficient answer is not to except thereto, but to move within a reasonable time to dismiss the bill upon fourteen days' notice of motion, and that a reasonable time having here elapsed, and the defendant not now desiring to have the bill dismissed, the cause should be set down for hearing. Dowd v. Dowd 388 Amendment -Title to suit. 179, 189, 513 See Writ of Summons. 1. Transfer cause of action. See Parties. Answer. See Answer. Appeal — Stay of proceedings pending. See Stay of Proceedings . Costs. See Costs. See Security for Costs. Demurrer. See Demurrer. Discovery. See' Discovery. Dismissal for want of prosecution. See Dismissal. Evidence. See Evidence. Injunction. See Injunction. Interrogatories. ' See Interrogatories. Joinder of actions. See Joinder of Causes of Action. Jurisdiction. See Respective Titles. INDEX. 595 Motion. See Costs. ■ Next friend. See Next Friend. Parties. See Parties. Security for costs. See Security foe Costs. Servtice. See Infant. Staying proceedings. See Stat of Proceedings. Writ of summons. See Writ of Summons. PRO CONFESSO--1. Appearance-Appear- ance after notice to take bill pro confesso — Costs— Chapter fl, C. S. If. B., s. 29.] Un- der section 29 of chapter 49, C. S. N. B., a defendant not appearing within one month after the filing of the_ bill, but seeking to appear before motion is heard to take the bill pro confesso for want of an appearance, will only be allowed to do so on offering to pay the costs of the notice of motion and undertaking to answer within the time he would have had had he properly appeared. Arbuthnot v. The Coldbrook Rollins Mills Company 51 2. Motion — Answering after notice — Costs —Chapter 49, C. S.JT. B., s. 28.] _ Where, after notice of motion under section 28 of chapter 49, C. S. N. B., to take the bill pro confesso for want of a plea, answer or de- murrer, the defendant files and serves an answer, he must offer to pay the costs of the motion up to the time of filing the answer, or be subject to terms of payment of costs on being let in to defend. Man- chester et al. v. White et al 59 3. Motion — Answer filed but not served — Costs— Chapter 49, C. S. N. B., s. 28.] Where, after notice of motion under sec- tion 28 of chapter 49, C. S. N. B., to take the bill pro confesso for want of an answer, the defendant files an answer without serv- ing a copy, the motion cannot be granted, but the plaintiff may apply either to have the answer taken off file, or for the costs of the notice of motion. .Where defendant files an answer, with out serving a copy, the answer may be ordered to be taken off file. Sayre v. Harris 94 4. Motion — Answer after notice — Clerk's certificate — Section 28, c. 49, C. S. N. B.] Where plaintiff gave notice of motion under section 28 of c. 49, C. S. N. B., to take the bill pro confesso for want of a plea, answer or demurrer, and at the motion did not produce a certificate of the clerk that an answer had not been filed, though it appeared from a certificate produced by the defendant that an answer had not been filed until after the notice, the motion was refused. Lloyd v. Girvan et al 164 . 5. Motion— Service of Clerk's certificate.] A motion to take a bill pro confesso for want of a plea, answer or demurrer, will be dismissed if the defendant has not been served six days previously with a copy of the Clerk's certificate of the filling of the bill, and that no plea, answer or demurrer has been filed. Macrae v. Maodonald et al. (No. 1.) 498 Amended bill not answered may be taken 167 Bill cannot be taken where answer on file, 61 ; though not served, 94 ; or filed after notice 164 Cause of action not disclosed in bill, [531 Clerk's certificate that answer not filed, 164, 167 Decree on pro confesso motion is such as plaintiff is entitled to on the record 532 Filing answer but not serving, effect of on motion 94 Formalities to be strictly observed. 167 Notice of motion intercepted by answer 59, 60, 61, 164 Costs in such case, 59, 60, 61 ; motion should not be brought on if costs tendered 61 PRESUMPTION— Grant— Bed of river- Ownership 1, 14 ■ See River. PRODUCTIONOF DOCUMENTS. See Discovery. PREFERENCE— Railway— Rival com- panies 338 See Telegraph Company. PRINCIPAL AND SURETY — Mort- gage — Payment of interest by co- obligor of bond — Statute of Limi- tations ' 167 See Limitations, Statute of. PRIORITY — Agreement for mortgage — Creditor's suit — Decree — Post- ponement 538 See Mortgage. 4. PROBATE COURT- Executors and trus- tees — Accounts — A dministration suit — Ses judicata — Construction of Will — Jurisdic- tion of Equity Court.] The testator P., by his will, bequeathed to his wife an annuity of 81,200 during her life, and to the plain- tiff an annuity of $2,000 during her life, and directed his executors and trustees to set apart out of the funds of the estate, stocks or securities sufficient to pay both annuities, and that if the income therefrom should not be sufficient, a portion of the principal should be applied for the purpose, and that under no circumstances whatever should there be any default or delay in paying the annuities. The will then con- tained a number of devises and specific legacies and the testator devised all the residue of both his real and personal estate after the payment of his debts, funeral and testamentary expenses, to his son, J. H. P. He then appointed his wife, his son, J.H.P., 596 INDEX. and three others to be the executors and trustees of his will. Probate of the will was granted to all of the executors. The trustees failed to set apart funds for the payment of the annuities. In an adminis- tration suit brought by the plaintiff, for the purposes, inter alia, of construing the will, and determining whether the trustees had distributed the estate and accounted in ac- cordance with the will, J. H. P. 'claimed that the trustees, after paying the debts and set- ting off certain specific legacies, were unable "to comply with the directions of the will as 'to appropriating funds for the payment of the annuities, and that he had expended the whole of the corpus of the estate in paying the annuities, and had passed his account in the Probate Court. By the ex- ecutors' accounts filed and passed in the Probate Court it appeared that the Judge of the Probate Court found and decreed a balance due J. H. P. of $5,020. Held, that the Probate Court not being a Court of construction, and having no authority to determine questions relating to the meaning of a will and whether ex- ecutors and trustees have discharged their duties in accordance therewith, the suit "was not res judicata by reason of its decree. Pakks v. Pabks et al 382 License to sell land 264 See Administrator. QUO WARRANTO— Acceptance of cor- porate office 329 — — Acceptance of non-corporate office 329 RAILWAY — Government Railways Act — Obstruction of highway— Con- struction of Act 272 See Highway. REAL ESTATE— Sale of, to pay debts of deceased debtor 257, 264 See Administrator. See Administration Suit. REGISTRY ACT— Assignment of mort- gage—Notice 191, 194 See Mortgage. 1. RELEASE — Creditors' deed— Collateral securities — Reservation 499 See Debtor and Creditor. RELIEF— Bill— Prayer 179 See Writ op Summons. REPLICATION— Dismissal of bill for want of prosecution -Costs of in- tercepted motion 60, 61 When to be filed 56 REPRESENTATIVE- Appointment of, by Court 301, 303, 304 See Mortgage. 2. Dispensing with — Life insurance — Payment to assignee 537 RES JUDICATA— Executors' and trus- tees' accounts— Construction of will —Probate Court 382 See Probate Court. Jury— Finding of fact upon applica- tion for interim injunction — Hear- ing—Act 53 Vict. o. 4, s. 83 . . 406 See Injunction. 3. RESTRAINT OF TRADE— Telegraph company — Exclusive right to con- struct line 338 See Telegraph Company. REVERSIONER— May enjoin nuisance injurious to reversion 248 Suit by — Joinder of tenant 243 See Injunction. 2. RIPARIAN OWNER 1, 14 See River. RIVER — Grant of riparian land — Con- struction of grant— Bed of river ad medium JUum^-Erection in bed of river — Might of action if probability of damage.} The M. creek is a tidal water emptying into the Bay of Fundy. Previous to the erection of an aboideau across its mouth it over- flowed its banks at high tide. The aboi- deau was erected in the latter part of the last century by a riparian owner, and "was fitted with gates adjusted to open at ebb tide and close at half flood tide, with the result of preventing the creek overflowing its banks. A considerable quantity of fresh water drains into the creek in times of freshets and heavy rains. Above the aboideau is a natural pondage or basin, sufficiently large to hold any heavy drain- age into the creek when the gates are closed at flood tide. The creek is navig- able for small boats, but ingress or egress is barred by the aboideau. In 1837, C., a riparian proprietor, conveyed a part of the land on the westerly side of the creek ad- joining the aboideau to S., and described the land as bounded by the margin or bank of the creek. Ultimately this piece of land was conveyed to the defendant. In 1874 the defendant placed sills and posts in the bed of the creek between high and low water mark and erected a barn thereon. The posts were objected to by riparian owners as tending to obstruct the free course of the creek by causing the collec- tion and deposit of floating material about their base and decreasing the area of the pondage, and eventually producing an overflow. The bed of the creek was di- vested out of the Crown by the original Crown grant of the marsh lands. Held, (1) That the conveyance to the defendant's predecessor in title did not pass the soil of the creek, and that the same was reserved for the benefit of all the riparian owners. (2) That assuming the title passed in the soil ad inedium filum aquae it was subject to an easement in all the riparian owners to have the creek kept open for pondage purposes. (3) That the riparian owners were entit- led to have the erections removed without ittDEX. 59? proof of actual damage, if there was a pro- bability of damage being done to them, and to prevent the defendant setting up a right to maintain the erections by acquies- cence. Jardink et al. v. Simon 1 Presumption that grant of riparian land conveys bed of river ad medium filum 14 What constitutes navigable river. . 13 ROAD — Obstruction — Nuisance — Govern- ment Railways Act 272 See Highway. SAINT JOHN, CITY OF— 1. Charter— Power to alter level of street — Injury to pri- vate property — Compensation — Injunction — Delay.} By the charter of the city of St. John, the corporation were given power to establish, appoint, order and direct the making and laying out all other streets . . . heretofore made, laid out or used, or hereafter to be made, laid out and used, but also the altering, amending and repair- ing all such streets heretofore made, laid out or used, or hereafter to be made, laid out or used in and throughout the said city of St. John and the vicinity thereof. . . . So always as such . . . streets so to be laid out do not extend to the taking away of any person's right or property without his, her or their consent, or by some known laws of the said Province of New Bruns- wick, or by the law of the land. The charter is confirmed by 26 Geo. III. c. 46. By Act 41 Vict. c. 9, intituled "An Act to widen and extend certain public streets in the city of St. John," it was provided that Dock Street should be opened to a width of sixty-two feet by taking in twelve feet on its easterly side, and carrying the north- eastwardly line twelve feet to the eastward through its entire length from Market Square to Union Street, and that Mill Street should be opened to the same width from Union Street to North Street by widening its eastwardly line. The effect of widening Dock Street made it necessary either that Union Street should be lowered and graded to its level, or that Dock Street should be graded up to its level, and that if Union Street was lowered, George Street, opening off it, should also be lowered. The' corporation, in January, 1878, decided to excavate and lower Union Street to the extent of twelve or thirteen feet after hear- ing the report of the city surveyor and the petitions of citizens for and against the cutting down of Union Street, and imme- diately thereafter entered upon the work by contractors. The plaintiffs were owners of a lot on the corner of Union and George Streets, upon which they had erected ex- pensive business premises, and which, by the lowering of the streets, would be twelve or thirteen feet above them. When the work of cutting down Union Street was about two-thirds done, and approaching the plaintiffs' premises, and after several months had elapsed from the time it was entered upon, the plaintiffs being unable to obtain compensation from the corporation, brought this suit for an injunction to re- strain the continuance of the work. Held, (1) that the corporation were un - authorized to cut down Union Street, and that the plaintiffs were entitled to com- pensation, for which they had a remedy at law ; but (2) that the injunction should be refused on the ground of delay in the ap- plication. Yeats v. The Matoe, Akdek- men and Commonalty of the City op St. John 25 2. Transfer of harborm — Consent of Com- mon Council — Constitution of Harbour Board — Meaning of expression " Two-thirds of members of Common Council " — Acts, 38 Viet. c. 95 (N. B.) and 45 Vict. c. 61 (D.)— Practice — Form of injunction order — C. 49, Form E, C. S. N. B.] The charter of the city of St. John grants the harbour of St. John within certain boundaries to the Mayor, Aldermen and Commonalty of the city, but any previous grant of the Crown in any part of the same is reserved and excepted. In addition to the wharves and water-lots owned by the city there are within the limits of the harbour wharves owned as private properties under grants from the Crown and reserved by the charter, and also wharves on lands leased from the city. By Act 38 Vict. c. 95 (N. B.), it was provided, inter alia, that the Mayor, Aldermen and Commonalty of the city might contract and agree for the transfer to commissioners, to be duly ap- pointed to constitute and form a Board of Harbour Commissioners for the port and harbour of St. John, of all the right, title and interest of the Mayor, Aldermen and Commonalty of, in and to the harbour of St. John, and of, in and to the land, water and the land covered with water, wharves, tenements and hereditaments within certain bounds of the harbour, provided that at least two-thirds of the members of the Common Council concurred in and agreed thereto. At a meeting of theCommon Council held after the passing of the Act a report from the general committee of the Council was sub- mitted recommending that application be made to the Dominion Parliament for legislation placing the harbour of St. John in commission in accordance, inter alia, with the terms of the said Act, and that the Board of Harbour Commissioners be composed of five members, three of whom should be appointed by the Governor- General in Council, and two by the Com- mon Council. The report was adopted by the Council on a vote of twelve to four, the Mayor, who was present, abstaining from voting, though he was in favour of the report, and had signed it as one of the general committee. The Common Council was composed of nineteen members, includ- ing the Mayor. The Dominion Parliament 598 INDEX, in accordance with the terms of a request from a committee of the Common Council by Act 45 Vict. c. 51 created a Board or Corporation of Harbour Commissioners, to consist of five members, three to be ap- pointed by the Governor in Council, one by the Common Council, and one by the St. John Board of Trade. The Act gave the Board large powers relating to the manage- ment and control of the harbour, including the mooring and placing of ships at wharves transferred to the board, or at private wharves, in their discretion, and the fixing and regulating of tolls and dues payable by ships at private wharves and slips. On an application to dissolve an ex parte in- junction restraining the defendants from transferring the harbour and wharf property to the board : Held, that the Act, 38 Vict. c. 95, should be strictly construed, and that the member- ship of the Harbour Board not having been constituted under Act 45 Vict. c. 51, in accordance with the terms consented to by the Common Council, the injunction was properly granted. Qucere, whether the consent required by the Act 38 Vict. c. 95 was the consent of two-thirds of all the members of the Com- mon Council, or of two-thirds of the mem- bers present at a meeting. An ex parte injunction order absolute in its terms, by omitting to state that it was to continue until further order, as provided in form E of chapter 49, C. S. , was ordered to be varied in this respect with costs of application. Berton v. The Mayor, Etc., of the City of St. John 150 SEALING UP DOCUMENTS 462 See Discoveey. 1. SECURITY— Valuation of in proof of claim 507, 508 SECURITY FOE, COSTS — 1. Bond- Obligee — Amount.] The bond for security for costs in the Equity Court is to the Clerk of the Court, and in the. sum of $500. Walsh v. McManus 86 2. Several defendants — Form of bond.] But one application may be made for security for costs where there are several defendants, and the bond should be for the benefit of all the defendants. Stewart v. Harms et al 143 Admission of defendant's liability, not required where 87 Amendment of parties to suit 512 Application for, 88 ; where several de- fendants 143 Company, from 87 Default in giving 88 Defendant or person compelled to liti- gate, from 88 - — Foreigner, from , . 87 Foreigner temporarily residing in this country, not required from, 87 ; or where residing within the juris- diction at time of application, though intending to go abroad after judgment 87 Funds of plaintiff in hands of defend- ant, not required where 87 -Insolvency, on account of 88 Married woman, from 88 Next friend, of married woman, re- quired from, 88 ; of infant, not required from 88 Nominal plaintiff 88 Order for, form of 88 Petitioner, where required from. . 87 Payment into Court in lieu of 88 Property within the jurisdiction, not required where plaintiff has, 87; whether property may consist of goods and chattels 87 Poverty, on account of 88 Practice to obtain 88 Residence abroad, in case of 87 Removal of plaintiff out of jurisdiction permanently after institution of suit, [87 Stay of proceedings, pending. .88, 511 Sureties for, who may be, 88 ; must be solvent, 88 ; on death or insolvency of surety, fresh security may be required 88 Waiver of right to 88 SEPARATE ESTATE OF WIFE— Contract with reference to . . . 40 See Married Woman. 1. Husband's curtesy in 312, 313 See Curtesy. SEPARATE EXAMINATION — Mar- ried woman 394, 395 See Acknowledgment. SERVICE— Upon infant 243 — — Clerk's certificate on motion to take bill pro confesso 498 See Pro Confesso. 5. SET-OFF— In Equity 301, 303 SETTING ASIDE DEED— Fraudulent conveyance — Suit by assignee — Parties— Joinder of assignor and wife 89 See Fraudulent Conveyance. SETTING CAUSE DOWN FOR HEAR- ING 53, 388, 391 See Practice— Cause at Issue. 1,2. SHAREHOLDER — Defending suit against corporation 418, 420 See Company — Debentures. Suit against corporation in own name, See Bank. 1. [62, 78 SHELLEY'S CASE— Rule in 426 See Will. 1.. INDEX. 599 SPECIFIC PERFORMANCE- Parol agreement — Costs where specific performance refused, but other re- lief granted 363 See Frauds, Statute of. 1. Married woman — Mortgage of separate real estate — Parol agreement to assign mortgage in consideration of its payment — Specific perform- ance— Statute of Frauds — Lien 450 See Frauds, Statute of. 2. SPLITTING CAUSE OF ACTION, See Injunction. 6. {524, 531 STATUTE OF FRAUDS. See Fbauds, Statute of. STATUTE OF LIMITATIONS. See Limitations, Statute of. STATUTORY REMEDY 25, 39 STAY OF PROCEEDINGS-!. Appeal — Stay of proceedings — Terms — Chapter 49, C. S. JY. B., s. 66.] Upon a judgment overruling the defendants' demurrer, the Court refused to stay proceedings pending an appeal, considering that greater injury would result to the plaintiff by a delay than to the defendant by a refusal to stay proceedings, but the plaintiff was required to accept an undertaking for the payment of the costs occasioned by the demurrer in case the appeal was dismissed, and to give an undertaking to forego them in case the appeal was allowed. McGrath v. Franke ET AL 97 2. Appeal — Stay of proceedings — Inter- locutory application.] Where a party is exercising an undoubted right of appeal the Court will stay proceedings under the judgment appealed from where necessary to prevent the appeal, if successful, from being nugatory. Observations upon appeals in interlocu- tory proceedings. Weldon et al. v. Wil- liam Parks & Son (Limited) et al. (No. 2) 433 3. Appeal— Production— Order for dis- covery — Stay of proceedings— Security to indemnify for delay.] Upon an order for discovery by the defendants, the Court made it a condition of staying proceedings pending an appeal, that the defendants put in security to indemnify the plaintiff from any loss arising from the delay ; the Court having no judicial doubt as to the correct- ness of its order, and considering that greater injury would fall upon the plaintiff by a delay than to the defendants by a re- fusal to stay proceedings. Robertson v. The St. John City Railway and John B. Zebley. (No. 2) 476 - — Abuse of process of Court 530 '- — Costs of application for 102 Dismissal of bill for want of prosecu- tion pending 449 "- — Discretionary with Court 98 Execution for costs pending appeal, [101, 102 -Garnishee of fire insurance—Suit in equity by assignee. See Garnishee. Injunction, when stayed pending ap- peal 437 -Next friend of married woman not solvent 511 Jurisdiction, inherent, to 530, 531 Pending security for costs 88 Security of costs, when ordered and not given , 88 Taking step in cause pending appeal, See Writ of Summons. 2. [442 STOCK— Bank— Mortgage— Double liabil- ity — Indemnity of mortgagee.. 972 See Bank. 2. STREET— Alteration of level of . . . .25, 37 See Saint John, City of. SUMMONS— Writ of. See Writ of Summons. TAXATION OF COSTS -Review of . .85 TELEGRAPH COMPANY — Exclusive right to construct line- Restraint of trade- - Notice of agreement — Acquiescence — Unfair preference '— 51 Vict. c. %9, s. tfft (Z>.)— B. N. A. Act, s. 9f, s.-s. 10 (a)— Suit by ■foreign corporation.] The E.